Mr Troy Spencer (consultant planner). Mr Spencer called evidence from Mr Cameron Ross whom is a qualified civil engineer.
[3]
The Applicant has challenged five conditions of the planning permit No. P2010/122 dated 31 May 2011 ("Permit") which allows the "use and development of land for a six (6) lot subdivision".
Bushfire Management Overlay (previously the Wildfire Management Overlay).
[6]
Clause 35.07 - a permit is required for the subdivision of land affected by the Farming Zone.
[7]
The subject land is roughly wedge-shaped, with the wider end being north-facing. The site consists of four existing lots with a total area of approximately 255 hectares, is quite scrubby and is undeveloped/vacant. Whereas the terrain on the western side of the site closer to Gap Road is more tempered, it is quite steep on the eastern side closer to Longwood-Ruffy Road. The site is currently used for grazing purposes.
This proceeding involves the land at 523 Gap Road in the rural area just south of Euroa known as Longwood. It currently consists of four lots and is quite scrubby, with local roads running alongside its western and eastern sides. The owner has sought planning approval to re-subdivide the site into six lots. Because of the steep terrain on the eastern side of the review site, all but one of the new lots would take its road access from Gap road to the west. Council has issued a permit for same, subject to 17 permit conditions. The owner has appealed against a handful of these conditions[1], notably Conditions 5 and 6 which require the owner to upgrade that section of both abutting roads alongside and extending several kilometres further north of the subject land.
The Tribunal hearing of this appeal was held before me on 28 November 2011 and an accompanied site inspection occurred on 15 December 2011. For the reasons set out below, I have found Conditions 5 and 6 to be invalid, and that these conditions cannot be severed from the balance of the permit. On this basis, my orders above direct that the whole permit is cancelled. My reasons explain the factors I have relied upon in reaching these findings, discuss some key previous Tribunal decisions dealing with bushfire risk issues, and conclude with some discussion of what I see as some important points coming out of this proceeding for future reference.
[10]
The Longwood township itself is located just to the north of that section of the Hume Highway as you approach Euroa from the south. If you then cross over to the south side of the freeway, the local road heading south towards the township of Ruffy branches off to become Longwood-Ruffy Road which continues almost due south. About 8 kilometres further south again, Longwood-Ruffy Road intersects with the southern end of Gap Road.
The wedge-shaped land holding extending north from this intersection is the review site for this proceeding. That is, the review site:
Consists of four titles and has an overall area of about 255 hectares.
Has Gap Road running along its western boundary (which is a gravel road in good condition) and Longwood-Ruffy Road extending along its eastern boundary (which is a sealed road, also in good condition).
Has other farm land adjoining its northern boundary.
The review site is currently unoccupied and is fairly scrubby. It is more undulating on its western side but has steeper terrain on its eastern side. The whole of the site is zoned Farming Zone and the northern third or so of the site is affected by a Bushfire Management Overlay (previously the Wildfire Management Overlay). Because the BMO gazetted on 18 November 2011 has transitional provisions[2], it was common ground at the Tribunal hearing that pursuant to these transitional provisions the correct overlay control for the Tribunal to apply is still the Wildfire Management Overlay.
Over the months leading up to May 2011, the site owner lodged with Council a permit application to more intensively re-subdivide the subject land. Although originally a re-subdivision for seven new lots was sought, this was later amended to a six-lot proposal. It is common ground that pursuant to the Farming Zone provisions, the minimum lot size for any subdivision in this locality is 40 hectares (see my further comments on this issue in the "Conclusion" further below). There is a permit trigger for the proposed subdivision under both the Farming Zone and also the BMO/WMO which affects the northern third or so of the site.
The Country Fire Authority is a Section 55 Referral Authority and was consulted regarding the proposal. By letter dated 7 January 2011 it advised that it did not oppose the proposal, subject to what I understand to be a fairly standard CFA condition being included in any permit which issues.
Council in due course considered and supported the proposal and issued a planning permit No. P2010/122 dated 31 May 2011 ("Permit") which allows the "use and development of the land for a six (6) lot subdivision". Council has subsequently acknowledged that the use of the words "and development" in this preamble was a mistake, and should be dis-regarded in practice. The Permit was issued subject to 17 permit conditions.
