The Application for Review 1999/45416 is granted. The order of the Tribunal is that a planing permit issue for the development of a detached dwelling on Crown Allotments 96 and 96A Davies Road, Parish of Whanregarwen, Molesworth, such permit to include the following conditions:

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority, in consultation with the Country Fire Authority. When approved, the plans will be endorsed and then form part of the permit. The plans must be drawn to scale and dimensioned and three copies must be provided. The plans must generally be in accordance with the plans prepared by Timberset Homes Pty Ltd (Drawing No. 9228.1, 13 May 2000) and Kevin McCullagh and Associates (May 2000). The development must be carried out strictly in accordance with the endorsed plans, and such plans must not be amended unless the Responsible Authority and the Country Fire Authority have provided written consent.

2. Before the development starts, an agreement must be entered into by the applicant with the Responsible Authority and the Country Fire Authority under Section 173 of the Planning and Environment act 1987 and registered on the certificate of title relating to the subject land under Section 181 of that Act. The agreement must be in the form of the draft agreement tendered to the Victorian Civil and Administrative Tribunal on the 18th of January, 2001, and marked "A1".

3. The dwelling must be constructed in accordance with the requirements of the Australian Standard 3959, Construction of Buildings in Bushfire Prone Areas.

4. Within three months of the issue of a Certificate of Occupancy, the existing caravan must be removed from the subject land.

5. This permit will expire if the development hereby permitted is not completed within two years of the date hereof, or any extension of such period the Responsible Authority may allow in writing made before three months after such expiry.

6. All external cladding, including the roof and trims of the building allowed, must be coloured or painted in muted shades of green, brown or charcoal, or in a colour approved in writing by the Responsible Authority.

7. All sewage and sullage waters shall be treated in accordance with the requirements of the Environment Protection Authority and the Council. All effluent shall be disposed of and contained within the curtilage of the land and shall not discharge directly or indirectly to an adjoining property, street, or any water course, water storage or dam. Sufficient land shall be set aside and kept available for the purpose of effluent disposal.

8. On the construction of the dwelling 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 and 10,000 litres for fire fighting purposes. All outlets from the tank containing water for fire fighting purposes shall be fitted with 63 mm 3 thread, 25 mm CFA round thread male coupling.

The fire fighting purposes tank may be substituted by a minimum two megalitre dam with a hard fill point located in close proximity to the dwelling.

Should the fire fighting purposes tank or dam not be elevated sufficiently to provide adequate pressure at hose points around the dwelling, then a 50mm centrifugal water pump shall be provided, driven by an internal combustion engine and maintained in good working order.

Each of the parties have consented in writing to the amendment which is made herein.

Mr N Rintoul, Deacons Lawyers, on behalf of the Country Fire Authority.

Mr K Liversidge of Counsel, instructed by Beaumont and Christiansen, who called sworn evidence from:

Mr J Nicholson, Fire Risk and Fire Management Consultant and former Director Risk Management, Country Fire Authority;

Mr D Ridd, of 84 Scrubby Creek Road, Molesworth, member and former First Lieutenant, Whanregarwen Rural Fire Brigade;

Mr C Cooper, local resident, bulldozing and earth moving contractor, and member of the Molesworth Country Fire Authority; and

Mr K McCullagh, Town Planning and Landscape Consultant.

Application under Section 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

Crown Allotments 96 and 96A Davies Road, Parish of Whanregarwen.

The land is irregularly shaped and has a total area of 266.5 hectares. It contains steep slopes and is almost entirely covered by regrowth native vegetation and some hardwood and softwood plantations. It is bounded by State forest on three sides.

The land is in the Rural Zone pursuant to the Murrindindi Planning Scheme. It is also subject to a Wildfire Management Overlay and an Erosion Management Overlay.

"The subject proposal is fundamentally the same as that considered by J. A. Moles (Member) on 15/5/98 (Appeal No. 1998/003732). The determination was that the appeal by the proponent against the Council's refusal was disallowed.

The practical means of access to the subject land is over Crown land and the Department of Natural Resources and Environment cannot guarantee continuation of access over this land.

The proposal is not in accordance with the objectives of the Wildfire Management Overlay.

The proposal is not in accordance with the policies, objectives and strategies of the Murrindindi Planning Scheme.

The proposal does not adequately address the issue of access to the proposed house.

The proposal will have a detrimental impact on the visual amenity of the area.

The proposal is not in accordance with sound land use planning principles.

The proposed dwelling is located in an area identified by the (Country Fire) Authority as being prone to intense wildfire within which people and property are particularly vulnerable.

The location of this development is likely to increase the danger to firefighting personnel and equipment attempting to control wildfire in this vicinity.

