fact sheet Breese Parade Forster PO Box 450 Forster NSW 2428 phone 02 6591 7222 fax 02 6591 7200 email council@greatlakes.nsw.gov.au website www.greatlakes.nsw.gov.au INFORMATION REGARDING 1(A) RURAL LAND IN NORTH ARM COVE, PINDIMAR, BUNDABAH, CARRINGTON AND HAMILTON VILLAGE LOCALITIES This information sheet has been prepared for land owners or perspective purchasers of 1(a) Rural Land in the North Arm Cove, Pindimar, Bundabah, Carrington and Hamilton Village localities. The purpose of this information sheet is to advise you of the restrictions that may apply to the erection of buildings on 1(a) Rural land in the North Arm Cove, Pindimar, Bundabah, Carrington and Hamilton Village localities and to inform residents of the penalties that may apply to unlawful development constructed on these lands. The information in this sheet is NOT to be construed as either town planning or legal advice. It is important that you obtain your own town planning, legal or other advice and satisfy yourself about your rights and obligations in respect of any land holdings you might have in the above areas. The information outlined in this document is general in nature and therefore is not specific to any individual circumstance. Council is not bound by what is contained in this document which is for general information purposes only. This information is current as at 1 June 2011 and is subject to change without notice. CAN I BUILD A DWELLING ON 1(A) RURAL LAND? If your land is more than 40 hectares and it is zoned 1(a) Rural then you are able to apply to Council for consent to build a dwelling. If your land is less than 40 hectares Council cannot grant consent to the construction of a dwelling under the provisions of the Great Lakes Local Environmental Plan 1996. If your land is only marginally less than 40 hectares, an objection to the 40 hectare standard under State Environmental Planning Policy 1 may be lodged with a Development Application for the construction of a dwelling. These applications are considered on their individual merit and there is no guarantee of an approval being granted. If an application for development consent is refused you have a right to appeal to the Land & Environment Court. In the event that you wish to refer to the planning document that outlines Councils requirements in relation to the construction of a dwelling on lands zoned 1(a) Rural then you are invited to refer to The Great Lakes Local Environmental Plan 1996 which sets out the objectives of the 1(a) Rural zone. The Great Lakes Local Environmental Plan also outlines what development is permitted without development consent, what is permitted only with development consent and what is prohibited. Your attention is directed to Clause 19 of Great Lakes Local Environmental Plan 1996 which provides that Council cannot generally grant consent to a dwelling on land except where the land has an area of 40 hectares or more. A Page 1 of 5
copy of the Great Lakes Local Environmental Plan 1996 may be downloaded from the Council website www.greatlakes.nsw.gov.au Council officers undertake regular inspections in the North Arm Cove, Pindimar, Bundabah, Carrington and Hamilton Village localities to ensure that buildings that have been approved or lawfully constructed as sheds or outbuildings are not used as dwellings. It is unlawful to use a building that has been approved as a shed (or similar) for the purpose of a dwelling. It is also unlawful to alter a shed or an outbuilding to make it capable of being used as a dwelling. Council reserves its rights to take legal proceedings (including criminal proceedings) against any person who engages in undertaking unlawful development. We advise that severe penalties of up to $1.1 million apply for the carrying out of an unlawful development. Council has been recently successful in prosecuting unlawful activity of this nature in the Land & Environment Court (Great Lakes Council vs Spalding). In this instance a fine and a cost order were imposed by the Court. OUR MESSAGE IS CLEARLY please do not construct any building without first obtaining the proper consents for this activity. CAN I CLEAR TREES ON 1(A) RURAL LAND WITHOUT COUNCIL CONSENT? There are a number of restrictions relating to the clearing of trees including the following: The Great Lakes Tree Preservation Order prohibits the clearing of trees other than in very limited circumstances. It applies to all types of trees whether they are native or otherwise and it only permits clearing trees without consent in very limited circumstances. We strongly advise that you seek your own advice in relation to your individual situation to ensure that the works that you propose to undertake satisfy those limited circumstances whereby trees may be removed without consent. You should always take any steps necessary to ensure that the works that you propose satisfy the requirements of the legislation. When in doubt it would be prudent to apply for Consent from the appropriate authority for the specific purpose for clearing trees because, if you undertake this activity without consent and it is subsequently found that it was illegal, you may be liable for fines of up to $1.1 million. A copy of the Tree Preservation Order can be obtained from Council or downloaded from the Council web site: www.greatlakes.nsw.gov.au The Native Vegetation Act also controls clearing of native vegetation on rural land. Severe penalties of up to $1.1 million apply for clearing without consent. Page 2 of 5
