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- 4 May 2006
Protection of Agricultural Production (Right to Farm) Bill
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Page: 22628
Second Reading
Debate resumed from 6 April 2006.
Mr THOMAS GEORGE (Lismore) [10.40 a.m.]: When debate on the Protection of Agricultural Production (Right to Farm) Bill was interrupted on 6 April I was in the process of concluding my remarks on the bill. I again want to place on record my congratulations to the honourable member for Ballina on introducing these very sensible measures, which I expect Country Labor members will support in their droves. I am sure those members would agree that this proposal is not only sensible but also necessary to support our farmers and deal with an emerging issue. I would be surprised if the Government does not support the bill. If it does not, that would be yet another demonstration to rural communities that it does not have their interests at heart. I ask the Government to support the bill, which I commend to the House.
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [10.41 a.m.], in reply: Firstly, I would like to thank all honourable members who have participated in this debate—members representing the electorates of Coffs Harbour, Upper Hunter, Tweed, Burrinjuck, Orange, Barwon, Bega, Hawkesbury, Bathurst, Murrumbidgee, Clarence, Wagga Wagga, Tamworth, Oxley—the Leader of The Nationals—and Lismore. All of those members, except two—the Labor members representing the electorates of Tweed and Bathurst—spoke in support of the bill or its objects. That is, of the 16 members who spoke in the debate, 13 supported the bill outright in its current form. The honourable member for Tamworth supported the objectives of the bill, but raised several concerns, which I will address in my remarks in reply.
Briefly, the object of the bill is to provide for rural land use notices to be given to purchasers of land adjoining or adjacent to rural land, and for those notices to be taken into account in any subsequent court proceedings by such purchasers to limit or prohibit the use of the rural land. For many years farmers and landowners have been concerned about the threat to legal agricultural activities from neighbours who buy into a rural setting and then proceed to complain about existing agricultural activities next door. The problem is becoming worse as a result of the sea change and tree change phenomenon. Increasingly, we are finding that more and more people in coastal areas in New South Wales and indeed in larger regional centres want to go to rural areas to experience the pleasantries of a rural lifestyle, but then complain about the legitimate and legal activities that are occurring on the farm next door.
The intention of the bill is to give landholders across New South Wales who reside on land zoned rural the right to carry out legitimate activities permitted within that zone without harassment or complaint from neighbours. The most common complaints of this kind involve noise, dust, odours and chemical sprays. This matter is to be addressed by requiring a vendor under a contract for sale of land adjoining or adjacent to rural land to attach a rural land use notice to the contract. The notice is to be issued by the local council and attached to the contract before it is signed by or on behalf of the purchaser. If such a notice is attached, the purchaser is deemed to have been given notice.
The bill also provides that a rural land use notice can be issued as part of any other notice issued by a council in relation to the proposed land sale. This means that it is possible for a council to issue this notice as part of a section 149 certificate, for example. This will help reduce costs to councils. This is not a guarantee of the types of activities to be undertaken, or not undertaken, on a neighbouring rural property, but rather advice on its current rural use and possible uses. The notice is proof that the purchaser has been advised that his or her neighbours are located on rural land and that they undertake or may undertake rural activities.
I will now address concerns that have been raised during debate on the bill. The first issue, raised by the honourable member for Tamworth, is that these measures would create more paperwork for, and impose more obligations on, local government. In particular, he referred to two letters, one from the Liverpool Plains Shire Council and one from the Gunnedah Shire Council. When he received those he passed them on to me. I took on board the concerns expressed in those letters, and sought advice from Parliamentary Counsel about whether the points raised were legitimate, and whether as a result of those points there was need to amend the bill. It was argued by the honourable member for Tamworth that the bill introduces another layer of information required to be given, and that that would involve extra time and resources being expended by council.
Whilst councils will have to issue a rural land use notice, this will be attached to the section 149 certificate and will contain information already known to council. The benefit of issuing the notice when the property is purchased is that purchasers go into the purchases with their eyes open, knowing that if there is a dispute down the track the court must take into consideration that the purchaser knew that he or she was buying land adjoining or adjacent to land zoned rural on which legitimate agricultural activities were permitted. This should result in councils becoming involved in fewer disputes, and that should save council staff time and resources once the system is in place. In any event, nothing prevents the State Government making a financial contribution to councils to cover what would be a relatively minor cost.
The issues raised by councils—to summarise them—included the issue that I have just raised, that of the extra workload of councils. I have tried to deal with that by explaining that there would be fewer disputes as a result of this legislation because it provides for more certainty. The second issue is that council officers would not be protected if they made a mistake on the land use notice. The third is that a detailed description of activities that required consent or did not require consent would be necessary. The fourth is that council staff would have to do site inspections for each property, and this would be time consuming. I raised those issues with Parliamentary Counsel and received written advice to the effect that those issues are not a cause for concern. I will read onto the parliamentary record the relevant section of advice of Parliamentary Counsel in response to those matters, received by me on 23 September 2005:
Dear Mr Page,
I refer to your requests for advice in relation to comments received by you on the Bill. I note that both submissions are made by Council officers and concern the implications of the Bill's imposition of obligations on Councils.
