The decision of the Responsible Authority is confirmed.

In application No. P09/2664, it is directed that no permit be issued.

Mr I Pitt S.C., Best Hooper Solicitors. Mr Pitt called expert evidence from M J Nicholson in relation to bushfire risk.

Application under Section 79 of the Planning and Environment Act 1987

Dwelling and associated vegetation removal and earthworks.

Clause 22.11 Mornington Peninsula Fire Protection Policy

Masten Bennett & Associates v Nillumbik SC [2010] VCAT 900; Printz Pty. Ltd. vs. Glenelg Shire Council, Country Fire Authority and Others (P721/2010); Buchanan v Mornington Peninsula SC [2002] VCAT 1752; Peter Carey & Others v Murrindindi Shire Council, Flowerdale Community House (P2909/2010)

1. Application No. P09/2664 was lodged with Mornington Peninsula Shire Council on 22 December 2009 to develop No. 41 Wildcoast Road, Portsea with a two storey dwelling.
2. The application consists of:
   • A dwelling which contains a games room, laundry, four bedrooms and four bathrooms at ground floor entry level. The dwelling also contains a lounge, kitchen, dining area, main bedroom with ensuite, study, office and large deck at the first floor level.
   • A garage is incorporated into the design at the lower level;
   • Vegetation removal of approximately 0.17 hectares of high conservation significance coastal scrub;
   • A tennis court, pool and cabana (with a maximum height of 3.5m) separated from the dwelling by about 35m;
   • A 2m high stone wall fence on part of the south west and north west boundary;
   • Excavation and fill of up to 2 metres.
3. The dwelling will have a height of up to 8m above natural ground level and will have a wall height of 6.7m.
4. The dwelling is to be setback 5m from its north west side and 10m to the Point Nepean (Mornington Peninsula) National Park boundary to the south west. There is a 4m wide concrete driveway proposed which is accessed from a common property access road leading off Wildcoast Road.
5. The building is to be timber clad with foam insulation and a rendered finish. The roof is colorbond and the window frames are to be aluminium.

1. I inspected the subject site and the surrounding area on Thursday, 9 June 2011.
2. The site is an irregularly shaped lot with an area of about 7,420 m². It is presently vacant. Evidently, the lot was first created in about 1993 and it has a covenant on title which sets a height limit at 45m AHD.
3. The site has extensive vegetation cover and it falls approximately 10 metres from the point of common property access in the north west to the relatively flat land in the centre of the site. From here it falls about a further 10 metres to the Exeter Close frontage at the east. The flat parcel of land in the central part of the site is cleared and there is quite dense vegetation to the east and west of this clearing. I was advised that the native vegetation on the site includes Coastal Alkaline Scrub (EVC 858) and a small area of Coastal Moonah Woodland. There are a few old Moonah trees and several large old Coast Tea-trees on the site.
4. As noted, the site abuts a common property accessway connecting to Wildcoast Road. The site also has frontage to Exeter Close to the east although no access is proposed at all from this point. Exeter Close to the east has a number of detached houses fronting it. There is vacant land to the north west and to the north east and some of this land is also densely vegetated.
5. Mr. John Nicholson gave expert wildfire management evidence on behalf of the permit applicant. His assessment of the vegetation characteristics of the site and adjoining land is relevant and I have recited it here in full.

Adjoining to the south-west for the full length of the subject land and extending further north in excess of 1,000 metres is the Point Nepean National Park, with the vegetation broadly classified as shrub and heath (but with some Tea-tree, Coast Beard-heath and limited Moonah, with an average canopy height of six (6) metes) according to classification of vegetation in AS 3959-2009 and Building in a Wildfire Management Overlay Applicant's Workbook 2010.

This area of the national park is approximately 400 metres wide at the western end of the subject land, but further north varies considerably in width and continuity of vegetation due to the effect of wind on the sand dunes.

Adjoining the north-western boundary of the subject land ........ I have classified the vegetation on that hill the same as for the adjoining park, but add that it is a lot sparser than the nearby areas of the Park.

Adjoining the northern boundary of the subject land to the rear fences of dwellings on 26, 28, 30 and 31 Stonecutters Road and 12 Exeter Close, I have classified the vegetation the same as for the Point Nepean National Park.

From where the shrubland finishes (western side and general north of the subject land) anti-clockwise to the National Park boundary I have classified the predominant vegetation as generally grassland and a developing residential subdivision at the eastern side.

1. I note that when he gave his evidence, Mr. Nicholson suggested that, based on his inspections, the canopy height of vegetation within the national park was more like 3m rather than 6m as he had originally estimated. This more or less accords with my observations on inspection.

1. The subject site is affected by one zone and three overlays being:
   • Low Density Residential Zone;
   • Design and Development Overlay - Schedule 5: Low Density - Wildcoast Protection Area (DDO5);
   • Vegetation Protection Overlay - Schedule 1: Township Vegetation (VPO1);
   • Wildfire Management Overlay (WMO).
2. I note that the last of these overlays (the WMO) was not in place at the time the permit application was made. However, Amendment C9 in February 2010 (that is, about two months after the application was lodged) introduced the WMO for the first time to extensive areas of the Mornington Peninsula. The WMO applies to all of the subject site and to vast areas all around this part of Portsea and Sorrento.
3. The permit 'triggers' in the application are extensive being:
   • DDO Clause 43.02-2 which requires a permit for buildings and works.
   • VPO Clause 42.02-2 which requires a permit for the removal of vegetation.
   • WMO Clause 44.06-1 which requires a permit for buildings and works.
   • Clause 52.17 (Removal of Native Vegetation) which requires a permit for the removal of native vegetation as the area of the site is greater than 0.4 hectares.
   • Clause 52.21 (Private Tennis Court) which requires a permit to construct, use or illuminate a private tennis court if the land is in a Vegetation Protection Overlay and a permit is required to remove, destroy, prune or lop a tree or vegetation.
4. I will go to the details of these controls later.
5. There are also numerous State and local provisions that I need to have regard to and I will also address these later.

