The new provisions have been introduced in connection with the NSW Government's new 'flood-prone land package' which aims to improve the management of flood risk in light of recent flooding events that have caused significant risk to life and damage to property, including up to and beyond the 1% annual exceedance probability (AEP) flood level. To achieve this, consent authorities will be able to consider the full range of flood behaviour, including up to the probable maximum flood (PMF) level.
New Compulsory provisions
Clause 6.3 Flood planning is to be repealed and replaced with a new compulsory clause 5.21.
The new provision introduces a new requirement for Councils to be satisfied prior to granting consent to development on land within a flood planning area, that the development will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood. When deciding whether to grant consent to development on land to which clause 5.21 applies, Councils will also be required to consider amongst other matters:
- the impact of the development on projected changes to flood behaviour as a result of climate change;
- the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion; and
- whether the development incorporates measures to ensure the safe evacuation of people in the event of a flood.
Whilst the raising of development controls beyond the 1% AEP flood level has been described by some as an overly cautious measure that is likely to unnecessarily sterilise the development potential of certain land, where Councils are primarily responsible for managing flood risk, the provisions aim to better facilitate the making of better-informed decisions about flood management.
Although the 1% AEP flood level remains the starting point for councils when assessing development on land in a flood planning area, the new provisions enable councils to take into account the most severe flooding conditions when assessing and determining whether approval for development is appropriate.
New Optional provisions
A new optional clause 5.22 'special flood considerations' provision is also to be introduced which, if incorporated in a Council's local environment plan, would apply:
(a) for 'sensitive and hazardous development'—land between the flood planning area and the probable maximum flood, and
(b) for development that is not sensitive and hazardous development—land the consent authority considers to be land that, in the event of a flood, may
- cause a particular risk to life, and
- require the evacuation of people or other safety considerations.
The optional provision gives Councils the opportunity to select from a finite list of specific land uses those uses that the Council wishes to define as a type of 'sensitive and hazardous development'. This list includes uses such as boarding houses, early education and childcare facilities, educational establishments, seniors housing and hazardous industries.
The Department has asked Councils to submit their interest in including the optional clause into their local environmental plans by 30 June 2021.
Itis proposed that a separate State Environmental Planning Policy amendment (that is, separate to the State Environmental Planning Policy Amendment (Flood Planning) 2021) will be made by the DPIE in respect of those Councils that decide to embrace the new 'special flood considerations' provision.
New requirements for section 10.7 planning certificates
Changes to requirements for planning certificates issued under section 10.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) will take effect from 14 July 2021.
In summary, an amendment to Schedule 4 of the Environmental Planning and Assessment Regulation 2000 by the Environmental Planning and Assessment Amendment (Flood Related Development Controls Information) Regulation 2021 introduces a new requirement for Councils to include notations on their section 10.7 planning certificates to confirm:
- If the land or part of the land is within the flood planning area and subject to flood related development controls.
- If the land or part of the land is between the flood planning area and the probable maximum flood and subject to flood related development controls.
In light of this amendment, it will be important for Councils to ensure that they are prepared to update their planning certificates to satisfy these new requirements. In circumstances where Councils might not yet have sufficient information readily available to address the new requirements, a new draft planning circular published by the Department provides that a 'no' response should be provided under the relevant clause until such time as the information is made available to Council and Council updates its flood related development controls.
Revised Planning Direction removes need for exceptional circumstances to apply flood-related development controls
Planning proposals are to be consistent with local planning directions issued under section 9.1 of the EP&A Act. At present, Direction 4.3 – 'Flooding' provides that draft plans are to be consistent with the 'Floodplain Development Manual: the management of flood liable land', April 2005.
As part of the flood prone land package, Direction 4.3 is to be revised to remove the requirement for a relevant planning authority to provide adequate justification for those controlsin circumstances where the authority proposes to impose flood related development controls above the residential flood planning level for residential development on land.
The proposed amendments mean that a relevant planning authority may determine a flood planning level that is inconsistent with the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas) without having to provide justification (i.e. by demonstrating exceptional circumstances apply) for the proposed departure from that Manual to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General).
It is understood that the revised direction is proposed only to apply to draft LEPs that have not been issued with a gateway determination.
New Guidance Material for councils
As part of its flood-prone land package, the DPIE will be publishing a final version of its package of materials by 14 July 2021 including its:
- revised 9.1 local planning Ministerial Direction on flooding;
- new planning circular on flooding;
- new guideline document 'Considering Flooding in Land Use Planning' (2020).
These documents aim to provide guidance to councils when interepreting and applying the new flood-prone land package.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.