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16 September 2019

‘Buffer generating’ uses – the need to have regard to them

Readers may recall a recent post regarding a long-established and entrenched industry on industrially zoned land in Traralgon, and the failure (in the eyes of an Independent Panel) of the Council to recognise and give due weight to this when planning for new high-density housing areas in proximate to it [refer to the post here].

In the post, it was suggested that, when doing a feasibility study on a site, it is always wise to have regard for the surrounding land uses and assess whether these may constrain the development potential of your land. 

In most cases, the need to protect existing ‘buffer generating’ uses is only broadly referenced in the planning scheme, which seeks to separate incompatible land uses and protect uses with ‘existing use rights’ (adopting principles of ‘agent of change’).   

However, sometimes, the need to protect existing uses is emphatically stated in the planning scheme through both the planning policy and the planning controls.

That was the case with a recent application to establish a ‘camping and caravan park’ in the Green Wedge Zone located within a flight path of Melbourne Airport. In addition to multiple layers of town planning policy and other legislation seeking to protect the ongoing interests of Melbourne Airport, the ‘Melbourne Airport Environs Overlay’ also affected the land.

The case required a balancing of sometimes competing planning policy objectives and an assessment of ‘net community benefit’. It also raised issues regarding the various community benefits of camping and caravan parks, and the current inability to limit the ‘tenure’ (the length of stay) at camping and caravan parks in Victoria, owing to the provisions of the Residential Tenancies Act.

The matter was considered by VCAT [refer here], which ultimately agreed that:

  • The protection of the ongoing interests, and operational characteristics, of Melbourne Airport is of National, State and metropolitan importance. 
  • Substantial community benefits flow from this, and the relevant legislation is unequivocal in its desire to minimise incompatible land uses to establish around the airport and to protect its safe and long-term operations (including its ‘curfew free’ status).
  • In light of this, and given the variables and uncertainty associated with matters such as the fact that aircraft noise affects people differently and the challenges in measuring and regulating this, precaution should be exercised when deciding whether a use likely to be impacted by aircraft noise can establish proximate to the airport.
  • It is likely that the noise events associated with the airport will have a detrimental impact on the enjoyment and experience of visitors /residents on the proposed facility. This is exacerbated by the challenges associated with applying appropriate levels of acoustic attenuation to the sorts of structures typically used at such facilities. 
  • The establishment of a camping and caravan park on the review site had the potential to lead to noise complaints which, separately or cumulatively, could adversely impact the optimum usage of Melbourne Airport and its curfew-free status. This would represent a substantial community disbenefit and is contrary to planning policy.

We will separately report on the challenges facing ‘camping and caravan parks’ in Victoria, including their use for permanent residency by the most vulnerable and disadvantaged in our communities. 

However, the above decision is again a timely reminder of the need to thoroughly research a site’s proximity to potentially incompatible land uses when undertaking due diligence. More often than not there will not be clear planning scheme ‘signposts’ warning you of the impending dangers!

Author: David Crowder, Director: Planning


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