DECEMBER 2001

This NEWSLETTER has been prepared by a number of individuals within our firm. If any of our clients would like further information about any matter raised in this NEWSLETTER, we can quickly direct their call to the appropriate person.

Over recent years, Kellehers Australia has seen an increase in planning and environmental issues arising from E-Industry, ie environmentally friendly industries. While such issues may provide society at large with major environmental gains, they can create local downsides that should not be ignored. Our Christmas Newsletter looks at this, along with an update on title boundaries and fences. Waste Management

Waste Management is a major evolving new industry. With strong Government support through major budgetary allocations to State Government organisations such as EcoRecycle and Regional Waste Management Councils environmental dreams are becoming a reality.

However, many Councils, keen to be on the waste management bandwagon, are quite unsophisticated in their understanding of how to optimise municipal benefits through upgraded/ modernised recycling initiatives. While the old fashioned rubbish tip is fast becoming outdated, new rubbish systems are not yet in place.

Councils need to determine whether waste will be co-mingled or separated at source. If segregated, what will go where. Different waste types have different industry and land use streams. Councils must deal with private enterprise in terms of these outputs as industry has operational requirements that must be fulfilled to secure a market. It is essential that before Council begins any new venture, it is quite clear as to what it is collecting and how it intends to deal with it.

Paper generally needs to be taken to a crushing/ bailing station and processed and compacted for retransportation. Glass is smashed at a central location and loaded for transportation away. Plastics are compacted. Bottle tops also have their own stream. Regional locations of particular recycling industries exist eg energy production from normally putrescible waste.

The location of each of these activities poses different planning issues and environmental standards eg % to recycle, % to landfill. Standards are complicated by environmental credits.

Major regional waste centres require careful planning and should be located within a dangerous or heavy industries zoning. Waste depots undertaking crushing and glass smashing obviously need to be located within an appropriate industrial zone. While undertaken as a municipal service, waste management is very much a Council entrepreneurial industrial activity. It is highly likely that a public purpose - local government zoning may be quite an inappropriate location for such activities. Locations are likely to be found on a regional basis with both facilities and financial returns shared between groups of municipalities. Conversion of the old hopper station to a waste management station may be entirely inappropriate without careful business and land use planning.

Environmental Significance: Windfarms -v- Views

In terms of environmental benefits, windfarms provide a zero-emission electricity source which has the potential to reduce Victoria's greenhouse gas emissions by replacing electricity generated by fossil fuel with clean wind energy.

Kellehers Australia has been involved with windfarm applications in two separate Victorian locations.

Windfarms are a safe, reliable and low maintenance energy source and can be located on land which has already been cleared for grazing, allowing some revegetation around the wind generation towers.

But do the environmental benefits of windfarms outweigh the detriment to environmental aesthetics?

Windfarms are generally located along coastlines because the energy generated by windfarms is proportional to wind speed, which is fastest coming off the coast. Wind generation towers are in the order of 70 metres high, with blades of 35 metres length. Clearly these towers do not blend in with the natural environment. In effect, windfarms are power plants. They generate problems associated with noise, surface and ground water, traffic and transport and impact upon birdlife.

Despite their industrial appearance, we have become accustomed to high voltage overhead power lines littering the country. And nowadays, windfarm applicants propose to sacrifice energy generation to place towers away from visually sensitive sites. Is this enough?

Several cases relating to this issue have been heard at VCAT. In 1998, VCAT upheld a Council's decision to reject an application for a windfarm in Cape Bridgewater on the basis that the landscape was significant. The proposal for 33 towers, each the height of a 23 storey building, was considered to be too cluttered and detrimental.

Conversely, in April 2001, VCAT upheld a Council's decisions to grant a permit for a windfarm consisting of 12 turbines at 105 metres high in Toora, finding that the landscape was not of outstanding natural beauty so did not warrant protection.

So the question is, how beautiful does a coastline have to be before it is more important than a windfarm? - -

Where are your boundaries?

Are your boundary fences incorrectly located? You may be the beneficiary of extra land enclosed within your block, or benefactor to your neighbours.

If your boundary has been incorrectly located for 15 years, its location may be formalised by the Land Titles Office via a boundary realignment (for strips and slivers) or an adverse possession application.

For such an application, it must be proved that the applicant has been in exclusive continuous possession of the claimed land for 15 years and that the registered proprietor has made no attempt to reclaim it.

The Land Titles Office requires certain proofs to process these applications, including:

Statutory declarations by the applicant and by each prior owner for a period of 15 years confirming that the land in question has been continuously enclosed as part of their property. A statutory declaration by the applicant's solicitor stating that they have no reason to believe the application should not be granted. Survey plan, field notes and surveyors report. Where these are more than two years old, the surveyor may be required to update and re-certify the survey.

In adverse possession applications, the Titles Office will usually require a contribution to their consolidated fund to offset any risk they may incur by granting the application. This fee is usually in the order of 1% of the value of the claimed land.

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