report to development assessments committee item no · pdf filemornington peninsula shire...

Mornington Peninsula Shire Council 1

REPORT TO Development Assessments Committee ITEM NO. 2.3.1

MEETING DATE Monday, 19 July, 2010

SUBJECT Mornington Peninsula Planning Scheme – Amendment Request R931 Proposed Changes to the Wildfire Management Overlay

PREPARED BY Rosalyn Franklin, Team Leader – Scheme Review and Systems

AUTHORISED BY Manager – Strategic Planning

FILE NO. 09-005044

ATTACHMENT(S) YES

EXECUTIVE SUMMARY The purpose of this report is to outline a proposed response in relation to two matters: • A Country Fire Authority (CFA) proposal to reduce the area affected by the Wildfire

Management Overlay (WMO) under the Mornington Peninsula Planning Scheme (see Attachment 1 for Peninsula-wide view and Figures 3, 4 and 5 for close-up view); and

• Whether or not this proposed amendment to the Planning Scheme should be facilitated by the Minister for Planning without any public exhibition (via a Section 20(4) Amendment).

Key issues include: • The adequacy of fire prevention measures;

• The strength of the justification for the proposed WMO changes; • The need, methodology and timing for a comprehensive review of the WMO; and • The opportunity for public participation in any decisions that are made. The report concludes that it is reasonable to support the proposed reduction in the area of the WMO by way of a Section 20(4) Amendment as an interim measure, except for two areas in Mount Martha, one near the Balcombe Estuary and the other near Hearn Creek where officer advice suggests the WMO should be retained, at least pending further investigation. Following further discussions, the CFA now supports these recommendations. BACKGROUND The WMO was introduced into the Mornington Peninsula Planning Scheme on 11 February, 2010 by the approval of Mornington Peninsula Planning Scheme Amendment C9. The Minister for Planning prepared and approved this amendment without public exhibition. Similar Section 20(4) Amendments were also prepared for many other municipalities in Victoria at the same time and in the same way as part of a streamlined process for the introduction of the WMO. A notice advising the community of the introduction of the WMO and the opportunity to make a submission to a Ministerial Advisory Committee was published in the Mornington Peninsula Leader. In association with the introduction of these Planning Scheme Amendments, the Department of Planning and Community Development (DPCD) issued a Public Information Sheet on the WMO that described the purpose of the WMO, how WMOs are identified and the way in which the WMO regulates development (see Attachment 2).

Development Assessments Committee Meeting – Monday, 19 July, 2010 Mornington Peninsula Planning Scheme – Amendment Request R931 Proposed Changes to the Wildfire Management Overlay (09-005044) ITEM NO. 2.3.1


BACKGROUND (CONT’D) The Minister for Planning also established an Independent Advisory Committee as a source of advice about the merit of any land-owner request for removal of any part of a WMO that had been introduced by Amendment C9 or other like amendments for other municipalities. It is understood that in the Mornington Peninsula Shire, only five land-owners have sought to have the WMO removed from their properties. The affected properties are: • 27 Crestwood Drive, Rosebud;

• 15 First Settlement Drive, Sorrento; • 13 Murawa Drive, Rosebud; • 62 Parkedge Circuit, Rosebud; and • 41 (Lot 1209) Crestwood Drive, Rosebud. Only the properties at Crestwood Drive and First Settlement Drive are in areas that the CFA now proposes should be removed from the WMO. On 30 June, 2010, the Minister advised Council that he had approved Mornington Peninsula Planning Scheme Amendment C159 in response to the Standing Committee’s report on the land-owners’ requests. Amendment C159 removes the WMO from the properties in the Peninsula Sands, Rosebud area shown in Figure 1. The CFA’s current proposal for WMO changes includes the removal of the WMO from these same properties as well as from some additional Peninsula Sands properties as shown in Figure 2. DPCD (Senior Planner, Statutory Planning Systems Reform) has advised that the Advisory Committee process is not open to proposals for amendment of the WMO that are put forward by the CFA or Local Government. Furthermore, any CFA or Local Government changes that might seek to apply the WMO to new areas would need to be considered by way of the normal Planning Scheme Amendment processes that includes public exhibition, unless evidence was provided that exhibition was not necessary (e.g. prior consultation with land-owners).



