Industrial areas and land uses play a significant role in the Western Australian economy, however, the emissions from industrial activities can impact human health, amenity and the environment in surrounding areas. As development and urbanisation increases to accommodate Perth’s growing population, planning instruments and authorities must consider the interface between industrial and sensitive land uses, such as residential housing.

State Planning Policy 4.1 Industrial Interface (SPP 4.1) was published in July 2022 and is a long awaited response to these issues, aiming to prevent conflict between industrial and sensitive land uses. SPP 4.1 replaces State Planning Policy 4.1 Industrial Buffer Policy which was gazetted in 1997. This article will provide a brief overview of SPP 4.1 and explore the significant changes between SPP 4.1 and its predecessor. Some of the significant changes include:

  1. clarification that SPP 4.1 does not apply to rural land uses or industrial land uses on rural land;
  2. the creation of Strategic Industrial Areas (SIAs) at the state and regional planning level;
  3. the shift from the use of buffer zones to a suite of measures referred to as ‘land use transition’; and
  4. a greater emphasis on a risk-based approach.

Objectives

The primary objective of SPP 4.1 is for the impacts of industrial land uses to be considered at all stages of the planning process. This approach is designed to avoid situations where the resolution of land use conflict is deferred to the subdivision or development application stage where options may be more constrained. The policy seeks to separate industrial land uses from incompatible land uses to provide long-term certainty for industrial operations, avoid impacts on the health and amenity of people residing nearby and promote the co-location of similar or compatible land uses.

Application

SPP 4.1 is applicable across all stages of the planning process where a new proposal involves, is impacted by or is likely to impact an existing or proposed industrial land use. Examples of industrial land or industrial land uses that SPP 4.1 may apply to, include:

  1. land zoned for industrial purposes in a region or local planning scheme;
  2. industrial land uses on land zoned for industrial purposes;
  3. industrial land uses on land that is not zoned for industrial purposes; and
  4. land that may be impacted by industrial land uses and strategic industrial infrastructure.

Despite providing examples of industrial land uses, SPP 4.1 does not explicitly define what an industrial land use is for the purposes of the policy.

Proposals which include rural land uses, the extraction of raw materials, infrastructure corridors, telecommunications infrastructure and aircraft noise are exempt from SPP 4.1. The policy recognises that there is some overlap between SPP 4.1 and State Planning Policy 2.5 Rural Planning (SPP 2.5), where an industrial use interfaces with a rural use, SPP 2.5 will guide considerations of whether it is appropriate for an industrial and rural use to interface.

Strategic Industrial Areas

Among a raft of new policy measures, the implementation of SIAs stands out as a significant change. The creation of SIAs is integral to the policy’s push to ensure that the impacts of industrial land uses are considered at all stages of the planning process. The planning of SIAs should occur in a manner that enables the area to expand over time, prevents the encroachment of incompatible land uses and ensures the impacts of industrial activities are managed within a defined area. Furthermore, SPP 4.1 suggests that locating industrial facilities and associated infrastructure in distinct precincts or clusters will reduce their overall impact area.

SPP 4.1 provides that state and regional planning strategies, region schemes, local planning strategies and local planning schemes should identify and plan for:

  1. SIAs: where compatible infrastructure and complimentary land uses can be accommodated; and
  2. industrial land and reserves: where a wider variety of existing and future industrial development can be accommodated.

Impact areas, being the areas impacted by industrial activities will be identified by state and regional planning strategies and provided for by local planning schemes.

Land use transition

 A major change brought about by the implementation of SPP 4.1 is the suite of new measures referred to collectively as ‘land use transition’. SPP 4.1’s predecessor, published in 1998, provided for the establishment of statutory buffer areas around industrial areas to avoid land use conflict. It was intended that buffer areas would create an area in which sensitive land uses, such as residential dwellings, could not be placed as such land uses were more likely to suffer adverse impacts from the effects of industrial activities.

