Division 8Division 8 Development of bush fire prone land and for bush fire hazard reduction
(1) In this Division:bush fire code means a bush fire environmental assessment code in force under this Division.
bush fire safety authority means an authority given by the Commissioner under section 100B and that is in force.
certifying authority means a certifying authority described in section 100E.
excluded land means the following:
(a) land to which State Environmental Planning Policy No 14—Coastal Wetlands applies,(b) land to which State Environmental Planning Policy No 26—Littoral Rainforests applies,(c) any other land prescribed by the regulations.issuing authority means the issuing authority described in section 100E.
managed land means land:
(a) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the Forestry Act 1916, or in respect of which the Forestry Commission has obtained the benefit of a forestry right as referred to in section 11 (1) (m) (iia) of that Act, or(b) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or(c) that is vested in, or under the control of, Rail Corporation New South Wales, Transport Infrastructure Development Corporation, Rail Infrastructure Corporation or the Roads and Traffic Authority, or(d) that is within the catchment area of a water authority.private land means land other than managed land and unoccupied Crown land.
(2) Expressions used in this Division that are used in the Environmental Planning and Assessment Act 1979 have the meanings set out in that Act.
Subdivision 2 Bush fire prone land
100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for:(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or(b) development of bush fire prone land for a special fire protection purpose.(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.(5) Development to which subsection (1) applies:(a) does not include the carrying out of internal alterations to any building, and(a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and(b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument.(6) In this section:special fire protection purpose means the purpose of the following:
(a) a school,(b) a child care centre,(c) a hospital (including a hospital for the mentally ill or mentally disordered),(d) a hotel, motel or other tourist accommodation,(e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons,(f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004,(g) a group home within the meaning of State Environmental Planning Policy No 9—Group Homes,(h) a retirement village,(i) any other purpose prescribed by the regulations.
Subdivision 3 Bush fire hazard reduction
100C Carrying out of bush fire hazard reduction work
(1) An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the doing of:(a) emergency bush fire hazard reduction work on any land, or(b) managed bush fire hazard reduction work on land other than excluded land.(2) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of emergency bush fire hazard reduction work carried out on any land.(3) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of managed bush fire hazard reduction work carried out on land other than excluded land if:(a) the work is carried out in accordance with a bush fire risk management plan that applies to the land, and(b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate, and(c) the work is carried out in accordance with the provisions of a bush fire code applying to the land specified in the certificate.Note. If work to which Part 5 of the Environmental Planning and Assessment Act 1979 would apply but for this subsection is not carried out in accordance with this subsection, the person carrying out the work will be in breach of that Act.(4) Bush fire hazard reduction work may be carried out on land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003, the Threatened Species Conservation Act 1995, the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act if:(a) the work is carried out in accordance with a bush fire risk management plan that applies to the land, and(b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate, and(c) the work is carried out in accordance with the provisions of any bush fire code applying to the land specified in the certificate.(5) Subsection (4) does not apply to an integrated forestry operations approval within the meaning of the Forestry and National Park Estate Act 1998.
100D What is a bush fire hazard reduction certificate?
A bush fire hazard reduction certificate is a certificate that authorises the carrying out of bush fire hazard reduction work on land in accordance with:(a) a bush fire risk management plan that applies to the land, and(b) the provisions of any bush fire code applying to the land specified in the certificate, and(c) any conditions specified in the certificate.
100E Issuing and certifying authorities
(1) The issuing authority for a bush fire hazard reduction certificate in respect of bush fire hazard reduction work to be carried out on private land by a person other than the Commissioner or a local authority is:(a) the local authority of the area in which the land is situated, or(b) the Commissioner.(2) The certifying authority for a bush fire hazard reduction certificate in respect of bush fire hazard reduction work to be carried out:(a) on any land by the Commissioner—is the Commissioner,(b) on any land by a local authority—is the local authority for the area in which the land is situated,(c) on managed land or unoccupied Crown land by a public authority—is the public authority responsible for the land.
