Posted on March 29, 2020 by Katie Mortimer and Sue Puckeridge
Commencement of Planning for Bushfire Protection 2019
In early March 2020, Planning for Bushfire Protection 2019 (PBP 2019) was given legislative effect and replaced Planning for Bushfire Protection 2006 (PBP 2006).
PBP 2019 is not a response to the recent bush fire events in NSW, but the result of years of consultation. Updates between the 2006 to 2019 versions reflect improved scientific understanding of bush fires, changes to building construction standards, and the findings from the Victorian 2009 Bush Fires Royal Commission.
Key Changes from PBP 2006 to PBP 2019
The NSW Rural Fire Services (RFS) state that the key updates in PBP 2019 include:
- changes to development setbacks due to the use of different fuel loads to define distances. These replace the distances previously contained in Australian Standard 3959:2009,
- a new strategic planning chapter, to ensure that bush fire risks are considered during rezoning and strategic planning. Previously PBP 2006 included a short section only on bush fire planning during the preparation of LEPs and DCPs,
- new information governing development in grassland areas, in recognition of grassland fires posing different threats to forest fires,
- the identification of special fire protection purpose developments (being developments that are occupied by at‑risk members of the community), that are considered to have less vulnerable risk profiles,
- standards for assessing what constitutes an ‘Inner Protection Area’ and an ‘Outer Protection Area’ in the asset protection zone, and
- the separation of performance based controls into different chapters for differing development types – being: residential and rural subdivisions, special fire protection purpose developments, residential infill development, and other development. Previously, PBP 2006 contained all performance based controls in one chapter.
Why the Changes Matter – Legislative Amendments
Development on bush fire prone land
The Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 (Amending Reg) has amended clause 272 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), and prescribed PBP 2019 for the purposes of s4.14(1)(a) of the EPA Act.
Under section 4.14 development consent cannot be granted for the carrying out of certain types of development on bush fire prone land, unless the consent authority:
- is satisfied the development conforms to the specifications and requirements of PBP 2019, or
- has received a certificate from a person recognised by the NSW Rural Fire Service as a qualified bush fire risk assessment consultant stating the development conforms to the specifications and requirements of PBP 2019.
Issue of Bush Fire Safety Authorities
The amendment to cl 272 of the EPA Reg also impacts on the information that is required to accompany an application for a bush fire safety authority (BFSA).
Section 100B of the Rural Fires Act 1997 requires that a BFSA be obtained before:
- bush fire prone land that could lawfully be used for residential or rural residential purposes is subdivided, or
- development of any bush fire prone land for a special fire protection purpose occurs.
An application for a bush fire safety authority must include a classification of vegetation surrounding the property in accordance with the system in PBP 2019, and an assessment of the extent to which the proposed development conforms with or deviates from PBP 2019 (see cl 44(1) and (4) of the Rural Fires Regulation 2013).
Complying Development on bush fire prone land
Complying development is permitted on bush fire prone land pursuant to a number of SEPPs, provided that the development complies with Planning for Bushfire Protection, or is not carried out on land in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ).
The State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020 (SEPP Amendment) updates references from PBP 2006 to PBP 2019 in LEPs, a REP, and a number of SEPPs that previously referred to PBP 2006. These include the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Rental Housing), State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and State Environmental Planning Policy (Infrastructure) 2007.
Complying development must now conform to the standards in PBP 2019.
Savings & Transitional Provisions
The amending instruments insert savings and transitional provisions for DAs and CDCs. To date, we have not seen a savings or transitional provision that saves any pending applications for a BFSA.
The Amending Reg inserted a new cl273B into the EPA Reg that stipulates the changes prescribing PBP 2019, do not apply to a DA ‘made (but not determined) before 1 March 2020’.
Complying Development Certificates
The SEPP Amendment has inserted different provisions into a number of SEPPs, to ensure the changes do not affect any applications for CDCs made but not finally determined before 1 March 2020. See for example, new clause 57 in the Affordable Rental Housing SEPP, and new clause 1.13(4) in the Codes SEPP.
Read the amending instruments here:
If you want to discuss this post, please contact Katie Mortimer on 8235 9716 or Sue Puckeridge on 8235 9702.