Note: On 21 December 2022, the Environment Protection Authority issued Notice Number 20221403 – Management Order

Note: On 21 December 2022, the Environment Protection Authority issued Notice Number 20224448 – Notice to Repeal Management Order

Environment Protection Authority

Management order

(Section 14 of the Contaminated Land Management Act 1997)

Order Number 20211402; Declaration Number 20211109; Area Number 3427

Service: By registered mail

Property and Development NSW (ABN 91 840 597 406)

Locked Bag 5022

PARRAMATTA NSW 2124

The Proper Officer

Property and Development NSW

Environmental Services Group

Attention: Peter Graham, Executive Director Environmental Services Group

Background

A. On 20 October 2021 and in Declaration No. 20211109, the Environment Protection Authority (“EPA”) declared the land shaded blue on the attached Declaration Area Map (“Figure 1”), within the local government area of Newcastle City Council (“the Land”), to be significantly contaminated land under section 11 of the Contaminated Land Management Act 1997 (“the Act”).

B. The Land referred to in Paragraph A includes that part of Ellis Road between Georgetown Road and Turton Road, Waratah, shaded blue on Figure 1, and the following residential properties:

Lot	Plan	Address
1	DP575096	83 Turton Road, Waratah
2695	DP755247	5 Ellis Road, Waratah
2696	DP755247	3 Ellis Road, Waratah
2697	DP755247	1 Ellis Road, Waratah
2698	DP755247	1A Ellis Road, Waratah
2699	DP755247	81 Turton Road, Waratah
2701	DP755247	85 Turton Road, Waratah
2710	DP755247	6 Ellis Road, Waratah
2711	DP755247	4 Ellis Road, Waratah
2712	DP755247	2 Ellis Road, Waratah
2713	DP755247	2B Ellis Road, Waratah
2714	DP755247	75 Turton Road, Waratah
2715	DP755247	73 Turton Road, Waratah

C. The Land was so declared because the EPA had reason to believe that the Land is contaminated with gasworks-related substances and that the contamination is significant enough to warrant regulation under the Act.

History of ownership, occupation and use of the land

D. The Land comprises the site of the former Waratah Gasworks (“the Gasworks”), which was located on the land bounded by High Street, Turton Road and Georgetown Road, Waratah.

E. The EPA understands that:

(a) The Gasworks opened in July 1889, were administered by the New South Wales Department of Lands and were operated by Waratah Municipal Council until 1922.

(b) Prior to 1922 there were incidents of leakage and pollution in the vicinity of the Gasworks that appeared to be caused by operation of the Gasworks.

(c) In 1922, the Gasworks were sold to Newcastle Gas and Coke Company (NGCC). NGCC continued operation of the Gasworks for a short period of time before ceasing operations.

(d) The gas holder was not in use by 1926.

(e) In 1934, the State of NSW subdivided the Gasworks site and in October 1934 held a public auction under the Newcastle Pasturage Act 1900 for sale of the subdivided allotments.

F. The EPA understands that the liabilities of NGCC in respect of the Gasworks, including any liability for contamination, were transferred to AGL Gas Company (NSW) Limited, now Jemena Gasworks NSW Ltd. However, the EPA does not have reason to believe that NGCC caused contamination of the Land in the course of operating the Gasworks, repairing the Gasworks mains or decommissioning any Gasworks infrastructure.

G. The EPA does not have sufficient evidence available to it to confirm whether the Gasworks infrastructure and any gasworks-related wastes were removed from the Land as part of demolition works prior to the subdivision, sale and residential development of the allotments referred to in Paragraph E(e).

H. In April 1938, the Waratah Municipal Council was dissolved following the merger of several local Councils (including Waratah Municipal Council) which constituted the Newcastle City Council. The liabilities of Waratah Municipal Council were not transferred to any other entity.

Investigation of contamination of the Land

I. In May 2016, following an enquiry from a member of the public about the former Gasworks, Newcastle City Council engaged environmental consultants AECOM to undertake environmental investigations to determine the presence, extent and nature of residual gasworks contamination of the Land.

J. The Stage 2B Detailed Site Investigation (AECOM, 30 January 2018) (“the 2018 AECOM investigation”) indicated that:

(a) Gasworks-related contamination is present in shallow soil fill (upper 600 mm) on the Land;

(b) Concentrations of polycyclic aromatic hydrocarbons (including benzo(a)pyrene and naphthalene), total petroleum hydrocarbons, cyanide and metals (including lead), were found to be substantially elevated throughout the eastern portion of the Land, at thirteen properties within the footprint of the former Gasworks site. Those properties are listed at Paragraph B of this Order.

