On 10 November 2023, the Environmental Planning and Assessment Regulation 2021 (“EP&A Regulation”) and Standard Instrument Local Environmental Plan (“Standard Instrument LEP”) were amended to introduce the Flood Risk Management Manual (“the FRM Manual”) and its associated Toolkit.
The FRM Manual (gazetted June 2023) replaces the Floodplain Development Manual (April 2005) (“FDM”), which had been the longstanding manual for the management of flood liable land gazetted for the purposes of section 733 of the Local Government Act 1993 (“LG Act”) and used in modern flood planning provisions to define the flood planning area.
The FRM Manual identifies its primary objective as being “to reduce the impacts of flooding and flood liability on communities and individual owners and occupiers of flood prone property, and to reduce private and public losses resulting from floods, utilising ecologically positive methods wherever possible”.
It is supported by a suite of other guidelines collectively referred to as the “Toolkit”, which provide additional technical advice to support councils in their management of flood prone land, including in relation to advice for understanding and management of flood risks, the categorisation of flood risk and emergency management principles.
The Environmental Planning and Assessment Amendment (Flood Planning) Regulation 2023 amended Schedule 9 of the EP&A Regulation to refer to the FRM Manual and the definitions of “flood planning area” and “probable maximum flood” in the FRM Manual.
This means that planning certificates issued under section 10.7 of the Environmental Planning and Assessment Act 1979 will now have to specify the following with reference to the definitions in the FRM Manual:
“(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.”
The Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023 also amended clause 5.21 of the Standard Instrument LEP to define the “flood planning area” with reference to the FRM Manual. Clause 5.22 of the Standard Instrument LEP (an optional flood planning clause applying to certain sensitive and hazardous development) was also amended to require that a consent authority “consider” rather than be satisfied about the matters listed in sub-clause 5.22(3).
A comparison of some of the key terms found in the FDM and new FRM Manual is provided below:
|
TERM |
FDM (2005) |
FRM MANUAL (2023) |
|
Flood Planning Area |
The area of land below the FPL and thus subject to flood related development controls. The concept of flood planning area generally supersedes the “flood liable land” concept in the 1986 Manual. |
The area of land below the FPL. |
|
Flood Planning Level |
Are the combinations of flood levels (derived from significant historical flood events or floods of specific AEPs) and freeboards selected for floodplain risk management purposes, as determined in management studies and incorporated in management plans. FPLs supersede the “standard flood event” in the 1986 Manual. |
The combination of the flood level from the DFE and freeboard selected for FRM purposes. |
|
Defined Flood Event |
N/A |
The flood event selected as a general standard for the management of flooding to development. |
|
Freeboard |
Provides reasonable certainty that the risk exposure selected in deciding a particular flood chosen as the basis for the FPL is actually provided. It is a factor of safety typically used in relation to the setting of floor levels, levee crest levels, etc. (See Section K5). Freeboard is included in the flood planning level. |
A factor of safety typically used in relation to the setting of minimum floor levels or levee crest levels |
The amendments made by the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2023 will not apply to or in respect of any development application made but not determined before 10 November 2023, meaning that the versions of clause 5.21 and 5.22 as in force prior to that date will need to be applied (where relevant).
State Environmental Planning Policy Amendment (Flood Planning) 2023 also commenced on 10 November 2023 and had the effect of introducing clause 5.22 into 33 councils whom are understood to have agreed to adopt the clause. It is also understood that a savings provision in the following terms has been included in clause 1.8A of those affected LEPs:
“A development application made, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2023 must be determined as if that policy had not commenced.”
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.
