Gateway Determination
1. Optional Natural Disasters Clause
ORDINARY MEETING OF COUNCIL 09 FEBRUARY, 2021
Whether a separate specific Standard Instrument clause is necessary;
Clarification on circumstances whereby the clause would be applicable and where consent would not be required;
Whether Council will have sufficient flexibility in circumstances whereby regulations may have changed (for example, when the original dwelling may not have been compliant with current bushfire and flood protection guidelines)
;
Clarification on what is defined as a ‘natural disaster’; and
Potential unintended impacts on rural character.
Following a review of submissions, the Department have released the final clause and associated guidance document and are inviting Councils to opt-in to including the clause in their LEPs. The final clause and guidance document generally address the concerns raised in Council’s submission. A copy of the final wording for the clause is provided as Attachment 1 to this report.
REPORT
ORDINARY MEETING OF COUNCIL 09 FEBRUARY, 2021
(the EP&A Act), they may refuse the application based upon its merits (particularly in regards to potential risks and environmental impacts). However, this is not indicated in the Final Clause.
To provide greater clarity on this matter, the consent authority would still have discretion to consider various fundamental merit based considerations including, but not limited to, the following:
The overall suitability of the site for the proposed development;
Any relevant environmental considerations (for both the natural and built environment), particularly any known risks of natural hazards, including bushfire and flood prone land;
Any potential social and economic impact within the locality;
Any potential adverse amenity impacts (for example, overshadowing, noise and reduced privacy);
Whether the proposal gives effect to the objectives and desired outcomes articulated within the relevant strategic planning framework, including the Greater Sydney Region Plan, Central City District Plan, Council’s Local Strategic Planning Statement (and supporting strategies) and other local strategies and plans;
Whether the proposal responds to any changing circumstances, such as the introduction of new environmental guidelines and recent development within the locality;
Any submissions made by the general public or public authorities; and
If the proposal is in the public interest.
Eligibility Pre-requisites
In order to be eligible for the exemptions offered under the clause, the following criteria must be satisfied:
a) The dwelling house or secondary dwelling must have been lawfully erected; and b) Any application must be made within five (5) years of the declaration of a natural
disaster.
The onus of proof is on the landowner to demonstrate that a dwelling was lawfully erected.
However, this may be difficult to ascertain due to circumstances such as the age of the dwelling or changes in ownership. In some cases, particularly in rural areas where natural disasters such as bushfires or floods are more likely, some dwellings may have been historically erected without consent. Neither the clause, nor the guidance document provides any clarification on a process for consideration where the lawful development of a dwelling cannot be easily ascertained.
ORDINARY MEETING OF COUNCIL 09 FEBRUARY, 2021
Guidance on ‘Natural Disaster’ Meaning
Whilst the final clause does not define a ‘natural disaster’, the ‘Guidance for Implementation’
document describes a ‘natural disaster’ as follows:
‘Natural disasters are naturally occurring, rapid onset events that cause serious disruption to life or property in a community or region, such as floods, bushfires, earthquakes, storms, cyclones, storm surges, landslides and tsunamis. A natural disaster can include a state of emergency declared under section 33 of the State Emergency and Rescue Management Act 1989.’
The Department’s ‘Guidance for Implementation’ document also stipulates that the new clause will be applicable to developments that include any rebuilding or repairs resulting from damage from the abovementioned events.
Applicable Land Use Zones
The clause permits Council to specify the zones to which the clause would apply. Whilst a natural disaster could occur on any land, it can reasonably be assumed that the clause is likely to be of most benefit on land which is subject to existing environmental constraints such as bushfire prone and flood prone land, or land subject to geological or other environmental constraints. Within the context of The Hills Shire, land subject to the greatest risk of natural disaster is likely to be contained within the following zones:
RU1 Primary Production;
RU2 Rural Landscape;
RU6 Transition;
E3 Environmental Management; and
E4 Environmental Living.
Accordingly, should Council decide to opt-in to this new clause, it is recommended that it be applicable to the abovementioned zones, as these are likely to experience the greatest risk of natural disaster.
It is further recommended that the application of the new clause also extend to R2 Low Density Residential and R3 Medium Density Residential zones under The Hills Local Environmental Plan. This will provide protection for residential zones surrounding rural villages which would have a similar level of risk as rural and environmental protection areas with respect to natural disasters. It would also serve to protect more urbanised residential areas which have experienced a prevalence of severe storms and flooding events in recent years.
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The areas to which the new clause is proposed to apply are shown below in Figure 1.
Figure 1
Proposed land use zones to be covered by new clause
Within the abovementioned zones, there is estimated to be approximately 61,900 properties that will be covered by the new clause in the event that a natural disaster damages or destroys a dwelling or secondary dwelling.
The exact locations would need to be indicated to the Department by 15 February 2021 should Council resolve to opt-in to the clause.
ORDINARY MEETING OF COUNCIL 09 FEBRUARY, 2021