Insights / January 4th, 2018

The EPA’s position on land use interface

The EPA has released a position statement to provide guidance on how the three principles for managing noise and air emissions (control at the source, separation of the source and the receiver and control at the receiver) are to be considered in State Planning Policy amendments, DPA amendments, development applications and major developments or projects. The focus of the position statement is on the location of land for future development and ensuring that the interface is incorporated into planning strategy.

The position statement sets out how planning policy makers and planning authorities should consider the interface between land uses to comply with the requirements under the Environment Protection Act 1993 (EP Act), Environment Protection (Air Quality) Policy 2016 (Air Quality Policy), Environment Protection (Noise) Policy 2007 (Noise Policy), and Local Nuisance and Litter Control Act 2016 for the following interfaces between land uses:

  1. Interface with Industry - Referrals under schedule 21 and 22 of the Development Regulations and consideration of the EPA’s evaluation distances for effective air quality and noise management guideline.
  2. Interface with primary production - The EPA’s evaluation distances for effective air quality and noise management guideline.
  3. Interface with Mixed use zones - Ministers Specification SA 78B (internal), World Health organisation’s guidelines for community noise (external), reducing noise and air impacts from road, rail and mixed land uses guideline and guidelines for the assessment of noise from rail infrastructure.
  4. Interface with Airports - AS2021-2015 and the Australian noise exposure forecast.

Of particular relevance to developers is the EPA’s position that a proposed development should not create an interface that would have an adverse air quality or noise impact on sensitive land uses, with consideration given to cumulative impacts and background levels of air pollutants in the local area and the existing noise environment. Amongst other things, the EPA suggests that this could be achieved by:

  • demonstrating that the proposed development would be able to achieve the relevant separation distance specified in the EPA’s evaluation distances for effective air quality and noise management guidelines;
  • demonstrating that odour criteria and ground level concentrations of pollutants identified in the Air Quality Policy would be met; and
  • providing an acoustic report demonstrating that the requirements of the Noise Policy, the general environmental duty under the EP Act, and relevant Australian Standards and World Health Organisation guidelines relating to community noise can be met.

The position statement is notably silent on who bears the burden of demonstrating compliance with these matters. It is presumed that this will fall to the developer.

While Development Plans already deal with interface issues, you can expect that planning authorities will require a greater degree of consideration of these matters when assessing development applications as a result of the position statement. This is particularly so where developments propose a change in use of land to a more sensitive use because cumulative impacts of air and noise emissions need to be addressed. Clear parameters around when acoustic reports or air sampling testing is required will be crucial to avoid the default position of planning authorities requiring both as a matter of course.

While the position statement is not binding and cannot be used to broaden the EPA’s powers under the EP Act or its role as a referral agency under planning legislation, it is likely that the statement will influence how planning policy makers and planning authorities approach interface issues, including in circumstances where the EPA otherwise lacks the ability to be directly consulted. It is also likely that some elements of the position statement will be picked up in either the Planning and Design Code or Practice Guidelines under the Planning, Development and Infrastructure Act.

If you would like any further information about the position statement please contact one of our team.