Walton v Greater Bendigo CC [2023] VCAT 698 (22 June 2023)

1. A week prior to the hearing for this matter, the decision in Clifftop at Hepburn Pty Ltd v Hepburn SC & Ors [2023] VCAT 201 (Clifftop) was released.
2. Clifftop addressed issues around the Bushfire Management Overlay (BMO) that were said by the applicants to be relevant to my consideration in this matter. Following closing, and with the agreement of parties, I issued orders for written submissions to be provided addressing the implications, if any, of the Clifftop decision.
3. Council and the applicants provided a response on 24 March 2023. Both submissions noted that the question of law around third-party rights is not relevant in this case as there are no third parties involved; I agree.
4. Both submissions were generally in agreement around the point in Clifftop which reinforced that policy is only called up in relation to the specific permit trigger. That is, bushfire policy in clause 13.02-1S is only called up by the permit trigger under the BMO, not, for example, by another permit trigger unrelated to bushfire.
5. Council noted that as this is a subdivision, there are additional considerations in the decision guidelines at clause 65.02 which were not relevant in Clifftop.
6. I address these matters in the section considering bushfire and protection of human life, and particularly bushfire policy as activated by the BMO permit trigger.

1. The CFA outlined its involvement with the application including information requests and advice leading to its position that it did not object to the grant of a permit and required no conditions.
2. It submitted that the site is in an area of high bushfire risk and bushfire protection measures must be implemented, but the measures outlined by Mr Thompson should reduce the risk to an acceptable level including:
   • appropriately managed defendable space (in accordance with Table 6 to clause 53.02-5) entirely within proposed Lot 2
   • static water supply
   • access in accordance with Table 5 to clause 53.02-5.
3. The CFA did not support the provision of a bunker as a necessary part of the bushfire response in this location.
4. Council's view was that despite the position of the CFA and the likelihood that defendable space may be able to be provided, the proposal does not accord with the wider policy considerations in the planning scheme relating to risk to human life and it would not be an orderly planning outcome; the proposal presents an unacceptable level of bushfire risk.
5. It noted that the Bushfire Management Statement cannot be applied to the proposal at this time (for example via a section 173 agreement under the Planning and Environment Act 1987) and it would need to be prepared and submitted for a dwelling proposal in future with no guarantee of success.
6. Council submitted that it is questionable that additional settlement be directed to such an area that:
   • is remote and accessed by minor roads with heavily vegetated roadsides
   • has extensive bushland to the north and west
   • will be accessed via an internal driveway through vegetated areas of approximately 420 metres after accessing Blossett Drive, itself heavily vegetated; in the event of a significant bushfire safe access and egress may be impossible.
7. Council was critical of the proposed bunker on the basis that it is an 'extreme' measure which acknowledges the risk of bushfire on the site and is a bushfire response that should only be used for existing dwellings in areas at risk of fire.
8. Council took me to the decision in Department of Environment, Land, Water and Planning v Yarra Ranges SC (Red Dot) [2019] VCAT 323. In that decision a dwelling was refused in the RCZ for a range of reasons including a 400 metre accessway with no right of access across Crown land, a heavily wooded environment and uncertainty about the dwelling proposal.