2009 VICTORIAN BUSHFIRES ROYAL COMMISSION
Letters Patent Issued 16 February 2009
Response of the MAV and 77 Municipal Councils to the Submissions of
Counsel Assisting on Roads and Roadsides
Date of Document:
Filed on behalf of:
Prepared by:
Mallesons Stephen Jaques
Level 50 Bourke Place
600 Bourke Street
Melbourne Vic 3000
1
8 April 2010
MAV and 77 Councils
Solicitors’ Code: 8469
Telephone: +61 3 9643 4000
DX: 101 Melbourne
Attention: D Gardiner/C Fox
These Submissions are made on behalf of the Municipal Association of Victoria and the 77
Municipal Councils (together, the “Councils”) in response to the Submissions of Counsel
Assisting on Roads and Roadsides Clearance dated 15 March 2010 (“Counsel Assisting’s
Roadside Submissions”) to the 2009 Victorian Bushfires Royal Commission (“the
Commission”).
Introduction
2
The Councils generally endorse, welcome and support many of the Proposed Findings and the
Proposed Recommendations in Counsel Assisting’s Roadside Submissions.
3
The Councils are pleased that many of the Proposed Recommendations reflect matters
identified by Councils in the Councils’ General Submission to this Commission dated May
20091, and the propositions relevant to the management of roadsides advanced by Dr Gregory
Lyon SC on 26 February 20102 on behalf of the Councils (the “Council Propositions”)3. In
particular:

the recognition that the roadside management regime is complex and difficult for
Councils, and does not provide sufficient guidance as to how to manage the competing
priorities of vegetation protection and fire prevention. This issue was raised in Council
Propositions 2 and 34, and is discussed in sections 5 and 9 of Counsel Assisting’s
1
General Submission by Local Government in Victoria, May 2009 (Sections 3.6 and 5.7)
(SUBM.002.040.0002).
2
T15672:12 - T15674:28.
3
Key Propositions of MAV and 77 Councils - Roadsides (TEN.246.001.0001).
4
Refer also to Spence at T15678:28 - T156789:2.
10298338_3
Roadside Submissions. It is reflected in Counsel Assisting’s Proposed Findings 2, 3, 4,
5, 6, 7, 8, 22, 23 and 24, and is addressed in Proposed Recommendations 1, 2, 4, 5, 6,
14 and 15; and

the recognition that roadside clearance and management activities are costly, that
Councils have limited or a lack of financial and practical resources to undertake
roadside maintenance and fire prevention activities, and that the amount of resources
that currently can be applied to roadside maintenance activities is determined by such
matters as the rate base, the proportion of rural and urban properties within a
municipality, other legislated and service demands that Councils must satisfy (such as,
for example, the provision of waste management services, community infrastructure,
aged care services, road maintenance, and family and community services5), and the
relative priority attached to roadside maintenance activities having regard to these
matters. This issue was raised in Council Propositions 6 and 7, and is discussed at
paragraphs 9.8 to 9.11 of Counsel Assisting’s Roadside Submissions. It is also
reflected in Counsel Assisting’s Proposed Finding 21, and in Proposed
Recommendation 3.
4
The express acknowledgment of the heavy responsibilities of Local Government within an
environment of limited financial and practical resources is welcomed6, particularly given that
in the country area of Victoria there are about 120,000 kilometres of roads under the
management of Councils7, and that it is often the municipalities with low population bases and
the most limited resources that often face the greatest bushfire risk. Councils strongly support
an increase in resources provided by the State to local government as referred to in Proposed
Recommendation 3.
5
As noted at paragraph 7 in the Submissions of the MAV and Councils in relation to Land Use
Planning8, the Proposed Recommendations of Counsel Assisting, if adopted by the State,
should be part of a comprehensive State bushfire risk strategy covering fire prevention
planning, vegetation management and clearance, building construction guidelines, fire
fighting capability, training and resourcing of key agencies, community preparedness and
emergency response and management.
6
The importance of such a comprehensive State bushfire risk strategy with clearly stated
priorities was elaborated upon by Neil Young QC on behalf of the Councils during oral
5
Refer to Spence witness statement (WIT.4000.001.0001) at para 21(a).
Counsel Assisting’s Roadside Submissions at paras 9.8 - 9.11; Council Proposition 7.
7
Spence at T15677:29.
