Major Changes - Planning for Bushfire Risk Management

The Western Australian Planning Commission (WAPC) has just released for public comment documents that are likely to have significant impacts on the way in which greenfield developers, local governments and state government agencies in Western Australia operate.

The documents released for public comment include:

• State Planning Policy (SPP) 3.7 – Planning for Bushfire Risk Management (SPP 3.7) (which supersede part of SPP 3.4: Natural Hazards and Disasters); and
• Bushfire Risk Management Guidelines (Guidelines) (which supersede Planning for Bush Fire Protection Guidelines (WAPC, 2010, Ed 2)).

Background

The need to address and consider the appropriateness of development in areas subject to bushfire risk has become an area of particular concern and debate in recent years, especially in light of major events such as the Black Saturday bushfires in Victoria, and highly publicised fires in Western Australia such as those in Toodyay, Roleystone and Prevelly.

The WAPC have sought to address these concerns by strengthening bushfire risk management measures in the planning and development process through these, and other proposed changes to the existing planning framework.

In particular, the WAPC have sought to address the recommendations of the report prepared by Mr Mick Keelty AO titled A Shared Responsibility: The Report of the Perth Hills Bushfire February 2011 Review and address the findings of the Victorian Royal Commission into the Black Saturday bushfires by:

• elevating bushfire issues to SPP status, giving it clear primacy in the planning framework;
• emphasising the need for consideration of bushfire management at all levels of planning, including in strategic level policy documents, regional and local planning schemes, sub-regional and local planning strategies and structure plans, and as part of subdivision and development applications; and
• seeking to achieve a consistent and co-ordinated approach to bushfire risk management measures across local government boundaries.

Changes to the existing planning framework

In addition to the measures currently in place, the draft SPP 3.7 and Guidelines seek to:

• remove self assessment of bushfire hazard levels and bushfire attack levels by emphasising the need for expertise and proposing to introduce an accreditation scheme for fire consultants in Western Australia;
• introduce new Bushfire Management Plan templates, which better address the existing planning framework in Western Australia;
• modify a number of existing bushfire protection criteria to better address current standards and philosophies;
• introduce biodiversity and environmental conservation objectives, including the need to address the environmental impacts of management measures;
• address vulnerable and high risk land uses, such as school sites, commercial, industrial and critical infrastructure (as the current framework only focuses on residential uses);
• provide clear guidance that development subject to BAL-40 or BAL-FZ exposure is not acceptable from a planning perspective;
• flag new bushfire regulations which are proposed to be created under the Planning and Development Act 2005 (PD Act), which will seek to, among other things, remove all current exemptions to obtain planning approval for single houses on single lots, when land meets certain criteria (as set out below); and
• provide clear guidance that if any property is within 100m of an area of bushfire prone vegetation that is equal to or greater than one hectare must be assessed against both SPP 3.7 and the Guidelines.

Application

Draft SPP 3.7 and Guidelines will apply to:

• all land identified on a local government’s bushfire map, prepared and approved in accordance with the Guidelines (and pursuant to proposed new bushfire regulations prepared under the PD Act);
• all land identified in a state bushfire prone area map, prepared and approved by the Fire and Emergency Services Commissioner (pursuant to proposed reforms to the Fire and Emergency Services Act 1988 (FES Act)); and
• all land within 100m of an area of bushfire prone vegetation equal to or greater than one hectare, even if it is not shown in one of the above mentioned maps.

The WAPC have indicated that proposed amendments to the FES Act may be in place by the end of 2014, with new regulations under the PD Act expected to be in place by 2015.

In the interim, the WAPC have advised that all planning applications should include a current aerial map of the property, showing all areas within 100m of property boundaries, to enable decision makers to make site by site assessment decisions.

The WAPC have also indicated that draft SPP 3.7 and Guidelines will not be retrospectively applied to existing development, however major changes to existing development is likely to be assessed against the relevant principles.

Accreditation

Draft SPP 3.7 provides that bushfire hazard level assessments, bushfire attack level assessments and bushfire management plans need to be prepared by fire consultants, and relevantly defines a fire consultant as “a person with expertise in fire management, who is eligible for certification under an applicable accreditation scheme”.

The WAPC has indicated that it intends to introduce an accreditation scheme for fire consultants, unfortunately, it has not indicated a time by which such a scheme will be up and running.

In the interim, it is unclear how the expertise of a person or firm preparing such plans or undertaking assessments will be considered, policed or challenged.  This appears to be a major oversight.

Removal of exemption to obtain planning approval for a single house on a single lot

Currently, the majority of local (and regional) planning schemes exempt single houses and ancillary development from requiring planning approval.

The WAPC have indicated that the proposed bushfire regulations, made pursuant to s 256 of the PD Act, will require all proposals for habitable development on land in bushfire prone areas, irrespective of current scheme requirements, to lodge planning applications where a BAL-40 or BAL-FZ rating applies (i.e. where a site is considered at an extreme risk should a bushfire occur).

The WAPC have also indicated that when proposed development has a lower BAL assessment, the exemption from planning approval is likely to continue to apply, but the appropriate building standards under the Building Code of Australia will be applied at building permit stage.

Lavan Legal comment

We expect these changes will have a major impact on the develop-ability of a significant number of existing and proposed developments, both large and small, throughout Western Australia.  In particular there is likely to be many impacts on greenfields developments on the urban fringe where staged development (and staged clearing of bushland) occurs and where land ownership and management is often fragmented.

It may be prudent for developers of staged development to undertake a review of their existing operations and to assess the impact of these changes on the design, yield and cost of these staged and future developments.

The time lag between the implementation of SPP 3.7 and the Guidelines, and the necessary amendments to legislation and regulation, are likely to cause issues for developers and approval agencies, as there has been no guidance as to what will prevail or what is acceptable in the interim.

Due to the strong wording of SPP 3.7, there may also be scope for claims for injurious affection arising in coming years in circumstances where development on an existing lot is refused.  This potential has not been addressed with particularity in SPP 3.7.

The public comment period for the draft SPP 3.7 close on 4 July 2014 and the draft Guidelines close on 1 August 2014.

If you require any assistance in preparing a submission to the WAPC on the proposed changes, or would like to discuss the impact of these changes on your property or development, please contact us.