– that for the Chinese market Gardens site, the exhibited RU4 Primary Production small Lots zone be retained in the draft final LEP.
– Any cemetery use should be subject to a formal Planning Proposal with suitable background studies, and particularly the required heritage assessments.

Full Report on LEP which goes to Council on 22 May 2012 – 6pm is at this link.

3.1 Submissions Overview

 A total of 3488 written submissions were received. Of these submissions, the majority related to a single issue or specific site, while the remainder covered a range of topics. A breakdown is shown in the table below:

KEY GROUPINGS Number of submissions
Government  – State agencies/neighbouring councils 18
Precinct Committees & Chambers of Commerce 9
Major topics – specific sites  
Chinese Market Gardens/Cemetery zoning 3016
58-64 Carr St Coogee – rezoning 223
Maroubra Beach Commercial Area 117
Specialised Centre (including 4 rezoning requests) 9
Rezoning requests (various sites) 20
Remainder (range of topics) 76
TOTAL 3488

This total includes a number of submissions received after the closing date, to account for delays in the post. Any submission received more than two weeks after the end of public exhibition may not have been considered in this report. As much as possible, duplicate submissions have been excluded from the above totals, while it is noted there may be instances of multiple different submissions from the same person or organisation.

3.2 Breakdown of submission for major issues

 The figures below include submissions addressing a single issue or site, as well as submissions in which several different issues have been raised. Linking to the table above, the figures include instances where the issue has also been raised by the key groups (govt agencies, precincts) and ‘other’ submissions, including individuals and groups that raised a range of topics.

It is noted that significant numbers of submissions were received on a few topics, often via form letters. While all submissions are important, it is noted that it is the issues raised, not simply the numbers, which are the focus of the analysis that follows this breakdown of figures.

 Chinese Market Gardens (including precincts, govt agencies and ‘others’)

  • Total submissions                   ­­­­­                       ­­­­­­­­­3024
  • Objection to RU4 /support cemetery zoning       2963
  • Support for RU4 (Rural) zoning                    61

Of the objections to RU4 (Rural) zoning, 2931 (approximately 97% of all submissions on this issue, and around 83% of total submissions on the draft LEP) were form letters seeking a zoning of the market gardens that permits cemetery purposes.

This total includes 1565 form letters received under cover of a letter from the Greek Orthodox Parish of south-east Sydney.

Detailed breakdown    
Objection to RU4 /support cemetery zoning Individual – single issue 31
Form letters 2931
Individual – multi issues 1
Govt agency 1
Support for RU4 (rural ) zoning Individual – single issue 28
Form letters 26
Individual – multi issues 3
Precincts 2
Govt agency 1
Total   3024

3.3      Summary of website (yoursayrandwick) activity

 A dedicated website was created for public exhibition of the draft LEP, at It contained key dates about consultation activities, downloadable copies of all exhibition material, as well as FAQs and additional background information. The website was well used by the community, and the key statistics below illustrate its valuable role in both providing information and being a channel for feedback. The majority of site visits were made via the link from Council’s website.

Key statistics

  • 3585 total visits were made to the site
  • 5375 documents were downloaded, with the draft instrument and maps being most popular
  • 116 submissions made via the “yoursayrandwick” webpage

6.3 Chinese Market Gardens site

Context and current LEP controls
The Chinese Market Gardens site covers an area of 7 hectares located off Bunnerong Road, Phillip Bay. It contains operating market gardens on either side of the watercourse running through the site. It adjoins the Eastern Suburbs Memorial Park Cemetery to the north, Yarra Bay Bicentennial Park to the west, and undeveloped Land Council owned land (Hill 60) to the south (See Figure 2).

The site is currently zoned 2B (medium density) Residential under RLEP, reflecting the zoning introduced in the 1950s State County of Cumberland Plan.

The site is listed on the State Heritage Register, as also reflected in Council’s RLEP Schedule of heritage items, given its historical, agricultural and social significance to NSW and the Sydney Metropolitan area in particular, for its long term use as market gardens, firstly by Europeans and then by Chinese. Based on a preliminary heritage assessment by Council in 1998, the NSW Government further investigated and listed the site on the State Register in 1999.

The site is owned by the NSW Department of Primary Industries (Crown Lands).