8
RESP.4000.006.0001 at 0002.
6
2
submissions on Land Use Planning, and the Commission’s attention is drawn to those
submissions.9
7
The strategy in the context of roadsides should determine the balance which needs to be struck
between the protection of life and assets (through reduction of bushfire risk) and promotion of
environmental values, taking into account that, as noted by Counsel Assisting, roadsides often
have high conservation values and operate as significant wildlife corridors, important for the
preservation of certain species of flora and fauna.10
8
The Councils also welcome the proposed finding (and the separation of reality from myth)
that in the overwhelming majority of cases roadside vegetation had no significant impact on
the overall spread or shape of the bushfires the subject of this Commission and was largely
inconsequential11, particularly given the views that have been expressed from time to time in
the media and elsewhere in relation to roadside vegetation.
9
In this regard, the Councils also note that more investigation and research is likely to be
needed into the effect of roadside vegetation on fires on days of less severe conditions than
those which occurred on Black Saturday. Although Counsel Assisting in Proposed Finding 41
posit that in less severe conditions roadside vegetation would have been likely to have played
a more significant role in affecting fire behaviour, this was not the subject of thorough
examination during the hearings and deserves further investigation.12 What is unknown is the
extent to which roadside vegetation might “come into play”, and the impact of such vegetation
on days of more mild conditions.
10
This response addresses the 18 Proposed Recommendations in turn.
Proposed Recommendation 1
11
Proposed Recommendation 1 is that:
The State should revise the exemptions in clause 52.17-6 of the VPPs to ensure they
are more focussed on a purposive approach which permits the performance of
roadside works capable of reducing fire risk. In particular, the State should make
provision for a new exemption in the following form:
Exemption: Roadside fuel fire risk reduction works
9
Transcript, Hearing Day 128.
Proposed Findings 1 and 2.
11
Proposed finding 40; refer also to Counsel Assisting’s Roadside Submissions at paras 1.2, 1.10, and 13.1 13.28.
12
Refer to Counsel Assisting’s Roadside Submissions paras 13.19 and 13.27, and Strickland at T15801:16. See
also, as to the positive affect of trees on roadsides in protecting against bushfire, the evidence of Roberts
(WIT.141.001.0001 at paras 27 - 31, and paras 38 - 42); T15815.
10
3
Work undertaken on roadsides by councils, VicRoads or the DSE which is
performed for the purpose of reducing fuel levels on roadsides, or for the
purpose of reducing the risk of fires starting on or spreading from or along
roadsides where such work is approved, recommended or requested by a
Municipal Fire Prevention Committee, a CFA Brigade, or the DSE.
12
The Councils support a new exemption of the kind proposed, particularly given that it would
obviate the need to determine whether particular vegetation is or is not native.
13
The threshold task of determining whether or not vegetation which can be removed, destroyed
or lopped as a result of proposed roadside clearance activities is native or introduced is a
significant practical burden confronted by Councils in undertaking roadside vegetation
clearance activities. Determining whether vegetation which will be removed, destroyed or
lopped as a result of a roadside clearance activity is native or introduced can be a difficult task
to undertake, particularly in the absence of comprehensive and reliable botanical information.
Such information is rarely available in relation to particular roadsides.
14
Given the restrictions upon the removal, destruction or lopping of native vegetation, Councils
are generally required to make this determination as a threshold matter before deciding
whether or not the requirements of clause 52.17 of the Victorian Planning Provisions
(“VPPs”) apply to a roadside clearance activity. In some cases, this can require detailed
botanical surveys to be undertaken. This requirement can be costly and time-consuming. It
can add significantly to the administrative and practical burdens associated with undertaking
roadside clearance activities. On this basis, the fact that the requirements of clause 52.17 of
the VPPs only apply to native vegetation is of limited practical benefit to Councils, given the
need to determine whether or not roadsides contain native or introduced vegetation. It is
noted that Counsel Assisting’s Proposed Recommendation 19 in the Submissions of Counsel
Assisting on Land Use Planning,13 will provide some assistance to Councils if adopted by the
State.
15
In addition to applying to clause 52.17-6 of the VPPs, a new exemption of the kind proposed
should also extend to any overlays, which often impose further limitations on the
circumstances in which vegetation may be cleared. Unless the exemption applies to both
clause 52.17-6 and any applicable overlays, the effectiveness of the exemption in relation to
enabling fire prevention works to be undertaken is likely to be limited.
