The recently passed Planning and Development Amendment Act 2023 (Amendment Act) introduces a new system for development approval of ‘significant development’. These provisions are anticipated to come into force on 1 March 2024.

A new Part 11B is to be inserted into the Planning and Development Act 2005 (WA) which establishes the significant development pathway. The new assessment pathway provides a refined, permanent version of the temporary Part 17 COVID-19 development pathways (COVID Pathway). It is anticipated that regulations for the new pathway will set a 120-day period for decision-making, which was not present in the previous COVID provisions.

Under the new pathway, the Western Australian Planning Commission (WAPC) will act as the decision-maker in determining significant development applications.

For a development application to be considered as ‘significant’, it must either meet a prescribed financial threshold or alternatively be authorised to be heard under Part 11B by the Premier if it is deemed of State or regional importance. It should be noted here that the Explanatory Memorandum for the Amendment Act outlines that applications relating to social and affordable housing will likely receive such authorisation.

These financial thresholds, whilst not yet officially confirmed, are expected to be $20 million for Perth and Peel and $5 million for regional areas. Upon meeting the threshold, a proponent may opt-in to the significant development pathway.

There is also the possibility of a ‘mandatory’ significant development, which must utilise the significant development pathway. However, at the time the amendments were first introduced into Parliament no such classes are contemplated.

Much of the detail as to the procedures to be followed by the WAPC in dealing with ‘significant development’ applications will be prescribed in regulations. We understand that these regulations will also be released on 1 March 2024.

The WAPC will maintain powers to approve a significant development application where it conflicts with the relevant planning framework. Such powers were present under the COVID Pathway; however, these powers may now only be exercised in four prescribed circumstances. These circumstances are:

– Where an application raises issues of State or regional importance, and is in the public interest;
– Where a conflict concerns a local planning scheme which has not yet been published or consolidated in accordance with the Planning and Development Act 2005 (WA);
– Where a conflict with a local planning scheme is considered minor and the determination is consistent with the general intent of the relevant planning documents associated with the development; and
– If the conflict is of a class prescribed in the new Part 11B. No prescribed classes are currently contemplated.

This new permanent pathway could hold benefits to proponents of large projects. The effectiveness of this new environment remains to be seen.

A recent decision from the United Kingdom Supreme Court has brought nuisance as a cause of action for environmental damage into the spotlight. In Jalla v Shell International Trading and Shipping Company, ongoing environmental damage from an oil spill off the coast of Nigeria was not held to be an “ongoing nuisance”.  

It was necessary to establish an “ongoing nuisance” in the case, because bringing forward a claim for the initial spill was time-barred.  

It was argued by the defendant, Shell, that as there had been no repeated polluting activity (in other words, the oil spill was a “once off” event), an ongoing nuisance could not have occurred. Because of this limitation period having expired, claims for compensation because of the prolonged environmental damage must fail.   

Whilst the case was heard in the United Kingdom, it still raises relevant concerns and considerations when seeking nuisance as a cause of action for environmental damage in Australia. Decisions from the United Kingdom are potentially persuasive in Australian Courts. 

The case raises insight into the difficulties of seeking nuisance as a cause of action for environmental damage in Australia.  

Most notably, there needs to be continued action by a polluter to constitute an ongoing nuisance. The presence of ongoing environmental harm caused by an event is not considered an ongoing nuisance in the absence of such continued action. Accordingly, statutory limitations for bringing an action in nuisance may expire despite the ongoing presence of environmental harm.  

One lesson to draw from this case is that if you uncover environmental harm to your property because of the actions of a third party, you may need to act quickly to avoid any claims being time-barred.  

If you would like further information, contact us by telephone on (08) 6460 5179 or email admin@glenmcleodlegal.com 

Glen McLeod Legal is delighted to finish off the 2023 year by welcoming Chris Harold to the team. Chris joins Glen McLeod Legal after working in a major national firm practicing in insurance litigation. Chris has a strong interest in environmental and planning law and is looking forward to transferring his litigation skills to these practice areas. Prior to commencing his career in legal practice, Chris was a professional soccer player in the A-League with a career spanning 10 years and 175 professional appearances. Chris was the all-time record appearance holder for Perth Glory when he retired in 2020. As a former professional athlete, Chris brings his vast high performance experience to the firm. 

