Setting priorities - what's important and not so important to a Coroner

I'm preparing this posting being reminded that we are into the period between the Jamieson Creek fire that occurred on 19 December 2015 and eventually rampaged on to devastate parts of the residential areas of Wye River and Separation Creek on Christmas Day and afterwards kept the fire and emergency services occupied for days.

The cost to the people of both settlements has been enormous, both financially, and emotionally for some I'm told. Then there's the other costs to the broader community, such as reliability of the Great Ocean Road.

If the Colac Otway Shire and the CFA had met their statutory fire prevention responsibilities, DELWP had been serious about its fuel management responsibilities according to the Code of Practice for Bushfire Management on Public Land, 2012 and Vicroads had worked cooperatively and effectively within the Colac Otway Shire Municipal Emergency Planning Committee, surely the effect of wildfire in the forest abutting the Great Ocean Road on soil stability would have been a serious consideration. Or maybe I'm being too generous and the knowledge and commitment is lacking in Vicroads.

Add to this the adverse effect of large scale tree removal on soil stability on reconstruction in Wye River and Separation Creek.

Were the trees damaged by fire to such an extent that large scale removal was considered necessary? Who made that decision and what was the criteria?

From my observations shortly after the fire the extent of tree removal seems wildly excessive, but then so is the broad-brush approach to bushfire attack level (BAL) ratings.

Let's digress a little. The Code of Practice for Bushfire Management on Public Land, 2012 is worth reading, particularly:

page 1 – under the heading "Primary objectives for bushfire management on public land in Victoria", first dot point. The Great Ocean Road would fall in the category "essential infrastructure", also known as "lifelines".

Clearly, the government through its agency DELWP failed miserably to meet the requirements of the "Code of Practice for Bushfire Management on Public Land, 2012" when it came to helping protect Wye River–Separation Creek and the strategically important Great Ocean Road. And here's an outcome that could have been avoided or at least substantially reduced if those responsible had done their jobs. It's known as "prevention" and it's far less costly than emergency response and recovery.

Some will remember a fire that occurred in the Lancefield area of Victoria that spread from an earlier DELWP fuel reduction burn-off. Premier Andrews was quick for the government to accept responsibility for the fire and promised compensation for people who could have done more to protect their homes. Here is one example of a house clearly lost from the effect of fire spreading from ember attack:

Lancefield, a fire that due to the fickleness of the weather and limited available resources a few days later escaped from a fuel reduction burn intended to protect those properties in the path of that fire.

Just imagine if later that year under different circumstances there had been no effort to reduce the fuel on the public land and a fire occurred from other causes, taking out those same unprepared properties. Would they have been eligible for compensation? Would the owners have been critical of DELWP for not fuel reducing the public land? Probably. Regardless, "a number of times Mr Fennessy [DELWP Secretary] said sorry to locals over the fire".

An obviously worried government commissioned inquiries that ultimately led to Premier Andrews departing from a recommendation of the Victorian Bushfires Royal Commission concerning a fuel reduction burning target. Any connection with a recent statement from EMC Lapsley concerning the failure to reach the fuel reduction burning target this year? A story in itself!

Shock and horror for the government, approximately 15 weeks later on 19 December 2015 lightning started a fire in the forest a relatively short distance southwest of Lorne, and the rest is very sad history for many people directly and indirectly affected.

No apology from the DELWP Secretary this time, just government 'spin' and cover-up at a high level.

Some health and safety and incident management considerations.

After telling us that aircraft were ineffective on the fire burning in a "gorge", as the fire was entering Wye River–Separation Creek I'm reliably informed that this large aircraft, the DC10 shown at the bottom in the following photograph, arrived overhead and dropped red fire retardant presumed to be Phos-Chek on a house in Stanway Drive, and possibly houses in the nearby Harrington and Sarsfield Streets, and maybe elsewhere in Separation Creek.

Though there was some cleaning and tank water replacement at the Stanway Drive house, are there houses nearby where people unknowingly drank, washed dishes, showered, etc, using contaminated tank water? Should this be worrying having regard to the concern being expressed over firefighting chemicals contaminating land around some defence establishments?

Lots of information available on firefighting foam and similar on the web. Four examples:

Bushfire CRC File Note

ASSESSMENT OF THE EFFECTIVENESS AND ENVIRONMENTAL RISK OF THE USE OF RETARDANTS TO ASSIST IN WILDFIRE CONTROL IN VICTORIA

EFFECTS OF WILDFIRE SUPPRESSION CHEMICALS ON PEOPLE AND THE ENVIRONMENT - A REVIEW

Fire retardants and health

A response from the government when questioned on the use of Phos-Chek over the settled area seems to disagree with what actually happened. Note that it lacks a date, possibly due to it being drafted by another and taking time to get before the signatory who, no doubt under some pressure at the time, accepted what was put before him and inadvertently neglected to date stamp it?

I'm not opposed to the use of safe additives to enhance the efficiency of water dropped from aircraft, but it must be done more judiciously than appears to be the case of the DC10 over Separation Creek during Christmas Day 2015.

