An aerial photo of residential development and agricultural land separated by a main road

With the growing demand for inner-city living and urban encroachment on the rural fringe there are many considerations for balancing competing demands from existing developments and new proposals. As new developments arise, these often come into conflict with existing land uses including potential dust, noise, odour and amenity impacts.

  1. A new development proposal will create a conflict with an existing land use – what can I do?

Where a development proposal has been advertised, it is possible to make a submission to the relevant local government, the Western Australian Planning Commission (WAPC) or the Development Assessment Panel (DAP) on matters that affect your interests.

It is also possible to make an application for a deputation at a local government council meeting, WAPC meeting or DAP meeting to inform decision makers of your concerns and the impacts of any land use conflict that may arise.

  1. Can land use conflicts occur between existing uses?

Yes, land use conflicts can also arise between two existing land uses. For example, land use conflict can arise where an existing land use expands or becomes more intense or it simply becomes intolerable to the neighbouring land users.

The most common examples of land use conflicts are between more sensitive uses such as ‘Residential’ and ‘Retail’ uses and ‘Industrial’ or ‘Rural’ land uses which often cause emissions of noise, dust or odour.

  1. I want to purchase or develop property – how can I know if there are potential land use conflicts that may arise?

A local government or a planning authority has the power to impose a notification on title as a condition of development approval, where it considers it desirable that prospective proprietors of the land should be made aware of a factor affecting the use or enjoyment of the land or part of the land. A notification on title can be imposed to make prospective residents aware of potential dust, noise, odour and amenity impacts that may not otherwise be obvious from a physical inspection of the land itself. For further details on how notifications on titles may operate, please see our previous blog articles on potential odours and transport noise and potential impacts to views.

There may also be relevant State planning and environmental policies (e.g. buffers and separation distances that apply to certain industries) that need to be considered to avoid land use conflict, which may affect the development potential of your property.

  1. Can I challenge conditions that are placed on a development approval in relation to land use conflicts?

Conditions can be challenged at the draft conditions stage or once the conditional approval has been granted by lodging appeal proceedings at the State Administrative Tribunal.

In relation to planning decisions, only the applicant or the owner of land in relation to a development approval can appeal the conditions of a development approval.

In relation to DAP decisions, only the person who has made a DAP application can appeal any condition imposed by a DAP. In either of the above cases, the appeal must be lodged within 28 days of the date on which the decision making authority gives notice of the decision.

If there are review proceedings in the State Administrative Tribunal, a third party who has a sufficient interest in the matter may be able to make submissions. See our blog article on becoming involved in planning proceedings.

  1. Guidance – legal issues

If you would like to protect your interests and ensure your rights are not unduly impacted, we recommend you seek legal advice regarding your legal and alternative avenues.

Development approval from the local government or the Western Australian Planning Commission will not exempt you from the requirement to obtain environmental approvals in relation to dust, noise or odour. We recommend you seek legal advice in relation to the need for both planning and environmental approvals.

Our capability statement (view here) provides further details of the types of matters we have assisted with. We would be pleased to discuss your matter further with you. We can be contacted by telephone on (08) 6460 5179 or by email at admin@glenmcleodlegal.com.