December 10, 2012
Section 32 Red Tape Review
Policy and Legislation Branch
Consumer Affairs Victoria
GPO Box 123
Melbourne VIC 3001
Cav.consultation@justice.vic.gov.au
The Victorian Farmers Federation
The Victorian Farmers Federation (VFF), Australia’s largest state farmer organisation and only
recognised consistent voice on issues affecting rural Victoria, welcomes the opportunity to comment
on the National Penalties Framework.
Victoria is home to 25 per cent of the nation’s farms. They attract neither government export
subsidies nor tariff support. Despite farming on only three percent of Australia’s available agricultural
land, Victorians produce 30 per cent of the nation’s agricultural product. The VFF represents the
interests of our State’s dairy, livestock, grains, horticulture, flowers, chicken meat, pigs and egg
producers.
Introduction
Thank you for the opportunity to comment on section 32 of the Sale of Land Act 196. There are two
areas that the VFF are particularly interested with regard to section 32s. The first being the
requirement for warning to prospective purchasers with regard to commercial farming practises.
The VFF sees the use of an effective warning for farm practises is one of the approaches that can be
taken to assure the ‘right to farm’ in farming areas.
Maintaining and enhancing legitimate farming practices is an important part of supporting
agricultural industries. As urban areas expand into farming areas, increasing numbers of farmers
face complaints from non-farming neighbours. These complaints often relate to day-to-day
agricultural or horticultural practices that are a part of normal farming activity.
New residents to country areas often have an idealised view of farming. While they appreciate the
attractive landscape, they do not understand that plants and animals produce odours, that dust and
noise are a part of normal farming practices, and that farms are often required to work around the
clock.
Where agriculture is the primary land use farmers must be allowed to farm without onerous and
unreasonable imposition if they are to remain viable. In areas where past planning decisions and/or
population changes remove the ability for farms to remain viable, support must be provided. Failure
to take these steps will result in a loss of viable agriculture and a reduction in the amenity valued by
the community.
The second issue is ensuring there is an appropriate level of disclosure provided by sellers as to the
prior use of the land that may affect the future use of that land and planning overlays.
For example there may have been activities conducted on that land, which may or may not be
agriculture related that will affect the future uses. The unintentional contamination of land can have
serious implications on future use of land and there needs to be processes in the system that protect
prospective buyers from the purchase of contaminated land. It is important that not only the
provisions under the Agriculture and Veterinary Chemical (Control of Use) Act provisions continue to
warn against the contamination of land but also there be a requirement to disclose any other
sources of contamination to the land.
Commercial agricultural production activities warning
Recommendation One: The Commercial agricultural activity warning continue and be strengthened
to list possible specific prominent noises, smells and agricultural activities.
The discussion paper notes:
Under section 32(2)(cb) of the Sale of Land Act the following warning must be included in all vendor
statements:
‘Important notice to purchasers:
The property may be located in an area where commercial agricultural production activity
may affect your enjoyment of the property. It is therefore in your interest to undertake an
investigation of the possible amenity and other impacts from nearby properties and the
agricultural practices and processes conducted there.’
However, the warning is generic and does not provide any specific information for a particular
property about nearby agricultural practices. In addition, there is no requirement placed on
potential purchasers to acknowledge that they are moving into an area with agricultural land uses.
The VFF agrees with the assessment that the statement is generic and does not really assist in
providing a clear understanding of the activities that may occur in the area. Unfortunately, when
there are land use conflicts or concerns raised to local council often the section 32 is not referred to
and there is also an obligation placed on councils to investigate complaints whether or not the
complaints are justified.
Questions for consultation:
1. Is this warning effective?
No, the warning is not effective. Often it is glanced over and not taken into account in the
purchasing decision or during the decision to follow up a vexatious complaint.
2. Do potential purchasers of agricultural land commonly undertake investigations of the
nearby agricultural practices and processes when deciding whether to buy a particular
property?
I do not believe so. Often the reason for a move to ‘tree change’ areas is for the view, the
feeling of ‘own space’ and often based on an idealistic view of country life.
3. Are there alternative options for increasing awareness in potential purchasers of
agricultural land of the amenity and other impacts from commercial agriculture?
The VFF that there are a raft of policy options that could be adopted to strengthen farmers
‘right to farm’ and prevent needless and vexatious complaint against farmers.
The VFF believes the first step towards improving the understanding of new purchasers to
land in agricultural zones comes with an improved warning under the Section 32. In our
recent submission to the State government on Planning reforms, the VFF recommended
“Require Section 32 statements to detail prominent noises and smells to ensure these are
acknowledged prior to land being purchased.“1
This recommendation was consistent with the Coalition policy to:
Require section 32 statements to detail prominent noises and smells to ensure
potential owners or rural property acknowledge and accept they exist prior to
purchasing.
