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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-18 Daily Xml
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ENVIRONMENT PROTECTION (RIGHT TO FARM) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2009. Page 3298.)

The Hon. J.S.L. DAWKINS (21:03): I rise to speak on behalf of Liberal members in this place and note the input into this matter from the member for Hammond in another place and his interest in this topic. This bill amends the Environment Protection Act 1993 and makes a consequential amendment to the Land and Business (Sale and Conveyancing) Act 1994.

In the face of the advance of the urban sprawl of Adelaide into farmland, this bill seeks to provide additional protection for farmers against complaints from residential neighbours arising from the carrying on of normal farming activities. It also provides that prospective purchasers of residential land in the vicinity of farms be advised of that fact prior to formalising the purchase.

The amendment introduces the expression 'protected farming activity' through which a defence can be made against prosecution. Regulations will prescribe a code of practice for some farming activities while others can be carried on to generally accepted standards for that activity. As long as farming is conducted within these parameters, farmers should not have to defend themselves against complaints of this nature. Further, the amendment to section 130 of the EPA Act 1993 requires that, if the authority or agency believes that to be the case, they will inform the complainant accordingly and advise him or her not to proceed with court action.

My colleague the member for Hammond discussed this bill with a number of real estate agents who operate in peri-urban areas, particularly in the eastern Hills region. Apparently, in those discussions, those agents all agreed with the purpose of and the need for these changes. They also felt that it would not affect the market or land values to any marked extent, if at all. I would say that I know a number of real estate agents in my own area who deal with a lot of sales of rural living blocks and they would have particular experience in the hopes and aspirations of the people who buy those blocks and also of the people who wish to pursue genuine farming activities around those areas.

I think we would all be aware that some people purchase land in these peri-urban or metropolitan fringe locations because it is less expensive than prime suburban land and part of the compromise is distance to commute, while part of it may be accepting that it is near farmland with all the incumbent characteristics. Obviously, some developers will talk up the location as providing a green change lifestyle, therefore increasing its appeal. In the end, the individual chooses. This bill facilitates an informed choice and provides a mechanism for minimising misunderstandings and complaints that lead to expensive court proceedings.

In saying that we support the bill, I think a lot of the issues that this bill is designed to overcome could otherwise be overcome by a fair degree of common sense; however, as I have already mentioned, I think that some people move into peri-urban or semi-rural areas with a view that many things that occur in the metropolitan area should be the case in their new location, and that does cause some problems.

Certainly, having farmed in the Gawler River area, which was adjacent to rural living localities such as Lewiston and also the Gawler Belt and Ward Belt areas, I can speak of the problems that arise for both the people who have moved to those areas to live and also those who have been there a long time in a genuine farming occupation. I had the misfortune a number of years ago to have a large number of probably the best crop of young ram lambs that I ever bred destroyed or maimed by two dogs that had come off a neighbouring rural living area. It was a devastating experience for my family and me. Despite that, I felt some sympathy for the owners of one of the dogs (we never found the owner of the other dog) who I think was just ignorant of the responsibilities that you have if you live next to livestock.

There are a number of other things that I can relate to my own experience. I can recall a farming neighbour of mine being reported for having a dead sheep in his paddock. I think the dead sheep only remained in the paddock for 24 hours but, because it was a rather fat sheep that had gone onto its back and had its legs sticking in the air, it was something that was well recognisable to many people who drove past. That person was reported to the RSPCA, I think. I know that that person was very good at livestock husbandry and it was an unfortunate thing. The person who reported the farmer did not realise that he had other occupations and may well have been shearing at the time. The animal was removed as soon as possible.

There was also an occasion when someone who had moved into the area near me (who had come from the middle of suburbia) reported me to the RSPCA for having what was termed 'a skinny horse'. They said I was starving the horse to death. We knew the people who had bred that horse as a trotter and it had been used by my children. It was getting beyond that but we kept it on. We knew that the horse was over 30 years of age. Most people in this place would know that that is a very great age for a horse. The person, who meant well, put some hay over the fence for the horse but my rams came along and ate it before the horse got to it.

Those of us who understand genuine farming practices would also recognise that there are people who have been very good with intensive farming practices, such as poultry and pigs, who have had some difficult incidents with people who just do not understand the management practices of those exercises and, of course, the fact that sometimes there are odours that come out of those places. If the bill allows for people selling these blocks to understand those facts, it would be better.

