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Effective as of 25 February 2011

FACT SHEET 10 - complying development on bushfire prone land

About the Codes SEPP The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) has been amended to significantly expand the range of exempt and complying development across the State and increase the number of properties to which the Codes SEPP applies. The Codes SEPP is an important policy initiative put in place by the NSW Government to remove red tape for low risk and low impact development, and directly results in significant time and cost savings for home owners and small business. Complying development on bush fire prone land As of February 2011, low risk bush fire prone land will no longer be excluded from the Codes SEPP. The Department of Planning (DoP) and the Rural Fire Service (RFS) have worked together to introduce a new system which allows complying development on some bush fire prone land, but importantly maintains a rigorous assessment regime for managing bush fire risk. Clause 1.19 of the Codes SEPP has been amended so that land identified as being “bush fire prone” is no longer listed as a land exemption and is no longer excluded from the application of one or more

codes. Instead, specified development requirements and development standards have been added to the General Housing Code and the Rural Housing Code that apply to new development undertaken on low risk bush fire prone land. The development standards have been designed to ensure that:

• complying development is not allowed on high risk bush fire prone land (i.e. BAL (Bushfire Affected Level) 40 or BAL Flame Zone)

• only a ‘suitably qualified consultant’ (see definition below) or the local council can endorse the BAL under the Planning for Bushfire Protection Guidelines 2006

• once the BAL is known, the council or private accredited certifier must certify that the proposal complies with AS 3959-2009 Construction of buildings in bush fire prone land.

These changes mean that complying development under the Codes SEPP can be undertaken on low risk bush fire prone land where the relevant development standards for bush fire prone land and all other relevant development standards have been met.

What is the process for assessing an application on bushfire prone land? The process for assessing and determining a complying development certificate on bush fire prone land is outlined in the table below:

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Can council or an accredited certifier determine and endorse the bush fire risk category? Only the Council can endorse the bush fire risk category:

• For Council: only if the council is satisfied they have a suitable level of experience and competence in bush fire risk assessment. Council will advise you if they can carry out the assessment or require you to consult with a suitably qualified consultant to carry out the risk assessment

• For a private accredited certifier: they will need to rely on a ‘suitably qualified consultant’ to carry out the bush fire risk assessment.

If the council is unable to assess and determine the bush fire risk, can the complying development certificate still be determined? Yes. However, a ‘suitably qualified consultant’ will be required to endorse the category of bush fire risk. If the council or the private accredited certifier is unable to determine or endorse the category of bush fire risk, separate endorsement for the bushfire risk needs to be obtained from either:

• a ‘suitably qualified consultant’ (see definition below)

• the Rural Fire Service who are accepting bush fire risk assessment applications for an initial 12 month transition period.

What should be taken into consideration when plans are being prepared for a development on bush fire prone land? The home owner and/or the building designer should obtain all relevant information relating to the property before designing new works. This could save time and money later in the process by avoiding the need for expensive changes to the plans. A s.149 certificate can be obtained from local council which will provide any relevant or necessary information outlining whether the property is bush fire prone. If the property is on land that is bush fire prone, the Department of Planning recommends that a bush fire risk certificate be obtained from a ‘suitably qualified consultant’ to determine the BAL for the

land on which the development is proposed. The endorsement of the BAL by a ‘suitably qualified consultant’ can also be used to satisfy the requirement of a complying development certificate on bush fire prone land.

Once the BAL is identified, the building designer can ensure work is designed to comply with AS 3959-2009 Construction of buildings in bush fire prone land and all other relevant development standards contained in the Codes SEPP.

Why is it important to have the BAL determined by the council or a suitably qualified consultant?

BAL, or Bushfire Attack Level, is a measure used to determine the category of potential bush fire attack on a property. The methodology for determining the BAL is outlined in Planning for Bushfire Protection 2006 which is accessible on the Rural Fire Service website. Determining the BAL ensures that development is undertaken in such a way that risk to people and property is minimised. It is a requirement that a person who has suitable qualifications and experience undertakes the assessment. This could be either the local council or a person identified as being a ‘suitably qualified consultant’ as well as the Rural Fire Service for the first 12 months of the operation of this policy . What is the BAL used for? It is used to determine the appropriate level of construction required relative to the potential bush fire attack. Australian Standard AS 3959-2009 Construction of buildings in bush fire prone land sets out the minimum construction requirements for each of the categories of bush fire attack. Once the BAL has been endorsed for a complying development certificate, the accredited certifier or the council can certify that the plans have been designed in accordance with the correct construction requirements under AS 3959-2009 Construction of buildings in bush fire prone land. Can the Rural Fire Service (RFS) assess bush fire risk for complying development? Yes, but only as a transitional measure for the first 12 months of the operation of this policy. In this period, councils or private accredited certifiers will be able to refer complying development certificates to the RFS for endorsement of the bush fire risk category. The RFS will endorse the category of risk for the purpose of finalising a determination in the same way as a ‘suitably qualified consultant’ would. Why is the RFS only involved for 12 months?

The purpose of the transitional period is to allow councils, certifiers and ‘suitably qualified consultants’ to become familiar with their responsibilities. After the 12 month period expires, councils and accredited certifiers will not be able to refer complying development certificate to the RFS to assess bush fire risk.

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Further details on making a referral to the RFS can be found on a separate fact sheet.

Will all development types on bush fire prone land be subject to this process? No. Demolition of structures under the demolition code, internal alterations and minor external works under the Housing Alterations Code and the erection of a swimming pool, non-combustible fence or retaining wall and a farm building greater than 10m from a dwelling house will still be able on bush fire prone land without the requirement for a bush fire risk assessment to be carried out. All subdivision and Special Fire Protection Purpose Development as identified in S.100B of the Rural Fires Act 1997 will still require the issuing of a bush fire safety authority by the RFS and are considered ‘Integrated Development’ under s.91 of the Environmental Planning and Assessment Act 1979. What do councils need to do to give effect to the amendment to the Codes SEPP which allows complying development certificates on bush fire prone land? Prior to the commencement of the changes to the Codes SEPP, councils will need to amend the answer to s.149(2)(3) of the Environmental Planning & Assessment Act 1979 which relates to whether or not complying development can be undertaken on a parcel of land. Councils will have to remove bush fire prone land as an exclusion from the General Housing Code and Rural Housing Code. Once a complying development certificate is approved on bush fire prone land, are there any further requirements? Yes. Once a complying development certificate has been issued by either the local council or an accredited certifier, all relevant information is required to be referred to the RFS for their records. The RFS will record this information for the purposes of:

• undertaking audits of certificates for the purposes of maintaining quality in the assessment process

• strategic planning for activities such as hazard reduction and compiling details to assist in operational fire fighting.

Who is a ‘suitably qualified consultant’?

Suitably qualified consultants will be identified on a list prepared by the RFS. For the purpose of undertaking a bush fire risk assessment, a suitably qualified consultant means someone who is a member of a recognised organisation and has suitable experience, education, qualifications and indemnity insurance to undertake the work competently. The RFS has established criteria for people who wish to be included on the list.

The Codes SEPP is accessible on the NSW Legislation website http://www.legislation.nsw.gov.au

For more information please visit the Housing Code website http://housingcode.planning.nsw.gov.au