Figure 2 – Chinese market gardens site.

Draft Comprehensive LEP controls
The exhibited draft LEP proposes to rezone the site to RU4 – Primary Production Small Lots zone to reflect its current agricultural use and the State heritage listing.

The zone objectives are to enable sustainable primary industry and other compatible land uses, encourage and promote diversity and employment opportunities in relation to the primary industries, minimise conflicts between land uses within this zone and adjoining zones, and specifically, to ‘protect the Phillip Bay Chinese Market Gardens and its significant heritage, cultural, ecological, aesthetic and agricultural values as a valuable community resource’.

The State Heritage listing is recognised, as required, in the draft LEP heritage list. Council cannot change or remove a state heritage listing from its LEP unless approved by the NSW Office of Environment and Heritage (OEH).

The draft LEP introduces a minimum lot size of 7 ha for the RU4 zone via clause 4.1 (Minimum Subdivision Lot Size) and map, to minimise impacts of subdivision, ensure lot size protects natural or cultural features, and ensure sufficient minimum area for development suitable to its purpose.

The draft LEP identifies Acid Sulfate Soils (ASS) on the site, via clause 6.5 (ASS) and map (reflecting existing State mapping). The clause objective is to ensure that development does not disturb, expose or drain acid sulphate soils and cause environmental damage. The site primarily contains Class 2 ASS along the drainage line and surrounds (where development consent is required for any works below the natural ground surface) and peripheral areas of Class 4 (consent required if more than 2m below ground surface).

To inform preparation of the draft LEP, Council exhibited a Discussion Paper for Open Space/Environment land uses in 2011. This outlined the background research, available information and proposed LEP zone and controls for the Chinese market gardens site.

Reference was made to a 2008 Land Assessment report prepared by Crown Lands as land owner, in response to a request by the adjacent Eastern Suburbs Memorial Park (ESMP) to expand the cemetery into the market gardens site. This report indicated the most suitable uses for the site as environmental protection, nature conservation or agriculture. It noted that a cemetery use was not suitable given current environmental constraints such as the high water table, flooding and given the heritage, cultural and ecological significance of the site.

The Discussion Paper also noted the ESMP Trust’s request to the NSW Government in October 2010 to lodge a Part 3A Concept Plan for cemetery expansion. However, a Concept Plan could not be lodged for a State heritage item. Following the NSW Government’s repeal of Part 3A of the Act in 2011, it confirmed that any cemetery permissibility needs to be submitted to Council.

In response to the Discussion Paper exhibition, 24 submissions were received in support of the RU4 zone and continued heritage recognition of the Chinese market gardens, including a submission from the NSW Office of Environment and Heritage (OEH). However submissions from the Crown Lands and ESMP Trust noted that the Trust is continuing to investigate the suitability of part of the market gardens site for cemetery expansion and requested to permit the use of ‘cemeteries’ in the zone. Crown Lands also advised that their Land Assessment Report had been updated in July 2010, noting community and public uses such as a cemetery also as potentially suitable uses.

Given these differing State agency views, the Council was required to seek advice from the Department of Planning and Infrastructure (DoPI). It advised that the way forward was to exhibit the draft LEP with the RU4 zoning and to refer the ESMP’s investigations (when completed) to the OEH for advice on any implications for the heritage values of the site and suitable zones/uses.

The subsequent DoPI letter of Section 65 Certification, allowing Council to exhibit the draft LEP, reiterated this advice and encouraged Council to work closely with DoPI, the ESMP, the community and other government agencies to address this issue. It was also noted that ‘if an extension to the Botany cemetery is found to have merit, it should preferably be supported through a separate Planning (rezoning) Proposal’.

Accordingly, Council has now undertaken a wide ranging exhibition process seeking community feedback on the draft LEP, including a public hearing. Submissions are assessed below and are detailed in Attachment 3.