16
A new exemption of the kind proposed by Counsel Assisting, apart from referring to a
Municipal Fire Prevention Committee, should also make reference to Municipal Fire
Management Planning Committees (“MFMPCs”), given the progressive implementation of
the Integrated Fire Management Planning Framework (“IFMP Framework”).
4
17
An exemption of the kind proposed, if implemented, should give greater certainty around the
priority to be given to roadside fire prevention works, and will address certain of the concerns
raised by the Councils14 about the complexity of environmental regulation, in particular clause
52.17 of the VPPs.
18
This Proposed Recommendation will not resolve the complexities associated with the
application of the Flora and Fauna Guarantee Act 1988 (Vic), and the Environment
Protection and Biodiversity Conservation Act 1999 (Cwlth), as discussed by Mr Spence.15
However, other Proposed Recommendations may assist in this regard.
Proposed Recommendation 2
19
Proposed Recommendation 2 is that:
The State should amend the present exemption in clause 52.17-6 in relation to fuel
breaks to remove the 40 metre limit on width. The exemption should rather focus on
the purpose for which the fuel break is constructed and the benefits it might
achieve. Accordingly, the exemption should be revised to provide that road
managers, the CFA or the DSE may submit fuel break plans for approval by the
Secretary of the DSE, and that such plans will be approved where the proposed fuel
breaks are designed to reduce risk of fire and promote ease of suppression.
20
The Councils support this Proposed Recommendation.
Proposed Recommendation 3
21
Proposed Recommendation 3 is that:
The State should increase the resources provided to local government in Victoria to
discharge its bushfire risk management functions, in relation to its responsibilities
with respect to safe use of roads (including during fires) and the management of
fire risk on roadsides.
22
The Councils support this Proposed Recommendation.
23
Extensive evidence has been provided to this Commission as to the limited or lack of
resources available to Councils to discharge bushfire risk management functions16. In many
cases, Councils with high bushfire risk and large road networks in their municipalities suffer
the most from a lack of available resources. This arises as a consequence of their smaller,
more dispersed populations, smaller rate bases, and more limited revenue.
13
SUBM.600.001.0001 at 0110.
Spence T15678:28 - T15679:2; T15686:21-24; T15697:21 - T15699:12.
15
Spence T15692: 9 - T15695:14; T15701:11 - T15703:30.
16
Refer, for example, to Green at T15742:22-26, Green at T15744:27-31, Green at T15757:16-17, Green at
T15766:16-22, Exhibit 754, Statement of Spence, Attachment 2 (WIT.4014.001, at 0014-0028, and responses to
Question 17), Spence at T15679:3 - T15682:4, and as to the multiplicity of roles performed by Council officers,
see the evidence of Kittell at T17211:30 - T17212:16.
14
5
24
It is also of significance that Councils have been subjected to increased road maintenance
obligations over the last five years or so arising from the Road Management Act 2004 to get
roads, pavements and edges up to a reasonable standard in terms of road management plans,
which has placed further demands on already stretched resources17.
25
As further stated by Mr Spence in his evidence:
Ms Doyle SC: You spoke about priorities, which gives rise to a question about
funding and resources. Are councils given any component or line in their budget by
way of funding from the state government that is devoted to maintenance of roads and
maintaining the safety of roads?
Mr Spence: No, there is money that comes from the Commonwealth through their
grants programs that flows into local government for road management, but part of
the complexity of this is that the endangered species in the council environment, that
is councils that are at financial risk, the majority of those actually sit in the CFA
areas and they are the councils who have the longest road networks, the most
dispersed population, the greatest amount of state park, lowest revenue base and they
are the threatened species in our environment.18
26
Councils would welcome the provision of more resources from the State government to assist
with fire prevention treatments in relation to roadsides. This should not only take the form of
increased recurrent funding, but also the provision of increased resources generally (for
example, the provision of arborists and other specialist advisors, equipment and training
opportunities). Such increased resources should also take into account respective needs as
between Councils, with an emphasis being towards smaller Councils in areas of high bushfire
risk.
