'Inexcusable': the bushfire survivors blocked from rebuilding

A 2013 NSW planning decision is preventing dozens of landowners from erecting new homes

Dozens of people who lost their homes in the black summer bushfires are still unable to rebuild due to a little-noticed change to New South Wales law a decade ago.

Guardian Australia has spoken to multiple landowners who have been told they are not legally permitted to rebuild thanks to the legislation, which was intended to prevent property developers building on rural land by requiring an existing “dwelling entitlement” for all projects. Landowners asked for anonymity due to fears that “ruffling feathers” among local councils and state government authorities would extinguish their hope of reversing that decision.

Wendy* has owned rural land near Cobargo since the late 2000s. For much of that time, she and her husband were building their own home. “I was on the disability pension, he was working casually – money was tight,” she says. “So we just went ahead and built it ourselves.” They investigated the formal planning approval processes but found it too expensive.

The house they had spent a decade labouring over was destroyed in the New Year’s Eve bushfires, leaving Wendy, her husband and their children in temporary rental accommodation. “And then we found out we couldn’t rebuild,” she says, because of the law change in the early 2010s. “We had no idea – it was the first time we’d heard anything about it.”

In a late about-face, Bega Valley shire council has told Wendy she is permitted to make a development applicationand it might be able to find an exception that would enable her to rebuild. “They said, ‘We still have a right to refuse on the basis that there is no dwelling entitlement,’” Wendy says. The council has also told her the ban would remain for a future owner if she sold the land.

Andrew has lived in a shed in the Bega Valley area for more than two decades. After losing everything in the bushfires, he and his wife have been in a caravan ever since. “It has been an incredibly tough year,” he says.

To his horror, Andrew was advised in early 2020 that he had no legal entitlement to rebuild. A year later, and only after highlighting his plight to local, state and federal politicians, he was told there might be a pathway to build but there are no guarantees. “It could be months before we have any certainty,” he says. At best the couple are unlikely to have a home before the end of 2021 – two years on from the fires.

A Cobargo resident walks over the remains of a destroyed home
‘Punters who lost everything will now never be able to build on their own land.’ Photograph: Tracey Nearmy/Reuters

Another woman, Ellen, has owned property with a small cabin in the Cobargo area since the early 2000s. She had been living in a nearby town, splitting her time between the two locations. Ellen was halfway through moving to the property permanently when the bushfires hit. She has previously received a dwelling entitlement to build on the land, but personal circumstances meant the approval lapsed. “Life happened, children happened – I just presumed I could get another,” she says.

Instead, she received the same devastating news from the council.

“All this year we have faced obstacles – at every turn, there has been obstacles,” she says. “Instead of getting solutions, we are faced with dead-ends. It doesn’t need to be like this.” It is unclear whether the planning decision will be reversed.

Guardian Australia has spoken to several other people who have also been refused permission to rebuild.

Zoning rules

Graeme Freedman, a landowner in Wandella who lost his home to the fires, has not been denied permission but has been advocating for those who have.

“Punters who lost everything will now never be able to build on their own land,” he says. “The shock of black summer on this community has been extreme. But to then see a stupid and effectively secret planning decision extinguish the rights to build or rebuild on rural land purchased with hard-earned money is inexcusable.”

The Bega Valley local environmental plan says development consent “must not” be granted for the erection of a house in certain zoning areas unless it meets the minimum lot size, typically 120 hectares. Consent may be granted to replace an existing “lawfully erected dwelling house” but this does not apply to those who have lived in sheds or cabins, or who, for whatever reason, built non-approved dwellings or never built at all. Such circumstances are not uncommon in rural areas.

The upshot is that bushfire victims living on blocks of less than 120 hectares without existing dwelling entitlements are barred from building. The council says there are 23 properties fitting these criteria in the shire. Sources say the numbers across the state could run into the hundreds.

The new clause in the Bega Valley plan in 2013 followed changes to state planning law and was intended to “minimise unplanned rural residential development”. It sits alongside a prohibition on subdivision and is largely mirrored across other NSW councils.

Freedman says many landowners were unaware of the change and have been left blindsided. He says it has cost small property holders millions of dollars: “Money families have saved for years in the hope they could afford to build, and now their investments are worthless.”

‘Frustration’

The planning director at Bega Valley shire council, Alice Howe, says evaluations by her team have “been able to provide a clear development assessment pathway for 444 of the 467 dwellings lost in the Bega Valley”.

Of the outstanding properties without dwelling entitlements, Howe says at least six have a potential development assessment pathway. “The remainder are highly constrained in terms of access, bushfire hazard and/or biodiversity impacts.”

The ruins of a home
‘People who have lost everything need our support, not more trauma.’ Photograph: Andrew Quilty/The Guardian

The council has received 93 development applications to date. Of those, 79 have been approved and occupation certificates – meaning construction has been completed and the residents can move back in – have been issued for just 13.

Howe says bushfire survivors have been prioritised amid a surge in applications caused byCovid-inspired tree/sea changes and the federal government’s homebuilder scheme.

“Council understands that bushfire-affected landowners have a lot to consider in making a decision to rebuild,” she says. “Trauma, financial situation, including underinsurance, and availability of trades and services all affect someone’s readiness to rebuild.”

Kristy McBain, the federal member for Eden-Monaro and a former mayor of Bega, says a number of people have “come up against hurdles from NSW Planning which continue to cause frustration”.

“The NSW government has the ability to pass a Bushfire State Environmental Planning Policy which would allow people to rebuild in a sensible, common sense way. This is the work of government and they have done it before. People who have lost everything need our support, not more trauma – it’s in everyone’s interest to get these people home.”

A spokesperson for the NSW planning department said it had “listened to councils and communities and worked with agencies including the Rural Fire Service to help homeowners get back on their feet”. The department said it had developed a natural disaster clause for LEPs, now under consideration, which would assist in the future.

It may be small comfort for bushfire victims struggling with the complex planning regime more than a year on from that horrendous summer. But Howe says her council colleagues are acutely empathetic because they are facing the same challenges.

“Over half of council’s staff were directly impacted by the bushfires,” she says.

* Some names have been changed

Contributor

Kieran Pender

The GuardianTramp

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