then I am satisfied that there will be an acceptable planning outcome.

1. In other words, relying on the strong "community need" positive aspect of the proposal, I am satisfied with these modifications that the "loss of life" risks are reduced to a manageable level and that there are no fatal bushfire risks pointing to a permit refusal. In particular, a key thrust of these modifications is to seek to achieve a result where:
   • on the key high bushfire risk days, there will be no one in the community hall building because it will not be operating. In this regard, I see a cautious approach as appropriate in terms of what constitutes a "high level of risk". Hence I have required that the EMP provide as a minimum requirement that the community hall building must be closed on designated "code red" and "extreme" bushfire risk days. This reflects the preferred position of both the CFA and Mr Carey. I am not suggesting that this situation need be set in stone forever - it might be that this situation can be reviewed at some later stage. However I am conscious that a prudent approach is needed and that the climate change predictions at this point suggest that Victoria will get more extreme fire danger days as time goes on, not less;
   • if there is a major bushfire event on a day where the hall building is allowed to operate, there will be an EMP in place which should hopefully provide for an orderly and efficient emergency response; and
   • because the required signage should make it clear that this community hall is not a Community safer place and also confirm where the nearest one is, users of the hall in a major bushfire event should hopefully be clear where they need to go elsewhere to find safe refuge in a major bushfire event. Consequently in the event of another major bushfire affecting Hazeldene, I would not expect there to be a "stay and defend" situation with this new hall because the hall will either be closed (if it is a designated code red or extreme bushfire risk day) or because users of the new hall will be aware that they need to go elsewhere to find a Community safe place (presumably Flowerdale Community Hall).
2. I accept that a potential permit condition seeking to put a cap on the number of persons using the community hall building would be quite problematic, and hence I have not pursued same.
3. If there was another major bushfire event affecting Hazeldene and (with the above measures in place) this community hall was successfully fully evacuated but later was burnt down, this would be very unfortunate but in my view would still be the type of "avoiding loss of human life" outcome that the Bushfire Royal Commission Report is telling us is the key imperative - see the quote I have set out above.

Should the new community hall have a BAL40 or a BAL29 rating?

1. As mentioned, the design of the new community hall provides that it be built to a BAL29 specification, consistent with how the relevant Council building inspector assessed the level of bushfire risk. The CFA advised me on the first hearing day that it considered BAL29 to be inadequate and that even if the direct flame zone issue was resolved, its assessment was that the new hall should still be built to the more rigorous BAL40 specification. This was opposed by both Council and the Permit Applicant.
2. The follow up correspondence since the 10 January 2011 hearing confirms that this "BAL29 or BAL40" issue is still in debate.
3. There are a number of complications for the Tribunal to grapple with in this regard, including:
   • the risk assessment process apparently being open to different exercises of judgment on particular points, even where two different assessors have had the same training and are working from the same code or standard. The Council letter of 14 January 2011 includes the following statement:

"Council remains concerned about the level of inconsistency that exists with the BAL assessment since the introduction of AS3959-2009. Council also believes that these matters need to be resolved between the CFA and the Building Commission to avoid debate of this nature in the future";

• the fact that there was no independent expert evidence before the Tribunal on this issue;
• the prospect that this "level of building specification" issue may play out at the building permit stage as well as the initial planning assessment;
• the absence of any purpose-built bushfire code or standard dealing with the necessary specification where institutional buildings such as this are proposed to be built in higher bushfire risk areas;
• one of the grounds on which the Permit Applicant opposes the BAL40 requirement being that it has apparently (with assistance from the Victorian Bushfire Reconstruction & Recovery Authority) procured two separate BAL assessments, and they both confirmed a BAL29 requirement[4];
• the Permit Applicant also expressing concern that the potential need to re-design the new building from BAL29 to BAL40 would have both delay and budget implications which "...will potentially put the project beyond budget"[5].

1. A further variable at play is that:
   • the application plans show the creek reserve area near the subject land as being cleared and effectively an extended part of the new playground area; but
   • the creek reserve is crown land and is controlled by a separate authority, being the DSE. The DSE were not a party or involved in the hearing of this proceeding, which in hindsight was unfortunate.
2. However in my view some weight can still be given to the fact that both the subject land and the abutting creek reserve are both owned/controlled by public authorities. In a situation where the public sector is being expected to play its role as part of the wider response to the Black Saturday bushfires which led to 173 deaths, its seems reasonable in this context (and where a consultation process is put in place) to assume that there will be sensible discussions between neighbouring public authorities.
3. I note from recent correspondence from the CFA that there has been last minute discussions between the CFA and DSE regarding:
   • the management of the vegetation in the creek reserve area behind the appeal site; and
   • the DSE apparently being open to the scope of the on-going Emergency Management Plan including consideration of this issue.

