Posted on March 24, 2024 by Fayette Vermeer and Megan Hawley 5

UPDATE – New planning circular addressing flood risk in planning decisions

On 1 March 2024, the Department of Planning, Housing and Infrastructure (Department) published Planning Circular PS 24-001 (Circular).

The Circular provides an outline on the existing flood-related planning policies and provides further advice and information on flood matters for planning authorities to consider. It is a supplement to PS 21-006, ‘Considering flooding in land use planning: guidance and statutory requirements’, which is available here.

This article provides a brief overview of the updates and advice contained in the Circular that are relevant to Councils as planning authorities.

We have previously written an article on the Flood Risk Management Manual 2023 and the implications of the updates made to NSW planning regulations to incorporate the new framework here, which unpacks and considers the current framework in relation to addressing flood impact and risk assessment in planning decisions.

Land Use Planning

Councils that are the relevant planning authority responsible for flood-prone land must assess planning proposals in accordance with the existing section 9.1 Local Planning Direction on flooding for proposals that create, remove, or alter a zone or a provision that affects flood-prone land. The Planning Circular PS 21-006 is still current and provides information on the application of this Local Planning Direction.

Development Control Plans should also be updated by Councils to indicate the relevant flood planning levels and flood planning areas, and where they apply, thereby ensuring that the DCPs remain effective and current.

Councils must also include notations on planning certificates to indicate whether the land is subject to flood-related development controls and either within the flood planning area, or between the flood planning area and the probably maximum flood. This information must be specified on a planning certificate, in accordance with section 9 of Schedule 2 of the Environmental Planning and Assessment Regulation 2021.

Development Assessment

Councils must ensure that they assess a development application in accordance with existing flood-related provisions, plans, development controls, policies and guidelines.

Provisions that are relevant to flood-related planning assessment include:

• Section 4.15 of the Environmental Planning and Assessment Act 1979, which outlines matters to consider when determining Das, including requirements applicable under LEPs and DCPs;
• Clause 5.21 of the Standard Instrument – Principal Local Environmental Plan, which is a compulsory LEP provision that prohibits the granting of development consent on land within the flood planning area unless specific matters are considered;
• Clause 5.22 of the Standard Instrument – Principal Local Environmental Plan, which is an optional LEP provision that applies to sensitive and hazardous development on land between the flood planning area and the probable maximum flood.

There are also special provisions in the following State Environmental Planning Policies that prohibit complying development from being carried out on flood control lots without certification from the relevant council or a professional engineer:

1. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 regarding residential commercial and industrial, and agrotourism development;
2. State Environmental Planning Policy (Transport and Infrastructure) 2021 regarding schools, TAFEs, and universities; and
3. State Environmental Planning Policy (Housing) 2021 regarding secondary dwelling and group homes.

Additional provisions regarding certification are set out in each SEPP and should be considered when evaluating a proposed development.

Further matters to consider

The Department recommends planning authorities to adopt a risk-based approach to the assessment of flood-affected proposals, including planning proposals, local and regional development applications, and State significant development and infrastructure applications. It recommends that the flood risk profile of each proposal is taken into account.

The following matters have been identified as relevant considerations when determining the flood risk profile, particularly for high risk proposals:

• whether the proposal is in a high-risk catchment;
• the location of the proposal in relation to flood behaviour and constraints;
• whether the proposal provides for safe occupation and efficient and effective evacuation in flood events and how this is to be achieved;
• in high-risk catchments, whether the proposal is likely to result in a significant increase to the risk to life in other parts of the catchment in a probable maximum flood event;
• any known evacuation constraints;
• whether the proposal is for a sensitive or hazardous land use, or other higher risk uses and what mitigation strategies are proposed to reduce any identified risks;
• whether there may be adverse flood impacts on surrounding properties;
• potential impacts of cut and fill and other building works on flood behaviour; and
• the ability of proposed development to withstand flood impacts.

The Department also recommends that planning authorities refer to relevant strategic plans or studies that may provide broader local or regional context in considering flood risks, along with other strategic considerations.

You can read the Circular here.

If you have any questions regarding the above, please leave a comment below or contact Megan Hawley on 8235 9703 or Fayette Vermeer on 02 8235 9730.