I was pleased to be invited to deliver a short speech on this subject this morning, at a breakfast organised by the WA branch of the Urban Development Institute of Australia (UDIA). The rest of this post is the text of the speech and the accompanying slides. I only had ten minutes to cover a very interesting and contentious subject, and naturally there is a lot more to be said, so I welcome comments on this post as always.
OUTLINE OF ISSUES AND COMMENTS
Thank you for the introduction. I would like to thank the UDIA for the invitation to speak today and also to acknowledge Jane Bennett of Chappell Lambert Everett for the work she has done in helping to prepare me and others for today’s event. My thanks also to the UDIA team, Debra Goostrey and Lynette Tay for their work.
Today’s topic-buffers and setbacks-is set out in the flyer for the event as follows:
‘First consider the inefficiency:
… a foreshore setback coupled with a wetland setback compounded by fire requirements;
secondly, consider the efficiency:
… a wetland buffer as a low fuel zone for fire so as to avoid land loss through the additional setback
… a foreshore reserve receiving an open space that recognises the value to the community of the use of the area.’
The statement in the flyer goes on to say:
‘Setbacks and buffers are a particularly Hot Topic that impact on the cost of housing and undermine sustainability objectives.
An overcautious approach to buffers adopted by regulators can result in lost opportunities for both public and commercial recreation activities.’
In the 10 minutes available to me, I will explore these issues with particular reference to industrial buffers. Many of the underlying principles are applicable to all buffer and setback issues.
There are many types of buffer area and setback. Jane Bennett will talk in more detail about the examples which now abound. As I said, my frame of reference will be industrial buffers.
However all these examples relate to the themes of today’s breakfast in that they all fundamentally concern the value of land, property rights and competition for land as a resource.
In its 1997 Statement of Planning Policy No. 4.1 State Industrial Buffer Policy, (SPP4.1) the Western Australian Planning Commission (WAPC) defines a buffer area as an:
‘… area within which sensitive uses are either restricted or prohibited.’
Although this is a definition in a particular policy document, for present purposes I will use it as a working definition.
I will return to SPP4.1 later.
My main proposition and indeed plea to the Government agencies, is that at the heart of the best approach to buffers of all kinds, is a need for nuance, flexibility and refinement. I acknowledge that flexibility, like marriage, has its limits. The flexibility must be tempered with a degree of certainty, otherwise, again, like marriage, why have it? I will return to the need for flexibility later.
The nature and purposes of buffers
Buffers exist to avoid or resolve competition for land as a resource.
Buffers can be off-site or on-site, an important distinction. I will be referring to off-site buffers because they give rise to the question: should another’s land be used for the purposes of a particular private or public asset?
Need for dynamic Buffers
Buffers can be static or dynamic.
As I said earlier, my main argument is that the need for nuance, flexibility and refinement is at the heart of the best approach to buffers of all kinds. By ‘nuanced’ I mean tuned to the particular local circumstances, including micro-climates, topography, surrounding uses, future planning of adjacent areas and the possibility that our modeling, even that relating to climate change, needs to be reappraised from time to time.
Buffers, where possible, should be dynamic in this sense and not static, except perhaps in unusual circumstances where at a strategic level the State sees fit to protect an historically and strategically important industrial area. At least in the Perth metropolitan area there is only one, the Kwinana Industrial area, which is governed by specialist legislation.
There are at least three reasons in favour of flexibility.
First, environmental law and policy assumes that over time standards change and the economic and technical capacity to abate environmental emissions increases with time.
Secondly, it is bad economics and environmental policy to sterilise land with static off-site buffers and setbacks. With increasing urban sprawl it is untenable to assume that in a City like Perth or indeed regional centres like Geraldton, Albany and Bunbury, we can or should afford forever to supply buffer land to make commercial life easy for industrial operators and infrastructure providers and administrative life easy for regulatory agencies and policy makers.
We need to be open to taking flexible approaches to adaptation, which includes being flexible about the kind of development that can be approved, the duration of the approval and the way we monitor and verify the modeling underlying a buffer.
Thirdly, flexibility is inherent in the way our legal system deals with issues of use conflict and compensation for the use of others’ land for buffer purposes.
I have said that buffers can be static or dynamic and I have made a plea for dynamism.
Example of Static Buffer
An example of a static buffer area is seen in the City of Geralton’s Town Planning Scheme No. 5 (Geraldton Scheme), which has set lines around a landfill facility and a waste water treatment plant.
It is interesting to consider the Geraldton Scheme’s text relating to the buffers. We don’t have time to do that now.
However, it would be fair to say that the Geraldton Scheme provisions promote a static approach to planning for the future. They leave you in no doubt that it is going to be hard to rezone, subdivide or develop in that buffer land for a long time to come. In theory, of course, the Scheme would be reviewed every 5 years, but we all know that does not happen.
Questionable Economics of Static Buffers
My earlier reference to the questionable economics of static buffers arises in this context.
We no longer live in a world where land is in plentiful supply, whether we are talking about Geraldton or Girrawheen.
Is there any substantive reason why the operators of public utilities should not be under the same environmental and planning regulations as every other industrial and infrastructure operator?