While this in itself will not fix the problem it will provide more detailed information to
prospective purchasers and also provide proof, should there be noise or odour complaints
that the purchaser of the land acknowledged those would occur.
However the warning should not stop there. There are a number of specific warning not
covered by ‘noises and smells’ that should be included.
For example, there should be the acknowledgement that visual amenity can change
throughout the year. During silage production large piles of silage can be left in paddocks
covered by plastic tarps using tires to hold the tarp down. As this is a normal practice for the
dairy industry it should not be subject to vexatious complaints.
Also, the act of stock crossing access roads should have a mention in the agricultural activity
warning. Stock movements across roads are very common, particularly in the dairy
production areas. New owners of land adjoining roads that are used for stock crossing
should acknowledge and accept this activity.
In conjunction with this, the local government also needs to take this into account when
dealing with complaints being place on farmers.
It does need to be pointed out, that a more details account of potential noises or odours
should not create the assumption that no other types of noises or odours may occur. There
would still require a general warning to the nature of farming areas.
The VFF would also suggest an option to consider to reduce right to farm conflicts is the
British Columbia (Canada) model where there is an independent panel that deals with all
‘right to farm’ issues and if the complaint if found to be unreasonable, or the activity in
question is a part of normal farming practises then the complaint is rejected.
1
Further details on VFF recommendations to strength the right to farm with regard to Statutory planning can be found in
the VFF submission to planning reforms available on the VFF website.
Agricultural and veterinary chemicals contamination
Recommendation Two: Disclosure of land use restrictions subject to the Agricultural and Chemicals
(Control of use) Act should be required.
From the discussion paper:
Section 32(2)(i) of the Sale of Land Act requires vendors to provide details of any current
land use restriction notice given in relation to the land under the Agricultural and
Veterinary Chemicals (Control of Use) Act 1992 (‘the Agricultural and Veterinary
Chemicals (Control of Use) Act’) due to contamination.
The Agricultural and Veterinary Chemicals (Control of Use) Act enables land use
restriction notices to be issued that regulate the growing of plants or keeping of stock
on land, in circumstances where it is likely the resulting plants or stock could be
contaminated. Such notices may prohibit the growing of plants or keeping of stock on
the land completely or permit it subject to certain conditions.3
Section 51 of the Agricultural and Veterinary Chemicals (Control of Use) Act enables
details of land use restriction notices to be disclosed on application. However, this can
only occur with the consent of the landowner. There are no other disclosure
requirements under that Act in relation to land use restriction notices.
Questions for consultation:
1. Is such specific disclosure of contaminated agricultural land still required?
It is important that this disclosure remains. The VFF would support the requirement for land use
restrictions based on section 51 of the Agricultural and Veterinary Chemicals (Control of Use) Act to
be disclosed in section 32. There are cases in the past with the use of Dieldren and DDT has led to
serious contamination of the land. The result of this contamination of the land is a reduction in the
potential future use of the land. It is extremely important that potential buyers are aware of future
land use restrictions.
Also, It is an offense (under the EPA Act) to sell contaminated land without full disclosure and
agreement between both parties (buyers and sellers) and having this disclosure as mandatory will
ensure this is adhered to.
2. Are these notices easy for a potential purchaser to obtain?
Unsure.
3. Could land use restriction notices form part of a general disclosure of notices affecting the
land?
No. If there are land use restrictions based on the Ag and Vet Chemical Act they should be named
explicitly. There is a risk that if it formed a general disclosure
Additional Concerns
The VFF have been approached by members voicing concern with the lack of transparency around
the naming of areas of aboriginal heritage sites. Anecdotally, there has been aboriginal heritage
overlays placed on farmers lands, without their knowledge and therefore without the knowledge of
prospective purchasers of that land. There should be proper feedback mechanisms to land holders if
there is consideration of placing any overlays of property including aboriginal heritage. There is also
no requirement for this overlay to be stated in a section 32 and this should be considered.
Recommendation Three: Include a general warning regarding the application of overlays (including
Aboriginal Heritage overlays) and where information an applicable overlays can be found.
Also, recently The Public Land Consultancy newsletter ‘Terra Publica’2raised the issue of lack of
disclosure relating to crown land that may appear to be part of a sale, but is actually a license that is
issued by the State government and can be revoked at any time. For farmers, this is particularly
important in cases regarding unused roads and riparian areas.
Recommendation Four: Include mandatory disclosure of land area subject to Government license
arrangements
Thank you for the opportunity to comment and if you wish to discuss further please contact Darryl
Harrison, Policy Manager (03 9207 5522)
Kind regards,
Peter Tuohey
President
Victorian Farmers Federation
M: 0428 952 425
Email: ptuohey@vff.org.au
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November 2012 edition