MINISTERIAL POWERS OF INTERVENTION IN PLANNING
AND HERITAGE MATTERS
REASONS FOR DECISION TO USE POWER OF
INTERVENTION
VICTORIA PLANNING PROVISIONS
AND ALL PLANNING SCHEMES IN VICTORIA
AMENDMENT VC109
The Planning and Environment Act 1987, the Heritage Act 1995 and the Victorian Civil and
Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in
planning and heritage processes.
In using my powers of intervention I have agreed to:

Make publicly available written reasons for each decision; and

Provide a report to Parliament at least every twelve months detailing the nature of each
intervention.
REQUEST FOR INTERVENTION
1.
No person other than the Minister has proposed or requested this intervention.
WHAT POWER OF INTERVENTION IS BEING USED?
2.
I have decided to exercise my powers to exempt myself from all the requirements of
sections 17, 18 and 19 of the Planning and Environment Act 1987 (the Act) and the
regulations in respect of Amendment VC109 to the Victoria Planning Provisions (VPP)
and planning schemes.
3.
Section 20(4) of the Act enables the Minister for Planning to exempt an amendment
which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the
Act or the regulations.
4.
In seeking to exercise this power, section 20(4) of the Act requires that the Minister must
consider that compliance with any of those requirements is not warranted or that the
interests of Victoria or any part of Victoria make such an exemption appropriate.
BACKGROUND
5.
In November 2011, the bushfire planning provisions including the Bushfire Management
Overlay (BMO) were introduced into the VPP and planning schemes by Amendment
VC83 replacing the previous Wildfire Management Overlay, in line with the
recommendations of the Victorian Bushfire Royal Commission 2009.
6.
The key changes introduced by the BMO and related particular provisions were:

a policy objective of ensuring development does not proceed unless the risk to life
and property from bushfire can be reduced to an acceptable level

new triggers and specific guidance for decision-makers concerning the location, site
design and construction of development, including bushfire protection measures.
7.
The BMO is underpinned by State Planning Policy for bushfire that prioritises human life
in decision making and applies the precautionary principle when assessing risks.
8.
Since the implementation of the BMO, a number of concerns have arisen about its
practical implementation for proposals to construct a new single dwelling on a lot and to
replace or extend an existing dwelling including:
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9.

the inability of some landowners to achieve defendable space because of site
constraints which can cause a planning permit to be refused

the rigidity of the system that does not allow for practical site specific solutions

inconsistencies in the application of the bushfire controls across the State

the inability of the system to consider alternative fire safety solutions

competing interests relating to vegetation removal for defendable space purposes.
Amendment VC109 proposes to amend the VPP and all planning schemes to:
 allow landowners to build a new single dwelling on infill lots within an existing
subdivision zoned: Neighbourhood Residential Zone, General Residential Zone,
Residential Growth Zone, Urban Growth Zone, Low Density Residential Zone,
Township Zone and Rural Living Zone; and replace or extend an existing dwelling in
an extreme bushfire risk area. In these circumstances, applications will be required
to meet an improved bushfire construction standard, but will not be assessed against
the broader landscape hazard. An application will require:
- a bushfire hazard site assessment
- a bushfire management statement
 align the BMO to include the Flame Zone using the Australian Standard AS3959
Construction of Buildings in Bushfire prone areas. Calculation of the Bushfire Attack
Level (BAL) for planning purposes will now be based on a Fire Danger Index (FDI) of
100, and not FDI 120
 enable the BAL rating in each case to be used to determine the building construction
requirements in bushfire prone areas
 remove the need for multiple approvals for vegetation clearance to facilitate the
provision of defendable space as the BMO permit will be the only permit process for
vegetation removal
 allow adjoining land to be included as defendable space where there is reasonable
assurance that the land will remain managed in that cleared condition
 allow a landowner who chooses not to clear vegetation to meet the minimum
defendable space requirements, to build to BAL Flame Zone.
 allow a landowner who provides the required defendable space and a private
bushfire shelter as an alternative safety measure, to build the dwelling to the next
lower corresponding BAL rating
 require that where a private bushfire shelter is required under the BMO, it will be a
mandatory permit condition that a s173 Agreement under the Planning and
Environment Act 1987 is registered on the title of the land between the landowner
and council
 change the referral authority status for relevant fire authorities for single dwellings
and subdivision from determining to recommending and remove their veto power
over some permit applications in BMO areas.
10. New residential subdivisions, a single dwelling on land not within an existing subdivision
zoned residential/township, two or more dwellings on a lot and vulnerable use buildings in
the BMO will still need to be designed to meet the current bushfire standards, with the
BAL and defendable space requirements based on FDI 100 for planning purposes. All
applications for a permit for these land uses must be accompanied by:
 A bushfire hazard landscape assessment
 A bushfire hazard site assessment
 A bushfire management statement.
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11. The Victorian Government has committed to working with the community and public land
managers to implement a range of measures to reduce wild dog impacts on livestock,
including wild dog exclusion fences separating public and private land. An integral part of
the program is fence maintenance by specifically controlling vegetation along the fence
perimeter.
12. Amendment VC109 will enable private landowners to clear native vegetation along a
fence on Crown land with the written permission of the Secretary of the Department of
Environment and Primary Industries, under certain circumstances.
BENEFITS OF EXEMPTION
13. The exemption will enable a prompt decision on the adoption and approval of the
amendment, which changes the VPP and local planning schemes to facilitate the:

