Bad Neighbours (land-use conflicts)

Andrew Mack – Associate Director

NELA WA State Conference3 September 2015

Proper and Orderly Planning

Urban

Industrial

Expansion of Perth – ‘Sprawl’?

• Perth Peel 3.5 million• The draft framework provide guidance on where

sustainable development should occur over the next 35 to 40 years to ensure the impact of urban growth on areas of environmental significance is minimised; to protect our heritage; and importantly, to maximise the benefits of available land and existing infrastructure.

Expansion of Perth – ‘Sprawl’?

Infill Greenfields

Bad Neighbours

SourceReceptor

Land-Use Conflicts• Source – Pathway - Receptor• Source site

• environmental footprint with a range of emissions to consider (including air, surface water and groundwater).

• Through the application of management practices and environmental controls, the footprint of the source may reduce.

• EPA Guidance Statement No.3 (2005) :• Separation distance – the shortest distance between the boundary of the area that may

potentially be used by an industrial land use, and the boundary of the area that may be used by a sensitive land use.

• Buffer – all the land between the boundary of the area that may potentially be used by an industrial land use, and the boundary of the area within which unacceptable adverse impacts due to industrial emissions on the amenity of sensitive land use are possible.

Types of Impact

•Noise Pollution• Visual Amenity

Types of Impact

• Light Pollution•Noise Pollution

Types of Impact

• Light Pollution• Air Pollution•Noise Pollution• Visual Amenity

Bad Neighbours

• Approval already grantedo Considered and determined to be acceptableo How do you manage these issues?

o Communicationo Complaints and Confrontationo Regulatory involvement (legal)

Neighbours – Before It Gets Bad

• Environmental Impact Assessment (Pt IV)• EPA Guidance Statement No. 3• Statement of Planning Policy No. 4.1 (SPP 4.1)•DER ‘Separation Distances’ Draft Guidance Statement

Land Use Conflicts in Practice• EIA (EPA)

• The EPA can provide an assessment pathway for a proposal involving potential land-use conflicts. Schemes can be considered by the EPA through Section 48A (and therefore have broader potential land-used conflicts considered on a precinct scale),

• Individual proposals can also be referred to the EPA • Any proposal with a potential for environmental impact or impact to

human health • Assessment process would take into consideration the recommended

buffer/separation distances outlined in EPA Guidance Statement No. 3

Land Use Conflicts in Practice• EPA Guidance Statement No. 3 (2005)

• GS3 “provides advice on the use of the generic separation distances that have been developed…for a range of industrial land uses”

• Useful as a first port of call in determining what a reasonable buffer or separation distance might look like between an industrial source and sensitive receptor.

• The Guidance Statement is useful in a range of circumstances, including:• to identify the need for specific buffer definition studies where:

• a new industrial land use is proposed near an existing or proposed sensitive land use; or • a new sensitive land use is proposed near an existing or proposed industrial land use;

and • to provide general guidance on separation distances in the absence of site specific technical

studies, or, where only an estimation of the area that could be subject to land use conflicts is required.

Land Use Conflicts in Practice

•SPP 4.1(1997)• Notes that the Planning and Development Act 2005 requires that every

Local Government Authority (LGA) should have due regard to SPP 4.1• Principle 2 “…offsite buffer areas shall also be defined for established

industry and infrastructure to comply with accepted environmental criteria where there is a potential for land use conflicts to occur” (WAPC, 1997)

• The Policy recommends that where an industry or responsible authority and the WAPC consider that further land uses hold the potential to compromise the operation of the facility, a buffer study should be undertaken.

Land Use Conflicts in Practice• SPP 4.1 Amended (Draft 2009)

• Technical Studies• identification of the nature of the off-site impacts; • evaluation of the predicted or measured emissions and risk levels against accepted

criteria; • assessment of measures required to meet licence conditions and best practice approaches; • options for the re-use of waste or by-products; • consideration of the cumulative impact of the proposal; • proposed measures and controls to ensure that off-site impacts and risks are ameliorated; • identification of land uses that may be compatible in the buffer area; • monitoring and review; and • the consequences of the encroachment on existing operations and liability of the industry.

Land Use Conflicts in Practice• DER – Separation Distances Draft Guidance Statement

• DER’s approach to assessment of separation distances• Divergences from EPA GS3 (contemporary standard?)• Methods for measurement

• Status of GS No. 3? • Query regarding role of DER in relation to EIA, site selection

etc.

Land Use Conflicts in Practice•Memorials

• WAPC has the opportunity to include information on the Certificate of Title for a piece of land where that land may be affected by a hazard or similar encumbrance.

• WAPC Planning Bulletin Number 3 (1995) describes the mechanism for undertaking such action

• Memorials limited to the following circumstances:• the hazard or other factor is relatively permanent;• the hazard or other factor is of such significance (in terms of its effect on the use or

enjoyment of the land) as to warrant notification to a landowner;• the hazard or other factor may not be apparent on inspection of the land; and• indication of the hazard would not normally be found in other documentation

relating to the land, such as a town planning scheme.

Land Use Conflicts in Practice• Expectations in terms of practice• Generally, environmental and planning approvals

required• Independence of statutory processes?• Planning regime can consider environmental issues (not

vice versa)• Need for both to be addressed in any approvals process

Example 1 - Ransberg• Ransberg Pty Ltd and City of Bayswater [2014] WASAT 12 • Proposed Concrete Batching Plant• Edge of Industrial Area• POS and residential immediately adjacent (noise, dust, visual

amenity)• EPA GS3 300-500m depending on size

(DER Standard 500m)• Tribunal agreed that there was potential for impact –

monitoring/management• Site specific assessment required

Example 2 – Wattleup Land Development• Wattleup Road Development Company Pty Ltd and Western

Australian Planning Commission [2011] WASAT 160• Proposed residential subdivision across an area of land in

proximity to Alcoa’s red mud lakes• All dust monitoring data had demonstrated that the risk, to that

point in time, was acceptable.• “precautionary principle warranted refusal of the proposed

subdivision, unless and until adequate air quality monitoring is undertaken and reviewed in relation to the site demonstrating that the proposed subdivision would be acceptable in relation to the health and amenity impacts of dust.”

Example 3 – BioOrganics• Former Composting Facility in Shire of Serpentine-Jarrahdale

• Alleged odour, dust, discharge and contamination issues• Alleged liquid waste disposal• Licence revoked (under appeal)• Requirement for closure measures to be implemented (also appealed)• Requirement for contamination investigation (appeal dismissed)• Planning approval refused (appeal recently withdrawn)• EPA GS3 - “1000 for manures, mixed food/putrescible & vegetative food

waste; 500 for biosolids & 150 for green waste.”• 18 dwellings within 1000m of the premises, of which three are within 500m.

Conclusions• Environmental and Planning approvals process needs to consider land-use conflicts• Proper and orderly planning should consider this at a strategic level• Securing buffers will become more difficult as Perth grows• Further information will inherently be required to prevent impacts• EP Act• EPA GS3• SPP 4.1• DER Draft Guidance Statement

Conclusions

• Site Specific Studies will become more prevalent• Best practice not good enough in some circumstances• Potential conflicts between regulators• EPA•DER• LGA

Conclusions• There will always be examples of issues of land-use conflicts•Where approvals are granted, the industry is often equally as compromised as the receptor

Andrew Mackandrew.mack@talisconsultants.com.au0402 029 244