1. The processing of this application is relevant.
2. After receipt of the permit application in December 2009, Council advertised it in the normal manner. Thirteen objections were received and Council noted that all of these objections related to the proposal having an access point from Exeter Close and to a large shed that was to be constructed close to that road.
3. The WMO was then introduced on 11 February 2010.
4. The application was subsequently amended on 9 March 2010 by deleting the proposed shed and access point off Exeter Close. I was advised by Council that none of the original thirteen objectors now oppose the application.
5. Council also sought the views of its internal departments.
6. The Environmental Health Officer had no objection to a planning permit being issued subject to conditions relating to all wastewater from the dwelling being treated and detained within the boundaries of the property via an EPA approved sewage treatment plant.
7. Under the various overlays, Council was obliged to refer the application to DSE for vegetation removal. After February 2010, Council was also obliged to refer the application to the CFA for wildfire purposes.
8. While I will address these responses in detail later, I note at the outset that DSE did not object subject to conditions; but the CFA did object.
9. Prior to making a decision on the application, the permit applicant lodged a "failure" appeal on 17 December 2010.
10. This matter was listed for a directions hearing at the Tribunal on 21 January 2011 at which the Tribunal ordered that the Country Fire Authority file and serve on the parties, a Statement of Grounds with further and better particulars relating to:
    • Its assessment of potential radiant heat.
    • Its assessment of the proposal as a fire engineered solution.
    • All modelling it had undertaken of the proposal.
    • All calibration of the model it had used in its assessments.
    • Details of the inputs into the model used in its assessments.
    • Details of the outputs from the model used in its assessments.
    • Its response to, and assessment of, the "Performance Based Fire Engineering Brief dated 15 July 2010 Report No 2809".
11. In response to this order, the CFA filed advice that it would rely at the hearing on grounds including that the proposed siting of the dwelling placed it in the Flame Zone (FZ) and within possible direct flame contact. In addition, the CFA relied on the state section of the planning scheme (Protection from Wildfire). It also noted that Clause 44.06 of the scheme (Buildings and Works) states that "....the siting of any building in relation to slope, access, aspect, orientation and vegetation must minimise the fire risk to life and property".
12. The CFA further pointed out that the applicant had not provided any evidence that alternative siting options had been considered that might lessen the risk from wildfire. In that context, the CFA advised that its analysis of the site indicated that there were alternative siting options available that would expose the subject dwelling to a lower level of radiant heat and therefore improve the safety of the occupants.
13. I will deal with the detail of this (and other) submissions later.
14. In May 2011, Council advised the Tribunal that had it been in a position to determine the application it would have refused the proposal on the following extensive list of grounds:

1. The proposal fails to meet the objectives of the Mornington Peninsula Planning Scheme in that the design does not respond to the features of the site or the surrounding area which includes an abuttal to the Mornington Peninsula National Park.

2. The proposal fails to meet the objectives of Design and Development Overlay - Schedule 5: Low Density - Wildcoast Protection Area and Vegetation Protection Overlay - Schedule 1: Township Vegetation particularly due to being visually obtrusive creating a silhouette above the skyline and due to the placement of the proposed dwelling on steeply sloping land requiring excessive excavation, a maximum height of 8 metres and the excessive removal of vegetation.

3. The proposal fails to comply with the vegetation protection objectives of the Vegetation Protection Overlay - Schedule 1 as it fails to:

b. To (sic) maintain an appropriate balance between vegetation and building form and contribute to the landscape character of the area.

c. To (sic) facilitate strategic replanting to provide for the long term maintenance of the landscape and environmental values of the area.

4. The proposal fails to avoid and minimise the loss of native vegetation and inappropriately relies on offsets.

5. The proposed development is located in an area, which is identified by the Authority as being prone to intense wildfire within which people and property are particularly vulnerable.

6. Vegetation management requirements as stated in "CFA Building in a Wildfire Management Overlay - Applicants Kit" cannot be met with the proposed plan and therefore the proposed dwelling will come under extensive radiant heat.

7. The dwelling is likely to be subjected to radiant heat which will intensify the risk to life and property through it inappropriate location.

1. While discussion about wildfire and the siting of the dwelling in relation to wildfire consumed much of the hearing, Council were at pains to point out that the proposal was also problematic when tested against the other planning controls.
2. On that basis, I consider that this application raises the following issues that need to be addressed:
   • Design
   • Vegetation removal
   • Wildfire
3. Other issues, such as access into and within the site are also relevant and I will comment on these throughout my reasons as appropriate.
4. Depending on the outcome of my analysis, I will also need to consider possible permit conditions to address these issues including, but not limited to, a possible re-siting of the dwelling as suggested by Council in its 'without prejudice' conditions.