Rather than relying on buffers, SPP 4.1 provides for the gradual transition in land use from industrial to sensitive uses. Like buffer zones, the objective of land use transition is to minimise the adverse impacts of industrial activities on sensitive land uses by ensuring that there is sufficient space between industrial and sensitive land uses. This will be achieved through the use of compatible zones, reserves and land uses which are typically more tolerant of the impacts of industrial activities. An example of gradual land use transition may involve having a light industry zone and a service commercial zone situated in between an industrial zone and a residential zone.

Risk-based approach

 The policy adopts a risk-based approach to achieve its goal of minimising, managing and avoiding the detrimental impacts of industrial activities. This involves the consideration of a wide range of factors throughout the assessment process to ensure that the impact area of a proposal can be accurately defined. Factors considered may include current and future cumulative impacts of industrial activities, the potential for the intensification of industrial land uses and whether there are sustainable mitigation techniques that could be adopted to reduce off site impacts.

In accordance with the Planning and Development Act 2005 (WA), SPP 4.1 refers to the precautionary principle. SPP 4.1 provides that where the impact area of a proposed industrial use is unclear or ambiguous, a cautious approach ought to be taken when defining it.

Implications

The major difference between SPP 4.1 and its predecessor is the move from the concept of a buffer zone approach to a theoretically more adaptive approach that provides for the colocation of similar land uses to reduce land use conflicts. The idea is that a more flexible approach to the resolution of land use conflicts will allow them to be resolved on a case by case basis. Arguably, in practice this was done under the previous policy.

Comment – EPA Guidance Statement No. 3 – Separation Distances Between Industrial and Sensitive Land Uses (2005)

Surprisingly, SPP 4.1 does not mention the Environmental Protection Authority Guidance Statement No. 3 – Separation Distances Between Industrial and Sensitive Land Uses (2005) (EPA Guidance Statement). In our experience, the EPA Guidance Statement is used by planning authorities often in respect of land use conflict issues. The EPA Guidance Statement specifies a number of presumptive separation distances which are applicable to various uses with off-site impacts. It is often used (erroneously) as a prescriptive policy by both planning authorities and the Department of Water and Environmental Regulation. It will be interesting to see whether SPP 4.1 modifies the use of the EPA Guidance Statement as a de facto prescriptive buffer policy.

It is noted, however, that SPP 4.1 refers to an Industrial Planning Fact Sheet that refers to the EPA Guidance Statement.

We have extensive experience acting in land use conflict matters, our capability statement (view here) provides further details of the types of matters we have assisted with. If you would like to clarify any aspect of SPP 4.1 or discuss how it may apply to your land, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

confetti

The new Financial year heralds the 10th anniversary of Glen McLeod Legal. There is much to celebrate and many people to thank, in particular the clients, staff, professional associates, friends and families who have supported us over our inaugural decade.

We have remained true to our roots as a specialist planning, environmental and land development practice with sub specialisations in land compensation, development and tenure.

Often our client work requires us to work with other professionals in related disciplines. It has been a privilege to engage with other professionals to meet our clients’ needs.

Being up to date with legal developments, we distinguish ourselves by our knowledge of planning and environmental law, including the emerging areas. We are also cognisant of our clients’ objectives and their need for practical advice.

An aerial photo of a busy highway.

Glen presented on private property rights and claiming compensation at a Planning Law & Practice in WA seminar arranged by Legalwise, held on 14 June 2022.

He provided an overview of takings and compensation, including:

  • the procedure for taking land under the Land Administration Act 1997 (WA) (LA Act);
  • principles for valuing land taken under the LA Act;
  • the concept of injurious affection under the Planning and Development Act 2005 (WA);
  • complications in assessing the value of injuriously affected land and the restrictions on who can claim compensation for injurious affection following the Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106 decision;
  • a lessee’s entitlement to claim compensation for a taking under the LA Act; and
  • a case study on compensation for infrastructure projects.

If you have a question about the above topics, please feel free to contact us at admin@glenmcleodlegal.com.

Photo of a tree

In April 2022, the Department of Water and Environmental Regulation (DWER) published the Guidelines: Applications for a permit to clear native vegetation relating to carbon farming projects (Guidelines) which provides guidance to applicants for clearing permits on how the DWER considers the presence of a registered carbon farming project when assessing clearing permit applications.