QUESTIONS THAT DESERVE HONEST ANSWERS

Deployment of the DC10 Air Tanker

On deployment of this large aircraft to the fire that was already in the Separation Creek area, who made the decision to use it, was it the Incident Controller, was it under the direction of an accompanying Air Attack Supervisor or Birddog aircraft?

If under the direction of an Air Attack Supervisor or Birddog aircraft, why the decision to drop on a house amongst other houses when there could have been people present defending their homes?

I understand that this aircraft deployed direct from Sydney, dropped its load and returned to Sydney. If I'm correct, why at such a late stage in the day? Why was it not deployed when the fire first began to run or did the fire catch everyone 'napping'?

Expensive exercise committing that DC10 aircraft, was it cost-effective as a firefighting tool or was that not a consideration and the aircraft deployed from a level above the Incident Controller as a desperate last-gasp PR exercise?

For those interested in cost-effectiveness, and governments should be, the Bushfire CRC report "EVALUATION OF THE EFFECTIVENESS OF THE 10 TANKER AIR CARRIER DC-10 AIR TANKER, VICTORIA 2010" should be food for serious consideration. Whilst it may look impressive to the gullible masses, could the money have been better spent on prevention over the years prior to the fire?

Appreciation of the situation

Firefighter health and safety

A critical concern that should have been on the mind of the Incident Controller and above at the Regional Controller level was the health and safety of firefighters who, in the event of the fire getting away from its control line, would need to be deployed into Wye River and Separation Creek to save houses.

Due to the age and standard of construction of some buildings, there would have been vulnerable old buildings clad with asbestos fibre cement sheet. While a risk to CFA firefighters, would DELWP firefighters have been trained and equipped with the appropriate protective apparel to become involved with numerous burning houses in a residential environment the nature of those two settlements?

And what of the pathogens associated with old septic systems? Did any of the firefighters become directly exposed to systems damaged by the fire as they fought to save houses?

In conducting an early broad appreciation of the situation — if that was actually done — on which to base a suppression strategy and regularly review and update it as required, would the Incident Controller have been made aware of the failure of the Colac Otway Shire and the CFA to effectively address their statutory fire prevention responsibilities for both settlements hence their extreme vulnerability?

Would the Incident Controller also have been aware of the failure of DELWP to meet its fuel reduction burning plans for the forest between Lorne and Separation Creek, and the consequent critical need to 'pull all stops out' to extinguish the Jamieson Creek lightning strike before the wind increased later in the week?

Incident Management Arrangements

In establishing the Incident Management Team for this fire, was there 'churn' early on before an Incident Controller was settled on and if so why?

Concerning the Incident Controllers appointed to manage this fire, were they Level 3 qualified AND have the knowledge and on-the-ground forest firefighting experience required to successfully manage a forest fire in such a location as this to be able to recognise the appropriateness or otherwise of Incident Action Plans developed for his/her approval?

What arrangements, if any, were in place to assess ongoing effectiveness of Incident Action Plans and adjust accordingly?

Were there any financial, environmental or political limits imposed on the firefight?

Fuel reduction burn off

To me, it is beyond comprehension that this fire was not contained and made safe in the first couple of days.

It begs the question, was the failure to make this fire safe due to DELWP using it as an opportunity to undertake some fuel reduction burning off that had previously been denied it for 'political reasons' in the recent past?

That the forest burned so vigorously surely must question the government's statements that the forest had been to damp to fuel reduce.

Coronial investigation

To conclude, there are numerous questions around the failure to extinguish the lightning strike before it eventually took off to devastate Wye River–Separation Creek.

Towards the end of January, State Coroner, Judge Sarah Hinchey "determined that it was in the public interest to investigate the fire". Since then, nothing from Coroner Hinchey, except for a response from the Coroners Court to an inquiry from me early last week: "Unfortunately I cannot provide any time frames as to when the investigation will be complete."

Far be it from me to suggest what should be important and not so important to a Coroner setting work priorities, but given the requests for an investigation or inquiry, including one from the United Fire Fighters Union that I imagine would have known of firefighter health and safety concerns, I'm surprised that there's "no time frames as to when the investigation will be complete".

Given the time that has elapsed the evidence will be 'cold' and memories dimming, I'm beginning to wonder, was the Coroner influenced by the government — no doubt concerned over the potential for compensation claims — to give the investigation a low priority in the hope that it would go away?

Or is the Coroner the victim of a 'snow job' in the form of mountains of paper presenting the government's position?

Coronial Inquiry

As a concerned stakeholder citizen of Victoria I respectfully urge the Coroner conduct an open Inquiry and subpoena key players at all levels to give evidence and be able to be cross-examined for this shameful episode in our history to be fully transparent, if for no other reason that it must not be allowed to happen again.

Finally, there are 'key players' out there patting themselves on their backs that this was a very successful operation. On the contrary it was and is an ongoing disaster for many who put their trust in the emergency services, particularly the CFA that relies on community support to function.

Tree canopy separation - flawed or misused science or both?

