Addition of Clause 10 to the new LEP

Date: 08-Mar-10
Author: Paul and Priscilla Flemming
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From: Paul Flemming
To: Bo Moshage
Cc: James Ryan ; Darryl Fitzgerald ; Bernie Mortomore ; Alison Davey
Sent: Thursday, February 25, 2010 5:14 PM
Subject: Addition of Clause 10 to the new LEP

 Hi Bo,  

We understand that at last night's meeting, in answer to a question from Cr. Ryan, you stated that LEP 1989 Clause 10 (updated and/or expanded if appropriate) cannot be included in Draft LEP 2010, because the standard instrument does not include such a provision. We point out that this is incorrect, for the following reasons:-

1. Clause 5.1 in The Standard Instrument (LEPs) Order 2006 states:-  (1)  Additional provisions may be included in the plan, but only if they are not inconsistent with the mandatory provisions of the standard instrument and comply with any relevant directions in that instrument.
2. In line with this, Cessnock planners have already added in Draft LEP 2010 an additional Part 6, and an additional Part 7, which are not contained in the standard instrument.  Parts 6.1 through 6.6 contain local provisions relating to various zones and land.  In exactly the same way, the general development principles in Clause 10 could be added to Part 6, to apply in the rural and environmental zones throughout the LGA.  Inclusion of these principles is not only legitimate and vital, but is specifically called for in DoP Practice Note PN 09-002, issued in April 2009. The section on page 2 headed Local environmental provisions states, in part: rural land that is still principally for agriculture but which contains environmentally sensitive areas may be zoned RU1 or RU2 and the environmental sensitivities managed through a local provision and associated ('overlay') map. The benefits of this approach include:?? The intended conservation or management outcomes for land can be clearly articulated in the LEP.?? Areas are clearly defined and controls streamlined.?? Sub-zones are not created. (These are not permitted under the standard instrument). This clarifies and goes to the heart of what we understand people were seeking at last night's meeting - actual environmental protection in Wollombi Valley.
3. If you refer to the Muswellbrook and Goulburn Mulwaree LEPs gazetted under the standard instrument in 2009, you will find they both contain Clause 10 style general development principles as additional provisions in their Parts 7, as per Clause 5.1 of the Standard Instrument (LEPs) Order 2006.

The above makes it clear that Clause 10 can be included in Draft LEP 2010.  We understand that this course was strongly recommended last night by a number of addressees from Wollombi Valley, and we support their submission.  We recommend that a correction be immediately advised to them, and to the Councillors who were given incorrect information.  

It is important to re-state that when the Clause 10 equivalent is added to the Draft, the environmental protection provided will apply equally to land zoned rural and land zoned for environmental protection.   

As additional local provisions are permissible under the standard instrument, we point out to Cr. Ryan, via his copy of this email, that concerns that he has expressed regarding piggeries and feedlots in Wollombi  Valley, can be addressed by excluding them in the Valley by a local provision in Part 6.  

We trust the above will be received as it is intended - as a constructive input into the LEP process.  

Regards,  

Paul and Priscilla.