100F Issue of bush fire hazard reduction certificates
(1) An application for a bush fire hazard reduction certificate in respect of work to be carried out on private land by a person other than a local authority or the Commissioner is to be made to the issuing authority in writing in accordance with the regulations (if any).(2) An application may be made:(a) by any owner or occupier of the private land, or(b) if the work is to be carried out on the private land by a public authority responsible for managed or unoccupied Crown land in the vicinity of the private land—by the public authority.(3) A single application may, with the consent of all owners or occupiers of the land concerned:(a) be made for land owned or occupied by more than one person, or(b) be made by a public authority on behalf of those owners or occupiers.(4) A bush fire hazard reduction certificate must not be issued unless:(a) a bush fire risk management plan applies to the land, and(b) the issuing authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to the code.(5) The issuing authority may determine an application:(a) by issuing a bush fire hazard reduction certificate, or(b) by refusing to issue a bush fire hazard reduction certificate.(6) A bush fire hazard reduction certificate must:(a) specify the provisions of any bush fire code applying to the land that the issuing authority has determined should be complied with in carrying out the work, and(b) specify any other conditions that have been imposed by the issuing authority having regard to that bush fire code, and(c) specify as a condition of the issue that notice be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.(7) The determination of an application must be completed within 7 days (or such longer period as may be agreed to by the applicant) after lodgment of the application.(8) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a bush fire hazard reduction certificate.Note. If a bush fire hazard reduction certificate is not obtained, bush fire hazard reduction work may still be carried out but only if any approvals, consents or other authorisations that would have been required to be obtained but for section 100C are obtained.(9) A public authority, a local authority or the Commissioner must not charge any fee in respect of an application for, or the issue of, a bush fire hazard reduction certificate.
100G Bush fire hazard reduction certificates of certifying authorities
(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify:(a) that a bush fire risk management plan applies to the land, and(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.(2) A bush fire hazard reduction certificate certified by a certifying authority must:(a) specify the provisions of any bush fire code applying to the land that the certifying authority has determined should be complied with in carrying out the work, and(b) specify any conditions that have been imposed by the certifying authority having regard to that bush fire code.
100H Remedy and restraint for breaches of sections 100F and 100G
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of section 100F or 100G, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
100I Duration of bush fire hazard reduction certificate
A bush fire hazard reduction certificate becomes effective and operates for a period of 12 months commencing on the date endorsed on the certificate.
Subdivision 4 Bush fire environmental assessment codes
100J Commissioner may prepare draft codes
(1) The Minister may cause to be prepared by the Commissioner for submission to the Minister a draft bush fire environmental assessment code in relation to land (other than excluded land).(2) A draft bush fire environmental assessment code may refer to, or incorporate with or without modification, a document prepared or published by a body specified in the code, as in force at a particular time or from time to time.(3) In preparing a draft bush fire environmental assessment code in relation to land, the Commissioner must have regard to:(a) the principles of ecologically sustainable development (as described by section 6 (2) of the Protection of the Environment Administration Act 1991), and(b) any matter likely to affect the environment by reason of the carrying out of bush fire hazard reduction works on the land that a determining authority would be required to consider under section 111 of the Environmental Planning and Assessment Act 1979 (but for this Division) if Part 5 of that Act were applicable to the work and the carrying out of the works were an activity within the meaning of that Part.
100K Consultation on draft codes
(1) The Commissioner must, in preparing a draft bush fire environmental assessment code, consult with, and take into account any recommendations made by or on behalf of the following:(a) the Director-General of the Department of Planning,(b) the Director-General of the Department of Environment, Climate Change and Water,(c) the Nature Conservation Council of New South Wales,(d) the NSW Farmers’ Association,(e) the Local Government Association of New South Wales,(f) the Shires Association of New South Wales,(g) the Director-General of the Department of Industry and Investment,(h) the Commissioner of NSW Fire Brigades,(i) the Chief Executive of the Land and Property Management Authority.(2) The Commissioner may consult with such other persons or bodies as the Commissioner considers appropriate or as the Minister directs.
100L Public participation in preparation of codes
(1) The Commissioner must give public notice of and exhibit, for the purpose of receiving submissions from any interested persons, any draft bush fire environmental assessment code prepared by the Commissioner.(2) A draft bush fire environmental assessment code must be exhibited for at least 42 days. The Commissioner must exhibit with it any other matter that the Commissioner considers appropriate or necessary to better enable the draft code and its implications to be understood.(3) After considering all submissions received concerning the draft bush fire environmental assessment code, the Commissioner may amend the draft code or submit it without amendment to the Minister for approval.
The Minister may, after consultation with the Minister for Climate Change and the Environment, the Minister for Planning and such other Ministers as the Minister considers appropriate, approve a draft bush fire environmental assessment code as a bush fire code for the purposes of this Part.
100N Publication, commencement and availability of codes
(1) A draft bush fire environmental assessment code:(a) is to be published in the Gazette, and(b) takes effect as a bush fire environmental assessment code on the day on which it is published or, if a later day is specified in the code for that purpose, on the later day so specified.(2) The following are to be made available without charge for public inspection during normal office hours for the council of the area to which a bush fire code relates:(a) a copy of the code,(b) if the code has been amended, a copy of the code as so amended,(c) if the code refers to or incorporates any other document prepared or published by a specified body, a copy of each such document.
100O Amendment or revocation of codes
A bush fire code may be amended or revoked by an instrument prepared, approved, publicly exhibited and published in accordance with the relevant procedures of this Part with respect to codes.