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.