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.