I make the following comments in relation to the matters raised:
(a) Protection for liability for things done by Councils, councillors, employees etc in good faith for the
purpose of executing an Act is provided by section 731 of the Local Government Act 1993.
Parliamentary Counsel is saying quite clearly that under section 731 of the Local Government Act councils, councillors or employees of a council, provided they are acting in good faith, have no liability in relation to the information issued by council. We can assume that council officers will act in good faith. So, there is really no issue if a mistake occurs. Provided they are acting in good faith, they are not liable. Paragraph (b) of Parliamentary Counsel's letter states:
A description of activities permissible with or without development consent in terms reflecting the relevant planning instrument would be sufficient to meet the requirements of clause 5 (2) (c) of the Bill—
that is this bill—
that is, there does not seem to be any necessity to specify every kind of activity included in agriculture as suggested by the submission—
that is the councils' submission—
and a statement reflecting the terms of the instrument would meet the Bills requirements. If necessary, relevant definitions of activities as set out in the relevant planning instrument could be included.
In other words, Parliamentary Counsel is saying that it is not necessary to specify all the activities that the two councils were concerned about. The third issue was that an on-site inspection would take time. Paragraph (c) of Parliamentary Counsel's letter states:
The concerns about the requirement for an in depth audit of surrounding land use and property inspection requirements and Council costs seem misplaced, as you indicated in your reply to the earlier submission. Clause 5 (2) (d) was not intended to require the Council to go out and seek the relevant information but merely to divulge information already known to it.
In other words, Parliamentary Counsel is saying that there is no requirement for on-site audits or for people to go out into the field to check whether this or that activity is occurring. All the legislation requires is that council divulges information that is already known to it from its local environment plan [LEP]. It has a list of all the zonings in its area and it can tell whether, when land is coming up for sale, that land is available. If it adjoins land that is zoned rural, it is a relatively simple matter for it to say so. Council employees do not have to get out of their office, they can just look at the LEP. That deals with the matters raised by the honourable member for Tamworth. I hope, my having dealt with those issues—and Parliamentary Counsel is a pretty good authority—that he will be comfortable in supporting this legislation.
Having addressed those concerns, I now move on to some of the concerns expressed by the two Government members. The bill has been criticised for the amount of extra work it might generate for local government, which, inevitably, becomes involved in disputes between neighbours when they do not like what is happening on the land next door, even though that activity is legal and permissible. I put to the Government that local government would spend less time in dispute resolution and doing paperwork under my proposal than it does at the moment. These conflicts are commonplace.
My attention has been drawn to the large amount of documentation a vendor has to supply when selling property. In New South Wales vendor documents can run into 150 pages. I am advised by Mr Jason Good, a solicitor with 15 years experience in conveyancing, that Victoria has a one-page statement of relevant material, which is so much better than the volumes of paperwork required in New South Wales. If the New South Wales Government is serious about decreasing the paperwork, why does it not do something about reducing the voluminous vendor documents that currently make it extremely difficult for the purchaser to see what is really relevant? I strongly urge the New South Wales Government to reform its disclosure arrangements and to deliver a system more like Victoria's. Instead of accusing me of adding one piece of paper, which will ensure certainty down the track, the New South Wales Government should put its own house in order and consolidate its disclosure requirements so that purchasers can see what is relevant.
I turn to other arguments put by Government members in opposing the bill. The honourable member for Tweed said the Government is opposing the bill because the current system is working very well and, therefore, this legislation is not necessary. If that is correct, why has almost every member who has spoken in this debate identified problems of urban encroachment on productive farmland and identified a range of conflicts between existing farmers and new neighbours who have complained about noise, dust, and so on, associated with normal farming activity? Clearly, the current arrangements are not working. The legislation proposed by me on behalf of The Nationals is an important step in providing more certainty for all parties concerned. Under this legislation neighbours to farming land will buy with their eyes open and will be aware of permitted activities. They will be aware that in the event of a dispute the court must consider that they purchased the land in the knowledge that the adjacent land was zoned for rural activities.
The Government says it will do something to develop land use planning. Presumably it is talking about its farmland protection policy. Although the farmland protection policy has many shortcomings, it is well intentioned and I support it. It certainly will help to protect farmland, but it does nothing to reduce conflict between neighbours when one of those neighbours is operating a farming enterprise. The farmland protection policy merely identifies farmland that needs to be kept for farming and will not be available for subdivision. It does nothing to prevent conflict between those who need to farm and those who object to farming activities. This legislation deals with that issue, whereas the farmland protection policy simply sets aside farming land that will continue to be used for that purpose. The key point is that this legislation has the ability to deal with conflict because the parties to a dispute will go into the situation with their eyes open, and this must be considered subsequently by the court in dispute resolution. All concerns raised during debate on the Protection of Agricultural Production (Right to Farm) Bill have now been fully addressed.
