Information Session Great Lakes Council

Development Assessment & Planning

4 May 2011Lew Short

Group Manager Community Resilience

NSW Rural Fire Service

Outline• Overview • Legislation Changes• Complying Development

• Process • Development Standards • Recognised Consultants• Certificates• Best Practice Guidelines and Supporting Documents

• 79BA• Recognised Consultants

• Queries

The next steps for local government

• What are the specific needs of Council and Council staff

• How can the RFS assist?

• Mentoring by RFS

• Site assessment

• Inconsistency with the requirements for ember protection between 100B and 79BA assessments. Example is DA-474/2010 for a boundary adjustment. Bush Fire Safety Authority issued subject to condition requiring dwelling to be upgraded for ember protection. Dwelling is not located within part of land mapped as bush fire prone. Based on slope, distance to vegetation and type of vegetation the dwelling would not require any specific construction requirements (BAL 12.5) under AS 3959.

• 2. Ensuring appropriate conditions are applied to Bush Fire Safety Authority. Example is DA-116/2011. A condition was imposed requiring “Public road access shall comply with section 4.1.3 (1) of Planning for Bush Fire Protection 2006. Clarification was sought in relation to the required outer radius of a cul-de-sac and advice received that 12m required. Plans were clearly non-compliant (8.5m outer radius). Applicant is unable to comply with this condition without substantial change to the form of the subdivision, therefore placing this requirement as a condition could invalidate the any consent and should have been raised as an issue rather than placed as a condition.

• 3. Requiring APZ’s on newly created lots and associated roadways which are outside the extent of bush fire prone land (i.e. more than 100m to the nearest bushfire hazard) to comply with PBP 2006. Only the residue lot contains bush fire prone land. Example is DA-69/2010

• I refer to DA 260/2010. A rural dwelling beyond the Council maintained section ( a distance of 5.15Klms) of Black Camp Road, Stroud. The maintained section of Black Camp Road varies in width between 2.5 and 5m and also consists of a number of old timber bridges and culverts. To access the property, a further distance of 500m was required to be travelled over a non maintained section of Black Camp Road also consisting of a poorly constructed pipe crossing. The issues were as follows:-

• RFS required that only the internal access meet the requirements of 4.1.3 (2)• The maintained section of Black Camp Road itself clearly did not meet RFS requirements in terms of height clearances, road width and dubious structural

adequacy of the existing bridges and culverts.• The 500m of unmaintained road was in poor condition as was the pipe crossing within this section.• In my mind this raises the following questions:

1. Does Council have any obligation to ensure that its' maintained or unmaintained rural road network complies with basic RFS requirements such as width, height and load capacity? If so, given current and projected budget restraints, would achieving compliance with these requirements be unrealistic or even unachievable task?

• 2. Why does the RFS condition for compliance with internal access requirements yet overlooks the condition of the public road itself?• 3. In terms of liability would Council or the RFS be accountable in any way should it be proven that a fatality occurred due to RFS emergency services not

being able to negate the public road leading into the property?• What is the standard of construction required for secondary access roads on rural properties? • I am off work on Mon and at a DAP meeting on Tues so really can’t afford to be there on Weds – so sorry. I have a few issues with the RFS system but

most are to do with the unnecessary need to send DA’s to them with associated costs and time. Example 1 - house just approved for construction, we then submit a DA for subn and we are required to supply RFS report and costs covering that same site??????  .

• Example 2 – subn approved for 3 lots – clients then request the subn be varied to 2 lots (same location for house sites as previously approved 3 months prior) we are required to resubmit the DA to RFS???? Why?

• I have never liked how in the case of a minor boundary adjustment – RFS place conditions on the long standing existing dwellings (covering in openings, covering windows, extra water tanks etc). In some cases it has meant the bdy adjustment is no longer viable so does not proceed. So houses remain the same and the boundary stays in an inappropriate location. RFS in later years are becoming better on this issue but still room for improvement

• I can supply DA refs if needed  The four above are from a surveyor. My specific issues relate to road access widths and turning circle requirements.

• Robyn Shelley

Specific Issues

Legislative Changes• The Environmental Planning & Assessment Amendment

Act 2008 (the Amendment Act)• s79BA EP&A Act 1979

• Codes SEPP 2008 – Exempt Provisions (unchanged)– Complying Provisions

• Amendment to s733 of the Local Government Act 1919• Protection of life and property is maintained through

rigorous assessment processes by suitably qualified consultant or Council staff

• Exempt & Complying Codes SEPP has been in effect from 2008.

• Bush Fire was a land based exclusion which only allowed minor exempt development such as class 10, fences etc

• Long period of negotiation with Dept of Planning and FPAA• Maintains NSW strong position for new development in

Bush Fire Prone Areas.