I'm still working to get to the bottom of the requirement to remove 500 trees to achieve the CFA's initial one-size-fits-all requirement for canopy separation to protect a new dwelling, as mentioned in my 15 November posting "Bushfire Protection, VCAT, Fallibility and Fairness", as this arbitrary requirement affects some of my clients, too.

From my experience a rare instance of candor by the CFA representative — rare instance, in that questioning some in the CFA dealing with the Bushfire Management Overlay on their position usually receives the response to take it to VCAT if you're not happy, and that can be a flawed and terribly unfair process — when questioned why blanket two metres canopy separation was required the response was that the fire modelling program Phoenix RapidFire indicated that "crown fire" was likely on the land in question.

For those unfamiliar with Phoenix RapidFire this overview may help you gain some understanding of the 'tool' and its application.

For those interested a paper available on the web "Wildland–urban interface (WUI) fire modelling using PHOENIX RapidFire: A case study in Cavaillon, France" provides some information. This paper provides further confirmation that wind-borne embers or firebrands are the major source of fire spread, which has been well known by the fire management community in Victoria for many years, or it should be.

Under the heading "2.1 Fire case study" in the first paragraph:

Observations of the fire indicated that wind-carried firebrands were an important mechanism for fire spread during the initial stages of the fire, with embers launched from ridges initiating new fires in adjacent gullies.

In my 13 July 2016 blog posting "The nature of bushfire Part 3 ... how fire moves across the land" I provided some information on how fire entered Wye River-Separation Creek during Christmas Day 2015, together supporting aerial photographs.

Extinguished while still small, property loss can be prevented or minimised significantly. But this would require a change of mindset by the Victorian government i.e. departing its "leave early and live" policy.

But for now, CFA's one-size-fits-all tree canopy separation requirements and the CFA representative's reference to Phoenix RapidFire.

As I recall our discussion, the assertion was that the canopy of medium height predominately Stringybark eucalypts would be exposed to flames reaching a height of 29 metres and fire would burn up the stringbark trunks causing "crown fire" and that "two metres separation" of tree canopies was necessary to prevent crown fire occurring. And, while I'm on it, what is "crown fire?

The Australasian Fire and Emergency Service Authorities Council Bushfire Glossary, January 2012, provides the following definitions:

Crown fire – A fire that advances from top to top of trees or shrubs.

Crowning – A fire ascending into the crowns of trees and spreading from crown to crown.

Crowning potential – A probability that a crown fire may start, calculated from inputs of foliage moisture content and height of the lowest part of the tree crowns above the surface.

Crown scorch – Browning of the needles or leaves in the crown of a tree or shrub caused by heat from a fire.

From the definitions, some important issues:

1. Note, a fire that advances from top to top of trees or a fire spreading from crown to crown, not just the odd tree or shrub foliage or crown burning in relative isolation!

2. Note, crowning potential, amongst other factors, takes into consideration foliage moisture content and height of the lowest part of the tree crowns above the surface!

First, on "crowning" and "crown fire", photographs included in postings on 4 October 2016, 12 January 2015 and 22 June 2014 that show tree canopies exposed to fires burning under total fire ban weather conditions that only suffered "crown scorch". Why only scorching, is it due to the moisture content being sufficiently high enough to prevent ignition before the heat from the fire begins to drop after the fire front has gone past?

Looking around for a reasonably simple explanation, the theory explained in the following extract from An Introduction to Fire Dynamics, Second Edition, Dougal Drysdale, Wiley, 1998, seems to suit my purpose:

Following is a photograph taken on 2 July 2014 following a fire that occurred on the western side of the Geelong–Bacchus Marsh Road, at approximately midday, on 11 March 2014, a day of total fire ban. The photograph shows the transition from leaf scorch to all or parts of leaves that have actually been ignited. Ignited after the moisture had been expelled.

The following two photographs also taken on 2 July 2014 show that part of the roadside plantation near where the fire entered it heading south from the grass before wind from the northeast at approximately 24 kph gusting to 28 kph, recorded at Point Wilson. Note the scorched vegetation alongside where the fire burned south through the plantation, significant to my argument that moisture needs to be dispelled before they would actually burn.

The following two photographs are of the surface fine fuel, mainly dead and dry Casuarina tree 'needles', the average depth of which is indicated by the marker pen in the second photograph, and near surface fine fuel unaffected by the fire.

The marker pen provides some perspective on how aerated, hence conducive to complete combustion, was the distribution of the surface fine fuel.

The following two photographs illustrate how complete was the combustion of the surface fine fuel, yet the combustion of the living vegetation on some of the trees above what would have been a hot fire was incomplete.

The upper red arrows indicate unburnt leaves and the lower arrows indicate fallen leaves that fell from the scorch zone well after the fire was out.

The red arrows indicate scorched Casuarina 'needles' that despite their close proximity to the ground were not completely incinerated.

The following three Google Earth photos are of the area covered in my 2 July 2014 photos taken prior to the fire.

So far I’ve only covered the need for moisture to be removed from the fuel to enable ignition. In my next posting I’ll deal with flame i.e. its structure and temperature variation and the height of the fuel canopy being subjected to the drying process.

I’ve earlier pointed to postings showing examples of where only scorching occurred under extreme fire conditions, which supports my argument that true crown fire is a relatively rare occurrence.