1. My reference point for the issue of design is Council's DDO5 under which a permit is required for buildings and works (unless exempted). The relevant objectives of the overlay are (with my emphasis):
   • To ensure the appropriate design of subdivision and housing in the environmentally sensitive Wildcoast protection area and to minimise the extent of earthworks in areas prone to erosion.
   • To ensure development is carried out with proper regard to the unstable nature of the dunes.
   • To ensure that any works associated with development in the environmentally sensitive Wildcoast area is carried out with proper regard to the physical characteristics of each site and the proximity of the area to the Point Nepean National Park.
   • To recognise areas where substantial vegetation cover is a dominant visual and environmental feature of the local area, by ensuring site areas are large enough to accommodate development while retaining natural or established vegetation cover and to provide substantial areas for new landscaping and open space.
   • To ensure that new development has proper regard for the established streetscape and development pattern in terms of building height, scale and siting, and to protect shared viewlines where reasonable and practical.
   • To ensure that buildings are designed and sited to avoid being visually obtrusive, particularly in terms of creating a silhouette above a skyline or existing tree canopy line when viewed from surrounding streets and properties.
2. There are some general requirements to be met under DDO 5 including:
   • All buildings and works must be located on land with a slope of less than 20%.
   • Buildings and works must not be located on a ridge top.
   • No building may exceed a wall height of 4.5 metres or a building height of 5 metres.
   • All buildings must be located at least 10 metres from any Public Park and Recreation Zone or Public Conservation and Resource Zone.
   • Buildings must be setback at least 15 metres from a road frontage and 5 metres from any side road boundary.
3. Notwithstanding the general (discretionary) requirement of a building height of 5m, there is also a mandatory height requirement (which cannot be varied by a permit) that a dwelling not exceed 2 storeys and 8m in height.
4. In addition to the need to consider the objectives of the DDO5, Council advised me of a relevant decision guideline which includes consideration of whether opportunities exist to avoid a building being visually obtrusive by the use of alternative building designs that reduce the need for site excavation or filling.
5. In the view of Council, the siting of the dwelling will make it prominently placed near the top of a ridge line and in view of many others. The siting will also require extensive removal of vegetation as well as extensive site excavation.
6. I had a close look at this on my inspection and, not the first time, I was reminded about the importance of "context" in planning. There is no doubt that the siting of the dwelling will mean it is visible to some and there is also no doubt that there will be a loss of vegetation and some significant excavation works. But, in a context of a "town fringe" area of a popular and highly desirable seaside location, it was apparent that all around it, there has been development which has similarly involved excavation, vegetation removal and visible buildings. That is its setting; that is its context.
7. While I was pressed by Council to prefer an alternative site (for reasons other than fire), I am mindful that it is this site that the applicant wants. I have to determine if this site and the related excavation and tree removal is unreasonable or not under the provisions of DDO5.
8. Excluding the issue of fire, it seems to me that this site is acceptable. While it would be visible from nearby areas, its mere visibility is not the test of the scheme and is not fatal anyway. I inspected from Wilby Street, Exeter Close and other nearby streets and while I accept that there will be parts of the dwelling that will marginally protrude above the tree canopy (thereby creating a silhouette), so too do many others in the immediate vicinity. In its context, I find that the proposed height and siting would be an incidental addition to the existing settlement pattern and built form.
9. If it were only DDO5 that triggered this application, then I would have had little problem in siting the dwelling in the applicant's preferred location.

1. My reference point for the issue of vegetation removal is VPO1; Clause 52.17; the comments of the referral authority (DSE); and the vegetation assessment provided by the applicant.
2. The objectives of the VPO include (with my emphasis):
   • To recognise areas where substantial vegetation cover is the dominant visual and environmental feature.
   • To ensure that subdivision and development proposals have proper regard to the landscape character of township areas.
   • To ensure that new development has proper regard for the established landscape, streetscape and development pattern in terms of being consistent with the existing balance between vegetation and building form in the local area and contributing to the landscape character of the area.
3. Clause 52.17 has the following well known purposes (with my emphasis):
   • To avoid the removal of native vegetation.
   • If the removal of native vegetation cannot be avoided, to minimise the removal of native vegetation through appropriate planning and design.
   • To appropriately offset the loss of native vegetation.
   • To provide for the management and removal of native vegetation in accordance with a property vegetation plan.
   • To manage vegetation near buildings to reduce the threat to life and property from wildfire.
4. DSE provided the following relevant comments in respect of the issues of vegetation and wildfire by letter of 4 May 2010 noting (with my emphasis):

The Department is aware that the site is now subject to a Wildfire Management Overlay (WMO) and that the proposal has been referred to CFA. The Department notes that WMO permit conditions will have a requirement for vegetation management. This may have implications particularly in the application of the three step approach and the calculation of vegetation losses and offsets.

The Department's assessment of the proposal shows that there are additional opportunities to minimise impact, in particular through the consolidation of development in areas of the site that are already substantially cleared towards the eastern end of the site. This would reduce fragmentation of vegetation and minimise potential ongoing impacts from having development up slope of remnant vegetation.

The Department would therefore support a revised siting of the development. It should be noted that opportunities to reduce impacts by consolidating development to the east may also contribute to the satisfaction of WMO requirements for building siting to reduce wildfire risk.

1. Nevertheless, DSE did not object to the proposal subject to extensive conditions being included on any permit that may issue.
2. In the view of the applicant, the vegetation issues have been adequately addressed to the satisfaction of DSE. Mr. Pitt submitted that within the context of VPO1, the outcome will be a building which sits within the landscape character of the area. The applicant had commissioned a report from Jane Burke on the existing vegetation and its significance. The applicant relied on that report and the accompanying DSE advice in claiming that the proposed siting of the house did not have a detrimental impact on native vegetation.
3. In relation to site stability, the applicant submitted that there was no suggestion that the vegetation removal was likely to have an effect on the stability of the site. The removal of vegetation would, in a landscape sense and in a net gain sense, be adequately replaced by the revegetation proposals, according to the applicant.
4. I agree with the applicant that the proposal satisfactorily addresses native vegetation loss and that the proposed offsets are appropriate. That said, I note that DSE had turned its mind to the issue of wildfire in the context of native vegetation removal noting that it would support a revised siting of the development to the east which may reduce the wildfire risk.
5. I agree that relocating the dwelling to the centre of the site would involve less vegetation loss and earthworks, although a steeper path than proposed from the top of the site might be required for vehicular access.
6. Nevertheless, if it were only VPO1 that triggered this application, then I again would have supported siting the dwelling in the applicant's preferred location given the level of DSE support and subject to its suggested conditions.

