Amendments to the Development Regulations 2008 — reducing ‘red tape’ for development in areas affected by bushfire

11 March 2020

On 5 March 2020, the Development (Bushfire Recovery) Variation  Regulations  2020 (“the Variation Regulations”) were proclaimed. They vary the Development Regulations 2008 (“the Regulations”).

The Variation Regulations are part of the State Government’s response to the recent bushfires that have affected large parts of the State. They are particularly relevant for councils with areas affected by the recent bushfires. However, the amendments apply to all areas of the State and will apply to any land affected by bushfire in future.

The Variation Regulations amend schedules 3, 4, 8 and 9 of the Regulations to include:

• the insertion of clause 4(1)(ab) of Schedule 3 to the Regulations, exempting the requirement for development approval for temporary structures on land where a building or part of a building has been destroyed or significantly damaged by bushfire and (our underline):
  • the structure is for the use of the owner of the land for storage of goods and materials as required to assist in recovery and redevelopment of an area affected by the bushfire; and
    • the structure:
    • does not exceed 3 metres in height (measured from ground level);
    • does not exceed 12.5 metres in length; and
    • does not exceed 5 metres in width; and
    • the structure does not remain on the land after 1 January 2022;
• clause 5(2)(ea) of Schedule 3 to the Regulations, which provides an exemption from the requirement for development approval for the parking of a caravan or other vehicle of any weight¹ on which a dwelling, or part of a dwelling, has been destroyed or significantly damaged by bushfire, if the vehicle is to be used as accommodation by the owner of the land until 1 January 2022 or until a Class 1a building on the land is able to be occupied in accordance with regulation 83A;
• clause 5(2)(eb) of Schedule 3 to the Regulations, exempting the requirement for development approval for the storage of goods and materials until 1 January 2022 on land on which a building, or part of a building, has been destroyed or significantly damaged by a bushfire if the storage is for the use of the owner of the land, to assist in the recovery and redevelopment of an area affected by the bushfire;
• clause 21 of Schedule 3 to the Regulations, providing an exemption from the requirement for development approval for the demolition of buildings destroyed or damaged by fir It provides for the partial or total demolition of a building and associated structures of the building, or part of the building, destroyed or significantly damaged by a bushfire, other than in respect of a local heritage place or Historic Conservation Zone/Area;²
• clause 5, Part 1 of Schedule 4 to the Regulations – temporary accommodation in areas affected by bushfire are complying development for the purposes of Development Plan consent where:
  • it is used as accommodation by the owner of the land;
  • meets the other exceptions in the clause including setback distances from vegetation and clearance areas; and
  • is only used until 1 January 2022 or until a Class 1a building on the land is able to be occupied in accordance with regulation 83A, whichever occurs first.
• clause 18, Part 2 of Schedule 4 to the Regulations – temporary accommodation will be complying development for the purposes of the building rules consent subject to meeting the requirements specified.
• Schedule 8:
  • where a development is accompanied by a ‘relevant certificate’ it will not require further referral to the CFS on lodgment of an application as set out in item 18 of the Table in Schedule 8; and
  • ‘relevant certificate’ is defined to mean a certificate obtained from the CFS certifying that a Bushfire Attack Level for the development has been undertaken within three months prior to lodgment of the application and that the Bushfire Attack Level is – 19 range.
• clause 16C, Part 1 of Schedule 9 to the Regulations – development which  replaces development that has been destroyed or significantly damaged by a bushfire in substantially the same form will be Category 1 for public notification purposes.

The Variation Regulations are a welcome addition to the Regulations. They enable people whose land has been affected by bushfire to be expeditiously provided with temporary accommodation and structures for storage, without unnecessary ‘red tape’. However, there are some factors that councils must be mindful of in applying the Variation Regulations.

In Schedule 3, temporary storage structures can only remain on land until 1 January 2022.³ Similarly, temporary accommodation is also given  a timeframe  to remain  on land  until  22 January 2022 or until a class 1a building is able to be occupied on the land (whichever is sooner).⁴ Once the relevant deadline has lapsed, the temporary structure(s) cease to be exempt from the meaning of development and must either be removed from the land or development approval obtained.

In Schedule 4, the deadline for complying temporary accommodation is similar to that of temporary accommodation under Schedule 3⁵. However, it requires lodgement and approval of a complying development application. Where complying temporary accommodation is granted development approval, the consent should include a condition specifying the temporary use of the accommodation and the applicable timeline.

Where temporary structures are not removed from land within the specified timeframe and development approval is not obtained, the council will need to consider enforcement options in respect of the structures. It is through the enforcement of the Variation Regulations that councils are likely to be most impacted from a resource perspective.

Temporary structures for storage will only be exempt if, among other things, the structure is “for the  use of the owner of the land for the storage of goods or materials”⁶ (our underline). Temporary accommodation is only exempt or complying if it is to be “used as accommodation by the owner of the land” (our underline).⁷ The use of the words “the owner of the land” means that temporary structures will only be exempt from development or will otherwise be complying where the structure will be used by the owner of the land. The Variation Regulations do not take into account persons who may be an occupier of land, but do not own land that has been affected  by  bushfire.  Meaning  that  where  it  is intended  that  an  occupier  of  land  will  use temporary structures for storage or accommodation, these structures will not be exempt or complying in accordance with Schedules 3 and 4 of the Regulations.

It is not clear how the Variation Regulations will operate once the Planning and Design Code (“the  Code”)  and  Planning,  Development  and  Infrastructure  Act  2016  (“the  PDI  Act”) commences  for  regional  and  metropolitan  councils  and  whether  similar  provisions  will  be inserted into the PDI Act, associated Regulations and the Code.⁸ We anticipate that further amendments to the PDI Regulations will be made before the commencement of the Code and PDI Act, to address these issues. We will continue to provide updates as relevant.

For more information please contact Victoria Shute at 08 8113 7104 or vshute@kelledyjones.com.au.

¹  The  term  “any  other  vehicle  of  weight”  is  not  defined  in  the  Development Regulations 2008  or Development Act 1993 and could include a motor home, bus or some other form of vehicle accommodation.

² Historic Conservation Zone/Area is defined in clause 21(2) of schedule 3 of the Regulations and means a Historic (Conservation) Zone, a Historic (Conservation) Policy Area, a Residential Historic (Conservation) Zone, a Historic Conservation Area, a Historic Township Zone or any other zone or area in which the word “Historic” appears in the title of the zone or area in the relevant Development Plan.

³ Refer clause 4(1)(ab)(iii) of schedule 3 of the Development Regulations 2008.

⁴ Refer clause 5(2)(ea)(i) and (ii) of schedule 3 of the Development Regulations 2008.

⁴ Clause 5(d), Part 1 of schedule 4 of the Development Regulations 2008.

⁶ Refer clause 4(1)(ab)(i) of schedule 3 of the Development Regulations 2008.

⁷ Refer clause 5(2)(ea) of schedule 3 of the Development Regulations 2008 and clause 5(a) of schedule 4 of the Development Regulations 2008.

⁸ The Planning and Design Code and Planning, Development and Infrastructure Act 2016 are currently scheduled to commence for regional councils in July 2020 and metropolitan councils in September 2020.