The concept of land use zones has been around since federation, but in 1979 they were embodied in the NSW Environmental Planning and Assessment Act, which gives local Councils the power to make Local Environmental Plans (LEPs) to achieve the objectives of the act, which include the protection of the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats.
In 1987, Ballina Council adopted its first Ballina Local Environment Plan (BLEP), which included seven distinct Environmental Protection Zones designed to protect areas of environmental significance, but also areas of scenic amenity and of other public value. These were set out in Section 7 of the BLEP and are sometimes called "7 Zones") - they included:
- Zone 7 (a) Environmental Protection (Wetlands) Zone
- Zone 7 (c) Environmental Protection (Water Catchment) Zone - designed to protect the drinking water catchment from unsuitable development
- Zone No 7 (d) Environmental Protection (Scenic/Escarpment) Zone
- Zone No 7 (d1) Environmental Protection (Newrybar Scenic/Escarpment) Zone
- Zone No 7 (f) Environmental Protection (Coastal Lands) Zone
- Zone No 7 (i) Environmental Protection (Urban Buffer) Zone - designed to protect the area between Alstonville and Wollongbar from development
- Zone No 7 (l) Environmental Protection (Habitat) Zone
Local planners probably didnt realise it at the time, but this bespoke and placed-based approach to land use was highly effective at protecting areas of environmental significance in the Ballina Shire. Little did they know what was to come...
In the late 2000's, the NSW State Government decided to require Councils to adopt a standardised template LEP across the State. This is understandable given that coordinating planning across 128 Councils each with their own LEP was becoming incresingly unweildy! A notable difference in the standard LEP instrument was that there were much fewer Environmental Protection Zones. They were:
- Zone C1 National Parks and Nature Reserves
- Zone C2 Environmental Conservation
- Zone C3 Environmental Management
- Zone C4 Environmental Living
Importantly, the 2012 standard instrument had no way to protect areas based only on their scenic amenity (only their vegetation type and primary land use). This was problematic for the Balina Shire because our current "7 Zones" were designed specifically for this purpose.
Nonetheless, Ballina Council went about conslidating the 1987 LEP with the 2012 standard template. As expected, there pushback from different groups, including environmentalists, who believed the new E-Zones were insufficient and farmers and rural landowners, who believed the new E-Zones were too restrictve and opposed them being applied to privately owned rural land.
This all came to a head in September 2012 when the then Planning Minister Brad Hazzard, with the support of the then Member for Ballina Don Page, recalled the E-Zones in five Northern Rivers Councils (including Ballina) and committed to reviewing them, with a view to developing a more balanced approach to environmental protection and agriculture.
From this point, and until this day, all land subject to this review is referred to as "deferred matters" land and maintains its old zoning under the 1987 Ballina Local Environment Plan.
That review, which came to be known as the Northern E-Zones Review was supposed to take a few months, ended up taking three years and its final recommendations were released at the end of 2015. It included revised land use tables for what was an wasn't permissable in each zone and more stringent directives for when they could and could not be applied.
One of the most notable changes recommended in the review, was the expansion of agricultural land use within an Environmental Protect zone. For example, the highest form of agriculture (known as "extensive agriculture") was now permissable without consent in a C3 zone and permissable with development consent in a C2 zone. Ballina Council then had to digest the implications of the Northern E-Zones Review for the Ballina Shire, given that it would have to shoehorn 7 place-based environmental protection zones in the 1987 LEP into 4 new zones were agriculture was widely permissable and the protection of scenic amenity was not possible.
In 2017, Ballina Council made the controversial decision not to adopt the new E-Zones in the 2012 standardised LEP and to continue to apply to old zoning under the 1987 LEP (see excerpt from the April 2017 Meeting below.
This remains the position of the Council until this day and we continue to maintain a dual LEP system, with all deferred matters land, including land of environmental significant, zoned under the old 1987 LEP, and all other land zoned under the new 2012 LEP.
Final Note: In December 2021 E-Zones were re-named Conversation Zones (sometimes called "C Zones") - this was a superficial change only because the term E-Zones was used for another type of zone being Employment Zones.
