Department of Environment, Land, Water and Planning
8 Nicholson Street
East Melbourne Victoria 3002
Via email firstname.lastname@example.org
Re: Proposed Buffer Area Overlay
Thank you for the opportunity to respond to the proposed Buffer Area Overlay (BAO) as part of the review into planning for amenity, health and safety buffers. VicWater is the peak body of the Victorian water industry with its membership comprising Victoria’s 19 statutory water corporations. They are responsible for the provision of urban water and wastewater services, rural water supply including irrigation and related drainage services.
VicWater has been very active on the topic of protecting buffers around critical utility infrastructure for many years, and has actively supported this DELWP policy review since commencement. VicWater strongly supports the intent of the proposed buffer overlay and strongly supports the creation of new tools to manage buffers.
Nevertheless, there are significant concerns regarding the practical application of the tools as drafted. These are detailed below, followed by recommendations for strengthening the proposed BAO.
The process to develop the draft BAO originated from recommendations of the Major Hazard Facility Advisory Committee and of the Independent Inquiry into the EPA. The recommendations from the Independent Inquiry, in particular, are unequivocal: to “(d)evelop, as a priority, strengthened land use planning mechanisms that establish and maintain buffers to separate conflicting land uses, avoid encroachment problems, help manage health, safety and amenity impacts, …” (Recommendation 10.3). This recommendation was borne out of the acknowledgment of the inquiry “that, as land use pressures increase, appropriate buffers are created and maintained around waste facilities, landfills and other scheduled premises” (p. xii). Since the purpose of the BAO and guidance is to fulfil the government’s policy objectives arising from these recommendations, the draft instrument must be evaluated according to this standard.
VicWater has made a strong case for the public benefit of protecting critical utility infrastructure from encroachment. It is our understanding that DELWP has acknowledged this case and intends for the draft BAO to deliver this outcome. However, the instrument and guidance as drafted does not clearly reflect this shared understanding. It is not clear if, or how, the proposed BAO will apply to amenity issues affecting critical utility infrastructure. The shared intent must be made clearer in the guidance material or decision-makers may find it difficult to achieve the intended outcome.
VicWater recommends the overarching policy objective be clearly articulated in the ‘purpose’ statement:
The purpose of the BAO is to establish and maintain buffers to separate conflicting land uses, avoid encroachment problems by transparently and visibly identifying areas where there is potential for off-site impacts on safety, or human health, or significant amenity from critical infrastructure, industry, warehouse or other uses. The BAO also ensures that use and development within buffer areas is compatible with potential off-site impacts.
Additional text, consistent with the above must also be included in the purpose statement within the BAO schedule. In particular ‘significant amenity’ and ‘critical infrastructure’ must be identified to promote the intended and shared policy objectives.
Notwithstanding the greater clarity that will be achieved by adopting the purpose statement above, there remains a need for clearer guidance in relation to how the BAO will apply to amenity issues.
VicWater acknowledges DELWP’s intent to limit the application of the BAO to “significant” amenity impacts, to prevent reverse amenity situations arising at, for example, critical utility infrastructure, whilst not restricting the highest and best use of land. It is arguable that the core function of the guidance is to assist decision-making on this matter.
With this is mind, the guidance must articulate a clearer distinction between “lower level” and “significant” amenity impacts. The red line graphic, at the bottom of page 3, and the green box text recommending consideration of “frequency” and “duration” of amenity impacts are not fit for purpose. For example, contrary to DELWP’s stated intent that the BAO would apply to wastewater treatment plants, according the graphics and test as drafted, any amenity impact is likely to be intermittent, occur infrequently and not be noxious. This would weigh against using the BAO under the draft guidance.
The role for the EPA to advise on interpretation does not justify lesser clarity in the underlying policy instruments. Indeed, the lack of clarity in planning instruments leading to misalignments between planners and environmental regulators, creating confusion and limited effect, was a finding of the Inquiry. Timelines of decision-making by EPA and regulatory efficiency will be enhanced by clearer BAO guidance on the matter of defining “significant amenity impacts”. Rather than grant broader powers to EPA to interpret the BAO, the instruments must clearly articulate how they are to be applied.
VicWater recommends the BAO guidance include clear definitions of “human health”, “safety” and “significant amenity” with examples to provide clarity about the circumstances in which the BAO should apply. Examples should also be provided to emphasise the policy intent to include “reverse amenity” protection, particularly for public good infrastructure (as recommended by the Major Hazard Facilities Advisory Committee).
VicWater welcomes its further involvement in this review. Please contact James Cleaver (James.Cleaver@vicwater.org.au) should you have any questions, or if you would like to discuss any of the issues we have raised in greater detail.
Chief Executive Officer