Brewery plans in jeopardy as NSW planning legislation misfires
Two breweries are facing uncertain futures following adverse planning decisions from councils in rural New South Wales, which the breweries say are down to legislative inconsistencies.
Bucketty’s Brewery announced yesterday that their local authority, Cessnock City Council, had rejected plans for their brewery because of changes to retail land use definitions made in 2018.
Founders Alexi and Nick McDonald submitted their plans for Bucketty’s Brewery to the council back in May. When they originally started planning for the brewery more than two years ago, the brewery was looking at applying under an agricultural produce industry definition, which, McDonald said, fitted into the rural zoning of the area. He said this was the way many breweries in the rural area had managed to obtain approval.
However the NSW government amended its retail land use definitions in 2018 after a one-and-a-half month consultation starting in April that year.
“The government brought in a new artisan food and drink use to clean up the zoning, basically so they could deal with breweries and other businesses like that more easily,” McDonald explained.
“The NSW government put the legislation through, making a brewery an artisan industry, which is great if you’re in Marrickville. But it meant that, inadvertently, microbreweries are now classified as an industry, which is not permitted within rural zoning.”
A letter from the council’s planners said that the proposal does not fit the definition of an agricultural produce industry and, they said; “it is considered that the proposed land use is a type of “industry” which is prohibited in the zone”.
Artisan food and drink use
The legislation changes affecting Bucketty’s were made in an effort to provide some clarity on the growing class of artisanal producers according to the state government.
The NSW government said it had made the move to address concerns that existing definitions were not “adequately encompassing” the growing brewing sector (amongst other artisan producers), which led to “inconsistent application of multiple land uses”.
“Craft and locally produced goods command a price premium and support industries such as tourism and hospitality and provide local employment,” it said when the amendments were made, comparing artisan industries to the wine sector in their importance to local areas.
Under the changes, artisan food and drink industry businesses became a subset of the ‘light industrial’ category. In addition to manufacturing, a venue categorised under this land use would also have to offer tastings, a restaurant or cafe, or retail sales – which the majority of brewpubs and even bigger breweries do. There were also restrictions on the gross floor area of retail sales areas.
Additionally, eight objection letters referencing increased noise, traffic and “anti-social behaviour”, combined with the zoning issues, proved to be a near insurmountable obstacle for the brewery in Bucketty.
However McDonald said that as a result of the complainants, he cut the size of the brewery in half and dropped production capabilities from 20,000 litres a month to 8,000 litres to alleviate their concerns.
“We had a couple of neighbours who were against it, one of them has raised permissions as one of the concerns. Then the council asked for advice and got a lawyer, and the lawyer has come back and said you can’t put a brewery there.”
The legal advice received by the council reportedly indicated that even if the objections were fully mitigated, Bucketty’s would still not be permitted due to the rural zoning of the site and the new land use the brewery fell under.
The McDonalds also investigated turning Bucketty’s into a farm brewery which would help it fit more easily into agricultural producer categories, but this was not acceptable to the council.
“The agricultural produce definition, that’s how other rural breweries do it – loosely fixing the issue previously.
“It’s been a crazy two years. I can have a pub, restaurant, put a hotel and a winery and a cellar door, all of those are permissible, but not a brewery.
“I’ve been on this journey for 12 months, we got advice beforehand and bought the site, went and started spending money on consultants and architects, put a DA in, then 6 months later, this.”
McDonald, who has spent $60,000 on the brewery already, said that he believed the issue was an unintended consequence of the regulations, but one that will block breweries from setting up in rural areas.
“The whole thing was intended to promote breweries, to encourage development and tourism. It’s a touristy area and our brewery was meant to drive people to the Hunter Valley and bring money and jobs and all that.
“It’s getting to be too much money and effort, it is already creating significant additional costs. At the moment our brewery dreams are down the drain.”
McDonald said he would be looking at other towns in the area to locate the brewery.
