Having maintained this blog since 2016, given the experiences since then, it's reasonable to conclude that the Australian and State governments and some local governments only reinforce bushfire mythology, neglect their prevention responsibilities, fail to implement a full PPRR risk management approach to mitigating bushfire, shortcomings proven in the devastation of Wye River–Separation Creek on Christmas Day 2015 and Yarloop, WA, on 7 January 2016. And elsewhere since then.
On Christmas Day 2015 large areas of Wye River–Separation Creek were devastated by a fire that roared in from the adjoining forest — from a lightning strike that occurred in the forest to the north five days earlier — causing enormous emotional and financial pain and suffering that continues to this day.
The question must be why, to avoid it happening elsewhere in Victoria.
Those of you who've followed this blog will be aware that I'm yet to be convinced by the assertions of the Emergency Management Commissioner and Inspector-General for Emergency Management (IGEM) that the lightning strike that impacted just south of Jamieson Creek was "extremely difficult to access" and arguing that the vegetation was too dense to respond to the efforts of firebombing aircraft.
fourth paragraph beneath the heading "1.1 Observations – Fire control", page 3;
"OBSERVATION 1 – INITIAL ATTACK", page 3;
right side column beneath the concluding "RECOMMENDATION 3", page 4;
third paragraph down in the right side column on page 5;
right side column beneath the heading "Landscape and fire history" on page 11;
left side column beneath the heading "Detection of the fire 19 December", particularly the third paragraph mention of a "complex gully system" on page 12;
beneath the heading "Backburning strategy 22–23 December" on page 14;
beneath the heading "Use of aircraft", particularly the paragraph in the right side column "Helitacks are suited to the Otways terrain ... get close to the canopy. The long line and bucket capability ... extinguishing fire and hot spots" on page 21;
beneath the heading "4.7 Firefighter safety" on page 21;
The first of at least three basic issues I will now explore in this and following postings.
1. Inaccessibility and vegetation density
In the above references to the IGEM's "Review of the initial response to the 2015 Wye River–Separation Creek Track fire" mention is made of "steep hills and complex gully systems that are topographically and geographically challenging and covered by dense, multi-canopied vegetation" and "extremely difficult to access", in the Otway Ranges. While there may be such areas in the Otways is that the situation in the immediate area of the lightning strike on 19 December 2015?
Having generally worked in and explored that part of the Otway Ranges, including studying contour maps and manipulated the professional version of Google Earth to show relief, I'm of the opinion that claims that the lightning strike was in a "gorge" and therefore inaccessible was at least questionable.
Questionable, because I believe that DELWP had the remote area firefighting capability and firefighting helitankers fitted with belly tanks or suspended buckets hovering above the fire while still small would have drowned it with the tree canopy involved no barrier to the release of a full load of water reaching the ground.
In my blog postings of Wednesday, 3 February 2016 and again on Sunday, 14 February 2016 with the best information available to me at the time I endeavoured to display the location of the growing fire. The earliest position I could find was timed at 6:08 PM on 21 December 2015
At this point note that all the photos and maps below are large so when clicked on will show considerable detail.
I've recently been provided with a photo of maps that I'm reliably informed were used by EMV at a community information briefing in January 2016.
Below is an enhanced copy of the photos that came to me on a single sheet. While the quality is somewhat marginal, it is useful in showing the fire locations commencing at 6:30 PM on 19 December 2016.
Next is what is reasonably assumed to be the 19 December map extracted from the above montage and enhanced a little more.
It shows a small fire perimeter in black where indicated by my red arrow. I have also labelled the gully immediately north of Jamieson Track, before the fire perimeter.
Now, correlating with the latest Google Earth Map of the area.
Positions 1, 2 and 3 were recorded with a GPS along a track bulldozed to reach or at least get close to the lightning strike. Position 3 is near where the bulldozed track leaves Wye Road between Jamieson Track and Curtis Track.
Position 2 is at a rough junction in the track with the signs painted on trees as shown in the following two photos.
The first sign points to the north and a “hand trail”. The second points to the continuation of the bulldozed track to Position 1 and beyond
The following Google Earth photo is an enlargement of the earlier photo. The arrows first indicate where I believe the hand trail leaves Position 2. The two arrows further north indicate where I believe work on the hand trail is apparent, but my confidence is reducing further north of the upper arrow.