BACKGROUND (CONT’D)

Figure 1: Areas Deleted from the WMO under Amendment C159

Figure 2: CFA Proposed WMO Deletions in Peninsula Sands, Additional to Amendment C159 (As Outlined in Black – C159 Deletions Not Shown)



PROCESS Although the Advisory Committee will apparently not consider Council or CFA proposals, DPCD is however willing to recommend to the Minister for Planning that a Section 20(4) Amendment be prepared to delete any unnecessary areas from the WMO that may be agreed to by Council and the CFA and has invited Council to comment on this matter by way of an emailed letter dated 16 June, 2010. Attachment 4 shows the areas that the CFA proposes for deletion. Shire Officers have met with the Regional Officer of the CFA to discuss how the WMO areas should be reviewed and it is understood that the areas shown in Attachment 4 comprise only the first stage of the CFA’s review of the WMO. It is understood that the computer modelling of vegetation upon which the existing WMO is based is not well suited to the conditions of the Mornington Peninsula and that the CFA needs to undertake further ground truthing (a process of field inspection and analysis to verify the need for application of the WMO). No timetable has been provided for the completion of this further ground truthing. However, there is an expectation that it may well result in recommendations for both additions to and deletions from the WMO. Prior to the Black Saturday fires, the Shire supported the introduction of the WMO, however it also advocated a parallel process effectively providing a general review of all regulatory instruments relating to wildfire management. Since then, the circumstances have unfortunately changed and it is now expected that various improvements to the system will emerge in response to the 2009 Victorian Bushfires Royal Commission process. The Commission’s report is due to be delivered to the State Government on 31 July, 2010. POLICY CONTEXT The Mornington Peninsula Planning Scheme contains the following policies that are relevant to this matter: State Planning Policy Framework • 15.07: Protection from Wildfire;

• 15.07-1: Objective – To assist the minimisation of risk to life, property, the natural environment

and community infrastructure from wildfire; and • 15.07-2: General Implementation – In consultation with relevant fire authorities, planning

authorities must identify wildfire risk environments in Planning Schemes. Local Planning Policy Framework • 22.11: Mornington Peninsula Fire Protection Policy.



DISCUSSION The proposal raises the following key issues: • The nature and adequacy of fire prevention measures; • The strength of the justification for the proposed WMO changes; • The need, methodology and timing for a comprehensive review of the WMO; and • The opportunity for public participation in any decisions that are made. Nature and Adequacy of Fire Prevention Measures In terms of fire prevention, there are a number of complementary statutory mechanisms that are supplemented by CFA and Shire education programs for owners and occupiers. These include: • The WMO under the Planning Scheme that is complemented by a Local Policy for areas that are

not affected by the WMO;

• Building Regulations including reference to the Australian Standard 3959-2009; • Fire Prevention Notices under the Country Fire Authority Act 1958; • CFA’s Household Bushfire Self Assessment Tool; and • Fire Walk and Talks and other communication tools. Some of the mechanisms overlap somewhat, but this is considered to be an appropriate strategy, similar to an airline safety model, which means that there is less likelihood of something ‘falling through’ a gap. It is significant to note that the Building Regulations and the WMO both address the need for development to include fire protection measures, with the Building Regulations focussed on ensuring buildings are less vulnerable to embers, radiant heat and flame during the passage of a fire front and the planning outcomes relating to whether or not it is appropriate to build in an area and if so where that building should be located, how should it be accessed, what water supply it should have and what vegetation management might be required. Matters of siting can also be addressed under the building regulations. The CFA is a Referral Authority under the WMO but has no role in assessing Bushfire Attack Levels under the Building Regulations. The WMO assessment methodology is similar but different to the assessment under the Australian Standard (which is applied through Building Regulation) and this has the potential to result in greater setback requirements under the WMO. The Planning Scheme’s Mornington Peninsula Fire Protection Policy does not have the strength of the WMO control given that it does not trigger a permit or Section 55 referral to the CFA but it does need to be taken into account when planning permit applications are considered and it is noted that in the areas proposed for deletion from the WMO any subdivision requires a permit as do most dwellings of more than one storey. Subdivisions are also referred to the CFA.



DISCUSSION (CONT’D) Nature and Adequacy of Fire Prevention Measures (Cont’d) All of the fire prevention mechanisms have a basis in fire science – the Local Policy, because of its age, somewhat less so than the others. However, it should be noted that the fire and modelling science behind the application of the WMO does not take account of potential fuel loads in house to house fires such as was experienced in Canberra i.e. the buildings themselves increase the ‘fuel’ load. It is instead more related to impacts from forest fires and it is considered that there is considerable opportunity for improvement of the modelling to make it more applicable to areas like the Mornington Peninsula. It is expected that the State Government’s response to the 2009 Victorian Bushfires Royal Commission process might well result in significant change to fire prevention statutory mechanisms. Therefore it is appropriate to recognise that the current WMO and any changes that might be considered to it may be superseded within a relatively short time period. The Strength of the Justification for the Proposed Wildfire Management Overlay Changes The WMO areas proposed for deletion are built up areas, consisting of relatively small lots with a reticulated water supply and contain relatively little vacant land suitable for further subdivision. All of the areas, except for the most northern Mount Martha area (‘the Watsons Road area’), are distant from significant dense bushland areas of more than 5 hectares – one of the main parameters in the underlying modelling upon which the WMO is based. The justification for the proposed WMO changes is succinctly captured in the following extract from a letter by the CFA’s Fire Safety Team Leader, Southern Metropolitan Region dated 2 July, 2010.