consideration of applications to construct a single dwelling on a lot and replace or
extend an existing dwelling where permitted in accordance with specified zones, in
identified bushfire prone areas.

effective maintenance of wild dog exclusion fences by providing improved flexibility in
seeking approval to remove native vegetation on Crown land.
EFFECTS OF EXEMPTION ON THIRD PARTIES
14. The effect of exempting Amendment VC109 from the usual requirements set out in
sections 17, 18 and 19 of the Act is that third parties will not be notified of the proposed
amendment, or be provided with an opportunity to make submissions on the amendment
to an independent panel.
ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS ON
THIRD PARTIES
15. I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act
outweigh any effects of the exemption on third parties for the following reasons:

a permit application process is being provided for landowners in identified high
bushfire risk areas to have a proposal for a new dwelling considered based on
reasonable efforts to reduce bushfire risk without compromising the Government’s
policy position on reducing risk to life and property.

the positive impacts of the protection and maintenance of wild dog exclusion fences
will have a broader community benefit by providing further protection for livestock in
agricultural areas.
REASONS FOR INTERVENTION
16. I provide the following reasons for my decision to exercise my power under section 20(4)
of the Act.
17. I am satisfied that –
Compliance with any of the requirements of section 17, 18 and 19 of the Act is not
warranted because:
a)
Amendment VC109 facilitates a process that will provide fairness to landowners by
enabling new development to be reasonably considered under a range of
circumstances.
b)
Amendment VC109 follows a Department of Transport, Planning and Local
Infrastructure review of the planning and building framework for bushfire that involved
a Bushfire Review Working Group.
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c)
Amendment VC109 facilitates the maintenance of wild dog exclusion fences in line
with the outcomes of the Wild Dog Control Advisory Committee.
The interests of Victoria make such an exemption appropriate because:
a)
The proposed provisions will facilitate a permit application process to support the
ability of a landowner to build in identified bushfire prone areas without compromising
the Government’s policy position on mitigating bushfire risk.
b)
There is a need to provide a fair opportunity for landowners to have a proposal for a
new single dwelling and replacement or extension to an existing dwelling considered
on merit where permitted in accordance with specified zones where they have
inadvertently been impacted by VC83.
c)
Victorian communities in bushfire risk areas will benefit by increasing the bushfire
resilience of new single dwellings and replacement or extensions to existing
dwellings and be able to remove vegetation as a bushfire safety measure.
d)
The Victorian agricultural industry will benefit by reducing wild dog impacts in
agricultural areas and ensuring the sustainability of the wild dog impact reduction
program.
DECISION
18. I have decided to exercise my power to exempt myself from the requirements of sections
17, 18 and 19 of the Act and the regulations in respect of Amendment VC109 to the
Victoria Planning Provisions and all planning schemes.
SIGNED BY THE MINISTER
MATTHEW GUY MLC
Minister for Planning
Date: 17 July 2014
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