Planning proposals for flood prone land must match flood behaviour and NSW flood policy.
Planning proposals that create, remove or alter zones or provisions affecting flood prone land must be consistent with the NSW Flood Prone Land Policy, the Floodplain Development Manual 2005, the 2021 flooding guideline and any adopted flood study or floodplain risk management plan. Proposals must not rezone flood planning area land from rural/recreation/conservation zones to residential or similar, and must not allow risky development like floodway building, high-hazard housing, or uses where occupants can't evacuate.
Direction 4.1 is a Ministerial planning direction that governs how councils and other planning authorities draft or amend their Local Environmental Plans (LEPs) where flood prone land is involved. Its core purpose is to make sure that any change to zones or planning provisions on flood affected land lines up with the NSW Government's Flood Prone Land Policy and the technical principles in the Floodplain Development Manual 2005, so that what an LEP allows to be built is proportionate to how the land actually floods. In plain terms, you cannot use a planning proposal to open up flood prone land for more intensive or more vulnerable uses than the flood behaviour can safely support.
All relevant planning authorities responsible for flood prone land when they prepare a planning proposal (an LEP amendment) that creates, removes or alters a zone or a provision affecting flood prone land. In practice this means councils (including Kiama) and any other authority drafting LEP changes.
It is triggered when a planning proposal creates, removes or alters a zone or a provision that affects flood prone land. It bites at the LEP-making/rezoning stage rather than at the individual development application stage.
A proposal may be inconsistent only if the authority satisfies the Planning Secretary (or nominee) that it accords with a council-adopted floodplain risk management study or plan; or where none exists, is consistent with a council-adopted flood study; or is supported by a flood and risk impact assessment accepted by the authority and prepared per the Manual; or the inconsistent provisions are of minor significance as determined by the relevant planning authority.
Draws directly on the NSW Flood Prone Land Policy, the Floodplain Development Manual 2005, and the Considering flooding in land use planning guideline 2021. It references Special Flood Considerations as an optional clause in the Standard Instrument (Local Environmental Plans) Order 2006, and relies on council flood studies, floodplain risk management studies and floodplain risk management plans produced under the Manual's floodplain risk management process.
The proposal must include provisions that give effect to and are consistent with the NSW Flood Prone Land Policy, the principles of the Floodplain Development Manual 2005, the Considering flooding in land use planning guideline 2021, and any adopted flood study or floodplain risk management plan.
A proposal must not rezone land within the flood planning area from Recreation, Rural, Special Purpose or Conservation Zones to Residential, Employment, Mixed Use, W4 Working Waterfront or Special Purpose Zones.
Proposals must not permit development in floodways, significant off-site flood impacts, residential accommodation in high hazard areas, significant density increases, or vulnerable uses (childcare, hostels, hospitals, seniors housing etc.) where occupants cannot effectively evacuate.
Where Special Flood Considerations apply, proposals must not permit floodway development, significant off-site impacts, significant dwelling density increases, vulnerable uses where evacuation is not possible, or provisions affecting safe occupation and efficient evacuation.
Proposals must not permit development without development consent except for exempt development or agriculture; dams, drainage canals and levees still require consent.
Highly relevant to Kiama. As a coastal LGA with creeks, low-lying land and estuarine flooding (e.g. around Kiama, Minnamurra and Gerringong catchments), any Kiama LEP amendment touching flood prone land must satisfy this direction. Attempts to rezone flood prone rural or recreation land for housing, or to intensify vulnerable uses like seniors housing or childcare where evacuation is compromised, would be blocked unless Council relies on an adopted flood study or floodplain risk management plan, or a supporting flood and risk impact assessment. It reinforces the need for Kiama to have up-to-date flood studies to justify any rezoning near floodplains. Note it governs planning proposals/rezonings, not individual DAs.
