Essential Guide to Local Government Law: Rebuilding after the bushfires

Rebuilding after the Bushfires – what approvals are required?

Updated March 2020: Many of our Council clients will be faced with inquiries from people who are rebuilding after the NSW bushfires. This simple guide is intended to assist Councils to deal with inquiries about the approvals needed to rebuild and the temporary assistance measures which are in place. This guide was originally published in January 2020, but this version has been updated (March 2020) to reflect legislative changes which commenced in January and February 2020.

Demolition of existing buildings

From 31 January 2020 the demolition of a building or part of a building that has been ‘significantly damaged’ by the bushfires will be exempt development under cl.2.25(a)(ii) of the the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP’).  This will streamline the demolition process by allowing people to demolish such structures without the need to obtain a complying development certificate or a development consent, as was previously required. In order to be exempt development, bushfire damaged structures must be demolished in accordance with AS 2601—2001, The Demolition of Structures[1].

There are two key restictions on the use of these new exempt development provisions. First, cl 2.25 only applies to a structure which is ‘significantly damaged’. Although not defined in the Codes SEPP,  ‘significant damage’ is likely to refer to circumstances where the structural integrity of a building has been compromised by bushfire to the extent that use of the building is not possible.[2] If the structure of the building is not ‘significantly’ damaged, partial demolition is permitted but ‘only to the extent necessary to make the building safe’.[3]

Secondly, the new exemptions for the demolition of fire affected structures under 2.25 of the Codes SEPP do not apply to demolition carried out on heritage or draft heritage items or in a heritage conservation areas or draft heritage conservation area.[4] The demolition of bushfire damaged structures in these areas will still require development consent from the relevant local council.

The new Codes SEPP requirements operate in addition to the pre-existing exempt development provisions which allow the demolition of limited types of structures, such as farm buildings,[5] as exempt development where the prescribed development standards are met.

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:

a. an emergency fire fighting act or emergency bush fire hazard work within the meaning of the Rural Fires Act 1997;

b. 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

(a) Temporary structures

Shipping Containers

The Codes SEPP has been amended to allow shipping containers to be installed and used for temporaray storage on bushfire affected land as exempt development. New Division 36A of the SEPP states that the installation and temporary use of a shipping container for storage purposes is permitted for up to two years on any land that is part of a lot on which a building has been ‘significantly damaged by a bush fire’ and is in an area affected by a state of emergency declaration under s.33 of the State Emergency and Rescue Management Act 1989.[8]

The new provisions allow those who live in residential or environmental zones to install one shipping container. Two containers may be installed on properties in rural, business, industrial or special purpose zones.

The SEPP also prescribes restrictions on the size and location of the shipping container. For example,all shipping containers installed under the SEPP must:

a. have appropriate foundations and structural support to ensure they are safe and stable;

b. not exceed a maximum height of 3m, maximum length of 12.5m, or maximum width of 2.5m;

c. not be installed over an easement, nor over any drainage pipes or any house drainage pipelines, unless access to the inspection openings is maintained at all times; and

d. be at least 1.2m clear of any sewer main that is 150mm in diameter, or at least 2m clear of any sewer main that is 225mm (or greater) in diameter.

Shipping containers for business and industrial uses

The Codes SEPP has also been amended to allow the installation and temporary use of a shipping container or portable office on land zoned for industrial and business purposes as exempt development where the land is part of a lot on which a building has been significantly damaged by a bush fire and is in an area affected by a state of emergency declaration: Subdivision 36B.  Cl. 2.72D contains restrictions on the size and placement of such containers and the other development controls which must be met in order to meet the requirements for exempt development.

Movable dwellings and extended use of caravan parks

To assist in the provision of emergency accommodation for people affected by bush fires the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 has been amended to allow for increased use of moveable dwellings.  This includes:

a. allowing the owner, manager, operator or caretaker of a caravan park or camping ground to authorise a person to stay in the caravan park or camping ground for an extended period (of up to 2 years) if they are satisfied that the person has been displaced because of a bush fire: cl 73(4)

b. removing the need for Council approval to install a moveable dwelling or associated structure in a caravan park or camping ground if the owner, manager, operator or caretaker of a caravan park or camping ground is reasonably satisfied that the installation of the moveable dwelling or associated structure is necessary for the purposes of accommodating a person who has been displaced because of a bush fire: cl.74(4A)

c. allowing moveable dwellling and associated structures to be installed on land without Council’s approval where this is for the purpose of accommodating a person who has been displaced because of a bush fire, but only if the moveable dwelling or associated structure is maintained in a healthy and safe condition and removed within 2 years after it is installed: cl. 77(d); and

d. allowing the general manager of a council to modify the conditions which apply to primitive camping grounds where they are reasonably satisfied that it is necessary to do so for the purposes of accommodating persons who have been displaced because of bush fires’: cl:132(6).