The Guidelines apply to carbon farming projects which have been registered under the Emissions Reduction Fund, received State eligible interest holder consent and have been issued Australian Carbon Credit Units (ACCUs).

Clearing native vegetation without a clearing permit or without being otherwise authorised is an offence under s 51C of the Environmental Protection Act 1986 (WA) (EP Act). When determining a clearing permit application, the CEO of the DWER has regard to the clearing principles (contained in schedule 5 of the EP Act) and any development approval, planning instrument or other matter that the CEO considers relevant.[1]

There are three ways in which the existence of a registered carbon farming project within an area of native vegetation proposed for clearing may be a relevant consideration for the CEO, namely:

  1. as a relevant factor in determining the current and future condition of native vegetation. Such an assessment will be based on the best available information or through an inspection of the site at the time the application is made;
  2. as a matter raised through a public submission relating to the clearing permit application; or
  3. as a relevant ‘other matter’.

Notably, the Guidelines state that where ACCUs for a carbon farming project must be relinquished, the CEO would be unlikely to consider the presence of such a project as a matter relevant to the assessment of the clearing permit application.

The Guidelines are available on the DWER website here. If you would like to clarify any aspect of the Guidelines or discuss how it may apply to your land, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

[1] EP Act Section 51O.

Emiko Watanabe (left) and Glen McLeod (right), both smiling in front of a Law Society backdrop at the Welcome to the Profession breakfast

Emiko Watanabe (left) and Glen McLeod (right), both smiling in front of a Law Society backdrop at the Welcome to the Profession breakfast

On Friday 8 April 2022, Emiko Watanabe and Glen McLeod of Glen McLeod Legal attended the Law Society of Western Australia’s Welcome to the Profession breakfast. Nearly 200 recently admitted lawyers and other guests were addressed by keynote speaker The Hon Rene Le Miere QC.

Mr Le Miere imparted valuable insights to maintain a long and rewarding career in law, including the importance of asking questions if you do not understand something, continually learning throughout your career, and taking care of your mental and physical health.

The Hon Rene Le Miere QC addressing a crowd of 200 guests

Glen McLeod standing at a lectern presenting the Legalwise seminar

Glen McLeod standing at a lectern presenting the Legalwise seminar

On 17 March 2022, Glen presented at the Legalwise Property Law: Changes and Developments seminar, which was held in person and via webinar. The seminar program covered topics about strata by-laws, changes to community titles, retail tenancy, construction contracts for property development, and an outlook for the WA property market.

Glen presented an overview of the developments in planning law over the past 12 months, including:

  • planning principles that were revisited in cases in the Courts and State Administrative Tribunal;
  • a brief overview of the draft Medium Density Residential Housing Code;
  • conservation covenants and amendments to the Land Administration Act 1997;
  • a brief overview of recent developments in heritage conservation; and
  • changes to developer contributions under State Planning Policy 3.6 Infrastructure Contributions.

If you have a question about the above topics, please feel free to contact us at admin@glenmcleodlegal.com.

Headshot photos from left to right of Jess Hamdorf, Connor Fisher and Chelsea White

We are delighted to announce the following promotions.

Jess Hamdorf and Connor Fisher have been advanced to the position of Senior Associate. Chelsea White has been advanced to the position of Associate.

This is in recognition of their contributions to the firm and wide ranging expertise in planning and environmental law. Congratulations to you all!

A colourful playground in the shape of a lighthouse and a ship

Common questions in relation to Development Contribution Plans

New developments or the redevelopment of areas require the provision of new or upgraded infrastructure to meet the demands of the population in a new or redeveloped area. New or upgraded infrastructure is funded through developer contributions and, where there are multiple landowners, through Development Contribution Plans.

1. Am I required to pay developer contributions?

If you develop land which is in an area subject to a Development Contribution Scheme (DCS) you may be required to pay developer contributions at a specific point in time. That point typically occurs prior to the subdivision clearance process or when a development application is lodged.