1. This leaves the critical issue of the wildfire overlay.
2. My reference point for the issue of wildfire is framed by the State and local policy settings, by the WMO, by the advice of the CFA and by the expert evidence provided by the permit applicant.
3. Before turning to the detail of the overlay, and to the submissions and evidence that I received, I wish to comment on the 'public policy' settings for wildfire assessment that were inevitably recalibrated after the 'Black Saturday' bushfires of February 2009. I also wish to address some relevant Tribunal decisions in relation to wildfire, both before and after February 2009, so as to provide some further context for my assessment.
4. In February 2009, extensive areas of Victoria were devastated by bushfires which caused considerable loss of life. A Royal Commission was held into these fires and the outcomes of the commission report help frame my assessment as, like it or not, land use planning in relation to bushfire risk has changed significantly as a result of those fires. The commission report repeatedly commented on the importance of the protection of human life noting (with my emphasis):

The great loss of life and the 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 freedom to choose where they want to live or the existence of pristine environments close to townships. (Final report pg xxviii)

1. Numerous other references from the final report are relevant including (with my emphasis):

The Commission therefore proposes that the Victoria Planning Provisions relating to bushfire and the CFA guidelines for assessing permit applications in areas of high bushfire risk be amended in order to give priority to protecting human life and to ensure that development does not occur in areas in which either the bushfire risk or the environmental cost of making people safe is too high. (Executive summary pg 14)

It should be recognised that some places are too dangerous for people to live there, development should be strongly discouraged in these areas in the first instance. In high-risk areas safety needs to be paramount, and minimum defendable space considerations should therefore not be compromised. (pg 237)

The State amend the Victoria Planning Provisions relating to bushfire to ensure that the provisions give priority to the protection of human life, adopt a clear objective of substantially restricting development in the areas of highest bushfire risk - giving due consideration to biodiversity conservation - and provide clear guidance for decision makers. (Recommendation 39)

The Country Fire Authority amend its guidelines for assessing permit applications for dwellings, non-dwellings and subdivisions in the Bushfire-prone Overlay in order to accommodate the amendments to the Wildfire Management Overlay........ The revised guidelines should do the following:

• Substantially restrict new developments and subdivisions in those areas of highest risk in the Bushfire-prone Overlay.
• Set out the CFA's guidelines for assessing permit applications for dwellings, non-dwellings and subdivisions - including the minimum defendable space requirements for different risk levels.
• Clarify that the CFA will approve new developments and subdivisions only if the recommended bushfire protection measures - including the minimum defendable space can be created and maintained on a continuing basis.
• Emphasise the need for enduring permit conditions in particular, conditions for the creation and maintenance of minimum defendable space to be maintained for the life of the development. (Recommendation 40)

The State modifies its adoption of the Building Code of Australia for the following purposes:

• To remove the deemed to satisfy provisions for the construction of buildings in BAL-FZ (the Flame Zone).
• Other than in exceptional circumstances, to apply a minimum AS3959- 2009 construction level of BAL-12.5 to all new buildings and extensions in bushfire prone areas. (Recommendation 49)

1. I am also conscious of some recent Tribunal decisions, both before and in the aftermath of the 2009 bushfires and the subsequent Royal Commission. I was surprised how little reliance was placed on some of these decisions by the parties.
2. I am particularly mindful of the recent decision of Ms. Naylor and Mr. Potts in Printz Pty. Ltd. vs. Glenelg Shire Council, Country Fire Authority and Others (P721/2010) which similarly involved a proposal for a dwelling adjacent to a coastal reserve. The Tribunal was advised that the land was not in an area affected by the Wildfire Management Overlay although the CFA advised that the land met the criteria to be incorporated into a future WMO. The Tribunal noted the following with respect to the close proximity to the coastal reserve:

In the CFA's opinion, this land has significant potential for intense wildfire impact. The vegetation immediately adjacent to the site on the coastal reserve is classified by the CFA as shrub and heath as it consists of dense prickly shrubs to approximately 3 metres in height extending between the foreshore and this site. Mr Foster explained fires in scrub and heath vegetation are characterised as fast moving with relatively long flame lengths, even in relatively moderate conditions. Hence, the CFA is intending to place a WMO over the coastal reserve and a buffer distance of 100 metres beyond the edge of the existing vegetation.

...... the CFA advised its WMO modelling shows the flame zone potentially extending up to 21 metres from the edge of the shrub and heath vegetation. This flame zone therefore extends over the house. The CFA objects to the grant of this permit as it considers the construction of a dwelling within the flame zone creates an unacceptable risk to human life.

1. Having considered the submissions, the Tribunal noted that;

We are persuaded by the CFA's position that this land has significant potential for intense fire impact. We accept the submission that fires in scrub and heath vegetation can be characterised as being fast moving with relatively long flame lengths..........The proximity of this land to the coastal reserve that contains dense shrub and heath is a fire risk. We note the CFA's submission about potential fire scenarios impacting upon this site:

• A landscape scale major fire impacting from the north and then sweeping through the scrub and heath under the influence of a south west wind change; or
• A fire caused by human activity in the dune vegetation on a high fire danger day.

1. The Tribunal accepted the CFA's modelling that the flame zone could extend for up to 21 metres from the scrub and heath vegetation thereby placing the house in a dangerous situation where it would be impacted upon by flames and radiant heat flux at a distance of 50 metres from shrub and health. The Tribunal estimated that at this distance the radiant heat flux would exceed 40kW/M2.
2. In the course of that hearing, amended plans were submitted indicating a new location of the house 21m from the property boundary and with the house now designed to achieve a BAL-29 rating. The Tribunal noted that the amended house site was therefore to be located at the edge, or just beyond the extent of the flame zone based on CFA's modelling. On that basis, the CFA advised that it agreed to the construction of the house at the revised location (although for other reasons the Tribunal did not grant the permit).
3. I am also reminded of a nearby decision of almost ten years ago in Buchanan v. Mornington Peninsula SC [2002] VCAT 1752 where once again the site was abutted by a coastal reserve. In that case, the site bordered the Mornington Peninsula National Park to the south and west. The land was relatively flat and was covered with dense vegetation, being predominantly coastal tea tree.
4. The site was not affected by a WMO at the time but Council notified the CFA of the application in any event. The CFA objected, noting among other things, that having assessed the vegetation within close proximity of the proposed dwelling, it believed that the radiant heat that could be exposed onto the dwelling was extreme and placed the occupants at significant risk.
5. The CFA submitted that due to the quantity and type of vegetation surrounding that site, any dwelling constructed would face an extreme exposure from wildfire and would expose occupants to an unacceptably high level of risk to life and property from the threat of wildfire. In support of its case, the CFA referred to the nearby 1997 'Mt Martha' fires which had a similar vegetation context to the subject site and where the intensity was 30kW/m with flame heights of 15 metres.
6. In that case, the CFA and its experts explained that fine fuel, such as coastal tea tree found on the subject site and in the National Park, increased the likely intensity of the fire as vegetation less than 6mm in diameter ignited very easily. They further noted that exposure of the site to local weather effects such as sea breezes of approximately 20-25 knots would also impact upon fire behaviour.
7. The CFA further commented in that case on the need for an 'integrated' approach to fire protection noting that integrated planning and preparation is a better option than 'construction only' solutions which would not provide appropriate levels of safety for the dwelling and its occupants.
8. Finally, in Peter Carey & Others v Murrindindi Shire Council, Flowerdale Community House (P2909/2010), Mr Martin considered an application for a new community hall in Hazeldene. I acknowledge the differences between a private dwelling and a new community hall but I think that the principles are still relevant. Mr. Martin framed his assessment of the community hall by starting with State policy noting that the objective of this policy is to assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire. Mr. Martin noted that:

