Australia: Air, Noise and Hazardous Materials Draft SPP: What Does it Mean for Developers?

Planning and Development
Last Updated: 11 June 2010

By Gemma Ayriss, Solicitor

The draft State Planning Policy (SPP): Air, Noise and Hazardous Materials was released in late 2009, and forms part of a suite of State planning instruments released by the Department of Environment and Resource Management (DERM). Public consultation on the draft SPP has now finished, and the draft SPP is progressing towards formal adoption. The question is, what does the new policy mean for developers?

Urban expansion creates tension between encroaching sensitive uses (such as residential development) and established industry. The intentionof the draft SPP is to manage the planning and development of sensitive and industrial uses to protect environmental values, human safety and the viability and growth of existing industry.

The draft SPP aims to achieve this through two mechanisms:

  • Providing direction to local governments in preparing local planning instruments to ensure those instruments appropriately plan and, where necessary, separate land zoned for industrial uses from land zoned for sensitive uses; and
  • Providing development assessment criteria for new or expanding sensitive uses that encroach on existing zones for industrial uses or identified "management areas".

The draft SPP applies to all local government areas in Queensland, when making or amending a local planning instrument. The idea is that the requirements of the draft SPP will be incorporated into new planning schemes, which will appropriately assess and plan for any potential impacts of hazardous materials, industrial air and noise emissions on human health and wellbeing.

There are two ways the draft SPP can be incorporated into the planning scheme. The DERM's preferred approach is that, through the planning process, local governments will consider local environmental conditions, the future land use of an area, impacts of industrial emissions, and air quality or noise modeling studies, and this will inform appropriate separation distances between land zoned for industrial uses, and land zoned for sensitive uses.

The second approach is through the adoption of default separation distances for low, medium, high and noxious and hazardous industry, contained in the draft SPP. Each level of industry (that is low, medium, high, noxious and hazardous) is defined in the Queensland Planning Provisions, which are the State Government's standard planning scheme provisions to be used by local government when developing local planning instruments. The draft SPP provides useful examples of each level of industry within Schedule 4.

The draft SPP states the following:

  • Industrial zones for low impact industry are appropriately located 250 metres from the nearest zone for a sensitive use.
  • Industrial zones for medium impact industry are appropriately located 500 metres from the nearest zone for a sensitive use.
  • Industrial zones for high impact industry are appropriately located 1,000 metres from the nearest zone for a sensitive use.
  • Industrial zones for noxious and hazardous impact industry are appropriately located 1,500 metres from the nearest zone for a sensitive use.

Given budgeting and time constraints, it is likely that a large number of local governments will simply rely on the default separation distances rather than undertake a full, site specific review. Separation distances are, by their nature, a blunt instrument and do not encourage performance based planning as intended by the Sustainable Planning Act 2009.

Until local planning schemes reflect the draft SPP, it provides development assessment criteria by way of codes for the Integrated Development Assessment System provided under the Sustainable Planning Act. Applications received, but not decided, before the draft SPP takes effect are not subject to the codes, and will be decided as if the codes had not been enacted.

Once in force, the codes will apply when assessing development applications for sensitive uses (defined in Schedule 1 of the draft SPP to include, for instance, dwelling houses, child care centres, hospitals, educational facilities and retirement facilities) for:

  • reconfiguring a lot (more than six lots); or
  • material change of use (more than four dwellings)

in circumstances where the development proposed is adjacent to (that is, within 250m of) an existing industry zone in the planning scheme, or within a mapped management area listed in Schedule 2 of the draft SPP. A separate code applies to applications for a material change of use for intensive animal industries proposed within five kilometres of land zoned primarily for a sensitive use.

Broadly, the code requirements are restrictive in terms of the location of new sensitive uses in the vicinity of existing industry zones or proposed management areas. For instance, the development assessment code for reconfiguring a lot includes as a performance criteria (without any corresponding acceptable solution) that lots for sensitive uses are not to be developed unless an overriding need can be demonstrated, and any air and noise emissions or impacts from hazardous materials can be mitigated to protect human health and wellbeing and human safety.

The codes, although generally quite restrictive, are not particularly detailed, and it might be expected that more sophisticated local governments should develop more comprehensive provisions. However, there will also be a temptation for time and budget-poor local governments to apply the default separation distances contained in the draft SPP to development assessment, even though this is not the intention of the draft SPP. There is also the potential for the codes to effectively be used in reverse, when considering the expansion of an existing industrial uses, though again, this was not the intention.

Finally, the draft SPP contains requirements for dealing with "transitioning land" in new or amended local planning instruments. "Transitioning" or "transitional" land means land that was previously zoned or allocated for one use (for example, industrial development) under a local planning instrument, but is no longer intended for that purpose under a new local planning instrument. Where the local government seeks to transition land from an industry zone to a sensitive use zone (for example, a residential zone) or vice versa, the draft SPP requires that an overlay or local plan is used to:

  • identify all industrial land uses that may impact on land for sensitive uses, or existing sensitive uses that may impacted on by industrial uses; and
  • provide a clear framework for addressing the impacts (air, noise and hazardous materials) of industrial uses to minimise adverse impacts from air and noise emissions, and impacts from hazardous materials on communities, based on considerations set out in the draft SPP.

There has been a slow but steady increase in the DERM's involvement in the development process. The issues covered by this SPP are what may be termed traditional "planning" considerations involving amenity and land use, rather than environmental and natural resources concerns. As it stands, the draft SPP seems to encourage a blunt, broad brush approach to complex, site specific planning issues.

Once enacted, the draft SPP will be a statutory instrument with the force of law. In accordance with the planning hierarchy established by the Sustainable Planning Act, it will prevail over local planning instruments, including planning schemes, in the case of any inconsistency. DERM is currently reviewing the 62 submissions made about the draft SPP, and this process will hopefully refine the operation and effect of the draft SPP. If adopted, the draft policy is expected to take effect by the end of 2010.

For more information on the draft SPP, please contact HopgoodGanim's Planning and Development team.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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