By Aaron Gadiel, Partner

The NSW Government has published details of its new ‘flood-prone land package’.  The package promotes a wider application of flood planning rules.

The documents comprising the package are available on the NSW Planning Portal here.

There are several aspects of legal significance in the package.

Firstly, from 14 July 2021, the existing flood planning clauses in a wide range of local environmental plans are to be deleted.  A list of clauses to be deleted is here

From 14 July 2021, there will be a new state-wide standard clause inserted into standard-instrument compliant local environmental plans.  It will be titled ‘Flood planning’ clause.  The text of this clause is available here.

The clause applies to a ‘flood planning area’.  This area has the potential to be broader than flood planning areas mapped in maps adopted in many local environmental plans (these maps will generally be repealed on 14 July 2021).

The clause relies, in part, on a new guideline: ‘Considering Flooding in Land Use Planning Guideline’.  The final text of this guideline has not been published (and does legally not need to be published until 14 July 2021).  A draft of the guideline is available here.

The draft guideline says:

• that the guideline ‘helps NSW communities to be more resilient to flooding beyond the 1% Annual Exceedance Probability (AEP)’;
• the guideline ‘involves considering the management of flood risk for the full range of flooding up to the Probable Maximum Flood (PMF)’; and
• flood-prone land is a ‘valuable resource’ that ‘should not be sterilised by unnecessarily precluding its development’.

The guideline says that the ‘flood planning area’ includes the area below a 1-in-100-year event (or an equivalent historic flood).  However, the guideline also says that it includes additional areas up to a ‘defined flood event’, plus a freeboard.  The defined flood event is to be selected by the local council.  It says that this may be a rarer event (that is, an event that is expected to occur more infrequently than once in every century).  This approach is apparently to allow a local council to ‘address broad scale flood impacts in consideration of the social, economic, environmental and cultural consequences associated with floods of different probabilities’.

The draft guideline expressly contemplates that the flood planning area may extend even further, by reference to low probability events that have the potential for high consequences. These additional areas may include areas where new floodways develop (in flood events rarer than the ‘defined flood event’) or where the scale of damages in more extreme events warrants additional development controls.  An example given is a 1-in-500-year event.

The new standard ‘Flood Planning’ clause stops a development consent from being lawfully granted unless a consent authority is satisfied as to various matters that relate to flood management and safety.

There will also be a further ‘optional’ state-wide clause titled ‘Special flood considerations’.  The text of this clause is available here.  This ‘special’ clause extends mandatory flood preconditions (for the grant of development consent) outside of the ‘flood planning area’ — up to the ‘probable maximum flood’ area.  The ‘probable maximum flood’ is the largest flood that could conceivably occur at a particular location.

Local councils have been invited to tell the Department of Planning, Industry and Environment (by 30 June 2021) if they want to ‘opt-in’ to the  ‘Special flood considerations’ clause (and include it in their local environmental plans).  We infer that this will require the notification of a further amendment to local environmental plans before 14 July 2021.

At this point no ‘savings’ or ‘transitional’ provisions have been published.  This means that — unless something further is done — these changes will apply immediately to any pending development applications (from as early as 14 July 2021).

Finally, the package includes a revised ‘section 9.1’ local planning direction on flooding.  The final direction has not yet been published.  Based on the draft direction presently available, it seems that the direction will make it more difficult for some land to be rezoned to a residential or business zone.