Posted on June 21, 2021 by Sue Puckeridge and 165

UPDATE – Amendments to flood prone land use regulations and controls commencing in July 2021

Last year, we blogged about the exhibition of the NSW Department of Planning, Industry and Environment (Department)’s proposed updates to the regulations, directions, guidelines and policies relevant to flooding and flood-related constraints in land use planning (‘Flood Prone Land Package‘).

The Flood Prone Land Package has now been finalised. The aim of the reforms is to better manage flood risk throughout NSW, particularly flood risk beyond the 1% AEP.

The Flood Prone Land Package will result in a closer alignment of land use planning with flood risk and commences on 14 July 2021. Councils need to amend their land use planning documents before that date.

Flood Prone Land Package

The Flood Prone Land Package will include the following material:

• a revised s9.1 local planning direction on flooding (Local Planning Direction),
• a new planning circular: Considering flooding in land use planning: guidance and statutory requirements (Planning Circular),
• a new guideline: Considering Flooding in Land Use Planning (Guideline),
• Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021,
• Environmental Planning and Assessment Amendment (Flood Planning) Regulation 2021 (EPA Amendment Regulation).

The Flood Prone Land Package also proposes State Environmental Planning Policy amendments in relation to 2 new standard instrument Local Environmental Plan (LEP) clauses, which we discuss further below.

To date, only the EPA Amendment Regulation has been published in final form. The other relevant documents will be made available on the Department’s website and the Legislation NSW website in the lead up to the date of commencement.

EPA Amendment Regulation

The EPA Amendment regulation changes the current information relating to flood-related development controls that must be included in a s10.7 planning certificate.

As of 14 July 2021, a s10.7 planning certificate will need to specify whether the land or part of the land to which the certificate relates is:

• within the flood planning area and subject to flood related development controls (cl7A(1)), or
• between the flood planning area and the probable maximum flood (PMF), and subject to flood related development controls (cl7A(2)).

‘Flood planning area‘ and ‘probable maximum flood‘ have the same meaning as in the NSW Government’s Floodplain Development Manual, published in 2005.

The EPA Amendment Regulation can be viewed here.

The final changes to other material included in the Flood Prone Land Package have not yet been published, however the information currently available provides as follows:

New LEP clauses

Two new standard instrument LEP clauses are proposed:

• a flood planning clause, and
• an optional special flood consideration clause.

Both clauses introduce flood-related development controls.

The flood planning area clause will be mandatory and will be automatically inserted into all councils’ LEPs.  It will replace councils’ existing flood planning clause and apply to land within the flood planning area. Based on the draft currently available, where the clause applies, a consent authority must be satisfied as to various flood-related matters prior to the grant of consent, and be satisfied that various projected changes to flood risk as a result of climate change have been considered in the design of the proposed development.

The special flood considerations clause will only apply to councils that elect to opt into it. A separate SEPP amendment will be undertaken by the Department for those councils that choose to opt into the clause. Councils must submit their interest to incorporate the clause in their LEPs. Submissions of interest to opt in can be made at this link until 30 June 2021.

Again, based on the draft of the clause currently available, the clause will apply to land located between the flood planning area and up to the level of the PMF with specific consideration of sensitive, vulnerable and critical uses;  hazardous industry or hazardous material storage establishments; or other land uses requiring controls in relation to risk to life matters.

Pursuant to the special flood considerations clause, a consent authority must be satisfied that the proposed development:

• complies with any council flood policies, development control plan (DCP) and is consistent with any adopted floodplain risk management plan developed in consistency with the Floodplain Development Manual,
• will not affect the safe occupation of and evacuation from the land,
• incorporates appropriate measures to manage risk to life from flood, and
• will not adversely affect the environment during flood events due to hazardous materials.

Local Planning Direction

The Local Planning Direction will apply to all relevant planning authorities that are responsible for flood-prone land. Where the Local Planning Direction applies, a planning proposal must be consistent with any adopted flood study and/or floodplain risk management plan for the local area. It will also include a clause that will apply where there is no council-adopted flood study and/or floodplain risk management plan.

Planning Circular

The Planning Circular will revoke the existing planning circular PS 07-003 and will reflect the contents of the Flood Prone Land Package.

Guideline

The current Guideline on Development Controls on Low Flood Risk Areas will be revoked and replaced by the Guideline. The Guideline will recommend that councils attach their adopted flood policies, flood studies and floodplain risk management studies and plans to their DCPs.  This is intended to ensure that these policies, plans and studies are taken into account by the consent authority when determining a development application.

The Guideline will also provide that councils may have multiple flood planning levels (FPLs) and flood planning areas dependent on flood risk, the catchment and land use.  However, where councils are proposing alternate FPLs, they need to demonstrate and document the merits of that approach by reference to a risk management approach and be consistent with the principles in the Floodplain Development Manual.

Additional text will be added regarding mapping, including that some areas subject to flood-related development controls are not mapped.

The development of land within the floodplain inevitably carries a level of risk. It is hoped that this package will assist both government and developers in ensuring that development is appropriate for the applicable level of flood risk.

To discuss this blog post and issues raised by the Flood Prone Land Package, please contact Sue Puckeridge, Partner on 02 8235 9702 or Sophia Urlich, Lawyer on 02 8235 9708.