Proposed Recommendation 4
27
Proposed Recommendation 4 is that:
The State, working with the DSE, the CFA and the MAV, ought to seek a strategic
assessment from the Commonwealth DEHWA under the EPBC Act, to cover all
appropriate aspects of bushfire risk measures undertaken in Victoria including
conduct of planned burning, construction of fuel breaks and roadside vegetation
works.
28
17
18
The Councils support this Proposed Recommendation.
Spence at T15680:14 - T15680:20.
T15679:3 - T15679:17.
6
Proposed Recommendations 5 to 7
29
Proposed Recommendation 5 to 7 are primarily concerned with DSE, and Councils support
the Recommendations proposed.
Proposed Recommendations 8 to 12
30
Proposed Recommendations 8 to 12 are primarily concerned with VicRoads, and Councils
support these Recommendations.
Proposed Recommendation 13
31
Proposed Recommendation 13 is that:
VicRoads should attend meetings of MFPCs and Regional Fire Prevention
Committees for shires and regions where significant arterial roads and freeways
managed by VicRoads are located, to ensure it manages these roads in a systematic
way which conforms with the overall fire planning for the municipality or region in
question.
32
Councils are generally supportive of this Proposed Recommendation, subject to the comments
below.
33
First, reference should also be made to MFMPCs and Regional Fire Management Planning
Committees established under the IFMP Framework.
34
Secondly, attendance by a VicRoads representative at all meetings of committees such as the
MFPC or MFMPC may not be necessary. A MFPC may meet a number of times a year19. As
explained by Mr Kittell (the MFPO of Corangamite Shire) in his evidence20, the newly formed
MFMPC for Corangamite Shire consists of primary members (who must attend all MFMPC
meetings), and secondary members (who attend by arrangement when an issue of relevance to
them is to be discussed at a particular meeting). VicRoads is a secondary member of the
MFMPC for Corangamite Shire. This composition of the MFMPC is in accordance with
Strategy 5 of the IFMP Framework.
35
The Councils consider that an obligation upon VicRoads to attend all meetings of Committees
such as the MFPC and the MFMPC when informed by the Chairman of such a Committee in
advance that attendance is required may be sufficient. Should roads under the management of
VicRoads in a particular municipality be of sufficient significance from a bushfire planning
perspective, it may be that VicRoads attendance will be required at all meetings.
19
20
Nillumbik Shire MFPC meets about every 2 months: Creedon statement at para 30 (WIT.4011.001.0001).
Kittell Statement (WIT.4026.001.0001) at paras 53 - 56.
7
Proposed Recommendation 14
36
Proposed Recommendation 14 is that:
Councils should more proactively consider the ‘6 metre’ fuel break exemption in
Clause 52.17-6 of the VPPs to ascertain whether there are roadsides where it might
be used to construct fuel breaks parallel to roads.
37
The Councils are generally supportive of this Proposed Recommendation, subject to the
comments below.
38
To further aid in the interpretation and application of the six metre exemption in clause 52.176 of the VPPs, it would be preferable if more specific guidance were provided in relation to
such matters as:
(a)
whether the six metre width is intended to include the carriageway of a road, or is
intended to relate only to fuel breaks constructed along roadsides;
(b)
whether the six metre exemption is intended to authorise the clearance of all
vegetation within the six metre corridor, or whether clearance activities are intended
to be more limited to those directly associated with establishing and maintaining a
fuel break, such as through the clearance of fine fuels only; and
(c)
what precisely is intended by the reference to “fuel break”, and what works are
contemplated in authorising the construction of a fuel break.
39
The Councils also note that the six metre fuel break exemption in clause 52.17-6 of the VPPs
is subject to any overlays which may apply to a particular roadside. To address this issue,
reference is made to the comments at paragraph 15 above, where it is suggested that the
proposed fire prevention exemption should apply to all applicable overlays. The same
observation applies to the six metre fuel break exemption.
40
Subject to these observations, Councils generally support considering on a more proactive
basis the six metre fuel break exemption in clause 52.17-6 of the VPPs in undertaking fire
prevention activities along roadsides, taking into account that MFPCs or MFMPCs would be
the appropriate decision makers in this regard.
Proposed Recommendation 15
41
Proposed Recommendation 15 is that:
Councils should consider devising plans for the construction of strategic fuel
breaks (in consultation with the CFA and the DSE) and submit them for approval
under the exemption in Clause 52.17-6 of the VPPs. The focus of such plans ought
8
to be the protection of towns and assets in the municipality, and to complement
planned burns in the area in order to provide the best possible measures of fire
protection and increased ease of suppression.