Hence it is appropriate for the Tribunal to consider both the "property" and "loss of life" aspects of any bushfire risks associated with the proposal.

The importance of considering the bushfire risks of proposals was highlighted by the Tribunal's refusal of a subdivision proposal in Masten Bennett & Associates v Nillumbik SC [2010] VCAT 900, involving a site in St Andrews where the Tribunal found that the bushfire risks had not been adequately resolved.

1. Later, Mr Martin referred to the BAL level of the hall noting that while it had been designed to achieve a BAL-29 fire rating, that in itself is not a "silver bullet" for dealing with the fire problem. He concluded that:

I am satisfied that the proposal as supported by Council in its NOD involves an unacceptable level of bushfire risk of potential further loss of life. In a situation where Council and the CFA have taken different positions whether the new building would fall within the requisite direct flame zone area, I prefer the more conservative analysis of the CFA that the northern edge of the new building would overlap with the direct flame zone area by 3 metres.

1. With the findings of the Royal Commission and the recent Tribunal decisions in mind, I will now turn to my analysis of the fire risk.

1. Clause 13.05-1 (Wildfire risk) of the State policy framework has the 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 (with my emphasis):
   • 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.
2. At the local level, Clause 22.11 of the Mornington Peninsula Planning Scheme (Mornington Peninsula Fire Protection Policy) has objectives including:
   • To assist efforts to mitigate the risk to life, property and the environment from uncontrolled fire.
   • To ensure that land use and development does not increase the level of fire risk.
   • To ensure that land use and development includes adequate fire protection measures.
3. Clause 22.13 (Township Environment) gives emphasis to sustainability objectives and contains decision guidelines including consideration of appropriate management of fire regimes and bushfire prone areas.
4. As noted, the Wildfire Management Overlay (WMO) was only applied to the land in February 2010. The purposes of the WMO are (among other things) to ensure that development which is likely to increase the number of people in the overlay area does not significantly increase the threat to life and surrounding property from wildfire.
5. Clause 44.06-l of the WMO indicates that a permit is required to construct a building or construct or carry out works associated with 'accommodation'. An application for buildings and works must be accompanied by a statement which demonstrates that all fire protection requirements for water supply, access, buildings and works, vegetation and any other relevant matter have been considered and incorporated. The WMO addresses the following four critical issues:

• To ensure that water is available to landholders and emergency services to enable life and property to be defended from wildfire.

• To ensure that safe access is provided for emergency and other vehicles at all times.

• To ensure that the design and siting of buildings and works improves protection for life and minimises the level of fire impact.

• To ensure that fuel (ground fuel and shrubs) is managed to reduce potential fire intensity in the vicinity of buildings.

1. To assist with preparing a permit application for a new dwelling, the CFA has developed the "Building in a Wildfire Management Overlay Applicant's Kit 2010" (CFA June 2010). The purpose of the Kit is to streamline the process of applying for a planning permit and at the same time help the applicant understand wildfire risk and how to manage it. The kit includes a simple site assessment process, guidance on house design and location, and linkages to environmental planning controls. The kit helps anyone intending to build or extend a house in a WMO by ensuring that development can meet the objectives and outcomes of the WMO.
2. In March 2009 (one month after 'Black Saturday') Victoria became the first state to adopt Australian Standard AS 3959-2009 through the Building Regulations 2006. The new standard applies to all of Victoria and sites are now defined under six different Bushfire Attack Level categories (BAL) which range from low to extreme. Depending on the categorisation, there are increasing levels of construction requirement placed on buildings ranging from ember protection through to direct flame contact.
3. The BAL takes into account factors such as the slope of the land, the Fire Danger Index (FDI), types of surrounding vegetation and the proximity of vegetation to the proposed building. The BAL categories are as follows (with an attached description of the predicted bushfire attack and level of exposure to flame or radiant heat):
   • BAL - LOW Insufficient risk to warrant specific construction requirements.
   • BAL - 12.5 Ember attack
   • BAL - 19 Increasing levels of ember attack and burning debris ignited by windborne embers together with increasing heat flux between 12.5 and 19kWm2
   • BAL - 29 Increasing levels of ember attack and burning debris ignited by windborne embers together with increasing heat flux between 19 and 29kWm2
   • BAL - 40 Increasing levels of ember attack and burning debris ignited by windborne embers together with increasing heat flux with the increased likelihood of exposure to flames.
   • BAL - FZ Direct exposure to flames from fire front in addition to heat flux and ember attack.
4. While I will return to this issue later, I note at the outset that the evidence of the permit applicant on this point was that the attack level was BAL-FZ as the worst case scenario. In that context, the CFA noted that:

It is not disputed by the Applicant that the proposed dwelling is within a Flame Zone. That is, the Applicant accepts that in the event of a fire, the proposed dwelling would be enveloped in flames as a result of it being setback only 5m and 10m respectively from the boundary with the Mornington Peninsula National Park which contains significant vegetation (classified as shrub and heath). Nor is it disputed by the Applicant that in the event of a fire, the proposed dwelling is likely to be subjected to radiant heat which will intensify the risk to life and property.

