North East Bioregional Network
c/- Todd Dudley
Email:
10 March 2015
Dear Mr Alomes
Supplementary submissions
These submissions respond to the Council’s report into representations and further consideration given to the Break O’Day Interim Planning Scheme 2013. The submissions are additional to our original representation and, unless contrary to this submission, we maintain our original concerns and drafting recommendations in respect of the interim scheme.
We note recent amendments to the Land Use Planning and Approval Act 1993 designed to improve the suite of enforcement tools available to planning authorities. This amendment is welcomed, and we hope that more rigorous enforcement actions are taken in future. However, these new opportunities may only be effectively used if planning scheme provisions are clear and enforceable. We urge the Commission to make every effort to ensure that the interim scheme becomes a practical, enforceable tool to guide planning and development in Break O’Day.
One of our principal concerns with the interim scheme remains the planning authority’s delegation of responsibility for assessing impacts on natural and cultural values to external approval authorities. In particular, reliance on Forest Practices Plans and Reserve Activities Assessments has the potential to remove public participation in resource management decisions and obscure the criteria against which developments are assessed. Most significantly, it jeopardises the achievement of sustainable development and maintenance of biodiversity. Such an outcome is contrary to the objectives of the Resource Management and Planning System.
Another key concern is the absence of a number of Codes to regulate impacts of specific, high-risk use and development, and background material to support zoning and development strategies. We strongly recommend that the Commission direct Break O’Day Council to develop the following Codes:
- Acid Sulphate Soils Code
- Aboriginal Heritage Code
- Geoconservation Code
Our more detailed comments are set out in the attached table.
Thank you for the opportunity to provide additional comments on the Break O’Day Interim Planning Scheme 2013. We maintain our request to appear at the public hearing to discuss our concerns.
Yours sincerely,
Todd Dudley
President, NEBN
SCHEME OPERATION
4.1.3 – Definitions / New definitions:
“cultural sites or landscapes” means areas recognised as having historic, contemporary, heritage or amenity significance to the community, or a strong or special association with a particular community group for social or spiritual reasons”
“natural values” includes flora, fauna, biodiversity and species richness, geodiversity, water quality and ecosystem services such as carbon storage.
“priority vegetation” means threatened vegetation and important habitat and habitat corridors for threatened species that are listed under the Threatened Species Protection Act 1995 or the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth).
“water quality objectives” means objectives identified by the Board of the Environment Protection Authority in relation to protected environmental values under the State Policy on Water Quality Management 1997
Coastal zone definitions / This definition will assist in the characterisation of uses in the Natural and cultural values management use class. In particular, it is intended to capture the cultural significance of areas and landscapes to Tasmanian Aboriginal communities, which are not adequately recognised in the Aboriginal Relics Act 1975
Protection of “natural values” appears as an objective and development standard throughout the scheme. A clear, expansive definition would assist in implementation by recognising the extent of values to be considered.
This definition is used in the Launceston Interim Planning Scheme 2015 and will support recommended changes to the Biodiversity Code (discussed below). The inclusion of “habitat corridors” is consistent with the definition of that term in the Interim Scheme (which is otherwise unused).
“Water quality objectives” are referred to in the Environmental Protection Objectives at 3.1.2.3 and in the Coastal Code.
The Coastal Code should include definitions of the terms used in Figure E14.1. Reference should be had to The Australian Coastal Smartline
Geomorphic And Stability Map Version 1: Manual and Dictionary, available at
EXEMPTIONS
6.1.4 and 6.2.1 / Insert an additional qualification:
(f) an area that is subject to a code that is part of this planning scheme which expressly regulates impacts on biodiversity values
Amend the reference to “30m” from a wetland to be “50m” / The uses described in 6.1.5, 6.1.5 and 6.2.2-6.2.4 will not always be covered by 6.3.1, therefore it is appropriate to qualify the exemption for those activities by excluding priority habitat or removal of native vegetation.