Causes me to wonder if Phoenix RapidFire is flawed or being misused by the CFA to justify its one-size-fits-all approach to tree canopy separation or both. And, if Phoenix RapidFire is being used to support the government’s bushfire emergency warnings, is it reliable or does it under or overestimate fire spread potential?

And, on the suitability-to-role of people who won't or can't consider each case on its merits, that's something we should all be considering.

Finally, always open to respectful questioning or challenging in the comments.

Bushfire Protection, VCAT, Fallibility and Fairness

I'm revisiting my posting "Truth, justice and the Australian way or is it?" on 10 October 2016, to further discuss the performance of VCAT in its dealing with the two reviews I included in that posting.

First, whilst I may not always agree with the position taken by the CFA in its dealing with Bushfire Management Overlay (BMO) statements as part of planning permit applications, particularly when it comes to tree removal and the one-size-fits-all approach by some of its people, if the permit applicant is willing to accept the CFA's conditions then that should be the end of it .

From the 10 October posting:

In both cases people were wanting to build a home on their land and had much to lose. Would the two examples meet a fairness test or would they fit a definition of 'kangaroo court'?

Both cases involved considerable cost getting to VCAT and in the aftermath further considerable loss due to being left with devalued or even worthless land and broken dreams. And, it seems, a who-cares attitude by government or its minions.

How did it come to this?

Concerning Weingartner v Nillumbik SC [2016] VCAT 1359 (15 September 2016) despite the permit applicant satisfying the CFA with his BMO statement covering wildfire management, Nillumbik Shire Council — or its town planner planning department — decided not to accept the advice of the CFA and used wildfire risk as part of its grounds for refusing to issue a permit.

Rather than repeat myself, in commenting on the propriety of the appeal process in affirming Council's decision not to issue a permit the same comments apply to the Nillumbik Shire Council using wildfire as part of its permit refusal grounds.

Citing parts of the Weingartner v Nillumbik paper by numbered paragraph:

41. Although the CFA has undertaken its own assessment of the proposal, I am not persuaded that the measures proposed by the CFA conditions will overcome the difficulties of constructing a dwelling in an area which the CFA has assessed as being subject to significant risk on days of extreme bushfire weather. Underpinning the revised bushfire provisions gazetted in July 2014 is the necessity to prioritise the protection of human life over other policy considerations and where appropriate, to apply the precautionary principle when assessing the risk to life, property and community infrastructure from bushfire . My emphasis).

Let’s consider what VCAT has to say in para 41. First, the italicised “I am not persuaded ” in the first sentence is my emphasis.

Questions exercising my mind, what was the basis of the conclusion that I am not persuaded that the measures proposed by the CFA conditions will overcome the difficulties of constructing a dwelling in an area which the CFA has assessed as being subject to significant risk on days of extreme bushfire weather.

Where was the CFA so wrong in its assessment of the risk that it failed to not support the application rather than recommend risk mitigating conditions? In coming to this conclusion did VCAT take into consideration the effect of terrain on wind direction and speed — did it set up wind recording instruments under various wind directions that closely replicate wind on days conducive to the outbreak and spread of wildfire in the immediate area of the land involved — effect of upslope and downslope on fire spread and intensity? Did it do any destructive fuel sampling on and adjacent to the land in question to determine for itself the contribution of fuel to fire spread and intensity?

Begs the question, was VCAT qualified to come to such a conclusion? The following two photographs are of a house in the forest north of Lancefield that withstood the 2015 fire. Together with appropriate defensive space, this house was designed and constructed to withstand severe ember attack, high level radiant heat flux and the brevity of any passing flame contact consistent with wind speed likely to be experienced on that land. Further, it survived unattended.

Yet another example of fire not extending into the tree canopies .

There are numerous other well-prepared dwellings around Victoria that have withstood severe wildfire in the past. Is VCAT aware of this?

The same can be asked of the Nillumbik Shire Council in using wildfire as part of its grounds for refusing to issue a permit, for which the CFA had responded to the BMO referral by providing risk mitigation conditions.

Another issue in para 41. In the second paragraph VCAT refers to the necessity to prioritise the protection of human life over other policy considerations and where appropriate, to apply the precautionary principle when assessing the risk to life, property and community infrastructure from bushfire.

I've highlighted parts of subclause 13.05 Bushfire Nillumbik Planning Scheme where the protection of human life and precautionary principle appear under the heading “overarching strategies” and some other parts that may be of interest.

What is this “precautionary principle” to which VCAT refers? Some informative papers: “The Precautionary Principle”, UNESCO, 2005; and “Are Decision-makers Too Cautious With the Precautionary Principle?” Supreme Court New South Wales, 1999. I’m curious as to why VCAT viewed the “precautionary principle" as relevant in this case, but unfortunately it provides no explanation.

Strategy is defined in the Macquarie Dictionary Fifth Edition.

Concerning protection of human life, I’m curious as to how VCAT concluded that life safety was compromised by some other policy consideration when the CFA decided not to object subject to certain conditions. It was not a high risk subdivision proposal, but simply a family wanting to establish their home and willing to accept the CFA’s conditions.