The access and egress tracks cannot be guaranteed during an emergency, and private tracks leading to this property have locked gates (and) some tracks identified by the applicant do not continue through as per the application."

"The proposal is significantly different to that of the application previously subject to appeal and decision (Appeal No. 1998/03732) insofar as there is significant material submitted as part of the application that responds to possible deficiencies in the earlier application.

The Department of Natural Resources and Environment has lodged no objection to the provision of access over crown land.

The proposal is in accordance with the objectives of the Wildfire Management Overlay.

The proposal is in accordance with the objectives, policies and strategies of the Murrindindi Planning Scheme.

The proposal goes to extensive lengths to demonstrate adequacy of access to the proposed house.

The proposal will not have a detrimental impact on the visual amenity of the area.

The proposal is in accordance with sound land use planning principles.

The proposal constitutes a sound and reasonable use of the land and will assist in the minimisation of wildfire risk while maximising the opportunities for wildfire control in the area."

Dr Hadley, the applicant, bought the subject land in 1969 and moved a caravan onto it in 1970. The caravan is still there, although it no longer has wheels and has been mounted on foundation blocks since approximately 1973. Dr Hadley's evidence was that he visits the land, on average, once every two weeks. He has established plantations on part of the land, pursuant to a planning permit issued in July, 1992. In 2000, without the requisite permit, Dr Hadley cleared land in the vicinity of the "cut and fill" bench on which the proposed dwelling is to be located.

Dr Hadley previously applied for a planning permit to construct a dwelling on the property. The application was refused. The subject land was then zoned Rural under the Yea Planning Scheme. The use and development of the land for a dwelling did not require planning permission pursuant to that zoning, but the development of the land for a dwelling did require such permission by virtue of being located in a Fire Abatement Policy Area and a Land Protection Policy Area. Pursuant to these "overlay" controls, the Country Fire Authority (CFA) and the Department of Natural Resources and Environment (DNRE), acting as referral authorities, objected to the grant of a permit.

The Responsible Authority refused the application and an appeal (1998/003732) was heard by the Administrative Appeals Tribunal on Friday, 15th of May, 1998. The Tribunal disallowed the appeal and ordered that no permit issue. The reasons for that decision revolved around fire risk and access to and egress from the site.

The permit application which is the subject of this current Application for Review was lodged on the 14th of February, 1999. The application was referred to the CFA and DNRE as required by the scheme. The CFA objected to the proposal, but DNRE did not. On the 25th of May, 1999, a Refusal was issued by the Responsible Authority. On the 17th of June, 1999, an Application for Review was received by the Tribunal.

Since that time there have been various adjournments of VCAT hearing dates granted at the request of the applicant.

The new VPP based Murrindindi Planning Scheme was gazetted on the 6th of May, 1999, just 19 days before the issue of the Refusal to grant a permit. The subject land is zoned Rural pursuant to this scheme and is subject to a Wildfire Management Overlay and an Erosion Management Overlay. A planning permit is required to construct a building associated with accommodation under the Wildfire Management Overlay controls (see Clause 46.01). This requirement does not apply if

"A building or works consistent with a Fire Management Plan, where the Fire Management Plan has been prepared to the requirements of the relevant referral authority and has been submitted to, and is to the satisfaction of, the Responsible Authority prior to the commencement of buildings and works."

A Fire Risk Management Plan was prepared by Mr Nicholson in consultation with the CFA and was "signed off" by it in December, 2000, as meeting its requirements. However, the Responsible Authority has refused to approve the Plan.

The position of the CFA now is that it withdraws its objection to the proposed development provided that any permit issued is subject to approval of the Fire Risk Management Plan by the responsible authority and provided that before the development starts the applicant, the responsible authority and the CFA enter into an agreement pursuant to Section 173 of the Planning and Environment Act and that such agreement is registered and entered on title, binding the owner and successive owners to implement the Fire Risk Management

1. Mr Scale, who appeared for the Responsible Authority concedes that while the proposal for a detached house in this case does not differ in any substantial or significant manner to the proposal that was considered in Appeal No. 1998/03732, this is not a repeat appeal because of the changed circumstances which apply. The most important and relevant change of circumstance has been the preparation of a Fire Risk Management Plan in consultation with the CFA and the approval of that Plan by the CFA such that it withdraws its objection to the proposal subject to conditions being imposed in any permit.

2. Pursuant to the Rural Zone and Clause 35.01-2 of the Murrindindi Planning Scheme, a lot may be used for one or more dwellings if a number of requirements are met. These requirements deal with road access, connection to a reticulated sewerage system or provision of on site waste water treatment sewerage under the Environment Protection Act, connection to a reticulated potable water supply or provision of an alternative potable water supply with adequate storage for domestic use as well as for fire fighting purposes to the satisfaction of the responsible authority, and connection to a reticulated electricity supply or the provision of an alternative energy source to the satisfaction of the Responsible Authority.