Cessnock City Council and the NSW planning department were contacted for comment but did not respond by the time of publication. Clayton Barr MP, NSW state member for the electorate of Cessnock, has also been contacted.
James Lidis, member of the Planning Institute of Australia and managing director of Design Collaborative, a Sydney-based planning specialist which also deals with licensing (and is unaffiliated with the planning applications and breweries involved) said that while the artisan food and drink use was a “positive” for the brewing industry, the amendments from the NSW government can force breweries between a rock and a hard place under certain circumstances.
“There’s not much you can do if it’s a situation where something is prohibited. It happens all the time, the state government changes legislation and at one time something you want to do might be permissible, but they make a change and unintentionally they cause an issue. It’s a state-wide thing [planning] and it’s not done on a council-by-council basis anymore.”
Lidis said this may be the first instance of this issue occurring in the state as many other breweries are located in urban areas with industrial zoning.
“Rural zoning is a fairly narrow zoning. Normally it’s not the type of place I’ve dealt with for breweries. Most breweries I’ve dealt with haven’t been outside the city metropolitan area, but they’ve mainly been in industrial areas so that issue doesn’t usually come up.
“I don’t think anyone in their wildest dreams is saying they don’t like it, they just don’t have the power to approve it.”
The objections raised in Bucketty’s case could have been overcome but for the legality issue, he explained, and the only other avenue of recourse would be to appeal to the state government to rezone the site (formerly called a rezoning application but now a planning proposal) but the route has many potential pitfalls, he said.
“The minimum amount of time it takes is 12 months, but it means you could get the legislation changed for that particular property to make it permissible.
“With it, you actually apply to the state because they’re the ones that have the power to amend legislation. If its agreed to, it goes through a public consultation process.”
However as a way forward, it might not be a practical option for Bucketty’s, or other breweries that may encounter the same situation, he said.
“These breweries have had a horrible experience and might not want to deal with the council ever again.
“There is no way around the costs of an application there are matters that have to be dealt with – it’s not a cheap process and it never has been.”
Tumut Rivers Brewing Co
Zoning, planning and licensing issues have been causing problems for another rural NSW brewery, the Tumut River Brewing Company.
As first reported in local publication the Tumut and Adelong Times, the business saw revenues drop 50 per cent after zoning and planning issues at the site which prevented it selling takeaway food and non-alcoholic drinks.
The brewery, which was recently named a finalist in the NSW Tourism Awards, is facing having to relocate as a result.
“We were dependent on takeaway pizzas and beer for weekday profitability and lost our main income stream as a result of this,” co-owner Tim Martin told Brews News.
“Everything is down to the council’s discretion and how they read the law.
“We’ve offered them alternatives which would be completely legal and viable but they have chosen to view the negative and read it in the worst possible light and adopt a restrictive position.
“At some point someone needs to either rewrite the Local Environmental Plan with a bit more leeway, or they need to start looking at it in a more positive light.”
Lidis of Design Collaborative said any liquor-elated business in NSW had “huge hurdles” to deal with upfront.
“Liquor is heavily regulated in NSW and most of Australia, and licenses etc are something you’ve got to fight to get.
“No one would say that a local pub isn’t a facility you should have in your neighbourhood, but you try and put another one up and all hell breaks loose.
“There are not enough resources in government, they’re not necessarily around the issues or familiar with what the police deal with, it’s a bit of a disjointed system.”
An alternative would be to model the system on the Victorian planning process, he said.
“There are ways to improve it. Victoria is probably better than most where they have a more unified process, you don’t have to apply to get planning and liquor licensing permissions, they consider everything upfront in the planning application. The only thing they deal with under the licensing regime is whether you’re a crook.
“The local government deal with it in conjunction with the police and a decision is made about a liquor licence, then you go through the next step of the “fit and proper persons” test, but for that change to happen you’d need a lot of political will.”
“[If it was changed] it would benefit them and breweries and other venues today, straightaway.”