Complying Development in Bushfire Areas – NSW

HIA Industry Update for NHS
Approx read time: 3 minutes

This month’s HIA update has been prepared to assist you to understand the regulations and guidelines regarding the use of complying development in bushfire areas in NSW.

When can complying development apply in a bushfire prone area?

The rules for complying development are (in most cases) set out in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP). It is possible to undertake complying development on bushfire prone land but only in accordance with the requirements set out in the policy.

If you are unsure whether the land is bushfire prone, the Rural Fire Service (RFS) website provides a tool to check if bushfire rules apply. This tool can be found by clicking here.

What are the rules for building in a bushfire prone area as complying development?

The standards applying to complying development are set out in each code. For the Housing Code refer to clause 3.4, for the Rural Housing Code refer to clause 3A.37 and for the Housing Alterations Code refer to clause 4.6A.

Low risk types of development such as those identified below are exempt from the bushfire requirements.

  • Non-habitable detached development that is more than 10m from any dwelling house
  • Landscaped areas
  • Non-combustible fences
  • Swimming pools.

Where can’t you use complying development?

Complying development cannot be carried out on land that is bush fire attack level-40 (BAL-40) or in the flame zone (BAL-FZ). A Development Application is required to carry out any development on land in these high risk areas. The process to determine the relevant BAL level applying to land is set out in Australian Standard AS3959:2009.

 What are the minimum requirements for using complying development in a bushfire area?

The standards to be met for a complying development application under the Complying Development Codes are as follows:

  • The lot must have access to a public road (or a road vested in or maintained by the local council),
  • The dwelling must be able to be connected to mains electricity,
  • If reticulated or bottled gas is installed and maintained on site – it must be installed and maintained in accordance with AS/NZS 1596:2008 and the storage and handling of LPG comply with the requirements of the relevant authorities,
  • Gas cylinders stored within 10m of a dwelling house must meet certain standards specified in the codes,
  • There must not be any polymer sheathed flexible gas supply lines to gas meters adjacent to a dwelling,
  • There must reticulated water supply connection to the lot and a fire hydrant within 60m of any part of the development (or if the land is located in a RU5 zone, compliance with the above requirements or have a 10,000L water tank on the lot),

In addition to these requirements, the proposed development MUST comply with all relevant provisions of:–

  1. Planning for Bushfire Protection (2006) published by the Rural Fire Service,
  2. Addendum: Appendix 3 to Planning for Bushfire Protection (2010),
  3. Australian Standard AS 3959-2009: Construction of Buildings in Bushfire-Prone Areas,
  4. Any other documents prescribed by the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) – in accordance with section 79BA of the Environmental Planning and Assessment Act 1979.

These requirements are in addition to any other standards prescribed by the relevant code and applying to a particular development type (eg, setbacks, landscaped area, building height, etc).

What conditions apply to an approval?

Clause 136A of the EP&A Regulation requires that every complying development certificate issued must be subject to a condition that all building work is carried out in accordance with the requirements of the Building Code of Australia (BCA). All relevant parts of the BCA must be adopted at all times.

A council or an accredited certifier who issues a complying development certificate for development on bushfire prone land must send a copy of the certificate and associated documentation to the RFS. Clause 130 of the EP&A Regulation requires any certification required by clause 3.4(3) or clause 3A.37(3) of the Codes SEPP also be sent to the RFS.

For more information, HIA members can contact HIA’s Planning and Environment team on 1300 650 620 or email nsw_planning@hia.com.au.

Craig Jennion
HIA Executive Director – Hunter