E-zone comparison

Description of E-Zones

The overall objectives of E-Zones are:

• Areas of special ecological, scientific, cultural or aesthetic attributes that require management in conjunction with other low impact uses, e.g. scenic protection areas, areas with contiguous native vegetation or forest cover.

• A transition between high conservation value land, e.g. land zoned E1 or E2 and other land such as that zoned rural or residential.

• Where rehabilitation and restoration of its special environmental qualities are the primary purposes.

• Highly constrained land where elements such as slope, erodible soils or salinity may have a key impact on water quality within a hydrological catchment.

The E-Zones are broken down into four zones, these are:

E1 National Parks and Nature Reserves

This zone is for existing national parks, nature reserves and conservation areas and new areas proposed for reservation that have been identified and agreed by the NSW Government.

E2 Environmental Conservation

This zone is for areas with high ecological, scientific, cultural or aesthetic values outside national parks and nature reserves. The zone provides the highest level of protection, management and restoration for such lands whilst allowing uses compatible with those values.

It is anticipated that many councils will generally have limited areas displaying the characteristics suitable for the application of the E2 zone. Areas where a broader range of uses is required (whilst retaining environmental protection) may be more appropriately zoned E3 Environmental Management.

E3 Environmental Management

This zone is for land where there are special ecological, scientific, cultural or aesthetic attributes or environmental hazards/processes that require careful consideration/management and for uses compatible with these values.

E4 Environmental Living

This zone is for land with special environmental or scenic values, and accommodates low impact residential development.

As with the E3 zone, any development is to be well located and designed so that it does not have an adverse effect on the environmental qualities of the land.

Why is Council proposing E-Zones

Council has determined the following criteria to identify suitable land:

• Category 2 Regulated Land – is constituted by land that was not cleared of native vegetation as at 1 January 1990. Category 2 Regulated land is further broken down into Sensitive Regulated Land and Vulnerable Regulated Land.

-Sensitive Regulated Land - This includes lands that are sensitive lands due to factors such as; the presence of wetlands, rainforests, critically endangered plants and ecological communities, or land that is subject to protection covenants such as conservation or incentive property vegetation plans.

-Vulnerable Regulated Land - This includes steep and highly erodible lands, riparian land and special category land (as declared).

• Existing contiguous native cover, i.e. heavily vegetated

• The area constitutes a portion of a regionally significant biodiversity corridor

• Existence of vulnerable and endangered species and vegetation communities

• Is steep sloping land prone to landslip where 18-degree slope or greater

• Significantly bushfire-prone

• Scenic landscape values (Tinderry’s & Yaouk)

• Erodible and infertile soils

• Class 7 and 8 land on the Land & Soil Classification

Council has identified land that may be suitable to be re-zoned from RU1 to E3 in some areas of the LGA. This applies in areas where the principal use is for environmental purposes and not primarily commercial primary industry production. There are undoubtedly rural properties and lots that have areas of cleared productive agricultural land and as well as heavily vegetated areas that are unable and unlikely to be grazed. In these cases, split zoning land is unavoidable. The priority candidate areas are:

• Tinderry’s south to Numeralla

• East of Numeralla

• South of Numeralla to Nimmitabel

• North of Shannon’s Flat

• Yaouk

• Snowy Plain west of Eucumbene River

• Varneys Range

Why E-Zones can be negative for landholders and farmers

1. E-zoned land is excluded from Par 5A of Local Land Services Act and therefore unable to benefit from Allowable Activities (Schedule 5A), there are other opportunities for landholders to manage their land, particularly in relation to bush fire. This is where landholders are able to clear for fence lines, tracks or other farming infrastructure, take timber for firewood or construction, and to remove planted native vegetation.

2. Where landholders wish to remove native vegetation they now have to apply for permit from Council if under the Biodiversity Offset Scheme threshold or go to the Native Vegetation Panel at a significant cost to the landholder.

   1. • Application through the Native Vegetation Panel requires a Biodiversity Development Assessment report (cost to landholder) and to use biodiversity offset credits or to pay an amount determined by the offsets payment calculator.