[11]
The site owner has since initiated a conditions appeal to the Tribunal against a number of these conditions. In summary, the key objections being raised relate to the conditions requiring the site owner to:
Enter into a Section 173 Agreement prior to the issue of any Statement of Compliance, whereby the owner agrees that no further subdivision of the new lots will occur (see Conditions 1 and 2).
At its expense carry out extensive roadworks to upgrade that section of both roads on either side of the subject land both alongside and extending several kilometres further north from the northern end of the review site[3] - see Conditions 5 and 6. I understand Council's key practical concern here to be that there needs to be sufficient trafficable width along the relevant sections of both roads for two cars and/or a car and a fire tanker to be able to pass each other in the event of a major bushfire event where there is thick smoke and more limited visibility. There is also some suggestion that Council considered this road upgrade to be a flow-on requirement of the standard CFA condition that was also included in the Permit.
It is common ground that the section of Gap Road extending several kilometres further north from the review site already provides road access to a number of other existing dwellings.
The hearing of this matter came before me on 28 November 2011. Although his report was not pre-circulated or in a format as I would expect with an expert witness report, after some discussion with the parties, I allowed the Applicant to call Mr Cameron Ross who is a civil engineer to speak to a written report he had previously prepared (and this report was tabled).
The most hotly contested issue at the hearing was the appropriateness or otherwise of Council's permit condition requirement that the two adjoining roads be upgraded by the Applicant. As part of this discussion, Ms Kubeil on behalf of Council advised that if the Tribunal was minded to strike out the permit condition requiring the upgrading of the two roads, then Council's position was that:
Council regards the requirement to upgrade the two roads as central to its issuing of the Permit.
Accordingly Council does not believe that the relevant permit condition can be severed from the balance of the Permit, but rather that in this situation the whole Permit would need to be cancelled.
It became clear during the hearing that there was some fundamental confusion/disagreement between the parties regarding:
Whether there was any link between Council's desire that the relevant upgrade of the two roads occur and the wording of the standard CFA permit condition.
Whether or not the CFA had inspected the two roads during the period before the hearing.
Whether or not the CFA supported the proposed permit condition requiring the upgrading of the two roads.
In light of this confusion, I arranged for a CFA representative (Mr Mark Williams) to attend at an accompanied site inspection which occurred on 15 December 2011. Apart from Mr Williams, Council was represented by its planner Ms Kubeil and the Applicant by its planner Mr Spencer as well as Mr Ross.
The accompanied inspection began at the top end of the relevant sections of both roads, where there was a discussion of where the process had got up to and clarification of the CFA's position. Mr Williams indicated that he had already driven both sections of road in question and in summary he advised me that:
There is no link between the wording of the standard CFA condition and Council's desire that the two relevant sections of Gap Road and Longwood-Ruffy Road be upgraded. Where sub-clause (b) of the standard CFA condition refers to there needing to be a six metre minimum width of a "trafficable road" (or an alternative installation of passing bays), Mr Williams indicated that this requirement is only intended by the CFA to apply to the width of the private driveway which a fire tanker might need to traverse within the boundaries of any one site.
Whilst the relevant section of Longwood-Ruffy Road is superior to the relevant section of Gap Road, both sections are in quite good condition and have a respectable road width.
In relation to both relevant sections of road, he did not see any real concerns with there being sufficient trafficable width for a fire tanker to be able to pass a vehicle coming the other way in a major bushfire event.
Over the balance of the accompanied inspection process, we drove along the length of the relevant section of Gap Road, stopping occasionally to review the road conditions. After the parties and the CFA kept going, I drove back along the relevant section of Gap Road and then drove the relevant length of Longwood-Ruffy Road. I returned to Melbourne via Ruffy using the local roads extending further south.
[12]
As they were the main single focus of the discussion at the Tribunal hearing, it seems worth setting out in full Conditions 5 and 6 from the Permit.
Prior to the issue of Statement of Compliance for the subdivision the Applicant/ Owner must upgrade/construct the whole length of Gap Road starting from Longwood- Ruffy Road at North end of Gap Road up to the Longwood -Ruffy Road at South end of Gap Road and the whole length of Longwood- Ruffy road starting from Faithfull Road up to South end of Gap Road to the satisfaction of the Responsible Authority. Specific details of road construction and extent of works as follows:
Gap Road: The minimum width of the trafficable road must be six (6) metres with minimum 250mm of approved gravel along the whole length of the road.