1. In its assessment of the requirements of the WMO, Council acknowledged that it had to be guided by the advice of the CFA especially on siting and design issues. That said, it linked its fire concerns with its vegetation removal concerns noting that the removal of native vegetation for fire protection purposes was so significant that this provided another reason for considering alternative locations for the future dwelling. The cleared site, central to the property and more removed from the national park, is the obvious candidate based on both fire and vegetation considerations, according to Council.
2. Council submitted that because the applicant seeks to construct a dwelling towards the highest part of the land and on a steeply sloping section of the site, it is not possible to create a 'defendable space' around the dwelling and instead an 'engineered solution" would have to be found. As the proposal stands, Council believes that:
   • The proposed siting of the dwelling places it in the Flame Zone and within possible direct flame contact if subject to wildfire; and
   • The proposed dwelling will come under extensive radiant heat.
3. The CFA formally objected to the application on the following grounds:

The proposed development is located in an area, which is identified by the Authority as being prone to intense wildfire within which people and property are particularly vulnerable.

Vegetation management requirements as stated in "CFA Building in a Wildfire Management Overlay - Applicants Kit" cannot be met with the proposed plan and therefore the proposed dwelling will come under extensive radiant heat.

The dwelling is likely to be subjected to radiant heat which will intensify the risk to life and property through its inappropriate location.

1. That said, the CFA acknowledged that the proposal satisfactorily addressed at least two of the four requirements of the WMO noting:
   • water supply is via a fire hydrant/water plug directly outside the entry gate to the property, approximately 30m from the proposed dwelling. It is proposed to augment the water supply with the installation of a bore in the middle of the subject land to provide water to the tennis court, cabana and pool area which can be automatically activated in the event of a fire. It is also proposed to extend the existing water plug to the mid-site level to service the cabana.
   • access is gained from a 120m long "common" roadway that runs off Wildcoast Road. The roadway is 8.0m wide for the first 60m and narrows to 5.5m for the last 60m. The driveway is only 25m long at the end which is a 120m² parking bay/turning circle that would allow for up to four vehicles outside the garage. Despite there being no turnaround area at the end of Wildcoast Road, the CFA was satisfied that there is sufficient room for emergency vehicles including fire fighting appliances to turnaround.
2. In terms of the third requirement of the WMO (Vegetation), the CFA were guided by the advice of DSE. However, in respect of the threshold "Buildings and Works" objective of the WMO, CFA maintained that the siting of the dwelling did not "minimise" the fire risk to life and property. The CFA submitted that the proposed development is located in an area which it has identified as being prone to intense bushfire within which people and property are particularly vulnerable.
3. The CFA therefore objected to the permit on the basis that the application had not sufficiently established that the proposed buildings were sited in a location which minimises the fire risk to life and property.
4. The WMO Site Assessment Methodology was used by the CFA and it comprises of individual stand alone components drawn from research conducted by experts in the field of bushfire behaviour. The CFA advised me that the calibration of the individual components of the Kit had been completed by these experts and peer reviewed by the scientific community.
5. The CFA conducted an analysis of the potential radiant heat using this WMO methodology and this analysis revealed that the proposed building would be enveloped in flames as a result of the building being setback only 10m from the boundary with the National Park. The CFA noted that the park contained significant vegetation classified as 'shrub and heath' and would result in a flame length of 15.7m with a resultant radiant heat flux in excess of 120kW/m².
6. The CFA assessment of the Fire Engineering Design Brief (FEDB) of the applicant was that it used a received radiation level of 60 kW/m² arising from a flame temperature of l000°K. According to the CFA, this level is significantly lower than that used in the current version of Australian Standard AS3959-2009 (80kW/m² or 1090°K) and half that of the current Australasian Fire and Emergency Service Authorities Council (AFAC) specification of 120 kW/m² or 1200°K. The CFA therefore rejected the applicant's assessment as it used input values that were about 50% lower than those adopted by the peak industry body.
7. The CFA were also critical of the proposed design contained in the FEDB which included installation of an external wet pipe drencher system on the southern exposure upper level windows. In the view of the CFA, the FEDB did not provide any evidence to substantiate whether the proposed system was capable of withstanding the potential radiant heat flux of up to 120kW/m². Further, the proposed design contained in the FEDB included construction of a 2m high stone wall along the boundary of the property on the western and southern exposure. The FEDB had not provided any calculations to demonstrate the effectiveness of the barrier particularly given the fact that it would be completely immersed in flames. Furthermore, there was no analysis provided of the impact that the barrier will have on the effect of the flame front.
8. Finally, the CFA noted that the proposed design included a roof system that did not appear to be constructed and installed in accordance with a tested and certified 'Flame Zone' roof in accordance with Australian Standard AS1530.8.2.
9. The applicant provided a specific fire engineered solution for the proposal in the "Performance Based Fire Engineering Design Brief". The applicant also relied on some documented advice from Dr. Ken Tolhurst of the Department of Forest and Ecosystem Science at the University of Melbourne. The applicant finally relied on the expert evidence at the hearing of Mr. John Nicholson of Community Safety Services Pty. Ltd..
10. The submission of the applicant is that the CFA's single focus on siting has distracted it from having regard to issues of access, vegetation and water supply. In the view of the applicant, the alternative siting which Council and the CFA support is much the same in respect of aspect, orientation and fire load in relation to the National Park.
11. The applicant was critical of the differences between the 'generic' approach adopted by the CFA and the more tailored site specific analysis provided by the permit applicant. In that context, the applicant submitted that the CFA had not done an on-site assessment of fuel loads, and had applied an excessive flame temperature when compared with that contained in the Australian Standard AS 3959-2009.
12. The applicant believes that the greatest fire risk to the site is a wind driven fire from the north-west with fuel being predominantly grass on sites subdivided into residential allotments off Wildcoast Road and then up the relatively widely spaced scrub on the hill behind the proposed house site. The applicant does not believe that the conditions to the north-west are conducive to "fire storm" conditions such as that experienced in different terrain and fire loadings on "Black Saturday". The risk of fire from the south-west and south is mitigated by the relatively short distance from the ocean of about half a kilometre and by cooling sea breezes.
13. In support of its submission, the applicant relied on expert evidence from Mr John Nicholson who has extensive experience and expertise in structural fire and wildfire prevention, impact mitigation and suppression.
14. The applicant also relied on some email advice to the owner of the land from Dr Kevin Tolhurst of the Department of Forest and Ecosystem Science at the University of Melbourne. Dr Tolhurst was not called to provide an expert witness report and was not present at the hearing. I have not placed any weight on the advice of Dr Tolhurst especially as it contains only vague references to the site itself and it includes comments such as ".....from memory of the general area ....." and "...I do not have the time to work on this any further ......."
15. By contrast, the evidence of Mr Nicholson was filed, explained and was subject to questioning. I do not doubt for a moment Mr Nicholson's expertise or his qualifications to assist the Tribunal in assessing the application.
16. Importantly, Mr Nicholson was not asked to assess anything other than the dwelling in the preferred location. I have no evidence that he considered the alternative site (or indeed any alternative site). His evidence was pitched solely at establishing that the preferred location could host a dwelling that could be designed and engineered to withstand BAL-FZ. He noted:

This expert advice is based on the dwelling being positioned on the subject land where shown in on the Site Development Plan, but no closer than 10 metres from the southern boundary, give (5) metres from the western boundary and 28 metres from the northern boundary of the subject land.

1. In terms of determining the Bushfire Attack Level (BAL) he considered:
   • Vegetation classification
   • Effective slope
   • Site slope
   • Elevation
   • Fire Danger Index (FDI)
2. As noted earlier, Mr. Nicholson assessed the bushfire attack level as BAL-FZ as the worst case scenario being a wind driven fire approaching from the west or south-west. In his view, the CFA's concerns and the WMO outcome of "minimising the fire risk to life and property" can be (and is) achieved by design and construction methods specified for BAL-FZ in AS 3959-2009.
3. Mr. Nicholson did not discount the possibility of a fire approaching from the north-west or from the adjoining National Park. In the case of a fire from the north west, he felt that it would be relatively low to the ground and would only start to develop vertically through the shrubs when it reached the base of the hill adjoining the western side of the subject land. In terms of a fire from the National Park, he felt that due to the interruptions to vegetation in the park, any fire would have to rely heavily on the wind. The proximity of the beach, among other things, would militate against the development of a fire reaching the subject land in his view. In this context he provided fire protection recommendations to enable the dwelling and cabana to survive the assessed wildfire threat and act as a shelter for persons unable to safely leave before the arrival of a fire.
4. Mr. Nicholson tabled a plan at the hearing identifying the 'defendable space' around all sides of the dwelling and the cabana. This defendable space extended to the south and west boundary.
5. Mr. Nicholson (and others) also tabled very detailed material relating to fuel loads, flame lengths, wind speed patterns, temperatures and moisture factors and I have taken all of this material into account.

1. For reasons that I have already touched on, I am satisfied that three of the four key objectives of the WMO are met. However, the critical 'buildings and works' objective remains unresolved.
2. The relevant objective is (with my emphasis):

To ensure that the design and siting of buildings and works improves protection for life and minimises the level of fire impact.

The design and siting of any buildings or works, including outbuildings, driveways, vegetation and storage areas for flammable materials, must minimise the fire risk to life and property.

The design of any building must incorporate fire protection construction features to prevent the entry and build up of embers to the building and reduce the likelihood of direct flame contact.

The siting of any building in relation to slope, access, aspect, orientation and vegetation must minimise the fire risk to life and property.

1. Apart from repeated use of the term 'minimise', I note that the terms 'design' and 'siting' are constant companions before being isolated for separate assessment in the 'outcomes'. This therefore places an obligation on assessing both the siting of the building and the design of that building.
2. In this context, I note that the applicant criticised the CFA saying that it had simply adopted a view which opposed the siting of the building without any proper consideration of the design and fire protection construction measures proposed. While that may be, I think that it is equally true that the applicant has adopted the view that the siting of the dwelling was not negotiable and that any attempts to 'minimise' fire risk were only to be dealt with by construction measures.
3. I think that such an approach not only underestimates the degree to which a design response should have regard to both siting and design, it also underestimates the constraint that the WMO now imposes on this land.
4. In my view, the siting of this dwelling in the BAL-FZ with direct exposure to flame as well as radiant heat flux and ember attack does not seek to 'minimise' the fire risk. While the design solution seeks to minimise the fire risk, the siting does not. The design seeks to address fire risk and to ameliorate it (in the hope of minimising it) but the fundamental problem remains that the dwelling is sited within the most extreme fire attack category being the BAL - FZ (Flame Zone). In this location, the dwelling is exposed to excessive radiant heat flux which is about 60kW/m2 according to Mr. Nicholson and possibly much higher according to the CFA.
5. It seems to me that the prudent approach is 'avoid' the direct fire threat in the first place rather than have to adopt a defensive position of remedial construction techniques. I think that the approach to wildfire is analogous to that of native vegetation where the initial step should be to "avoid". The Royal Commission final report provides some support for this view noting that as:

........some places are too dangerous for people to live there, development should be strongly discouraged in these areas in the first instance. (pg 237)