42
The Councils are generally supportive of this Proposed Recommendation, subject to the
following.
43
To the extent to which this Proposed Recommendation relates to the establishment of strategic
fuel breaks along roadsides for which Councils are the responsible road authority, Councils
are willing to consider devising plans for the construction of strategic fuel breaks. However,
any such proposals would have to be subject to the consideration and approval of MFPCs (and
MFMPCs), and the involvement of other specialist agencies such as the Country Fire
Authority and the Department of Sustainability and Environment would be critical to ensuring
that any plans developed in reliance upon the strategic fuel break exemption are appropriate
and likely to be effective.
44
While Councils are willing to consider devising plans for the construction of strategic fuel
breaks, there are limitations to the extent to which they can do this. These limitations include:
(a)
Councils will often not be responsible for the control and management of land on
which it may be proposed to construct strategic fuel breaks, particularly around
vulnerable townships surrounded by forest. In such cases, it will be the relevant
Crown land manager who will be the appropriate lead agency;
(b)
Council responsibility for fire prevention works, particularly the construction of
strategic fuel breaks, is generally limited to the management of those roadsides in
relation to which it is the responsible road authority. Unless land adjoining such
roadsides is Council-owned, its powers and responsibilities are limited to the road
reserve. Councils have no authority to establish strategic fuel breaks on privately
owned land; and
(c)
Councils will be heavily reliant upon MFPCs and MFMPCs and the technical fire
expertise of specialist agencies, such as the Country Fire Authority and the
Department of Sustainability and Environment in devising plans for the construction
of strategic fuel breaks. Such specialist input is a critical precondition to the devising
and implementation of strategic fuel break plans21.
45
The strategic fuel break exemption is more likely to be of practical benefit to Councils
provided they are not required to provide offsets for vegetation clearance activities undertaken
in reliance upon the exemption. Councils have noted the challenges associated with providing
9
offsets to the Commission.22 The need to provide native vegetation offsets when establishing
strategic fire breaks along roadsides is one of the factors which discourage Councils from
relying upon the strategic fuel break exemption under clause 52.17-6 of the VPPs. If this
requirement were removed or ameliorated, greater use might be made of the strategic fuel
breaks exemption.
Proposed Recommendation 16
46
Proposed Recommendation 16 is that:
Additional resources should be provided to the CFA to enable its brigades to be
released from the burden of ensuring administrative compliance with and provision
of personnel for traffic management plans when undertaking roadside works.
47
This Proposed Recommendation concerns the CFA, and is supported by Councils.
Proposed Recommendation 17
48
Proposed Recommendation 17 is that:
The Commonwealth should provide additional training, information and advice to
road managers (particularly resource poor councils in fire prone areas of Victoria)
in relation to how they can best obtain information concerning their obligations
under the EPBC Act and ensure compliance with the requirements of the EPBC
Act.
49
The Councils support this Proposed Recommendation.
50
While it is acknowledged that some training has been provided to a number of Municipal Fire
Prevention Officers,23 more comprehensive and targeted training is necessary to ensure that
the complexities associated with the practical operation of the EPBC Act are properly
understood.
51
The provision of training alone will not address the concerns with the practical operation of
the EPBC Act, insofar as roadside clearance activities are concerned. A more holistic and
strategic approach, which addresses the onerous compliance obligations associated with the
EPBC Act, should be looked at.
21
See Council Proposition 5 (TEN.246.001.0001).
Spence, T15685:30 - T15687:6; Buckley, witness statement WIT.4015.001.0001 at paras 66 - 72; T15738 T15741.
23
T15706, Exhibit 755 - Environment Protection and Biodiversity Conservation Act 1999 State Municipal Fire
Prevention Officers Forum 23 June 2009 (TEN.239.001.0001); Treleaven cross-examination of Council roadside
panel at T15758 - T15760.
22
10
Proposed Recommendation 18
52
Proposed Recommendation 18 is that:
The Commonwealth should work with the State to rapidly progress a strategic
assessment to cover all suitable aspects of bushfire risk measures undertaken in
Victoria including conduct of planned burning, construction of fuel breaks and
roadside vegetation works.
53
The Councils support this Proposed Recommendation.
Dated: 8 April 2010
11