It's also reasonable to expect that anyone willing to 'run the emotionally and financially costly planning permit application and VCAT gauntlets' will be sufficiently intelligent to prepare a wildfire survival plan that includes arrangements for the "stay and defend or leave early strategy".

Now let's consider VCAT's statements in the following paragraphs:

42. Maintenance of the defendable space in the manner required by the CFA is central to the implementation of bushfire protection measures. One of the development control strategies in Clause 13.05-1 is that new development should only be permitted where bushfire protection measures, including the siting, design and construction of buildings, vegetation management, water supply and access and egress can be readily implemented and managed within the property. (My emphasis).

I have no argument with para 42.

43. Apart from the large area of vegetation that needs to partly cleared and continually managed, I am also concerned about the practicality of achieving that management on slopes of up to 18-19 degrees. There are very few relatively level areas anywhere on the site and it is steep and difficult terrain to walk over.

and

44. In making these comments I accept that vegetation management can be more readily undertaken on the levelled areas around the dwelling, but I am more concerned about areas that are not levelled. Despite assurances that the defendable space can be maintained as required in order to lower bushfire risk to an acceptable level, I am not persuaded that level of management is practical on such a steeply sloping site.

Here, I wonder about the basis of VCAT's conclusion I am not persuaded that level of management is practical on such a steeply sloping site..

I've since been informed by the owner that he'd found a mower capable of managing the fuel on that slope. And, the CFA must have been satisfied that it could be managed.

If necessary there were other options such as a good brush cutter or maybe even on hands and knees with a large pair hedge clippers, as I trim the edges of my lawn if it gets away. Bewildering to say the least.

44. In considering the question of bushfire risk I have also taken into account another development control strategy in Clause 13.05-1 which is that the risk to existing residents, property and community infrastructure from bushfire is not increased. I have also taken into consideration local policy at Clause 21.05-2 which aims to restrict sensitive uses, such as dwellings, in areas of bushfire risk .

Let's consider how areas of "bushfire risk" are identified and promulgated. In my experience identification of "risk areas" was not done on a site-specific basis, and like the BMO was done behind closed doors.

There are areas with which I'm very familiar that the broad-brush approach by government unnecessarily disadvantages and frightens people. It seems not to take into account actual fire behaviour potential and how the risk could be reduced, in some instances with the proper application of fire prevention 'tools' in the Country Fire Authority Act. Wye River–Separation Creek is an tragic example that was promulgated as an area of "EXTREME bushfire risk" , yet virtually nothing was done to reduce that risk , which itself needs to be questioned.

Another example closer to home in this case, the government's Community Information Guide for Eltham found on the CFA's web site. To those of you familiar with the area covered by this, what is the fuel type and density in the various areas identified as "bushfire threat" that is true bush — whatever that means — or just gardens and lawns between dwellings as in the closer-settled parts of Eltham, Greensborough and Montmorency?

I could go on and on here, but I'm getting into subjects all of their own, so will end for now with the questions:

Was it appropriate that the Appellant be driven to take this matter to VCAT to get justice?

Was the VCAT process fair and reasonable as it dealt with wildfire?

Were the Appellant's human rights or property rights infringed by the VCAT decision?

Should the Appellant be entitled to compensation and from where should it be sought?

ADDENDUM 17 November 2016

Since this posting on 15 November, I’ve heard from the Appellant Stephen Weingartner. Too often the BMO losers are consigned to the VCAT dustbin without even a brief murmur of compassion and the circus moves on. I offered Mr Weingartner an opportunity to tell his story that I have included in the comments below.

Fairness? You be the judge.

The day a worm turned — or maybe it was a grizzly bear

"Even a worm will turn is an expression used to convey the message that even the meekest or most docile of creatures will retaliate or get revenge if pushed too far." en.m.wikipedia

The triumph of good over evil or action in the pursuit of the ideals of liberty, fraternity and equality or truth, justice and... Call it whatever you will, but a 'worm turned' at the recent Nillumbik Shire Council election following a large group of ratepayers banding together to get candidates whom they believed would better represent the interests of landholders if elected to council.

This group opened their own Nillumbik PALs - Pro Active Landowners Facebook page and it has been refreshing and encouraging to witness a community band together to overcome adversity. Adversity?

While there are probably other issues that caused dissatisfaction, I'm aware that a move by the former council to further control the use of private land through the introduction of proposed planning scheme amendments C81 and C101 caused this 'worm to turn' ... with due respect to the Nillumbik PALS, more a grizzly bear than worm.

And how did the 'worm turn'? Nillumbik Shire is comprised of seven Wards, with one councilor representing each Ward. Of the seven, five are now represented by councilors, being candidates supported by the Nillumbik PALs - Pro Active Landowners. The new Mayor and Deputy Mayor were supported by the Nillumbik PALs. And this from the Council Twitter account last Friday about the new Council .

What of the fate of the planning permit amendments that were the catalyst for the ratepayer backlash:

Photo by Nillumbik PALs - Pro Active Landowners

One incensed ratepayer who would be affected by proposed Amendment C101 appealed to VCAT. Here is the result of Parsons v Nillumbik SC [2016] VCAT 1898.

