Objection to Repeal of North Coast Regional Environmental Plan

Hi everyone,
DoPE are proposing on getting rid of the North Coast Regional Environmental Plan (1988), apparently because it requires a variety of environmental values to be protected in environmental zones in Local Environmental Plans.  This is part of their plan to stop far north coast Councils from implementing their environment zones. It would be great if some others made submissions.
Submissions due 09/07/2015 and can be made online at: http://planspolicies.planning.nsw.gov.au/index.pl?action=view_job&job_id=6839

 Attached is NEFAs submission                   Dailan Pugh

Objection to Repeal of North Coast Regional Environmental Plan

NEFA strongly objects to the repeal of the North Coast Regional Environmental Plan (1988)
as this would constitute a significant weakening of environmental values and criteria that
were used to identify environmental clauses and zones in north coast Local Environmental
Plans (LEPs).  The principal problem is that the Government intervened to stop Tweed,
Byron, Ballina, Kyogle and Lismore Councils from implementing their environmental zones
and clauses, relegating them to limbo as “deferred matters”, and now the removal of criteria
the Councils used to identify the “deferred” environmental zones and clauses will undermine
NEFA are concerned that the North Coast REP is being deleted after 27 years of operation,
and before the “deferred matters” are resolved, specifically to retrospectively reduce the
criteria and undermine the justification for the proposed E Zones and clauses. This appears
to be part of a concerted attack by the National Party and DoPE on environmental protection
in one of Australia’s and the world’s biodiversity hotspots.
NEFA’s concerns are heightened by the fact that DoPE’s removal of E zones and
environmental clauses from the exhibited LEP’s appears to have been illegal.
The North Coast REP needs to be retained in force until after the fate of the “deferred
matters” is determined and the E zones and environmental clauses are restored to far north
Doing Over the North Coast
The North Coast Regional Environmental Plan now only applies to the deferred lands in
Tweed, Ballina, Kyogle and Lismore LGAs. These are lands that the local Councils have
identified as being of the highest conservation value within their LGAs. Byron LGA also had
its environmental protections removed, though also lost coverage of its deferred areas by the
In September 2012, at the behest of our then National Party representatives, Don Page and
Thomas George, the Minister for Planning announced that there would be a six months
review of E zones just for Tweed, Byron, Ballina, Kyogle and Lismore LGAs. It took the
Government a year to complete the review which supported the protection of high
conservation value vegetation in E zones in LEPs. Because the National Party did not like
the outcome, one and a half years later E zones are still in limbo.
In accordance with their Minister’s instructions the DoPE removed all environmental zones
(E2 Environmental Conservation, E3 Environmental Management and E4 Environmental
Living zones) from far north coast LEPs.  They also removed a variety of clauses aimed at
protecting values such as streams, steep slopes, endangered ecological communities and
wildlife corridors, for example removing from Byron’s LEP clauses 6.12 Riparian land and
watercourses, 6.13 Development near the E2 or E1 zone, and 6.14 Biodiversity (which
applied to wildlife corridors and EECs).
The E Zones identified in these LEPs have become “deferred matters” excluded from the
new LEPs and governed by the zones and requirements of the old LEPs.  This means that
areas identified as having the highest conservation values are still allowed to be used for
intensive agriculture and other inappropriate activities and developments.
Ballina Council notes:
“The consequence of the review is that the State Government has not allowed
Council to apply environmental based zones in the shire through the new local
environmental plan. This means that Council has not been able to recognise the
significant environmental values, features and assets identified by Council’s
research, technical studies and broad consultation as being important to the Ballina
Shire community in the new plan.
The implication of the Parsons Brinkerhoff interim reporting and the Department’s
interim response is that the Ballina Shire community will have a vastly reduced
opportunity to recognise environmental values in its local environmental plan. In
particular, the suggested approach arising from the review is that Council will not be
able to zone areas of coastal, scenic, urban buffer or water catchment values for
environmental protection purposes unless there is an ecological value also
associated with the land. The Department has further recommended a reduction in
the use of other planning tools to recognise such important values.
