Back in November last year, Burra Foods initiated a major clean-up at houses close to the factory after dried milk powder was accidently released. Residents say there’s nothing about the buffer that makes such an incident less likely.
IF YOU expected the Korumburra residents affected by the buffer zone around the Burra Foods milk factory to go away quietly after it was adopted by council last month, you’d better think again.
The group has opened a new front in their opposition to the planning scheme amendment by commissioning a legal opinion and putting it to the Minister for Planning Richard Wynne.
According to a spokesperson for the group, they want the Minister to either reject the proposed amendment out of hand, or at the very least, order Planning Panels Victoria to conduct a new investigation.
The legal opinion, authored by Michael Norbury of Norbury Lawyers, an accomplished commercial lawyer, notes that Environmental Significance Overlay (ESO) introduced under Amendment C99 places new planning restrictions on surrounding residents adding “an extra burden at their to undertake home development and renovation”.
But he said the ESO contains “a fundamental irregularity at law so that it should not be approved by you (Minister Wynne) in its present form.
“The stated purpose (of the buffer) is to control amenity around the factory by introducing a buffer zone. However, the factory is already controlled with an EPA buffer zone. The amendment as approved will be to control a new buffer zone but because of the existing buffer zone, will have no application in effect. It will place a new burden on surrounding land owners but with no legal prospect of controlling emissions as they are prohibited by the EPA licence conditions,” Mr Norbury claims.
He said that an existing EPA Permit prohibited the escape of dust, noise and odours and was therefore in conflict with one that sought to deal with the fallout from such events.
“In its recommendations, the panel recommended that the EPA should enforce the conditions of its permit and that should be the end of the matter.”
He said it wasn’t the function of planning laws to shift a burden for non-compliance from the emitter to the surrounding landowners.
And instead of being an “environmental control”, because this was already covered by the EPA licence, it was an improper application of planning scheme provisions and should be rejected.
The council, he said, argued in favour of the ESO so as “to inform people looking to move to the area” of the shortcomings of living near the factory but he said this was not a legitimate ground for a planning scheme control which added an onerous and costly burden on affected landowners.
Mr Norbury said the conflicting laws would cause confusion where there was no need for any.
He said planning permit applications that will arise from the proposed ESO will say on the matter of amenity that the EPA licence controls emissions as amenity issues and therefore do not need any special conditions of permit relating to those issues but that this clear direction could be confused by the ESO and be left up to interpretation.
He recommends in his letter to the Minister that the amendment not be approved, or alternatively, advise of the time period for approval so that challenge to VCAT could be mounted.