Victorian Civil and Administrative Tribunal|2009-05-06

The applicant disputes the status of the Country Fire Authority as a referral authority. It relies upon the recent decision of Member Rickards in AMS Pty Ltd v Maroondah CC[3]. The AMS decision dealt with a virtually identical type of subdivision of land also in Karingal Street and almost diagonally opposite the subject land. In her decision, Member Rickards decided that:
- Creation of the common property driveway was not a road as defined in section 3 of the Planning and Environment Act 1987.
- As there is no creation of a road by the subdivision then the Country Fire Authority is not a referral authority under clause 66.01 of the planning scheme in relation to the application to subdivide the land.
- Under clause 32.01-2 a subdivision of land into lots each containing an existing dwelling is exempt from third party notice and review rights. Accordingly, the Country Fire Authority had no standing to be a party to the proceeding or to require the imposition of conditions on the subdivision permit.
In making these findings, Member Rickards noted that if the issues raised by the Country Fire Authority were valid in terms of safety and accessibility for the purposes of fire safety, the time for raising such issues was at the time the permit was granted for development. However, it was now too late to change the design of the accessway or to impose the other conditions that they wanted. On this point she said:

[22] This seems to raise an anomaly in the planning scheme. If is accepted that the issues of fire safety raised by Mr Sacco in his evidence are relevant considerations and I consider they are, then it seems that the time to receive comments from and for the CFA to be involved should be at the time of the proposal for development, not at the time of subdivision, in a situation such as this, where there is no creation of a road and they are therefore not a referral authority and the provisions of clause 56 do not apply as dwellings have been constructed on the lots.

The locality within which these subdivisions are occurring is within an urban area where there are numerous unit developments. The land is outside the metropolitan fire district, which means that the Country Fire Authority is a referral authority under clause 66.01 of the planning scheme for applications:

To subdivide land outside the metropolitan fire district which creates a road, where the requirements of clause 56.09-3 are not met.

The requirements of clause 56.-09-3 relate to the provision of fire hydrants and fire plugs. The Country Fire Authority sought to include a condition relating to the provision of a fire hydrant. It was also concerned that the driveway design did not meet the requirements of clause 55.03-9 for safe access for emergency vehicles nor the construction requirements of clause 56.06-7.
Both the applicant and council felt that the expectations of the Country Fire Authority in respect of this particular subdivision were unrealistic. I make no comment about the merits of the conditions sought by the Country Fire Authority. If there are minimum requirements relating to fire safety and emergency vehicle access to properties, then it is desirable that they be applied. If those standards are well founded, then it should make no difference whether the accessway to dwellings is privately owned or a public road.
However, the AMS decision identified a loophole in the planning scheme provisions. The Country Fire Authority is only a referral authority in the case of a subdivision where a road is created. In section 3 of the Planning and Environment Act 1987, road is defined as follows:

road includes highway, street, lane, footway, square, court, alley or right of way, whether a thoroughfare or not and whether accessible to the public generally or not;

As previously noted, the definition of road was held not to include a private driveway.

In the absence of any appearance by the Country Fire Authority or any legal argument to the contrary, I am not prepared to depart from Member Rickards finding that the definition of road in the Act does not include a private driveway. If the government intends that the Country Fire Authority should be a referral authority in cases where a subdivision creates a common property driveway where the requirements of clause 56.09-3 are not met (in addition to the situation where a road is created) then an amendment to the Victoria Planning Provisions is required.
The disastrous bushfires of Black Saturday have heightened concerns about fire safety. It cannot be assumed that urban areas are immune from the threat of wildfire. If the Country Fire Authority has concerns about fighting fires in non-bushland settings such as the present location, in terms of emergency vehicle access and the provision of fire hydrants and fire plugs, then it needs to ensure that the standards are applied at the development stage when they can be incorporated into the building design and site layout. It is too late to raise these issues for the first time at the subdivision stage when the development is completed. Amendments to the Victoria Planning Provisions or the building regulations may be required to meet the concerns of the Country Fire Authority in this respect.
In the present instance however, based on the reasons set out in AMS Pty Ltd v Maroondah CC, I find that the council's ground of refusal cannot be sustained because the Country Fire Authority is not a referral authority. In practical terms, it is too late to incorporate the design changes and other requirements that the Country Fire Authority desires in order to achieve strict compliance with its standards.
To avoid similar situations arising, and until such time as there may be change to the planning scheme provisions, the council should consider giving notice of development applications to the Country Fire Authority so that if it has any concerns, it can express them at a time when they can be relevantly addressed.
In suggesting this practice, I rely upon clause 15.07-2 of the State Planning Policy Framework, which deals with protection from wildfire. It requires that responsible authorities:

... must have regard to the following documents when considering land use or development in wildfire risk environments:

Requirements for water supplies and access for subdivisions in Residential 1 and 2 and Township Zones (Country Fire Authority 2004).

The advice of the relevant fire authority should be sought if compliance with the above codes of practice or guidelines is not likely or additional measures are believed necessary.

The onus also rests with the Country Fire Authority to decide if it is appropriate to press for changes to the Victoria Planning Provisions or the building regulations.

The use and/or development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
Prior to the issue of a Statement of Compliance for the subdivision, the areas set aside for parked vehicles and vehicle access to serve each lot in the subdivision and the common property as shown on the endorsed plans must be constructed in accordance with condition 6 of permit No. M/2007/1117.
The applicant or owner must pay to Council a sum equivalent to 5% of the site value of all land in the subdivision. This payment shall be made prior to the issue of a Statement of Compliance and may be adjusted in accordance with Section 19 of the Subdivision Act 1988.
Prior to the issuing of a Statement of Compliance, shall be appropriately drained to the requirements and satisfaction of the responsible authority.
Prior to the issue of a Statement of Compliance for the subdivision permitted under this permit, the Owner of the land must complete to at least floor level, the unit development permitted by permit No M/2007/1117.

No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with section 8 of the Subdivision Act 1988.
Prior to the commencement of works separate application, direct to Melbourne Water, must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Prior to accepting an application, evidence must be provided demonstrating that Council considers that it is not feasible to connect to the local drainage system. Contact Asset Services on telephone 9235 1414 for Melbourne Water's connection requirements, including payment of appropriate fees.

The applicant or owner must enter into an agreement with SPI Electricity Pty Ltd for supply of electricity to each lot on the endorsed plan.
The applicant or owner must enter into an agreement with SPI Electricity Pty Ltd for the rearrangement of the existing electricity supply system.
The applicant or owner must ensure that any private electric line in the subdivision is rearranged to the satisfaction of SPI Electricity Pty Ltd.
This permit shall expire if:

(a) the subdivision plan is not certified within twelve (12) months of the date of issue of this permit; and

(b) Statement of Compliance is not obtained within five (5) years of the certification of the plan; or

(c) any extension of such periods the responsible authority may allow, in writing, upon application made before or within three months after such expiry.

B R Smith & Associates v Maroondah CC (includes Summary) (Red Dot) [2009] VCAT 766 (6 May 2009)

B R Smith & Associates v Maroondah CC

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Judgment (20 paragraphs)

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Cases Cited (1)

B R Smith & Associates v Maroondah CC (includes Summary) (Red Dot) [2009] VCAT 766 (6 May 2009)