Basis for the issuing of this Order

K. From the 2018 AECOM investigation, the EPA understands that:

(a) Shallow soils in the area north of Ellis Road are contaminated with chemicals associated with former gasworks activities. These include polycyclic aromatic hydrocarbons, petroleum hydrocarbons, and metals, which are present at concentrations above human health screening criteria;

(b) The main sources of contamination in shallow soils north of Ellis Road are likely to be stockpiled gasworks waste, predominantly coal ash and soot;

(c) Shallow soil and perched water in the area of Ellis Road and south of Ellis Road are contaminated with chemicals associated with former gasworks activities. These include polycyclic aromatic hydrocarbons, petroleum hydrocarbons, cyanide and metals, which are present at concentrations above human health screening criteria; and

(d) Primary and secondary sources of contamination remain in the area of Ellis Road and south of Ellis Road, such as buried gasworks infrastructure, coal ash, soot and coal tar.

L. Due to the high concentrations of the contaminants noted in Paragraphs J and K above and reported in the Stage 2A Detailed Site Investigations (AECOM, November 2016) and in the 2018 AECOM investigation, NSW Health recommended short term soil management measures be put in place until longer-term remediation and/or management could be implemented.

M. The EPA understands that, if contamination of the Land is not managed or long-term management measures are not implemented on the Land, there is potential for residents participating in gardening or outdoor activities at their properties to be directly exposed to the contaminants in the soil noted in Paragraphs J and K and for those contaminants to be ingested by residents. Workers undertaking intrusive maintenance on the Land or at affected properties are also at risk of potential exposure to the same contaminants in soil and/or perched water.

N. Under s14(1) of the Act, the EPA may, by order in writing served on a person who is an appropriate person or a public authority, direct the person or pubic authority to carry out any action in relation to the management of the Land that may be specified in the order and/or to submit for the EPA’s approval a plan of management for the Land.

O. Under s13(6) of the Act, any public authority may be specified as the subject of a Management Order whether or not as an appropriate person within the meaning of the Act.

P. Prior to the making of this Order, the EPA considered the principles of ecologically sustainable development under s9 of the Act, the matters under s12(1) of the Act, relevant guidelines and all submissions as to whether an order should be issued.

Q. The EPA considers that its regulation of the declared area via a Management Order is appropriate due to:

(a) the presence on the Land of the contaminants noted in Paragraphs J and K of this Order;

(b) the degradation of soil and perched water resulting from the presence on the land of the contaminants noted in Paragraphs J and K of this Order;

(d) the current use of the Land for residential development;

(e) the exposure pathways available to the contaminants and the consequent risk to the health of residents and maintenance workers;

(f) the need to maintain ecologically sustainable development; and

(g) the need to secure the carrying out and completion of remediation works on the Land.

Public authority who is the subject of this Order

R. The following public authority is specified as the subject of this Order for the purposes of s13(6) of the Act:

Property and Development NSW

Significantly contaminated land to which this Order applies

S. This Order applies to the Land referred to in Paragraph A of this Order, which was declared by the EPA as significantly contaminated land in Declaration No. 20211109 made on 20 October 2021 and which is the land shaded blue on the attached Declaration Area Map (“Figure 1”), within the local government area of Newcastle City Council. The Land to which this Order applies includes that part of Ellis Road between Georgetown Road and Turton Road, Waratah, shaded blue on Figure 1, and the residential properties listed in Paragraph B of this Order.

Nature of significant contamination and risk of harm affecting the land

T. Based on the history of the occupation and use of the Land and the investigations of the Land conducted by AECOM, the EPA has reason to believe that the Land is contaminated as a result of the previous use of the Land for the former Gasworks and with the following gasworks-related substances (the “Significant Contaminants”):

a. Polycyclic aromatic hydrocarbons (including benzo(a)pyrene and naphthalene);

b. Total petroleum hydrocarbons

c. Cyanide; and

d. Metals (including lead).

U. The EPA has reason to believe that actual harm has been caused by the Significant Contaminants, including:

a. degradation of soil and perched water beneath the Land as a result of historical gasworks-related activities undertaken on the Land.

V. The EPA has reason to believe that the contamination of the Land has the potential to cause harm for the following reasons:

a. The sources of the significant contamination of the Land have not been removed or adequately managed.

b. Shallow soil and perched water on the Land contain the Significant Contaminants at concentrations exceeding the criteria for the protection of human health.

c. There is the potential for residents to be exposed to the Significant Contaminants through direct contact with contaminated soil on the Land.

d. There is the potential for persons undertaking intrusive works on the Land to be exposed through direct contact with soil and/or perched water containing the Significant Contaminants.

Actions that the public authority subject to this Order must take in relation to the Land

W. By this notice the EPA orders Property and Development NSW, as the public authority subject to this Order, to undertake actions in relation to the Land as set out in the table “Stage 1 Works” below and by the corresponding completion dates listed in the table:

