Bushfire rebuild exemption eligibility guidance

Providing a limited exemption from biodiversity assessment and offsetting to facilitate the safe and speedy rebuilding and repair of homes impacted by bushfires.

Yarrangobilly Caves Bushfire Damage - March 2020, Kosciuszko National ParkIn November 2020, the Government approved an amendment to the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017 to provide a limited exemption from the Biodiversity Offsets Scheme to assist rebuilding property damaged or destroyed in the 2019-20 bushfires.

The exemption will apply to rebuilds that meet the criteria set out below.

Does the proposed development involve the erection of, or repairs to, a lawfully erected building or structure that requires development consent?

The exemption only applies to development involving the erection of, or repairs to, a lawfully erected building or structure that requires development consent.

The amending legislation provides an exemption from the requirement to provide a biodiversity development assessment report (BDAR) with an application for development consent.

There must be a development application for the exemption to apply.

Was the original building or structure damaged or destroyed as a result of bushfire between 5 August 2019 and 2 March 2020?

The exemption only applies to buildings and structures damaged or destroyed by bushfire between 5 August 2019 and 2 March 2020.

To confirm whether an application meets this criterion, a local government authority should consider:

  • lists of the damaged and destroyed property prepared by the Rural Fire Service and provided to the local government authority
  • other evidence provided by the applicant if their property is not on the Rural Fire Service list (this could include, for example, insurance claims or information provided by a government department).

Where a property is not on the Rural Fire Service lists, local government authorities should keep a record of any documentation or evidence presented by an applicant claiming an exemption for future audits.

Is the proposed development the same, or substantially the same, as the building or structure that existed immediately before it was damaged or destroyed?

The exemption only applies to development for the reconstruction or replacement of buildings and structures that will be the same or substantially the same as the building or structure that was damaged or destroyed.

It is the local government authority's decision as to whether the building is the same or substantially the same, and this decision must be made on a case-by-case basis having regard to all factors relevant to that case.

In making this decision the following may be relevant but is not an exhaustive list of factors; nor is each factor required to be considered:

  • Is the footprint of the proposed rebuild the same, or substantially the same, as what it is replacing? Buildings that are functionally the same (e.g. an older family dwelling being replaced by a newer family dwelling) may be considered substantially the same, despite differences in design, where the development footprints are substantially the same.
  • Is there an intensification of the land use proposed that affects the amount of clearing required, for example, to create an Asset Protection Zone (APZ) or access roads? If the rebuild requires more clearing than would be the case if the original was being replaced by one that is the exact same, the development may not be considered substantially the same as what it is replacing.
  • Does the proposal include moving a development footprint from its original location? If so does the proposed move improve biodiversity and safety outcomes compared to the original footprint site?
  • Improved biodiversity outcomes can be considered by comparing the amount of clearing that would be required to rebuild in the original and proposed footprints. Where a moved footprint would lead to less clearing, or clearing of vegetation of less conservation value, this is a better biodiversity outcome.

Is the application made within 2 years of the date the Bushfires Legislation Amendment Bill 2020 received assent?

The exemption only applies to proposals submitted within 2 years of the assent of the Bushfires Legislation Amendment Bill 2020, which provides for the exemption in the Biodiversity Conservation Act 2016.

The Bushfires Legislation Amendment Bill 2020 was passed by Parliament on 19 November 2020.