Council Report Supporting Rezoning to RU4

Mayoral Minute No. MM73/10

Subject:                  Chinese market gardens – proposed rezoning

Folder No:                   F2004/07905

Author:                   Councillor Matson, Mayor


The Chinese Market Gardens at Phillip Bay are State heritage listed and have been used as market gardens for over 150 years. Council has a clear position of support that these gardens should remain, despite interest from the adjacent cemetery to extend into this land. In response to a land assessment by the owner, the NSW Government (Land and Property Management Authority), Council prepared a submission and letter confirming its support (see Attachment 1). Council is recommending that the gardens be rezoned from the current Residential 2B zone to a RU4 Rural Small Holdings zone in the Comprehensive LEP process, to ensure the continued use and protection of these gardens. This minute suggest that an earlier one-off spot rezoning should be considered.


The Maroubra Beach Precinct Committee has requested that Council consider a one-off spot rezoning for the gardens site given their importance to the community. I consider that this site warrants being rezoned earlier than the comprehensive LEP process to clarify and give community assurance to the continued future of the market garden.

The site is owned by the NSW Land and Property Management Authority which would need to agree to any spot rezoning, as would the NSW Department of Planning.

 Financial impact statement

The preparation of a spot rezoning LEP would require staff, statutory advertising and a public consultation process.  The financial implications for an LEP amendment will be approximately $20,000 plus staff time.  This will impact and delay the preparation of Council’s comprehensive LEP as the project needs to be accommodated with the existing work program.


This site warrants an early clarification of the zoning.


That Council write to the NSW Government reiterating its support for retaining the Chinese Market Gardens and seeking support to proceed with a spot rezoning of the site to conserve its market garden use.



1.View Council letter to the NSW Government  
2.View Council submission to the NSW Government  


Council letter to the NSW Government /

Attachment 1


SM           F2004/07905

Contact:   Susan McLaughlin 9399 0957

Mr. Dan Cross

Senior Environmental Officer

NSW Department of Lands

PO Box 3935

Parramatta NSW 2124

Re: Randwick City Council Submission – Chinese Market Garden Assessment

Dear Mr. Cross,

Thank you for the opportunity to comment on the NSW Department of Lands Draft Assessment of Crown Land for the Chinese Market Gardens at Phillip Bay. We understand that the aim of the assessment is to determine the suitable land use designation(s) for the site in its current state and to evaluate the appropriateness of future land uses.

We agree with the statement in the Executive Summary, that ‘the site currently has a high capability for agriculture, and is functioning very successfully in this purpose’ and that the site would ‘not be suitable for the establishment of a cemetery’. We support the rezoning of the site to a more appropriate use other than the current residential designation, to recognise and ensure the continuation of the Market Gardens. The Market Gardens’ ongoing agricultural production for the past 150 years has State Heritage significance and is identified on the State Heritage Register. It represents the oldest market gardens operating in Randwick and one of the oldest sites of market gardens in New South Wales.

Of the three suitable land uses recommended (Environmental Protection, Nature Conservation and Agriculture), we would recommend that the site be designated under Agriculture category. However, as described in our attached submission, we request that the Department of Lands’ revise their suggested land uses in accordance with the zones offered in the template LEP. The template LEP does not have a zone specifically entitled Agriculture, therefore we recommend Rural Small Holdings zone (RU-4), which allows for agricultural production. We have consulted with Department of Planning officers and they have agreed with this approach for market gardens. In order to afford protection of the market gardens, we also recommend placing a restriction on further subdivisions of such lands through minimum lot sizes for subdivisions.

Given the ecological sensitivities on the site, the dependency for the agricultural use to access a sustainable water source and the biodiversity that is dependent on the existing creek and riparian corridor, we suggest that additional objectives be written into the new land use designation that would afford suitable protection. The Department of Lands should also consider the applicability of Clause 42E of the Randwick LEP 1998, as the unnamed creek constitutes a watercourse under the definitions contained within the LEP.

Soil contamination is a concern that should also be closely examined during the re-designation process since the probability of contaminants in the soil is high. In order to address and to remediate any existing contamination, we recommend that the Department take the appropriate steps, as defined in our attached submission.

I trust that this will assist you in finalising your Assessment. Your feedback on the suggested LEP provisions would be appreciated.

If you have any questions or comments about this attached submission, please contact Susan McLaughlin, Senior Environmental Planner at 9399 0957 or Karen Armstrong, Manager of Strategic Planning at 9399 0895.

