[2002] VCAT 1752

The decision of the Responsible Authority is upheld and it is directed pursuant to Section 85(1)(a) of the Planning and Environment Act 1987 that a permit must not be granted.

Mr G Peake, Barrister, by direct brief appeared on behalf of the Applicant for Review. He made both written and verbal submissions. Mr Peake called Mr B Lane, Flora and Fauna, and Mr S Weir, Building Surveyor, to provide expert evidence.

Mr N Harrison appeared on behalf of the Responsible Authority. He made both written and verbal submissions.

Mr A Andreou of the Country Fire Authority ("the CFA") appeared as a Respondent Objector. He made written and verbal submissions in support of the CFA's statement of grounds. Mr Andreou called Dr N Krusel to provide expert evidence on behalf of the CFA.

Mr D Grace of the Department of Natural Resources and Environment ("DNRE") appeared as an Interested Party representing DNRE and Parks Victoria.

A number of photographs and other documents were tendered to the Tribunal. All of the material presented to the Tribunal is retained on file and has been taken into consideration.

The subject site and surrounds were inspected subsequent to the hearing.

1. This is an Application under Section 79 of the Planning and Environment Act 1987 brought by D Buchanan to review the failure of Mornington Peninsula Shire Council ("the Council") to grant a permit in application no. P02/0151 within the prescribed time.

2. Mr Peake sought leave to substitute the plans submitted with the permit application with plans circulated in accordance with the Tribunal's practice directions. The revised plans are marked as 2511-01 Rev C, 2511-02 Rev C and 2511-03 Rev C and are prepared by Urban Solutions. The changes are described in a list accompanying the statement of service. There being no objection to the substitution request, I accordingly granted leave in accordance with the provisions of the Victorian Civil and Administrative Tribunal Act 1998 to substitute the plans submitted with the permit application for those identified as 2511-01 Rev C, 2511-02 Rev C and 2511-03 Rev C.

3. The subject site is located on the south west corner of Cape Schanck Road and Fingal Road, Cape Schanck. It is generally rectangular in shape with an area of 898 square metres. The land is relatively flat and covered with dense vegetation, being predominantly coastal tea tree.

4. The subject site borders the Mornington Peninsula National Park ("the National Park") to the south and west, and the road reserves to Fingal and Cape Schanck Roads to the north and east. The road reserves have a depth of approximately 18 and 9 metres respectively and are also covered by dense vegetation.

5. There are three other private lots of a similar size to the subject site at the western end of Fingal Road. There are no other lots in private ownership nor dwellings constructed on the western side of Cape Schanck Road south of Fingal Road. There are no lots in private ownership to the north of the subject site for approximately 250 metres.

6. The eastern side of Cape Schanck Road features lots of approximately 2,000 square metres. These lots each appear to contain a dwelling generally within a cleared area.

7. Mr Harrison described the history of the subject site and surrounds:

"This lot is part of a large subdivision of lots of a similar size on the western side of Cape Schanck Road in 1960. In the 1970's a majority of these lots were acquired to form part of the Mornington Peninsula National Park. Out of the 84 lots that were created to the south of the border of the present day Mornington Peninsula National Park 73 were consolidated into the National Park in the 1970s.

Today, 11 lots remain under separate titles and of these only 4 are in private ownership, the subject land, 23, 25 & 26 Fingal Road. These lots were not acquired and consolidated into the National Park, as funding at the time was insufficient to complete the project.

Of the four lots that remain in private ownership only 26 Fingal Road has been developed with the construction of a single storey dwelling in the 1960s."

