Intensive agriculture and the development control process

Introduction

Most primary producers are not accustomed to seeking development approval from governments when going about their farming and grazing business. Largely this has been because many traditional agricultural activities do not require any approvals. Primary producers also often feel that, because their land is privately owned, any government involvement in management of that land is ‘interference’. However, governments have a clear role to ensure that land use on private property does not impact adversely on the surrounding environment.

Other forms of primary production such as mining and forestry, as well as all manufacturing industries, have for many years been regulated closely by governments. However, farming and grazing has been almost entirely exempt from any environmental and planning regulations. This is now changing. Understandably, most farmers do not have a knowledge of the planning and development control systems that operate throughout NSW. Often primary producers first confront some of these planning and environmental regulations when they consider diversifying into alternative - and generally more intensive - agricultural industries.

These regulations can seem bewildering and complex when first encountered. Basically what these controls are seeking to do is to ensure any development does not adversely affect surrounding land uses - or impact in an unacceptable way - on the environment.

Well sited, planned and managed developments should have little difficulty in conforming with the regulations.

Development control and the planning system

Local Environmental Plans (LEPs). In NSW the Environmental Planning and Assessment Act 1979 (EP&A Act) provides the framework for planning legislation. Under this Act local councils prepare local environmental plans (LEPs). The LEP should be the first reference to determine what planning controls, if any, there may be on a particular piece of land. Your local council can supply a copy of the LEP and assistance in interpreting it. In some council areas instruments established before the EP&A Act may still be in force and operate similarly to an LEP.

Designated Development and EISs. The EP&A Act has regulations which list particular types, sizes and locations of developments which have greater potential for causing environmental impact as designated development. When development is designated it must undergo a high level of scrutiny before being approved. Such developments must include an Environmental Impact Statement (EIS) with the application. For example, intensive livestock designated developments are:

• cattle feedlots greater than 1000 head, or
• facilities which house more than 4000 sheep, or
• 400 horses, or
• 2000 pigs, or 200 breeding sows.

The location of the development may also mean it is designated. Piggeries greater than 200 pigs or 20 breeding sows, or poultry farms of any size, are designated development when located in a sensitive environment - such as a drinking water catchment.

SEPPs and REPs. The EP&A Act also provides for State Environmental Planning Policies (SEPPs), and Regional Environmental Plans (REPs). Most SEPPs do not relate directly to intensive agriculture.

SEPP No. 30 - Intensive Agriculture is an exception. This policy is a State wide ‘catch-all’ which ensures that all feedlots greater than 50 head and all piggeries of more than 200 pigs - or 20 or more sows - must receive consent from local council. The SEPP also covers composting facilities.

REPs are in place in some areas of the State such as the Hunter Valley, North Coast, Murray and Sydney regions. They may have implications for some types of intensive agriculture pursuits. Local councils in these areas generally will be able to provide information on the requirements of any relevant REPs.

Determining if development consent is required

The first step in finding out what may be required of you, before commencing an intensive agriculture enterprise, is to consult the environmental plan for your local government area.

The maps which accompany the plan will tell you what zone the site is in. Rural zones are generally referred to as either 1(a), 1(b) or 1(c). The zone tables, usually at the front of the LEP will indicate whether the land use is either: allowed without consent; requires consent; or is prohibited*. For example 'agriculture' is almost always allowed without consent in rural zones which is why most primary producers generally have not needed to consult LEPs. On the other hand, most types of intensive livestock agriculture generally require consent - that is approval - from council in general rural zones. In some rural zones, such as rural residential zones, it is often prohibited. Intensive livestock agriculture is treated this way because of its tendency to be associated with odour and effluent problems.

* Some newer LEPs will also contain lists of 'Exempt' and   'Complying' development.

The way in which intensive agriculture industries are referred to in LEPs varies from council to council. Some modern LEPs separate ‘intensive livestock agriculture’ from ‘intensive plant agriculture’. Many older LEPs only refer to ‘intensive livestock agriculture’, or ‘intensive livestock keeping’. With these older types of LEPs, plant or horticultural type intensive agriculture does not require formal development consent from council.

All specific terms used in LEPs will be defined in a separate section of the document. These definitions can be fairly general and clarification should be sought from council staff. For example ‘intensive livestock keeping’ is often defined in terms of the method of feeding such as ‘where animals are fed wholly or substantially on prepared or manufactured feed.’

Development Application. If it has been determined that a proposed intensive agriculture development requires consent from the consent authority (generally the local council), a development application and accompanying documentation must be submitted to the consent authority.

Planning Focus Meeting. For proposals where there are a large number of issues to be considered, a planning focus meeting is recommended before a Development Application is submitted. A planning focus meeting is held on-site between:

• you (the proponent),
• your consultants,
• representatives from the local council,
• appropriate State Government agencies,
• other potentially involved parties.

The meeting will help the proponent identify the issues to be covered in the development application and will often save time and money.

NSW Agriculture has staff available to provide technical advice on particular intensive agricultural enterprises at the design and management stages. The department's Agricultural Environment Officers can assist in coordinating input from State agencies and consent authorities through convening a planning focus meeting, or provision of general advice on the development control process. Contact details are given at the end of this Agnote. These officers have available planning guidelines for cattle feedlots, as well as turf farming, intensive poultry and rabbit farming.

Determination. Once the development application has been submitted to the consent authority it will be reviewed, usually with assistance from other sources - generally State Government departments - and a determination will be made. The application will be either:

• approved unconditionally,
• given approval with conditions, or
• refused.