3. Many exempt developments will no longer be accessible to landholders or have had their size/s reduced requiring additional development applications at a considerable cost to landholders. For example: fowl houses; below ground water tanks; horse stables; windmills (except for electricity generation); cubby houses, garden sheds, gazebo’s and greenhouses over 20m2; farm buildings, holding yards, grain silos or bunkers. So while extensive animal agriculture might be permitted without consent, some infrastructure that goes with it requires approval – and could be rejected by Council.

4. Complying development, under the Rural Housing Code, is not permitted in the E3 Zone.

5. Access to the Land Management (Native Vegetation) Codes is removed by an E-Zoning. This is where landholders are able to apply for a certificate from the Local Land Services to authorise clearing. It also provides landholders the ability to remove listed invasive native species and remove regrowth following legal clearing activities allowing farmers and landholder ‘Continuing Use’ of their land.

6. E-Zones don’t have access to dual occupancy, intensive plant agriculture (ie: cropping for anything other than fodder), road side stalls, home based child-care, home businesses or home industry, or animal boarding and training establishments.

7. Landholders must rely on 'Existing Use Rights' where a development (with or without consent) is no longer allowed in the E-Zone. There is a provision stating that existing uses may cease if the use is abandoned for more than 12 months. Where this becomes a serious problem is following an event such as a fire, flood or drought. There are also issues surrounding the expansion of 'Existing Use Rights' as any enlargement or expansion or intensification of an existing use is expressly excluded from the 'Existing Use' clause of the Environmental Planning and Assessment Act 1979. Note: this excludes the temporary amendments made for Covid-19.

Allowable Uses of E3 Zoned Land Compared to RU1-Primary Production

RU1-Primary Production Allowable Development - Current

E3 Zoned Allowable Development and Land Use - Proposed

E4 Zoned Allowable Development and Land Use

Of note in E4 zoned areas, is the lack of permissible uses for any animal agriculture but farm buildings are allowed.

Important research links

The following link provides information about a new approach to environmental zoning on the Far North Coast to support farming and protect the environment.

The Northern Councils E Zone Review Final Recommendations Report aims to provide greater certainty for landowners, councils and the community on how environmental zoning will be applied. This methodology is mandatory for northern councils, but is only recommended for others.

https://www.planning.nsw.gov.au/Policy-and-Legislation/Environment-and-Heritage/Environmental-zones

Council have referenced some parts in the Strategy; these are as follows:

• whether the primary use of the land is considered to be for environmental conservation or environmental management and the land has attributes that have been verified to meet the relevant criteria.

• the primary use of the land is the main use for which the land has been used for the last two (2) years.

Key points from the recommendation which Council have not listed are:

• An E2 or E3 zone can only be applied to land with a primary use of environmental conservation or environmental management and, which has attributes that have been verified to meet the E zone criteria.

• The E zones will not include buffers to the vegetation attributes that meet the E zone criteria.

• Aesthetic values do not always rely on the presence of significant native vegetation, for instance agricultural landscapes can have aesthetic significance. The Department maintains its position that aesthetic values can be addressed through Development Control Plan provisions, a Scenic Protection Strategy, or the development application process, and therefore recommends the removal of aesthetic values as an attribute to be protected and managed by an E zone.

• Councils on the Far North Coast will not be permitted to use scenic values as an attribute for the application of an E2 or E3 zone or mapped planning controls.

• It is recommended that mapped planning controls can be applied for matters such as drinking water catchments, flooding, coastal risk areas and land subject to strict development controls such as steep land.

• The Department maintains its position that scenic protection is a matter best assessed and managed at development application stage, when details of a proposal are assessed and appropriate conditions can be imposed. Issues relating to scenic protection may be identified in a development control plan or Scenic Protection Strategy.

• The use of a Vegetation Map provides flexibility and an optional mechanism for the management of significant native vegetation, without having to apply an E zone.

The following table lists the criteria when applying E3 zones.