WA Bushfires Planning and Building Regulations – Designed to Increase the Chances of Survival in a Bushfire


Part 1 – Introductory Overview and Minor Developments

The law is changing in Western Australia’s planning and building requirements in bushfire prone areas and the changes are designed to increase the chances of survivability during a bushfire. So, what do you need to know about how to comply?

What is a designated bushfire prone area?

This is an area which has been designated as such under section 18P of the Fire and Emergency Services Act 1998. They can be seen in the Map of Bush Fire Prone Areas on the Department of Fire and Emergency Services website.

The map uses aerial photographs and overlays a pink colour to show where the bushfire prone areas are. This means that you are able to look at specific property and see whether all or part of that property is in a bushfire prone area.

If part of a property is in a bushfire prone area and part of it is not, then any development on the part that is in the bushfire prone area will have to comply with the additional restrictions.

What are the changes?

December 2015

New planning requirements for bushfire prone areas came into force on 7 December 2015 which impact on the assessment of new developments and subdivisions.

How did this affect new development applications?
  1. More information had to be submitted with development applications if the proposed development is in a bushfire prone area.

If the proposed development is in a bushfire prone area (and has been for 4 months) then the applicant has to submit with the development approval:

  • a bushfire attack level assessment (BAL); or
  • a bushfire attack level assessment contour map; or
  • advice that because of the terrain of the development site a bushfire attack level assessment cannot be calculated.

It is important that qualified people prepare these documents otherwise applications can be delayed or refused.

  1. All development with higher bushfire risk now required a Development Approval.

Development Approval is now required – even if previously exempted – if:

  • The Bushfire Attack Level Assessment calculated the BAL as being BAL-40 or BAL – Flame Zone; or
  • A Bushfire Attack Level contour map calculated the BAL as being BAL-40 or BAL – Flame Zone; or
  • It is not possible to calculate the bushfire attack level of the development site due to the terrain.

This means that even if previously an applicant did not require a development approval for a particular type of development – if the proposed development is deemed to be in a higher risk category then a Development Approval is required prior to commencement.

  1. In certain cases advice from emergency authorities will have to be obtained and considered as part of the assessment of a Development Application.

The advice of the authorities responsible for emergency services is to be obtained and considered if:

  • Compliance with State Planning Policy 3.7 is unlikely to be achieved;
  • Additional or alternative measures are being proposed; or
  • The application proposed “unavoidable development”, vulnerable or high risk land uses;
  • “Unavoidable development” is determined by the decision maker and is: Where exceptional circumstances mean that full compliance would be unreasonable;
  • No alternative location exists;
  • The proposed development is not minor; and
  • The proposed development is not contrary to the public interest.

This means that using the favourite standby of “alternative measures” to overcome compliance issues will result in additional information having to be sought prior to determination of the Application.

How does this affect the assessment of applications?
  1. Local Governments must now consider bushfire issues when determining Development Applications in bushfire prone areas.

When assessing the application for a Development Approval in a bushfire prone area, local governments must consider the bushfire construction requirements of the Building Code when determining whether planning approval should be granted.

How does this affect new subdivision applications?
  1. Certain proposed subdivisions will need to submit additional information with the subdivision application.

If a subdivision application has a bushfire Hazard Level (BHL) of higher than “low” or a Bushfire Attack Level Assessment of higher than BAL-Low then the following are required to be submitted with the subdivision application:

  • A BAL contour map;
  • Identification of any bushfire hazard issues arising from the BAL contour map; and
  • Demonstration of compliance with the bushfire protection criteria requirements within the proposed subdivision site.

Additionally advice of the authorities responsible for emergency services is to be obtained and considered if:

  • Compliance with State Planning Policy 3.7 is unlikely to be achieved;
  • Additional or alternative measures are being proposed; or
  • The application proposed unavoidable development, vulnerable or high risk land uses.

It is likely that these measures will affect the design of subdivisions in bushfire prone areas.

August 2017

New Guidelines for Planning in Bushfire Prone Areas were released by the Western Australian Planning Commission.

When do the Guidelines apply?

They apply to any of the following which are located in a designated bushfire prone area;

  • All higher order strategic planning documents;
    • Frameworks
    • Region Schemes
    • Sub-Regional strategies
    • Sub-regional structure plans
  • Strategic planning proposals
    • Region scheme amendments
    • District structure plans
    • Local planning strategies
    • Local planning schemes and amendments
    • Local structure plans and master plans.
  • Subdivisions; and
  • Development applications.
    • Includes local development plans
What developments require compliance with the guidelines?

All developments (except minor developments) which are in Bushfire Prone Areas are required to comply.

Minor Development

What is a minor development application?

The guidelines say that minor developments are development applications for single houses and ancillary dwellings on a lot less than 1100m².

Does this mean that development applications for sheds or decking are not minor?

No, because the definition of development which is excluded from requiring a development approval is much wider than that and include ;

“ the erection or extension of an ancillary dwelling,
outbuilding, external fixture, boundary wall or fence, patio,
pergola, veranda, garage, carport or swimming pool on the
same lot as a single house or a grouped dwelling if the
R-Codes apply to the development and the development
satisfies the deemed-to-comply requirements of the R-Codes”

if there are no Heritage restrictions. Please see clause 61 of the Planning and Development (Local Planning Schemes) Regulations 2015 for the full list of exemptions. 

Different provisions for Minor Development

Proposed Minor Development where BAL-40 or BAL- FZ applies are required to submit the following with a development application;

First the normal requirements under policy measure 6.5

    1. a BAL assessment, BAL assessments should be prepared by an accredited Level 1 BAL Assessor or Bushfire Planning Practitioner unless otherwise exempted in the Guidelines or
    2. a BAL Contour Map that has been prepared for an approved subdivisions clearly showing the indicative acceptable BAL rating across the subject site, in accordance with the Guidelines. BAL Contour Maps should be prepared by an accredited Bushfire Planning Practitioner.
  1. The identification of any bushfire hazard issues arising from the BAL Contour Map or the BAL assessment; and
  2. An assessment against the bushfire protection criteria requirements contained within the Guidelines demonstrating compliance within the boundary of the subdivision site.

And then the following additional requirements;

  1. Where full compliance of 6.5(c) cannot be achieved within the boundary of the development site, evidence must be provided demonstrating to the fullest extent possible how the bushfire protection criteria have been addressed and provide justification for those criteria that have not been met;
  2. Ensure that the bushfire hazard level is not increased and/or the ability to manage bushfire related hazards on adjoining lands is not otherwise adversely affected;
  3. Ensure that the siting of the buildings within the boundary of the development site has been optimised to reduce the bushfire impact;
  4. Give holistic consideration to existing emergency services in the area, existing places that could function as emergency evacuation centres in a bushfire event, the surrounding landscape, issues that may arise in the course of a bushfire both during and post event, and any other contextual issues relevant to the application of bushfire risk management measures.

This is the first of our update series “WA Bushfires Planning and Building Regulations – Designed to increase the chances of survival in a Bushfire” Keep a lookout for the next instalment on unavoidable development in Bushfire Prone Areas.

Please contact Anne Wood on 08 9321 3755 for any Planning and Building legal advice, including in relation to Bushfire Prone Areas.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.