This blog reports on two developments, one coming out of Sydney and the other from Melbourne (hence my ‘tale of two cities’).

Mike Baird, Premier of New South Wales has announced the introduction of the Rural Fires Amendment (Vegetation Clearing) Bill 2014 (NSW) to ‘make it easier to clear trees and vegetation from around a property’ (see ‘New laws to protect property from bush fires’).   The Bill completes a promise made after the 2013 Blue Mountains fires (see ‘NSW bushfires spark a range of new laws’ 13 November 2013).

The Bill requires the Commissioner of the RFS to develop ‘a 10/50 Vegetation Clearing Code of Practice for the carrying out of vegetation clearing work on land situated within a 10/50 vegetation clearing entitlement area’.  A 10/50 vegetation clearing entitlement area is land identified by the Commissioner and published on a map.  The Bill contains no details on what the Commissioner is to consider when identifying what land is to be within a 10/50 vegetation clearing area; presumably he or she could make a declaration covering the entire State!

The 10/50 vegetation clearing Code of Practice is to identify what sort of vegetation clearing can be done within a 10/50 vegetation clearing entitlement area.  The Code of Practice must detail the type of vegetation, including trees, that can be cleared; when vegetation should be pruned, but not cleared; when herbicides can be used; how to manage the risk of soil erosion and landslip; protection of riparian buffer zones (not defined); protection of Aboriginal and other cultural heritage and the protection of vegetation that the land owner is under a legal obligation to protect (eg it may be an offset for other development or the like).

It is not clear whether there is meant to be ‘a’ Code of Practice that applies to all vegetation clearing entitlement areas; or whether there can be different codes for different areas.  Certainly the latter interpretation would be more useful given that the vegetation protection needs will vary across the State, but the Bill consistently refers to ‘The’ Vegetation Clearing Code of Practice (eg ‘The Commissioner may amend the Vegetation Clearing Code of Practice…’; ‘The 10/50 Vegetation Clearing Code of Practice … must …’; ‘The 10/50 Vegetation Clearing Code of Practice is to be made publicly available…’).  If there was to be more than one code of practice, each of those clauses would need to start with ‘A’ rather than ‘The’; so the inference must be that there is to be only one code of practice that applies across the State and to each vegetation clearing entitlement area, wherever they are.

Within a vegetation clearing entitlement area, and subject to the Code of Practice, a landowner may:

(a) remove, destroy (but not by fire) or prune any vegetation (including trees or parts of trees) within 10 metres; and

(b) remove, destroy (but not by fire) or prune any vegetation other than trees or parts of trees, within 50 metres,

of an external wall of a building that contains a ‘habitable room’ (but not if the building was built without, or contrary to appropriate development consent), residential accommodation or a high-risk facility (as defined by the Standard Instrument (Local Environmental Plans) Order 2006).   This work may be done without the need to obtain any approval or other authorisation under the Native Vegetation Act 2003, the Environmental Planning and Assessment Act 1979 or any other Act.  It does not matter if the building is on the land being cleared or not; so if your neighbour’s home is within 50 metres of the boundary of your property, the right to clear extends into your property, it does not stop at the boundary fence.

In earlier posts (see ‘Damned if you do, damned if you don’t – what to do about personal hazard reduction‘ 22 October 2013 and ‘NSW bushfires spark a range of new laws’ 13 November 2013) rules like this may be good for hazard reduction, but they may also lead to unintended consequences, such as denuding areas around homes that people actually enjoy. The balance to be struck is not always clear.  Although the rules have been created to allow people to reduce their bushfire risk their motivation is in fact irrelevant.  In Nillumbik Shire Council v Potter [2010] VCAT 669 the Tribunal found that there was no need for a landowner to prove that bushfire mitigation was their intention.  If the landowner wanted to clear the land for any other purpose, say, removing vegetation to avoid any objection to allow a larger development, then that is permitted.   The Victoria Tribunal held that if the landowner had to somehow prove their motive, eg by applying to council, that would defeat the very purpose of allowing clearing without a permit.   A similar conclusion would apply here given the terms of the Bill.

