ENVIRONMENT & PLANNING Alert – Planning controls help manage land use conflicts and environmental issues

Mar 2 2016

Publications

Too often land use conflicts occur between existing non-residential uses and residential uses which are increasing in density.  This can take the form of environmental issues impacting on residential amenity.  This is particularly so with respect to existing industrial and manufacturing businesses and adjoining and nearby residential neighbours.

Thomson Geer recently acted for a milk manufacturing plant in rural Victoria that was experiencing tensions between its operations and adjoining residential areas.  Dairy operators, by their nature, can impact on surrounding lands by way of odour and dust emissions.  Despite great expenditure and caution and compliance with environmental obligations by the industry, these incidents can inadvertently occur.

To deal with potential land use conflicts which could impact on both the plant’s current and future operations and on residential use and amenity surrounding the plant, an Environmental Significance Overlay (ESO) in the local planning scheme was proposed by the plant operator on land surrounding the plant.  This would provide a buffer area around the plant and inform land owners of the factory’s operation and its potential to impact residential amenity.  It introduced controls in the buffer area by requiring planning permit applications for future development to discourage and control the establishment of inappropriate sensitive land uses in the buffer area that may be incompatible with the factory operations, and to require building construction design to minimise amenity impact.  The potential impact of the factory’s operations on residential amenity was required to be taken into account in assessing planning applications.

The proposed ESO was strongly contested by the local community.  There was a panel hearing at which expert evidence on odour and dust, involving consideration of wind and topographical impacts, was heard.  It involved some reconsideration of the boundaries and extent of the ESO.  The panel prepared a report and recommended that the ESO be approved.

Recently the Minister for Planning approved the ESO and it now forms part of the planning scheme.

This matter demonstrates a way in which existing or potential inherently incompatible uses can be managed by way of planning controls.  The aim is to avoid continuing disputes between the parties and for the uses to co-exist compatibly into the future.

Please contact us if you would like any further information on the implications of this case for your business.

Written by:

Amanda Johns | Partner | ajohns@tglaw.com.au | +61 3 9641 8760