50m is consistent with the Water Quality Code
6.3.1 / Amend the reference to “30m” from a wetland to be “50m” / 50m is consistent with the Water Quality Code
6.3.2 (b) / Remove the exemption for clearance and conversion in accordance with a FPP / As discussed in relation to the Rural Resources Zone, clearing should be subject to a permit so that Council may impose conditions, and will have a centralised register of vegetation clearing in the municipality.
6.4.1 / Insert an additional qualification:
(d) land located within a priority habitat area / Fencing can disrupt connectivity in important habitat corridors. It is appropriate for any fencing in priority habitat areas to be assessed by the planning authority. Criteria should be developed for assessment of fencing proposals in habitat areas – fencing may be subject to an Acceptable Solution if Threatened Species officers within DPIPWE certify that the fencing will not interfere with the passage of native fauna between habitat areas.
6.5.2(c) / Amend the reference to “30m” from a wetland to be “50m” / 50m is consistent with the Water Quality Code. As discussed below, the Water Quality Code should be amended so that it applies to new agricultural buildings within 50m of a waterway (as per Launceston Interim Scheme 2015)
6.5.3 / Amend to apply to laying of pipes “within 50m of a wetland” / 50m is consistent with the Water Quality Code, and will better protect the natural and scenic values of wetlands.
7.4.2 / Amend to read:
(a)Where there is a conflict between a provision in a specific area plan and a provision in a zone or a code, other than the Biodiversity Code, the specific area plan provision prevails.
(b)Where there is a conflict between a provision in a specific area plan and a provision in the Biodiversity Code, the Biodiversity Code provision prevails. / For the Biodiversity Code to effectively preserve habitat corridors and maintain priority habitat, it is essential that the Code applies across the planning scheme area. Specific area exclusions will compromise the achievement of connectivity.
While there are current no Specific Area Plans, such plans may be introduced in future. We acknowledge that any such changes would be subject to public consultation, however believe the issue of conflict should be explicitly addressed as a principle in the scheme, rather than in each individual plan.
8.1.3 / Amend to allow planning authority to seek further information regarding whether the proposed use or development will comply with “any relevant standards and purpose statements in the zone, codes or specificarea plan, or provisions of a State Policyapplicable to the use or development. / The decision in St Helens Landcare and Coastcare Association Inc v Break O’Day Council [2007] TASSC 15 confirmed that some provisions of State Policies may be self-executing and not adequately reflected in planning scheme provisions. The new interim schemes are expected to reflect all State Policies, to avoid the need for separate consideration. However, it is possible that amendments to either State Policies or scheme provisions in future may mean that the scheme no longer replicates the Policy requirements. Allowing the planning authority to seek information to determine whether its obligations to implement the State Policy are being met is consistent with the State Policies and Projects Act 1993 and the Supreme Court’s previous decisions.
Table 8.2, “Natural and Cultural Values management” / Amend to: “use of land to protect, conserve, restore or manage ecological systems, habitat, species, cultural sites or landscapes.” / It is important that ecological restoration projects fall within this use class.
9.1.1 / Convert to a special Code dealing with changes to non-conforming uses / We acknowledge that this provision is included in Planning Directive 1, however we believe it would be better reflected in a Code that clarified the discretion to be exercised. This is important, as s.20(5) of LUPAA expressly provides that the protection of existing non-conforming uses does not extend to transfer or relocation of the use to other parts of a site.
In particular, it should be clear that criteria (a) – (c) are performance criteria or, if Acceptable Solutions, that notice must be given to adjoining owners. This would be most consistent with the “minor amendment” provisions in s.56 of LUPAA – providing some opportunity for those who object to the assessment of “no adverse impact” to appeal against the decision. Relying on civil enforcement under s.64 could delay review for at least 4 months.
ZONE PROVISIONS
General – Site coverage / Where PC is provided for any site coverage provisions, PC must include regard to:
landscape character of the area and the need to remove vegetation to accommodate development and maintain hazard management areas. / Clearing for fire hazard management can be significant and compromise efforts to protect biodiversity, preserve connectivity and maintain amenity. For example, in Ogilvie v Break O’Day Council [2004] TASRMPAT 33, the Tribunal was not satisfied that residential subdivision was acceptable, having regard to the extent of disturbance required to provide “appropriate fire protection”.