That’s the response in New South Wales.   On the same day the Victorian government announced ‘Key reforms will streamline bushfire regulations’ (The Hon Matthew Guy MLC, Minister for Planning, Media Release, 28 May 2014; see also Michelle Ainsworth, ‘New Rules to allow families to build bunkers in fire-prone areas‘ Herald Sun, 28 May 2014).   The Victorian planning documents are so complex I can’t locate the actual document and I’m not clear, given that the release says ‘The statewide amendment will be implemented shortly’ whether there is actually a draft amendment or merely an announcement that the governemtn will implement this policy.  I rely therefore only on the Minister’s Media release.

In the Media release the Minister has announced that the

Key features of the reforms include:

  • Allowing private bushfire bunkers as an alternative safety measure, where there may be increased bushfire safety risks that need additional consideration;

  • Allowing vegetation clearance to achieve defendable space. The cleared area around a home is vital to protecting the home’s occupants. Vegetation clearance obligations (‘defendable space’) would be limited to the title boundary of the relevant property;

  • Ensuring the assessment of bushfire risk is consistent with the Australian Standard;

  • Allowing more sensible bushfire safety measures in new master-planned estates; and

  • Allowing homes to be built on ‘infill’ lots surrounded by other dwellings. Where a dwelling is allowed, it will be able to be built with a fair and equitable bushfire response.

Allowing vegetation clearance sounds like the material discussed above, but allowing clearance to ‘achieve defendable space’ may be more extensive than the 10/50 rule being adopted in NSW and already adopted in Victoria.   Assessing bushfire risk in a way that is consistent with the Australian Standard seems reasonable as does allowing private bunkers provided they are adequately designed and constructed to ensure that they provide effective refuge.

It’s the last two dot points that raise concerns.  ‘Allowing more sensible bushfire safety measures in new master-planned estates’ and ‘Allowing homes to be built on ‘infill’ lots surrounded by other dwellings’ and ‘with a fair and equitable bushfire response’ all sound like ‘code’ for allowing more, not less, development in bush fire prone areas.  The Media release goes on to say:

Mr Guy said everyone was aware of the need to have a household Bushfire Plan, and to leave early on days of extreme fire risk.

“Victorians make informed decisions about living in areas of bushfire risk, and take responsibility for the risks of living in that environment,” Mr Guy said.

“By encouraging people to build homes to higher safety standards, the Napthine Government is improving the safety of the building stock as a whole. I hope that more Victorians will take the initiative of voluntarily improving the safety features of their existing home.

“These changes will help Victorians address the challenges of living in bushfire prone areas. It will see common sense return to planning decision making, while ensuring Victorians build their homes to the best possible standards,” Mr Guy said.

That’s all consistent with the concept of ‘shared responsibility’ that has received much attention in the 2009 Victorian Bushfires Royal Commission and the National Strategy for Disaster Resilience, and a libertarian may applaud the idea that ‘Victorians make informed decisions’ and ‘take responsibility for the risks of living in that environment’ but whether that’s in fact true remains debatable.  Without giving detailed reference there is much, and much ongoing research by institutions such as the Bushfire CRC* and now the Bushfire and Natural Hazards CRC* seeking to understand whether or not people are actually informed and what responsibility they do and should take for living in these areas.  It sounds like, if Mr Guy is to be taken literally, that the State of Victoria will allow people to build in these areas and will expect them, after the next bushfire, to have made adequate preparations to protect their home and to rebuild it should it be lost.   I somehow doubt that the response will be that cold and calculating.

Without access to the actual reform document it is not possible to identify the new rules or assess their likely impact, but the tone of the press release certainly suggests the Government, despite the immediate response to 2009, will be encouraging people back to the bush and, possibly, back into harm’s way.

* DISCLOSURE

My research has been funded by the Bushfire CRC and I am receiving ongoing funding from the Bushfire and Natural Hazards CRC.