And this from the Council Twitter account last Friday confirming about the fate of C101.

Study Parsons v Nillumbik and draw your own conclusions. Suffice to pose the question, will senior council employees involved need to consider their positions?

Also in the mix is the abysmal manner in which the shire planning department, corporate CFA and VCAT have treated many dealing with the Bushfire Management Overlay (BMO) as part of planning permit applications.

I have first hand experience with the unnecessary and very costly difficulties or discouragements imposed on some people seeking to build on their land in Nillumbik Shire, and for no valid reason as far as wildfire protection is concerned.

Who knows what will be found if the new council decides to illuminate the darker recesses of the administration. Being intimately aware of some of the goings-on, to me "Watergate" does not seem an exaggeration.

I decided to post this as encouragement to others e.g. the people of Wye River-Separation Creek at the mercy of governments and insurers while trying to recover from the Christmas Day fire.

Nillumbik, an example of people power!

Again, I would welcome feedback.

Truth, justice and the Australian way or is it?

Maybe slightly off topic from the promised follow-on from the 4 October 2016 posting, but nevertheless worth airing in the public interest.

Here are two VCAT decisions that involve the BMO and bushfire protection, one in which I was involved in 2013 and a more recent decision that has come to my attention.

In both cases people were wanting to build a home on their land and had much to lose. Would the two examples meet a fairness test or would they fit a definition of 'kangaroo court'?

If you have an opinion feel free to express it in the comments provision at the foot of this posting.

Trees and wildfire - damaging mythology, just plain ignorance or self-serving risk avoidance

On commencing this blog on 16 February 2014 my intention was to assist people having difficulty with the Bushfire Management Overlay (BMO) considering the frustration I was encountering from the CFA and some councils in representing some of my clients and well aware that there were and continue to be others in the community experiencing similar difficulties.

The basis of dealing with the BMO as part of a planning permit application should be understanding fire behaviour, lacking in much of the community, and seemingly in part of corporate CFA when it comes to dealing with BMO referrals.

CFA promulgates its attitude toward the BMO at this time in a one-size-fits-all set of bushfire protection conditions, regardless of the actual conditions that contribute to fire behavior likely to affect a dwelling the subject of a specific planning permit application.

This attitude seems to be premised on a statement on the first page, penultimate paragraph, second sentence of the standard planning permit conditions: "Any justification for a tailored response should be included in the application". Why, who makes the decision and on what basis? More about this attitude later, but back to trees and wildfire now.

In the standard planning permit conditions there is a one-size-fits-all requirement under the heading Defendable Space stating that "the canopy of trees must be separated by at least 5 metres".

An arbitrary five metres canopy separation usually generates a planning permit condition requiring offsets that can be very costly to someone trying to establish a new home — many thousands of dollars, approximately $120,000 in one situation I'm aware of. Imagine the impact of that extra cost on a young couple trying to establish their dream home.

Raises the question, why would the CFA require a blanket canopy separation, is it because canopy or crown fire is not well understood by some CFA people making policy and dealing with BMO referrals? Hopefully the following will help.

Some examples to get the subject started.

In a blog posting on 23 April 2016 I included the following photographs from Wye River in the aftermath of the Christmas Day fire where crown fire was virtually non-existent. Observe the unburnt vegetation virtually to ground level.

And, what better than some examples from Ash Wednesday 1983. The following are from my collection photographed in the Lerderderg State Park a few days after the Trentham East fire. They show the effect of the fire at the time it was still heading in a generally southeasterly direction towards Bacchus Marsh and prior to the wind change to the southwest much later in the day forcing it towards Mount Macedon.

Above is a view of Firth Park in the Lerderderg State Park showing an absence of crown fire in the forest in the background. Note the singed trees or shrubs in the foreground.

The following two photographs are further south from Firth Park towards Bacchus Marsh.

What is particularly significant about these two apart from the lack of crown fire? Observe the unburnt shrubs/suckers at the base of the trees!

Below from my blog posting of 22 June 2014 are two examples of trees and shrubs in the path of the 9 February 2014 Gisborne fire as it travelled northeast towards Riddells Creek after the wind change.

The fire weather conditions this day were described as being the worst since 7 February 2009 (Black Saturday). Again, observe the vegetation close to the ground left unburnt when the fast moving grass fire passed.

The evidence is that crown fire is a relatively rare occurrence.

To quote Professor Julius Sumner Miller, "Why is it so?" The answer is in the fire triangle.

I will continue this theme in my next posting. Meantime, those of you who have or are still grappling with the BMO as part of a planning permit application may find the BMO Amendment VC109 July 2014 Explanatory Report of interest — ninth dot point on page 2 "remove their veto power" read the "CFA". It does not seem to be working in the manner then Planning Minister Guy intended, or maybe it is?

People grieving over the loss of trees in Wye River-Separation Creek may also find this posting of interest and it raise some questions.

