Protect priority oyster areas; consult DPI before changing nearby land use.
Applies to: Planning proposals in Priority Oyster Aquaculture Areas and oyster leases mapped in the NSW Oyster Industry Sustainable Aquaculture Strategy 2006When a planning proposal could affect a Priority Oyster Aquaculture Area or oyster lease, councils must identify the areas and any incompatible or adverse-impact land uses, ensure consistency with the Strategy, and consult the Department of Primary Industries. Where adverse impacts are possible, DPI must be given the proposal and 40 days to object.
Direction 9.3 protects oyster-growing waters from land-use changes that could poison the water and, in turn, harm oysters and the people who eat them. When a council or other planning authority prepares a planning proposal (a proposed change to a Local Environmental Plan) affecting a mapped 'Priority Oyster Aquaculture Area' or an oyster lease outside such an area, it must first check whether the proposed rezoning or land-use change could damage water quality or make oyster farming incompatible with neighbouring uses.
The mechanics are twofold. First, the authority must do its homework: map the affected oyster areas, identify problem land uses, assess and try to avoid land-use conflicts, consult the Department of Primary Industries, and ensure the proposal matches the NSW Oyster Industry Sustainable Aquaculture Strategy 2006. Second, where adverse impacts or incompatibility are identified, there is a formal referral: DPI gets a copy of the proposal and 40 days to lodge written objections, which must then be forwarded to the Planning Secretary before any community consultation.
If a proposal does not comply, it can only proceed as inconsistent where the authority satisfies the Planning Secretary that the inconsistent provisions are of minor significance. The point is to stop rezonings that would restrict lease access or degrade water quality without proper scrutiny by the fisheries regulator.
Any relevant planning authority (typically a council, but also other bodies) preparing a planning proposal that affects a Priority Oyster Aquaculture Area or an oyster aquaculture lease outside such an area.
When preparing a planning proposal in a Priority Oyster Aquaculture Area or affecting oyster aquaculture outside such an area (as mapped in the NSW Oyster Industry Sustainable Aquaculture Strategy 2006) that proposes a land-use change which could cause adverse impacts on such an area or on a current oyster aquaculture lease in the national parks estate, or that could create an incompatible use of land between oyster aquaculture and other land uses.
A planning proposal may be inconsistent with the direction only if the relevant planning authority satisfies the Planning Secretary (or a nominated officer) that the inconsistent provisions are of minor significance.
Relies on the NSW Oyster Industry Sustainable Aquaculture Strategy 2006 for definitions and maps; requires consultation with the Secretary of the Department of Primary Industries; and links to the community consultation process under Schedule 1 of the Environmental Planning and Assessment Act. It commenced 1 March 2022 and replaces the previous Direction 1.4.
Identify any Priority Oyster Aquaculture Areas and oyster aquaculture leases outside such an area, as shown on the maps to the Strategy, to which the planning proposal would apply.
Identify proposed land uses that could adversely impact these areas/leases, and identify, consider and evaluate measures to avoid or minimise any incompatible use of land between oyster aquaculture and other land uses.
Consult the Secretary of the Department of Primary Industries during preparation of the planning proposal, and ensure the proposal is consistent with the Strategy.
Where adverse impacts or incompatibility are identified, give DPI a copy of the proposal and notification of the relevant provisions, allow DPI 40 days to lodge written objections, and include any objection with the statement to the Planning Secretary before community consultation.
Kiama's estuarine waters and coastline can support oyster aquaculture, so this direction bites only where a Kiama planning proposal touches a mapped Priority Oyster Aquaculture Area or lease under the 2006 Strategy. If Kiama has no such mapped areas or leases, the direction is not triggered by its planning proposals. Where it does apply, a rezoning near estuary catchments (for example one that could increase stormwater or effluent affecting water quality, or restrict lease access) would require DPI consultation and the 40-day referral before community consultation.
9.3 Oyster Aquaculture Objectives The objectives of this direction are to: (a) ensure that ‘Priority Oyster Aquaculture Areas’ and oyster aquaculture outside such an area are adequately considered when preparing a planning proposal, and (b) protect ‘Priority Oyster Aquaculture Areas’ and oyster aquaculture outside such an area from land uses that may result in adverse impacts on water quality and consequently, on the health of oysters and oyster consumers. Application This direction applies to any relevant planning authority when preparing a planning proposal in ‘Priority Oyster Aquaculture Areas’ and oyster aquaculture outside such an area as identified in the NSW Oyster Industry Sustainable Aquaculture Strategy (2006) (“the Strategy”), when proposing a change in land use which could result in: (a) adverse impacts on a ‘Priority Oyster Aquaculture Area’ or a “current oyster aquaculture lease in the national parks estate”, or (b) incompatible use of land between oyster aquaculture in a ‘Priority Oyster Aquaculture Area’ or a “current oyster aquaculture lease in the national parks estate” and other land uses. Direction 9.3 (1) In the preparation of a planning proposal the relevant planning authority must: (a) identify any ‘Priority Oyster Aquaculture Areas’ and oyster aquaculture leases outside such an area, as shown the maps to the Strategy, to which the planning proposal would apply, (b) identify any proposed land uses which could result in any adverse impact on a ‘Priority Oyster Aquaculture Area’ or oyster aquaculture leases outside such an area, (c) identify and take into consideration any issues likely to lead to an incompatible use of land between oyster aquaculture and other land uses and identify and evaluate measures to avoid or minimise such land use in compatibility, (d) consult with the Secretary of the Department of Primary Industries (DPI) of the proposed changes in the preparation of the planning proposal, and (e) ensure the planning proposal is consistent with the Strategy. (2) Where a planning proposal proposes land uses that may result in adverse impacts identified under (1)(b) and (1)(c), relevant planning authority must: (a) provide the Secretary of DPI with a copy of the planning proposal and notification of the relevant provisions, (b) allow the Secretary of DPI a period of 40 days from the date of notification to provide in writing any objections to the terms of the planning proposal, and (c) include a copy of any objection and supporting information received from the Secretary of DPI with the statement to the Planning Secretary before undertaking community consultation in satisfaction of Schedule 1 to the EP&A Act. Consistency A planning proposal may be inconsistent with the terms of this direction only if the relevant planning authority can satisfy the Planning Secretary (or an officer of the Department nominated by the Secretary) that the provisions of the planning proposal that are inconsistent are of minor significance. Note: In this direction: (a) “Priority Oyster Aquaculture Areas” has the same meaning as in the NSW Oyster Industry Sustainable Aquaculture Strategy; and (b) an “incompatible use of land” includes access to oyster leases being limited by the change in land use or the risk of adverse impacts as a result of that change in land use on water quality and, consequently, on the health of oysters and on the health of consumers of those oysters. Issued to commence 1 March 2022 (replaces previous Direction 1.4)
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the official source for anything decision-critical.