A recent decision of the Supreme Court of Western Australia reminds us of the continuing tension between urban development and industrial operations, which has been a feature of the client work of Glen McLeod Legal over many years. 

In Cockburn Cement Ltd v Cowie [2023] WASC 343 the main question was: When does an industrial emission become unreasonable? This was in the context of the prosecution of a major operator for an offence under the Environmental Protection Act 1986 (WA) (EP Act) but the case potentially has broader application to the law of nuisance at common law and the role of industrial buffer policies. 

Background  

Cockburn Cement Ltd (Appellant) was convicted in the Magistrates Court of 13 charges of breaching s 49(5)(a) of the EP Act in relation to the unreasonable emission of odours.  

The Appellant manufactures quicklime and lime in Munster, a process which produces organic material. The organic material (originating from the use of shell sand in production processes) emits a distinct odour. The unreasonable emissions were emitted from their premises on various dates, impacting nearby residents in the southern Perth suburb of Beeliar.  

At first instance, the Magistrate had held that the odours had interfered with the convenience, comfort, or amenity of the residents. A fine of $290,000 was ordered for a breach of s 49(5) of the EP Act. The Appellant appealed to the Supreme Court.   

Unreasonable Emissions  

The Supreme Court held that an emission is unreasonable if it interferes with the ‘amenity of any person’ rather than the amenity of the locality where that person is situated. It is necessarily concerned with the private amenity of a person’s individual surroundings. The amenity of any person was seen to involve the pleasantness of the person’s situation (their individual surroundings).  

It was held that the test for determining whether an emission unreasonably interferes with the convenience, comfort or amenity of any person is an objective test. Emphasis was also placed upon whether an odour caused a person to act in a particular way.   

Here, an unreasonable interference for the purposes of s 49(1) of the EP Act is said to have occurred where the emission did in fact, viewed objectively, unreasonably interfere with the convenience, comfort, or amenity of a person.  

Whether interference with a person’s use and enjoyment of land is unreasonable in private nuisance are relevant under s 49(1). Furthermore, the following factors were identified as being of primary relevance in relation to s 49(1): 

  • the nature, strength, duration and frequency of an odour within the period covered by a charge;
  • the impact that the odour had on the activities of a person or persons;  
  • the nature of established uses in and character of the locality, and the extent to which residents moving into the area could reasonably expect to experience interference from pre-existing uses; 
  • the social utility of the activities which led to the emissions;  
  • whether the emission of the odour rose from ordinary operations or an accident, and whether the emission is likely to recur;  
  • whether all reasonable precautions were taken to minimise any interference;  
  • any hypersensitivity of the person; and  
  • the principle that a finding of unreasonable interference must justify the imposition of a criminal penalty.   

The Appellant contended that the Magistrate had erred in finding on the facts that the emissions had amounted to unreasonable emissions. The Judge held that the Magistrate was correct in their findings. In particular, the capacity of the odour to cause people to alter their activities was found to amount to an unreasonable interference with their convenience and amenity.  

For example, the odour prevented one resident from leaving their front door and window open. This impact was deemed to be an unreasonable interference with the resident’s convenience and amenity.  

Accordingly, the finding by the Magistrate that the odour was an unreasonable emission was upheld.  

Licencing Conditions  

The Supreme Court also addressed a constructional argument led by the Appellant. 

This related particularly to the construction of the word ‘ensure’ in a condition of Cockburn Cement’s licence to operate under the EP Act. Condition 18C of the licence provides that the Appellant must ensure that odour emitted from the premises does not unreasonably interfere at any time with the health, welfare, convenience, comfort or amenity of any person not on the premises [Emphasis added]. The Appellant submitted that the term ‘ensure’ did not create strict liability, but a standard of behaviour to take all reasonably practicable steps to limit the risk of occurrence of something.  

The Court held that the term ‘ensure’ should be given its ordinary and natural meaning. To attribute the standard of care approach argued by the Appellant to the wording of Condition 18C would have allowed unreasonable emissions to occur so long as reasonably practicable steps were taken to prevent them.  

