The Advisory Committee Final Report on Major Hazard Facilities (the Report) was publically released this week by the Victorian Government, after being submitted to and considered by the Planning Minister in July 2016. The Report recognises the hazards associated with Major Hazard Facilities (MHFs), and proposes using the Environmental Significance Overlay (ESO) and associated schedules to regulate development in two key areas (inner and outer) surrounding MHFs. This recommendation is significant for the MHFs as well as any landowners or developers near an MHF, and the Councils in which MHFs are located. The recommendations are aimed at creating more certainty and to avoid the delays and expense currently experienced when considering applications near MHFs in VCAT and Planning Panels.
The Report proposes that the land surrounding the existing 38 MHFs (currently registered under State legislation) are subject to ESOs, which will introduce new controls for permit applications for buildings and works associated with sensitive uses in surrounding areas, with Worksafe and the Environment Protection Authority (EPA) involved as referral authorities.
The Victorian Government is currently considering the Report and preparing a response. At this stage, it is unknown when this response will be released. If the recommendations are adopted, there will be significant work required to determine the areas over which ESOs should apply and consultation with operators of MHFs, property owners and others affected by the application of ESOs. The Advisory Committee recommends a Ministerial Direction and Planning Practice Note be developed to guide local policy and the application of the schedules to ESO.
Planning buffers and MHFs
The existing planning policy framework does not prevent or provide sufficient guidance in relation to residential and other sensitive land uses from encroaching on MHFs. Although the risk profile associated with MHFs is one of low probability, it is also one of potentially high consequence to human safety.
The Major Hazard Facilities Advisory Committee was appointed in October 2015 to provide advice on the way land use buffers around MHFs are determined and implemented, and on how to better manage interface areas between existing and new development and land used for MHFs.
Submissions to the Advisory Committee criticised existing policy measures related to residential and other sensitive-use encroachment on MHFs, on the basis that they are inadequate or inconsistently applied.
The Advisory Committee considered all existing 38 MHFs in Victoria and categorised them as high, medium or low priority for the development of ESOs. There are 15 high priority MHFs which should be considered first.
Planning for MHFs
The Report makes nine recommendations focusing on regulatory changes to manage development in areas surrounding MHFs.
WorkSafe Victoria’s existing guidance note Land use planning near a major hazard facility (2010) presents non-statutory advice on land use around MHFs. It identified two risk areas: the Inner Planning Advisory Area (where there is a small risk of fatality from potential foreseeable incidents), and the Outer Planning Advisory Area (where the consequence of a credible incident is not likely to cause fatality, but individuals may suffer adverse effects).
The Report recommends that WorkSafe Victoria’s Planning Advisory Area approach be implemented by planning schemes through the application of ESO and separate schedules for Inner and Outer Planning Advisory Areas.
The ESO would improve the response to managing development associated with sensitive uses. Permits would be required for building and works for particular sensitive uses (e.g. accommodation, child care, education, hospitals and the subdivision of land) in Planning Advisory Areas. WorkSafe would be the determining referral authority and the EPA as recommending referral authority for permit applications for development and subdivision within Inner Planning Advisory Areas, and Worksafe and the EPA would be the recommending referral authorities for permits required in Outer Planning Advisory Areas. This is a key change as there is currently a lack of formal opportunity for WorkSafe or the EPA to provide comment in the land use development process around MHFs.
Rather than setting blanket separation distances between MHFs and sensitive land uses, the Report recommends that external consultants conduct risk assessments to establish Inner and Outer Planning Advisory Areas specific to each MHF, with these risk assessments submitted to WorkSafe for review. The Report also identifies particular MHFs as priorities for the development and application of ESOs (included in Appendix H of the Report).
Guidelines in the form of a Ministerial Direction and a Planning Practice Note are proposed to guide development of local policy and the application of the schedules to ESO.
The Report recommends a change to State planning policy to recognise MHFs, noting that the planning policy does not need to favour one form of land use over another, however risks associated with MHFs should be recognised so that stakeholders in the planning process are involved early rather than being surprised later.
Protection of amenity
The Report makes four recommendations in relation to amenity impacts. These recommendations relate to amending Clause 52.10 (Uses with adverse amenity potential) of the Victoria Planning Provisions (VPP), as the Advisory Committee found that the form and operation of Clause 52.10 is the area which requires ‘most attention’, noting there has long been calls to review clause 52.10.
It was recommended that the Minister for Planning, in consultation with certain stakeholders, complete a comprehensive review of Clause 52.10. The aim being to clarify its application to risk (non-MHF), amenity and use (including diagrams to assist with interpretation and expand its use to include ‘reverse amenity situation’).
The Advisory Committee also recognised that in the future, a single joint guideline or particular provision could be developed to replace Clause 52.10 the EPA’s guideline on ‘Recommended separation distances for industrial and residual air emissions’ (EPA, 2013).
The Report proposes a further four recommendations focusing on regulatory changes to development and land use around pipelines, but these will require further work by a future committee.
The Report recommends that the Minister for Planning consult with the Minister for Energy regarding the formation of a Land Development Around Pipelines Working Group as an advisory committee under the Planning and Environment Act. This committee would advise on improving planning around pipelines. The Report recommends that the committee would nominate high pressure pipelines and consider recognising them in State Planning Policy Framework as being of State significance, and identifies issues and responses for the Land Development Around Pipelines Working Group to consider, including the development and application of ESOs to particular pipelines based on risk and land use area, and making Energy Safe Victoria a referral authority for planning applications for land affected by ESOs.
We will continue to follow and report on developments in the proposed changes to planning regimes around MHFs and pipelines in particular the Government response to the Report. The recent EPA Independent Inquiry report also raised issues associated with ‘reverse buffers’ which is also relevant to existing industrial uses, former landfills and significant infrastructure. This is an ongoing issue in our planning system that warrants greater attention because of the potential for land use conflicts.