1. While most of the attention on the fire threat was based on the offset from the National Park, I am as concerned about the 5m setback to the north west as much as I am about the 10m setback to the south west. I acknowledge that the land to the north west is private property and in the LDRZ. I have no information about the development prospects of the land. I can only take it as I find it and it is apparent that it has vegetation characteristics similar to the subject site and to the national park. As Mr. Nicholson noted, the vegetation in that area is much the same as in the national park, albeit thinner in parts.
2. In that sense, it seems that the threat of fire is as much from the land to the north west as it is from the south west and an offset of only 5m means that the preferred development site could be surrounded on two sides from potential direct flame attack.
3. I am conscious of the fact, as noted in both Printz and Buchanan, that the characteristics and combustibility of some coastal vegetation is of concern to fire authorities with fast moving fires and relatively long flame lengths. I am also conscious of a fire that might have started in the park (or have been driven from the north into the park) and then be the subject of a south west wind change turning it back towards the subject site.
4. I appreciate that the initial design response of December 2009 did not need to address the WMO as that overlay did not apply. In that context, I have considerable sympathy for the permit applicant. However, all of that changed on 11 February 2010 with the introduction of the WMO. It is notable that despite its introduction, no consideration has been given to relocating the house site. The emphasis seemingly has been on 'fire proofing' the dwelling rather than on re-assessing the site. I am not critical at all of selecting this site in December 2009 for a house as it was exclusive of a WMO 'burden'. But I am curious that despite other changes in the application, at no time has the preferred site been re-considered. The basis for that is clearly that the preferred location offers the most expansive and uninterrupted views including over Sorrento, down the bay and even out to the ocean. That was a central element in the siting of the building and is evident from the submission of the applicant ('Performance Based Engineering Brief' prepared by Fire Protection Consulting Services) to the CFA noting that:

"....... due to the need to site the building around required vegetation protection zones and the best location to obtain maximum viewpoints ........"

1. Instead of looking at alternative sites, it appears that the sole consideration of the applicant has been on the defensive construction measures to be employed. The clue for the preferred siting rests with the desire to obtain views from the elevated position at the western end of the site. I agree with the CFA that obtaining views is not a relevant consideration under the WMO. That does not mean it is not a relevant consideration at all. Rather, it means that it is part of the mix that I have to consider as required by Clause 10.04 in terms of balancing competing objectives. However, in my view, the desire to obtain the best view (which is understandable) does not outweigh the risks to life associated with locating a dwelling directly within a Flame Zone.
2. I finally note that the planning scheme asks (at Clause 31.02 and Clause 65) that the decision maker consider "acceptable outcomes" in the context of the full suite of considerations in the planning policies and planning controls. Having assessed these controls and having inspected the subject site and the surrounding area, I conclude that it is an unacceptable outcome for a landowner, occupier, fire fighter, emergency services volunteer or the wider community to place a dwelling in the area of the highest fire risk. In my view, the prudent planning approach is to avoid that, especially if there are alternatives.

1. The existence of design, vegetation and fire overlays impose severe constraints on this site.
2. In that context, the prospects of a dwelling, pool, cabana, tennis court, open areas, garages and driveways being able to be developed on such a constrained site now appears ambitious. Of all of these, it is the fire risk that I find the most constraining.
3. I do not criticise the applicant in selecting the nominated site as the preferred location for the dwelling. It affords expansive and impressive views of Sorrento and Arthurs Seat, with glimpses of the bay on one side and the ocean on the other. However, up until February 2010, that decision was only constrained by design and vegetation controls. Beyond that date, it was further constrained by wildfire considerations. As is often the case, the decision maker (as opposed to the applicant) must "balance" the competing objectives of the applicant with the design, vegetation and wildfire objectives of the scheme so as to satisfy Clause 10.04 and so as to achieve an "acceptable outcome" under Clauses 31.02 and 65.
4. In the end whether or not a house is allowed in this location is a risk management issue. I think that the risks associated with this location are much too high given its exposure to direct flame and to excessive radiant heat. In my view, it is simply unacceptable to consciously locate a dwelling within the area of highest fire risk on this property. The impact of Black Saturday is still raw and the words of the Royal Commission are still fresh as to the paramount importance of the protection of life. While not yet part of the SPPF, the protection of life is central to the adopted recommendations of the commission report and I think that that objective is more likely to be achieved in a location less exposed to direct fire risk.
5. In the words of the WMO, I am not satisfied that the preferred location minimises the fire risk or the level of fire impact.
6. Having decided against allowing the house to be sited in the preferred position, I have to consider whether or not a house should go anywhere on this land. I had very little material on this issue other than Council and the CFA agreeing to a relocation more or less in place of the tennis court. The applicant noted that this alternative had a similar aspect, orientation and fire load to the preferred site. I am also mindful of the comment made by Mr. Nicholson in his evidence that all of the land might be subject to BAL-FZ although neither Council nor the CFA seemingly agree with that point of view.
7. On that basis, one option for me is to deny a permit anywhere on the land bearing in mind that the Royal Commission commented that some places are just too dangerous for people to live and so development should be strongly discouraged in these areas in the first instance.
8. I also contemplated an interim decision on the application to test the central part of the site as I am conscious of the fact that the application has been in the system for over 18 months. I am mindful of the discussion on the option of a interim decision going back many years at the Tribunal (See Rowcliffe Pty. Ltd. V Stonnington CC [2004] VCAT 46; Stoupas v Yarra CC [2005] VCAT 959; and Vello v Yarra CC [2009] VCAT 2234)
9. However, in those cases it was clear that a permit could eventually issue in some form. Unlike those cases, I am unable to determine whether a permit should ever be issued for an house anywhere on this land. It may well be that the central area is appropriate but neither the applicant, the CFA or Council provided any real evidence or support for this site. While Council offered it as its 'without prejudice' condition, I had no serious submissions as to its attributes. I am unclear as to whether it is in a similar BAL category to the rejected site and I am conscious that the central location may have the same attributes as the preferred location. I am also unclear whether safe ingress and egress is available to the central part of the site in a fire risk sense.
10. It is also such a significant change to the original application that I am not satisfied that other parties would be unaffected by such a move.
11. To be clear, I am not saying that the site could not support a dwelling. However, I am unclear as to whether it could support a dwelling as that requires a more detailed assessment, especially in relation to the wildfire issue.
12. I finally note that the issue in dispute in part goes to whether I prefer the generic risk assessment model of the CFA or whether I think that there is latitude to vary this based on a site specific risk assessment. I can certainly accept that a site specific assessment could overcome the more generic approach. However, what I cannot accept is that, having done the site specific assessment, it is still proposed to position a house directly within the highest level of building attack. That seems to me to run counter to the repeated warnings in the Bushfire Royal Commission report to ensure development does not occur in areas where the bushfire risk is too high.
13. It is directed that no permit be issued.