Outcome  

The Appellant was successful in relation to the penalty of $290,000, the Court holding that this was being manifestly excessive. As a result, the penalty was reduced to $245,000. All other grounds of appeal were either refused leave or dismissed.  

On 6 June 2023, Glen McLeod presented at the Law Society’s Word Environment Day CPD Seminar: Are WA’s Law in Good Shape?’ on the legal framework of the Environmental Impact Assessment (EIA) in Western Australia.

EIA is the systematic assessment of the potential impact a development proposal has on the environment and (in Western Australia) is also applied to draft town planning schemes. The EIA process is provided for under the Environmental Protection Act 1986 (WA) (EP Act) and is administered by the Minister for Environment (Minister) and Environmental Protection Authority (EPA). The EPA assesses ‘significant’ or ‘strategic’ proposals and makes a recommendation to the Minister on whether a proposal should be implemented, and if so, whether it should be subject to any conditions.

The EIA process is impacted by the extensive body of applicable policy in Western Australia. The body of policy was reviewed in 2016 by the Independent Legal and Governance Review into Policies and Guidelines for Environmental Impact Assessments, and new procedures and policy manuals were created. An example of policy development is the Environmental Factor Guideline: Greenhouse Gas Emissions.

The five stages of the EIA process are:
I. referral – section 38 of the EP Act;
II. EPA decision on assessment – section 38G of the EP Act;
III. assessment of proposals – section 40(3) of the EP Act;
IV. the EPA report on the assessment – section 44(2) of the EP Act;
V. implementation of proposals – sections 44A, 45(11) and 45(12) of the EP Act.

The final determination in the EIA process is the decision made by the Minister authorising a decision making authority to make its own decision in respect of the proposal, subject to any conditions in a ‘Ministerial Statement’ or an ‘Implementation Agreement’.

Appeal rights in respect of decisions made by the EPA or the Minister, such as the proposal not being required to undergo an EIA, the content of the EPA’s report to the Minister or conditions and procedures in a Ministerial Statement, are provided for under Part VII of the EP Act. An Appeals Convenor will consider the appeal and then report to the Minister for determination. If an appeal is against a decision of the Minister, the Minister must appoint an appeals committee and then make a decision that aligns with the recommendations of the appeals committee. The only other option for an appeal or review process is judicial review in the Supreme Court.

The flexible instrument of policy, and some major statutory changes to the EP Act since the 1980s, have allowed the EIA process to adjust to changing circumstances in the modern world. Given the power of the EIA system in Western Australia, it is important that it remains fit for purpose and meets contemporary expectations.

There are some changes to the EP Act’s merits appeal system that could align it better with contemporary standards of transparency and procedural fairness, without necessarily revamping the entire EP Act or compromising the underlying statutory philosophy of Ministerial determinations. This alone could reduce the need for those dissatisfied with the content of an EPA report or a Ministerial decision to resort to judicial review.

Following the presentation, the paper was published in the Law Society’s Brief volume 50 number 3 (June 2023). If you would like a copy of this paper, please let us know.

If you would like more information on the EIA process, or assistance or advice in undergoing the EIA process, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

At a time when the State is centralising and, in some respects, relaxing planning laws, a recent Supreme Court decision is an important reminder that the courts will place limits on the power of decision making bodies. This is an aspect of the rule of law.

A Local Government went beyond power when it purportedly approved its own development application for a so-called ‘Operations Centre’: Reid v City of Gosnells and Western Australian Planning Commission (Gosnells Case) [1]. There is an associated case, which was heard with the action against the City of Gosnells (City): Reid v Western Australian Planning Commission and the City of Gosnells (WAPC Case)[2].

A number of important planning and administrative law concepts were examined by Justice Archer in her detailed decisions. While the Gosnells case is now on appeal, the Judge’s comments and rulings are important and even if they do not survive on appeal, they may become relevant in the future.

Because of the decision, the City’s planned ‘Operations Centre’, on rural land within 500 metres of the rural residential home of Jim Reid (Applicant), will not proceed, at least for the time being.