In addition to the 13 members of The Nationals who spoke in support of this legislation, in the past two years I have received a lot of support for the bill from a wide range of people across New South Wales. Without naming all of them I would like to read from a letter from the General Manager of the Australian Macadamia Society, Andrew Heap, to the Minister for Primary Industries, in which he indicated his support for the bill. I have received quite a few letters, but this one encapsulates the issues pretty well. Mr Heap stated:
Dear Mr MacDonald,
On behalf of the Australian Macadamia Society … peak body for the macadamia industry, I wish to support the Protection of Agricultural Production (Right to Farm) Bill introduced by the Member for Ballina, Don Page.
It is considered that this Bill is a practical response to improving the level of community understanding of those who are proposing to relocate into a farming region in circumstances where they have little or no prior knowledge of commercial farming practices.
In very simple terms an intending buyer will be made aware prior to purchase that the land under consideration is farming land or adjoins farming land—this awareness being achieved by the attachment of a rural land use notice, issued by the local council, to the contract of sale.
In our view the need for a land use notice to be attached to the contract of sale comes about because of the increasing neighbourly conflict that can and does occur when incoming buyers do not realise that farming activity involves noise, smells and sprays—as part of normal farming life.
Although this problem increasingly occurs when individual families decide to undertake a "sea change" in lifestyle and career, the evidence shows it occurs most where urban encroachment on traditional farming areas occurs. In recent years the whole east coast of Australia has been subject to such developments.
It has been argued by people inclined to question the need for this legislation that it is an underhand way of allowing farmers to avoid normal obligations under the law in carrying out farming practices. Nothing could be further from the reality as farmers are still obliged to comply with the various government legislation relating to noise creation and the use of sprays—as for example clearly spelled out in the NSW Protection of the Environment Operations Act and the NSW Fertilises Act.
I am also hopeful that this legislation may help to clarify decisions where for example an incoming party decides to establish a bed & breakfast business unreasonably close to farming activity—perhaps leading to unnecessary conflict between neighbouring parties. In our view local councils need to have given fair upfront consideration to such possibilities before granting a development application as they will inevitably be the mediators in the event of a conflict later on.
As the proposed Bill can essentially be introduced under the contract of sale—section 149 certificate, it is considered a very worthwhile initiative by this farming representative organisation.
Further it is hoped that many on both sides of politics will see merit in the Bill and take a bipartisan view when voting on it.
Yours sincerely,
Andrew Heap
General Manager
That letter encapsulates why it is necessary to have legislation in place. I am disappointed that the Government is, apparently, not going to support the bill. The honourable member for Tweed, probably more than anyone else in this Chamber, should understand the problems associated with conflict between established farmers and people moving into an area, because that is certainly happening in his electorate as it is happening in my electorate and many coastal electorates. This is sensible legislation that simply requires a purchaser proposing to buy land adjacent to rural land to be advised of that fact by way of a land use notice on a section 149 certificate. In that way they go in with their eyes open.
In the event of a dispute later, the court must take into consideration the fact that they knew at the time of the purchase that they were buying land adjacent to land zoned for farming. Why the Government wants to oppose this bill is beyond me. It is sensible. It is non-political and non-party political. It is not ideological. It is practical and sensible. It disappoints me greatly to know that this legislation, which I believe is a genuine attempt to resolve conflict—a pretty significant planning issue for this State—will be voted down in an irresponsible way. I urge the Government to change its mind and to support the bill. I commend the bill to the House.
Question_That this bill be now read a second time_put.
The House divided.
Ayes, 34
Mr Aplin
Mr Armstrong
Mr Barr
Ms Berejiklian
Mr Cansdell
Mr Constance
Mrs Fardell
Mr Fraser
Mrs Hancock
Mr Hartcher
Mr Hazzard
Mrs Hopwood | Mr Humpherson
Mr Kerr
Mr McTaggart
Mr Merton
Ms Moore
Mr Oakeshott
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Pringle
Mr Richardson
Mr Roberts | Ms Seaton
Mrs Skinner
Mr Slack-Smith
Mr Souris
Mr Stoner
Mr Tink
Mr Torbay
Mr R. W. Turner
Tellers,
Mr George
Mr Maguire |
Noes, 47
Ms Allan
Mr Amery
Ms Andrews
Mr Bartlett
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Chaytor
Mr Collier
Mr Corrigan
Mr Crittenden
Mr Daley
Ms D'Amore | Mr Debus
Mr Draper
Mr Gaudry
Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Ms Judge
Ms Keneally
Mr Lynch
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Mr Mills
Mr Morris | Mr Newell
Ms Nori
Mr Orkopoulos
Mrs Paluzzano
Mr Pearce
Mr Price
Ms Saliba
Mr Shearan
Mr Stewart
Ms Tebbutt
Mr Tripodi
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Pair
Question resolved in the negative.
Motion negatived.
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