(b) Permanent structures

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.

Recent changes to the Codes SEPP have simplified the process for rebuilding. The SEPP allows temporary and non-structural permanent repairs to be carried out to damaged buildings or structures that were affected by the bushfires without consent: cl 2.30AA. These repairs are required to be carried out within two years after the date on which the relevant state of emergency was declared. In late 2019 to early 2020 three states of emergency were declared because of bushfires in NSW: 11-18 November 2019, 19-26 November 2019 and 3-10 January 2020.

The SEPP imposes some limitations on conducting repairs. Specifically, there can be no alterations of the configuration of the floor space, including any increase to the floor space, and any repairs must be for the purposes of making the structure ‘weatherproof and in the case of a dwelling, safe and suitable for habitation.’[9] With regard to repairs made to fences, gates or other barriers, they must be ‘necessary to ensure the repaired or replaced structure is the same size, in the same location and made with similar materials’ as the original structure.[10]

If the house that has been damaged or destroyed was built pursuant to a development consent then 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.[11]

If an owner wishes to build a new house, which is substantially the same as the one that has been destroyed but with some changes, an application can be made to modify the exising development consent to reflect those changes.[12]

If the replacement house will be a completely new design, it will require new 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.[13]  Fencing on land within most residential and rural zones is also exempt development, subject to complying with prescribed development standards.[14]

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.[15]  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”,[16] 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.[17]  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.

Planning for Bushfire Protection

On 1 March 2020 the prescribed version of Planning for Bushfire Protection was updated to the November 2019 version.[18]  PBP 2019 is to be used for development applications or planning proposals to develop bushfire prone land which are lodged from 1 March 2020. Proposals lodged before this will continue to be assessed under PBP 2006: cl 273B EPA Regulation.

Construction Certificates

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.[19] A construction certificate is not required for the erection of a building in accordance with a CDC.[20]

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.[21]

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.[22]

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

Financial assistance from local, State and Federal governments

In early February 2020, NSW Premier Gladys Berejiklian announced that the State and Federal Government will cover the cost of the clean-up from the bushfires. This includes clean up of private properties, provided that owners of affected properties who wish to have them cleared register through Service NSW.[23]

Local councils are to waive council rates (or refund those already paid) for those whose homes or businesses have been destroyed by bushfire. With respect to development applications, the NSW Government has, for the time being, waived applicable government fees ‘on all development applications related to dwellings damaged or destroyed in the recent bushfires.’  The NSW Government also removed the waste levy for the disposal of bushfire generated waste at specified waste disposal facilities.

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.

The content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

Our series of NSW Local Government Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that NSW Local Government and Councils often face.

[1] Codes SEPP, cl. 2.25 and 2.26.

[2] See ibid, cl.2.25; see also Macquarie Dictionary, which defines ‘significant’ as ‘important; of consequnce’; see also Peter Duffield & Associates v Ku-Ring-Gai Municipal Council [2000] NSWLEC 10671 at [41] in which a woman’s house, situated on bushfire-prone land, was deemed not to have been significantly damaged due to a number of preventative measures taken, suggesting the house was not itself ignited.

[3] Ibid, cl. 2.25(b).

[4] Codes SEPP, cl. 2.25.

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

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

[7] Cl. 8(2)

[8] Ibid.

[9] Ibid, cl 2.30AB(b), (c), (e).

[10] Ibid, cl 2.30AB(d).

[11] EP&A Act, s.4.70

[12] EP&A Act, s.4.55

[13] Codes SEPP, cll. 2.31 and 2.32

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

[15] EP&A Act, s.4.68

[16] “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.

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

[18] EP&A Reg, reg 272

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

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

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

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

[23] Jessica Clifford, Ainslie Drewitt-Smith and Kelly Fuller, ‘Bushfire victims in NSW to get local council rates relief this quarter’, ABC News, 4 February 2020, accessed via <https://www.abc.net.au/news/2020-02-04/nsw-govt-pays-council-rates-waives-rebuilding-fees-after-fires/11928126>