HAIL Sites: What are they?

Mason Reed explains in the January 2021 issue of NZProperty Investor Magazine, what a HAIL site is and how it affects property owners.

If you have undertaken land or building developments, you may have become aware of the HAIL register (typically when Council indicates that your property is on it).

So what is a HAIL site? HAIL is an acronym for the Hazardous Activities and Industries List.  As its name suggests, it is list of activities and industries that have a high probability of causing land contamination due to historical use, storage or disposal of hazardous substances.

The concept of HAIL sites, was developed in October 2011 by the New Zealand Ministry for the Environment (MfE), and is a fundamental component of the Resource Management (National Environmental Standard for Assessing and Managing Contaminants in Soil to Protect Human Health) Regulations 2011 (effective 01 January 2012), commonly referred to as the “NES”.  Each territorial and unitary authority in New Zealand is required to implement the NES under the RMA 1991, which requires councils to have a HAIL register (which identifies land which has the potential to be contaminated (due to its historical use).

Whilst HAIL activities include the more obvious industrial manufacturing, storage and use of hazardous substances like pesticides, coal products, petroleum products and timber treatment, it also includes seemingly benign activities like sheep-dipping, market gardens, orchards, sports fields and dry cleaners.

Asbestos awareness is also increasing throughout New Zealand, and is now one of the more common HAIL activities investigated.

So how does this affect property owners?  According to New Zealand property law, if you own a property you are responsible for any contamination associated with it, even if you did not cause the contamination or weren’t aware of the contamination when you purchased it.  This is the principle of caveat emptor, or ‘buyer beware’.

Under the NES, land is considered to be actually or potentially contaminated if an activity or industry on the HAIL list has been, or is more likely than not to have been, undertaken on that land.

The NES specifies five activities that are commonly undertaken on land that trigger a requirement for a site investigation to be undertaken, by a suitably qualified and experienced practitioner (SQEP).

• Subdividing the land.
• Disturbing the soil
• Changing the land use.
• Sampling the soil.
• Removing or replacing all, or part of, a fuel storage system.

If you are considering undertaking any of these five activities on land, a SQEP will be able to advise on the best course of investigation, which are typically undertaken in the following staged process:

• Preliminary site investigation (PSI).
• Detailed site investigation (DSI).
• Remedial action plan.
• Site validation report.
• Ongoing monitoring and management plan.

It is important to note that just because your property is on a HAIL register, it does not necessarily mean it is contaminated.  In some cases, it may only be necessary to undertake a PSI, in order to identify the risk of contamination affecting the subject site, particularly with regard to any future development. Often, a PSI will confirm, with some confidence, that the site is unlikely to be contaminated, and there may be no need for undertaking soil sampling and laboratory testing (i.e. DSI), avoiding time delays saving on development costs for the land owner.

A recent example, that Fraser Thomas has been involved in, was a client that had applied for resource consent to undertake a simple two lot subdivision of their rural property.  Relatively late in the consenting process, the consenting authority issued a Section 92 request for more information, as the property was identified as being potentially contaminated.  Fraser Thomas was able to quickly undertake a PSI, and were able to demonstrate that were no contamination issues affecting the proposed two lot subdivision.  This work was able to be undertaken relatively quickly and at minimal costs, compared to if a full DSI was required.

It is important if you are having a site assessed for potential soil contamination that you engage an appropriately qualified and experienced environmental engineer, as the remedial works, if required, can vary in complexity and costs (and can be very expensive). I would therefore recommend, prior to engaging your consultant, that you confirm the consultant has SQEP accreditation.