8. It is proposed to remove approximately 800 square metres or 90% of the existing vegetation on the subject site and construct a three bedroom dwelling and double garage in the south west corner of the site. The dwelling has a floor area of 236 square metres, a maximum height of 4.5 metres and is setback:

* 14.245 metres from the road reserve of Cape Schanck Road

* 3.707 metres from the road reserve of Fingal Road

* 2.0 metres from the west boundary, the National Park

* 1.55 metres from the south boundary, the National Park

9. The subject site is zoned Rural (Schedule 4) under the provisions of Clause 35.01 of the Mornington Peninsula Planning Scheme ("the Scheme"). A permit is required for the development and use of a dwelling on the subject site as the area of the lot is less than 0.4 hectares. A permit is also required for a building that is within any of the setbacks contained in Clause 35.01-3, including:

* 20 metres from any other road, being Cape Schanck and Fingal Roads; and

10. The decision guidelines of Clause 35.01-6 require consideration of state and local policies as well as:

* The location of any building or works with respect to the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts.

11. The Environmental Significance Overlay (Clause 42.01) applies to the subject site, being:

A permit is required to construct a dwelling and remove vegetation pursuant to each of these Schedules.

12. A Significant Landscape Overlay (Clause 42.03) also applies to the subject site, being Schedule 6, National Trust Classified Landscapes. A permit is required to construct a dwelling and remove vegetation. The decision guidelines include:

* Whether approval of the proposed buildings and works is compatible with maintaining the visual, natural and cultural heritage significance of the landscape.

* The availability of reasonable alternative sites, alternative building or designs or alternative construction practices for proposed buildings and works that would better meet landscape character objectives of this schedule, having regard to the size and topography of the land and form and nature of the proposed buildings and works.

13. I note that the subject site is not affected by a Wildfire Management Overlay. However, the State Planning Policy, Protection from Wildfire (Clause 15.07), is relevant to the consideration of the proposal. The objective is to assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire. The implementation of this policy includes:

* Fire hazards must be considered in planning decisions affecting wildfire risk environments to avoid intensifying the risk through inappropriately located or designed uses or developments.

The policy requires the planning authority to seek the advice of the relevant fire authority if additional measures are deemed to be necessary.

14. Clause 22.11, Mornington Peninsula Fire Protection Policy, is a local policy of the Planning Scheme that affects all land in the municipality. The objectives are:

* To assist efforts to mitigate the risk to life, property and the environment for uncontrolled fire.

* To ensure that land use and development does not increase the level of fire risk.

* To ensure that land use and development includes adequate fire protection measures.

All proposals for land use and development should comply with the relevant criteria listed in the policy. For rural living and rural areas, the criteria are:

* Road access to and within the site should be designed to provide safe access to both fire fighting and other vehicles at all times.

* An adequate supply of water with suitable flow rates and appropriate couplings for Country Fire Authority equipment should be readily available to landowners or emergency services.

* The design, siting and layout of any development should improve protection for life and minimise the level of fire risk.

* Access, fencing and the location of dams should maximise fire fighting potential and minimise interference with fire fighting measures.

15. Cape Schanck and Fingal Roads and associated road reserves are included within a Rural (Schedule 4) Zone. Land to the south and west of the subject site, and to the north of Fingal Road (the National Park) is included within a Public Conservation and Resource Zone.

16. Mr D Buchanan applied for a planning permit to remove vegetation and construct a dwelling in January 2002.

17. Whilst there are no specified referral authorities, the Council sought comments from DNRE and Parks Victoria. In May 2002, DNRE advised that while it had no objection to the proposal, certain matters should be addressed, being flora and fauna, fencing, archaeology and fire protection. DNRE recommended that the CFA be consulted and CFA guidelines be followed.

18. Council then referred the application to the CFA, who objected on grounds including the following:

* The application is not consistent with the State Planning Policy Framework, particularly clause 15.07.

* The application fails to address Clause 65 Decision Guidelines, particularly in relation to the purpose of the zone, the effect on the amenity of the area, the proximity of the land to public land and the degree of fire hazard associated with the location of the land and how the proposed use will minimise this hazard.

* The CFA have assessed the vegetation within close proximity of the proposed dwelling and believe that the radiant heat that could be exposed onto the dwelling is extreme and places the occupants at significant risk.

