Law change likely over toxic soil

By ELIZABETH BINNING

Environment Minister Marian Hobbs may seek a law change so that councils cannot record potential soil contamination on property reports until they have actual proof.

The move follows Auckland City Council's decision to record details about potential contamination on the Land Information Memorandum (LIM) reports of nearly 5000 properties.

On Tuesday, Ms Hobbs wrote to Auckland Mayor Dick Hubbard advising him not to record such information until an investigation showed the actual presence of contaminants and a risk to human health or the environment.

This is the way other cities, such as Hamilton and New Plymouth, have dealt with soil contamination and LIM report issues.

However, Auckland has decided to rely on its own legal advice which says the council has a responsibility to tag the LIM reports, even without proof of contamination.

Part of the council's LIM tagging, which began this week, includes the wording "there is no evidence that this property is, or is not, contaminated as a result of any former horticultural use".

Ms Hobbs said the confusion over the correct way to handle the matter was due to ambiguities in the Local Government Official Information and Meetings Act and the way the Act was interpreted by different law firms.

In particular, there was confusion over the definition of the word "likely" in guidelines which state "territorial authorities are required to disclose everything they know about a parcel of land, including any information they hold about the likely presence of hazardous contaminants".

"What we have, to put it bluntly, is two senior law firms having an argument and giving different advice to different councils and one council persuading the other to go with its legal advice," said Ms Hobbs.

To clarify the matter the Minister is seeking further advice from Crown Law, a move which could lead to a law change.

If the word "likely" was removed from the phrase "likely presence of hazardous contaminants" councils would be able to tag LIMs only when there was a definite presence of contaminants - something that would require soil testing at a cost of between $2000-$3000 a property.

Auckland city planning group manager John Duthie said the council welcomed Ms Hobbs' offer to clarify the council's responsibilities.

Ms Hobbs said such a law change could take three to four months.

By then it could be too late for Auckland residents.

Handling the issue

What Auckland did Received ARC study and decided to conduct its own study.

Decided not to notify affected residents but tag 4872 LIM reports.

Notified residents after the Herald discovered the council findings, but council said it wouldn't pay for soil testing.

Changed its mind and decided to conduct soil testing but is still tagging LIM reports of all properties without proof of contamination.

What Hamilton did

Received ARC study and decided to conduct its own study.

Notified 223 potentially-affected residents and offered to pay for soil testing.

Tested a sample of 105 properties, 43 of which had elevated levels.

Offered to remove topsoil of vegetable gardens in affected sites, 15 residents accepted.

Tagged LIM reports of 91 affected sites after sample testing was completed.