In brief - The recent bushfire crisis is likely to serve as an existential moment for law and policy makers across a range of legal areas. Not surprisingly, the New South Wales and Commonwealth planning and environment laws have again been placed into the spotlight as the affected regions recover and rebuild.
This article examines what we might expect under the current planning and environmental legal framework and as law makers continue the large reform agenda that was to occur this year. In short, the bushfires will lead to further change.
Calls for action
On 10 January 2020, the President of the Australian Academy of Science Professor John Shine issued the following media release regarding the unprecedented bushfires across the Christmas and New Year period:
The Academy is resolute that the response to the bushfires must extend beyond the immediate and essential need to rebuild and recover. Everything, including urban planning; building standards; habitat restoration; biodiversity and species preservation; and land, water and wildlife management will need careful and measured consideration. [Emphasis added].
Prime Minister Scott Morrison has also commented that as a result of the impact more broadly of climate change and drought on the length of the fire season, there is:
a need to address issues around hazard reduction for national parks, dealing with land clearing laws, zoning laws and planning laws around people's properties and where they can be built.
Proposed reforms to Commonwealth and NSW legislation
Significant processes for reform in these areas of law are currently underway:
It appears safe to say that it is inevitable that the NSW bushfire crisis will provide further "grist for the mill" within these reform processes, and more change is likely.
Balancing long-term bushfire planning and protection, and enabling the prompt rebuilding of what has been destroyed will make for a challenging process.
This article considers those matters the President of the Australian Academy of Science referred to as requiring careful and measured attention.
Urban planning is primarily regulated by the states and territories. In NSW, the zoning system provides (to use John Whitehouse's metaphor in his textbook Development and Planning Law in New South Wales) a "coarse sieve" that broadly delineates the types of land uses permitted within certain zones. These zones delineate areas considered by statutory planners to be inappropriate for residential development, as well as areas deemed appropriate. The zones also include areas for environmental protection where works are tightly restricted.
The second, finer sieve (generally Part 4 of the EP&A Act) regulates what land uses and development can occur within the zones against planning instruments like Local Environment Plans and Development Control Plans. In addition, certain types of development can be "exempt" (not requiring assessment), or "complying development" (a fast-tracked approval process which allows a private certifier to sign off on certain development without assessment by council). The levers within this system are likely to be used in addressing the re-evaluated bushfire risk in light of the bushfire disaster.
There will no doubt be pressures to increase the land designated as bushfire prone land, and for development on such land to be more closely scrutinised with the imposition of higher standards. Already this year we have seen clients dealing with more stringent requirements being imposed by NSW Rural Fire Service (RFS) to address bushfire risk.
Despite land zoning, there is a common misconception that the NSW planning system does not provide an entitlement for development. The grant of a development consent in fact provides a dispensation to the general prohibition of development on land within the state. It is also possible for land to be "downzoned" without compensation for the landowner. While that is the legal position, there are many other factors at play which militate against these processes being relied on in a callous way by the authorities, particularly following a bushfire disaster. There will be an obvious tension between allowing landowners whose homes have been destroyed to rebuild simply and cheaply, and regulating whether the land should be developed given its bushfire prone status, and if so, the imposition of more stringent (and therefore costly) development standards.
We are likely to see a tension between the desire to rebuild destroyed buildings quickly through the complying development process and long-term bushfire planning. Complying development that satisfies specific standards in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) enables immediate reconstruction as applications are determined by council or private certifier, without the need for a full development application. However, that process relies on the issue of Bushfire Attack Level (BAL) certificates where land is bushfire prone. If the BAL is too high, development applications will need to be lodged with a more detailed (and costly) Bushfire Risk Assessment Report.
One policy response to this dilemma of housing in at-risk areas is a voluntary buyback program, which occurred in Victoria following the 2009 Black Saturday fires. Given that in NSW it has been reported (as at 7 January 2020) that more than 2,000 homes, 200 facilities and 4,000 outbuildings have been destroyed, such a program may be one of the policy responses proposed.
As part of the urban planning patchwork of regulation, NSW also has a policy of Asset Protection Zones (APZ). An APZ is a fuel-reduced area surrounding a built asset such as a residential or commercial building. This can help suppress the impact of a bushfire, and allows emergency services and homeowners access to defend their property. There is also the controversial 10/50 Vegetation Clearing Scheme, allowing people in designated Vegetation Clearing Entitlement Areas to clear trees on their property within 10 metres of their home and underlying vegetation within 50 metres of their home, without seeking approval. It is likely that there will be renewed regulatory interest in these provisions, as the review and reform agenda proceeds this year.
According to consulting firm SGS Economics, the current bushfires are causing up to $50 million a day in economic disruption. The catastrophic scale of these fires, and their costs, provides a market signal towards new innovation in building standards for fire resistance. Just as Christchurch has had to adapt its building standards to its earthquakes, Australia will need to further adapt to its bushfire risk. Measures such as bunkers, rooftop sprinkler systems, fire resistant housing material and frames and smart housing design will all no doubt be given renewed interest. As prefab materials gain popularity, these will need to be tailored to Australian conditions.
NSW has already undergone reform on combustible cladding used in residential flat buildings in relation to more urban forms of fire risk, including the use of building product rectification orders. Extending this regulatory response to substandard buildings in bush fire zones may form another response by authorities, although the imposition of costs on already stretched land owners would weigh against this.
