A Queensland case study: TLPI

Waste Management Review investigates the impact on waste management developments in Ipswich when the Queensland Government planning minister exercised his powers.

Earlier this year in Queensland, the state government exercised its legislative powers to introduce requirements for new buffer zones to new or expanded facilities in the Swanbank and New Chum industrial  area.

A Temporary Legislative Planning Instrument (TLPI) was used to suspend part of their planning scheme and took effect for two years from 6 April 2018. The TLPI introduced a 750-metre buffer from existing, approved or planned residential areas for new and expanded waste facilities, including in landfill. Planning Minister Cameron Dick in April said the TLPI does not support new or expansions to existing compost manufacturing that is open to the air, anywhere in the Swanbank/New Chum industrial area.

According to a July 2017 document by the Department of Infrastructure, Local Government and Planning, Guidance for the Minister’s Guidelines and Rules: a TLPI expresses planning and development assessment policy to “protect part or all of a planning scheme area from adverse impacts in exceptional circumstances”. A local government may make or amend a TLPI if the local government and minister are satisfied it is urgently needed to protect all or part of the planning scheme from serious adverse cultural, economic, environmental or social conditions. It says the minister must also be satisfied that making or amending a TLPI would not adversely affect a state interest. TLPIs can suspend or affect the operation of another planning instrument or temporarily introduce a new one, but they can’t amend or repeal another planning instrument.

The Minister may also make a TLPI where state interests are affected.

Mr Dick said that during the two-year period, his department will work with council to assist them to progress any amendments to its planning scheme to address the “concerns of the community”.

The decision came in the wake of Queensland waste company Austin BMI’s new landfill proposal. The proposal, which was met with some community opposition, would see a former disused coal mine at New Chum converted into a new landfill and waste transfer station.

Another landfill expansion application case before the Planning and Environment Court, in publicly available court documents, states it should be refused.

“Approval of the development application would thwart the expressed planning intention that the land be rehabilitated so that, at some time in the future, the land can be used for purposes anticipated and promoted by the Ipswich Planning Scheme 2006 (Planning Scheme),” according to the document.

The corresponding particulars lists: the Ipswich Temporary Local Planning Instrument No. 1 of 2018 (Waste Activity Regulation) (TLPI): Swanbank / New Chum Waste Activity Code – Overall Outcome 3(2)(b)(v) and Specific Outcomes 4(4) and 4(5)(a).

On 29 May, Ipswich City Council introduced another TLPI it said would further regulate waste activities and protect major local events such as CMC Rocks and motorsports. Councillor David Morrison said in a March statement that it would take between one to two years to make a permanent amendment to the Ipswich planning scheme, therefore a second TLPI was a matter of urgency. The statement said that it would have a similar buffer area to the minister’s TLPI – 750 metres from residential zoned land and other sensitive areas such as RAAF Base Amberley and the Ipswich Major Events Precinct.

An Ipswich City Council spokesperson in June said council prepared the second TLPI and is awaiting ministerial approval.

“The second TLPI seeks to achieve a balanced outcome that fully considers community and environmental impacts whilst assessing waste industry needs and desires,” the spokesperson said.

P&E LAW

Lestar Manning, Director of P&E Law, says that the TLPI will be used in the Planning and Environmental Court to inform the landfill case before it.

“The court will look at it and look at an assessment criteria in it and give the weight that it thinks is appropriate to that assessment criteria in the TLPI as part of its decision making.”

Lestar says TLPIs are a good idea in theory, as they allow for public submission or comment to allow a better review of what’s being proposed, which in itself is a good planning outcome.

However, he concedes that it can delay existing development in the area for a period of time, but not necessarily stop it from occurring.

He adds that the use of a TLPI can can be perceived as a harsh by some.

“An applicant could feel that they have been hard done by in relation to this where they’ve actually applied under a particular planning scheme, their solicitors have filed an appeal against a council decision … and then have the rules change part way through.”

He says there is a whole raft of factors that can be considered over the two-year period of the TLPI, including long term land use and the future of the landfill industry in balancing the need for disposal, jobs created and proper setbacks from residential areas and appropriate access to transport.

Lestar says the TLPI can then be used to assess any future changes to local government planning schemes through public consultation.

In Queensland, proponents can lodge development applications with a material change of use, which can be required when there has been a material change in the intensity or scale of the use of the land.

Lestar stresses the importance of site operators doing their initial due diligence when applying for new sites.

“When you’re looking for land, you’re looking for where the planning schemes say these things ought to go,” Lestar says.

LEARNING FROM THE MINING INDUSTRY

At the same time, Lestar says the government could put in place instruments to protect these sites. To help safeguard the mining industry, State Planning Policy in Queensland incorporates what are known as key resource areas. It means that local governments are required to consider which state interests are relevant and how best to apply these interests when developing their local planning scheme.

“Quarries are established and typically have a locational aspect, which means you have to put a quarry where there’s rock that’s suitable for quarrying. State governments recognise that and the state government has identified areas known as key resource areas where quarrying activity is appropriate to occur,” Lestar says.

“The state has identified that for the long term benefit of the community we need to get material that is needed for the development of a community as a whole. The key resource area doesn’t just stop at the area of the quarry, it has an area of buffer identified around it, which is the sort of thing I think the waste industry could benefit from.”

Lestar notes that key resource areas have also identified haul routes.

“That means that when all the trucks are moving in and out of those areas, the people who buy in those areas know that it is a haul route,” he says.

“That sort of forward planning would give the waste industry more certainty. That bigger planning for whole of the community I think is better done at a higher level.”

Lestar says the SWRRIP in Victoria is a good concept of using state planning to forward plan for waste management sites.

Ultimately, he says it’s about looking at the bigger picture through clearer planning with mechanisms such as the TLPI.

“The Planning and Environmental Court was established as a court of community interest, you get comments from the public, people have a say.

“If the planning documents have clearly articulated where these facilities ought to be established, then even if members of the public say not in my backyard, then the council can rightly turn around and say: ‘You bought in an area where this was planned to go’.”   

An AORA spokesperson stated that the protection of buffer and separation distances by state and municipal planning authorities is of paramount importance to processors considering the location or upgrade of any organic recycling facility.

“Uncertainty over buffer protection is an impediment to investment and the capitalisation of increased capacity to process the ever growing streams of organics seeking diversion from landfill,” the spokesperson said.

Planning Minister Cameron Dick did not response to request for comment by deadline.