Rotating online Google Earth to put south at the top of the screen and tilting the image seems to support the presence of the trail at my northern-most indicator. Beyond that indicator the trail seems to wander off to the east and maybe elsewhere.
I invite you to analyse for yourself, and I’m now regretting that time prevented me from exploring at least part of the trail — maybe that will please some.
Finally, when it comes to identifying the position of the lightning strike, the following is an extract from the 1:30 k topographical map covering that part of Victoria.
Why am I confident with the general area I’ve nominated? Because of the location information provided above and the extension of the bulldozed track further towards the northeast from Position 1.
This is Position 1 where I parked my vehicle.
The aerial photo was taken above Position 1, on 27 January 2017. It shows the bulldozed track extending further to the northeast at left in the photo.
Below are two photos of the bulldozed track extending further northeast from Position 1 as shown in the aerial photo above. The extension of the track shown at right of right of centre is shown in the lower photo.
The following two photos are views across the gully towards Jamieson Track from the southern side of the bulldozed track adjacent to the northeastern end of the clearing at Position 1.
The following photo was taken from a similar location to the preceding two, but back towards the southwest.
The following series of photos are very instructive. They were taken in both directions on the north-facing slope in the forest below the extension of the bulldozed track further northeast of Position 1.
As the ground continued to level felt I was very close to the creek. Certainly not consistent with the definition of a “gorge”.
Back towards the southwest and below Positions 1 and 2, with the hand trail through there somewhere.
Below, a few more pieces on the “inaccessible” Jamieson Creek lightning strike puzzle.
The first photo below is from above the tree canopy on the side of Jamieson Track, taken from above Position 4 on 9 January 2017. The view is across a gully to the area of the lightning strike and behind it the Jamieson Creek gully. Beyond the gully the land rises up again, with Cumberland Track generally along the top.
The next five were on taken 27 January 2017 from above Position 1 on the Google Earth photo.
The first from the drone rising up through the tree canopy with the camera facing towards the southwest. My vehicle is visible lower centre in the photo.
The second is above the tree canopy from the previous photo and again towards southwest, with the Jamieson Creek gully visible at right.
The third is generally northeast towards Lorne, which is hidden. The Jamieson Creek gully is visible at left and a sharp eye may pick up Cumberland Track at the top of the rising ground beyond the gully.
In the next the view is lower than the third photo and generally in the same direction, showing more of the ground and some canopy separation.
The final photo is towards the south and Jamieson Track just below the skyline.
Inaccessible “gorge"?
To me, the country I traversed in my vehicle, and walking around in the area generally northeast of Position 1 did not seem all that difficult or hazardous for fit, well trained and safety-conscious DELWP firefighters accustomed to dry firefighting, with water available from tankers on the bulldozed access track and utilising hose lines and possibly relay pumping to reach the fire, and supported by hovering helicopters fitted with belly tanks or suspended buckets capable of getting water through the canopy and onto the fire.
Having acquired considerable experience in the bush e.g. much of Gippsland, Grampians and North East; former Jungle Training Centre, Canungra and nearby Levers Plateau; southern Tasmania; Otway Ranges; Kokoda Track; and observed at first hand the forests in various parts of North America and the Baltic, there is nothing remarkably difficult about the canopy in the area of the lightning strike.
If a 71 year-old could do it, admittedly only 'scratching the surface', why couldn’t the DELWP people? From what I understand, a 'walk in the park' for DELWP Gippsland people. On the contrary, Barwon South West people soft or poorly managed or led? Maybe they were victims of a disastrous 'cockup', where at least three major headquarters above the actual fire could not get it right. Too many cooks?
Or did the Incident Controller 'march to the beat of a different drummer' — sign found at the corner of Curtis Track and Cumberland Track on 9 January 2017?
Unfortunately, a long posting, so I’ll leave it here for now.
Plenty of reading for those interested, particularly the IGEM’s report — see if you can find any anomalies identified in it.
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.
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!
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:
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?
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?
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.
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.
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.
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.
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.
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.
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.
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?
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.
"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:
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.