As mentioned above, land that is bushfire prone already needs to address building standards. First, the "Planning for Bush Fire Protection" (PBP) prepared by the NSW RFS is applicable to all development applications proposed for land that is classified as bushfire prone land. The PBP sets out what applicants must demonstrate to the NSW RFS or the consent authority. The current legislated version that is adopted is PBP 2006. An updated version is expected to be legislatively adopted in March 2020. However, it is possible (if not likely) this will be pushed back while the implications from these most recent fires are considered.
The Building Code of Australia also plays a role for new development. It is a prescribed condition of a development consent for development that involves any building work for that work to be carried out in accordance with the requirements of the Building Code of Australia: see clause 98 of the Environmental Planning and Assessment Regulation 2000 (NSW). The Building Code of Australia is contained within the National Construction Code, which contains requirements for building in bushfire prone areas that are identified by individual states and territories. It is possible further changes to the National Construction Code will be considered after the implications of these fires are studied.
Habitat restoration is generally carried out by state and volunteer agencies, as well as other non-government environmental organisations. Already funding has been announced for organisations involved with restoration.
Given the large-scale habitat destruction in NSW, which can be seen by the "Fires Near Me" mapping of the NSW RFS, part of the policy response might be to provide further incentives to the private sector contributing to this process. Increasingly over the last decade, restoration has occurred in connection with new development as developers improve habitats surrounding and connected with their new development. This can be applied for in development applications and required through the grant of development consents (through conditions) and through Voluntary Planning Agreements entered into with consent authorities (such as councils).
Developers are also sometimes incentivised into habitat restoration to mitigate impacts on habitat so that they can protect themselves from risks of the development being considered to have a significant impact on threatened species or their habitat.
The process of obtaining development consent for some types of habitat restoration works may need to be simplified to increase speed and reduce its cost. However, given the delicate nature of bushfire impacted ecosystems, this will need to be carefully considered since rushed and ill-considered works could be counterproductive given the precarious ecology of some of the landscapes impacted by the fires.
Biodiversity and species preservation
According to Chris Dickman, Professor of Ecology at the University of Sydney, an estimated 1 billion animals have died across NSW. The heightened urgency in protecting species of both national and state significance may lead to the imposition of stricter criteria when considering the environmental impacts of developments around Australia.
At the Commonwealth level, the preservation of threatened species and ecological communities is regulated under the EPBC Act, such that if an action may impact a threatened species, approval from the Commonwealth Minister may be need to be obtained. In determining whether a species is eligible for listing as threatened under the EPBC Act, rigorous scientific assessments are undertaken by the Threatened Species Scientific Committee. The decline of Australia's biodiversity following these bushfires may see the status of some of Australia's threatened species escalate from "vulnerable" to "endangered" to "critically endangered". Already the Commonwealth Minister has made comments as to the fires' effect on koalas. Koalas are admittedly an iconic species and in the spotlight, but there is likely to be many other less well known, but also critical to ecological functioning, populations of species wiped out by the fires.
At the NSW level, biodiversity and species preservation is primarily controlled by the interaction between the EP&A Act and the Biodiversity Conservation Act 2016 (NSW) (BCA Act), which has only recently been introduced following the repeal of the Threatened Species Conservation Act 1995 (NSW). The new framework operating under the BCA Act, the Biodiversity Offsets Scheme, requires any new application for development consent or modification under Part 4 of the EP&A Act to be subject to its biodiversity assessment requirements. Development proposed to be carried out in a declared area of outstanding biodiversity value or likely to affect threatened species will require a Biodiversity Development Assessment Report to be submitted with the development application.
In light of the significant loss of biodiversity, there are going to be changes in the ecology surrounding new development which will need to be grappled with by proponents and consent authorities.
Land, water and wildlife management
As mentioned in Professor John Shine's media release:
To have the best chance of succeeding, we must draw on all the available evidence and knowledge, including working with Aboriginal and Torres Strait Islander peoples and undertaking further research where it will have the most benefit.
We may therefore see moves within the regulatory system to enable more involvement of indigenous fire practices. Regulators will need to carefully consider the safety of those involved and nearby communities if more flexibility is given to such practices given the attendant safety risks and problems that have occurred in the past with back burns.
In relation to water, with 100% of NSW in drought, water management—already under intense scrutiny following the Murray-Darling Basin issues involving water theft, and water allocations to large-scale industry—will attract further attention given the extreme dryness of vegetation comprises one element that has contributed to these fires. An emerging difficulty for governments will be the balancing act of satisfying the necessities of livelihoods and allocating sufficient water to maintain healthy environmental flows.
Other land management issues regulated on land through our zoning system and environmental laws such as grazing, vegetation clearance, and the control of deer and horses in alpine regions, are also likely to be queried as to whether the right balance exists between the competing pressures.
All sides of politics have acknowledged that anthropogenic sources of climate change have contributed in some way to the extent and severity of these bushfires.
The legal mechanisms that might be used to address this are many and varied involving mitigation (reducing greenhouse gas emissions) and adaption (preparing for change), and occur at state and Commonwealth levels. Precisely how our state and Commonwealth governments will respond is unknown, but the regulatory response will invoke the balancing of environmental, economic, social and political factors.
The year ahead for planning and environment law
This background indicates 2020 will be a year marked by legal "VUCA" - volatility, uncertainty, complexity and ambiguity - when it comes to planning and environment law. In that regard:
- It is likely there will be more sudden forms of changes to this regulatory environment, particularly given reform was already on the cards.
- There will be uncertainty as responses will depend on the fall-out from the experts' reviews, but the amount of regulation in this area already also contributes further uncertainty for those navigating this area of law.
- Complexity arises from the application of laws by the authorities and the courts, as well as the open textured nature of these laws.
- Finally, there is ambiguity with multiple viable options available in responding to the challenges.