Variations to the Development Regulations 2008: Bushfire recovery and supermarket shelves

Development (Bushfire Recovery) Variation Regulations 2020

After a harrowing summer of unprecedented bushfires, the State Government has introduced a new policy framework for aiding recovery, named the Planning and Building Bushfire Recovery Program.

Part of this program includes the introduction of the Development (Bushfire Recovery) Variation Regulations 2020 (Bushfire Variation Regulations).

The Bushfire Variation Regulations

The Bushfire Variation Regulations have made changes to the Development Regulations as set out below.

Most of these amendments relate to circumstances where a building or structure has been “destroyed or significantly damaged” by a bushfire.

The phrase “significantly damaged” is not defined. It will be for the relevant authority to determine, in the circumstance of each application, whether “significant damage” has been sustained. It would be reasonable for a relevant authority to consider both the amount of the building or structure which has been damaged and the functionality or use that has been lost by the damage when forming this opinion. If in doubt, a ‘benevolent’ application should be preferred given the beneficial purpose of the regulations.

Schedule 3 – Acts and activities not “development”

On land on which a building, or part of a building, has been destroyed or significantly damaged by a bushfire, the following acts or activities will not constitute “development”

• Temporary structures: Other than in respect of a local heritage place, the construction or alteration of, or addition to, a temporary structure where it:
  • is for the use of the owner of the land for the storage of goods or materials to assist in recovery and redevelopment;
  • does not exceed dimensions of 3m (H) x 12.5m (L) x 2.5m (W); and
  • does not remain on the land after 1 January 2022.
• Vehicle parking: The use of land for the parking of a caravan or other vehicle of any weight if the vehicle is to be used as accommodation by the owner of the land until either 1 January 2022 or a dwelling on the land is able to be occupied.
• Storage of goods/materials: The use of land for the storage of goods or materials until 1 January 2022 if the storage is for the use of the owner of the land to assist in recovery and redevelopment.

This could include shipping containers or other forms of temporary storage units.

• Demolition: The partial or total demolition of a building, other than in respect of a local heritage place, or in any zone or area in which the word “Historic” appears in the title.

Schedule 4 – complying dwellings

On land on which a dwelling, or part of a dwelling, has been destroyed or significantly damaged by a bushfire, the following acts or activities are designated as complying development:

• Development Plan consent: the construction or placement of a building or structure on land where:
  • it is for use as accommodation by the owner of the land;
  • it is a minimum of 20 metres from any remaining or regenerating cluster of vegetation;
  • it is to be used as accommodation until either 1 January 2022 or a dwelling on the land is able to be occupied; and
  • any requirements of the CFS relating to maintenance of a clearance area are met.

While headed “temporary accommodation”, this new Clause 5 does not make any provision for the removal of the temporary structure after 1 January 2022 or the occupation of a dwelling on the land (although it would be an offence to continue to use the temporary structure as accommodation). If it is intended that the structure will be removed from the land or converted for another use, such as a shed, it will be necessary for the relevant authority to ensure this clearly forms part of the application documents and is reinforced by way of a condition.

• Building Rules consent: a building which meets the requirements in Clause 5 of Part 1 and:
  • complies with listed provisions within the NCC;
  • meets listed fire fighting water supply requirements;
  • meets a listed method of wastewater disposal; and
  • is fitted with a fire extinguisher.

Schedule 8 – Referrals to CFS

Applications for dwellings, tourist accommodation and other forms of habitable buildings in a High Bushfire Risk Area in a Bushfire Protection Area in the relevant Development Plan will not require a referral to the CFS if the CFS has, in the prior 3 months, issued a certificate certifying that a Bushfire Attack Level assessment of the proposed development is – 19 range (the CFS will be undertaking these assessments free of charge to affected landowners).

Schedule 9 – Category 1 development

All applications which comprise replacing development that has been destroyed or significantly damaged by a bushfire in substantially the same form will be Category 1 development pursuant to a new clause 16C in Schedule 9.

Equivalent amendments have not been made, at this stage, to the Planning, Development and Infrastructure (General) Regulations 2017 (PDI Regulations). We anticipate that equivalent amendments will be made before Phase 2 councils ‘switch’ from development assessment under the Development Act 1993 to the Planning, Development and Infrastructure Act 2016 as, without equivalent changes to the PDI Regulations, the exemptions and streamlined processes in the Bushfire Variation Regulations will only apply to applications lodged (or, in the case of exempt development, building work which has commenced) under the Development Act.

Development (Delivery of Goods) Variation Regulations 2020

In recent weeks, supermarkets around the country have experienced significant increases in demand from shoppers concerned about the Coronavirus, leading to product shortages on many shelves.

To combat this, on 19 March 2020, in conjunction with exemptions granted under the Shop Trading Hours Act 1977, the State Government Gazetted the Development (Delivery of Goods) Variation Regulations 2020 (DeliveryVariation Regulations) with immediate effect.

The Delivery Variation Regulations operate to insert a new subsection into section 44 of the Development Act 1993 (the Act). While an act cannot ordinarily be amended by way of regulations, Section 7 of the Act enables this particular amendment to occur.

Section 44 of the Act creates 4 offences for certain acts or omissions in relation to the undertaking of development. One of those offences, in subsection (4), provides that a person must not contravene, or fail to comply with, a condition imposed on a development authorisation.

The Delivery Variation Regulations relate to this offence. They introduce a new subsection (5) into Section 44 which provides that for the period between 19 March 2020 and 30 September 2020 (unless removed earlier), subsection (4) does not apply to prevent a person who operates a shop used primarily for the sale of foodstuffs by retail from:

(a) loading or unloading goods at the shop at any time; or

(b) opening the shop to the public at any time.

The effect of this amendment is that as of 19 March 2020, any shop used primarily for the sale of foodstuffs by retail will not contravene the Act by failing to comply with a condition of their development authorisation which limits their opening hours, delivery hours, or both.

This means that no enforcement mechanisms under the Act, including the issuing of Section 84 notices, will be available to relevant authorities in these circumstances.

We note that “foodstuffs” is not defined in the Act or the Regulations (although the term is also used in the definition of bulky goods outlet in Schedule 1 of the Regulations). The Macquarie Dictionary defines “foodstuff” as “a substance or material suitable for food”.

Evidently, the exemption applies to supermarkets and grocery stores, as opposed to cafes, restaurants and other kinds of hospitality or catering businesses.

It will be a matter of fact and degree as to whether a shop is used primarily for the sale of foodstuffs. Some shops may sell an equal proposition of foodstuffs and non-foodstuffs. In other cases, what appears to be a ‘shop’ may, in a town planning context, be characterised – or may have been approved - as some other use.

Having said this, given the purpose of the exemption is to provide relief in challenging times, if there are competing interpretations, a liberal application should be preferred over an unduly narrow one.

For more specific information on any of the material contained in this article please contact Joanna Clare on +61 8 8217 1368 or jclare@normans.com.au.