Of course I am being provocative and my comments may well be open to debate. Let’s have it in the panel discussion. And if you see me rushing away at the conclusion of today’s event its not because I am worried about being set upon-I have to be somewhere else shortly after 9.00am.
An example of a dynamic buffer, in contrast to the static model we have just seen, is one which can be defined in an agreement between an industrial or infrastructure operator and a landowner, which contains mechanisms for redefining the buffer over time, as more money is spent on plant and equipment to reduce emissions and improve amenity. It provides certainty and flexibility for both parties.
In one example, an agreement was used to lay down a regime for reviewing the buffer over time and reducing it as emissions were reduced and new modeling and verification showed that a reduced buffer was workable.
In two other examples, an agreement allowed an infrastructure provider to operate in accordance with easements and restrictive covenants which on the one hand allowed development to take place under various conditions and on the other gave the operator protection through easements to emit, again under various conditions.
Some Foundation Legal Issues
I will now turn to some legal aspects. In these examples there was no buffer policy in place and the result has been stagnation on the one hand and litigation on the other. So there would be something to be said for a dynamic buffer policy that avoided those problems.
Here is an aerial view of a site at Stowmarket, East Anglia.
The site was ripe for housing development under the applicable policies. I acted for a housing developer over 20 years ago who wanted to develop the green area. The only problem was this Molybdenum smelter on immediately adjacent land. The smelter’s emissions would make development of the land for housing untenable.
The developer’s team looked at this dispute over the development rights to the land, a classic use conflict, from a number of angles, starting with why the predecessor to the current English Environment Agency would not enforce the applicable environmental legislation to reduce or stop emissions.
We explored the possibility of an action in common law nuisance, under which an injunction would be sought to prevent the plant from operating in a way that blighted the development potential of the land, an idea I was to put to use successfully in respect of another site many years later. We also considered taking various actions against the environmental agency for not doing its job.
Nothing came of all that, for reasons I won’t go into here. You can see that the land remains undeveloped. I have no idea whether the plant complies with relevant laws and whether its emissions blight any of the adjoining land.
Fast forward to a case which did go to Court and was decided this year: Barr & Ors v Bifffa Waste Services Limited  EWCA Civ 312.
That case concerned an action in common law nuisance against Biffa, the operator of a former quarry site, now used as a landfill waste facility.
In this case some local residents had sued the operator of the waste facility for the nuisance created by odour emanating from the plant. They live in an estate which you can see on this slide.
The court at first instance sided with Biffa, the facility operator. However, the Court of Appeal overturned the decision of the Judge at first instance and rejected the approach of the lower Court. Lord Justice Carnwath said:
‘The fundamental principles of law [in these matters] were settled by the end of the 19th Century and have remained resilient and effective since then.’
This statement is as true in Western Australia as it is in England. The same law applies here and can operate, despite any buffer which may be in operation (although a buffer could be a factor in litigation).
To understand buffers and the planning policy applicable to them, it is necessary to have a full appreciation of the all of the law applicable to the unauthorised interference with land, in particular the law of nuisance.
Unless interference with land is authorised by law, either damages or compensation must be payable for the unlawful activity or an injunction could be obtained to restrain the wrongdoing.
What has changed since the 19th Century is the growth of town planning as an overlay on the common law.
Although the picture is complex, underlying it are some quite fundamental principles, most of which have thankfully not changed since the nineteenth century.
The reason the common law hasn’t changed is that property ownership – call it property rights if you like – is fundamental to the functioning of a modern free market economy. We can’t examine this interesting subject here in detail, however, it should be borne in mind when preparing buffer policy.
I will now comment briefly on the development of Buffer policy in Western Australia.
Development of Buffer Policy in Western Australia
In 1995 the first draft of SPP 4.1 was released. A final version was Gazetted in 1997. In the same year the Environmental Protection Authority (EPA) released its draft Guidance for the Assessment of Environmental Factors No. 3 Separation Distances between Industrial and Sensitive Land Uses 2005 (EPA draft Policy). The EPA draft Policy took its final form in 2005 (EPA 2005 Policy).
The 1997 policy remains applicable and I would certainly hope that remains the case for now. Although the 1997 policy waters down its references to property rights in the 1995 draft, a draft replacement published in 2009 contains no reference to the protection of private property rights. That policy is more general and perhaps more favourable to industry. It does not mention compensation and gives greater prominence to a presumptive buffer distance policy in the EPA 2005 Policy.
Of particular concern to me is that an Appendix to the 2009 SPP singles out the Water Corporation for special treatment. I light of what I have said, I do not believe that this is justified.
I have made a plea for flexibility in the context mainly of industrial buffers, but the underlying principles apply to all buffers and setbacks. My plea has been for flexibility in policy setting, because we can’t afford not to be flexible, and because of the compatibility of that approach with important legal and economic principles.
This is not to reject the need for certainty which buffers can provide. My view is, however, that the balance between public and private rights may be shifting too much away from private rights, something which will not necessarily benefit society as a whole.
That is all I have to say Mr Chairman and I will now hand over to you and the Panel
Glen McLeod, 24 October 2012