Yours Sincerely,

Sima Truuvert

Director, City Planning

Council submission to the NSW Government

Attachment 2


SM           F2004/07905

Contact:   Susan McLaughlin 9399 0957

Re: Randwick City Council Submission – Chinese Market Garden Assessment


The draft Assessment prepared by the Department of Lands was initiated due to a request by the adjacent land use to have the subject land incorporated into Botany Cemetery. The Department concluded that the site is ‘not suitable for the establishment of a cemetery’ and that it would be inconsistent with the Australasian Cemeteries and Crematoria Association (2004) Guidelines for the Establishment of a Cemetery. As the Assessment states, the market gardens on the subject site have a very high capability for agriculture, and are functioning very successfully in this purpose. Randwick Council supports the current agriculture use and concurs with the Department of Lands’ concerns of incorporation. Council does not support this cemetery proposal because of several key reasons:

  • State Heritage Significance of the Chinese Market Gardens
  • Susceptibility of flooding on site and high water table
  • Importance to preserve local agricultural production
  • Biodiversity preservation

The Market Gardens provide a valuable community resource from a heritage, cultural, ecological, aesthetic, and agricultural standpoint. The protection of each of these aspects is vital in its own right and should be protected collectively in perpetuity on the site. Council supports the continuation of the Market Gardens and this submission identifies further matters to be considered in the Assessment. These will assist Council in preparing its Comprehensive LEP and placing the appropriate planning controls over the site.

The Site

The subject site is 7 hectares and it is bounded by Bunnerong Road to the east, Botany Cemetery to the north, Bicentennial Park to the west and Hill 60 to the south (a sand dune previously subject to sand extraction). The property is currently used for market gardens as it has been historically used. According to the State Heritage Listing, in each garden, there is a group of buildings used to wash vegetables, or as storerooms for agricultural machinery, fertilizer and tools. It is Crown land located within the Randwick Council Local Government Area. A creek bisects the site and local flooding occurs. The site is currently zoned 2B Residential under the Randwick City Local Environment Plan (LEP) 1998. A more appropriate land use designation will be considered in the new draft Comprehensive Plan, which is due to be finalised by 2011.

 Land Use Proposals

The suitable land uses suggested by the Department of Lands cover three broad topic areas: Environmental Protection, Nature Conservation and Agriculture. Each of these categories represents certain aspects of the site and collectively, they exemplify the complexity of this site. However, given that the topic areas do not correlate directly with the Standard Template LEP zones, we request that the Department of Lands specify their preferred land use zone in accordance with the template. We have translated the Department of Lands’ three recommended land uses into the template zones (noted in parenthesis below) and explained their merits and concerns individually, given the objectives of the subject zones. This will assist in our current preparation of a comprehensive LEP for Randwick City.

1) Environmental Protection (Environmental Conservation):

The natural features of the site, such as the low-lying land, high water table, creek corridor and unknown soil conditions provide justification for the Environmental Protection Designation. The template Environmental Conservation zone designation is intended to protect land that has high conservation value. The specific objectives of this zone include:

  • To protect, manage and restore areas of high ecological, scientific, cultural, or aesthetic values
  • To prevent development that could destroy, damage or otherwise have an adverse effect on those values

The agricultural production on the site thrives on the existing natural features of the land and has the potential to protect the existing ecological values on the site; however, environmental protection is not the primary purpose of agricultural production and may even be detrimental at times. Therefore, using this land use designation may leave the land use potential subject to interpretation as it may be contradictory to the original intent of the zone objectives.

2) Nature Conservation (Environmental Management):

The riparian corridor that runs through the site provides significant ecological benefits as it provides habitat for numerous flora and fauna species. While the assessment indicates that no threatened species were specifically found within the study area, many threatened and endangered species are known to exist within 5 km of the study area, as referenced on page 19 of the Draft Assessment. The Randwick Council Biodiversity Management Team has created the North Botany Bay Fauna Corridor in order to protect biodiversity, particularly the Eastern Suburbs Banksia Scrub and Sunshine Wattle. The objectives of the template Environmental Management zone are to:

  • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
  • To provide for a limited range of development that does not have an adverse effect on those values.

The objectives of this zone are very similar to the Environmental Conservation zone with the exception of the ability for limited development to occur on the site. Similar to the explanation above for Environmental Conservation, the agricultural production that occurs on site does not necessarily protect and/or restore the ecological balance on site; however, it does provide a use that offers some degree of environmental management while also offering the benefits of local food production and heritage values. While this land use is more appropriate than Environmental Conservation, using this land use designation alone may not protect the primary use of the land, leaving the agricultural use vulnerable to future interpretations as an appropriate environmental management objective.