Longwood- Ruffy road: The minimum width of the trafficable road must be six metres along the whole length of the road; however, a four metre trafficable width is permitted provided there is a passing bay every 200 metres. The combined width of passing bay and trafficable road must be six metres and the passing bay must be 20 metres long.
These works must include the investigations, design and construction including provision of all signage and line marking works.
During the execution of construction works, the Traffic Management must be conducted in accordance with a Traffic Management Plan prepared as per relevant Australian Standards and approved by the Responsible Authority.
Prior to the commencement of any road construction works, plans to the satisfaction of the Responsible authority must be submitted for approval. The plans will be endorsed and will form part of the planning permit, the plans must show:
The investigations, design, specification and construction of the proposed works prepared by a qualified Engineer at the Owner's expense.
I have also set out below the first two sub-clauses of the CFA permit condition ie Condition 14 (with my highlighting).
[13]
CFA Conditions:
Access
(a) There must be no obstructions within one metre of the edge of the formed width of roads at any time, and there must be four metres height clearance above all roads.
(b) The minimum width of the trafficable road must be six metres, however, a four metre width is permitted provided that there is a passing bay every 200 m. The combined width of the passing bay must be 20 m long.
[14]
Relevant case law regarding whether or not a contentious permit condition is acceptable
[15]
The case of Domus Designs Pty Ltd v Frankston City Council[4] provides a useful summary of the test which the Tribunal normally applies, in terms of the relevant case law as to the acceptability of a contested planning permit condition. At page 23 of this Domus decision, the Tribunal stated as follows :
[16]
To be valid, a condition in a planning permit must fairly and reasonably relate to the permitted development or the condition must be reasonably capable of being regarded as relevant to the implementation of planning policy as ascertained from the P E Act and relevant planning scheme.
[17]
Some other landmark decisions here which provide useful guidance include Pyx Granite Co Ltd v Ministry of Housing and Local Government[5], 271 William Street Pty Ltd v City of Melbourne[6] and Rosemeier v City of Greater Geelong (No 1)[7].
[18]
Bushfire Royal Commission and previous key Tribunal decisions
[19]
Common sense indicates that it has long been the case that those scrubby areas around the edges of Melbourne and in other rural areas of Victorian involve an inherent level of bushfire risk. However it seems fair to say that the devastating Black Saturday bushfires in February 2009 that burnt about 430,000 hectares of land, destroyed more than 2,000 homes and claimed 173 lives have been a game-changer in terms of the Victorian community's response to bushfire risks. Some examples of major change since February 2009 are:
An up-resourcing of the role of the CFA.
The comprehensive report prepared by the 2009 Victorian Bushfires Royal Commission.
The on-going debate about fire safety measures such as controlled burning and dealing with power supply issues.
A review of the extent of the WMO/BMO overlay map areas, bearing in mind that a significant proportion of the areas burnt in the Black Saturday fires were not affected by a WMO.
The new Bushfire Management Overlay control gazetted on 18 November 2011.
A number of key Tribunal decisions dealing with bushfire management issues.
With respect to the Royal Commission report, it very much highlights the need for greater emphasis on the protection of human life, as per the following passage from its "Introduction"[8] (with my highlighting):
[20]
THE PROTECTION OF HUMAN LIFE
The great loss of life and widespread destruction of property were what prompted the Premier Brumby to establish the Commission. It is fitting therefore that the protection of human life is paramount in all the Commission's recommendations. This notion of protection of human life being paramount has implications for the balance that is struck between competing community objectives. In the context of bushfires, ensuring the protection of human life means that sometimes compromises need to be made with people's freedoms to choose where they want to live or the existence of pristine environments close to townships.
[21]
Some other relevant points from the Royal Commission final report were:
The need for the planning framework and planning decisions to give more explicit consideration to bushfire risks and in particular the potential risk to human life[9].
The need to review the WMO and State Wildfire Policy[10].
The need for the revised planning framework to restrict or in some cases strongly discourage development in areas that are known to pose an unacceptable bushfire risk[11]. The report noted that in the recent three year period it had reviewed, 2,866 permit applications were referred to the CFA, of which the CFA objected to 24[12].
In relation to the Masten Bennett decision discussed below, the Royal Commission commented that this decision "...may give some indication of the approach to be taken in such matters in the future"[13].