Background - Complying Development

• Exempt & Complying Codes SEPP has been in effect from 2008.

• Bush Fire was a land based exclusion which only allowed minor exempt development such as class 10, fences etc

• Long period of negotiation with Dept of Planning and FPAA• Maintains NSW strong position for new development in

Bush Fire Prone Areas.

Background - Complying Development

• Bush fire prone land is no longer excluded from the Codes SEPP

• New assessment process applies to the General Housing Code and the Rural Housing Code

• Part 3 of Codes SEPP– Development Standards eg. setbacks, building height & bush fire

prone land standards

The changes to complying development

Complying Development Process

RFS/ Council/Consultant

Certifying Authority(Council or Private)

ApplicantCouncil

No

CODES SEPP

YES

YES

NO

YES

Breaches

79BA

Construction

Application on Bush Fire Prone

Land

Does the proposal comply with the

development Standards?

Complying Development

Certificate(Schedule 1 of

EPA Regs)

Obtain BAL Certification

Is the proposal BAL 40 or FZ

NO

RFS for Audit

Documentation to FPAA, Council &

BPB

Does the application comply with the

development Standards

DA

• Cannot be carried out on BFP Land for State Significant Development, Integrated Development or Other development

• Can be applied to infill situations for alterations, additions and new houses that meet the code criteria (Development Standards)

• Development Standards are based on the zoning of the land– Rural zonings covered by Rural Housing Code RU1 – RU 6– Residential or the General Housing R1 – R5

Part 3 General Housing Codecl. 3.36B   Development standards for bush fire prone land(1)  This clause applies:

(a)  to all development specified for this code that is to be carried out on a lot that is wholly or partly bush fire prone land (other than development that is the erection of non-habitable ancillary development that is more than 10m from any dwelling house, landscaping, a non-combustible fence or a swimming pool), and

(b)  in addition to all other development standards specified for this code.

(2)  The development may be carried out on the lot only if: (a)  the development conforms to the specifications and requirements of the following that are

relevant to the development:

(i)  Planning for Bush Fire Protection (ISBN 0 9751033 2 6) published by the NSW Rural Fire Service in December 2006,

(ii)  Addendum: Appendix 3 (ISBN 0 9751033 2 6, published by NSW Rural Fire Service in 2010) to Planning for Bush Fire Protection (ISBN 0 9751033 2 6),

(iii)  if another document is prescribed by the regulations for the purposes of section 79BA of the Environmental Planning and Assessment Act 1979—that document, and

Part 3 General Housing Codecl. 3.36B   Development standards for bush fire prone land(b)  the part of the lot on which the development is to be carried out is not in bush fire

attack level-40 (BAL-40) or the flame zone (BAL-FZ), and

(c)  the lot has direct access to a public road or a road vested in or maintained by the council, and

(d)  a reticulated water supply is connected to the lot, and

(e)  a fire hydrant is located less than 60 metres from the location on the lot of the proposed development, and

(f)  mains electricity is connected to the lot, and

(g)  reticulated or bottled gas on the lot is installed and maintained in accordance with AS/NZS 1596:2008, The storage and handling of LP Gas and the requirements of relevant authorities (metal piping must be used), and

(h)  any gas cylinders on the lot that are within 10m of a dwelling house: (i)  have the release valves directed away from the dwelling house, and (ii)  are enclosed on the hazard side of the installation, and (iii)  have metal connections to and from the cylinders, and (i)  there are no polymer sheathed flexible gas supply lines to gas meters adjacent to the dwelling.

• 3)  A standard specified in subclause (2) (b) is satisfied if one of the following certifies that the development is not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ):

• (a)  until 25 February 2012—the NSW Rural Fire Service, or

• (b)  a person who is recognised by the NSW Rural Fire Service as a suitably qualified consultant in bush fire risk assessment, or

• (c)  the council.

Note. More information about the categories of bush fire attack, including the flame zone, can be found in Table A3.4.2 of Addendum: Appendix 3 (ISBN 0 9751033 2 6 and published by NSW Rural Fire Service in 2010) to the publication titled Planning for Bush Fire Protection (ISBN 0 9751033 2 6) published by NSW Rural Fire Service in 2006.

DA Required

DA Required

Bush fire prone land - CDCAS3959 (2009)

BAL Level Description

BAL LOW Insufficient risk

BAL 12.5 Ember attack

BAL 19 Increased ember attack and debris

BAL 29 Ember attack and radiant heat

BAL 40 Radiant heat, embers and flame exposure

BAL FZ Direct exposure to flames and fire front

BAL 40 & FZ - The distance from a bush fire at which there is significant

potential for sustained flame contact to a building.

Council assessment or BPAD Certification

RFS Submission Requirements• Kit for applicants to determine their BAL when applying for

a BAL Risk Assessment Certificate.

