Posted on November 28, 2017 by Liam Mulligan and Megan Hawley
New Primary Production and Rural Development SEPP
The Department of Planning and Environment (DPE) is currently seeking submissions on proposed changes to the existing planning controls governing primary production and rural development. The proposed changes are set out in the Primary Production and Rural Development – Explanation of Intended Effect (EIE).
The proposed new State Environmental Planning Policy (Primary Production and Rural Development) (PPRD SEPP) aims to consolidate and revise the currently fragmented planning regime which applies to rural land and agriculture.
The reforms seek to:
- support investment in agriculture
- reduce land use conflict
- facilitate an adaptive approach to new and emerging agricultural practices, technology and industry, and
- protect environmental values.
The draft of the PPRD SEPP has not yet been released. The EIE materials can be found on DPE’s website (here).
What is changing?
The existing rural and primary production planning framework includes at least five different SEPPs, provisions contained in the Standard Instrument Local Environmental Plan (Standard Instrument), Ministerial Directions under s 117 of the Environmental Planning and Assessment Act 1979 (EPA Act) and other regulations.
The PPRD SEPP will absorb some provisions of these existing SEPPs, whilst transferring other provisions into the Standard Instrument. It will also update and revise provisions in the Standard Instrument and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Those provisions in the existing SEPPs which are not transferred into the PPRD SEPP or Standard Instrument will be repealed.
The existing SEPPs which will be replaced by the PPRD SEPP are:
- State Environmental Planning Policy (Rural Lands) 2008 (Rural Lands SEPP);
- State Environmental Planning Policy 30 – Intensive Agriculture;
- State Environmental Planning Policy 52 – Farm Dams and Other Works in Land and Water Management Plan Areas;
- State Environmental Planning Policy 62 – Sustainable Aquaculture; and
- Sydney Regional Environmental Plan 8 – Central Coast Plateau Areas.
Significant changes to consider
Clause 4.2 in the Standard Instrument will be amended to clarify that a lot created by a subdivision in the rural zones to which the clause applies will not need to comply with the minimum lot size even if the lot contains an existing dwelling.
The EIE suggests that this is to allow occupants of rural land to remain in their dwellings whilst subdividing off the surrounding land.
Rather than being a clarification, this is a significant change. A proper reading of the current clause 4.2 is that a lot can be created of less than the minimum lot size for the purpose of primary production, provided that an existing dwelling would not be situated on the lot.
The EIE states that a provision will be included in the amended Standard Instrument to prevent “double-dipping” and fragmentation, where rural land is repeatedly subdivided in this way. As the draft SEPP is not yet available, we cannot comment on whether that provision will be effective.
The heads of consideration in respect of rural subdivisions, which are currently contained in cl. 10 of the Rural Lands SEPP, will also be transferred into the Standard Instrument.
Rural Planning Principles and ‘Right to Farm’
The rural planning and subdivision principles set out in Ministerial Direction 1.5 – Rural Lands (a direction under s 117 of the EPA Act) will also be revised.
The new direction, which will need to be considered when preparing LEPs for rural land or environment protection zones, will require consideration of the ‘significance of agriculture and primary production‘ to rural communities, and must ‘support farmers in exercising their right to farm’.
The revised principles will also require assessment of proposals against environmental outcomes, such as the protection of biodiversity and the prevention of land fragmentation.
Triggers for Development Consent and Designated Development
A new clause will be included in Standard Instrument to clarify the thresholds above which development consent will be required for certain agricultural activities (this is currently dealt with in SEPP 30). There will also be revised thresholds for development which is designated development within the meaning of the EPA Act.
A number of definitions will be amended, such as ‘intensive livestock agriculture‘, ‘extensive agriculture‘, ‘feedlot‘ and ‘piggery‘ (which will be amended to ‘pig farm‘).
The amendments are aimed at:
- ensuring operations involving sheep are captured by intensive livestock agriculture, and removing the source of the feed from the definition;
- clarifying that extensive agriculture involves animals eating plants grown on the land rather than food exported from elsewhere, but also acknowledging that extensive agriculture can involve supplementary feeding and temporary housing or penning of livestock;
- taking extensive agriculture out of the definition of a feedlot.
Amendments to the Standard Instrument will also have the effect that intensive livestock operations will only require development consent if they are above certain thresholds (which are dependent on the animal involved in the operation and location of the proposed development).
Also the current exemptions from consent requirements in the case of emergencies will be extended to apply to livestock other than cattle and pigs.
The Standard Instrument will also be amended to exempt smaller scale artificial waterbodies within irrigation areas from the requirement for development consent.
The submissions period for the EIE closes on 18 December 2017.
We will consider the proposed reforms in further detail once the draft SEPP is available.