DWG No. 133/1D Overview and Locality Plan; DWG No. 133/3B Site Development Plan; DWG No. 133/4D Wildfire Management Plan & West to East Section Thru' the Site; and DWG No. 133/9A Neighbourhood Character, all dated Feb'11, prepared by Daylesford Design Studio.

1. The decision of the Responsible Authority in relation to permit application no. 10278 is affirmed. No permit is granted.

1. The decision of the Responsible Authority in relation to permit application no. 10280 is affirmed. No permit is granted.

Construction of a single storey dwelling on each of the properties at 32A and 34A Hepburn Road, Daylesford.

Application under Section 77 of the Planning and Environment Act 1987.

Environmental Significance Overlay - Schedule 1 (ESO1).

Environmental Significance Overlay - Schedule 2 (ESO2).

Design and Development Overlay - Schedule 1 (DDO1).

Neighbourhood Character Overlay - Schedule 2 (NCO2).

Abuttal to a road in a Road Zone Category 1 (RDZ1).

Cl 42.01-2 (construction of buildings and works, including tree removal, on land within ESO1 and ESO2).

Cl 43.02-2 (construction of buildings and works on land within DDO1).

Cl 44.06-1 (construction of buildings and works on land within a WMO).

Cl. 43.05-2 (construction of buildings and works on land in NCO2).

The review sites are the rear two lots of a four lot subdivision that was approved in 2007. They are accessed by a common driveway that connects to the west side of Hepburn Road. No. 32A has an area of 725 square metres and has been cleared of vegetation; No. 34A has an area of 943 square metres and, with the exception of three trees, is similarly cleared of vegetation. Both lots are vacant and display a fall toward an adjoining treed gully to the rear. Of the two remaining lots within the subdivision, one supports a single dwelling; the other is vacant. Properties to the north and south are developed in the form of single dwellings. To the west is the Hepburn Regional Park, with that part directly adjoining the review sites also known as Doctor's Gully.

1. Planning Applications to construct a single storey dwelling on each of the review sites were lodged with the Hepburn Shire Council in October 2009. The Country Fire Authority (CFA), a referral authority pursuant to Clause 44.06-3[2] objected to the grant of permits on grounds relating to the wildfire-prone nature of the land; the inadequate level of safety for occupants; an increase in danger to firefighting personnel attempting to control wildfire in this area; and the absence of required information regarding the mitigation of fire risk.
2. As it is required to do, given the objection from the CFA[3], the Council refused the planning applications.
3. These Applications to the Tribunal are for a review of the Council's decisions.
4. The sole issue for consideration in determining these Applications is whether the proposals represent an acceptable planning outcome, given the sites' location within a Wildfire Management Overlay.
5. The Tribunal must decide whether permits should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Hepburn Planning Scheme, I have decided to affirm the Responsible Authority's decisions.
6. Before proceeding to detail the reasons for my decision, I wish to state that the absence of a written submission from the CFA has not assisted me in my task of assessing these applications. The CFA objected to the applications, which meant that they had to be refused. As such, the CFA had a significant role to play in this hearing and, more generally, the CFA has a critical role to play in the assessment of proposals within areas that are prone to wildfire. It would be particularly helpful if a written submission, and copies of all relevant documents referred to, were provided by the CFA in future hearings.
7. The objective of Clause 13.05-1 (Wildfire Risk) is to assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire. A relevant strategy in the circumstances of this case is to consider fire hazards in wildfire risk environments to avoid intensifying the risk of wildfire through inappropriately located or designed uses or developments.
8. In addition to implementing the State and Local Planning Policy Frameworks, the purpose of the Wildfire Management Overlay is:

To identify the areas where the intensity of wildfire is significant and likely to pose a threat to life and property.

To ensure that development which is likely to increase the number of people in the overlay area:

Satisfies the specified fire protection objectives.

Does not significantly increase the threat to life and surrounding property from wildfire.

To detail the minimum fire protection outcomes that will assist to protect life and property from the threat of wildfire.

1. In the assessment of applications for the construction of buildings and works on land within an area prone to wildfire, the provisions of the WMO specify objectives and outcomes relating to water supply, access, design and siting, and vegetation management[4]. Based on the material available to me, and on the submissions of the parties, my assessment is that the development fails to satisfy at least three of these objectives and must therefore be refused.

1. The CFA advised that a static water supply of at least 10,000 litres, dedicated exclusively for fire fighting purposes, is required to be provided on the each of the review sites. This is in addition to the 4,500 litre supply required by the Section 173 Agreement which encumbers the lots within the subdivision. The Wildfire Management Statement[5] for 32A Hepburn Road states that an on-site static water supply cannot be achieved for this property.
2. In considering how to address this inability to provide a water supply for No. 32A, there was some discussion amongst the CFA and Applicants as to whether a static water supply could be provided within the subdivision to service the three vacant lots. A number of constraints relating to site layout, geology and ownership were identified, and it is apparent that a detailed investigation is required to identify a suitable location (if one exists) for any such common water supply. At this stage, due to the absence of information, it is not at all clear whether this is a viable option. On the available information, I am not satisfied that a satisfactory static water supply is able to be provided.