If the consent authority refuses consent, or attaches conditions to which the applicant objects, the applicant can appeal to the Land and Environment Court within 12 months of the decision. In the case of designated development anybody can make written submissions to the consent authority about the development. By doing so they can subsequently appeal to the court if they object to the decision of the consent authority.

Review of Environmental Factors. In circumstances where development consent is not required under the LEP, but an approval is required under other legislation, the provisions of Part 5 of the EP&A Act apply. This means that before granting the approval or licence under the other legislation, the government authority must consider whether the proposed development is likely to significantly affect the environment. If the government authority decides that this is the case it may require a Review of Environmental Factors to be prepared by the applicant. This document will be similar to the Statement of Environmental Effects described below.

Even if development consent is not required, any intensive agriculture operation should still be operated in accordance with best practice in relation to odour, effluent or nutrient management and resource use.

The development application

Statement of Environmental Effects (SEE). The development application generally comprises a form from council accompanied by a document which should provide a description of what is proposed, assess the likely impacts of the proposal on the environment and justify the undertaking of the enterprise. This document is known as a Statement of Environmental Effects (SEE), or for designated development, an Environmental Impact Statement (EIS). The Department of Urban Affairs and Planning have available guidelines for EIS preparation for a range of general developments. There are a series of guidelines on intensive livestock agriculture - that is cattle feedlots, piggeries and poultry farms. These guidelines will be of use for both SEE and EIS preparation.

There is no standardised format for preparation of a SEE. The following outline, however, provides a guide to what should be included:

1. Description of the proposal including:

• reason for undertaking the proposal,
• size of the operation - eg. stock numbers or area under production,
• production targets,
• production and/or processing facilities (if any),
• water and power supply, road access and proposed truck movements ,
• an outline of any construction to be undertaken,
• plan for the storage and disposal of wastes eg. for livestock enterprises - dead animals, manure, sludge and effluent,
• emergency contingency plans eg. power failure, exotic disease etc.

2. Site description including:

• site diagram with the layout of facilities including any waste storage and disposal areas,
• relationship with existing land uses on the site and surrounding land uses eg. distances to any houses, property boundaries or watercourses,
• whether the proposal is consistent with any existing or draft SEPP, REP or LEP,
• topography, drainage and flooding pattern, vegetation, soil type and groundwater depth (particularly where there is on-site effluent/manure disposal).

3. Consideration of environmental issues and proposed mitigation measures including an environmental management plan for issues such as:

• water quality, drainage and water supply impacts,
• erosion and sedimentation,
• impacts of any on-site effluent, manure or dead animal disposal,
• health risks assessment (if animals are being processed on site for human consumption),
• amenity issues including noise, odour and visual impacts,
• impacts on native vegetation and if relevant, threatened species, populations, ecological communities and their habitats,
• list all approvals and licences required.

4. Summary of how potential environmental impacts or land use conflicts will be minimised and managed.

Additional information should be included for large developments or locations which are in environmentally sensitive areas. This may include:

• monitoring of water quality,
• erosion and sedimentation plans,
• additional traffic generated, adequacy of existing roads.

Table 1. Some issues related to intensive agriculture that require particular attention

Other environmental legislation

In addition to the planning system under the EP&A Act, there exists a range of other environmental legislation such as the Native Vegetation Conservation Act and the Threatened Species Conservation Act. There is also a range of former pollution control legislation now incorporated into the Protection of the Environment Operations Act. The requirements of these Acts apply to all types of agricultural land uses but the pollution legislation is particularly relevant to intensive agriculture pursuits.

The Protection of the Environment Operations Act makes it an offence to cause water, air, noise or land pollution. The Act also requires a range of activities and premises to be licensed, including some intensive livestock keeping premises. As with designated development under the EP&A Act, the licensing applies to larger scale enterprises ie.

• more than 1000 head cattle feedlots,
• more than 2000 head piggeries,
• more than 250,000 bird poultry farms and
• milking facilities which accommodate over 800 animals.

The details and administration of the Protection of the Environment Operations Act is complex and further information should be sought from the NSW Environment Protection Authority, or your local council.

Primary producers considering small to medium scale intensive livestock enterprises - or almost any type of intensive plant agriculture enterprise - will not need to be licensed, however local government will regulate their activities through the provisions of the Protection of the Environment Operations Act.

Water Act. Many intensive agriculture industries require a reliable source of water. Access to either ground or surface water should be checked with the NSW Department of Land and Water Conservation, and relevant applications lodged for licences under the Water Act.

Other Acts. In addition to the Protection of the Environment Operations Act and the Water Act there are a number of other pieces of legislation which could be relevant to intensive agriculture developments. Generally these are only in specific circumstances.

Integrated Development. As part of a streamlining of the development approval process which occurred during 1998, the State Government decided that licensing and approvals under certain pieces of environmental legislation were to be determined at the same time as development consent is determined. Development which requires one of these approvals or licences is known as Integrated Development. Table 2 (below) summarises the environmental legislation for which approvals or licences may need to be sought as part of integrated development.

Table 2. Additional approvals and licenses that may be required

Summary

The planning and development control system is complex to enable all possible affects from a range of different developments to be assessed. Not all aspects will be relevant to small scale agricultural developments and the use of consultants to assist in the process is common.

Well sited, well managed enterprises generally should have few major problems receiving development consent, and meeting standards set by environmental legislation.

Being able to demonstrate a particular enterprise is environmentally sustainable will not only satisfy regulations and assist overall farm sustainability, but increasingly it is being demanded of primary producers from consumers and the community.

Further information

• NSW DPI offices