Claytons Environmental Protection Under E3

Date: 10-Dec-09
Author: Paul Flemming
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It wasn't till I browsed a Department of Planning document headed LEP practice note PN 09-002. Environment Protection Zones, issued in April 2009, that the penny dropped. We'd all so far missed the "bleedin' obvious" - the draft Cessnock LEP 2009 on exhibition deals only with the PURPOSES we can use land for, but says NOTHING about how we are to CARRY OUT THESE PURPOSES.

Our present Cessnock LEP 1989 does both for rural zones. It zones land by purpose, for example Rural 1(a) for agricultural use, and then everything which can be done on rural land is subject to Clause 10 of the LEP - General development principles. There are currently 14 general principles directly relating to environmental protection, and they are critically important, two examples being:

buildings should not intrude into the skyline, when viewed from roads or other public places.
development (including associated access roads) should not create or worsen soil erosion potential through the action of wind or water or the alteration of land form, and adequate measures should be taken to avoid such an effect.

The draft LEP on exhibition contains NO SUCH ENVIRONMENTAL PROTECTION.

Weird, but true. It came about when the Department of Planning, in 2006, issued its new Standard Instrument (template) which all Councils must use in preparing new Local Environmental Plans. The template MAKES NO REFERENCE to the need for Councils to cover environment protection in the same way as before, that is by local environmental provisions. As a result, E3 Environmental Management doesn't "manage" the environment at all, it simply deals with the purposes for which land may be used.

LEP practice note PN 09-002 now provides a remedy for this omission. It states that rural land that is principally for agriculture, but which contains environmentally sensitive areas may be zoned RU1 or RU2 and the environmentally sensitive areas managed through a local provision and associated ('overlay') map. It then sets out the benefits of this approach.

This guidance from the Department of Planning was not available during the preparation of draft LEP 2009. Thankfully, the Practice Note now makes it clear to Cessnock Council planners that the appropriate zoning for Wollombi Valley is RU2 Rural Landscape, with local environmental provisions that do indeed provide environmental management where it is needed.

Paul Flemming.

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