Bushfire Legislation & Regulations
The legislative and policy framework which affects bushfire prone areas is significant and often confusing. To help our clients understand how the different legislation and regulation work, we have prepared a summary for our client base.
Planning and Development Act 2005
The Planning and Development Act 2005 (P&D Act) is the foremost piece of legislature controlling subdivision and development in Western Australia. It is the legislation that empowers the key decision making bodies in this area being the Western Australian Planning Commission (WAPC), the Department of Planning (DoP) and local governments, as the responsible heads of power for planning decisions making in WA. The P&D Act establishes the powers and functions of the WAPC and allows them to create State Planning Policies (SPP) and regional planning schemes. Additionally, the P&D Act gives power to local governments to make local planning schemes. Importantly, it confirms the requirement for development approval to be obtained, prior to development occurring in a number of circumstances.
All local planning schemes across the state are enforced under Section 257B of the P&D Act.
Planning and Development (Local Planning Schemes) Regulations 2015
The Planning and Development (Local Planning Schemes) Regulations 2015, (which replaced the Town Planning Regulations 1967 on 19 October 2015) prescribes the procedures by which local planning strategies, Local Planning Schemes and amendments to those Schemes are to be prepared and adopted.
Under Clause 67 of the Regulations ‘Matters to be considered by local government’:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application and the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
Accordingly, where a development application is made to a local government under a local planning scheme, this provision essentially gives power to the Local Government (under their Scheme) to consider the appropriateness or suitability of the development proposal in light of the fact that the land may be subject to bush fire (or one of the other identified) risks.
Planning and Development (Local Planning Schemes) Amendment Regulations 2015
Further to the above, recent amendments introduced ‘Part 10 – Bushfire Risk Management’ into the Regulations. Under this part, of particular importance is that the amendments establish:
- Whether the construction or use applies to part of the development;
- Determining whether the development is located within a bushfire prone area;
- Proposed development in a bushfire prone area; and
- Matters to be considered for development approval.
The Amendment Regulations 2015 designate bushfire prone areas, the requirements imposed by the ‘deemed provisions’ apply in addition to the provisions or requirements for a ‘Special Control Area’ (SCA) relating to bushfire. This means that where a SCA already exists under a local planning scheme, that SCA continues to have effect, including in any additional areas identified as bushfire prone under that respective SCA. A SCA is designated by a Local Planning Scheme which is given its power by the P&D Act.
The LPS Amendment Regulations 2015 prevails to the extent of any inconsistency with the local planning scheme provisions.
State Planning Policy 3.7: Planning in Bushfire Prone Areas
Although not technically legislation, State Planning Policy 3.7 - Planning in Bushfire Prone Areas (SPP 3.7) was created under the powers of P&D Act and therefore deserves acknowledgement.
This document directs how land use planning decisions (particularly for Local Governments) within Western Australia should be guided where there is a need to address bushfire risk management. It applies to all land which has been designated as bushfire prone by the Fire and Emergency Services (FES) Commissioner as highlighted on the Map of Bush Fire Prone Areas.
SPP 3.7 outlines the circumstances in which a Bushfire Attack Level (BAL) assessment is required. This includes a single house or ancillary dwelling
on a lot 1,100m² or greater in size and for all other habitable buildings which they are located in the a designated ‘bush fire prone area’.
The accompanying ‘Guidelines for Planning in Bushfire Prone Areas’ also provide supporting information to assist with interpreting the objectives and policy measures outlined in SPP 3.7.
Building Act 2011
The Building Act 2011 adopts the National Construction Code incorporating the Building Code of Australia (BCA) Volumes 1 & 2 as the primary applicable building standard for new building work. Generally, the BCA provides (Australia wide) bush fire construction requirements for Class 1-3 and Class 10a residential buildings.
The BCA defines a bush fire prone area to mean land which has been designated under a power of legislation as being subject, or likely to be subject, to bush fires.
The BCA’s deemed-to-satisfy provisions reference Australian Standard AS 3959 – Construction in bushfire prone areas as one way of demonstrating compliance with the BCA bush fire construction performance requirements.
Building Regulations 2012
The Building Regulations 2012 outlines the effect of the designation of bush fire prone areas and the role building surveyors play in certifying building compliance located within those bushfire prone areas. The Building Regulations 2012, (much like the LPS Regulations for Planning) are given their power through the Building Act 2011.
The Building Regulations 2012 define a ‘bush fire prone area’ as being:
‘means an area of the State designated by an order made under the Fire and Emergency Services Act 1998 section 18P as a bush fire prone area;’
The Fire and Emergency Services Act 1998 Section 18PP goes on to state that:
18P. FES Commissioner may designate bush fire prone areas
(1) The FES Commissioner may, by order published in the Gazette, designate an area of the State as a bush fire prone area if satisfied that the area is subject, or likely to be
subject, to bush fires.
(2) The FES Commissioner may, by order published in the Gazette, amend or revoke an order published under subsection (1).
Accordingly, bush fire prone areas are now designated by the FES Commissioner and identified on the Map of Bush Fire Prone Areas.