In any zones including land in Bushfire Prone Areas, consideration of the extent of clearing associated with hazard reduction must be factored in to any decision to relax the site coverage. This will allow a more accurate picture of site disturbance to be assessed.
This change should be applied to 13.4.1, 16.4.1 and 32.4.1
General – Landscaping / Ensure that every zone includes the following landscaping provision:
A1 All new plantings must be undertaken with seeds or rootstock derived from provenance taken within the boundaries of the site, or the vicinity of the site / P1 Where seeds or rootstock derived from provenance taken within the boundaries of the site is insufficient for the landscaping needs, seeds or rootstock may be used from other lots within the municipal area
A2 Plants listed in Appendix 3 must not be used in landscaping / P2 No performance criteria
/ It is important that environmental weeds are not used in landscaping in any part of the municipality. Currently, this restriction exists in a number of zones, but is not included in a number of zones.
These provisions should be included in the Rural Resources Zone, General Residential Zone, Rural Living Zone, Local Business Zone, Community PurposeZone and Port and Marine Zone.
Low Density Residential
12.2 Table of Uses / Remove Visitor Accommodation from Discretionary Uses / There is no justification to identify Binalong Bay (or Falmouth, as indicated in Council’s response) as suitable for visitor accommodation. Any facilitation of uses in specific locations, beyond mere translation of existing provisions, should not be made without clear evidence that such use is appropriate in that location.
Density / Support recommendation in Council’s report to introduce a site density restriction to maintain the spread-out character of the zone
12.4.1.7 – Filling / Amend PC 1 to include a requirement that clean fill be used / We recognise the need to ensure fill and earthworks do not adversely impact on stormwater run-off, however use of clean fill should be mandatory.
12.4.2 / Merge with 12.4.1 / There is no justification for residential and non-residential buildings being subject to different standards in this zone.
12.4.3.1 / Remove PC 1
Insert a new provision for boundary adjustments
A1: Boundary adjustment must comply with clause 9.3
P 1.1: Boundary adjustment must not:
(a)create any additional lots;
(b)create a demand for clearing of vegetation that will adversely impact on the natural values of the site;
(c)create any lot with a frontage less than 4m;
(d)alter any lot boundary that aligns with a zone boundary;
(e)create a lot for any use that would adversely affect the amenity of, or be out of character with, surrounding development and the streetscape.
P 1.2 Any lot for residential use created by the boundary adjustment must provide sufficient useable area and dimensions to allow for:
a)a dwelling to be erected in a convenient location
b)on-site parking and manoeuvrability;
c)adequate private open space; and
d)reasonable vehicular access from the carriageway of the road to a building area on the lot, if any / There is no justification for relaxing minimum lot size.
Consistent with Council’s recommendation, an additional provision may be inserted for boundary adjustments that cannot comply with clause 9.3 but may still be acceptable in the zone on the basis that the reconfiguration is appropriate to accommodate use consistent with the zone objectives. Importantly, any such boundary adjustment must be advertised and subject to public comment.
Rural Living Zone
13.4.1 – Building design and siting / Add A1.2
Development must be located on land on which the natural vegetation cover has been lawfully removed or significantlydegraded.
13.4.2 – subdivision / Remove PC
Introduce additional provision for boundary adjustment, similar to provision suggested above but with additional PC:
P 1.3 Boundary adjustment facilitates protection of a place ofAboriginal, natural or cultural heritage. / The Rural Living Zone contains a range of sensitive sites, important habitat and contributes to rural amenity. This should not be compromised by allowing the creation of small lots that increase density and disrupt connectivity.
However, boundary adjustments that cannot meet the minimum lot size or comply with clause 9.3 may be allowed in limited circumstances.