The last part of this letter indicates that on this basis the CFA is now open to the new hall building having a BAL29 rating.

1. In all the circumstances, I see a reasonable outcome as being that the new hall building can remain designed to a BAL29 specification. In particular I rely upon:
   • my comments above that I would not expect there to be a "stay and defend" situation in relation to the new hall building;
   • the ability to include the DSE (being another public authority) in the consultation process as part of the preparation and annual updating of the Emergency Management Plan that must be prepared before the new building is occupied;
   • the fact that the latest advice from the CFA is that it is no longer pursuing a BAL40 rating for the new building.
2. However it goes without saying that this should not be taken as a wider endorsement of BAL29 compared to BAL40 - each case turns on its own facts and merits.
3. In terms of what assists the Tribunal in grappling with these issues, it would be helpful if as far as practicable:
   • the framework within which these bushfire risk assessments are made are tightened up in relation to institutional buildings; and
   • a consistent approach taken by the different public authorities in how the framework is interpreted in practice.
4. It is clear from Council's submissions to me that the current differences of interpretation are causing frustration, and certainly the Tribunal's findings in this proceeding were not made any easier by the different positions taken by Council compared to the CFA.

1. For the reasons set out above, my ultimate finding is that the proposal is acceptable, but with a revised permit conditions set out in the Annexure to this decision.

Construction and use of a community building and a reduction in carparking.

1. Prior to the commencement of any buildings or works three (3) copies of a plan or plans shall be submitted and approved by the Responsible Authority. The plans must be to scale and suitably dimensioned. The plans must be generally in accordance with the application plans but modified to show:

1. the nature of all external materials and finishes; 2. any proposed excavations;

1. provision for at least five bicycle parking spaces;

1. the new building having a northern setback which is 3 metres greater than is currently shown in the application plans, including any consequential changes to the building. These consequential changes may include moving the new building 3 metres closer to the southern boundary and deleting some or all of the 4 parking spaces which the application plans show in the front setback area. 2. a solid fence (with a notation confirming it is to be built at the expense of the permit holder) along the eastern boundary, to a height of 2.1 metres.

All plans must be to the satisfaction of the Responsible Authority and when approved these plans shall be endorsed and form part of this permit.

No alteration or modification will be permitted without the written consent of the Responsible Authority.

1. This permit shall expire if the development hereby permitted is not completed and the use commenced within two (2) years of the date hereof, or any extension of such period the Responsible Authority may allow in writing, on an application made before or within three months after such expiry.
2. The new hall permitted by this permit must not be occupied until the new fence provided for in Condition 1(e) above is constructed.
3. Notwithstanding the requirement in Condition 1(d) above that the new building must be set back an additional 3 metres from the northern boundary of the land, this requirement shall be deemed to have been alternatively satisfied if prior to the occupation of the new community hall permitted by this permit:
   • the owner of the land enters into a Section 173 Agreement with the authority responsible for the creek reserve behind the land. This 173 Agreement must provide that for so long as the community hall permitted by this permit exists on the land, the relevant vegetation within this creek reserve must be managed so as to avoid the new hall building infringing within what the Country Fire Authority considers to be the relevant direct flame zone area;
   • the Country Fire Authority provides its written consent to this form of Section 173 Agreement; and
   • the Section 173 Agreement is then executed and lodged for registration with the Victorian Land Titles Office.
4. The community hall permitted by this permit cannot be occupied until an Emergency Management Plan ("EMP") has been prepared by the permit holder to the satisfaction of the Responsible Authority (which in exercising this role must consult with the Country Fire Authority and with the Department of Sustainability and Environment). This EMP must deal with the operational aspects of the new community hall and include appropriate measures/requirements to provide for the safest practicable response to any relevant potential emergency response situation (notably a possible major bushfire event), including the evacuation arrangements. It must also deal with relevant vegetation management in relation to the land and the desirable management of vegetation in the creek reserve to the north. Without limitation to the potential contents of this EMP, it must provide that in terms of what high bushfire risk days the community hall building cannot operate, as a minimum position the building cannot be used on designated "code red" or "extreme" days of bushfire risk. If the current system of bushfire ranking is replaced, then the new hall cannot be used on the equivalent highest and 2nd highest level of designated bushfire risk. Once approved, this EMP will form part of this permit. The EMP must be reviewed and where appropriate updated annually.
5. The community hall permitted by this permit cannot be utilised as a "Community safer place" unless this is authorised in writing by both the Responsible Authority and the Country Fire Authority.
6. The entrance area/lobby to the new community hall must to the satisfaction of the Responsible Authority include a notice board which prominently advises any person using the hall:
   • (a) that the hall is not a designated Community safer place (this requirement will be deemed to be void if this hall at any future time is constituted a "Community safer place" pursuant to Condition 6 above);
   • (b) where the nearest designated Community safer place is; and
   • (c) any other appropriate safety information, having regard to the approved EMP and to any other broader community safety signage requirements for this type of facility.
7. The emission of noise from the premises including the surrounding environment and carpark areas either during or immediately after the hours permitted, must not cause annoyance to persons beyond the site.
8. The subject land must be kept neat and tidy at all times and its appearance must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality.
9. Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.
10. Prior to the commencement of the use allowed by this permit, the titles to Lots 49 and 50 LP: 68766 which make up the land must be consolidated.
11. As part of the construction of the building permitted by this permit, a combined water system shall be provided to accommodate a total minimum of 55,000 litres, of which 45,000 litres shall be for domestic purposes and10,000 litres for fire fighting purposes, the latter being in the lower portion of the tank. All outlets from the lower tank shall be fitted with 63mm 3 thread, 25mm CFA round thread male coupling.

