On 14 July 2021, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (the Amendment (Flood Planning) Order) came into force. The Amendment (Flood Planning) Order had the effect of inserting a compulsory clause 5.21 (Flood planning) and an optional clause 5.22 (Special flood considerations) into the Standard Instrument. Of importance, while the Amendment (Flood planning) Order did not contain a specific “savings provision”, clause 8 of the Standard Instrument (Local Environmental Plans) Order 2006, relevantly provides as follows:
“8 Application of amending orders
(1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.
(2) (Repealed)
(3) In this clause—
amending order means an order under section 3.20 of the Act that amends the standard instrument prescribed by this Order.”
The effect of the savings provision above, is that the new provisions 5.21 (Flood planning) and 5.22 (Special flood considerations) do not apply to a development application lodged (but not finally determined) before 14 July 2021.
Also on 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (SEPP Amendment (Flood Planning)) came into force. This had the effect of repealing the ‘flood planning’ clause from Local Environmental Plans within NSW. However, while the ‘header’ of SEPP Amendment (Flood Planning) states “Schedule 1 Amendments consequent on the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021”, the Amendment SEPP does not contain a savings provision. This could have the effect that a development application lodged before 14 July 2021 is not subject to the previous Flood Planning clause that was repealed by SEPP Amendment (Flood Planning) (because there was no savings provision that applied to that repeal). Nor would it be subject to the new clauses 5.21 and 5.22 in the relevant Local Environmental Plan regarding flood planning (noting the gazettal of those clauses were subject to a savings provision).
Due to this being a recent change, there is no commentary from the Court in relation to how the flood planning provisions of a Local Environmental Plan relate to a development application lodged (but not determined) prior to 14 July 2021. However, we understand that His Honour Chief Justice Preston is presently considering a case where these issues were raised. Watch this space for his Honour’s judgment!
Should you have any queries or require any further advice in relation to the application of the new and repealed flood planning provisions, please do not hesitate to contact us on (02) 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
