4.2.3. Flood Prone Land Package

The Manual outlines a merits approach based on floodplain management and recognises differences between urban and rural floodplain issues. At the strategic level, this allows for the consideration of social, economic, cultural, ecological and flooding issues to determine strategies for the management of flood risk. 4.2.3.Flood Prone Land Package On the 14th July 2021, the Department of Planning, Industry and Environment (DPIE) implemented updates to the Flood Prone Land Package. The purpose of the package is to increase flood resilience in New South Wales, reduce loss of life and property damage. The package provides councils additional land use planning tools to manage flood risk beyond the 1% AEP flood event and strengthen evacuation consideration in land use planning. The changes include: • A revised Ministerial Direction 4.3 regarding flooding issued under Section 9.1 of the Environmental Planning and Assessment Act 1979, • a revised planning circular on flooding • a new guideline: Considering Flooding in Land Use Planning • Revised Local Environmental Plan flood clauses, • Amendments to Schedule 4, Section 7A of the Environmental Planning and Assessment Regulation 2000, • State Environmental Planning Policy Amendment (Flood Planning) 2021. The key changes and implications are outlined below: • Amendments to Schedule 4 of EP&A Regulation including changes to Clause 7A(1), Clause 7A(2). These amendments now require councils to note on Section 10.7 certificates if any flood related development controls apply to the land relating to either the Flood Planning Area, hazardous materials / industry, sensitive, vulnerable or critical uses. • The Ministerial Direction 4.3 has been amended to remove the requirement for councils to seek exceptional circumstances to apply residential development controls to land outside the 1% AEP flood event (currently included in Clause 7 of Direction 4.3). • Two proposed LEP clauses relating to the Flood Planning Area, and Special Flood Consideration. o The Flood Planning Area clause allows council to extend the FPA to include more extreme flood events where the flood risk requires land use planning tools. o The clause relating to Special Flood Consideration provides councils the mechanism to apply development controls to land outside the FPA but within the PMF. This clause is specific to land with a significant risk to life, sensitive, vulnerable or critical uses, or land with hazardous materials or industry. DRAFT FOR PUBLIC EXHIBITION

4.2.3.1. Ministerial Direction

Direction 4.3 was one in a list of directions issued on the 1st July 2009. The directions were issued by the then Minister for Planning to relevant planning authorities under Section 9.1(2) (previously Section 117(2)) of the Environmental Planning and Assessment Act 1979. Direction 4 pertains to “Hazard and Risk”, with Direction 4.3 relating specifically to Flood Prone Land. Direction 4.3 was updated on the 14th July 2021, the revised clause is shown below. Objectives (1) The objectives of this direction are: (a) to ensure that development of flood prone land is consistent with the NSW Government's Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005, (b) to ensure that the provisions of a local environmental plan that apply to flood prone land are commensurate with flood behaviour and include consideration of the potential flood impacts on and off the subject land. Clause (3) of Direction 4.3 states: (3) This direction applies when a planning proposal authority prepares a planning proposal that creates, removes or alters a zone or a provision that affects flood prone land. Clauses (4)-(9) of Direction 4.3 state: (4) A planning proposal or draft LEP must include provisions that give effect to and are consistent with: (a) The NSW Flood Prone Land Policy, and (b) The principles of the Floodplain Development Manual 2005 (or its update), and (c) The Considering flooding land use planning guideline. (5) A planning proposal or draft LEP must not rezone land within the Flood Planning Area from Recreation, Rural, Special purpose zones or Environmental Zones to a Residential, Business, Industrial, or Special Purpose Zone (6) A planning proposal or draft LEP must not contain provisions that apply to the Flood Planning Area which: (a) permit development in a floodway, (b) permit development that will result in significant flood impacts to other properties, (c) permit residential development in high hazard areas, (d) permit a significant increase in the dwelling density of that land, DRAFT FOR PUBLIC EXHIBITION (e) permit the development of centre-based child care facilities, hostels, boarding houses, group homes, hospitals, residential care facilities, respite day care centres and seniors housing in areas where the development cannot effectively self-evacuate,

(f) permit development to be carried out without development consent except for the purposes of exempt development or agriculture. Dams, drainage canals, levees, buildings structures or filling in floodways or high hazard areas, still require development consent,

(g) are likely to result in a significantly increased requirement for government spending on emergency management services, and flood mitigation and emergency response measures, which can include but not limited to road infrastructure, flood mitigation infrastructure and utilities or (h) permit hazardous industries or hazardous storage establishments where hazardous materials cannot be effectively contained during floods.

(7) A planning proposal or draft LEP must not contain provisions that apply to the Regional Evacuation Consideration Area which:

(a) permit development in areas that will exceed the capacity of an established regional evacuation route(s).

(8) For the purposes of a draft LEP, a council’s Flood Planning Level(s) must be consistent with the Floodplain Development Manual 2005 (or its update) or as otherwise determined by an adopted Floodplain Risk Management Study. (9) A planning proposal may be inconsistent with the terms of this direction only if the planning proposal authority can satisfy the Secretary of the Department of Planning, Industry and Environment (or their nominee) that: (a) the planning proposal is in accordance with a floodplain risk management plan prepared by the relevant council/s in accordance with the principles and guidelines of the Floodplain Development Manual 2005 (or its update), and/or (b) the planning proposal is supported by a flood and risk impact assessment or Council adopted flood study consistent with the relevant planning authorities’ requirements, and/or (c) the provisions of the planning proposal that are inconsistent are of minor significance. Note: In this direction: (a) “flood prone land” “flood storage” “floodway” and “high hazard” have the same meaning as in the Floodplain Development Manual 2005. (b) “flood planning level” “flood behaviour” and “flood planning area” has the same meaning as in the Considering flooding in land use planning guideline 20. (c) Special flood considerations are outlined in the Considering flooding in land use planning guideline 2021 and an optional clause in the Standard Instrument (Local Environmental Plans) Order 2006. (d) Under the floodplain risk management process outlined in the NSW Government’s Floodplain Development Manual 2005, councils may produce a flood study followed by a floodplain risk management study and floodplain risk management plan. DRAFT FOR PUBLIC EXHIBITION