Clarifying the role of consent authorities in bushfire prone land

In brief - NSW Rural Fire Service (RFS) to assess only non-compliant or integrated development applications

A recent amendment to the Environmental Planning & Assessment Act means that if a local council or other consent authority is satisfied that a development application meets the requirements of Planning for Bush Fire Protection 2006, or receives a certificate to that effect, the consent authority must determine the application without referring it to the RFS.

State government aims to streamline assessment of development applications

One of the perennial objectives of planning reform in NSW is to reduce the number of government authorities and agencies involved in the assessment of development applications.

The state government’s latest target is the NSW Rural Fire Service and its involvement in development carried out on bushfire prone land.

Local councils tended to refer development applications to the RFS

Until recently, the assessment regime for development carried out in bushfire prone land required the consent authority – typically the relevant local council – to satisfy itself that the development proposal met with the requirements of Planning for Bush Fire Protection 2006, or to rely on a certificate provided by a qualified consultant in bushfire risk assessment.

Irrespective of this process, consent authorities were nevertheless permitted to refer proposals to the RFS for its assessment and comment. That in turn triggered further delays and, often enough, conflicting opinions on the suitability of the development. More often than not, the discretion to refer applications to the RFS was exercised by consent authorities.

Amendment removes discretion to refer complying applications to the RFS

A recent amendment to section 79BA of the Environmental Planning & Assessment Act 1979 has now removed that discretion. In summary, if a consent authority is satisfied that the requirements of Planning for Bushfire Protection 2006 have been met, or receives a certificate to that effect, the consent authority must determine the application without referral to the RFS.

Proposals that do not meet the requirements of Planning for Bush Fire Protection 2006 will continue to be referred to the RFS for assessment under section 79BA, subject to some exceptions.

Council officers exempted from liability for decisions on bushfire prone land

To alleviate one of the more obvious concerns of local councils arising out of this latest amendment, the government has also seen fit to amend section 733 of the Local Government Act 1993, the effect of which is that council officers making decisions in relation to development on bushfire prone land will be exempt from liability, provided those decisions were made in good faith.

Private certifiers not exempted from liability

Somewhat inconsistently, this statutory exemption does not extend to private certifiers issuing certificates of compliance under section 79BA. That, in turn, may ultimately have an impact on whether developers choose private certifiers or rely upon the assessment of council officers in determining compliance (the former with professional indemnity insurance; the latter with statutory immunity).

Rural Fire Service will continue to assess integrated development applications

The RFS will continue to assess integrated development applications under section 91 of the Environmental Planning & Assessment Act, including the subdivision of land for residential or rural residential purposes, the development of land for special fire protection purposes, the assessment of draft Local Environment Plans (LEPs) and the certification of bushfire prone land maps.