The nature of bushfire Part 3 ... how fire moves across the land

I’m back with more to say on wildfire management after a break in Scandinavia and Scotland, with a few days in Berlin to learn about the rise and fall of the Wall or as the now defunct East German government or GDR named it, the "Anti-Fascist Protective Wall".

On the GDR side in a somewhat macabre outdoor museum and memorial to those who lost their lives trying to escape to the west.

While in Berlin I also took the opportunity to visit the Stasi Museum, formerly the Stasi headquarters. Stasi was the GDR's very secretive security organisation that had wives spying on husbands and vice versa, etc, etc and virtually everyone reporting on someone.

Chilling in many respects and I can relate the behaviour of the dictator Eric Honecker and his predecessors and their unelected functionaries to the behaviour of some “public servants” back home, but maybe a little more about this later. However, I imagine there are “victims” of Victoria’s Bushfire Management Overlay (BMO) and other aspects of wildfire management or I should say mismanagement in various areas of Australia, who would see some connection.

For some, the agony goes on. Shortly after returning home I came across this story "Single mother with five children forced from home after Yarloop bushfires has nowhere to go".

Wye River–Separation Creek (Vic) and Yarloop (WA) both succumbed to the spread of embers or firebrands into the settled areas and in some cases house-to-house spread, an issue I've already mentioned in an earlier blog posting that refers to the role of "spot fires" in fire spread. How did fire enter Wye River–Separation Creek?

The four following photos courtesy of Mark Strachan, Tony Maly, Matthew Stoios, Channel 7, ABC and Hamish Blair show the fire entering the residential areas of Wye River and Separation Creek and an example of its effect. They are very instructive!

This photograph shows many small fires commencing in Wye River. The green arrow at bottom left indicates Wallace Avenue with the Great Ocean Road the prominent white-lined bitumen strip. The yellow arrows indicate "spot fires" caused by embers or firebrands falling out of the convection column forming above the area. The red arrow indicates 'Tottie's Place at Wye River' (see below) about to succumb to ember or firebrand attack.

This photograph shows houses already lost due to ember or firebrand attack in the Mitchell Grove area of Separation Creek indicated by the green arrow.

Tottie's Place at Wye River prior to the fire.

and following the fire. Note the virtually unaffected trees, and 'singed' garden plants in the foreground.

The following two photographs were taken at ‘Narmbool’, near Elaine, on 24 December 2015, a few days after the Scotsburn fire ran across the property.

The photos show the effect of embers landing in isolated patches of garden and under plantation shrubs and trees. A couple of issues to note:

1. A hot fire in vegetative mulch under garden shrubs that extended to the gate before being extinguished by people who remained to defend the structural assets. The mulch under the shrubs around the house became involved, too, and it’s not hard to imagine the outcome if there’d been no one there to extinguish the initially small fires.

2. Fires under shrubs that can only have extended into that area by ember attack. Note how the fire was not sufficiently hot to ignite the shrubs, as was the situation in much of Wye River–Separation Creek .

On staying to defend a dwelling, this video was recorded as fire travelled across a property at Anglers Rest in 2003 . Note that the passage of the fire is a series of spot fires that then move forward to spot again and eventually burn into already burnt ground, and no tree canopy or crown fire. Nothing special about this building, which now has a timber dwelling added to it.

Also, note the conditions inside the building. The man operating the hose to wet down around the building moves inside for a short period when the convective heat outside becomes too uncomfortable. All done without fire brigade assistance and a very instructive video that I'll refer to in a forthcoming posting. Suffice at this stage to say that this property was in forest or woodland, hence a lot more difficult to handle than spot fires occurring in Wye River–Separation Creek residential areas.

It is well known within within the rural fire service community or should be that most houses are lost due to ember or firebrand attack — Dr Caird Ramsay, CSIRO and Justin Leonard, CSIRO.

Why then the BAL–FZ and BAL–40 nonsense being inflicted on the people of Wye River–Separation Creek seeking to re-establish themselves after the losses of the Christmas Day wildfire? Maybe a damages class action offers an opportunity to put the state and local government people involved into the witness box and question them on their fitness for the roles they are playing and reasons for their positions. It may be that all that glitters is not necessarily gold.

The nature of bushfire Part 2 ... reality versus mythology and fuel reduced buffer zones

Continuing on from my Sunday, 16 April 2016 blog posting, but first a clarification of that post: my comment about variations to temperature and relative humidity during the summer months in the third paragraph below the “flame temperature and residence time of fire” diagram is deliberately broad. Important that we all understand and acknowledge that there are many days during the summer months when weather conditions are not conducive to the occurrence and spread of bushfire.

Convection Heating

While not usually a direct source of ignition, preheating of flammable materials occurs when those surfaces are exposed to several hours of hot wind consistent with a north wind during a period of Total Fire Ban or are subjected to hot gases generated by a fire. Simplistically, this preheating — hot air — serves to aid ignition of an unprotected building.

The diagram below from Bushfires in Australia, Luke, R.H and McArthur, A.G 1978, Australian Government Publishing Service, Canberra, illustrates flames, radiant heat from those flames, and convection beyond the radiation from the flames.