1. Prior to the commencement of any works, including site works, the applicant shall obtain a septic tank permit from Council. Sewerage treatment must be by package treatment plant to the satisfaction of the Responsible Authority.

All car parking spaces must be designed to allow all vehicles to drive forwards both when entering and leaving the property and designed with levels and set out dimensions complying with the Off Street car parking code AS 2890.1 - 2004

A sign/signs to the satisfaction of the Responsible Authority must be provided directing drivers to the area(s) set aside for disable car parking and must be located and maintained to the satisfaction of the Responsible Authority. The area of each sign must not exceed 0.3 square metres.

A vehicular crossing(s) must be constructed or adjusted to the road to suit the proposed car parking to the satisfaction of the Responsible Authority. Consent to work on the Road Reserve must be obtained in accordance with Road Management Act 2004 and associated regulations prior to construction commencing.

All stormwater and surface water discharging from the building and works must be conveyed to the legal point of discharge, approved by the relevant authority. No stormwater discharge from downpipes or overflow from storage tank and surface water shall be directed or caused to be directed in a concentrated form that will cause erosion and or adverse affects within the

site or to adjoining land or properties. The stormwater for the development must be designed and documented in accordance with AS 3500 3 - 2003.

Before any works associated with the carparking start, detailed construction plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided.

All works constructed or carried out must be in accordance with those plans.

Before the use or occupation of the development starts, the area(s) set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:

1. Constructed of fine crushed rock pavement of a minimum depth of 150mm (depth subject to soil conditions)
2. Properly formed to such levels that they can be used in accordance with the plans

1. Surfaced with an all-weather-seal coat for all driveway and parking areas as shown on the endorsed plan

1. Drained in accordance with the approved drainage plan
2. Line marked to indicate each car space and all access lanes
3. Clearly marked to show the direction of traffic along access lanes and driveways to the satisfaction of the Responsible Authority.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

(1) This permit does not authorise the commencement of any building construction works. Before any such development may commence, the applicant must apply for and obtain appropriate building approval.

[1] In the "Introduction" section of the July 2010 Bushfire Royal Commission Final Report Volume 1 (The Fires and Fire Related Deaths) it is stated at page xxiv that "On the basis of the evidence presented, the Commission concludes that Victoria has a range of characteristics that predisposes it to bushfires generally and the occasional ferocious bushfire in particular. There are few other locations in the world with similar characteristics".

[2] The height of the revised roof line will be 5.6 metres.

[3] In the Royal Commission's July 2010 Final Report Volume 2 Part 2 the view is expressed that "...there is considerable scope to substantially restrict development in areas that are known to pose an unacceptably high bushfire risk". The Commission's Recommendation 46 also proposes that "The State develop and implement a retreat and resettlement strategy for existing developments in areas of unacceptably high bushfire risk, including a scheme for non-compulsory acquisition by the State of land in these area". Whilst these potential measures have been raised by the Commission for consideration, I have not given this any material weight, as this debate is at its early stages and needs to be resolved at a policy level. At this stage there are no corresponding "retreat and resettlement" provisions in the Murrindindi Planning Scheme, nor were these points raised by the CFA in the hearing before me.

[4] See the Permit Applicant's letter dated 14 January 2011.

[5] See the second page of this 14 January 2011 letter.