This case, in a sense, is about the integrity of a local town planning scheme and the strategic planning direction of an area at a State level.  The Applicant’s arguments included that the City’s proposal was at variance with the local and strategic planning for the area.

The City’s proposed ‘Operations Centre’ is on a former rubbish tip owned by the City. The area of the development, including landscaping and open space, covered 49.19 hectares and is comprised of proposals for: a waste transfer station; dog pound; green waste shredding facility for ‘prunings’ from trees on property for which the City is responsible; a workshop and general stores building with a wide range of equipment to support the maintenance of the City’s properties; motor vehicle servicing for the City’s fleet; chemical mixing for the City’s fertiliser requirements; and vegetated ‘buffers’.

In its development application to itself of June 2020, the City referred to the uses comprising the Operations Centre as a ‘Civic Use’, ‘Use Not Listed’ and ‘Waste Transfer Station’. The City argued that this collection of proposed developments was a ‘composite use’ that it had power to approve.

Significantly, the land is zoned ‘General Rural’ under the City’s Town Planning Scheme No. 6 (TPS 6) and ‘Rural’ under the Metropolitan Region Scheme (MRS). These zonings have not changed in a proposed new local scheme, the City’s draft Local Planning Scheme No. 24, which has been forwarded to the Minister for Planning for approval.

Individually, the waste transfer station, green waste grinding and dog pound uses are prohibited in the rural zone under TPS 6 and cannot be approved at the discretion of the City. The MRS works differently primarily because of its more ‘board brush’ zoning, in which there are no prohibited uses and a wide range of uses could theoretically be approved by the Western Australian Planning Commission (WAPC).

Usually, MRS development applications are determined by the local government in whose area they are situated, under a delegated authority from the WAPC, but because this development was considered to be of State or Regional importance, the WAPC decided in October 2020 that it should, in the public interest, make the MRS determination [3]. That meant there were two decision making authorities which had to determine the City’s development application: the City and the WAPC.

The Local Government and WAPC Approvals

The City approved its own application in January 2022.

The WAPC, through its Statutory Planning Committee (SPC), initially refused the application, in line with a report prepared by its professional officers, for the reasons stated in the report, that is:

  1. The proposed land use is inconsistent with the ‘Urban Expansion’ designation in the South Metropolitan Peel Sub-Regional Planning Framework because it would be incompatible with future urban development of the site and the broader locality.
  2. The proposed development is inconsistent with the Western Australian Planning Commission Development Control Policy 1.2: Development Control – General Principles because it would limit planning options for the future urban development of the area.

The City applied to the State Administrative Tribunal (SAT) for a review of the SPC’s decision. The SAT proceedings went to mediation. The City’s application was, after mediation, referred back to the WAPC, for a reconsideration of its decision. The reconsideration resulted in an approval by the SPC. Precisely why the SPC came to the opposite conclusion to its original decision is not clear.

The Supreme Court Action

The Applicant’s Supreme Court case, briefly, was that the City’s Approval was invalid because the waste transfer station, green waste grinding and dog pound developments are prohibited under TPS 6. Grouping them together cannot remedy their prohibition.

The City’s case essentially rested on two propositions. First, that separate prohibited uses became permissible under the town planning regime if they are considered together as a ‘composite’ use. The City’s second proposition was that the development should be classed as a ‘public work’ and did not need approval, despite being at variance with the City’s town planning scheme and the applicable strategic planning framework.

The considerations under the MRS for the WAPC were different because zoning under the MRS is broad brush, that is general, in nature. This includes the MRS Rural zone. The Supreme Court accordingly held that the development could be approved by the WAPC and therefore the WAPC Approval is valid. This comes as no surprise. The MRS potentially allows for a wide range of uses to be approved in its zones. It leaves the detailed planning to local schemes, like TPS 6. The WAPC approval therefore stands.

The City’s alternative argument in favour of validity was that the proposed development is a ‘public work’ and did not need approval. The Supreme Court did not accept the City’s argument and decided that the development was not a public work.

The State Parliament has recently passed an amendment to the definition of ‘public work’, which may assist the City if it were to try to rely on the ‘public work’ exemption in the future. At the time of writing the new definition was not law because the Act providing for it has not been proclaimed and therefore has no effect.

