Proposed Natural Disasters Clause to override LEP

The NSW Department of Planning, Industry and Environment has sought feedback on a proposed clause for the Standard Instrument LEP that they say will support better and quicker rebuilds of dwellings following natural disasters. Over the 2019-20 Australian summer, natural disasters such as bushfires and floods impacted thousands of homes across NSW. Many people affected by these natural disasters are now seeking planning approvals to enable them to rebuild or repair their homes. The Department is currently working with local councils to help communities recover after natural disasters and future-proof the NSW planning system. To support the rebuild and repair of dwellings following a natural disaster, the Department has prepared an optional provision for inclusion in the Standard Instrument (Local Environmental Plans) Order. A new clause for rebuilding and recovery The Department has sought Council's feedback on the proposed clause which they say clarifies development consent can be granted for the purposes of repairing or replacing a dwelling impacted by a natural disaster. The clause offered is said to clarify that, despite any other provisions in the relevant Local Environmental Plan (LEP), approval to repair or rebuild a dwelling, including a secondary dwelling, can be granted if the original lawful dwelling was destroyed or damaged in a natural disaster. A merit assessment is still required, however the rebuild or repair cannot be refused based on any development standards in the Local Environmental Plan (LEP). An amending State Environmental Planning Policy will be made to expedite the inclusion of this provision in participating LEPs, saving councils the time and resources required to progress individual planning proposals. The clause will also become an optional provision in the Standard Instrument LEP Order. This means that councils who do not wish to express an interest in incorporating the clause into their LEP at this stage can progress their own planning proposal should they choose to incorporate the clause into their LEP at a later date. Expressions of interests (EOI) have now closed for councils wanting to participate in the implementation stage. NSW Department of Planning, Industry and Environment have now distributed the finalised clause to those councils who have lodged an EOI and requested:

  • Formal confirmation to have the clause inserted into their LEP; and

  • Nomination of relevant LEP(s) and the zones where the proposed clause will apply.

Only councils that have submitted an EOI have been contacted. It is not known if Eurobodalla Council, with over 500 destroyed homes and a considerable backlog of Development Applications have submitted an EOI. Any participating Council now has until 15 February 2021 to formally opt-in and only councils who formally opt-in will be included in the amending SEPP. The department has prepared the final clause and associated guidance materials to assist with implementation of the clause, which have been distributed to participating councils.

To be a lawfully erected dwelling house or secondary dwelling, it must have been constructed under a valid development consent, building approval or another lawful planning pathway under the Environmental Planning and Assessment Act 1979 or equivalent historical planning legislation. A DA seeking development consent to rebuild or replace a dwelling under the clause must be made to the consent authority no later than five years after the day on which the natural disaster caused the damage or destruction. More information can be found on this Frequently Asked Questions sheet Better Planning Network are raising their concerns over the proposal saying "DPIE has, quite unnecessarily in our view, included the words "despite any other provision of this Plan" (the Council Local Environment Plan). "That means a rebuild or repair cannot be refused on the basis of non-compliance with any LEP standard, such as height, floor space ratio, or almost any other provision in that Council's LEP. Councils still get to assess the DA against their Development Control Plans or DCPs but they are guidelines that have no statutory weight. "Development consent can be granted for dwelling houses and secondary dwellings that are of a different size, design, or location on the site to the original dwelling." Better Planning Network ask "How long do you think it will take developers to realise affected blocks will be worth a motza to them because they can build with almost no controls? Wouldn't it be great if we had a planning system that didn't keep providing developers with loopholes big enough to drive a semi-trailer through?"