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Legislative Requirements

Development Applications

Development on land that has been dedicated as bush fire prone must meet specific requirements under the current NSW legislative provisions.

On 1 August 2002 the Environmental Planning and Assessment Act 1979 and the Rural Fires Act 1997 were both amended to enhance bush fire protection through the development assessment process. The EP&A Act establishes a system for requiring bush fire protection measures on bush fire prone land at the development application (DA) stage.

Legal ObligationsLegislative Requirements

Development applications on bush fire prone land must be accompanied by a Bush Fire Assessment Report demonstrating compliance with the aim and objectives of Planning for Bush Fire Protection 2006 and the specific objectives and performance criteria for the land use proposed.  

Section 79BA of the Environmental Planning and Assessment Act 1979

Section 79BA of the Environmental Planning and Assessment Act 1979 requires that a consent authority (i.e. council) not grant approval for any development in a bush fire prone area (other than those developments covered by Section 100B of the Rural Fires Act 1997) unless the proposal complies with Planning for Bush Fire Protection 2006 or the Commissioner of the NSW Rural Fire Service has been consulted on any non-compliance.

Although this focuses on the construction of new residential dwellings or external alterations and additions to existing residential dwellings, it can also be applied to commercial, industrial developments or any DA on bush fire prone land that is not integrated.

The consent authority is only required to consult with the NSW Rural Fire Service (NSW RFS) under section 79BA when a proposed residential dwelling (i.e. infill) does not comply with the "acceptable solutions" of Planning for Bush Fire Protection 2006. The NSW RFS has 14 days upon receipt of the development application to provide comment to the consent authority.

Section 100B of the Rural Fires Act 1997

Section 100B of the Rural Fires Act 1997 requires that the Commissioner of the NSW Rural Fire Service (NSW RFS) issue a Bush Fire Safety Authority (BFSA) for residential, rural residential or rural subdivision and special fire protection purpose developments on bush fire prone land. Special Fire Protection Purpose Developments include: 

  • a school,
  • a child care centre,
  • a hospital (including a hospital for the mentally ill or mentally disordered),
  • a hotel, motel or other tourist accommodation,
  • a building wholly or principally used as a home or other establishment for mentally incapacitated persons,
  • housing for older people or people with disabilities within the meaning of State Environmental Planning Policy No 5—Housing for Older People or People with a Disability (now SEPP (Seniors Living))
  • a group home within the meaning of State Environmental Planning Policy No 9—Group Homes,
  • a retirement village,
  • any other purpose prescribed by the regulations.

Complying Development

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) were amended in 2010.

The Codes SEPP is an important policy initiative put in place by the NSW Government to remove red tape for low risk and low impact development, and directly results in significant time and cost savings for home owners and small business.

Clause 1.19 of the Codes SEPP was amended so that land identified as being "bush fire prone" was no longer listed as a land exemption and is no longer excluded from the application of one or more codes. Instead, specified development requirements and development standards have been added to the General Housing Code and the Rural Housing Code that apply to new development undertaken on low risk bush fire prone land.

The development standards have been designed to ensure that:

  • complying development is not allowed on higher risk bush fire prone land (i.e. BAL-40 or Flame Zone)
  • only a 'qualified consultant' or the local council can endorse the BAL under the Planning for Bush Fire Protection Guidelines 2006
  • once the BAL is known, the council or private accredited certifier must certify that the proposal complies with AS 3959-2009 Construction of buildings in bush fire prone land.

These changes mean that complying development under the Codes SEPP can be undertaken on low risk bush fire prone land where the relevant development standards for bush fire prone land and all other relevant development standards have been met.

The process for obtaining a complying development certificate on bush fire prone land is outlined in the table below:

Application Process for Bush Fire Prone LandComplying Development