The approach suggested by the current E zone review documentation is entirely
inconsistent with the historical planning approach in Ballina Shire, which has
operated successfully since 1987. The State Government’s suggested approach is
also inconsistent with the current legal requirements in NSW for local environmental
plans to recognise a variety of environmental values in local planning instruments.
Inability to recognise environmental attributes (inclusive of ecological, scenic
amenity, coastal, urban buffer and drinking water catchment attributes) by way of
zoning weakens the planning framework for addressing these matters. Moreover, this
position weakens the existing structure and function of the planning framework
presently applying to environmental areas in Ballina Shire under the Ballina LEP
The repeal of the North Coast Regional Environmental Plan is intended to further weaken
the planning framework for addressing environmental attributes in all far north coast LGAs.
Justice Sheahan’s decision to declare the North Lismore Plateau rezoning “invalid and of no
effect” on the grounds that the exhibited Environmental (E) Zones were removed from the
adopted Local Environmental Plan (LEP) amendment pending the outcome of the E zone
review, brings into question the legal validity of the LEPs for Tweed, Byron, Ballina, Lismore
and Kyogle because they all had their exhibited E zones similarly removed.
Justice Sheahan stated “It would have been reasonable for the public to assume, on the
basis of the exhibited proposal, that the land proposed for environmental zones would be
subject to strict controls associated with that zoning. The maintenance of the rural zoning
over those lands has significant legal and practical consequences in respect of the uses to
which that land may be put, and how it is to be managed”
In light of Sheahan’s judgement that “the absence of the environmental zones reflected a
very substantial change in the planning regime” and thus invalidated the LEP amendment, it
is evident that all our Council-wide LEP’s are similarly legally invalid.
Getting rid of the North Coast REP is part of this illegal attempt to limit environmental
protections on the far north coast of NSW by retrospectively reducing the criteria and
justification for the proposed E Zones.
The Need for the North Coast Regional Environmental Plan
The North Coast Regional Environmental Plan specifies objectives and regional policies, for
the future planning and development of land within the region, including to guide the
preparation of local environmental plans. The North Coast Regional Environmental Plan is
identified as one of the key documents underpinning the development of E Zones and
environmental clauses by Byron, Lismore and Ballina Councils, and should have been for
Tweed and Kyogle Councils.
For example the North Coast Regional Environmental Plan identifies requirements to:
 retain existing provisions allowing the making of tree preservation orders,
 not alter or remove existing environmental protections without undertaking detailed
 include significant areas of natural vegetation including rainforest and littoral
rainforest, riparian vegetation, wetlands, wildlife habitat, scenic areas and potential
wildlife corridors in environmental protection zones,
 include wetlands, fishery habitats and sufficient land to separate adjoining land uses
from the wetlands and fishery habitats in an environment protection zones,
 identify any coastal hazard areas, prohibit development that is at immediate risk from
coastal processes, and minimise the visual impact of development near the shore,
 locate urban and tourism development on land that is free from flooding, land
instability, coastal erosion, acid sulphate soils, bush fire risks, aircraft noise pollution
and other environmental hazards.
DoPE’s claims that these requirements are covered by more recent documents is not
justified.  DoPE’s claim that “The underlying zones derived from previous LEPs continue to
apply in these areas and provide suitable protection consistent with the REP”, is clearly
untrue as the assessments undertaken by Councils identified numerous additional areas
needed to satisfy the REP’s criteria that were not previously zoned for protection. When
most of the older zones were identified the data available for delineating zones was limited,
with little systematic or comprehensive mapped data available on conservation values.
DoPE’s Practice Note PN 09-002 (Environmental Protection Zones) states that “in most
cases, council’s proposal to zone land E2 needs to be supported by a strategy or study that
demonstrates the high status of these values”. The removal of one strategy will reduce the
weight given to particular attributes, and will remove the need to protect other values not
captured in other strategies.
