On 5 August 2020 Amendment VC176 (Amendment) was gazetted, varying clause 52.12 (Bushfire Protection Exemptions) of the Victorian Planning Provisions, including by:
- Amending the existing ’10/30 Rule’ and ‘fence line vegetation’ exemptions to align with bushfire prone areas across all Victorian councils (designated under the Building Act 1993);
- Amending the ‘fence line vegetation’ exemption to align with clause 52.17 (Native Vegetation); and
- Clarifying that no permit is required to remove vegetation for the construction of a dwelling, and alteration and extension to a dwelling, or the creation of its defendable space when approved under clause 44.06 (Bushfire Management Overlay) (Amended Exemptions).
Background
Bushfires are a regular and complex part of the Australian environment. It is widely accepted that the leading contributing factors to the intensity of a bushfire are topography, weather and fuel. Of these, fuel is the only factor that humans can control. The State and Federal governments therefore place great importance on Australia’s preparedness to bushfire by way of fuel reduction methods.
The Victorian Government introduced the Bushfire Protection Exemptions into certain planning schemes of Victoria in response to recommendations of the 2009 Victorian Bushfire Royal Commission. Since this time a number of additional bushfires have ensued, including most infamously the ‘Black Summer’ bushfires of 2019/2020. The Amendment, among other things, introduces the Bushfire Protection Exemptions into all planning schemes of Victoria.
When is it acceptable to clear vegetation for bushfire protection?
The Amended Exemptions allow for the removal, destruction or lopping of any vegetation without the need for a planning permit under clause 52.16 (Native Vegetation Precinct Plan) or clause 52.17 (Native Vegetation) in a number of instances, including those set out below.
The exemptions do not apply to new sensitive uses (such as residential, early child care, or primary school uses) in bushfire prone areas.The Bushfire Protection Exemptions only apply to existing buildings used for accommodation, and existing boundary fences.
To create a defendable space around buildings used for accommodation (including the ’10/30 Rule’).
The Amended Exemptions allow for the removal, destruction or lopping of any vegetation (without a permit) within 10 metres, and the removal, destruction or lopping of any vegetation excluding trees (without a permit) within 30 metres, of an existing building used for accommodation located in an area that is designated as a bushfire prone area under the Building Act 1993 and either:
- Constructed or approved for construction before 10 September 2009; or
- Constructed to replace a dwelling or dependent persons unit damaged or destroyed by the Black Saturday bushfires of 2009.
Additionally, the Amended Exemptions allow for the removal, destruction or lopping of any vegetation excluding trees (without a permit) within 50 metres of an existing building used for accommodation located in the Bushfire Management Overlay and either:
- Constructed before 10 September 2009;
- Lawfully constructed without a planning permit before 18 November 2011;
- Approved by a planning permit or a building permit issued before 10 September 2009 and constructed before 18 November 2011; or
- Constructed to replace a dwelling or dependent persons unit damaged or destroyed by the Black Saturday bushfires of 2009.
To enable the construction of a dwelling, or the alteration or extension of an existing dwelling, and create its defendable space.
The Amended Exemptions allow for the removal, destruction or lopping of any vegetation (without a permit) to enable the construction of a dwelling, or the alteration or extension of an existing dwelling, and create its defendable space within the Bushfire Management Overlay provided:
- The land is in the General Residential Zone, Residential Growth Zone, Neighbourhood Residential Zone, Urban Growth Zone, Low Density Residential Zone, Township Zone, Rural Living Zone, Farming Zone or Rural Activity Zone; and
- The removal, destruction or lopping of vegetation:
- does not exceed the distance specified in Table 1 to clause 53.02-3 (Bushfire Planning) of a planning scheme; or
- is required to be undertaken by a condition in a planning permit issued after 31 July 2014 under the Bushfire Management Overlay for a dwelling or an alteration or extension to the dwelling along a fenceline.
The Amended Exemptions allow for the removal, destruction or lopping of any vegetation (without a permit) of a combined width of four metres along a boundary fence constructed before 10 September 2009 (or an additional one metre along one side of that fence where four or more meters have already been cleared along the other side of that fence) between properties in different ownership in an area that is designated as a bushfire prone area under the Building Act 1993.
The effect of the Amendment on the risks posed by future bushfires
The Amendment brings about changes to the Bushfire Protection Exemptions considered necessary for consistency and clarity within Victoria, and to reiterate the primacy of human life in bushfire regulations (in accordance with Recommendation 12 of the Parliamentary Inquiry into Fire Season Preparedness). This is particularly evident in relation to the dwellings and defendable space considered under the Bushfire Management Overlay.
The Amended Exemptions provided in the Amendment will enable those in bushfire prone areas to reduce the risk of bushfires through fuel reduction.
How can we help?
HWL Ebsworth has extensive experience advising on planning and environment matters concerning bushfire protection management. Our market leading knowledge in this sector enables us to deliver value for clients beyond the provision of legal services, regardless of business type or any given project phase.
To discuss this decision and how it may affect your business, please do not hesitate to contact us.
This article was written by James Lofting, Partner and Nicholas Bradley, Solicitor.