The Office of Environment and Heritage should be consulted if you propose to clear any native vegetation. Information on the Native Vegetation Act can be sourced on the web by going to http://www.environment.nsw.gov.au/vegetation/nvmanagement.htm Once you have consent to clear native vegetation under the Native Vegetation Act you may still require consent under Council's Tree Preservation Order before any work begins. In other words: holding a consent under the Native Vegetation Act does not mean that consent for clearing under the Tree Preservation Order is not also required and vice versa. You should also be aware that the area may contain threatened species of flora, fauna habitat and threatened ecological communities under the National Parks and Wildlife Act and in the event any of these are damaged, even unintentionally, large penalties also apply. Council and other government authorities regularly use satellite imagery and aerial photographs to determine what native vegetation has been cleared. If the information discloses the clearing of trees or other vegetation unlawfully it can be expected that the Council and other government authorities may prosecute the person or persons responsible. If trees or vegetation are removed unlawfully to allow a shed to be built Council reserves its right to prosecute (and take other legal proceedings) for both the unlawful removal of the trees and the unlawful construction of the building or structure. OUR MESSAGE IS CLEARLY please do not remove any native vegetation without first obtaining the proper consents for this activity. CAN I CARRY OUT BUSHFIRE HAZARD REDUCTION WORK ON 1(A) RURAL LAND? Clause 15A of the Great Lakes Local Environmental Plan 1996 allows for Bushfire Hazard Reduction work to be undertaken without consent, but only in very limited circumstances. Bushfire Hazard Reduction work must comply with the Rural Fires Act 1997. The Rural Fires Act only allows emergency bushfire reduction work or managed bushfire reduction work on land. Bushfire Hazard Reduction work has a very limited definition and only applies to work that can be clearly shown to be establishing fire breaks, the controlled application of appropriate fire regimes or other means for the reduction or modification of available fuels within a predetermined area to mitigate against the spread of a bush fire. Generally, other than in an emergency, Bushfire Hazard Reduction work requires the preparation of a Bushfire Risk Management Plan that must be approved by the Rural Fire Service before any work is undertaken. In the absence of an approval from the Rural Fire Service, the work would not usually be considered bushfire hazard reduction. As substantial penalties apply for clearing of land care should be taken and appropriate advice sought before relying on the exemption in the Great Lakes Local Environmental Plan 1996. Page 3 of 5
"Bushfire Hazard Reduction" works only allow for emergency bushfire reduction or managed bushfire reduction works under the terms of the Rural Fire Act. OUR MESSAGE IS CLEARLY - please do not undertake bushfire hazard reduction works without first obtaining the written approval of the NSW Rural Fire Service. DO I STILL NEED COUNCIL CONSENT IF MY DEVELOPMENT FALLS WITHIN THE EXEMPT PROVISIONS OF THE STATE ENVIRONMENTAL PLANNING POLICY EXEMPT AND COMPLYING DEVELOPMENT (2008) (Codes SEPP) The Codes SEPP, in certain circumstances, allows minor works to occur without the need to first apply for and be granted a Planning Approval. All of the requirements of the Codes SEPP would need to be satisfied in order to rely on this opportunity to carry out works without consent. No variations to the controls outlined in the Codes SEPP may be considered. Outbuildings of a certain size and in certain controlled locations may be built without planning approval. The Codes SEPP can be viewed by following the link below. We encourage you to strictly follow the requirements of the Codes SEPP to ensure that any activity that you may undertake does not breach the requirements. www.housingcode.planning.nsw.gov.au Importantly, if the erection of the outbuilding (eg a shed) requires the removal or pruning of trees or other vegetation which requires approval under Council s Tree Preservation Order then the development cannot proceed without this approval. Additionally the removal or pruning of any tree that requires approval under the Native Vegetation Act is not exempt development. Where a proposed building does not meet all of the requirements of the Codes SEPP, then you will be required to apply for development consent. The rules for development consent then need to be met. Clauses 1.17A and 1.19 of the Codes SEPP outline what type of land cannot be considered as either exempt or complying development. This is land identified as being environmentally sensitive land and includes any land which includes Threatened Species under the National Parks & Wildlife Act. Some development can only proceed where it is ancillary to another use on the same holding. For example a farm building must be ancillary to an approved agricultural use on the same holding. Agriculture is specifically defined under Great Lakes LEP 1996 and the Standard Instrument (Local Environmental Plans) Order 2006. For an activity to be classified as agriculture, the activity conducted on the land must be a form of commercial activity related to aquaculture, extensive agriculture, intensive livestock agriculture or extensive plant agriculture. The Courts have held that for an activity to be a commercial activity it must have a distinct commercial purpose and character and must be carried out for the purpose of profit Page 4 of 5
and must have the elements of a genuine business enterprise. Thus, the planting of fruit trees or vegetable patches for personal use or for the single purpose of constructing a farm building will not be considered to be an agricultural activity having a commercial purpose or character. Where Council finds that a building has been built or vegetation has been removed or damaged without council the necessary approval, then Council has the right to pursue legal action (including prosecutions for which significant penalties apply) against any person who carries out such unauthorized activities. We invite you to discuss these matters with us in the event that you require any clarification. OUR MESSAGE IS CLEARLY - please do not commence construction of any outbuildings under the Code SEPP without first checking with Council to confirm consent is not required. DISCLAIMER: The material contained in this fact sheet is general information only. It should not be relied upon without discussing the specifics of your particular circumstance with an appropriate Council officer. This document is subject to change without notice. Page 5 of 5