3. In this instance the responsible authority is of the view that the requirement in relation to access is not met. Clause 35.01-2 requires that:

"Access to a dwelling must be provided via an all weather road with dimensions adequate to accommodate emergency vehicles to the satisfaction of the responsible authority."

The CFA considers that there is appropriate access. Also, the evidence of Dr Hadley, Mr Ridd, Mr Cooper and Mr McCullagh was that suitable all weather and all season access to the land is provided by Davies Road and Boundary Road. Mr Scale conceded that all weather and all season access for two wheel drive vehicles was provided by these roads. He submitted, however, that access to and egress from the subject land to the north and north-east was not adequate in the event of a wildfire approaching from the south-west. We will return to that point later in these reasons, but at this juncture, placing ourselves in the shoes of the Responsible Authority, we are satisfied that there is suitable access in terms of 35.01-2 and find that there is no permit required for the use proposed.

4. Pursuant to the Wildfire Management Overlay, a permit is required to construct a building or carry out works in relation to "accommodation" which is defined to include a dwelling. As explained above, this requirement does not apply if a fire risk management plan has been prepared to the requirements of the relevant fire authority and is to the satisfaction of the responsible authority. In this instance the responsible authority has not been so satisfied.

5. Early in the hearing, having heard part of Mr Scale's submission, it became clear to us that this case revolves around road access to the site and the adequacy or otherwise of the proposed fire management plan, plus, to a lesser extent, the visual impact of the proposed development and the adequacy or otherwise of the landscape and erosion management proposals prepared by Mr McCullagh. While Mr Liversidge was accompanied by an array of witnesses to give evidence on these matters, Mr Scale had no witnesses at all. Given the seriousness of the access and fire risk management issues in terms of the potential loss of life and property, we suggested to Mr Scale that it would be desirable for him to call appropriate witnesses. We stood down the hearing for half an hour to allow him to take instructions, having informed him that if, having taken instructions, he wished to seek an adjournment, such adjournment could result in the award of costs against the Responsible Authority. On resumption of the hearing, Mr Scale informed us that he did not wish to seek an adjournment.

6. Mr Scale informed us that the responsible authority had some general concerns about the proposed Fire Risk Management Plan and the proposed condition requiring it to enter into an agreement with the applicant and the CFA. We were unable to establish in any more detail just what those concerns were, despite questioning Mr Scale and asking him to be more specific. He stated that the responsible authority was "uneasy about the plan and about signing off on a Section 173 agreement under which its legal responsibilities were unclear".

7. We have examined in detail the proposed Fire Risk Management Plan prepared by Mr Nicholson and have had the benefit of his expert evidence. He was employed by the CFA for 32 years as an operational officer, rising to the rank of Deputy Chief Officer. From 1994 to 1999 he was Director, Risk Management, with the CFA, and since early 1999 has been a consultant specialising in bushfire loss prevention, including assessing bushfire risk and developing risk management plans in accordance with the provisions of the VPP Clause 44.06 Wildfire Management Overlay.

8. The Plan developed by Mr Nicholson and agreed to by the CFA as meeting its requirements is based on the proposition that the subject land is in a high fire risk area and that the owner has a right to elect to remain on his or her property and defend a dwelling in the event of a bushfire, a right enshrined in Section 31(4) of the Country Fire Authority Act 1958. That right was reinforced by a formal agreement in 1998 between the CFA, Victoria Police and DNRE which commits these agencies to doing their utmost to ensure their personnel understand this right and do not attempt to compel people to evacuate their homes in the event of a bushfire.

9. Features of the Fire Risk Management Plan include the provision of an appropriate water supply for fire fighting purposes, a water reticulation system with hoses, nozzles and connections which meet CFA requirements, a roof sprinkler/deluge system on the dwelling to prevent ember attack, the establishment of a Building Protection zone and a Fuel Modified Buffer zone, and construction of the dwelling in accord with Australian Standard 3959, Construction of Buildings in Bushfire Prone Areas. We accept the evidence of Mr Nicholson that in the event of fire the dwelling will be able to be successfully defended, that the dwelling itself will provide an adequate shelter should occupants need to shelter from radiant heat until the fire passes, and in all but the most extraordinary circumstances the dwelling would be saved. We are satisfied that Conditions 1, 2 and 3 of our Order, which have been proposed by the CFA and agreed to by the applicant will not result in an unacceptable risk to life or property.