Legalities and Planning Principles

It is important to understand that both decisions were about the legalities of the decisions made, as opposed to the planning merits. This means that if the decision making process were to be started again and the previous decision making errors were avoided, it is possible that the development could be approved. In this case it is difficult to see how this could happen without TPS 6 being amended to make the prohibited uses lawful in the rural zone or the City being able to shelter under the ‘public works’ exemption.

Justice Archer set out a comprehensive review of the general planning law framework and applicable planning law principles. This included an overview of the process for creating local planning schemes, the role of regional planning schemes and the requirements in the Deemed Provisions [4], including the matters to which a decision maker is to have regard.

Notably, Justice Archer also affirmed the principle that ‘development’, in relation to the Planning and Development Act 2005 (WA), means the process of a development and not the product. It is well-established in Western Australian planning law, as set out in University of Western Australia v City of Subiaco [5], that the two components encompassed in the term ‘development’ are the use of the land, which includes activities done in or on the land, and the activities that result in a physical alteration of the land. This case has been cited in a number of decisions, including Bright Image Dental Pty Ltd v City of Gosnells [6], to which her Honour referred.

Another well-established definition in Western Australian planning law is ‘the requirements of orderly and proper planning’ in clause 67(2)(b) of the Deemed Provisions. Justice Archer affirmed the definition of ‘orderly and proper planning’ as established in Marshall v Metropolitan Redevelopment Authority [7] by her Honour Justice Pritchard, where her Honour stated:

…If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle.[8]

It is within the above framework and principles that development applications are properly approved. Any approval that does not comply with this structure runs the risk of being unlawfully made.

Conclusion

Local governments are provided with a relatively broad power to determine development applications in Western Australia. As we have demonstrated, there are limits to that power. A local government does not have a ‘free pass’ to approve whatever development it would like. Any development application decision must be made lawfully within the Western Australian planning law framework. If not, as was decided in the Supreme Court recently, the approval will be found to be unlawful and set aside, and the development will not be able to proceed.

For transparency, we note that Glen McLeod Legal acted for Jim Reid in the above action. Senior Counsel was Ken Pettit SC.

 

[1] [2023] WASC 48

[2] [2023] WASC 110

[3] Pursuant to clause 32 of the MRS

[4] Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)

[5] (1980) 52 LGRA 360

[6] [2018] WASCA 134

[7] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

[8] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182], see more broadly [179]-[182]

Wind turbines in a feild

The Land and Public Works Legislation Amendment Act 2023 (Amendment Act) recently passed through State Parliament and on 24 March 2023 the Amendment Act received Royal Assent.

The Amendment Act provides a range of changes to the Land Administration Act 1997 that are aimed at modernising and streamlining land tenure arrangements on Crown land. A key change from the Amendment Act is the introduction of a “diversification lease.”

Diversification leases:

The Minister for Lands (Minister) will be able to grant diversification leases over large areas of Crown land. The State intends to use diversification leases to facilitate a broader range of land uses on Crown land such as:

  • environmental projects including conservation, carbon farming, hydrogen projects, and other renewal energy uses;
  • tourism;
  • concurrent uses (such as renewable energy projects coexisting with agriculture and tourism); and
  • projects which support Aboriginal economic development.

The State hopes that these uses will support achievement of its net zero emissions by 2050 target.

Key features of diversification leases:

Purpose:

A diversification lease may be granted for any purpose or multiple purposes. This is distinct from a pastoral lease which may only be used for “pastoral purposes” unless a permit is granted for specified additional uses (which may only be granted in certain circumstances). Importantly, diversification lease holders will not be subject to the permit system as the use will be governed by the conditions of the lease.

Non-exclusive:

The diversification lease will not be exclusive. The diversification leases will coexist with other rights such as native title and access for mining tenement holders. Therefore, an important part of obtaining a diversification lease will be negotiating with other interest holders. Further, before the lease is granted, approval from the Minster for Mines and Petroleum is required and proponents will generally be required to have a registered Indigenous Land Use Agreement.