In relation to the key Tribunal decisions, a good starting point is Masten Bennett & Associates v Nillumbik SC[14]. This case involved the Tribunal rejecting a subdivision application with respect to a relatively isolated site in St Andrews affected by a WMO. Whilst the CFA had not opposed the proposal, the Tribunal had unresolved fire safety concerns at a broad level. The Tribunal expressed surprise at the CFA's approach of focusing simply on the fire risk attributes of the site, rather than taking into account its broader context. The discussion at the Tribunal hearing included concerns being raised by Council and some neighbours whether the bushfire risks had been adequately considered, with reference to the long winding nature of the proposed access road to reach the new lots and the steep nature of some of this road. The Tribunal ultimately affirmed Council's Notice of Refusal.
Some other relevant Tribunal bushfire management decisions include Buchanan v Mornington Peninsula SC[15], Cock v Nillumbik SC[16], Hocking v Northern Grampians SC[17], R & J Taylor v South Gippsland SC[18], Carey & Ors v Murrindindi SC[19], Marsden v Macedon Ranges SC[20], Jones v Wangaratta RC[21], Wellesley v Hepburn SC[22], Cluff v Ballarat CC[23], Lester v Yarra Ranges SC[24], Printz v Glenelg SC[25], James Iles TGM Group Pty Ltd v Ballarat CC[26] and Robertson v Mornington Peninsula SC[27]. Some of the key points to consider coming out of these cases are as follows:
One lesson from Black Saturday is the ability of bushfires in extreme bushfire risk conditions to cover large distances and change direction quickly. For example, a number of fatalities on Black Saturday involved people on roads trying to outrun the bushfire in vehicles. This in turn means that the window of opportunity for affected persons to escape major bushfires to safer areas may be quite limited. See discussion of this issue in the Marsden decision.
Bearing the above in mind plus the Royal Commission's emphasis on protecting human safety, there may be real limits to the ability for landowners to safely subdivide and/or develop lots in more remote and inherently fire-prone areas, which for example led the Tribunal to issue a refusal in the Masten Bennett, Hocking and Taylor decisions. However also see the Jones decision where the Tribunal supported a proposed dwelling in a more remote location subject to the applicant being required to upgrade the nearest section of the local access road to an all-weather standard. These issues can particularly arise in heavily vegetated areas, where there is a long private driveway to reach a proposed dwelling location, where the access road to the subject land or driveway is sandy and/or rough, in areas with steep, narrow and/or unsealed roads and/or with areas with very limited road network options for escaping a bushfire. It needs to be understood that in a major bushfire event, the CFA may not have the resources to send a fire tanker to all threatened locations, and may also regard some high risk locations as posing an unacceptable threat to the safety of its own crews.
The Tribunal may itself find the bushfire risk to be unacceptable even where the CFA does not oppose the proposal or where the subject land is not affected by a WMO/BMO - see the Masten Bennett, Taylor and Marsden decisions.
There may be different considerations at play in terms of how to deal with the bushfire risk for property, compared to the bushfire risks for the loss of human life, as was discussed in the Carey case.
Where it is proposed to build a community building in a bushfire prone area, the community benefits of such a facility need to be weighed against the greater risk to human life that arises if a large group of people are using such a building on a day when a major bushfire event arises - see the Carey decision.
A practical consideration for the planning decision maker can be whether the level of fire risk affecting the day to day use of a community facility can be reduced by appropriate signage combined with appropriate permit condition controls eg a permit condition requirement that a community facility must remain closed on a designated extreme fire safety day and that signage must confirm that the facility is not a designated fire refuge and indicate where the nearest one is. These type of conditions formed part of the Tribunal approval in the decision.
[22]
Council's consideration of this six lot re-subdivision proposal
[23]
Taking into account the lessons coming out of the Royal Commission report and these key Tribunal decisions, my view is that Council's consideration of this six lot subdivision should have involved a meaningful analysis of whether or not facilitating the more intensive development of the subject land would or would not be an acceptable planning outcome in terms of the bushfire risks involved. I rely here not only on the fact that the northern section of the subject land is affected by a WMO/BMO, but also keeping in mind that this is a relatively remote and scrubby location involving a site which includes some steep terrain.