10. Mr Scale submitted that in the event of a fire coming from the south-west, escape routes to the north and north-west were inadequate. We note that the Fire Risk Management Plan assumes that the occupants of the dwelling will not escape, but stay and defend the dwelling. But in any event the evidence of Dr Hadley, Mr Ridd and Mr Cooper was that there are a number of routes other than Davies Road and Boundary Road which may be traversed by two wheel drive vehicles. These include Wherrett's Track, Splitgerber Track and Old Logging Track. McCauley's Track and Monkey Creek Track also provide four wheel drive routes. Dr Hadley has also been provided with the keys to the locked gates of two adjacent properties and the written permission of the owners to use their access tracks.

11. Mr Scale submitted that tracks and roads other than Davies and Boundary Roads were not public roads, but tracks through State forest. In a letter from DNRE signed by T L Sloan, Statutory Planning Coordinator, Northern Region, it is stated that while these tracks are maintained for general fire protection and to enable the transport of forest produce, they may not always be adequately maintained and may even be closed temporarily or permanently by the Department. On that basis, Mr Scale submitted that escape routes were not adequate and could not be guaranteed. We do not consider that to be sufficient reason to refuse the application, given the existence of other routes and the Fire Risk Management Plan.

12. Mr Scale also submitted that because Davies Road and Boundary Road are signposted and are public roads, they are the only roads likely to be known by members of the public or by people making deliveries to the proposed dwelling and therefore in the event of a fire from the south-west such people would be exposed to unacceptably high risk. We do not accept that proposition. It is difficult to imagine what deliveries would be made to the proposed dwelling. But in any event members of the public use roads and tracks in the area now, including the tracks through the State forest, for walking, trail bike riding and the like. They will not experience any additional risk. Visitors will be urged as part of the Section 173 agreement to make contact with the owner prior to visiting during the summer months, but unannounced visitors are beyond the control of the owner, or indeed this Tribunal. We take the view that people must take some responsibility for their own welfare and could reasonably be expected to exercise appropriate caution and not visit either the subject land or the surrounding area on days of high risk, such as on days of total fire ban.

13. The Erosion Management Overlay also triggers the requirement for a planning permit to construct a building or carry out works. Mr Scale submitted that the objectives of the Overlay had not been met in that the development of the site would result in increased erosion. This is not so. The proposed development will not result in any increased erosion because the cur and fill forming the bench on which the dwelling is to be located is already there. The erosion abatement measures proposed by Mr McCullagh will remedy the rill erosion which has already occurred on the downslope face of the fill area and safeguard against erosion on the area cleared by the owner in 2000.

14. Mr Scale also submitted that the proposed dwelling would have adverse visual impact. This, too, is not so. The caravan on site can be seen from one spot on the Maroondah Highway just to the south of Alexandra. It can be seen, presumably, because it is white in colour. The conditions dealing with landscaping and the use of muted exterior colours will ensure that there is no adverse visual impact.

15. Towards the conclusion of the hearing Mr Liversidge made application for costs to be awarded against the responsible authority pursuant to Section 109(3)(c) and (e) of the Victorian Civil and Administrative Tribunal Act. These sections provide that the Tribunal may make an order for costs "only if it is satisfied that it is fair to do so, having regard to:

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant."

Mr Liversidge submitted that an award for costs was justified on the basis that:

no witnesses were called by the Responsible Authority;

there was no specific weakness identified, nor any specific criticism made, of either the Fire Risk Management Plan or the Section 173 agreement, either before or during the hearing;

there was no suggestion made, either before or during the hearing, as to how the Fire Risk Management Plan or the Section 173 agreement could be improved; and

the actions of the Council since the Fire Risk Management Plan was presented to it in April, 2000, suggests that it had not properly considered this Plan, but had simply taken the view that it did not want a house in this location.

16. We sympathise with Mr Liversidge in that we, too, experienced a good deal of frustration in this case in trying to identify just what was the case of the Responsible Authority. After a good deal of deliberation we have decided, on balance, that it would not be fair, within the meaning of Section 109 of the Victorian Civil and Administrative Tribunal Act in the particular circumstances of the case, to award costs. In the absence of evidence to the contrary we accept Mr Scale's submission that the initial application and the subsequent Fire Risk Management Plan were properly considered by the responsible authority. While we were concerned about the conduct of the Responsible Authority's case before us, we take the generous view Murrindindi Councillors and officers may well have been mistaken as to the interpretation of the provisions of the still relatively new VPP based Murrindindi Planning Scheme. We are also of the view that Mr Scale, having attempted during the hearing to include in his submission what he alleged were statements from various persons not in attendance and therefore not available for cross-examination, was genuinely mistaken as to what was admissible evidence before the Tribunal. There are lessons from this case to be learned by both the Murrindindi Shire Council and its officers and we trust they will be.