Managing land use conflicts- application of State Planning PoliciesGood Quality Agricultural Land
Background
This Office recently investigated a complaint involving a potential conflict in land uses between
residential development and Good Quality Agricultural Land (GOAL). The responsible Council had
approved the development of two stages of a (five stage) residential estate without setting any
conditions requiring a buffer zone between the development and the complainant's GQAL on
which he cultivated a dangerous plant used in the manufacture of pharmaceutical products. Issues
raised by the proximity of the estate to the cropped area included safety, noise, odour and general
amenity. The complainant indicated to this Office that, without a buffer zone, he may be made
liable for the impact his farming practices might have on future residents of the estate.
Investigation
The Council's obligations
The investigation found that the Council had a statutory duty under the Integrated Planning Act
1997 (and currently under the Sustainable Planning Act 2009) to assess the application for the
development adjoining GQAL against relevant codes, the Planning Scheme, the State
Government's State Planning Policy (SPP 1/92) and the associated Planning Guidelines Separation Agricultural and Residential Land Uses (August 1997) (Planning Guidelines) which
outline buffer zone requirements between residential properties and GOAL.
Documents obtained during the investigation indicated that the Council's Chief Executive Officer
(CEO) was aware that 'no assessment [of the separation distances under the SPP 1/92 and Planning
Guidelines] was undertaken in the approval of [the development]'. Council was also aware that it
may therefore be made liable, or partly liable to other parties, in the event of dispute between
adjoining landholders.
The investigation found that the Council failed to discharge its statutory duty to consider SPP 1/92
and the associated Planning Guidelines in approving two stages of the estate.
I considered that, in light of that finding, there was a need for the Council to consider options to
resolve the likely conflict in land use, including the option to establish a buffer and the
complainant's offer to sell all or part of his land to the Council for that purpose, or other options as
may be appropriate.
Establishing a buffer
At the commencement of the investigation, the Council advised that it had, after it approved the
development, attempted to negotiate a buffer with the developer of the estate, but that
negotiations had failed. The Council had also rejected the complainant's offer to sell all or part of
his land to the Council to establish a buffer, and decided to take no further action.
Level 17, 53 Albert Street Brisbane 4001 I GPO Box 3314 Brisbane QLD 4001
Tel: 07 3005 7000 I Free call 1800 068 908 I Email: [email protected]
Web: www.ombudsman.qld.gov.au
Following tu rther negotiation, the Council advised that the developer of the estate wou Id place a
five metre wide by one metre high "mounded vegetated buffer" on the boundary between the
two properties, which the Council's officers accepted. Based on the Planning Guidelines, it was my
view that the buffer was unlikely to be sufficient to mitigate the possible impacts.
However, I considered that the Council shou Id satisfy itself that the buffer was of adequate size
and type to meet the principles of SPP 1/92. I considered whether this could be undertaken
through application of the Planning Guidelines.
The Planning Guidelines, which support SPP 1/92, state that the buffer zone dimensions and type
as set out in the guidelines do not necessarily have to be applied by local governments to give
effect to SPP 1/92. However, if a local government chooses not to apply these guidelines it must
consider other measures which meet the performance criteria outlined in the Planning Guidelines
and ensure that these measures are acceptable to the Council. The Planning Guidelines in part 2.26
also advises that planning schemes should:
... contain development assessment provisions to support the land use strategy and policies to
reduce the potential for conflict between agricultural and residential land use ...
I noted that there were no such provisions in the Council's planning scheme, nor policy, guidelines
or internal documents, to provide guidance on the factors that should be considered by the
Council or its delegates in relation to establishing proper buffer zones.
In the absence of any other instrument setting out such provisions I considered that the Council
should apply the Planning Guidelines to future development proposals bordering on GQAL. I
further recommended that the Council develop procedures for ensuring that the Planning
Guidelines are applied in appropriate circumstances.
Outcome
During the course of the investigation, and in consultation with this Office, the Council engaged
an agronomist to prepare a report and make recommendations to the Council regarding what
constituted an appropriate buffer in the circumstances presented by the cultivation of the
particular dangerous plant crop involved.
The agronomist dealt directly with the complainant to understand the farming practices for the
plant cultivated, chemical products used, safety issues, and other relevant information required to
complete the report. A draft report was provided to the complainant for his comments, and these
comments were considered and incorporated into the agronomist's final report. The agronomist
made several recommendations about establishing a buffer between the properties. Because of
the type of plant cultivated and the farming practices, the recommendations addressed issues
other than just establishing a buffer. In his report, the agronomist indicated that he had applied
the Planning Guidelines. The Council accepted the report's recommendations.
Level 17, 53 Albert Street Brisbane 4001 I GPO Box 3314 Brisbane QLD 4001
Tel: 07 3005 7000 I Free call 1800 068 908 I Email: [email protected]
Web: www.ombudsman.qld.gov.au
Making a difference
This case is provided to assist Councils tasked with considering applications for residential
development bordering GQAL to ensure they are aware of all relevant State Government
requirements. particularly those outlined in statutory instruments such as SPP 1/92 and the
Planning Guidelines.
In respect of any relevant development applications, Councils need to be generally aware of the
types of agricultural pursuits on neighbouring GQAL, the farming practices employed and to
consider the impacts of those pursuits on any proposed residential land uses. If the conflict in land
uses can be managed, Councils should determine whether a buffer is required and, if so, identify
the appropriate type and dimensions. To fail to do so opens Councils to risks of complaints, court
action and costly rectification.
Level 17, 53 Albert Street Brisbane 4001 I GPO Box 3314 Brisbane QLD 4001
Tel: 07 3005 7000 I Free call 1800 068 908 I Email: [email protected]
Web: www.ombudsman.qld.gov.au