1. The CFA submitted that there is insufficient room within the 'court bowl' of the common accessway to allow emergency vehicles to manoeuvre on-site in order to exit on to Hepburn Road in a forward direction. It was submitted that modifications to the common driveway are required to create either a 'T-head' or 'Y-head' at its termination to provide the necessary turning area. It was suggested that this is likely to necessitate encroachment into Lot 2, being land which is not the subject of either of these Applications. It is evident to me that the necessary investigations to determine how the required turning area may be provided within the subdivision have not been undertaken. As currently proposed, emergency vehicles will not be able to exit the driveway in a forward direction, and is a further reason why these Applications should not be approved. Given the nature of the vehicles, the slope of the land, the alignment of the driveway and its intersection with a road in a Road Zone Category 1, it is not an option to have the vehicles reversing out of the site.
2. A related, and perhaps a more significant issue, is whether emergency vehicles can in fact access the common driveway at all. According to the Wildfire Management Statements, the access requirements for emergency vehicles cannot be achieved on-site as the turn into the driveway from the pull-off from Hepburn Road cannot provide the minimum inner radius of 10 metres. This is consistent with the submissions of Mr Esmore. The CFA, however, is of the view that emergency vehicles will be able to access the common driveway if they approach the land from the north.
3. I was not provided with any evidence to demonstrate whether fire trucks can access the driveway from both the north and the south. In my opinion, an assessment of this issue by a person who is suitably qualified in traffic engineering matters is required to confirm whether the necessary access can be achieved.
4. On the information available, I am not satisfied that emergency vehicles can access the sites.

1. Due to the lot widths and area, the vegetation management requirements to achieve the required BAL (Bushfire Attack Level) under AS3959-2009 cannot be achieved on the review sites themselves. Compliance with this standard would require the management of vegetation on both public land (the Hepburn Regional Park) and the adjoining privately owned lots.
2. The CFA advised that the Bacchus Marsh Fire Protection Plan[6] (BMFPP) designates Doctor's Gully as an Asset Protection Zone. As stated in the BMFPP, the purpose of the Asset Protection Zone is to provide the highest level of strategic protection to human life, property and highly valued public assets and values, and the area is to be subject to intensive fuel management. I was further advised that although the Department of Sustainability of Environment (DSE) is currently reviewing the BMFPP, the Asset Protection Zone adjacent to the review sites was renewed some two months ago. The CFA stated that the maintenance of the Asset Protection Zone is not mandated in any form, but nonetheless is an intended outcome and is unlikely to change.
3. I have no documentation to confirm the CFA's submission in respect of the current, and future, maintenance and management of the Asset Protection Zone within the Park. It would have been of assistance to either have a representative of DSE present to address me on this issue or, alternatively, written evidence of the DSE's obligations and commitments in respect of the vegetation within the Park - particularly at the interface with the review sites.
4. While it may be possible to demonstrate that the vegetation on public land will be managed to a level which ensures that the required BAL is achieved by development on the review sites, this is not the case in respect of the vegetation on private land. In summary, based on the CFA's submission, the development of No. 32A is dependent on the management of vegetation at No. 34A; and the development of No. 34A is dependent on the management of vegetation on No. 36. This is problematic for the following reasons:
   • While conditions may, potentially, be able to be included on the permit for No. 34A (in the event that a permit was to issue) to require the vegetation management necessary to achieve the necessary BAL for the proposed dwelling at No. 32A, there is no obligation on the owner of No. 34A to act on his permit. In the event that that permit is not acted upon, the conditions of the permit are of no effect. The applicable BAL of the dwelling on No. 32A would therefore not be appropriate, and would create an unacceptable threat to life and property.
   • No. 36 is a separately owned lot and does not form part of this Application. It is not possible to impose obligations on the owner of that lot via permit conditions or any other mechanism, such as a Section 173 Agreement, to require the vegetation on that land to be maintained in such a manner that it enables the development on No. 34A to achieve the requisite BAL.
5. These matters are unable to be satisfactorily addressed within the context of the current Applications.

1. The proposals have not been well resolved. A number of critical considerations need to be addressed if any dwelling on these lots is to meet the necessary requirements in order to satisfactorily respond to the risk of wildfire in this area.
2. It is apparent that, due to their topography and context, these sites experience a high wildfire risk. This is confirmed by the grounds on which the CFA objected to the applications, which state that the sites are in an area that is prone to intense wildfire. Having regard to this, and in light of the catastrophic fires which occurred in Victoria during Black Saturday[7], any development of the review sites must ensure that the relevant fire protection objectives are satisfied.
3. For the reasons which I have outlined above, the requirements relating to water supply, access and vegetation management are not met. The developments, therefore, are not acceptable.
4. I will affirm the decisions of the Responsible Authority. No permits are granted.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] Pursuant to Section 61(2) of the Planning and Environment Act 1987, the Responsible Authority must decide to refuse to grant the permit if a relevant referral authority objects to the grant of the permit.

[5] Prepared by Terramatrix Wildfire Management Services

[6] Department of Sustainability and Environment 2004