Essential Guide to Local Government Law: Rebuilding after the bushfires

Rebuilding after the Bushfires – what approvals are required?

Many of our Council clients will soon be faced with inquiries from people who wish to rebuild following the NSW bushfires.  This simple guide is intended to assist Councils in dealing with inquiries about the approvals needed to rebuild.

Demolition of existing buildings

In most cases, the demolition of a house that has been damaged or destroyed by bushfire will be complying development that can be carried out by obtaining a complying development certificate[1].

If, however, the house is situated on land on which complying development may not be carried out[2], such as land within an environmentally sensitive area or that is listed on the State Heritage Register, the demolition of the house will require development consent[3].

Some other buildings, such as farm buildings[4], may be exempt development. If so, the demolition of the building is also exempt development[5] if it is carried out in accordance with AS 2601—2001, The Demolition of Structures.

Vegetation clearing

The protections given to native vegetation in rural areas by the Local Land Services Act 2013 continue to apply even if the vegetation has been damaged or destroyed; however, there are certain types of clearing which are authorised without approval.[6] For example, the clearing of native vegetation is an “allowable activity clearing” under that Act where it is reasonably necessary to remove or reduce an imminent risk of serious personal injury or damage to property. However, the removal of fire damaged native vegetation after the fires may not fall within that exception.

There is a specific “rural fires” exception in s.60O of the Local Land Services Act and this allows clearing which is:

  • an emergency fire fighting act or emergency bush fire hazard work within the meaning of the Rural Fires Act 1997;
  • bush fire hazard reduction work to which s.100C(4) of the Rural Fires Act applies or vegetation clearing work under s.100R of that Act.

The vegetation clearing work authorised by s.100R of the Rural Fires Act permits limited clearing of trees and vegetation around residential accommodation on land within a ‘10/50 vegetation clearing entitlement area’ in the circumstances set out in that section.

For land in non-rural areas, the requirement to obtain a permit to clear vegetation to which Part 3 of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies does not apply to the removal of vegetation that the Council or the Native Vegetation Panel is satisfied is dying or dead and is not required as the habitat of native animals[7].

Unless a specific exemption applies, it will therefore generally be necessary to obtain approval prior to the removal of fire damaged vegetation.

Rebuilding after the bushfires

The approval pathway for the rebuilding of a house that has been damaged or destroyed by bushfire will depend on a number of things.  These include whether the owner wishes to rebuild a house of the same design as the house it will replace and also whether the erection of a house is permissible on land within the zone in which the house is situated.

If development consent was obtained to erect the house that has been damaged or destroyed, the erection of a replacement house of the same design will not require the grant of a further development consent. The original development consent can be relied on in these circumstances, even if there has been a change of zoning in the meantime[8].

If an owner wishes to build a new house that is substantially the same as the one that has been destroyed, but with some changes, an application can be made to modify the development consent to reflect those changes[9].

If the replacement house will be a new design, it will require development consent or, if the requirements of the Codes SEPP or applicable local environmental plan are satisfied, a complying development certificate. Some other buildings, such as farm buildings, will be exempt from the need to obtain development consent if certain development standards are met[10].  Fencing on land within most residential and rural zones is also exempt development, subject to complying with prescribed development standards[11].

If the zoning has changed since the original house was built and the land is now within a zone in which the erection of a  house is prohibited, the circumstances in which the original house was erected will need to be examined to determine whether it is an existing use within the meaning of s.4.65 of the Environmental Planning and Assessment Act 1979. If it is, the house may be rebuilt with development consent in accordance with reg 44 of the Environmental Planning and Assessment Regulation 2000.

If the original house was built at a time when development consent was not required, its use as a dwelling may have been protected as a lawful continuing use right[12].  However, the erection of a new house to replace the original house is not so protected and will require development consent (or a CDC) in the usual way.

If relevant bush fire protection measures have changed since the original house was erected, the new standards will apply when the house is rebuilt. Relevantly, if the land is “bush fire prone land”[13], development consent can only be granted if the consent authority is satisfied that the development conforms to the prescribed version of Planning for Bushfire Protection[14].  If the rebuilding is to occur on bushfire prone land by way of complying development, the new house must comply with Planning for Bushfire Protection as well as the other bushfire related standards in cl. 3.4(2) of the Codes SEPP.

As at the date of this Essential Guide, the prescribed version of Planning for Bushfire Protection remains the version published in December 2006[15].  Current indications are that the new 2019 version will be prescribed as the new reference on 1 March 2020.

Where the house is being built in accordance with a development consent, it will also be necessary to obtain a construction certificate before construction can commence[16]. A construction certificate is not required for the erection of a building in accordance with a CDC[17].

A building certifier cannot issue a construction certificate for building work unless the proposed building will comply with the relevant requirements of the Building Code of Australia as in force at the time the application for the construction certificate was made[18].

Part 2.7.5 of the BCA states that a house, or a shed, garage or deck associated with a house, that is constructed in a designated bushfire prone area must, to the degree necessary, be designed and constructed to reduce the risk of ignition from a bushfire, appropriate to the—

(a) potential for ignition caused by burning embers, radiant heat or flame generated by a bushfire; and

(b) intensity of the bushfire attack on the building.

If it is proposed to rebuild a house as complying development under the Codes SEPP, the development must meet the relevant provisions of the BCA.[19]

Requiring compliance with the BCA when issuing a complying development certificate or construction certificate ensures that buildings comply with the most up to date construction standards possible and, in particular, with current bush fire safety requirements.

Conclusion

Councils will no doubt wish to facilitate the rebuilding process for those affected by the bushfires as much as possible. We hope that this brief guide will assist Councils to do so.

If you would like advice or assistance with specific issues arising out of this Essential Guide, please contact Alan Bradbury on (02) 62740940, Alice Menyhart on (02) 62740911 or Andrew Brickhill on (02) 62740979.

[1] State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, cl. 7.1

[2] See Codes SEPP, cll. 1.17A, 1.18 and 1.19

[3] Standard Instrument LEP, cl.2.7

[4] See Codes SEPP, cll. 2.31 and 2.32

[5] See Codes SEPP, cl. 2.25 and 2.26

[6] Local Land Services Act, s.60B(3)

[7] Cl. 8(2)

[8] EP&A Act, s.4.70

[9] EP&A Act, s.4.55

[10] Codes SEPP, cll. 2.31 and 2.32

[11] Codes SEPP, cll. 2.33, 2.34, 2.35 and 2.36

[12] EP&A Act, s.4.68

[13] “Bush fire prone land” is designated by the Rural Fire Service under s.10.3 of the EP&A Act and reg 273A of the EP&A Reg

[14] EP&A Act, s. 4.14.

[15] EP&A Reg, reg 272

[16] EP&A Act, s.6.7(1)

[17] EP&A Act, s.6.7(2)(a)

[18] EP&A Reg, regs 98 and 145

[19] Codes SEPP, cl.1.18(c)