Changes to development controls for bush fire prone land

Background

On 1 March 2020, in the wake of devastating fires across NSW, legislative amendments commenced that may further limit the capacity to develop certain land susceptible to bush fires.

Bush fire prone land (BFPL) is recorded on maps prepared by local councils and certified by the Commissioner of the NSW Rural Fire Service (RFS). A substantial part of NSW is classified as BFPL.

Under the Environmental Planning and Assessment Act 1979, development on BFPL must generally meet the requirements of the RFS document entitled ‘Planning for Bush Fire Protection’ (PBP), unless the consent authority has consulted with RFS.

Although this constraint does not apply to State significant development, the PBP nonetheless also informs the assessment of bush fire risks in that context.

Moreover, the PBP is taken into account by RFS in considering whether to issue a bush fire safety authority under the Rural Fires Act 1997, which is necessary for residential subdivision and special fire protection purpose (SFPP) development on BFPL (such as schools, tourist accommodation, hospitals, aged/disabled care and retirement villages).

Changes to the fire protection landscape

The amending legislation was contained in:

• State Environmental Planning Policy Amendment (Planning for Bush Fire Protection) 2020; and
• Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020.

The amendments adopt and give effect to the 2019 revision of the PBP (PBP 2019), which replaces an earlier 2006 document.¹ They also strengthen the standards applicable to complying development under a range of planning instruments.

The changes do not affect applications that have been made, but not determined, before 1 March 2020.

PBP 2019 reflects advances since 2006 in the scientific understanding of bush fires, as well as changes to building construction standards. The requirements include:

• Bush fire protection measures: These are summarised in Chapter 3 of PBP 2019. They deal with the protection of occupants and property from bush fire attack by means such as asset protection zones (APZs), building design and construction, access arrangements, and water supply.
• APZ: This is the buffer zone between a building and a bush fire hazard. The appropriate APZ distance for any particular site will depend on the surrounding vegetation type, topography and nature of the development. A properly designed APZ will minimise fuel loads and reduce potential radiant heat levels, flame, localised smoke and ember attack. PBP 2019 employs an updated set of fuel load modelling assumptions to define setbacks. Appendix 4 of PBP 2019 provides guidance on setting adequate inner and outer protection areas within an APZ. Additional landscaping standards appear in the RFS document ‘Standards for Asset Protection Zones’.
• Performance criteria and acceptable solutions: Chapters 5 to 8 of PBP 2019 prescribe different criteria and solutions according to the class of development. Broadly, these classes are residential and rural residential subdivisions, SFPP development, residential infill development, and other development (e.g. commercial or industrial premises).
• SFPP development: The nature of this class means that the occupants tend to be more vulnerable in the event of a bush fire attack. PBP 2019 recognises, however, that particular types of SFPP development may have different risk profiles and permits less stringent criteria for lower risk scenarios.

Even before the recent amendments, there were restrictions on assessing proposed development on BFPL under the fast-track complying development process. These have been refined and expanded from 1 March 2020.

Generally, for example, complying development cannot be carried out on land characterised as bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ).

Table A1.7 of PBP 2019 explains the risk spectrum of bush fire attack categories. In BAL-40 areas, ember attack and burning debris ignited by windborne embers are likely, along with radiant heat flux and potential flame contact. BAL-FZ areas suffer significant radiant heat and higher likelihood of flame contact from a fire front.

Further inquiries

Please contact Anneliese Korber in our Environment and Planning Team if you would like further information about how the amendments might impact your particular situation.

The author would like to acknowledge Justin Chenevier and Sasha Aronson for their contributions to this article.