Posted on June 11, 2024 by Katie Mortimer and Samantha Hainke 10

Integrated Development and the requirement in Planning for Bushfire Protection that Asset Protection Zones be maintained in perpetuity

Planning for Bushfire Protection 2019 (PBP) is often considered by consent authorities when dealing with development applications proposed on bush fire prone land, either by reason of section 4.14 of the Environmental Planning and Assessment Act 1979 (EPA Act) or when seeking a bush fire safety authority (BFSA) from the Commissioner of the NSW Rural Fire Service (RFS Commissioner) pursuant to section 100B of the Rural Fires Act 1997 (RF Act). 

Integrated Development & Bush Fire Safety Authorities 

The need for a BFSA in order to carry out a development will make it ‘integrated development’ for the purposes of the EPA Act, if an applicant opts in to the integrated development provisions. 

When a consent authority deals with development that is integrated by reason of s100B of the RF Act, it must obtain the general terms of a BFSA (GTAs) from the RFS Commissioner. 

If the RFS Commissioner issues GTAs and a consent authority grants development consent, the consent must be consistent with those GTAs. If the RFS Commissioner refuses to issue GTAs, a consent authority must refuse development consent. 

However, there are circumstances where a consent authority may not have guidance from the RFS Commissioner. This may occur where:

• the RFS Commissioner does not inform the consent authority whether or not it will grant GTAs, 
• a DA is the subject of class 1 proceedings in the Land and Environment Court, in which case the Court can grant development consent irrespective of the RFS Commissioner refusing to issue GTAs. 

In these circumstances the assessment of bushfire issues and a development’s compliance with PBP will be a matter for merit assessment.

Consideration of these issues is critical as if a consent authority grants development consent to the integrated development, the RFS Commissioner must grant approval to an application for a BFSA that is made within 3 years after the date the development consent is granted, on conditions that are not inconsistent with the consent. The RFS Commissioner will be bound by the consent authority’s determination of the merits.

The Requirement for APZs to be Maintained in Perpetuity 

In a recent Land and Environment Court decision, Espinosa C was determining whether development consent should be granted to an amended development application, where the RFS Commissioner had not issued GTAs. Development consent was sought for a 3-lot subdivision and works to create an asset protection zone (APZ). 

The applicant for development consent and the local council both relied on bushfire expert evidence. The agreed evidence was that an APZ of 21.5m was required for the development to comply with PBP.

The controversy was that 6m of the required 21.5m APZ was proposed outside the site, on land in a council reserve (Adjoining Land).

PBP requires that APZs be maintained for the lifetime of a development, unless modified by a subsequent consent. To guarantee management in perpetuity, PBP seeks that APZs be contained within a development site and not on adjoining lands. APZs on adjoining lands are not encouraged but can occur if a covenant under s88B of the Conveyancing Act 1919 is imposed, or a Plan of Management exists, ensuring that management of the APZ occurs in perpetuity. 

Espinosa C ultimately concluded that the Adjoining Land was ‘managed land’ that could comprise the required APZ, as she considered it improbable there would be any change in how the local council treated that part of the reserve that would increase bushfire risk. The Adjoining Land had been managed as an APZ. Espinosa C was consequently satisfied there was no need to impose a legal mechanism under the Conveyancing Act 1919 nor new Plan of Management for ongoing management of the Adjoining Land, and development consent should be granted.

The local council appealed that decision.

When determining the appeal, Preston CJ found that the Commissioner asked the wrong question in contemplating whether the Adjoining Land was ‘managed land’, and it was an error to consider that the Adjoining Land was presently managed as an APZ. His Honour stated: 

The bush fire protection measures in the PBP, including the provision of APZs, are forward-looking. The measures are intended to protect the proposed development for the lifetime of the development. Hence, it matters not whether the APZ that is proposed to provide bush fire protection for a development is an existing APZ or a new APZ, either way the APZ must be managed in perpetuity. The PBP sets this as a performance criterion for any APZ, whether existing or new. The proposed APZ must be guaranteed to be managed in perpetuity.

Preston CJ also stated that the only conclusion available to the Commissioner was to find that the performance-based solution in s3.2.6 of PBP, of there being an adopted Plan of Management in respect of the council reserve providing for management of the APZ in perpetuity, was not achieved. 

Takeaways 

If adjoining lands are relied on for APZs and proposed to be accepted by a consent authority, care should be taken to ensure a mechanism is created under the Conveyancing Act 1919 or a Plan of Mangement is adopted, ensuring the management of that APZ in perpetuity.

This is required irrespective of whether the adjoining lands are already managed as APZs for other purposes or for a different development. A mechanism is required that ties management of the APZ to the development that is being approved. 

You can read the decision here:  Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49.

To discuss this post, please contact Katie Mortimer on 8235 9716 or Samantha Hainke on 8235 9727.