In addition, Council officers have met on several occasions with the ESMP and relevant government agencies, including:

§ Onsite meeting with Councillors, Council officers and ESMP – February 2012
§ Meetings with Council officers, CLD and ESMP on 16 December 2011 and 24 January 2012
§ Meeting with the Director-General of DoPI and Council’s General Manager and Director, City Planning and ESMP on 9 March 2012
§ Meeting with Mayor, Director of City Planning, other Council officers, ESMP and local parish representatives on 22 March 2012
§ Meetings regularly held with DoPI and Council officers on the draft LEP, Feb/March/April/May 2012

It was noted to the ESMP at these meetings, that any further documentation available from the ESMP would assist Council in addressing the S65 Certification requirement to consider the merits of any proposed cemetery expansion and in particular, to enable Council to seek feedback from the OEH on implications for the State heritage listing.

ESMP has confirmed that a number of background studies have been prepared in support of the cemetery use and that a heritage study is nearing finalisation and would be provided to Council when completed.

The ESMP’s submission to the draft LEP exhibition (see Attachment 3) noted that ‘no less than 10 site specific specialist studies have been conducted’. However, at the time of writing this report none of these studies have been provided to Council. Its submission also notes that the ESMP has informed Council about various ‘facts’ about the site condition however, again, does not provide any supporting background studies from which these statements can be assessed.

A letter to the ESMP on 19 April 2012 sought an update on the availability of any studies/research completed that would assist to fully report this matter back to Council. Alternatively, advice on preparing a separate Planning Proposal, including the necessary background studies, was also sought. ESMP has yet to send any further documentation.

Council received a total of 3,024 submissions on this matter, by far the most on any issue and on all other issues combined in the draft LEP. This included 3016 submissions specifically about this matter and 6 other submissions that raised this among other issues.

Of these submissions, there were 2,962 submissions opposing the RU4 zone and supporting the expansion of the cemetery either via a Special Purposes (SP) Cemetery zoning or adding cemetery as a use in the RU4 zone. Of these, 32 were individual letters and 2931 were form letters from the St Spyridon Greek Orthodox Parish of South East Sydney, its related organisations and parishioners. Of those form letters providing an address, 818 were from Randwick and 945 from other Sydney suburbs. Other submissions included the adjacent Eastern Suburbs Memorial Park (ESMP), residents of Randwick and other Sydney suburbs, and religious and cultural organisations representing the Jewish, Greek and Indonesian communities.

There were 61 submissions supporting the Chinese Market Gardens RU4 zoning and heritage protection. Of these, 31 were individual submissions and 26 were form letters noting full support of the proposed rezoning of the whole heritage listed site to the RU4 zone. These submissions in support included 2 Precincts, Matraville and La Perouse, residents of Randwick and the greater Sydney Metropolitan Region, and representatives of the Chinese heritage, cultural and research institutions.

Submissions were also received from two State agencies, OEH (Heritage Branch) and Crown Lands.

The OEH reiterated the site’s State Heritage listing, noting support for the RU4 zone consistent with the site’s heritage values and predominant use of the land for market gardens (for 150 years). It is aware of the ESMP desire to expand into the market gardens site and noted that such proposal would need to be addressed through a formal Planning Proposal in future.

Crown Lands noted its earlier position that the RU4 zoning on the southern section of the market gardens site is suitable, and that the ESMP is investigating the cemetery expansion. ESMP notes that this would involve a transition over 25 years into the market gardens site to use 60% for the cemetery and retain 40% for market gardens, with restoration of the creek and wetlands.

Key Issues
The key issues in submissions opposing the RU4 zoning and supporting the cemetery expansion, in summary, are:

§ Oppose the RU4 zoning in favour of cemetery use
§ Rezone the site to SP – Special Purposes (Cemetery)
§ Rezone to permit cemeteries as an additional use on the site to deal with increasing shortage of burial space in the area/eastern suburbs/Sydney
§ Randwick does not provide sufficient land for cemeteries/need to allow Botany cemetery to expand/this is the only direction it can expand
§ Planning should facilitate strategic outcomes not just recognise existing uses
§ Botany/Rookwood/Sutherland cemeteries will have inadequate space within 8 years/a decade
§ Need to ensure locals can be buried locally/no nearby alternatives
§ This will address long term burial needs
§ The gardens site is ideal given its current use/mainly vacant/located adjacent to the existing cemetery
§ Many religions do not allow cremation – Moslem, Jewish, Greek Orthodox – or have a burial preference, and some do not allow renewable tenure as part of respecting the deceased
§ Many local populations are growing and need burial space e.g. Indonesian, Jewish communities (esp. older single women)
§ Burial should have priority over farming
§ Use part of gardens only and respect historical and practical importance/could enhance the heritage outcome/allow gradual transition with 40% to stay as gardens
§ Markets not suitable for ongoing agriculture given contamination, poor groundwater, marginal economic feasibility
§ Level of agricultural produce is insignificant, especially given poor soil/water quality
§ Markets are neglected/poor land management
§ Use of groundwater for irrigation from Botany aquifer is unsuitable
§ Potential breach of State and local government health, occupational and environmental guidelines
§ NSW Heritage Office has previously noted heritage is not to freeze in time but to manage heritage
§ Heritage listing was based on flawed research/other gardens exist e.g. Wassell St.
§ Heritage significance cannot be appreciated, as no public access
§ Cemetery use can reinstate the original landform and rehabilitate the wetland/riparian areas
§ Convenient location for visitors/close to families/good public transport
§ Living relatives can access easily (cost, difficulty with age)
§ Burials outside Sydney is daunting and costly
§ Expansion of cemetery supported by owner (Crown Lands)

The key issues in submissions supporting the RU4 zone and market gardens protection, in summary, are:

§ Support for the RU4 zone to retain the market gardens and recognise its agricultural use
§ Recognition of the State heritage listing – its significant history (150 years) and continued use today, link to the past, agricultural significance, social and cultural significance, importance to the area and the Chinese community
§ Listed by the National Trust
§ Value of locally grown fresh food, sustainability/low food miles, food security and close to a growing urban population
§ Consistency with Council’s policies on sustainability, living locally, and climate change statements
§ Land suitable for producing food should not be used for burials
§ Importance of the site’s visual amenity and tourism attraction
§ Provides valuable open space , wetlands, flora, fauna
§ Educational value especially to local children and schools
§ Retains a diversity/richness of land uses and the environment – many other gardens in Sydney have gone
§ Flood plains are not suitable for a cemetery; would need significant engineering; better suited to primary production
§ Consider other sites nearby e.g. within the Ports precinct
§ Requires a Sydney wide approach e.g. consider sites elsewhere in Sydney, beyond the City
§ Consider other options e.g. redesign/re-use cemeteries
§ Suggested 40%/60% split would acquire/remove the gardens by stealth

Public Hearing
The Chinese Market Gardens site was addressed in the draft LEP Public Hearing, with speakers both in support for retaining the market gardens or for the cemetery expansion. Key issues raised and the independent planning consultant’s response is contained in the Public Hearing report at Attachment 5.

In summary, the hearing report notes the concerns stated by speakers over the growing urban population and need for cemetery space and also those in support of maintaining urban agricultural space and recognising heritage significance. The report notes that to understand any compromise 60/40% split of cemetery/garden uses, consideration and comparison should be given to the viability issues including the location of aquifers (ground water) and via an ecological report, to determine viability of burials in this location. Conversely, noting the value of perishable produce accessible to markets, if reduced parcels of land for the market gardens would render these unviable. While noting that convincing representations were made for cemetery needs, the report also notes that the value of urban agricultural lands cannot be underestimated and use of part of the land for cemetery purposes may only be a short term solution. Given this, the report notes that the proposed RU4 zone may be supported because it is a long term sustainable solution.

The key issues raised in the written submissions for consideration are outlined and assessed below.

Demands of population growth and cultural needs for cemetery space
Many submissions noted the growing demand for burial space given current and expected population growth locally and across Sydney, the ageing population and capacity being reached at other cemeteries. Submissions also highlighted the importance of burial space, rather than cremation, to meet a range of the community’s religious and cultural beliefs that are well represented in the local demographics and likely to continue. Similarly, there is an interest in locating burial space close to home for many, for the ease and cost of travel to visit cemeteries, especially for an ageing community.

The ESMP site, comprising 34 ha of land along Military Road and Bunnerong Road, serves both the local area and the wider eastern suburbs. In recognition of this community need, Randwick Council previously supported expansion of the cemetery across the western side of Military Road (formerly part of the Bunnerong Power station site) in 1996, which added 5 ha and with a then estimated burial capacity of 50 years. The ESMP has now advised that it has less than 8 years remaining burial supply.

