Rebuilding after bushfire

Recently New South Wales has experienced unprecedented devastating bushfires, which have destroyed over 450 homes. With summer on our doorstep and the predicted dangerous bushfire season, it is timely to know the methods and requirements of reconstructing the buildings lost in natural disasters. This article provides a useful starting point to the pathways available for property owners and bushfire victims to rebuild lost homes and businesses.

 

Demolishing partially destroyed buildings and structures

Burnt buildings and structures cannot simply be removed without considering the structural integrity of the building as bushfires can impact on the safety of a building or structure. Before taking any steps in relation to partially destroyed buildings it is important to ensure adequate assessment of the structural integrity of the building has occurred in order for the safe demolition of partially destroyed buildings and structures. Normally, this will require an assessment to be undertaken by a suitably qualified structural engineer to assess the structural integrity of the building and if there is any land contamination caused by the destruction of the building or structure, a contamination expert would be required to report on any issues.

The type of approval required to undertake demolition works depends on whether the type of development that is being demolished is 'exempt' development, 'complying' development or development that requires consent.

Exempt development

Clause 2.25 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP) permits the demolition of 'exempt development' without the need to obtain development consent or a complying development certificate, provided that the demolition is carried out in accordance with AS 2601—2001, The demolition of structures and does not occur on or in a heritage item, a draft heritage item, a heritage conversation area or draft conservation area. 'Exempt development' includes development such as balconies, decks, verandahs, barbecues, outdoor cooking structures, cabanas and carports.1

Complying development

Demolition of development such as a dwelling, an industrial building or a swimming pool is defined as 'complying development'.2 A complying development certificate must be obtained prior to demolishing these structures. Clause 7.2 of the Codes SEPP specifies the development standards with which the demolition must comply, including compliance with the AS 2601—2001, The demolition of structures, run-off and erosion controls and disconnection of all essential services. There are additional restrictions if the development involves the removal of a boundary wall, a swimming pool or the development is within a heritage conservation area or a draft heritage conservation area.3 Schedule 9 of the Codes SEPP outlines conditions that apply to demolition complying development certificates.

Development requiring consent

If the development to be demolished is not 'exempt' or 'complying' development, development consent must be granted to carry out the demolition. This will entail the submission of a development application which will require assessment and determination by council.

Removing fire-affected vegetation

The permissibility of removing fire-affected vegetation depends on whether land is in a 'rural area'4 and what type of vegetation is being removed. Part 5A of the Local Land Services Act 2013 (NSW) permits the clearing of native vegetation in rural areas without any approvals in certain circumstances. The removal of fire-affected vegetation in non-rural areas may be possible without authority if a council or Native Vegetation Panel is satisfied the vegetation is dying or dead and is not required as the habitat of native animals.5 Trees within 10 metres of a home and underlying vegetation within 50 metres of a home in a '10/50 vegetation clearing entitlement area'6 may be able to be removed without approval.7 Otherwise, council or Native Vegetation Panel approval is required to remove trees.8

However, it is important to check with your local council for any Tree Preservation Orders as they may affect the entitlement to remove vegetation.

Reconstruction of a building that was partially or wholly destroyed by a fire

The type of approval required to construct a building that is different to what existed on the land prior to the destruction of the building depends on whether the development sought is a permissible use under the applicable land zone.

Permissible uses of land are determined predominantly by the zone of the land. Reviewing the land zoning maps and the respective land use table under the relevant Local Environmental Plan shows whether a particular land use is permitted without consent, with consent, or is prohibited.  Some Local Government Areas provide interactive map tools on their websites, and snapshots of the applicable land controls applicable to land are available here.

If the proposed development is permissible under the current land zoning

If the current land use table permits the rebuilding of dwellings, once again, the type of approval required depends on whether the development is 'exempt development', 'complying development' or development requiring consent. As mentioned above, 'exempt development' does not require approval, provided it complies with the relevant development standards in Part 2 of the Codes SEPP.

The alteration of, or an addition to, a one or two storey dwelling house (including any addition that results in a two storey dwelling house) and any attached development is 'complying development' provided that it complies with the restrictions included in Part 3 or Part 3A of the Codes SEPP.