Given that this is a subdivision proposal for land zoned Farming Zone, I would also normally expect the permit application materials to include a Land Capability Assessment, and the Delegate Report to include an analysis of the ability of the proposal to meet the objectives of the Farming Zone. However I understand from what was said at the hearing that no Land Capability Assessment was provided and it is not obvious to me at a glance how re-subdividing the review site from 4 to 6 lots would promote these Farming Zone objectives.
In contrast to my expectations set out in the two paragraphs above, I am very surprised that the Council Delegate Report contains several pages worth of background information but virtually no meaningful analysis of either the bushfire management aspects of the proposal or its compatibility with the objectives of the Farming Zone. For example, the discussion under the headings "Summary of key issues" and "Conclusion" makes no reference at all to the objectives of the Farming Zone or to the WMO/BMO bushfire issues.
[24]
Even if Council may have had good intentions in including Conditions 5 and 6 in the granting of the Permit, these conditions still need to meet the test of validity for permit conditions as summarised in the Domus Designs decision referred to above.
My finding is that I am unconvinced that Conditions 5 and 6 can be justified either as fairly and reasonably relating to the proposed six lot subdivision, or as being sufficiently relevant to the implementation of planning policy.
In relation to the requirement under Conditions 5 and 6 to upgrade the trafficable width of about 8-9[28] kilometres of each of the two roads running either side of the appeal site, I consider this to be an excessive and onerous requirement that is quite disproportionate to the approval being granted by the permit. While there would at least be more room for debate if just the sections of road alongside the review site were required to be upgraded, what Conditions 5 and 6 require is that the trafficable width of each road be upgraded for several kilometres of each road extending further north beyond the appeal site[29].
Where the Applicant at the hearing indicated that the likely cost of this required road widening just for Gap Road would be in the order of $1 million plus, Council did not particularly contest this cost estimate. I have real sympathy for the Applicant's submissions that:
for a relatively modest subdivision proposal as in question here, a requirement that the landowner carry out at least $1 million worth of roadworks that includes upgrading sections of road extending well to the north beyond the subject land is misguided and an overkill; and
the default position with these type of broader roadworks beyond the appeal site is that they are Council's responsibility, and no good reason has been shown here to depart from this premise.
These major shortcomings of Conditions 5 and 6 are reinforced by the fact that the CFA as a referral authority:
did not object to the proposal; and
indicated to me at the accompanied site inspection that it regards the existing condition and trafficable width of the two roads to be acceptable from a bushfire risk perspective.
The CFA's position set out in the 2nd bullet point above is consistent with my own impression from my site inspection that both relevant sections of road are in good condition and that most of the relevant road areas are wide enough for one vehicle to be able to safely pull over so as to allow another vehicle or a fire tanker to pass by in a major bushfire situation. It is also reinforced by the report provided during the hearing by the Applicant's civil engineer Mr Ross, who gave evidence regarding his view that the two road sections in question carry a quite modest typical level of traffic, are in reasonable condition and already offer an adequate trafficable width without requiring further road widening.
As I indicated during the site inspection, while it might have had worthy intentions, I am surprised that Council chose to impose Conditions 5 and 6 apparently without any prior consultation with the CFA.
In relation to the need for Council to assess the bushfire risks arising from this proposed six lot re-subdivision of land which is in part affected by a WMO/BMO, the appropriate approach in my view would have been for Council to tackle this issue on an up-front basis. Following this approach, I would expect a thorough discussion of the relevant bushfire risks in the Delegate Report. If the Delegate Planner and/or Council ultimately took the view that unreasonable bushfire risks arise from the trafficable width or poor condition of several kilometres of the local road network leading in to the subject land, I would have expected Council to issue a Notice of Refusal.
By contrast, what has actually occurred is that the discussion in the Delegate Report has virtually ignored the bushfire risk issue, yet the Delegate Planner and Council have taken a position of general support for the proposal subject to the requirements of Conditions 5 and 6. It is hardly surprising then that there are major problems as discussed above with Conditions 5 and 6, and that they have a "half-baked afterthought" flavour to them.
My findings here are consistent with those of the Tribunal in Jones v Wangaratta RC[30]. In that case Senior Member Rickards was considering the proposed development of a dwelling in a location about 10 km out from the Wangaratta township. The dispute between Council and the proponent included the extent to which the proponent needed to upgrade the access road (Adams Road) leading to the subject land.