19. Mr Buchanan then lodged this application against Council's failure to grant a permit.

20. Mr Harrison submitted, during the course of this hearing, that Council would have refused the application on the following grounds:

* The proposal is inconsistent with the fire protection objectives of the planning scheme, notably Clause 15.07-Protection from wildfire and Clause 22.11 - Mornington Peninsula fire protection policy, as adequate fire protection measures cannot be implemented on the site.

* The development fails to meet the objectives of Schedule 28 of the Environmental Significance Overlay as the siting of the proposed dwelling is likely to generate potential demand for future removal of vegetation associated with fire hazard clearing.

* The siting of the driveway access off Cape Schanck Road is inconsistent with the objectives of Schedule 16 to the Environmental Significance Overlay and Schedule 6 to the Significant Landscape Overlay.

* The proposed development will create an unacceptable precedent for the development of dwellings along Fingal Road.

21. Mr Harrison submitted on behalf of Council that:

* The proposed dwelling would not have a visual impact upon Cape Schanck Road or the National Park.

* The use of the subject site as a dwelling would not negatively affect the purpose of the Rural Zone as its potential to be used for rural purposes is limited due to its small size.

* The driveway could be relocated to Fingal Road and this would alleviate Council's concern regarding its visual impact.

* The extensive removal of vegetation is acceptable as it is necessary to facilitate the development and use of the subject site as a dwelling.

22. I consider that there are two key issues associated with this proposal, being:

* The appropriateness of the siting and design of the dwelling.

23. In support of the vegetation removal, Mr Peake called evidence from Mr Lane on the landscape type and quality found on the subject site. Mr Lane explained that the vegetation comprised secondary regrowth of predominantly coastal tea tree. Mr Lane stated that the area of land proposed to be cleared is small as it comprises only one lot within a significantly larger landscape, the National Park, that is subject to the highest level of protection. Therefore, the impact of the cleared vegetation on the subject site is not serious.

24. I find, however, that the proposed removal of 90% of the vegetation from the subject site is contrary to the many of the objectives of the various Overlays that apply to the site and surrounds, including:

* To protect and conserve the environmental systems, biodiversity, native vegetation, habitat areas ... of this area (ESO 16 objective).

* To protect and conserve native vegetation and habitat areas ... from clearing, degradation or fragmentation (ESO 28 objective).

* To arrest or reverse the decline of remanent native vegetation, and to achieve a net increase in native vegetation within the Shire over time (ESO 28 objective).

* To conserve the Shire's vegetation based landscape assets (ESO 28 objective).

* To ensure that trees are cleared from no more than 10% of the land effected by this schedule and understorey from no more than a further 30% of the land effected by this schedule (ESO 28 objective).

* To maintain vegetation as an important element of classified landscapes (SLO 6 objective).

25. The remaining issue is the appropriateness of the siting and design of the dwelling. I note that the Rural Zone decision guideslines include considering:

* The impact of the use or development on the existing and surrounding land uses; and

* The location of any building or works with respect to the natural environment and the measures to be undertaken to minimise any adverse impacts.

I also note that the primary concern expressed by Council, DNRE and the CFA was the risk to life as a result of wildfire.

26. Mr Harrison submitted that Council's key concern is that the proposed dwelling will intensify the risk of persons from wildfire unless there is significant clearing in the National Park, which DNRE and Parks Victoria are opposed to. Mr Harrison submitted that the design and siting of the dwelling would not improve the protection of life and would not minimise the fire risk.

27. Mr Peake argued that the dwelling should be allowed because of the following matters:

* Pursuant to the Rural Zone, a permit for a dwelling is only required because the lot is less than 0.4 hectares and because, consequent to the site area, a dwelling cannot comply with the setback requirements of Clause 35.01-3.

* Under the Overlay controls, the flora, fauna and archaeological values are relevant to the site and the proposal is consistent with each of the Overlay Controls.

* State Planning Policy, Protection from wildfire (clause 15.07) does not purport to prevent the construction of dwellings in fire risk areas. The relevant objective is to assist the minimisation of risk to life, property and the natural environment from wild fire.