“ The interim review and subsequent suggested changes to the WMO has been prepared on the

following grounds:

• Extensive ground truthing has been undertaken;

• Generally the tree canopy is not interlinking and is therefore less susceptible to the spread of fire through the canopy;

• The ground fuels in these areas is (sic) generally well managed by land owners;

• A fire originating in the National Park and spreading in a northerly direction is not likely

to continue its forward rate of spread beyond Melbourne Road which will act as a fire break;

• There are no patches of bushland of more than 5 hectares that have a tree canopy density

of more than 80%; and

• The areas marked for removal are generally greater than 100 metres from such patches of bushland.”

The areas proposed for deletion are significant given that they include hundreds of properties and this in itself should give relief to many of the owners/developers that are faced with significant difficulties that have arisen because of the lack of transitional provisions with the initial introduction of the WMO.



DISCUSSION (CONT’D) The Strength of the Justification for the Proposed Wildfire Management Overlay Changes (Cont’d) The WMO areas proposed for deletion are generally considered to still be subject to fire risk, but a risk of a lesser magnitude than those areas that are proposed for retention in the WMO and a risk that can generally be suitably addressed by other mechanisms. However, there are two areas proposed for deletion that are considered to be of higher risk than others. They are the Watsons Road area and the area along Hearn Creek. Whilst Shire Officers have not been involved in any of the ground truthing that the CFA has undertaken in respect of the proposed WMO deletions, their general knowledge of fire science and the local conditions in these areas have lead them to believe that the WMO should be retained to a greater extent than originally proposed by the CFA. Following further discussions with the CFA, which are outlined in more detail below, the CFA now supports the retention of the WMO in these two areas. The Need, Methodology and Timing for a Comprehensive Review of the Wildfire Management Overlay Shire Officers have undertaken desktop analysis of some of the areas of the Shire that are not covered by the WMO, some in conjunction with the CFA Fire Safety Team Leader and these have indicated that current fire science would support the application of the WMO to some additional areas and the deletion of the WMO from other areas. The further analysis and ground truthing required to confirm these areas would be greatly assisted by a comprehensive remodelling of the Shire with underlying assumptions that better fit with the Peninsula’s conditions. It is unknown whether in response to the Bushfire Commission processes there will be a change to the WMO planning mechanism and, if so, when it may occur. It would be potentially confusing for the public and wasteful of resources if the Mornington Peninsula WMO areas were comprehensively reviewed and additional ones proposed only to have the system changed a short time later. However, a more limited review in conjunction with the CFA to identify any significant additional areas to those now proposed for WMO deletion would be appropriate in the short term to relieve any unnecessary regulatory burden without any significant loss of positive fire prevention outcomes. The Opportunity for Public Participation in any Decisions that are Made The Minister’s introduction of the WMO, without any public exhibition and without any individual notification of affected land owners and now the proposed deletion of part of the WMO, by way of a Planning Scheme Amendment under Section 20(4) of the Planning and Environment Act 1987 removes the opportunity for public participation. It is noted that the reduction of regulatory burden should be in the interests of those owners. However, it is considered critical that a public consultation process should be included if there are any proposals for future WMO additions.



DISCUSSION (CONT’D) The Opportunity for Public Participation in any Decisions that are Made (Cont’d)

Figure 3: CFA Proposed WMO Deletions at Mount Martha (Outlined Areas)




Figure 4: CFA WMO Proposed Deletions at Peninsula Sands Estate, Rosebud (Outlined Area)




Figure 5: CFA WMO Proposed Deletion Generally North of Melbourne Road (Outlined Area) OFFICER DIRECT OR INDIRECT INTEREST No person involved in the preparation of this report has a direct or indirect interest requiring disclosure. CONSULTATION Letters were sent to planning permit Applicants that were affected by the introduction of the WMO soon after it was introduced. Whilst there has been incidental communication with such Applicants, the Shire has not conducted any targeted community consultation about the proposed reduction in area of the WMO. This report was prepared in consultation with the following Shire Officers who concur with its recommendations. The comments of the relevant Officers can be summarised as follows. Risk and Premium Coordinator The Council, giving advice to the Minister for Planning in this matter, is a proper course of action and should not cause any elevation in Council’s risk exposure.



