4 Rural Residential 1(d) to be re-zoned to E4 Environmental Living

Palerang has chosen to adopt Zone E4, Environmental Living Zone to replace the former Rural Residential 1(d) zone.

Zone E4, Environmental Living is generally intended for land with special environmental or scenic values where residential development could be accommodated.

There are some important differences between what is currently permissible, with or without Council's consent, and what will be permissible under the new LEP zone. Some of these differences are discussed below.

No loss of existing lawful rights

It is important to note that the new LEP seeks to maintain existing rights.  Council has advised us as follows:

“It should be noted when considering consent requirements or prohibitions that nothing in the new LEP can require a person who is lawfully carrying out a development under the current planning controls to either obtain development consent or to cease the development. If a person is lawfully carrying out a development that is currently permissible without consent (eg. agriculture) or they are carrying out the development in accordance with a development approval, and the new LEP prohibits that development, they are able to continue the development under the existing use provisions of the EP&A Act. Similarly if a new LEP introduces a requirement for development consent for a development that previously did not require consent, the EP&A Act provides that the development can continue without the need to obtain consent. Thus the new consent requirements will only affect new uses or expansions of existing uses.” [Updated 24 March 2010]

4.1 Objectives of the E4 Environmental Living Zone

4.2 Land Uses – E4 Environmental Zone

4.3 What's different in the E4 Environmental Zone?

Below, we highlight what we believe are some of the differences between the old Rural Residential 1(d) zone and the new E4 Environmental living Zone. The list is not exhaustive.

4.3.1 Electricity Generating works permitted with consent

Generating works were specifically prohibited under the Rural Residential 1(d) zoning in the old LEP. BURRA is very concerned to note that electricity generating works such as industrial wind farms are currently listed as ‘permissible with consent' under the E4 Environmental Living Zone. The Working Draft definition of electricity generating works is:

A building or place used for the purpose of making or generating electricity

After witnessing the industrialisation of the land north of Bungendore by the giant wind-turbines does anyone still believe that these industrial installations are appropriate for our rural residential area? The photograph above shows 125 metre turbines from the Capital Wind Farm next to a home on Taylor's Creek Road, north of Bungendore. Is this appropriate development for our neighbourhood?

The NSW Parliamentary Committee Inquiry into Rural Wind Farms, which reported in December 2009, recognised the incompatability with this industrial development with residential areas and recommended that no residence be closer than 2km to a wind-turbine. It is hard to find any justification for permitting large-scale electricity generation in the E4 Environmental Living Zone.

The NSW Parliamentary Committee Inquiry into Rural Wind Farms also reported that, according to the NSW Department of Planning, local councils are the ‘appropriate regulatory authority’ for addressing issues regarding wind farm noise (see page 62). A number of local councils, including Palerang Council, advised the Committee that they were concerned about addressing noise complaints for wind farms that they have not approved and that do not comply with their Development
Control Plan. At the Palerang Council meeting held in December 2009, the complaints of nearby residents of the Capital Wind Farm regarding noise were not resolved. Council concluded it had neither the expertise, equipment nor resources to investigate noise pollution at what they term "industrial premises such as wind farms" Palerang Council did not – could not – address the concerns of the hapless residents so detrimentally affected by this industrial development and instead resolved only to lobby an unwilling State Government to take on the responsibility. This is no comfort to the residents, some of whom have had to leave their homes due to the unrelenting noise. Why would any rural residental community agree to be placed in a similar untenable position by a council that admits it cannot monitor nor control the worst aspects of these industrial developments? Industrial wind developments have no place near rural residental areas and must be prohibitied in the new LEP.

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Update

BURRA has raised these concerns with Palerang Council and we have been informed that the reference to electricity generation will be taken out of the E4 Environmental Living Zone. This will have the effect of permitting the installation of solar panels if fitted to a roof, however all other electricity generation (backyard wind, ground-mounted photo-voltaics) will be prohibited. Council is continuing to investigate options .

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4.3.2 Agriculture

(i) Extensive Agriculture permitted with consent

The E4 Environmental Living Zone requires landholders to obtain Council's consent to practice ‘extensive agriculture'. The Working Draft LEP defines ‘extensive agriculture' as:

1. the production of crops or fodder (including irrigated pasture and fodder crops), or

2. the grazing of livestock, or

3. bee keeping,

for commercial purposes, but does not include any of the following:

4. animal boarding or training establishments,

5. aquaculture,

6. farm forestry,

7. intensive livestock agriculture,

8. intensive plant agriculture.

This definition indicates that, while Council's consent would be required for commercial agricultural operations, hobby-farm operations would not require consent.  This definition is also silent as to the status of animal breeding .  BURRA is seeking clarification on these points.

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Update (24 March 2010)

Hobby-farming

Palerang Council has advised us that genuine small-scale hobby farm activities, including limited buying and selling of stock, would be permissible as an ancillary use of E4 land.  Activities would require consent if they became commercial operations.  While there is no definition of ‘commercial' in the LEP, the dictionary definition implies large-scale operations.  Activities might be considered commercial when income and expenditure is recorded for tax purposes, or when a business name is registered or when produce is advertised.

Animal Breeding

Council has advised us that small-scale, genuine hobby farm breeding of livestock would be permissible.  However, more intensive breeding operations, such as dog kennels, which conflict with the land use pattern of E4 would continue to be prohibited under the new LEP as would animal boarding and training establishments in general.