There are other issues which relate to the spraying practices employed by farmers, the fact that people use tractors and headers into the night hours, and there are many others that people who move into what are farming areas do not understand as well as the people who have been there all their life. With those words, I indicate that the Liberal Party will be supporting the bill.

The Hon. M. PARNELL (21:13): The Greens have some sympathy with the objectives of this bill but we believe that this is the wrong tool for the job. The effect of this legislation is to put farming practices beyond the reach of pollution and waste laws under the Environment Protection Act.

The method that the honourable member has used is to provide a defence for certain protected farming activities from criminal and certain civil charges under the act. The effect of the amendment is basically to require the Environment Protection Authority to come up with rules and regulations for each type of farming activity. The bill provides that if an activity is confined to those codes of practice—as they are described—then they will be protected from any criminal or civil action.

However, if the EPA does not have a code of conduct for every type of farming, then the test is generally accepted standards and practices for that particular farming activity; in fact, that imposes no obligation on the farming sector to ever improve its performance, and we all know that generally accepted standards change over time.

I was in the position as an environmental lawyer of having to advise a great many people in relation to urban-rural interface issues, and I have to say that, in some of those cases, my advice to the clients was, 'Get over it. You're in the country; it smells like the country,' but that does not mean that every farming activity is operating under best practice and that every activity is minimising its pollution.

One example (and it is one of the classic interface issues) is gas guns used to frighten birds from orchards. Most operators use them responsibly. One case I saw was a gas gun aimed at the neighbour's bedroom window 20 metres away, and it fired every 45 seconds. That smacked of vindictiveness, rather than best farming practices, but under this regime, unless the EPA had a code of conduct for that farming activity, the generally accepted standards and practices for that activity would be the test and the person behaving in that way would be protected from our pollution and waste laws.

I am sympathetic to what the honourable member is trying to do, but this is not the right tool. The question is: how do you best protect the right to farm? I think the answer to that is fairly clearly through our land use planning rules. We have provisions for block sizes; we can have provisions for buffer zones as well.

Another case I remember was a chicken composting facility in Kanmantoo, and it was where the dead chickens from the battery hen farms were taken to be processed into mainly fertiliser. At one level you can think, 'Well, that's great. They're re-using this waste product and turning it into a useful product, as opposed to just putting it in a hole in the ground,' but it stank to high heaven, and the neighbours all complained.

The problem was that the buffer zone for that activity was the neighbours' land. If the land use planning rules had been applied more thoroughly, that operation would have been found on a big parcel of land in the centre of that parcel of land and the operator would be responsible for their own buffer, not creating a buffer out of all their neighbours' properties.

I think we do need to consider in this place how to properly protect our rural industries and how to protect the right to farm, but I do not think that this blanket approach, which locks our farming activities into their status quo operations, is the way to proceed, so the Greens will not be supporting this bill.

The Hon. R.P. WORTLEY (21:18): I rise to speak briefly on the private member's bill, the Environment Protection (Right to Farm) Amendment Bill 2009. The government does not support the bill in its current form. I would like to make it clear to the council that the government does support farmers having a right to operate and farm their lands. However, this proposed right to farm bill is not the best mechanism for achieving this outcome.

The bill proposes to amend the Environment Protection Act 1993 to exclude all protected farming activities from the operation of the offences and penalties under the Environment Protection Act. This would have the effect of diminishing the Environment Protection Authority's capacity to prosecute for any noncomplying activity under the Environment Protection Act defined as protected farming activity.

Protected farming activities are defined in the bill to include activities that conform with any code of practice especially established under the act or, if no code is established, generally accepted standards and practices. This broad definition potentially allows for the entrenching and the validating of unsatisfactory practices.

It means that a range of offences that apply generally across the community and to all other industries covered by the act, ranging from causing serious environmental harm to breaches of environment protection policies, would not necessarily apply to farming. It would also prevent administrative enforcement through environment protection orders insofar as the penalty for noncompliance, which underpins the validity of the order, would also be subject to this new defence.

As the honourable member points out, some North American jurisdictions have tried to address this issue in legislation, but not in the sweeping way that this bill proposes. This bill goes further than right to farm laws in Canada and the US, which generally exclude common law nuisance actions and which are subject to the requirement that the farmer is complying with relevant public health and environmental laws.