As part of approving the proposal, SM Rickards observed that "...Adams Road is a public road that is required to be maintained by Council". However Ms Rickards did require the proponent to pay for the upgrading of the final 385 metre section of Adams Road leading to the closest boundary of the subject land, on the basis that (but for the proposed dwelling on the review site) there would be no other dwellings taking road access off this section and hence no practical reason for Council to keep this final section of road upgraded to the higher standard. By contrast, if one returns to the facts before me, one would expect Council to already be adequately maintaining that section of Gap Road extending several kilometres north from the review site, because this "further north" section of road already provides road access to a number of other existing dwellings.
To the extent that Conditions 5 and 6 were imposed by Council in the belief that this was required due to the standard wording of sub-clause (b) of the CFA standard condition (which is quoted above), the CFA officer Mr Williams made it clear at the site inspection that sub-clause (b) is only intended to apply to the private driveway arrangements within the boundary of the subject land.
[25]
Are Conditions 5 & 5 severable from the balance of the permit?
[26]
Council's position has been that if the Tribunal finds Conditions 5 and 6 to be invalid, then Council believes these two conditions cannot be severed from the balance of the Permit, and the whole Permit should be cancelled on this basis. This was opposed by the Applicant.
Pursuant to Section 85(1)(g) of the Planning and Environment Act1987, the Tribunal may cancel a permit if it upholds a conditions appeal, and also "...considers that the permit should not or would not have been granted without the condition".
The relevant criteria to be considered by the Tribunal with this type of "severability" issue are usefully discussed in Quinn Industries Pty Ltd v City of Mordialloc[31] and also Day v City of Nunawading[32]. In Quinn Industries[33] the Tribunal usefully lists the following key criteria in finding in that case that severance could occur:
[27]
...It [ie the relevant permit condition] is not fundamental to the whole of the planning permission or (sic) go to the root of the planning permission itself. It can be deleted without affecting the actual grant of the permission. The condition does not limit the manner in which the site can be used or developed....
[28]
In the circumstances here, my finding is that Conditions 5 and 6 were fundamental to and do "go to the root of" Council's issuing of a planning permit for the proposed six lot subdivision, such that it is clear to me that Council would not have issued the Permit without Conditions 5 and 6 included. I rely here on Council's advice to the Tribunal that Council regarded Condition 5 and 6 as central to its support for the proposal. This is consistent with the information available to me - neither the Delegate Report nor any other Council documentation shown to me indicates any other alternative basis on which Council satisfied itself regarding the relevant bushfire risks.
In summary, my finding is that:
Having regard to the relevant caselaw, the key criteria to be considered in this type of "severance" dispute points to Condition 5 and 6 being fundamental to Council's issuing of the Permit.
Following the relevant wording in Section 85(1)(g), it is clear to me that the permit "would" not have issued, had Council not been able to utilise Conditions 5 and 6.
On this basis, my view is that Conditions 5 and 6 cannot be severed from the balance of the Permit.
This leaves the Tribunal with no choice but to make orders cancelling the whole Permit - see above.
[29]
Although a wider range of permit conditions have been challenged by the Applicant, the key focus at the hearing and in my deliberations has been Conditions 5 and 6, which require the permit holder to carry out roadworks to substantial sections of both adjoining roads. I have found these conditions to be invalid, and that they cannot be severed from the balance of the Permit, with the result that the whole Permit must be cancelled.
[30]
In this situation, it is unnecessary for me to deal in any formal way with the other contentious permit conditions. However it seems useful to provide my initial impressions on two other general issues.
In terms of the discussion of the contentious permit conditions at the hearing, the other main focus was the reasonableness or otherwise of Council's requirement through permit conditions 1 and 2 that the permit holder enter into a Section 173 Agreement providing that no further subdivision of the six new lots can occur. While the Applicant submitted that these conditions are overly harsh and unnecessary, Council defended them solely on the basis that:
The future owners of the six new lots might try to rely on the "small lot excision" provisions of the Farming Zone in question, which in theory could lead to another six lots again being created.
Council considers any such additional lots created in this way to raise unreasonable bushfire safety issues.
