Photo by Terri Sharp

A new voluntary clause aimed at cutting red tape for people wishing to rebuild homes after floods and bushfires could undermine local government’s ability to respond to worsening natural disasters fanned by climate change

Thirty-two NSW councils have opted in to the natural disasters clause that was recently introduced by the NSW Department of Planning, Industry and Environment to help homeowners wanting to rebuild after natural disasters.

Once adopted by local councils, homeowners will be able to rebuild according to old Local Environmental Plans (LEP) – which dictate zoning and development controls, such as the desired set back, height and design – that were in place when the dwelling was first built. 

Australia is approaching a time when governments will need to consider helping people leave the most extreme risk areas and build in safer ones

The tweaked planning rules will make it easier for homeowners to build a replica of their destroyed or damaged house even if a new LEP has since been enforced.

A DPIE spokesperson told The Fifth Estate that the new clause was introduced in response to feedback from homeowners facing “regulatory challenges where planning controls in LEPs have changed over time”.

Mayors and representatives from several different councils affected by recent natural disasters, such as the 2019-20 Black Summer bushfires and the March 2021 floods, told The SMH in June that they backed the clause and welcomed any relief for homeowners struggling to rebuild or repair their properties. 

Penrith deputy mayor Tricia Hitchen, however, was concerned about reverting to old planning controls that could undo planning measures put in place to improve community resilience to these same events. 

While DPIE noted that the clause will not override other modern building legislation – including the Environmental Planning and Assessment Act, the NSW Rural Fire Service’s Planning for Bushfire Protection and the Biodiversity Conservation Act – experts worry that the move could still stymie efforts to bolster community resilience to these same natural disasters.  

Catherine Ryland, an urban planner with a background in planning policies for bushfire prone areas, sympathised with people who had lost their homes and could see the need for the new rule.

“I can get why it’s been brought in, losing a home in a disaster is a horrible thing to happen and to find out you can’t rebuild because of new LEP laws would be hard to handle.”

Ryland was also concerned that the clause, in its current form, could prevent disaster-ravaged communities from “building back better”.

“There’s a push at the moment that when houses are destroyed by a flood or fire we should start to build back better rather than simply replace what was there before,” she said.

“Now, even if councils have a strategy to build back better, with this new clause affecting the LEP rules, no matter what new decision-making has taken place, people will still know they can still build back exactly the same.”

She says there’s a danger that people will not take the opportunity to move their home or build it differently to be more fire or flood resilient if they know they can always legally build back a carbon copy of what was there before.

The rule change may also prevent the use of local government planning instruments to retreat from extremely vulnerable spots, such as low-lying land at high risk of inundation as sea levels rise or inaccessible ridgelines where people can’t escape from bushfires.

DPIE attests that councils will maintain some flexibility to respond to risks, and that councils will still need to conduct a merit-based assessment of the development to ensure it’s of appropriate size, location and design for the site.

Nigel Bell, principal of Blue Mountains architectural practice ECOdesign Architects + Consultants and expert on bushfire standards in buildings, says Australia is approaching a time when governments will need to consider helping people leave the most extreme risk areas and build in safer ones.

“This is a radical idea for Australia but it’s starting to happen in parts of America, and if you understand climate change – we will be facing more mega fires into the future.

“We really are at a tipping point and need to be fundamentally addressing the issues and not pretending it’s not going to happen again.”

Passing the buck

Bell says the new disaster clause allows local and state governments to pass responsibility onto insurance companies and individuals to manage intensifying extreme weather events from climate change.

Insurance companies are already responding to what they see as heightened risk from bushfires and floods caused by fires with dramatically higher premiums, with some tourism businesses in bush locations struggling to secure insurance at all. 

In response to the spiralling insurance crisis, the federal government sought to bring insurance premiums for disaster-ridden northern Australia by committing a $10 billion to a “reinsurance pool” to the area. Bell imagines this will need to be extended more widely, including for bushfires, at some point.  

Growing premiums puts pressure on lower income households, Bell says, as does the expense of more bushfire resilient construction.

While he says there’s some evidence to suggest that that the modern bushfire standards “work to a fair degree”, these upgrades don’t necessarily come cheap, especially when constructing homes to high BAL (bushfire attack level) standards

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The high costs of bushfire resilient materials and componentry is partly to blame, he says. High-quality fire-resistant windows, for example, can cost $1000 – $3000 a square metre, and fire shutters well over $1000 a square metre.

He says the high cost of testing the fire resilience of these materials “kills off innovation”.

“They will rarely pass the first time and each test is $20,000.”

As such, it’s hard for new entrants to introduce products and help drive down prices.

Prospective homebuilders are also facing higher building costs with the price of timber, concrete and steel “massively rising” because of Covid disruptions and federal government stimulus programs sending the design and construction industry into “overdrive”.

Bell says overlaying bushfire resilience makes a standard build much more expensive than for an architecturally designed home, where designers most often build resilience in as part of the design.

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