Zone change creates unknowing lawbreakers

Brett Watson's fence construction is in defiance of the zoning specifications he now finds himself in.

Brett Watson's fence construction is in defiance of the zoning specifications he now finds himself in.

Timbarra perpetual crown lease-holder Brett Watson has only discovered by accident that the RU3 ‘forestry’ rezoning of his land by Tenterfield Shire Council – done without his knowledge – now makes illegal any improvements on his property apart from roads and uses authorised by Forestry Corporation NSW.

This is in contrast to the RU1 ‘Primary Production’ zoning he thought he was still operating under. RU1 actively encourages ‘diversity in primary industry enterprises and systems’. It allows, without consent, extensive agriculture and farm buildings, among other activities. Dwellings and intensive livestock agriculture are allowed with consent.

It was only last November that Councillor Gary Verri brought a motion to council seeking to at least mitigate the difficulties brought on by the rezoning. Council resolved to amend the RU3 wording in the Local Environmental Plan from nil ‘Development with Consent’ options to instead copy RU1’s wording, allowing dwellings, intensive livestock agriculture etc. There was no mention of 'permitted without consent' items like farm buildings and extensive agriculture.

Mr Watson suspects there may be 30 other leaseholders in the shire in the same predicament, probably unaware, and he’s proposing a group push to remedy the situation.

In Mr Watson’s case it all started innocently enough in 1993 when he purchased his 4600 acres of perpetual crown lease which, as far as he’s concerned, is tantamount to freehold land albeit at a slightly discounted price.

“You pay three per cent to convert to freehold, so that’s probably the discount,” he said.

The concept of a perpetual lease was first introduced to NSW in 1894 in the form of a ‘homestead selection’. While many perpetual leaseholders are being encouraged to convert, having a forestry dedication on the land is a permanent bar to conversion.

Letters received by Mr Watson at the time of ‘forestry dedication’ in 1987 stated that the dedication did not affect the usage of the land other than the removal of the ability to freehold and a restriction on clearing. He now finds he’s subject to the Forestry Act 2012 and Forestry Regulation 2012.

That administration of a crown lands lease has turned into quasi-ownership by stealth and regulation by FCNSW. - Brett Watson

“Letters sent at the time made out that this decision was of no real consequence, and that as Forestry had an interest in the land it was easier for them to be the administrators of the lease,” he said.

“That administration of a crown lands lease has turned into quasi-ownership by stealth and regulation by FCNSW.”

He has no problem with the forestry dedication, but rather that the FCNSW takeover and RU3 rezoning have removed much of his pseudo-freeholder rights. He feels FCNSW as a state-owned privatised company shouldn’t have say over what he does with his land. 

He’s concerned that while perpetual crown leases make up maybe two per cent of FCNSW holdings, the land under those leases is administered in the same manner as other Forestry land without due regard to the interests of the leaseholders.

Unbeknown to Mr Watson, the dedication precipitated a rezoning of the land in 1996 from RU1 (Primary Production) to RU3 (Forestry) and all the restrictions that dictates, with the only allowable improvements being roads and uses authorised under the Forestry Act 2012.

Mr Watson said the principal player in facilitating the change of zoning was Forestry when they provided a map of the lands they administer to an LEP consultant working for the Tenterfield Council.

“The map was overlaid on council’s local area map and the lands so marked were zoned RU3 without further due diligence and consultation with ratepayers whom it affected.” he said.

Mr Watson has supporting evidence that the land was zoned RU1 in 2001. He only recently found out that the zoning had been changed to RU3 in 2016 when he made inquiries about building dams to take advantage of his water catchment rights.

“I shouldn’t even be mowing here without permission,” Mr Watson said.

He also shouldn’t be fencing or undertaking the other farm maintenance chores necessary to support his livestock operation or, in fact, even run livestock. He said maintaining a firebreak around his home is also considered illegal without prior permission.

Breaching these new zoning conditions in theory provides council with the means to impose fines and/or court orders for breaches of the LEP. He feels council’s failure to inform those affected of changes in the zoning in effect made the lessees lawbreakers.

As the zoning isn’t stated on rates notices, the lessees may not have detected the change although their rates may have decreased a bit.

“Council’s actually doing itself out of money,” Mr Watson said.

If leaseholders are interested in selling he said buyers wouldn’t touch it, given the complications due to the forestry zoning.

“Who pays freehold value for forestry land if you can’t do anything with it?”

He said other local government areas like Kyogle has realised the error of their ways and gone back to the RU1 zone for Perpetual Leasehold land with Forestry dedication, and he hopes Tenterfield will follow suit.

​Mr Watson has approached Tenterfield Shire Council to address the situation, but said he was informed he would have to pay $5000 for council to look into the matter.

“It’s not my mistake, yet I am asked to pay,” he said.

Watch Brett Watson in this video explaining his predicament...

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