* The construction and design of dwellings to minimise fire risk is primarily a building matter governed by the Building Code of Australia ("the Code"). The proposed dwelling has been designed to comply with the Code requirements for an extreme bushfire attack category.

28. In support of the proposed design of the dwelling, Mr Peake called evidence from Mr Weir, building surveyor. Mr Weir gave evidence that the design of the proposed dwelling complies with Part 3.7.4 - Bushfire Areas of the Code and complies with Australian Standard 3959-1999 - Construction of buildings in bushfire areas.

29. Mr Weir determined the level of bushfire attack to be extreme based upon his inspection of the subject site. Mr Weir summarised the compliance of the proposed dwelling with the Code and Australian Standards in his evidence. Mr Weir submitted, under cross examination, that this is as good a design that you could get in accordance with the building regulations. Mr Weir highlighted that the proposal includes positive elements such as the wall construction of brick and fibro cement, and the provision of a 10,000 litre dedicated water storage tank for fire fighting purposes with CFA specified couplings.

30. Under cross examination, Mr Weir stated that there are no circumstances where a dwelling would not be permitted to be constructed if it met the relevant Code/Australian Standard. Mr Weir further stated that a dwelling cannot be guaranteed as a safe place for people during a wild fire.

31. I accept Mr Weir's evidence that a dwelling can be constructed on the subject site that complies with the relevant Code/Australian Standard. However, I note that the siting of the dwelling was raised as a matter of concern by Council, DNRE, Parks Victoria and the CFA.

32. Mr Grace submitted that DNRE's key concern was the impact upon the National Park in the event that a dwelling was approved on the site, particularly the impact relating to fire risk. Mr Grace submitted that the National Park should not become a buffer zone because of a new land use.

CFA believes that the proposed development would be susceptible to significant wildfire threat from fire from the surrounding vegetation associated with the adjacent Mornington Peninsula National Park and that this would pose a significant risk to life and property.

CFA believes that the location of the proposed dwelling abutting high fuel load vegetation would place occupants to an unacceptable level of risk from wildfire.

34. Mr Andreou submitted that due to the quantity and type of vegetation surrounding the subject site, any dwelling constructed would face an extreme exposure from wildfire and expose occupants to an unacceptably high level of risk to life and property from the threat of wildfire.

35. In support of the CFA's objection, Mr Andreou called expert evidence from Dr N Krusel, Acting Director Community Safety at the CFA. Dr Krusel explained that the nature of wildfire risk is fire behaviour, which is the result of weather, fuel and topography. Of these three factors, only fuel can be modified.

36. Dr Krusel submitted that the more fuel that burns, the more intense the fire. Dr Krusel provided examples of intensity:

* 500 kW/m - low intensity prescribed/controlled burns

* 2-3,000 kW/m - direct attack in a forest that could be suppressed by fire fighting

* 10,000 kW/m - direct attack in grasslands that fire fighters could try to suppress

37. Dr Krusel submitted that the 1997 Mt Martha fires had a similar vegetation context to the subject site, albeit a different topography, and the intensity was 30,000 kW/m with flame heights of 15 metres.

38. Dr Krusel explained that fine fuel, such as coastal tea tree found on the subject site and in the National Park, increases the likely intensity of the fire as less than 6mm in diameter vegetation ignites easily. Coastal tea tree has a heathland configuration which allows a continuim of fuel at a height of around 4-5 metres, connecting the ground cover to the tree canopy. Similarly, the exposure of the subject site to local weather effects such as sea breezes of approximately 20-25 knots will impact upon fire behaviour. Dr Krusel submitted:

This means that well established stands of coastal tea tree scrub combined with significant winds, can burn intensely even when the ground beneath them is quite damp and the plants themselves are well hydrated. This vegetation type can therefore burn intensely well outside the traditional hot dry summer conditions most people associate with bushfires.

Whenever a fire breaks out in coastal scrub such as this, it is likely that the fire will be of extreme fire danger class, with the fireline intensity exceeding 4,000 kW/m (the upper limit of suppression for fire agencies).