4.1 Flooding Objectives The objectives of this direction are to: (a) ensure that development of flood prone land is consistent with the NSW Government’s Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005, and (b) ensure that the provisions of an LEP that apply to flood prone land are commensur ate with flood behaviour and includes consideration of the potential flood impacts both on and off the subject land. Application This direction applies to all relevant planning authorities that are responsible for flood prone land when preparing a planning proposal that creates, removes or alters a zone or a provision that affects flood prone land. Direction 4.1 (1) A planning proposal must include provisions that give effect to and are consistent with: (a) the NSW Flood Prone Land Policy, (b) the principles of the Floodplain Development Manual 2005, (c) the Considering flooding in land use planning guideline 2021, and (d) any adopted flood study and/or floodplain risk management plan prepared in accordance with the principles of the Floodplain Development Manual 2005 and adopted by the relevant council. (2) A planning proposal must not rezone land within the flood planning area from Recreation, Rural, Special Purpose or Conservation Zones to a Residential, Employment, Mixed Use, W4 Working Waterfront or Special Purpose Zones. (3) A planning proposal must not contain provisions that apply to the flood planning area which: (a) permit development in floodway areas, (b) permit development that will result in significant flood impacts to other properties, (c) permit development for the purposes of residential accommodation in high hazard areas, (d) permit a significant increase in the development and/or dwelling density of that land, (e) permit development for the purpose of centre-based childcare facilities, hostels, boarding houses, group homes, hospitals, residential care facilities, respite day care centres and seniors housing in areas where the occupants of the development cannot effectively evacuate, (f) permit development to be carried out without development consent except for the purposes of exempt development or agriculture. Dams, drainage canals, levees, still require development consent, (g) are likely to result in a significantly increased requirement for government spending on emergency management services, flood mitigation and emergency response measures, which can include but are not limited to the provision of road infrastructure, flood mitigation infrastructure and utilities, or (h) permit hazardous industries or hazardous storage establishments where hazardous materials cannot be effectively contained during the occurrence of a flood event. (4) A planning proposal must not contain provisions that apply to areas between the flood planning area and probable maximum flood to which Special Flood Considerations apply which: (a) permit development in floodway areas, (b) permit development that will result in significant flood impacts to other properties, (c) permit a significant increase in the dwelling density of that land, (d) permit the development of centre-based childcare facilities, hostels, boarding houses, group homes, hospitals, residential care facilities, respite day care centres and seniors housing in areas where the occupants of the development cannot effectively evacuate, (e) are likely to affect the safe occupation of and efficient evacuation of the lot, or (f) are likely to result in a significantly increased requirement for government spending on emergency management services, and flood mitigation and emergency response measures, which can include but not limited to road infrastructure, flood mitigation infrastructure and utilities. (5) For the purposes of preparing a planning proposal, the flood planning area must be consistent with the principles of the Floodplain Development Manual 2005 or as otherwise determined by a Floodplain Risk Management Study or Plan adopted by the relevant council. Consistency A planning proposal may be inconsistent with this direction only if the planning proposal authority can satisfy the Planning Secretary (or their nominee) that: (a) the planning proposal is in accordance with a floodplain risk management study or pla n adopted by the relevant council in accordance with the principles and guidelines of the Floodplain Development Manual 2005, or (b) where there is no council adopted floodplain risk management study or plan, the planning proposal is consistent with the flood study adopted by the council prepared in accordance with the principles of the Floodplain Development Manual 2005 or (c) the planning proposal is supported by a flood and risk impact assessment accepted by the relevant planning authority and is prepared in accordance with the principles of the Floodplain Development Manual 2005 and consistent with the relevant planning authorities’ requirements, or (d) the provisions of the planning proposal that are inconsistent are of minor significance as determined by the relevant planning authority. Note: In this direction: (a) “flood prone land” “flood storage” “floodway” and “high hazard” have the same meaning as in the Floodplain Development Manual 2005. (b) “flood planning level” “flood behaviour” and “flood planning area” has the same meaning as in the Considering flooding in land use planning guideline 2021. (c) Special flood considerations are outlined in the Considering flooding in land use planning guideline 2021 and an optional clause in the Standard Instrument (Local Environmental Plans) Order 2006. (d) Under the floodplain risk management process outlined in the NSW Government’s Floodplain Development Manual 2005, councils may produce a flood study followed by a floodplain risk management study and floodplain risk management plan. Date commenced: 20 February 2023
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.
Proposals must not include provisions likely to significantly increase government spending on emergency management, flood mitigation and emergency response, including road infrastructure and utilities.
For preparing a proposal, the flood planning area must be consistent with the principles of the Floodplain Development Manual 2005 or as determined by a council-adopted Floodplain Risk Management Study or Plan.
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the official source for anything decision-critical.