4.2.4. Section 10.7 Planning Certificates

4.2.3.2. Planning Circular PS 07-003 and PS 21-006

Planning Circular PS 07-003 (31 January 2007) provided advice on a package of changes concerning flood-related development controls for land above the 1-in-100 year flood and up to the PMF. A revised planning circular ‘Considering flooding in land use planning: guidance and statutory requirements’ PS 21-006 was released with the recent changes to the Flood Prone Land Package on 14th July 2021. The revised circular provides advice on a package of changes regarding how land use planning considers flooding and flood-related constraints, including Section 10.7 Planning Certificates, local planning direction 4.3, LEP clauses and associated guidelines. In Planning Circular PS21-006 it is noted that: “Section 733 of the Local Government Act 1993 (the LG Act) protects councils from liability if they have followed the requirements of the Manual”. 4.2.3.3. Considering flooding in land use planning guideline The guideline aims to provide councils with mechanisms to manage flood risk for the full range of flooding up to the Probable Maximum Flood (PMF) and give further consideration to evacuation constraints. Within the proposed Flood Prone Land package, there are two main categories council can use to address flooding impacts namely, flood planning areas or special considerations. Historically, the focus has been on managing the 1% AEP flood event. The Flood Prone Land Package aims to provide councils the ability to apply development controls to areas outside the flood extent where the flood risk requires it. The FDM identifies either the 1% AEP flood event or an equivalent historic event as an appropriate starting point when selecting the Defined Flood Event (DFE). However, it recommends considering selecting a more extreme flood event where there are significant economic, social, environmental or cultural risks associated with a larger event. The Special Flood Considerations category provides council the ability to apply controls to land outside FPA but within the PMF flood event where there is a significant risk to life or risk of hazardous material impacting the community or environment. 4.2.4.Section 10.7 Planning Certificates Formerly known as Section 149 Planning Certificates, Section 10.7 Planning Certificates describe how a property may be used and the development controls applicable to that property. The Planning Certificate is issued under Section 10.7 of the Environmental Planning and Assessment Act 1979. When land is bought or sold, the Conveyancing Act 1919 and Conveyancing (Sale of Land) DRAFT FOR PUBLIC EXHIBITION Regulation 2010 requires that a Section 10.7 Planning Certificate be attached to the contract of sale for the land.

(1) A person may, on payment of the prescribed fee, apply to a council for a certificate under this section (a planning certificate) with respect to any land within the area of the council. (2) On application made to it under subsection (1), the council shall, as soon as practicable, issue a planning certificate specifying such matters relating to the land to which the certificate relates as may be prescribed (whether arising under or connected with this or any other Act or otherwise). (3) (Repealed) (4) The regulations may provide that information to be furnished in a planning certificate shall be set out in the prescribed form and manner. (5) A council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware. (6) A council shall not incur any liability in respect of any advice provided in good faith pursuant to subsection (5). However, this subsection does not apply to advice provided in relation to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land within the meaning of Schedule 6. (7) For the purpose of any proceedings for an offence against this Act or the regulations which may be taken against a person who has obtained a planning certificate or who might reasonably be expected to rely on that certificate, that certificate shall, in favour of that person, be conclusively presumed to be true and correct. The Environmental Planning and Assessment Regulation 2000, Schedule 4 specifies the information to be disclosed on a Section 10.7 (2) Planning Certificate. In particular, Schedule 4, 7A refers to flood related development control information and requires councils to provide the following information: (1) If the land or part of the land is within the flood planning area and subject to flood related development controls. (2) If the land or part of the land is between the flood planning area and the probable maximum flood and subject to flood related development controls. (3) In this clause— flood planning area has the same meaning as in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual(ISBN 0 7347 5476 0) published by the NSW Government in April 2005. probable maximum flood has the same meaning as in the Floodplain Development Manual. Section 10.7 (2) and (5) certificates contain the information prescribed in Schedule 4 described above and additional information relating to the property. In a flooding context, additional information may include notations on flood hazard, percentage of the lot affected by flooding, or peak flood depths and levels on the property, or “advice on other such relevant matters affecting the land of which it may be aware” (EP&A Act, 10.7 (5)). DRAFT FOR PUBLIC EXHIBITION