• Identification of lot particulars

• Statement of proposed development

• A site plan with (reference number and dated) drawn to scale that indicates building footprint

• BAL Risk Assessment fee (may be applicable).

BAL Risk Certificate < BAL 40

BAL Risk Certificate BAL 40 +

Suitably Qualified Consultants • It is a requirement that a person who has suitable

qualifications and experience undertakes the assessment. This could be either the local council or a person identified as being a ‘suitably qualified consultant’.

http://www.rfs.nsw.gov.au/dsp_content.cfm?CAT_ID=904

Suitably Qualified Consultants

Recognised by NSW Rural Fire Service

– Fire Protection Association Australia • BPAD-A and BPAD-D

• Or other equivalent BPAD qualification/scheme

Certificate particulars• Duration of Certificate - 12 months

• Must identify BAL level in the certificate – Site assessment is critical

• Amendments – There are no provisions to do amendments to the certificate.

• Conditioning – Conditioning cannot be applied. The proposal meets the DTS or it does not.

• Based on the hazard at the time of inspection

• No approval for vegetation clearing or establishing APZ’s.

• Multiples assessments for certificates can be undertaken. However, only a final certificate can be provided with the CDC.

Residential DEVELOPMENT STANDARDS

Construction requirements

Bushfire Attack Level Low-29

Public road access

Reticulated water supply

A fire hydrant less than 60 metres

Mains electricity

Reticulated or bottled gas installation

Gas cylinder location

Gas supply lines

Best Practice Guidelines• New works to comply with Development Standards

ie. AS3959 2009 ‘Construction of Buildings in Bushfire Prone Areas’

• Most homes in NSW pre-date bush fire legislation.

• Unable to achieve increased bush fire protection.

• NSW RFS has produced the Best Practice Guidelines to assist existing houses to upgrade.

Is Upgrading Mandatory?

• No, however compliance with the Best Practice Guide is strongly recommended as a minimum

• In addition to any other bush fire protection measures– Site management– Landscaping– Construction standards – Services

Auditing• Following issue of CDC, required to be forwarded to

RFS

• The RFS will carry out an auditing process to ensure accuracy of BAL Risk Assessment Certificates

• Will also be used by RFS for operational purposes

• Breaches will be forwarded to the accredited body

s.79BA

Hansard

• S79BA originally intended councils undertake the majority of bushfire risk assessment

– “This will be a general referral requirement although councils, as consent authorities, should be able to determine whether developments meet the guidelines specifications” (Parliament Hansard May 2002)

79BA

(1)  Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land unless the consent authority:

(a)  is satisfied that the development conforms to the specifications and requirements of the document entitled Planning for Bush Fire Protection, ISBN 0 9751033 2 6, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

79BA(b)  has been provided with a certificate by a person who is

recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements

• “relevant specifications” DTS provisions of Planning for Bush Fire Protection

• “requirements” documentation provided to Council in support of the certificate. Documentation includes that detailed in Appendix 4 of PBP.

• “Certificate” means to provide documented evidence to Council as the consent authority as to your recommendations to be incorporated into the conditions of consent. This should include the DTS requirements of PBP and the appropriate level of construction in accordance with AS3959.

79BA

• (1A)  If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire.

79BA

• is satisfied that the development does not conform = demonstration that there is some form of non-compliance.

• DoP and the RFS will be pushing for this to be done and after the 12 months transition will be working with councils (training/ mentoring) to ensure they are comfortable in the assessment of applications.

• It is envisaged that DAs referred to the RFS will not be accepted unless they can demonstrate the non-compliance with PBP.

• Assessment sheets/checklists will be developed to assist councils.

• IMPORTANT – The changes are designed to allow the RFS to focus resources on higher risk developments.

In Summary• Council shall assess compliance with ‘Planning for Bush Fire

Protection 2006’ (PBP) for all developments under section 79BA

• Onus on councils to undertake assessments

• Referral to RFS only where proposal does not comply with PBP

• Reduce assessment timeframes and allow RFS to focus upon high risk developments

• Enable recognised consultants to certify developments compliance

Further Information

• NSW Department of Planning website– Fact Sheet November 2010

– Fact Sheet 3 – General Housing Code

– Fact Sheet 10 Complying Development on Bushfire Prone Land

• RFS Website– Fast Fact 5/10 Recognised/Qualified Consultants

– Practice Note 1/10 Requirements for Recognised/Qualified Consultants

– BAL Risk Self Assessment Tool

– BAL Risk Assessment User Guide

– BAL Risk Assessment Application Kit

– Best Practice Guideline

QuestionsQuestionsLew ShortGroup Manager Community Resilience NSW Rural Fire Service8741 5454Lew.short@rfs.nsw.gov.au

Lew Short lewshort14