The LMR SEPP and flooding: councils are reading it too broadly

A lot of sites that should be eligible for the Low and Medium-Rise Housing SEPP are being knocked back because of flooding. But most councils are applying the exclusion clause more broadly than the legislation actually requires.

Here is the issue.

Clause s164(1)(f) uses the word “land”, not “lot” or “property”, to preclude development under the SEPP. This matters.

If only the rear quarter of a site is affected by the PMF, only that part of the land is precluded. The rest of the lot should still be eligible.

Think about a large property with a 1m² corner touching the PMF extent. Is it reasonable to sterilise the entire lot? Or a steep site with a creek 10m below the building pad? The SEPP was not written to do that.

Compare this with the Codes SEPP (complying development on flood control lots) at s3.5, which explicitly refers to “any part of a flood control lot”. The LMR SEPP does not use that language. The difference is not accidental.

These clauses are relatively new and the point has not yet been tested in the Land and Environment Court. But the explainer materials for the LMR SEPP also consistently use the term “land”, which supports this interpretation.

There is a second option available in some cases: remodelling the flood. Council studies are often 10 or more years old. New rainfall data published in 2019 changed intensities significantly in parts of NSW. A more precise, up-to-date model can sometimes reduce or remove the flood affectation altogether, within the bounds of good professional practice.

If a site has been knocked back under the LMR SEPP because of flooding, it may be worth a second look.