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For comparison, the Rural Residential 1(d) zoning currently allows the following activities without consent:

agriculture—general farming means the use of land for any purpose of animal husbandry, including the keeping or breeding of livestock, poultry or bees and for the growing of crops, but does not include the use of land for intensive animal husbandry, intensive livestock keeping establishments, intensive plant cultivation, aquaculture, the erection of buildings or activities which are incidental or ancillary to a primarily residential use of the land concerned.

(ii) Intensive Animal Husbandry not permitted

The E4 environmental living Zone does not permit ‘intensive livestock agriculture' which it defines as:

the keeping or breeding, for commercial purposes, of cattle, poultry, goats, horses or other livestock, that are fed wholly or substantially on externally-sourced feed, and includes the operation of feed lots, piggeries, poultry farms or restricted dairies, but does not include the operation of facilities for drought or similar emergency relief or extensive agriculture or aquaculture.

For comparison, the Rural Residential 1(d) zone permitted ‘intensive animal husbandry' with Council's consent. The 2002 LEP currently defines ‘intensive animal husbandry' as:

the keeping or nurturing of cattle, rabbits, alpaca, deer, goats, horses, poultry, sheep or other livestock for commercial purposes where the method of feeding is reliant on supplementary feeding as the primary method of feeding, but does not include:

1. the use of a building or land for the purpose of feed lots, piggeries, poultry farms or animal boarding establishments, or

2. the keeping of livestock or poultry intended solely for personal consumption or enjoyment by the owner or occupier of the building or land in or on which they are kept, or

3. intensive hand feeding of livestock as a result of a State declared natural disaster or during drought declared periods.

‘Intensive livestock keeping' is currently prohibited in the Rural Residential 1(d) zone and is also prohibited in the E4 Environmental Living Zone.  The 2002 LEP defines intensive livestock keeping as

the use of a building or place in which or on which cattle, sheep, goats, poultry or other livestock are held for the purposes of nurturing by a feeding method other than natural grazing and, without limiting the generality of the foregoing, includes the use of:

1. piggeries,
2. poultry farms, and
3. fish farms (including farms cultivating crustaceans),

but does not include the use of an animal boarding establishment or an animal breeding or training establishment or the keeping of livestock or poultry intended solely for personal consumption or enjoyment by the owner or occupier of the land.

(iii) Intensive Plant Agriculture permitted with consent

The E4 Environmental Living Zone permits intensive plant agriculture and horticulture with Council's consent. The working Draft LEP defines this as:

any of the following carried out for commercial purposes:

1. the cultivation of irrigated crops (other than irrigated pasture or fodder crops)
2. horticulture,
3. turf farming,
4. viticulture.

BURRA is seeking clarification of this definition because we note that the Land Use Matrix applicable to the E4 Environmental Living Zone appears to specifically exclude commercial turf farming and commercial viticulture (although cellar door premises appear to be allowed with consent).

This definition also indicates that, while Council's consent would be required for commercial agricultural operations, hobby-farm operations would not require consent however, BURRA is also seeking  clarification on this point.

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Update (24 March 2010)

Council has advised us that the intention is to allow viticulture but not turf-farming .

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For comparison, the Rural Residential 1(d) zoning currently allows intensive plant cultivation (with Council's consent) which it defines as:

agriculture—intensive plant cultivation means agriculture involving the irrigated cultivation of crops, including cereals, fruit, flowers, nuts, vegetables, mushrooms, or turf, or the use of land for wholesale plant nurseries or the use of hydroponics for commercial purposes.

(iv) Farm Buildings - inconsistency

There is an inconsistency between the E4 Environmental Living Zone definition (page 31 of the Working Draft LEP) which states that farm buildings are permitted with consent, and the Land Use Matrix (page 126 of the Working Draft LEP) which states that farm buildings are prohibited in the E4 Environmental Living Zone. BURRA will seek clarification on this point.

4.4 Why not re-zone 1(d) land as RU 4 Rural instead of E4 Environmental Living?

There has been some questioning as to why Council has not chosen to apply the RU4 Rural Small Holding zoning to areas which are currently zoned 1(d) Rural Residential.

Council's Working Draft LEP does not include the objectives or Land Use Matrix for the RU4 rural Smallholding Zone, however, according to the Standard LEP Template, the objectives of the RU2 zoning are:

4.5 Minimum Lot Size and Erection of Dwelling Houses in the E4 Environmental Zone

The Working Draft LEP states that the minimum lot size for lots created in the E4 Environmental living Zone after the commencement of the new plan is 6 hectares.

According to the Working Draft, dwelling houses or dual occupancy dwellings will only be permitted on lots created before the commencement of the new plan if:

• the land in question is more than 8 hectares ; or

• subdivision approval has already been granted and a dwelling house would have been permissible immediately before the new plan commences; or

• the dwelling replaces a lawfully erected dwelling.

4.6 Sub Division in the E4 Environmental Living Zone

Clause 6.5 of the Working Draft LEP appears to allow averaging of lots down to 4 hectares in size. Previously subdivided blocks or blocks created from a prior subdivision may not be further subdivided.

Clause 6.6 appears to allow for cluster development down to block sizes of 2000 square metres.

BURRA is concerned that cluster development is not compatible with the rural ambience of our area. Burra is well known, and well loved, for its larger block sizes. Residents and potential residents value the opportunity this provides to farm or carry on rural enterprises. In our view, cluster development is better suited to the outskirts of towns and villages where services are more readily available.