CONSULTATION (CONT’D) Acting Municipal Fire Prevention Officer The rationale for most of the changes appears to be sound noting that the Shire was not involved in any ground truthing of the area north of Melbourne Road. However, the rationale for the deletion of the largely residential area in Mount Martha surrounded by Watsons Road, Bay Road, Reeve Street and Latrobe Drive is not apparent, given that there is dense bushland in the Balcombe Estuary to the north, with contiguous vegetation in parts within 100 metres of the properties from which the WMO is to be deleted and an immediately adjoining area that would appear to be less subject to risk in relation to that bushland that is proposed to be retained in the WMO. It is recommended that this area not be deleted from the WMO but like the remainder of the WMO that is to be retained, be subject to a further comprehensive review in the future. Team Leader – Natural Systems The area near Watsons Road, Mount Martha should not be removed even though fuel reduction in the bushland in this area has been substantial in recent years, the proposed removal near and including the golf course at Mount Martha also needs to be reconsidered as both Hearn and Hopetoun Creeks and roadside vegetation in this area could pose a threat. These reserves have been subject to a large amount of fuel reduction within the last two years. However, on balance, it would be preferable for the properties along Cornwall Crescent abutting Hearn Creek and on Somerset Drive adjacent the top of Hearn Creek maintained within the WMO. This would be achieved by a narrow band of WMO being retained between the two proposed removals. It is understood that the removals are proposed following some technical work by CFA and it would be useful to have the opportunity to discuss this with the CFA and to understand both the criteria applied to this site and the implications for planning applications in the future (Note: the recommendations of this report reflect these comments). The proposed removal at Peninsula Sands, Rosebud is supported as detailed site inspection has occurred and the removal of the WMO north of Melbourne Road, on the Southern Peninsula is also supported. Team Leader – Statutory Planning Unit The Team Leader – Statutory Planning Unit endorses the advice of the Acting Municipal Fire Prevention Officer. Country Fire Authority A meeting was held with the CFA, Acting Regional Manager, Southern Metropolitan Region on 24 June, 2010 to clarify the rationale for the WMO changes that had been proposed by the CFA and referred for Shire response by DPCD. Later that day the following rationale was received by email from the CFA.



CONSULTATION (CONT’D) Country Fire Authority (Cont’d)

“ Proposed Changes to the Application of the Wildfire Management Overlay in the Mornington

Peninsula Shire

The WMO introduced by Amendment C9 to the Mornington Peninsula Planning Scheme was broad because it was in the public interest that planning provisions that address wildfire risk were introduced in a timely manner. While the WMO had not been fully ground truthed, CFA agreed with Shire Officers at the time of the joint ground truthing that a conservative approach should be adopted with the application of the WMO on the understanding that it was an interim arrangement and the mapping would be reviewed. The CFA has now undertaken a detailed review of the application of the WMO in the area of the southern tip of the Mornington Peninsula. Having had regard to the purpose and provisions of the WMO, the different levels of risk across the Shire, the range of available risk mitigation strategies and recent vegetation removal, the CFA recommends that the WMO be removed from a number of areas in the Shire, in particular the residential area in the south of the Shire, west of Dundas Street and north of Melbourne Road. Although the risk is not as significant as the coastal and reserve interface areas, the CFA considers that there is still a level of risk to these established residential areas because of the complex interaction between the significant risk vegetation and the remnant vegetation interspersed through the residential development. However, the risk to these established residential areas can be satisfactorily addressed through other mechanisms including new construction being undertaken in accordance with AS3959-2009, the use of Fire Prevention Notices and community education. Accordingly, the CFA believes that future infill development in these areas can be accommodated without the imposition of the WMO requirements. The CFA have not yet completed ground truthing the WMO and so there may still be parts of the Shire where the WMO is not necessary. The CFA will consider the level of vegetation when assessing any future permit applications in these areas and ensure that an appropriate assessment of the corresponding risk is made. Planning Officers from the Shire have recommended that CFA consider the application of the WMO to several additional areas within the Shire. The CFA will work with the Shire to review these areas and make any future necessary adjustments. Continue Application of the WMO to Existing Residential Areas The CFA acknowledges that the WMO will continue to apply to areas that are in the Residential 1 Zone and where there is already a significant level of residential development. However, the level of risk posed by the vegetation hazard warrants the continued application of the WMO to these interface areas and assessment of individual development proposals through a planning permit. As previously stated, the CFA considers that there is still a level of risk to properties in the residential areas north of Melbourne Road. However, having regard to the purpose and provisions of the WMO in its current application CFA considers that at this time it is more appropriate that a range of other available risk mitigation treatments be applied to in-fill residential development in these areas. This is pending the development of CFA’s position on this matter which will be informed by research currently being undertaken by CSIRO as commissioned by CFA and any recommendations arising from the Victorian Bushfires Royal Commission.”



