The NSW State Government announced on 10 March 2021 that The Minister for Planning will issue a new section 9.1 direction (to the Koala SEPP) to ensure that only the Minister, and not councils, will be empowered to rezone land used for primary production to an environmental zone (E zone), or to rezone land currently in rural zones 1, 2 and 3 to other rural zones.
This was part of a Government response to the Koala SEPP 2019 issue that has raged for over a year now.
Independently, there has an increasing push by ”green” orientated Council employees in NSW to lock up private rural land in Environmental (E) Zones. There are three E zone possibilities and the conversion of rural lands to these lands carry the same problems for each E zone.
The Ministerial Direction carries its own problems. One is that there will be no mandated community consultation as there is when a Council moves to amend an LEP (local environmental plan) under the Part 3 of the Environment Planning and Assessment Act 1979 (NSW).
This really is more serious for rural landowners than what is in place now. The Government needs to add community consultation to the proposed Ministerial Direction.
What does an E Zone classification mean for a landowner of land zoned “rural”?
Vermin control is an important issue for rural land management. This is strictly controlled through a couple of means, firearms being one of these. To apply for a firearm licence within NSW one of several “genuine reasons” under the Firearms Act 1996 (NSW) must be put to the Commissioner of Police. Two of the genuine reasons are being an owner of rural lands and being engaged in primary production. Changing land use from rural to E Zones means both these “genuine reasons” evaporate.
To maintain a program of vermin control on private land zoned Environmental, the only possible, but difficult, route to obtain a firearms licence is to secure a “hunting club” firearm licence. But there needs to be a hunting club and the hunting club needs to organise the hunt on your private land to control vermin. Anyone with rural land management experience can see the absurdity of this.
There is also an issue that the firearms legislation does not appear to actually authorise the Police Commissioner to approve a hunting club. The form is on the website but the Act does not authorise such approval and nor do the Regulations.
When it comes to vegetation control on rural lands, which is governed by the Local Land Services Act 2013 (NSW), there is no application of the Act to land zoned Environmental. The Act does apply to all of NSW. The way the Act works is, unless the land is exempt land on the vegetation maps, then the Act regulates vegetation clearing on rural regulated lands, being the balance of lands not exempt. So what is known as “allowable activities clearing of native vegetation” which includes, firewood collection, clearing around infrastructure, fence lines, imminent risk clearing, construction timber, and planted native vegetation – are all off limits. They cannot be done on land zoned Environmental.
It is early days for the Government on this issue but the technical problems loom large. Does removing “imminent risk” timber or clearing around infrastructure constitute “ancillary uses” under Planning Law? Does the Standard Template for LEPs need to be amended to include savings provisions to retain land management principles?
Why be concerned? Because there is no other legislation or EPI (environmental planning instrument) that deals with the management of private land under environmental zonings.
The larger issue involving this issue has yet to materialise. The NSW EPAs proposed new Environment Regulatory Framework is currently out on consultation. (EPA have your say: regulatory strategy)
It highly likely that any new Regulatory Regime will be undertaken by EPIs (SEPPs and LEPs) and Ministerial Directions. Both of these not passed by Parliament, but by the environmental bureaucracies. SEPPs are required to go through a process of consultation but this nowadays is by websites or similar means.
The Environmental Regulatory Framework will again most likely see measures ostensibly to “enhance the environment” that will close down private lands to be locked up as de facto state national parks along with the shut-down of all primary production on these lands.
Of course, time will tell, but stay alert, as all private land management Acts have been rewritten by the current Coalition Government. These rewrites have been more in line with a “progressive” (and EPA) view than that of industry.
So why raise all this now? Well, ask the landholders in the Snowy Mountains Council area and what they were facing with the proposed new LEP heading towards an Environmental zone lock up of much rural land. Their Council was telling them there are no issues for them to worry about when the new LEP changes their rural land to E-zones. In this case hundreds of thousands of hectares would have been locked up. Submissions have just closed in round one. The State Government Press Release on 10 March should stay that Council staff’s push but it is suggested this fight is not over.
The landowners of rural lands caught up in the proposal will need to see the wording of the Ministerial Direction. It has yet to be made available. It is one of those “soon” documents.
Chatter is about that that the bureaucrats within the Environment section of the Department of Planning, Industry and Environment are earnestly trying to get control of the process of converting Rural lands to Environment Zones. It all comes back to the vegetation maps and the koala habitat maps – no matter how inaccurate they are.
