1. The circumstances surrounding this case are somewhat unusual because of the manner in which the council processed and assessed the application. I commented at the hearing that the council's failure to respond to the CFA's request for additional information is not acceptable. I take some comfort in the council officer's response that internal procedures are being reviewed with a view to ensuring there is no recurrence of this situation.
2. In any event, at the hearing I received submissions from all parties[2] and the substantive merits of the application were canvassed before me.
3. The fact that the proposal as amended at the hearing, does not require a permit under the WMO, is also a matter about which I need to comment.
4. The fact that a permit is not required under this overlay for this proposal, does not obviate the need for me to have regard to and to consider issues associated with the site's location within an area which is an acknowledged bushfire prone locality. A permit is required to use the land for a dwelling where the dwelling is not the only dwelling on the lot. In considering an application to use land, I am required to decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in Clause 65[3].
5. Of particular relevance in this case is the State Policy for Wildfire risk at Clause 13.05 of the planning scheme which has the following objective;

To assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire.

1. Strategies to achieve this objective are:
   • Identify wildfire risk environments in planning schemes in consultation with relevant fire authorities.
   • Consider fire hazards in wildfire risk environments to avoid intensifying the risk of wildfire through inappropriately located or designed uses or developments.
   • Seek the advice of the relevant fire authority if compliance with the policy guidelines is not likely or additional measures are believed necessary.

2. I note that the council's local planning policy framework surprisingly contains little in the way of policy direction for managing wildfire risk.
3. The State policy at Clause 13.05 is of course one of only a number of policies, zone provisions and decision guidelines that are of some relevance to my decision in this case. In accordance with Clause 10.04 of the planning scheme, I must endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
4. I will return to a consideration of that balancing exercise subsequently. The purpose of the discussion thus far is to establish that the issue of wildfire management is a relevant part of my consideration of the merits of this application.

1. The council did not make any substantive submissions on the issue of wildfire management.
2. The CFA submits that the review site is located within an area that exhibits wildfire risk characteristics. This is confirmed by the application of the WMO and the designation of the locality as a bushfire prone area for the purpose of the building control system[4]. The applicant did not dispute the status of the land.
3. The CFA submits that the conversion of the outbuilding to a dwelling increases the number of people exposed to risk from wildfire and therefore is not consistent with the objective of State policy which is to assist the minimisation of risk to life and property from wildfire. The CFA's concerns in this respect are reinforced by its assessment that the dwelling would be located so that it would have direct exposure to flames from a fire front, i.e. it would be located within a flame zone as calculated under the Bushfire Attack Levels for the purpose of the Building Regulations (BAL -FZ). The CFA submits that the applicant has not provided sufficient information that mitigates this assessment of the risk. The CFA in particular is not satisfied that vegetation management proposals have been adequately developed to enable a more favourable assessment of the risk factors to be carried out.
4. The applicant acknowledges that the review site is located within a bushfire prone area and that the proposal will increase the number of people exposed to a risk from bushfire. The applicant submits however that all the dwellings located in this neighbourhood are exposed to a risk and this proposal will not significantly increase existing risk levels. The applicant relies on this proposal's substantial compliance with the provisions of the WMO and the CFA's satisfaction with respect to vehicular access and provision of water supply.
5. The applicant also disputes the CFA's BAL - FZ assessment. The applicant submits that vegetation management and clearing can be achieved in order to create a defendable space around the dwelling. Mr Haydon acknowledged that this would involve the clearing of vegetation from neighbouring private property and would necessitate the preparation of an agreement with the owners of both abutting properties to achieve this. A draft agreement was tabled at the hearing, but I was not provided with any evidence that abutting land owners are at all supportive of this arrangement.
6. I make no findings about the dispute concerning the appropriate BAL classification for this site. It is not my role to determine what the BAL is or should be. That is a matter for a building surveyor acting under the applicable building regulations, and is a process that follows the grant of a planning permit.
7. In this case, my findings on this matter are influenced by the objectives of the planning scheme and the site's physical context. Relevant factors include the size and configuration of the lot, the proposed dwelling's location adjacent to or near the site boundaries, the existence of vegetation on abutting lots, and in particular the necessity to clear and subsequently manage on an ongoing basis vegetation on abutting lots, in order to mitigate risk levels.
8. The applicant's proposal to enter into agreements with abutting landowners to clear and manage vegetation is not acceptable in this case. This approach has been the subject of a recent Tribunal decision[5] in which a similar proposal was advanced. The Tribunal in that case made the following pertinent observation:

No. 36 (the lot abutting the review site) is a separately owned lot and does not form part of this Application. It is not possible to impose obligations on the owner of that lot via permit conditions or any other mechanism, such as a Section 173 Agreement, to require the vegetation on that land to be maintained in such a manner that it enables the development on No. 34A to achieve the requisite BAL.

1. I agree with the Tribunal's assessment of the limitations of a proposal that is dependant on the actions of abutting landowners to achieve a desired outcome. While there may be circumstances where such an approach could receive favourable consideration, those circumstances do not apply in this case. The review site abuts two properties in private ownership and no evidence was provided that the required vegetation clearance and management on the abutting lots is either practical or legally enforceable. In addition, the review site and the abutting lots are affected by two overlay controls (ESO5 and VPO1) which impose controls over the removal of native vegetation. Any requirement imposed by me requiring vegetation to be removed from adjoining lots would be subject to the grant of a permit. I agree with the council's submission that the retention of native vegetation is a key planning objective in this locality, and even if I was persuaded that the abutting landowners were agreeable to removing vegetation from their land, the prospect of a permit being granted to enable that to occur is at best speculative.

1. The council and the objector's concerns about this proposal focussed primarily on neighbourhood character issues. They submit that proposals for second dwellings on relatively small lots compromise the bush setting of this locality. The prospect of ongoing vegetation loss to accommodate additional dwellings, was identified as a particular concern[6].
2. While I am satisfied that the conversion of an existing outbuilding on the review site to a dwelling, would have no significant adverse impact on the character of this locality, there is nevertheless a wider policy consideration which is relevant to my decision.
3. The review site is zoned Rural Living and is affected by three overlay controls (including the WMO). The council has adopted the Canadian Valley Structure Plan[7] to guide the future development of this locality. In broad terms growth within the locality is to be confined within existing residential areas, non urban breaks are to be maintained and natural and landscape values are to be protected. The review site is not located within an existing residential area, and is designated as a "significant landscape area". There is also mention of "further investigation of rezoning" but it is unclear what rezoning is contemplated. I was advised that the strategic planning for this small section of Canadian Valley is "in flux".
4. Having regard to the current zoning of the land, the overlays and the policy framework, it is clear that the built form, land use and environmental objectives for this locality emphasise the retention of the existing landscape qualities of the area, and low density development pattern. In this context, there is no significant policy support for a second dwelling on this lot, which would outweigh my concerns with respect to the wildfire issues outlined above.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and no permit issued.

[1] Section 98 (1) (c) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to inform itself on any matter as it sees fit. Section 60 of the Act empowers the Tribunal to join a person as party to a proceeding. The Tribunal may make an Order on its own initiative or on the application of any person.

[2] Ms Trengove, an objector did not attend the hearing but I have considered the issues raised in the statement of grounds.

[3] Clause 31.02 Ballarat Planning Scheme.

[4] New designated bushfire prone areas came into effect on 8 September 2011**.**

[5] Wellesley & Anor v Hepburn SC [2011] VCAT 614

[6] I was advised that vegetation had been progressively removed from this site over a period of time. I was advised that the vegetation removal was exempt from planning permit requirements. I make no findings with respect to this matter. The previous removal of vegetation from the site is not before me in this case.