On 14 July 2021, the NSW Department of Planning, Industry and Environment introduced updated guidance for councils in respect of flooding in land-use planning, to support better management of flood risk beyond the 1% annual exceedance probability (“AEP”), and to ensure best management practises in managing and mitigating severe to extreme flood events. The updated guidance and materials are:
- a new planning circular: Considering flooding in land use planning: guidance and statutory requirements (and revoking the existing planning circular PS 07-003);
- a new guideline: Considering Flooding in Land Use Planning (2021) (and revoking the Guideline on Development Controls on Low Flood Risk Areas);
- an amendment to clause 7A of Schedule 4 to the Environmental Planning and Assessment Regulation 2000. The changes will simplify the notation to advise of flood-related development controls up to the flood planning area (clause 7A(1)) or between the flood planning area and the PMF (clause 7A(2));
- two standard instrument local environmental plan (LEP) clauses which introduce flood related development controls (one mandatory, one optional);
- a SEPP amendment to replace councils existing flood planning clause with the new mandatory standard instrument clause; and
- a revised local planning direction regarding flooding issued under section 9.1 of the Environmental Planning and Assessment Act 1979.
Section 10.7 Planning Certificates
Under Schedule 4: There are new requirements in section 10.7 planning certificates for land affected by flood-related development controls.
Clause 7A(1) has been amended to require councils to include a notation on section 10.7 planning certificates if the land or part of the land to which the certificate relates is within the flood planning area (“FPA”) and subject to flood-related development controls.
Clause 7A(2) has been amended to require councils to include a notation on section 10.7 planning certificates if the land or part of the land to which the certificate relates is between the FPA and the probable maximum flood and subject to flood-related development controls.
Amendment to Local Environment Plans
Under the new guidelines, local environment plans will automatically update to include the ‘flood planning’ clause. The flood planning clause applies to land identified at or below the flood planning area as defined by council. Councils should define their FPAs and FPLs in their development control plans and outline if there are multiple FPAs and flood planning levels (“FPL”) in their LGA and where they apply. The FPL is defined in the updated guideline.
The ‘special flood consideration’ (“SFC”) is an optional clause for inclusion in a Council’s LEP, which would apply to land that in the event of a flood, may cause a particular risk to life and require the evacuation of people or other safety considerations. Special flood considerations area considers flood impacts beyond the 1% AEP.
Councils were asked if they would like to opt into the SGC clause by submitting an expression of interest to the NSW Department of Planning, Industry and Environment which was due on 30 July 2021.
If a council did not opt into the SFC, clause 7 of the local planning direction does not apply.
Planning Circular
The Planning circular has been updated to include information on the changes to section 10.7 planning certificates. Additional information has been added relating to special flood considerations, and the reference to the regional evacuation consideration has been removed.
Further information
We encourage all councils to review the upcoming changes in detail at https://www.planning.nsw.gov.au/flooding