Until the Applicant can put forward a convincing case that even six (let alone up to 12) revised lots on the subject land is an acceptable bushfire risk outcome, my preliminary view is that a restriction on further re-subdivision seems reasonable. If this basic benchmark can be met, then there would need to be a further debate whether leaving the potential for future small lot excisions is acceptable, or whether the better approach in terms of bushfire risk management is to require the proponent to agree to no further subdivision via a Section 173 Agreement. If the Applicant still wishes to push forward with the project, this is now a debate for another day.
The second issue is as follows. The existing parcel of land consists of four lots. Three of them are larger lots, which each have an area of between 75-88 hectares. However there is also a much smaller 8.9 hectare lot at the very southern end. I understand that following discussions between the Applicant and Council's Planning Department, the original 7 lot subdivision proposal was amended in such a way that Council as a two-step process:
initially approved what it refers to as a "procedural plan of subdivision", which effectively merged the southern 65% or so of the combined land holding so as to instead create a new 15.6 hectare lot oriented to the east and a balance lot of 151.3 hectares; and then
allowed this new 151.3 hectare balance lot and the remaining area of the land holding further north to be subdivided into six new lots which each have an area of precisely 40 hectares.
I consider this two step process to be questionable from both a legal and a planning perspective. For example, it is not clear to me how the creation of a new 15.6 hectare lot pursuant to the "procedural plan of subdivision" sits with the fundamental requirement under the Farming Zone that any new lot have an area of at least 40 hectares. I acknowledge that Clause 35.07-3 of the Planning Scheme does provide three exemptions whereby smaller lots may be permitted. However bearing in mind that there is no existing dwelling on the review site and that the Applicant is resisting the permit condition requirement of a Section 173 Agreement prohibiting any further subdivision, even on literal interpretation of Clause 35.07-3, my initial impression is that none of these three exemptions apply here.
However if one more looks for the broad planning objective which Clause 35.07-3 is trying to achieve, I also have real concerns in terms of "orderly planning" that this two-step process fails to honour the basic planning intent that any new lots created by the subdivision process should be at least 40 hectares in size. I say this because the practical reality is that this two-step process in totality facilitates seven new lots being created, the smallest of which is 15.6 hectares in size. I am struggling to see that this is the type of practical outcome with the draftspersons of Clause 35.07-3 would have intended.
[31]
Final comments on bushfire management points arising from this proceeding
[32]
Before finishing, it seems worth recognising some important bushfire management points coming out of this proceeding, that may deserve follow up action or at least consideration as part of comparable future subdivision and/or dwelling applications involving land affected by a WMO/BMO.
First, the circumstances in question here indicates some confusion with how to interpret the words "trafficable road" in sub-clause (b) of what I understand to be the standard CFA permit condition. If (as I was told by Mr Williams at the site inspection) the CFA intention is merely that that sub-clause (b) apply to the private vehicle access arrangements within the boundaries of the review site, it would seem far preferable to use words like "private driveway" rather than "road". There would seem real benefit in this type of correction to sub-clause (b) being implemented by the CFA at the earliest opportunity.
Second, it is not a good look for this Council that the issues of "bushfire risk" and "the compatibility of the proposal with the objectives of the Farming Zone" appear to have been lost along the way in the discussion of the key issues in the Delegate Report. In my view the Delegate Planner had an obligation to turn his or her own mind to the relevant bushfire management issues raised by the proposal, even where no objection has been raised by the CFA. Most of the contents of the Delegate Report consists of background information and there is virtually no meaningful analysis of the key planning issues arising. Whilst in general terms this is a poor result, it is all the more disappointing given the important bushfire risk management issues arising from this type of proposal.
Whilst this type of proposal may raise some awkward and strongly contested bushfire safety issues, all stakeholders need to tackle these issues head on, rather than ducking the fundamental issue. Just because a particular landholding might be capable of having a dwelling built on it or is big enough to potentially be more intensively subdivided should not make these outcomes a fait accompli. There may be some locations with a very high inherent bushfire risk where the Royal Commission report indicates that the planning framework should be strongly discouraging further development. In the particular circumstances here, there also seems a fundamental debate to be had about how the re-subdivision of the subject land from four to six lots will advance the objectives of the Farming Zone, as opposed to potentially creating hobby-farm style lots with a likely rural-residential type of future use.
Third, the major problems arising from Conditions 5 and 6 highlight the need for sensible consultation between Councils and the CFA in terms of whether or not any form of planning approval is given in bushfire prone areas, and if so, what appropriate "checks and balances" should be imposed through the permit conditions. One wonders if Conditions 5 and 6 would have found their way into the Permit if Council had sought the CFA's view on same prior to Council resolving to support the proposal.
