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Complying development in bushfire areas

The information below assists in understanding the regulations and guidelines regarding use of complying development in bushfire areas in NSW.

Complying development 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’s 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.  

Rules for building in a bushfire-prone area

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. 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 6m 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 Bushfire Attack Level 40 (BAL-40) or in the Flame Zone (BAL-FZ). Under the Rural Housing Code any associated access way to the development must not be on land that is BAL-40 or 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 applying to land is set out in Planning for Bushfire Protection 2019, which makes amendments to Australian Standard AS 3959:2018.

Minimum requirements for using complying development in a bushfire area

The rules 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 1596:2014 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 be reticulated water supply connection to the lot and a fire hydrant within 70m 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:

  • Planning for Bushfire Protection (2019) published by the Rural Fire Service
  • Australian Standard AS 3959:2018 Construction of buildings in bushfire-prone areas
  • Any other documents prescribed by the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), in accordance with section 4.14 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 (e.g. 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.

To find out more, contact HIA’s Planning and Environment team.

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