An example of convection heating is a gas fired domestic heater in the family home. The heater below from the Jetmaster website utilises two methods to heat the building, radiation from the gas flames and glowing coals and heating of fan-forced air passing over a register or heat exchanger inside the body of the heater.

The temperature of bushfire flame is finite — 1,000° to 1,100° Celsius according to Project Vesta — and the radiation from those flames decreases over distance. The distance from the predominant vegetation (defendable space) tables in Australian Standard AS 3959—2009 Construction of buildings in bushfire-prone areas provide separation from harmful radiant heat.

The temperature of the air above a bushfire, convective heating, depends on the size of the fire, the larger the fire the warmer the air. Convective heating (warm or hot air) likely to be felt at ground level requires very strong wind to keep it down and alone will not be of a temperature that exceeds the fire resistance capability of a building constructed the requirements of AS 3959—2009.

Convective heat compared with radiant heat

When considering the bushfire threat to the safety of the occupants of a building it is important to understand the difference between radiant heat and convective heating or “hot air”.

Under the heading “Duration of the passage of the fire front – how bushfires spread”, I sought to explain how fire moves across the land. The diagram is there to illustrate how quickly the fire intensity rise and fall occurs with the passing of a typical bushfire front. As I comment in the fourth paragraph, the time it takes for “the temperature to fall behind the fire front depends on the amount of heavier fuel available to burn out”.

Radiant heat

Radiant heat decreases over the distance that the heavier fuels behind the fire front are from a building and will normally not be sustained at the temperature associated with the passing of the actual fire front through surface fine fuel comprised of leaves, twigs and dry grass.

Below is an extract from the Manual of Firemanship Book 1, Elements of combustion and extinction, on radiation:

All forms of radiant energy travel in straight lines at the speed of light. The intensity [heat] falls off inversely as the square of the distance from the source of radiation [in this case fire]. This means at twice the distance the intensity is one quarter; at three times the distance, the intensity is one-ninth, and so on. The inverse square law can be understood by looking at Fig. 4.5.

The square with 1 metres sides is placed at, say, 2 metres from the source will throw a shadow with 2 metres sides on a second sheet placed 4 metres from the source. Thus the energy falling on 1 m² is the same as that which would have fallen on an area of 2 metres x 2 metres = 4 m² at a distance of 4 metres. So the energy per square metre at 4 metres is one quarter that at 2 metres, i.e. that is one quarter at twice the distance. This is important when considering the effect of radiation from the heat source such as a fire.

Manual of Firemanship, Home Office (Fire Department)1974, HMSO, London

An example of the reduction of radiant heat over distance is the depth of defendable space required to achieve a particular bushfire attack level (BAL), in this case not exceeding 29 kW/m² at the outer edge of the building across 26 metres on a downslope not exceeding 10 degrees below the dwelling to satisfy BAL–29 according to Table 2 Defendable space and construction, Clause 52.47 Victoria Planning Provisions (below) with “woodland” as the predominant vegetation.

Following the arrival of the fire front the level of radiant heat behind the fire front will rapidly become less than 29 kW/m² over the width of the defendable space to achieve BAL–29 in this case. Of course this is dependent on effective implementation of the specified defendable space vegetation management requirements for the subject land.

Referring to the explanation beneath the heading “Convection Heating”, regardless of the size of the fire further back in the “heavy fuel”, in the aftermath of the arrival of the fire at the dwelling it will increasingly become convective heat — hot air — that reaches the building. And, that “hot air” will dissipate at a rate influenced by that hot air normally rising close to where it is being generated, but of course dependent, too, on the slope of the ground involved — see the slope diagram under the heading “Convection Heating”.

Finally, referring to my 24 March 2016 posting "Bushfire attack levels and windfall financial gains" there are two photos associated with a BAL–29 dwelling on the high side of Karingal Drive, Wye River, showing dry but unburnt shrubs and tree canopy.

Following are two other examples in Wye River in the aftermath of the fire that are consistent with the effect of convective heat or radiant heat from low level flames, but certainly not sufficiently severe to warrant BAL–FZ or BAL–40 throughout the Township Zone if the Colac Otway Shire Council and the CFA had met their statutory fire prevention responsibilities.

Fuel reduced buffer zones

Questions remain to be answered by the Victorian government. Why was the privately owned land around much of the settled areas of Wye River–Separation Creek ignored pre-fire and continue to be ignored in township redevelopment arrangements? The fire hazard removal provisions in the Country Fire Authority Act 1958 exist to help achieve the fuel reduced buffer zone sought by the property owners, and earlier put to the Colac Otway Shire Council.

Why didn’t the Municipal Fire Prevention Officer Colac Otway Shire Council or the CFA Chief Officer "form the opinion" that the serving of fire prevention notices was necessary to protect life or property from the bushfire threat to Wye River–Separation Creek?

What losses and suppression costs could have been avoided if the powers available in the Country Fire Authority Act had been exercised?

Again, BAL–FZ and BAL–40 in a Township Zone as protection from ember attack and "hot air"??? What was the government thinking when it accepted that bushfire attack level assessment or was it a case of "pay the piper and call the tune"?