The erection of a new one or two storey dwelling house and any attached development is complying development if it complies with the development standards in Part 3 or Part 3A of the Codes SEPP including certain land zoning, lot size, lot dimensions, access to a public road and the number of dwelling houses on the land. Approval to build is granted by either obtaining a complying development certificate from a private certifier or the relevant council.

Clause 3.4(2) of the Codes SEPP imposes additional development standards for complying development on bush fire prone land. To check if your land is recorded as 'bush fire prone land,' the NSW Rural Fire Service has an online land mapping tool available here. If the land is 'bush fire prone land,' additional development standards apply to complying development.9  Notably, the erection of dwelling houses is not complying development if any part of the land which is going to be developed has a bush fire attack level of 40 (BAL-40) or is in the flame zone (BAL-FZ).

If the proposed development does not satisfy the requirements of 'exempt' or 'complying' development, a development application must be submitted with the council seeking development consent. Some councils have implemented special procedures for development applications lodged for properties on which buildings have been destroyed by fire, by either waiving development application fees or fast tracking the assessment process.

If the proposed development is not permissible

Land zoning and permissible uses change over time.  A change in land zoning and permissible uses may prevent new development where the proposed use is now prohibited.  However if land was lawfully used for a purpose immediately before the use became prohibited, and the use has continued and not been abandoned for a period of 12 months or more, you may be able to rely on 'Existing Use Rights' when submitting a development application to rebuild. In the event that, for example, a house was lawfully built on land and after its construction, the land zoning or permitted uses of the land zone changed to prohibit houses, the house may have existing use rights. If the house was subsequently destroyed, the 'Existing Use Rights' may allow consent to be granted to another house being built on the land, even though dwelling houses are a prohibited use.10

It is also important to note that Existing Use Rights cannot be relied on if the development was not lawful i.e. if the building or any alterations/additions were not constructed in accordance with a development consent if one was required.11

Any redevelopment that is based on Existing Use Rights will require development consent to be granted.12 Clause 44 of the Environmental Planning and Assessment Regulation 2000 (NSW) permits the lodgement of a development application to build in respect of an existing use, however, it is important to note that this entitlement does not mean that the Council must grant consent to such an application.13  The development application will be assessed on its merits.  Accordingly, a council could refuse to grant development consent notwithstanding that there is was a similar building previously built and used on the land.

Conclusion

Rebuilding after a bushfire can be difficult due to the emotions involved. We recommend engaging consultants including a town planner, architect and engineer as their expertise will assist in explaining the opportunities and restraints for the redevelopment of land.

Our planning and environment team has the knowledge and expertise to assist with any queries and legal issues you may encounter. Get in contact with us today.


1 See Part 2 Division 1 of Codes SEPP for a full list of 'exempt development.'
2 Other types of 'complying development' include ancillary development under Part 2, 3A, 4, 5 or 5A of the Codes SEPP,  a commercial building that would be 'complying development' under the Commercial and Industrial Alterations Code and the Commercial and Industrial (New Buildings and Additions) Code if it were being constructed and attached development or detached development.
3 See clause 7.1(2), 7.2(2)-(4) of the Codes SEPP for further information.
4 See section 60A of Local Land Services Act 2013 (NSW) for further information on whether the land is in a 'rural area'.
5 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 cl 8(2).
6 Rural Fires Act 1997 (NSW) s 100P. A tool to determine whether land is within the '10/50 vegetation clearing entitlement area' is available here
7 Rural Fires Act 1997 (NSW) s 100R.
8 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 cls 10, 14; Local Land Services Act 2013 (NSW) s 60ZF.
9 See clause 3.4 of the Codes SEPP for the full list of additional development standards.
10 Environmental Planning and Assessment Act 1979 (NSW) s 4.65.
11 Environmental Planning and Assessment Act 1979 (NSW) s 4.69.
12 Environmental Planning and Assessment Regulation 2000 (NSW) cls 43-44.
13 Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 at [78].

Contributors

Katharine Huxley Associate
Belle McKinley Lawyer