The QPR Blog

Creating the new PLEP has been a challenge for several reasons, not least of which is the fact that the new legislation is based on a standardised template, the so-called Standard Instrument, which underpins all new NSW LEPs. The main problem with the Standard Instrument, in the present context, is that it introduces a completely new dictionary of land use and land use zone names that have a limited relationship to existing land use or zone names.

Leaving aside for the moment the fact that land use zone names have changed completely from those used in the current LEPs, it was simply not possible to define all existing land uses in the same way that they had been previously. The issue of the moment, the status of some agricultural pursuits as land uses in rural residential areas, arises because the new Standard Instrument dictionary provides no specific definition for grazing or cropping. These activities can only be identified under broader land use definitions such as Intensive or Extensive Agriculture, and this introduces a second dimension to the problem.

The activities defined under Intensive and Extensive Agriculture are specifically defined as commercial activities, but the dictionary does not define the word commercial, nor does the Standard Instrument provide any guidance as to when a non-commercial activity might become a commercial one. More specifically, the Standard Instrument dictionary does not include any definition for non-commercial grazing or cropping. As such, there is no way to specifically identify non-commercial grazing or cropping as permitted land uses and this has lead to a degree of scepticism within the community towards Council’s motives in this regard.

Add to this confusion, the fact that the zone name used for most of Palerang’s rural residential areas effectively changed from the former “1(d) Rural Residential” to “E4 (Environmental Living)”, and some residents became convinced that the regulations were being changed to restrict agricultural activities in these areas.

It is a general planning principle that activities that are ancillary to a permitted land use are permitted without further consent. In rural residential areas then, where residential (not agricultural) land use is the primary activity, council’s planners advise that any rural activity that may reasonably be conducted in conjunction with the existence of a dwelling house would be permitted without consent. Such activities would include grazing of animals for a range of reasons (grass control, hobby farming, or simply pets), and a range of horticultural and cropping activities.

The difficulty arises when one starts to talk about commercial activities. Some land holders view their rural residential property as an agricultural enterprise when the reality is that, by definition, it is not a commercial entity in the present context, largely because the area of land involved is too small and/or the soil is relatively thin and infertile (Class 4/5 agricultural land)—i.e. the activity simply cannot be practiced on a commercial scale. Regardless, council’s planners advise that provided an activity does not dominate the intended primary use of the land, that being residential in this case, it would still be permitted without consent.

As you might see, the issue is anything but straightforward, and is mired in the confusion of the wording of the new legislation. It seems that no matter how often the details of the situation are explained, scepticism remains.

When this matter was first raised, I had lengthy discussions with our planners about the implications of the various options that were available to us, given that our intention was always to do the best we could to translate the currently permitted land uses faithfully into the language of the new legislation. In the event, it seemed that regardless of the scale of the activity, it would be unlikely to cause a problem in our rural residential areas if we simply permitted commercial grazing and cropping, as Extensive Agriculture, as a land use permitted without consent, since the extent to which these activities could be undertaken on 8-16 ha lots before becoming a problem would be limited.

In spite of the fact that there is general agreement within council that we will follow this course of action, and in spite of the fact that most grazing and cropping activities would be permitted without consent (i.e. not require a DA) as ancillary land uses in any case, scepticism persists. It probably will do until it becomes apparent that the only real problem was one of understanding the translation exercise.