Application process:

Grants of diversification leases will be at the Minister for Land’s discretion. The Amendment Act does not set a process for applying for a diversification lease. However, the Department of Planning Lands and Heritage (DPLH) have advised that DPLH will manage application and that both market-led bids and State requests for proposals could occur. Applications will be assessed on a case-by-case basis.

Lease terms:

The lease will be subject to a lease on terms and conditions determined by the Minister. As the Amendment Act does not stipulate the terms of lease, the terms can be adapted to suit the particular use. A project proponent can negotiate with the Minister on the rent payable, lease conditions and options to renew.

Term of Lease:

Unlike pastoral leases, which have a maximum 50-year term, a diversification lease does not have a maximum term. This allows flexibility so that the term may be determined on the basis of the use.

Opportunities:

As a wide range of uses can be carried out under a diversification lease, currently under-utilised Crown land will now be available to be used for new projects and activities. This presents a range of opportunities including:

  • Proponents and developers of large-scale renewable energy projects have a new opportunity to use Crown land for their projects.
  • Hydrogen projects proponents may particularly benefit. The State has indicated a specific interest in supporting large scale hydrogen projects in its recently released Renewable Hydrogen Policy and Renewable Hydrogen Guidance.
  • Current pastoral lease holders interested in diversifying their operations may seek to replace their pastoral lease with a diversification lease.
  • Pastoral lease holders may also receive proposals from project proponents if their land is suitable for renewable energy projects.

Other projects suggested by the State are tourism, land rehabilitation, and carbon farming.

 
If you would like more information on diversification leases, converting a pastoral lease to a diversification lease, or other recent amendments to the Land Administration Act 1997, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

Photo of church in front of scyscaper

Glen McLeod has stepped down from his role as a member of board of the Environmental Protection Authority (EPA).

Glen was first appointed to the EPA by the Minister of the Environment in November 2013 and served on the board, which provides independent advice on projects across the State, for almost 10 years.

Glen wishes to thank his fellow board members and staff at the EPA for their support over the years.

The EPA plays an important part in the operation of a unique assessment system which regulates range of significant proposals in areas such as mining, energy and land development.

Glen will be followed by Hamish Beck, who commences a five year term on the board of the EPA on 6 February 2023. Glen congratulates Hamish Beck on his appointment and acknowledges the ongoing contribution of board members, Chair Professor Matthew Tonts, Deputy Chair Lee McIntosh, Professor Fiona Haslam McKenzie and Dr Jenny Pope.

An aerial photo of a roundabout and houses

The purpose of a Planning Control Area (PCA) is to protect land that has been earmarked for a public purpose such as a road or railway. PCAs are increasingly being used by the State Government to identify land that will be used for future road or railway development, such as Metronet, to ensure that no development occurs on the land which might prejudice its purpose or potential reservation. While this may be useful for the State Government, the question for a landowner is – how does this affect my land and what rights do I have when a PCA is declared on my land?

What you can and can’t do with a PCA over your land
If a PCA is declared over your land, there are a few things to be aware of:
• You can retain ownership and use of your land until the State Government acquires it.
• You can undertake any development or subdivision on your land that was approved prior to the PCA.
• You can sell your land on the open market or to the Western Australian Planning Commission.
• You will need consent from the Western Australian Planning Commission if you would like to undertake any new development on your land.

Can you get compensation?
There are two main avenues for compensation for landowners once a PCA is declared:
1. Right to claim compensation for injurious affection; and
2. Compensation once the land has been compulsorily acquired.

Compensation for injurious affection
Once a PCA is declared over your land, you can make a claim for compensation for injurious affection if the Western Australian Planning Commission has refused your application for development or approved development subject to unacceptable conditions, of if you sell your land below market price.

Compulsory acquisition
You can claim compensation once the State Government has compulsorily acquired your land. This compensation may be greater than what you could receive through injurious affection.

 

We have experience dealing with land compensation cases for land affected by PCAs. If you are affected by a PCA and wish to get advice on which option is right for you or you need help seeking compensation, please contact us by telephone on (08) 6460 5179 or email at admin@glenmcleodlegal.com.

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.