Finally, the circumstances of this case reinforce that the Black Saturday bushfires and the resulting Royal Commission report have been a game-changer in terms of how the planning process must deal with permit applications involving land in more remote locations affected by a WMO/BMO. While each case needs to be assessed on its own merits, it cannot just be assumed that the relevant bushfire risks can be adequately dealt with by way of the creative use of permit conditions. Rather, planning decision makers need to recognise the new paradigm we are all working in and be very mindful of the need for greater emphasis on the protection of human life, as per the Royal Commission report.
Following this new approach, it may be that some parts of Victoria are so remote and inherently bushfire prone that even a raft of potential permit conditions may not change the fact that any additional development facilitating more intensive human activity is a poor planning outcome. Either way, what is needed is a genuine, up front and rigorous assessment of the bushfire risk issues as part of the assessment of more problematic planning proposals in bushfire prone areas, including well written Delegate Reports and a holistic tackling of bushfire issues by the planning decision maker.
[33]
[2] See Clause 44.06-8. The key feature of this provision for my purposes is that it provides that any permit application lodged before 18 November 2011 continues to be dealt with under the Wildfire Management Overlay provisions.
[34]
[3] To be precise, Condition 5 requires the upgrade of that section Gap Road which falls within its intersection with Longwood-Ruffy Road both to the north and the south. The section of Longwood-Ruffy Road to be graded is from its more northern intersection with Faithful Road extending south down to its intersection with Gap Road.
[28] Page 5 of the Applicant's written submission indicates that Conditions 5-6 in practice require an 8.1 km section of Gap Road to be upgraded and a 9.4 section of Longwood-Ruffy Road. These estimates were not in themselves challenged by Council at the hearing.
[57]
[29] The previous decisions of Preston v Ararat Rural CC[2011] VCAT 2254 and Pauline Yann v Ararat Rural CC[2011] VCAT 2090 are examples of the Tribunal finding it easier to uphold permit conditions requiring the permit holder to meet the cost of road upgrades directly alongside the subject land.
Land Management Surveys v Strathbogie SC (includes Summary) (Red Dot) [2012] VCAT 77 (19 January 2012)
Carey
It needs to be assessed whether a proposed building/fire refuge facility in an area affected by a WMO/BMO has been suitably designed including its designated Bushfire Attack Level rating, and whether any such structure is expected to be located in a direct flame zone area - see the Marsden, Printz and Carey decisions. With proposed dwellings and fire refuges, the planning decision maker also needs to keep in mind that the occupants involved will not necessarily move away to safer areas in extreme fire conditions, but may take a "stay and defend" approach.
The adequacy of the proposed buffer areas or "defendable space" is critical, and particularly important when any one occupant takes a "stay and defend" approach in a major bushfire event. A potential complication here is whether the defendable space which the Applicant wishes to rely upon falls within the boundary of the review site, or whether this space includes other separately owned land in relation to which the Applicant cannot guarantee how well the vegetation on that other land will be managed - see for example the Lester, Wellsley and Cluff decisions.
Where any one owner seeks to locate a dwelling on a bush block affected by a WMO/BMO, priority may need to be given to choosing the best part of the site for minimising bushfire risks, regardless of the available views etc. An owner who insists on doing otherwise can leave the planning decision maker with little choice but to refuse the proposal as involving excessive bushfire risk, as occurred in the Robertson decision.
There may be tension between the bushfire risk management benefits of clearing substantial vegetation around the site of a proposed or likely future dwelling vis-à-vis other overlay controls seeking to protect the local conservation, biodiversity or landscape values and/or the need for net gain offset planting, as is discussed in the Masten Bennett and Cock decisions. Also see the Buchanan case, where the Tribunal rejected a dwelling proposal in Cape Schank that involved seeking to remove 90% of the vegetation on a very scrubby 900 sqm lot, despite the site being affected by two overlay controls seeking to protect the vegetation/landscape values. Ironically the Tribunal found that there would still be an unresolved bushfire risk even if such clearing was allowed. A variation on the same theme is the James Iles decision which involved a site affected by both a WMO and an overlay seeking to protect valued koala habitat.