CONSULTATION (CONT’D) Country Fire Authority (Cont’d) On 2 July, 2010 a further meeting was held between Shire Officers and the CFA Fire Safety Team Leader, Southern Metropolitan Region. At that meeting a consensus was reached that the WMO deletions that would be appropriate in the Mount Martha area are those shown in Attachment 4. These deletions include some additional areas but exclude the areas near the Hearn Creek and part of the Watsons Road area that the Shire considered to be of higher fire risk. Since that meeting the CFA has followed up with a letter confirming its support for those changes. COMMUNITY PLAN The Shire’s Community Plan has a vision that includes an outcome for a ‘sustainable community that is safe’ and fire safety is treated as a priority in the Strategic Plan. In addition, Strategy 3.5.3 seeks ‘to enable the community to actively participate in decisions that affect their lives and their communities’. Deleting the WMO will involve less regulatory burden on land owners and in this sense supports Strategy 3.5.3. FINANCIAL ISSUES Deletion of parts of the WMO will have a positive financial impact on Council resources through reducing demands on statutory planning resources and given it is unlikely to increase Council’s risk exposure, no negative financial impact is expected. SUSTAINABILITY IMPLICATIONS The proposed deletions will mean that an unnecessary regulatory burden will be removed and this should have positive social and economic implications for land owners wishing to develop their land. CONCLUSION The WMO was introduced into the Planning Scheme by the Minister for Planning without any public review or the opportunity for ground truthing as a conservative response to an ‘emergency’ situation. Whilst this was undertaken in the public interest it is considered that a comprehensive evidence-based review is also appropriate. Time and resources do not allow this to be undertaken in the short term and so a partial review to identify any obvious areas for deletion is considered preferable at this time. There are significant benefits in removing unnecessary regulatory burden and it is noted that removal of the WMO does not necessarily result in a weaker fire prevention outcomes. There are Building Regulations and other planning and public education mechanisms that address matters of fire prevention in a complementary manner. The deletions proposed by the CFA are unlikely to capture all areas that might warrant deletion and it is considered that further work would be appropriate in this regard as part of a separate exercise in cooperation with the CFA.



CONCLUSION (CONT’D) The WMO areas put forward for deletion are considered to be justified in all but two cases (areas in Mount Martha, one near the Balcombe Estuary and the other near Hearn Creek), with the caveat that the Shire has been unable to undertake its own detailed ground truthing of the area north of Melbourne Road. The proposed reduction in the area of the WMO by way of a Section 20(4) Amendment is considered reasonable given that land-owners will have a regulatory burden removed. The findings of the Bushfire Royal Commission and the State Government’s response is expected to result in improved fire prevention measures and the proposed changes are not expected to prejudice the implementation of any such measures. RECOMMENDATION

That, in respect to the Country Fire Authority (CFA) proposed Wildfire Management Overlay (WMO) changes forwarded for comment by the Department of Planning and Community Development (DPCD) on 16 June, 2010, DPCD be advised that: 1. Council does not support the deletion of the WMO over some of the areas in Mount

Martha as shown in Attachment 3. 2. For the Mount Martha area, Council instead supports the deletion of the WMO in

areas as shown in Attachment 4 and notes that, following recent discussions with the CFA, the CFA is now also understood to support these deletions.

3. Council has no objection to the other areas proposed for deletion by the CFA. 4. Council would like the opportunity to undertake further consultation with the CFA

to identify possible further areas for deletion of the WMO that could be actioned through a separate additional amendment under Section 20(4) of the Planning and Environment Act 1987.

5. Council supports a comprehensive review of the WMO based on an updated model

with parameters that are better suited to the conditions of the Mornington Peninsula. Council appreciates that the timing and need for this review could well be influenced by the State Government’s response to the findings of the 2009 Victorian Bushfires Royal Commission and looks forward to further involvement in improving the wildfire management provisions for the Peninsula.

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