Stage 1 Works

	Actions required by this Order	Completion date
1	Engage a site auditor accredited by the NSW EPA Site Auditor Scheme under Part 4 of the Act (the site auditor) to: (a) undertake an independent review of the proposed Remedial Action Plan required under Direction 2 and Communication Engagement Plan required under Direction 3; and (b) confirm the appropriateness of the Remedial Action Plan to address contamination of the Land; and (c) provide its review to the EPA by the completion date. All reports and plans required under this Management Order must be submitted to the EPA in accordance with Direction 4, with interim audit advice prepared by the site auditor which comments on their appropriateness and whether the terms of the Management Order have been complied with.	By 10 December 2021
2	Prepare a Remedial Action Plan (RAP) to address and manage the remediation of gasworks-related contamination of the Land, including the preferred strategy, milestones and timing. The RAP should include objectives, specifications and criteria for remediation works to address the significant contamination of the Land. Property and Development NSW must provide a copy of the RAP to the Site Auditor, as per Direction 1.	By 6 May 2022
3	Prepare a Communication Engagement Plan (CEP), with reference to Schedule B8 Guideline on Community Engagement and Risk Communication of the National Environment Protection Council (April 2013) National Environment Protection (Assessment of Site Contamination) Measure 1999 (the NEPM).The CEP for the remediation program must include: a. identification of key stakeholders, b. a range of different communication measures to maximise access to information, and c. scheduled communication activities to update stakeholders of progress at regular intervals. Property and Development NSW must provide a copy of the CEP to the Site Auditor, as per Direction 1.	By 6 May 2022
4	Provide a copy of the RAP and the CEP and interim audit advice to the EPA for EPA consideration and feedback.	By 27 May 2022
5	Implement the CEP prepared under Direction 3 and considered under Direction 4 to ensure key stakeholders are kept informed on the progress of the remedial work under this Management Order.	At the earliest opportunity following feedback from the EPA on the CEP
6	Report to the EPA any incidents of non-compliance with this Management Order.	Within 7 days of the non-compliance occurring
7	Inform the EPA of any change in the ownership or occupancy of the land, to the extent that Property and Development NSW is aware of the change.	At the earliest opportunity following Property and Development NSW becoming aware of a proposed change in ownership or occupancy of the Land, or where that is not possible, within 7 days of Property and Development NSW becoming aware of the occurrence of any such change

X. Property and Development NSW is to carry out the actions required to be carried out by this Order consistent with any relevant guidelines made or approved by the EPA under s 105 of the Act.

Y. Property and Development NSW is to make available for inspection by any person, free of charge, any report on the actions taken under this Order, and provide a copy of such a report to any person for a reasonable fee.

Z. Timing of actions required by this Order, as set out in the table “Stage 1 Works” in Paragraph W of this Order, may be varied from time to time by the EPA in writing.

AA. The EPA will consider varying this Order or making another Management Order for “Stage 2 Works” for the implementation of the Remediation Action Plan as well as a Long-Term Management Plan, if appropriate.

BB. All documents required to be provided to the EPA under this Order and correspondence with the EPA in relation to this Order, may be provided or sent by:

(a) Email to: RegOps.MetroRegulation@epa.nsw.gov.au; or

(b) Post to:

Adam Gilligan

Director Regulatory Operations

NSW Environment Protection Authority

Locked Bag 5022

PARRAMATTA NSW 2124

[signed 20 October 2021]

Stephen Beaman PSM

Executive Director Regulatory Operations

NSW Environment Protection Authority

(by sub delegation)

Date: 20 October 2021

NOTE:

Cost Recovery

Section 34 of the Act allows the EPA to recover its costs in connection with preparing and serving, monitoring actions under, and seeking compliance with a management order.

Information recorded by the EPA

Section 58 of the Act requires the EPA to maintain a public record. A copy of this management order will be included in the public record.

Information recorded by councils

Section 59 of the Act requires the EPA to give a copy of this order to the relevant local council. The council is then required to note on its planning certificate issued pursuant to s.149 (2) of the Environmental Planning and Assessment Act 1979 that the land is currently subject to a management order. The EPA is required to notify council as soon as practicable when the order is no longer in force and the notation on the s.149 (2) certificate can be removed.

Relationship to other regulatory instrument

This order does not affect the provisions of any relevant environmental planning instruments which may control the land on which the land is located or provisions of any other environmental protection legislation administered by the EPA.

Guidelines made or approved under section 105 of the CLM Act.

All the investigation or remediation works must be carried out consistent with guidelines made or approved under section 105 of the Act. See www.epa.nsw.gov.au/clm/guidelines.htm.

Appeal rights

Under section 61 of the Act a person who is the subject of a management order has the right to appeal against the management order to the Land and Environment Court within 21 days of after the date of service.

Continuing offences

Under section 108A of the Act, an order made under the Act that specifies a time by which, or period within which, a direction or other requirement in the order must be complied with continues to have effect until the direction or requirement is complied with. Where a time is not specified, the direction or requirement continues to have effect until it is complied with.

Background

Public authority who is the subject of this Order

Property and Development NSW

Significantly contaminated land to which this Order applies

Nature of significant contamination and risk of harm affecting the land

Actions that the public authority subject to this Order must take in relation to the Land

Guidelines made or approved by the EPA under section 105 of the Contaminated Land Management Act 1997

Guidelines made by the EPA

Guidelines approved by the EPA

EnHealth (formerly National Environmental Health Forum monographs)

National Environment Protection Council publications

Other documents