3) Agriculture (Primary Production, Rural Landscape, Rural Small Holdings):

Local agricultural production is the primary use on the Chinese Market site. The heritage significance of the site is largely attributed to 150 years of agricultural production, representing the oldest Market Garden operating in the Randwick Council and one of the oldest sites of market gardens in New South Wales. Traditional methods of agricultural production are still the predominant means of tilling the soil, planting the fields and picking the crops. The assessment provided public comment from one of the tenants, stating that ‘the farm supplies produce to in excess of 20 grocery stores and fruit markets’. We support an agricultural land use designation and believe that of the three suitable land uses that the draft Assessment suggests, this is the most appropriate.

The LEP template offers three zones in which agriculture is a permitted use: Primary Production, Rural Landscape and Rural Small Holdings. Primary Production accommodates more intensive uses such as mining and extractive industries as well as extensive agriculture. Rural Landscape is less intensive than Primary Production as it does not allow extractive industries but it still offers extensive agriculture but without the provision for roadside stalls and the objectives to protect the scenic nature of the site, as does Rural Small Holdings. The Rural Small Holdings zone encompasses many of the qualities of the existing site, and offers the highest level of protection while enabling the agricultural use. The objectives include:

  • To enable sustainable primary industry and other compatible land uses.
  • To maintain the rural and scenic character of the land
  • To ensure that development does not unreasonably increase the demand for public services or public facilities
  • To minimise conflict between land uses within the zone and land uses within adjoining zones.


It is difficult to classify this property, given its current operation, under the zones in the standard LEP due to its uniqueness in terms of local food production, biodiversity, heritage and scenic values. If the site was zoned as Environmental Protection or Nature Conservation (Environmental Conservation or Nature Reserve as defined under the new LEP) the strict definitions of these zones may be contradictory to the agricultural use that currently exists on site.

Under these circumstances, we believe the Rural Small Holdings Zone (RU4) as defined in the Standard LEP affords this site the highest level of protection, with the least risk of misinterpretation that could jeopardise it in the future. The uses permitted in this zone include: extensive agriculture, farm buildings, horticulture, roads and roadside stalls. These are appropriate to enable the continued operation of the Market Gardens.

The Rural Small Holdings zone relates most closely with the agricultural land use designation that the Department of Lands has suggested as a suitable land use for this site. However, long term viability of the site is dependent on clean and reliable water sources.  Consistent with Clause 42E of the Randwick Local Environment Plan 1998, we believe additional objectives should be added to the Rural Small Holdings zone to protect waterways and biodiversity since the template LEP objectives do not clearly address ecological or riparian health.  We will consider adding additional objectives as appropriate in the new Comprehensive LEP. If the unnamed creek on the property is deemed to be a Category 2 or Category 3 waterway as defined in 42E, then the appropriate objectives should be incorporated as listed in 42E (See attached LEP extract).


The current creek on the property also provides significant riparian habitat, such as the endangered Banksia scrub which attributes to the high levels of biodiversity found in this area of Botany Bay.  The assessment stated that the Department has not undertaken nor commissioned any soil contamination investigations of the study area as part of this assessment. However, as evidenced in the Guidelines for Assessing Former Orchard and Market Gardens by the Department of Environment and Conservation, the likelihood of contamination existing on this property is high given the long history of market garden activities as past horticultural practices on these lands may have left chemicals in the soil, such as organochlorine, arcenic, cadmium, copper, lead and zinc. In order to protect the biodiversity on the site and to remediate any existing contamination, we recommend that the Department take the following steps prior to redesignation:

  • Prepare a preliminary soil assessment to determine levels of soil contamination
  • If contaminated soil is discovered, follow steps outlined in SEPP 55.

Randwick Council appreciates the recognition from the Department of Lands that the Chinese Market Garden site is significant and warrants the highest level of preservation consistent with the State Heritage Listing. We agree with the assessment in terms of the inappropriateness of the incorporation of this site with the Botany Cemetery. The redesignation of the residential land use designation is imperative for future protection of this site. We request that the three options recommended in the Assessment are revised to be consistent with the Comprehensive LEP designations. Based on the LEP designations, we recommend that the Chinese Market Gardens be designated Rural Small Holdings (RU-4) to preserve the primary agricultural use on the site, while protecting the rural and scenic character of the land. In addition, we request that the Department of Lands conduct a soils assessment to determine contamination levels and if contamination is discovered, follow the steps in SEPP 55.

The land use designation on this property will set a precedent for the remaining Market Gardens in our Council area as we move toward developing our new Comprehensive LEP. We have been in correspondence with the State Department of Planning on the appropriateness of Rural Small Holdings (RU-4) for these Market Gardens and they have supported this approach to the zoning and planning provisions. We will continue to consult with the Department of Planning over the course of the LEP process that is estimated to be finalised by 2011. The Assessment prepared by the Department of Lands on this particular Market Garden and our response to the study will be taken into consideration in the LEP land use designation process.

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