Councils push back against crackdown on floodplain development

NSW councils are opposing a state government move to reduce or stop development on flood-prone land, condemning a one-size-fits-all approach and accusing the government of shifting the goalposts after initially making the ban voluntary.

Severe flooding hits Lismore in northern NSW in February 2022.Credit: Sydney Morning Herald

The debate concerns the proposed insertion of clause 5.22 of the standard planning instrument into councils’ local environment plans. The clause stipulates that consent must not be granted unless it can be shown the development will not affect safe occupation or efficient evacuation of people in a flood.

Any development must also incorporate appropriate measures to manage risk to life, and show that it will not adversely affect the environment in the event of a flood.

Initially, 32 of the 128 councils in NSW – exactly a quarter – volunteered to insert the clause into their LEPs, which set parameters for development in local government areas. But following the recommendations of the 2022 flood inquiry, led by former chief scientist Mary O’Kane and former top cop Mick Fuller, the government has moved to place it into all LEPs, or make it mandatory in a statewide planning instrument.

In a formal submission, Local Government NSW, the peak body for the state’s councils, said it did not support that approach and accused the planning department of trying to “shift the goalposts”.

“By moving to adopt this clause statewide, the [proposal] appears to deviate completely from this earlier consultation process,” LGNSW said.

“The nature and risk associated with flooding varies from catchment to catchment and site to site,
and therefore needs to be considered in relation to the local context.

“LGNSW does not support the one-size-fits-all approach unless it is subject to further evaluation and investigation and a roadmap of consultation with all councils.”

Recommendation 21 of the O’Kane and Fuller inquiry called for simpler disaster provisions in the planning system, including specific flood planning provisions such as putting clause 5.22 into the statewide instrument.

The special flood considerations to be included in all LEPs would apply across two categories. The first concerns “sensitive and hazardous development”, such as caravan parks, hospitals and seniors housing, between the flood planning area and the probable maximum flood level.

The second is any other development on land that the consent authority considers may pose a risk to life in a flood.

The government, which is now in caretaker mode ahead of the election, says the proposed changes “will help reduce the extent of property damage and potential loss of life and build greater resilience into our communities”.

In its submission, LGNSW noted that three quarters of the state’s councils declined to opt in to the arrangement. “Yet the [proposal] does not evaluate or analyse the intended effects of moving this policy from an opt-in clause for 32 self-nominated councils to one that is imposed on all NSW councils,” it said.

The proposal was on exhibition from January 17 to February 28 and submissions will now be considered by the planning department.

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