2. What will I need to pay or contribute?

Developer contributions can be made in one or a combination of the following forms: monetary contributions, ceding land (free of cost) for infrastructure including roads, public open space, community purpose sites and drainage reserves or the construction of infrastructure which is transferred to the relevant government agency upon completion. Do not assume that the demands of an authority for the ceding of land free of cost is necessarily lawful even if they seem justified.

For monetary contributions, the amount that you may be required to pay toward developer contributions will depend on the particular developer contribution scheme and when your liability to make those developer contributions arises. As a general rule, the infrastructure that forms part of the development contribution scheme must be connected to the development area and all development contribution items must be clearly listed or identified in a development contribution scheme.

For example, a DCS may provide for adjustments in liability and entitlements between landowners in a scheme, depending on how much land or cash they have contributed. Calculating the adjustments can be problematic, partly because of the complexity of the formula for determining liability. The valuation of land contributions and the cost of infrastructure works are often the subject of disputes.

3. How can I find out about my liability to pay developer contributions prior to purchasing land?

All development contributions must be clearly identified. These developer contributions are typically found within a local government planning scheme and within a report specifically applicable to a development contribution area. The method of calculating development contributions should be clearly set out within these documents.

4. Is there a way to challenge my developer contributions? 

Typically you have an opportunity to seek review of the developer contributions initially with the relevant local government or service provider. Following that review you may seek a further review in the State Administrative Tribunal or in private arbitration depending on the nature of review and the specific infrastructure items in question.

5. Guidance – legal issues

Development contributions can have a large impact on the viability of a project. We recommend seeking legal advice on your obligations to make developer contributions, the quantum of those contributions, whether those contributions have been correctly calculated and when the payment of the contribution is triggered. Our capability statement (view here) provides further details of the types of matters we have assisted with. If you would like to discuss this with us, please contact us by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.

Glen McLeod Legal would like to thank you all for your continued support in 2021. We will be closed from 25 December 2021 and will re-open on Monday 10 January 2022.

We wish you a wonderful festive season.

An aerial view of a roundabout

In general terms, section 159 of the Planning and Development Act 2005 (WA) allows an earlier subdivider of land, who constructs or provides a road for the purposes of the subdivision, to recover half of the costs of that road from a later subdivider of land who makes use of the road.

  1. I am ‘the earlier subdivider’ – do I have a claim against the ‘later subdivider’?

There are three limbs to making a claim which the earlier subdivider must show. First, does the later subdivider have use of an existing road? Second, has the earlier subdivider contributed to or borne solely the cost of providing or upgrading a road, with a common boundary to their subdivided land? Third, has the later subdivider contributed to the cost of the road. Whilst these limbs may appear simple to establish, they have been the subject of extensive judicial commentary and legal interpretation which impact on whether there is a claim against the later subdivider.

  1. How quickly do I have to make a section 159 claim?

Under section 160 of the Planning and Development Act 2005 (WA), a claim brought pursuant to section 159 must be commenced within 6 years from the date of the later subdivision. Section 161 clarifies that the ‘date of the later subdivision’ is the date on which the Western Australian Planning Commission endorses the diagram or plan of survey relating to the later subdivision.

  1. How much money could I recover?

Section 159(1) provides that the earlier subdivider  can recover “one-half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road…”. There are various factors which are taken into account to calculate ‘one half’, including land value and construction costs. These calculations are often not straightforward and if legal proceedings are necessary, they are often because parties cannot agree as to the sum of money which should be recoverable.

  1. Guidance – legal issues

While on the face of it a section 159 claim may be simple, there are many issues of interpretation and fact which could affect whether a claim can be made and if so, how much money could be recoverable. Whether you are considering making a section 159 claim against a later subdivider or whether a claim has been made against you, we recommend seeking legal advice at an early stage to navigate this complex area of planning law.

If you would like to discuss a section 159 claim with us, please contact us by telephone on (08) 6460 5179 or by email admin@glenmcleodlegal.com.