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Council: A tad premature perhaps

In what was a grand announcement on October 11th the community learnt of the NSW Department of Planning, Industry and Environment sign off of the Rural Lands Strategy Local Environmental Plan (LEP). In making the announcement Member for Bega, Andrew Constance, said "development will still go through the same rigorous assessment process it always has. However this Rural Lands Strategy will provide options and opportunities that support tourism and rural economic development, whilst continuing to adhering to state and federal planning and environment legislation." The Mayor was delighted in the announcement saying “This approval is the culmination of years of consultation and strategic planning". Those hearing the news would imagine that finally the nine years fought by the Mayor and her committee for planning controls, zoning changes, land uses and lot sizes were now in the bag and that the six State agencies who had put in strong objections had all acquiesced. The announcement was not surprising as only two weeks before the Councillors were told it was a done deal and as such they should sign off on a Development Control Plan that sits under the LEP. Next thing we hear (the following day) is that the NSW Department of Planning, Industry and Environment and Eurobodalla Shire Council "have today agreed to work together to resolve any discrepancies in the Rural Lands Strategy Local Environmental Plan (LEP), signed off on Friday 11 October 2019." Yes, signed off by the Minister, under the advice and trust of his own NSW Department of Planning, Industry and Environment staff. It turns out that there were some changes made to what Council thought would be signed and what was eventually signed. That presents a problem because Council had just adopted a DCP on the assurity by staff that nothing would change in the LEP. Turns out something did change .... but what? Well Council aren't telling. Some background : When preparing its Standard Instrument LEP so very long ago, Eurobodalla Shire Council identified significant areas of environmental land in the LGA. It proposed to zone these lands E3 Environmental Management in draft LEPs that Council exhibited in 2009 and 2011. These areas were deferred from the Eurobodalla LEP 2012 and remain zoned under the Eurobodalla Rural LEP 1987.

When making the 2012 LEP, the then Minister for Planning directed Council to prepare a strategy to inform the application of appropriate land use zones and other controls to these deferred and other rural lands.

Council prepared a rural lands strategy to inform the subject planning proposal. The strategy that Council came up with sought to provide further subdivision and development opportunities on rural and environmentally constrained land. The proposed approach to considering environmental impacts and bushfire protection measures in the strategy was to rely on the assessment of individual development applications rather than applying a strategic approach, which would give greater certainty to landowners. The Gateway determination issued on 31 October 2017 determined that the proposal should proceed subject to conditions. The planning proposal was due to be finalised on 30 April 2019.

Then, in accordance with the Gateway determination, the proposal was publicly exhibited by Council from 9 May to 22 June 2018. Council received 550 community submissions during the exhibition period.

We then hear that Eurobodalla Shire Council raised concerns about changes that were made to the LEP, without the involvement of Council, in response to a submission from the Rural Fire Service.

VIDEO: Ordinary Meeting of Eurobodalla Council - Date: 24 September 2019 - Discussion around the signing of the Draft LEP in reference to adopting the DCP

It turns out that there were some changes made to what Council thought would be signed and what was eventually signed. And what changes would those be? The Beagle understands that the changes affect quite a few blocks of land with restrictions and impacts on lot sizes and that the changes reflect the views of the RFS.

NSW Department of Planning, Industry and Environment have said that the changes will not affect "the vast majority of landowners" within the Eurobodalla Shire Council local government area.

We know that senior representatives from the Department have met with Council’s senior planning staff. Hopefully, at some point in time, the Council might explain to the community exactly what changes that were made. The LEP instrument has now been signed by the Minister and as such it can't be unsigned. Therefore whatever changes that have been made to the LEP by the NSW Department of Planning, Industry and Environment are now, theoretically, written in stone. For additional reading you might enjoy the NSW Department of Planning, Industry and Environment - Planning and Assessment Plan finalisation report dated September 24th 2019 So what of the recently adopted Eurobodalla DCP that was adopted after considerable debate where Councillors Mayne and McGinlay asked "What happens if we adopt this and the LEP changes?" "It would be very unlikely, based on my twenty odd years of experience in this role as a planner that a Minister would change an instrument without first running that past a council". Lindsay Usher - Eurobodalla Council meeting September 24th 2019

At the heart of it all appears to be the opinion of the RFS. While it is gratifying to learn that that Eurobodalla has finally signed off on a long overdue a Bush Fire Risk Management Plan (BFRMP) the failure to do so may be in the fact that the status of the bushfire prone land maps which are an integral part of this plan are of key importance, given that they are also statutorily required to be renewed every 5 years (see RFS guidelines, with relevant parts highlighted in yellow). The Eurobodalla bushfire prone lands maps have been in draft form since mid-2015, and if these 2015-vintage maps have been part of the recent approval process then they will in fact be coming up for renewal next year (2020). It is in fact quite possible that Council’s delay in finalising these draft maps since 2015 may have been a significant contributor to the long overdue renewal of the Eurobodalla BFRMP.

No doubt of relevance to the RFS would be that the 2015 maps may be unrepresentative of current conditions in the Eurobodalla. There is now widespread tree die-off occurring across many parts of southeast Australia as a result of the ongoing extreme drought (e.g. see https://aboutregional.com.au/bush-in-tsurvival-mode-as-dry-times-forecast-to-continue/, and it is unlikely that the 2015 maps will reflect the drought-induced vegetation conditions now extant in the 2019 Eurobodalla. It is notable that the RFS guidelines indicate that bushfire prone land maps should be updated more regularly than every 5 years if conditions have changed (see section 5, page 7), and even flag the possibility of annual updating under certain circumstances. The recent bushfire events in south east Queensland and northern NSW indicate the potential dangers of bushfire risk in southeast Australia, and there appears to be strong circumstantial evidence that Eurobodalla Council has not been vigilant in maintaining a state of preparedness regarding bushfire risk in the Eurobodalla. Instead, it seems to have been consumed with pushing through the RLS planning proposal, which does not reflect current accepted minimum best practice in regard to bushfire planning, by omitting a strategic bushfire assessment from the outset (despite this step being specifically requested by the RFS).

It is considered that this undue focus and haste to finalise the RLS has led to a situation where the supporting DCP was gazetted before the LEP was even finalised, and will apparently now have to be revised in the wake of changes to the finalised LEP. This poor planning process was highlighted by public submissions presented to Council on the day that the DCP was approved, and underscores Council’s unwillingness to heed professional planning advice. Why could they not wait for the LEP to be finalised followed by the supporting DCP?

Questions are now being asked: "Will the DCP, recently adopted on the assurity of the ESC Director of Planning that the LEP was all but signed, now need to come back before Council for want of waiting just two weeks?" "Exactly what are the changes and when will Council reveal these to the community?" "Exactly what has been achieved in nine years of push and shove by Council when the final determination of what happens in the Eurobodalla is made by NSW Department of Planning, Industry and Environment?" "Were the Councillors premature in adopting the DCP?" "Is Liz Innes, her committee and her Council able to clearly state exactly what was achieved for Eurobodalla that would not have been forthcoming under the standard State planning instruments that control all development in NSW and have been available to every other council in NSW who signed off their LEPs in 2012?"

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