2009 VICTORIAN BUSHFIRES ROYAL COMMISSION

Letters Patent issued 16 February 2009

STATE’S FURTHER SUBMISSIONS ON PLANNING

Date of Document:

Filed on behalf of: The State of Victoria

Prepared by:

Victorian Government Solicitor's Office

Level 25

121 Exhibition Street

Melbourne VIC 3000

16 April 2010

Solicitor’s Code: 7977

Telephone: +61 3 8684 0444

Facsimile: +61 3 8684 0449

DX 300077 Melbourne

Ref: PAC 944884

Attention: John Cain

1 . These submissions are made on behalf of the State of Victoria in response to

the submissions by Counsel Assisting dated 15 March 2010 to the 2009

Victorian Bushfires Royal Commission (Commission).

2. In its submissions dated 26 March 2010 the State reserved its position on

proposed recommendations 31 and 32 of Counsel Assisting until after the

municipal fire prevention evidence had been heard.1 That evidence was

heard by the Commission on 31 March 2010,2 and oral submissions on the

planning topic were heard by the Commission on 1 April 2010.3

3. Consequently, the State is now in a position to provide a response to

proposed recommendations 31 and 32.

RESP.3000.006.0001 at 0055-0056. T17155:1-T17226:23. T17251:11-T17294:4.

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Proposed recommendation 31:

Responsible authorities should refer any failure to provide a certificate of compliance with Bushfire Prone Overlay permit conditions to the Municipal Fire Prevention Officer for investigation and action as appropriate.

4. The State supports in principle proposed recommendation 31.

5. The State notes that enforcement of planning permit conditions already

occurs under the Planning and Environment Act 1987 (Act), which provides a

mechanism for the enforcement of planning permit conditions.4

6. The State acknowledges that while fire prevention notices are not intended to

be a mechanism for the enforcement of planning permit conditions under the

Bushfire Prone Overlay (BPO), the substance of matters addressed by a fire

prevention notice may overlap with the substance of certain planning permit

conditions, such as the requirement to manage vegetation to maintain a

defendable space.5 To the extent that a landowner’s failure to demonstrate

compliance with a planning permit condition may indicate the presence of a

bushfire risk, then the State agrees that it may be appropriate for councils to

complement the enforcement of the planning permit condition with action by

the municipal fire prevention officer.

7. It is also conceivable, however, that a fire prevention notice would not

address the full range of planning permit conditions imposed under the BPO

directed to mitigating bushfire risk. For example, it is doubtful that a fire

prevention notice could compel a landowner to provide an adequate water

supply for firefighting purposes or access for emergency vehicles.6

8. The State therefore stresses that a fire prevention notice should not be

considered, or used, as a substitute for enforcement of planning permit

conditions under the Act.

4 Gilmore Ex 679, WIT.3018.001.0001 at 0015, 0025 and 0026. 5 See, for example, Abbey Ex 689, WIT.4016.001.0001 at [73]; T14233:24-27 and T14238:20-29 (Creedon); T14281:17-22 and T14282:4-8 (Parsons). 6 See T14239:9-17 (Creedon).

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9. The State would support the following alternative recommendation:

Responsible authorities should refer any failure by a landowner to demonstrate compliance with conditions under the BPO to the Municipal Fire Prevention Officer for investigation and action as appropriate.

Proposed recommendation 32:

Section 28(1) of the Country Fire Authority Act 1958 should be amended to enable the Chief Officer to delegate the power under section 41F to issue fire prevention notices.

10. The State supports proposed recommendation 32.

11. The State notes that there was no evidence before the Commission that the

current system for the issuing of fire prevention notices by municipal fire

prevention officers is not working well.

12. In fact the evidence before the Commission in relation to fire prevention

notices in the Shire of Murrindindi, the City of Nillumbik and the City of

Latrobe was that significant numbers of fire prevention numbers are issued

every year, and that only a very small number of notices are not complied

with or require further action.7 As the evidence from Mr Conal Creedon

indicates, Murrindindi Shire Council has an active program for inspecting

properties in the municipality and issuing fire prevention notices, apparently

with, as Counsel Assisting notes, ‘a good compliance rate’.8 Ms Kathryn

Morland’s evidence indicated that Latrobe City Council’s municipal fire

prevention officer exercises similar diligence in the discharge of her

responsibilities.9

13. Nor is there any evidence that the inability of the Chief Officer to delegate his

power to issue a fire prevention notice has limited the effectiveness of the

current system.

7 Parsons Ex 693, WIT.4021.001.0001 at [150]; Creedon Ex 692, WIT.4017.001.0001 at [22]; and Morland Ex 694, WIT.4023.001.0001 at [101]. 8 Creedon Ex 692, WIT.4017.001.0001 at [19]-[21]; T14231:25-T14233:9 (Creedon); SUBM.600.001.0001 at [9.14] 9 Morland Ex 694, WIT.4023.001.0001 at [99]-[100]; T14310:28-T 14311:29 (Morland)

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14. To the extent that councils consider that resource constraints reduce the

capacity for municipal fire prevention officers to monitor properties, issue fire

prevention notices, and enforce them if they are not complied with,10 then the

State reaffirms its response to Counsel Assisting’s submissions at paragraph

41 of its submissions:

The State will work with local government to ensure that its responsibilities under the Act relating to bushfire hazard and risk management are appropriately resourced and administered.11

15. Recognition that the current system is working well, however, does not mean

that it cannot be improved. The State agrees that empowering the Chief

Officer to delegate his power to issue a fire prevention notice to an officer or

officers of the Country Fire Authority (CFA) will ensure that the CFA officer or

officers best placed to act, if a municipal fire prevention officer has failed to

issue a fire prevention notice, can do so.

16. Although the State supports proposed recommendation 32, it wishes to

stress two matters.

17. First, the submissions of Counsel Assisting on proposed recommendation 32

do not contemplate that the Chief Officer would delegate his power to issue a

fire prevention notice to an officer or officers outside the CFA,12 although

proposed recommendation 32, as drafted, does not contain such an express

limitation. The State supports proposed recommendation 32 as drafted by

Counsel Assisting, but submits that the Chief Officer should only be

empowered to delegate his power to issue a fire prevention notice to an

officer or officers of the CFA.

18. Second, the State stresses that the CFA’s role in the issuing of fire prevention

notices should remain, and should be seen to remain, that of a last resort

where the relevant municipal fire prevention officer has refused or failed to

10 See, for example, Creedon Ex 692, WIT.4017.001.0001 at [24] and T14236:5-6 (Creedon)., third dot point; T14283:1-3 (Parsons); T14180:5-9 (Abbey). 11 RESP.3000.006.0001 at [41]. 12 SUBM.600.001.0001 at [9.6].

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issue a fire prevention notice. All parties should recognise that proposed

recommendation 32 does not contemplate,13 and should not be interpreted

as contemplating, a change in the division of responsibility for the issuing of

fire prevention notices between municipal fire prevention officers and the

CFA.

19. The State does not support any party construing the proposed

recommendation as an opportunity to diminish the primary role for municipal

fire prevention officers in the issuing of fire prevention notices.

KERRI JUDD

MARITA FOLEY

Counsel for the State of Victoria

JOHN CAIN

Victorian Government Solicitor

16 April 2010

13 SUBM.600.001.0001 at [15.6].

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