Encroachment and the Extractive Industry – Proposed Buffer Area Overlay

Prepared by Dr Elizabeth Gibson, General Manager of the CMPA with input from Jack Kraan, Managing Director of Focus CDS Consultants.

The extractive industry has long had an issue with encroachment into buffers by incompatible uses such as residential development. As a result of lobbying the government on this issue the then Minister for Resources and Minister for Planning released a Joint Ministerial Statement in 2018 which proposed an applying the ‘agent of change’ principal to extractive industries. Below is an outline of the tool proposed together with a CMPA response to questions posed in the consultation.

Following feedback received from a range of stakeholders, the Department of Environment, Land, Water and Planning (DELWP) has developed a draft Buffer Area Overlay to strengthen planning tools to better manage land use and development in areas potentially affected by a range of health and safety impacts from industry and other uses.

DELWP invited CMPA to review the draft Buffer Area Overlay and provide feedback (2 February 2020). Also received by CMPA was supporting information about the draft overlay, how it might be applied as well as some key questions to guide feedback.

The draft overlay was flagged during recent public consultation on proposed updates to the Planning Policy Framework and Clause 53.10 Uses with adverse amenity potential under the Planning for amenity, health and safety buffers project. The proposed updates aim to strengthen policy for managing buffers, clarify how industries and other uses need to respond to the potential for off-site impacts and include up-to-date standards and guidelines.

The Buffer Area Overlay (BAO) is being developed for use in some cases where there is potential for off-site impacts on safety or human health from industry, warehouse or other uses. The BAO will contain a schedule that can be used to ensure that new use and development within buffer areas is compatible with potential off-site impacts.

The overlay:

• Addresses encroachment of incompatible uses
• Can be tailored to protect different industrial or other uses through schedules
• Requires and evidence base
• Can only be used if the required criteria are met

Steps to apply the proposed BAO

Before using the BAO, the following steps would need to be followed to ensure appropriate use and application of the tool.

1.Criteria for use:

Compliance – The use must be compliant with relevant regulations and standards, such as those of EPA, WorkSafe and other regulatory authorities.
Adverse off-site impacts – The use must have potential off-site impacts on safety or human health.
Incompatible use and development – The current zoning must have the potential to provide for incompatible use and development to occur (either with or without a permit) within the identified buffer.

2.Information required: When considering the application of the proposed CAO, the following information would be required to demonstrate the need for the overlay and justify the application of planning requirements:

• A statement of risk for the buffer area that identifies the potential off-site human and health or safety impacts of the industry or other use.
• The spatial extent of relevant off-site impacts on human health or safety, such as blast, hazardours air pollutants, noise or odour (reflecting current or approved operations), i.e. the buffer area.
• Objectives to be achieved for the buffer area.
• How proposed land uses need to be managed or prohibited (if necessary).
• How proposed building and works need to be managed or prohibited (if necessary).
• How proposed subdivision needs to be managed or prohibited (if necessary).
• What information will need to be provided with permit applications, i.e. application requirements.
• Whether the views of any agencies are required to inform decision making.

A proponent would need to seek the advice of relevant expert agencies, such as EPA, on the above information. It will be important for councils, industry operators and regulatory agencies to work together to develop and endorse the evidence base supporting application of the overlay.

Preparing the overlay schedule: The information required (outlined in the above section) would be needed to prepare a schedule to the proposed BAO.

3.Requirements for use and development identified by relevant expert agencies should be built into the schedule to the overlay where possible, rather than left for referral on a case by case basis. For example, rather than referring applications for land use proposals that will always be opposed by referral authorities, these land uses should be prohibited through the schedule to the overlay.

Responding to change over time

The nature of industrial activities may change over time due to modified operations, improvements in technology and changing practices. Industries with off-site potential impacts may also close or relocate. BAOs would need to be reviewed regularly to ensure they reflect the risk profiles of the land uses they are applied to.

Review of the BAOs coud involve changes to mapping, ordinance or both. This could form part of regular planning scheme reviews conducted by councils. The BAO should be implemented to reflect the potential off-site impacts of current industry operations. Later proposals to expand industry operations will often need to respond to Clause 53.10 Victorian Planning Provisions.

Existing approach to managing buffers

In Victoria’s planning schemes the Environmental Significance Overlay (ESO) is sometimes used to identify buffers and control development. For example, the ESO has been used to identify and protect waste water treatment plants, horticultural uses, extractive industries and radio transmission facilities. The proposed BAO is to be a replacement control for the ESO and will identify and control land within buffers.

The table below gives CMPA’s response to questions posed by DELWP.

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