39. Dr Krusel submitted that the vegetation within a 100 metres radius of the site was assessed as having an average fuel load of 21 t/ha. With a wind speed of 20km/h, this creates a fireline intensity of 21,766 kW/m and a flame length of 9.7 metres. This would mean that the proposed dwelling would be subject to direct flame and radiant heat. The radiant heat level reduces when the distance from the fireline intensity is increased. Dr Krusel submitted that at a distance of 2 metres a fireline intensity of 20,000 kW/m equates to 57.9kW/m2 of radiant heat; whilst at 50 metres, the radiant heat would be reduced to 7.5kW/m2.

"... very high to extreme fire behaviour is easily achieved in this environment, even under what would be considered moderate weather conditions for a coastal area such as Cape Schanck. Any bushfire that might occur here is likely to result in fire behaviour well beyond the capabilities of the fire services to effectively suppress ...

The proposed distance of less than 2 metres between the dwelling from the closest dense vegetation is entirely inadequate to mitigate extreme levels of radiant heat and prevent direct flame contact on the building.

This proposal seems to rely on a construction only solution, as the distance between the nearest unmodified vegetation and the proposed dwelling is less than two metres. Consequently there is little opportunity to significantly reduce the fuel, to mitigate fire intensity and direct flame contact if a fire front approaches the proposed dwelling.

The risk to life and property is unacceptable in this case given that the proposed Level 3 construction under AS 3959 is predicated on the knowledge that a dwelling can withstand a maximum of 29kW/m2 radiant heat flux (the level at which wood ignites spontaneously after prolonged exposure without flame contact).

A wildfire in the vegetation type surrounding the proposed development would create radiant heat flux levels in excess of this maximum. Compounding this issue is that during the passage of a fire front, it is inevitable that the proposed dwelling would also be subject to direct flame contact.

CFA normally evaluates fire risk against a one in 50 year fire event, with extreme weather conditions as happened in the 1983 Ash Wednesday bushfires. This site and the proposal in its present form would not have to wait for a one in fifty year event to experience extreme and unacceptable risk to life and property. Any bushfire in this environment would challenge the survival of the proposed building and its occupants, if the fire front impinged on this property.

CFA risk philosophy and planning approach ... is that integrated planning and preparation is a better option than construction only solutions. It is my view that reliance on construction standards alone will not provide appropriate levels of safety for the dwelling and its occupants. There should be an integrated approach to fire protection planning, combining design and construction, vegetation management, water supply for firefighting, and access for emergency vehicles."

41. I note that this application requires planning approval for a dwelling on a lot less than 0.4 hectares, and for the setbacks of the dwelling from all of its property boundaries. The decision guidelines of the Rural Zone require consideration to be given to the State and Local planning policy framework as well as the impact of the dwelling on the surrounding land uses, the natural environment and the measures to be undertaken to minimise any adverse impacts.

42. The Council, DNRE, Parks Victoria and the CFA have all submitted that the siting of the dwelling will create an unreasonable risk to life from wildfire. The implementation of the Protection of Wildfire State Planning Policy (Clause 15.07) states that fire hazards must be considered in planning decisions affecting wildfire risk environments and all submitters have acknowledged that the subject site is contained in a wildfire risk environment. The Policy implementation goes on to state "to avoid intensifying the risk through inappropriately located or designed uses or developments". In light of the detailed evidence of the extreme fire risk presented by Dr Krusel, I consider that the proposed development and use of the subject site is inappropriate.

43. I further consider that the proposed siting of the dwelling does not satisfy the objectives of the Mornington Peninsula Fire Protection Policy (Clause 22.11) as the development and use of the dwelling does increase the level of fire risk on the subject site. I am of the view that the proposal contains insufficient setbacks to mitigate the extreme level of fire risk. I am also of the view that the proposed removal of 90% of the vegetation from the subject site does not mitigate the extreme level of fire risk.

For the above reasons, the Application for Review is disallowed and the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is directed that no permit be issued.