The proposed expansion of the cemetery into part of the adjacent 7 ha market gardens site was noted in the Public Hearing report as likely to be a short term rather than long term solution. It is also noted that (in addition to acknowledging heritage values of the site – as discussed below), the physical limitations of the market garden site location on flood prone land may further reduce or potentially eliminate any appreciable additional land suitable for burials. As some submissions noted, solutions on other sites within and outside Randwick and across metropolitan Sydney in addition to innovative approaches (e.g. Rookwood is considering shared use of the adjacent golf course) may need to be investigated for long term solutions to this recognised need for burial space. The regional/metropolitan needs for burial space is reflected in the interest shown in the submissions, with about 55% of the form letters seeking the cemetery expansion coming from residents outside Randwick. Given that Crown land owns significant holdings within the eastern suburbs, this issue could be investigated with Crown Lands in terms of its land holdings in Randwick and also as part of a broader metropolitan investigation.

State heritage listing of the Chinese Market Gardens
Submissions made various comments recognising the heritage significance and values of the site, while some queried such value when based on a land use. The Office of Environment and Heritage (OEH) reiterated the State heritage listing and significance of the Chinese market gardens in its submission, noting also that any change in use or development of the site requires the NSW Heritage Council approval. This also reflects its advice that any proposed cemetery expansion (and change of use) should be based on a formal Planning Proposal.

As noted above, given the heritage significance of the site lies in its use as a market garden, any change in use (in full or part) requires suitable investigation of the impact on the heritage significance and a decision from the OEH. The ESMP has indicated that it is preparing a heritage study and this will need to be considered by OEH upon receipt.

Values of operating urban market gardens
Submissions also noted the importance of the market gardens for food production in the urban environment within proximity of fresh food to markets, and the associated educational, open space/visual, tourism, sustainability and cultural benefits. This is also a declining land use within Sydney’s urban environment and particularly this inner city location.

Physical Conditions within the market gardens site
Submissions noted the suitability of market gardens site for its use, given its location on a drainage line/flood way. The site does have a natural watercourse which is subject to flooding and this creates ideal conditions for agriculture, hence its historical use as market gardens. The open channel flows through the site, with evidence of changes to the channel flow over time across the low lying parts of the site. Best practice planning approaches are generally to avoid development within watercourse and adjacent riparian corridors. The ESMP submission notes that engineering solutions will be required to provide for burial space, while noting this could also enable community benefits such as a public walkway through the site.

Council at various meetings with the ESMP has advised that the resolution of drainage issues for burial space together with t eh costing provisions would entirely be a matter for the ESMP.

The ESMP submission and other submissions queried the current gardens operations, citing health, environmental and safety issues. Council has investigated and confirmation has been received from the NSW Government that the water quality in the watercourse/creek satisfies ANZECC guidelines for irrigation purposes.

The merits of retaining the State significant market gardens and of also addressing the needs for burial space are both recognised as important, while acknowledging the complexity of issues arising with the potential use of the market gardens site to achieve a mutually acceptable solution.

The DOPI S65 Certification noted that if the cemetery expansion is found to have merit, is should preferably be supported through a Planning Proposal.

As requested by the DoPI Certification, Council has continued to liaise on this matter and sought with ESMP the necessary background studies that they would need to provide to enable proper assessment of the issues by Council and referral and the necessary heritage assessment by the OEH. As also noted by DoPI and OEH, this should preferably be undertaken through a formal Planning Proposal. Given that the essential background studies have yet to be provided by ESMP in order to fully understand and examine the complexity of issues, it is recommended that a Planning Proposal be sought prior to any consideration of permitting cemeteries on the site. It is recommended that the RU4 – Primary Production Small Lots zone, as exhibited, be retained for the site. Should the use for cemetery purpose be found to be suitable on part of the site in future, then this RU4 zone is considered to remain the preferable zone for the site, with the cemetery use then permitted where suitable. The alternative suggestion is some submissions for an SP Special Purpose zone is not considered suitable as this must identify one primary/special use for the site.

– that for the Chinese market Gardens site, the exhibited RU4 Primary Production Small Lots zone be retained in the draft final LEP.
– Any cemetery use should be subject to a formal Planning Proposal with suitable background studies, and particularly the required heritage assessments.