The deletion of the North Coast REP is apparently intended to undermine the basis of the E
zones and environmental clauses identified for the Tweed, Byron, Ballina, Kyogle and
Lismore LGAs.  We consider that this SEPP should not have been removed from deferred
lands in the Byron LGA and should be re-applied until the zoning of the deferred areas is
Is the Far North Coast of NSW less deserving than Elsewhere?
The forests of the North Coast of NSW have been identified as being of outstanding
international, national and state value for threatened biodiversity.  They encompass the heart
of the Gondwana Rainforests of Australia World Heritage property.  They are part of one of
the world’s 35 biodiversity hotspots because of their exceptional species endemism and the
threat of habitat loss. They include the NSW section of one of Australia’s 15 recognised
biodiversity hotspots, the ‘Border Ranges North and South (Queensland and New South
Wales)’. They also contain the most plants and animals, including those threatened with
extinction, in New South Wales.
Significantly, the E zone review applies only to five council areas in Northern NSW whilst
over 130 Council’s in the State have been allowed to fully complete their LEPs inclusive of
environmental based zones. The decision to stop the far North Coast from protecting its
exceptionally high conservation value vegetation was purely political bastardry and was not
based on the region’s environmental merits, because this region is the most biodiverse in
NSW and part of one of the world’s biodiversity hotspots.
The Local Government areas of Tweed, Byron, Ballina, Lismore and Kyogle encompass the
spectacular volcanic remnants of the Tweed Shield Volcano, centred on Mount Warning, and
the Focal Peak Shield Volcano, centred near Mount Barney.  The volcanic ranges support
rainforests, and the sedimentary soils of the valleys eucalypt forests and wetlands.
Heathlands, swamps, melaleuca wetlands, saltmarshes and mangroves characterise coastal
The forests of north-east NSW have been identified as part of one of the world’s 35
biodiversity hotspots because of their exceptional species endemism (at least 1,500 endemic
plant species, i.e., 0.5% of all known species) and habitat loss (70% or more of an area’s
primary vegetation cleared) (Williams et.al. 2011).
These Local Government areas are part of “Border Ranges North and South”, one of
Australia’s 15 outstanding biodiversity hotspots, areas which are rich in biodiversity but also
under immediate threat.  The supporting information states:
This sub-tropical and temperate hotspot is one of Australia’s most diverse areas –
and it is the most biologically diverse area in New South Wales and southern
Queensland. It has a variety of significant habitats: subtropical rainforest, wet
sclerophyll forest, mountain headlands, rocky outcrops and transition zones between
These habitats support a huge variety of bird and macropod species. Many are rare
or threatened …
This region’s high population growth, with associated urban and tourist developments
along the coast, is a major cause of habitat loss and fragmentation. Although most
remaining natural areas are protected, they are under considerable threat from
weeds, fire and recreational use.
The rainforests of the area are of international significance as evidenced by the inclusion of
many of the National Parks in the World Heritage Gondwana Rainforests of Australia, with
more recent national parks identified as qualifying for addition. The Big Scrub once covered
75,000ha and was Australia’s largest area of subtropical rainforest. It is estimated that there
is now only some 664 ha of the Big Scrub remaining as small fragments scattered across its
As well as being identified as one of Australia’s biodiversity hotspots, these landscapes have
been branded as Australia’s Green Cauldron, a centrepiece of national tourism as one of
Australia’s15  ‘National Landscapes’ – “places that capture the essence of our country – our
most inspirational environments offering world class natural and cultural experiences”.
Tourism is a major driver of the regional economy.
Too much has already been lost, all remaining native forests, and other ecosystems, on the
far North Coast of NSW need to be managed to limit impacts and retain or regain natural
processes. There is a need to increase the area of native vegetation, maintain and enhance
linkages between remnant areas, and to ensure the retention and enhancement of remnant
In accordance with the North Coast REP, it is particularly important to identify the high
conservation value vegetation and habitats remaining in the region, along with potential
wildlife corridors, and ensure they are appropriately zoned and protected. Getting rid of the
North Coast REP will make gaining needed protections harder, not easier.