13.4.3 – Tourism / Amend P1 to read:
P1 A tourist operation must:
a)complement the amenity and landscape character of the area surroundingthe site
b)not conflict with other touristoperations in the vicinity of the site
c)minimise impacts on natural values on the site and in the surrounding area
d)maintain the values associated withexisting attractions that arelocated within the vicinity of theproposed tourism operation
e)be consistent with the local area objectives for visual character, if any / Restrictions on tourist development must have regard to the rural character and natural values of the area.
Environmental Living Zone
14.1.1.3 – zone purpose / Remove “under State Reserve” / There is no justification for limiting buffer areas to protection of State Reserves. Provision of buffers to areas of conservation value is an appropriate zone purpose. The planning scheme maps still dictate the extent of the zone, so the change in the purpose does not, itself, extend the reach of the Environmental Living Zone (although it clarifies the purposes for which land may be included in the zone in future).
14.1.2 – local area objectives / Insert:
To ensure native vegetation is protected, maintained and restored
To ensure scenic values are maintained / Council’s recommendations indicate that local area objectives are intended to be inserted once the BODC Land Use and Development Strategy is finalised. This approach is not ideal, and local area objectives should be identified at the outset.
14.4.1 – Building design and siting / Amend A1 as follows:
No more than the area of the site set out in Table 14.4.1 is used for development.
Lot size / Area
<5ha / 20%
5ha - 20ha / 10%
>20ha / 5%
Include a notation clarifying that the area “used for development” includes any areas to be cleared for fire hazard management areas.
P1 (h) should be amended to read:
h) the landscape character of the area and the need to remove vegetation to accommodate development, including any bushfire hazard management areas; / Allowing a blanket 20% to be available for development would allow consider areas to be developed. A graded system of lot sizes is more appropriate to ensure that development areas (and associated clearing) is minimised.
As outlined above, it is important that areas required to be cleared and maintained clear as a result of the development are included in the calculation of the area of the site used for the development (see Ogilvie). While the definition of “development” in LUPAA includes works, such as vegetation clearing, it would be beneficial to make this explicit in the Scheme to ensure that proponents and planning officers are clear that areas that will need to be cleared as a result of the development (even if not specified at the time the application is made) need to be counted.
14.4.3 - Subdivision / Add P1(d)
be subject to a covenant or binding agreement preventing further subdivision of the lot
A4 –We strongly support the restriction on the creation of new lots within 1km of high water mark. / This restriction will prevent ongoing fragmentation of land in the Zone
This is an important mechanism to avoid ribbon development, consistent with clauses 2.4.1 and 2.4.2 of the State Coastal Policy1996
14.4.4 – Tourist operations / Amend P1 to read:
P1 A tourist operation must:
a)complement the amenity, scenic values and landscape character of the area surrounding the site
b)not conflict with other tourist operations in the vicinity of the site
c)minimise impacts on natural values on the site and in the surrounding area
d)maintain the values associated with existing attractions that are located within the vicinity of the proposed tourism operation
e)be consistent with the local area objectives for visual character, if any / Where the proposal involves clearing of native vegetation, the Biodiversity Code will apply. As discussed below, we recommend changes to the Biodiversity Code to ensure that it provides protection for mapped and potential priority habitat and threatened vegetation.
Community Purpose Zone
17.4.2 – subdivision / Amend P1 to set a minimum lot size. Alternatively, amend P1 (e) to provide:
e) provide sufficient area and dimension having regard to the:
i) nature of the proposed use and development; and
ii) need to accommodate vehicles on the lot; and
iii) proximity of neighbouring residential development; and
iv) need to minimise vegetation clearance associated with the development; and
v)the character and density of surrounding lots
Rural Resources Zone
26.1.3 – Desired Future Character / Insert additional Statements:
Natural values will be promoted, protected and managed to ensure that these values are not degraded
Impacts on historic and cultural values of the zone will be minimised, and efforts made to promote protection of those values.
Use and development will be encouraged to integrate conservation of natural and cultural values into design and implementation