Court decision on contaminated soil "treatment" may lengthen environmental approvals process

Key Points:

The Court's clarification that earthworks such as "mounding and capping" constitutes "treatment" may mean that more development proposals will now be characterised as designated development.

In a development appeal in November 2012, the NSW Land and Environment Court determined that earthworks such as "mounding" and "capping" amounts to "treatment" of contaminated soil. Consequently, more rigorous environmental assessment of the development was required as it was properly categorised as "designated development".

This decision of Justice Sheahan in Toner Design Pty Ltd v Newcastle City Council [2012] NSWLEC 248 will have implications for developers and landowners undertaking projects on land where capping of contaminated materials to allow natural attenuation is an appropriate remediation method.