Bushfire Prone Areas – Game Changer

In December 2017 planning scheme amendment VC140 was introduced into the Victorian Planning Provisions. The amendment inserted an updated Clause 10 & 13 to the VPPs. The changes include, inter alia, a requirement for responsible authorities to:

Prioritise the protection of human life and the management of bushfire impact.

Consider bushfire risk in bushfire prone areas when assessing a planning permit application for specified uses and development such as accommodation, childcare and hospitals, etc.

The implications of VC140 has taken both permit applicants and numerous Councils by surprise, because they apply even if the subject site is not affected by a Bushfire Management Overlay.

In a recent VCAT case, Brown v Manningham CC [2018] VCAT 678,  the Tribunal noted the following:

  1. The changes to clause 13.05-1 include a clear statement that the Bushfire State planning policy must be applied to all planning and decision making under the Planning and Environment Act 1987. The policy not only applies to land that is subject to a Bushfire Management Overlay in the planning scheme, but it also applies to land within a designated Bushfire Prone Area and land proposed to be used or developed in a way that may create a bushfire hazard.           

The revised Clause 13.05 specifies:

In a bushfire prone area designated in accordance with regulations made under the Building Act 1993, bushfire risk should be considered when assessing planning applications for the following uses and development. The relevant list of use and development includes:

  • Subdivisions of more than 10 lots.
  • Accommodation (including a dwelling).
  • Child care centre.
  • Education centre.
  • Emergency services facility.
  • Indoor recreation facility.
  • Major sports and recreation facility.
  • Place of assembly.
  • Any application for development that will result in people congregating in large numbers.

Clause 13 requires that in the above type of applications an appropriate bushfire risk assessment must be completed and consultation with relevant fire authority (CFA) undertaken.

In Brown v Manningham the Tribunal went on to say:

10         In addition to the changes made to clause 13.05-1, clause 10.04 has also been amended.  Previously, it required planning and responsible authorities to undertake a balancing of conflicting objectives in the range of policies relevant to a proposal.  Clause 10.04 has been amended to include a final sentence that elevates the need to prioritise the protection of human life over all other policy considerations:

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.  However in bushfire affected areas, planning authorities and responsible authorities must prioritise the protection of human life over all other policy considerations.  or developed in a way that may create a bushfire hazard.

11           The Tribunal has previously noted in other recent decisions that prioritising one policy above all other policies appears to be a unique provision in the Planning Scheme.

14           … It appears that Councils and Permit Applicants in particular may not necessarily be aware of the new considerations contained in clause 13.05.  Given there is the possibility of these considerations necessitating changes to the detail contained in planning applications, the Tribunal would encourage all Councils and Permit Applicants to consider the relevance of clause 13.05 as part of the preparation and consideration of all permit applications, including those currently before the Tribunal. 

So, in summary, planning permit applicants should be aware that they must now:

  1. Verify if their land is identified as a Bush Fire Prone area designated in accordance with regulations made under the Building Act 1993;
  2. If land is designated under the Building Act as a Bush Fire Prone area, a bushfire risk assessment must be undertaken and may require referral to the relevant fire authority (CFA), even if the site is not contained within a Bushfire Management Overlay.

Most Municipalities are not yet aware of the potential implications of this new bushfire-protection regime. We recommend that permit applicants take the lead and raise this issue with Council’s if your land is considered bushfire prone under the Building Regs. even if not effected by a Bushfire Management Overlay.

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