In April 2021 Council accepted an offer of funding from the Department of Planning and Environment to progress the integration of deferred matters land, excluding that which had a 7 (Environmental Protection) zoning under the old 1987 LEP.
This resulted in a Planning Proposal known as the Conservation Zone Review, which sought to progress the integration of deferred matters land in the Ballina Shire, with a focus on land that has one of a number of "rural" zones under the old 1987 LEP but which in fact meets the criteria for a Conservation Zone.
The image below shows to 730 lots that comprise the Conservation Zone Review and the proposed new zone under the 2012 LEP
During the public exhibition period, the Conservation Zone review recieved a significant amount of opposition for rural landowners whose land was proposed for a C2 Zone. The main objectives were restrictions on agricultural land use, and the belief that having a C2 zone applied to their land would reduce the value of their property. Council set about scheduling hundreds of 1-1 meetings with rural landowners to clarify the impact of the proposed changes for their specific property.
Another important thing to note was that at the time of the Conservation Zone Review, the C2 and C3 zones didn't actually exist in the 2012 BLEP. Council hadn't needed them until this point because the previous Council had decided not to adopt them.
The recommendation to adopt C2 and C3 zones into the 2012 BLEP came about because of a related but distinct issue of land at Burns Point Ferry Road on the Richmond River floodplain in West Ballina, which this Council has been attempting to re-zone as C2 because of its significant ecological values (you can read more about this issue on my website here).
Despite recognising the environmental significance of the Burns Point Ferry Road site and the overwhelming support from the community that it needed to be protected, in June 2023, on the casting vote of the Mayor, Councillors attempted to defer a decision on the adoption of the C2/3 Zones into the 2012 LEP in order to prevent from being applied to rural land subject to the Conservation Zone Review. The following month, following strong objections from the community, this decision was overturned and Council agreed to adopt the C2/3 Zones into the 2012 LEP and re-zone the land of Burns Point Ferry Road to C2 (Environmental Protection).
Realising that the evidence-based and lawful application of Conservation Zones to privately owned rural land was inevitable, Cr Eva Ramsey moved a Notice of Motion at the September meeting that would prevent Council from applying Conservation Zones to rurally zoned land without the consent of landowners (this is discussed in more detail in my blog here). The ammended resolution that was finally passed on the casting vote of the Mayor is shown below:
The following month, dissenting Councillors filed a recision motion, which gave the Department of Planning and Environment an opportunity to comment on the resolution. Their response was nothing short of scathing, describing the resolution as "contradictory, consistent and lacking in planning merit" and "setting a dangerous precedent for planning decisions in the Ballina Shire. I've included the full response from the Department of Planning below.
This resolution means that the evidence that informed the decisions about Conservation Zones (which was due to be considered by Councillors in a November 2023 committee meeting) will never be tabled.
This unprecedented, and ultimately unlawful approach to land use zoning would effectively defer Council's zoning powers to private landowners, which is in stark contradiction to the public interest principle that is central to planning legislation.
In November 2023, bound by the standing resolution, Council staff recommended that the Conservation Zone review planning proposal be seperated into a number of stages, dealing with the uncontested and public land first and initiating a subsequent planning proposal to deal with the contested land:
Stage 1: Expected completion date - mid 2024
Application of a C2 zone (and other zones) to properties where landowners have consented to a C zone or where consent is subject to a nonsignificant agreed amendment and application of rural zones to lots not subject to a proposed conservation zone.
Stage 2: Expected completion date - end 2024 or later
Transition lots subject to objections (where landowners do not opt into a C zone) to the most appropriate equivalent zone under BLEP 2012 applying Council’s methodology.
Future stages - ??
Potential incorporation of some lots where owners have indicated partial support for a C2 zone subject to location amendments, and not finalised with in Stages 1 & 2. And the application of a C3 zone to lots based on negotiated outcomes.
This means that a process that should have been completed in 2012 and subsequently in 2023 will now drag on for years.
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