It is also important to note that the 1999 Premier's roundtable report revealed that this type of legislation has a variety of shortcomings. The unanimous view of the Premier's roundtable in 1999 (which originally was set up in response to the South Australian Farmers Federation's concern at the time) was that formalising a right to farm becomes unnecessary when land use planning and associated policy settings are correct. The use of right to farm legislation will not do anything practical to help resolve existing agricultural land use disputes.

It is our view that it is more important to focus on progressing ongoing work on designating primary production areas and buffer policies under the auspices of the 30-year plan and a primary industries land strategy than to implement amended legislation. Actions likely to flow from the 30-year plan will seek to promote supportive local conditions for primary producers by addressing factors that generate land use conflict. The particular initiatives proposed in this bill may be better dealt with in that context. Therefore, the bill is opposed.

The Hon. R.L. BROKENSHIRE (21:21): I am disappointed to hear that the government will not support this bill, because one of the most important issues facing South Australia at the moment, next to water, is food security—national food security and sustainable agriculture. When it comes to our future economic opportunities, whilst the government is pretty focused on mining—and Family First and I know other colleagues support mining—the fact is that mining is not sustainable. At some stage in the next few generations, we will run out of mineral wealth, but we have very good farmers in South Australia. Irrespective of our beliefs about climate change, the fact is that we will adapt as farmers, and we will continue to provide opportunities for the state.

We have one problem, and that is, over the years, more and more of our best agricultural land has been encroached on by concrete slabs. It is not only what we see in the Greater Adelaide Plan, but if members look at exit strategies in the Riverland at the moment, whether or not you agree with them, they will bring the right to farm into question. Even in regions remote from Adelaide like the Riverland, people will retire and build on vacant blocks that have been cleared, and the ability of longstanding family farms to do their work will be threatened. You do have grape harvesters at night; you do have to spray; you do have to run tractors and machinery.

We have other issues as well when it comes to right to farm. I can tell members that, on numerous occasions, people have utilised the EPA, which is limited in its resources. As soon as any member of the community rings and makes a complaint, the EPA must treat that complaint with absolute seriousness and it has to investigate. That becomes a huge impost on the right to farm. It makes it difficult for farmers to concentrate on their core business, and often it becomes a situation where they are focused on complaint after complaint simply because they have moved into a rural area and they did not know that there were issues to do with rural situations.

At harvest time right now, they do not necessarily reap grain just in the daytime. They reap grain at night; they bale hay at night. Our own family has been baling all night this summer because of the conditions. They are out on the tractor baling all night. If someone moves into a 10 acre block next door and rings the EPA complaining about our tractor and baler noise, then we will have the EPA—and I am using my own family as an example, but it can happen to any family—coming the next day and saying, 'What were you doing operating that tractor at night?' What they were doing was producing food—an economic opportunity for South Australia. We have a government that wants to shut that down.

Why have they done this in North America? Why is the Victorian Farmers Federation looking at this? Because they are focused on the economic sustainability of their states and family farming. That is what this is all about. I will not hold up the council any longer, because we do have other very important legislation, but I appeal to my colleagues to look at this. Yes, it could be broadened. I have tried to make this a reasonably simple bill to lift the debate. I conclude with these remarks. Let us remember this: in his remarks the honourable member said that, in 1999, the Premier had a roundtable conference that involved the South Australian Farmers Federation. Well, I remind you, Mr President, that was 10 years ago. The premier at that time was John Olsen. That is a long time ago. Things have moved on. Much more development and subdivision has occurred.

I finish with this: yesterday I had a phone/teleconference with SAFF members from right across the state—from the South-East to the West Coast. I had people representing the poultry and pig industries. We have done away with horticultural research and we have taken our eye off the ball when it comes to the Riverland. We are removing from the dairy industry in this state and relying on other states for that. The minister for agriculture said that we are going to focus our opportunities on R&D and growth in pig, poultry and wine.

That is what this government's agenda is yet, as recently as yesterday with that teleconference, SAFF representatives said to me (and I am happy to put this on the public record), 'We strongly support this legislation. Not only do we support it but also we want it broadened.' This is an important piece of legislation. I commend this right to farm bill as a start to protecting economic sustainability. What we have done since 1836 in this state is to grow food. Let us have the opportunity to continue to do it. I commend the bill to the council.

Bill read a second time and taken through its remaining stages.

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