Upload
others
View
4
Download
0
Embed Size (px)
Citation preview
2009 VICTORIAN BUSHFIRES ROYAL COMMISSION
Letters Patent issued 16 February 2009
STATE’S FURTHER SUBMISSIONS ON PLANNING
Date of Document:
Filed on behalf of: The State of Victoria
Prepared by:
Victorian Government Solicitor's Office
Level 25
121 Exhibition Street
Melbourne VIC 3000
16 April 2010
Solicitor’s Code: 7977
Telephone: +61 3 8684 0444
Facsimile: +61 3 8684 0449
DX 300077 Melbourne
Ref: PAC 944884
Attention: John Cain
1 . These submissions are made on behalf of the State of Victoria in response to
the submissions by Counsel Assisting dated 15 March 2010 to the 2009
Victorian Bushfires Royal Commission (Commission).
2. In its submissions dated 26 March 2010 the State reserved its position on
proposed recommendations 31 and 32 of Counsel Assisting until after the
municipal fire prevention evidence had been heard.1 That evidence was
heard by the Commission on 31 March 2010,2 and oral submissions on the
planning topic were heard by the Commission on 1 April 2010.3
3. Consequently, the State is now in a position to provide a response to
proposed recommendations 31 and 32.
RESP.3000.006.0001 at 0055-0056. T17155:1-T17226:23. T17251:11-T17294:4.
350385_2\C
RESP.3000.006.0110
- 2 -
Proposed recommendation 31:
Responsible authorities should refer any failure to provide a certificate of compliance with Bushfire Prone Overlay permit conditions to the Municipal Fire Prevention Officer for investigation and action as appropriate.
4. The State supports in principle proposed recommendation 31.
5. The State notes that enforcement of planning permit conditions already
occurs under the Planning and Environment Act 1987 (Act), which provides a
mechanism for the enforcement of planning permit conditions.4
6. The State acknowledges that while fire prevention notices are not intended to
be a mechanism for the enforcement of planning permit conditions under the
Bushfire Prone Overlay (BPO), the substance of matters addressed by a fire
prevention notice may overlap with the substance of certain planning permit
conditions, such as the requirement to manage vegetation to maintain a
defendable space.5 To the extent that a landowner’s failure to demonstrate
compliance with a planning permit condition may indicate the presence of a
bushfire risk, then the State agrees that it may be appropriate for councils to
complement the enforcement of the planning permit condition with action by
the municipal fire prevention officer.
7. It is also conceivable, however, that a fire prevention notice would not
address the full range of planning permit conditions imposed under the BPO
directed to mitigating bushfire risk. For example, it is doubtful that a fire
prevention notice could compel a landowner to provide an adequate water
supply for firefighting purposes or access for emergency vehicles.6
8. The State therefore stresses that a fire prevention notice should not be
considered, or used, as a substitute for enforcement of planning permit
conditions under the Act.
4 Gilmore Ex 679, WIT.3018.001.0001 at 0015, 0025 and 0026. 5 See, for example, Abbey Ex 689, WIT.4016.001.0001 at [73]; T14233:24-27 and T14238:20-29 (Creedon); T14281:17-22 and T14282:4-8 (Parsons). 6 See T14239:9-17 (Creedon).
350385_2\C
RESP.3000.006.0111
- 3 -
9. The State would support the following alternative recommendation:
Responsible authorities should refer any failure by a landowner to demonstrate compliance with conditions under the BPO to the Municipal Fire Prevention Officer for investigation and action as appropriate.
Proposed recommendation 32:
Section 28(1) of the Country Fire Authority Act 1958 should be amended to enable the Chief Officer to delegate the power under section 41F to issue fire prevention notices.
10. The State supports proposed recommendation 32.
11. The State notes that there was no evidence before the Commission that the
current system for the issuing of fire prevention notices by municipal fire
prevention officers is not working well.
12. In fact the evidence before the Commission in relation to fire prevention
notices in the Shire of Murrindindi, the City of Nillumbik and the City of
Latrobe was that significant numbers of fire prevention numbers are issued
every year, and that only a very small number of notices are not complied
with or require further action.7 As the evidence from Mr Conal Creedon
indicates, Murrindindi Shire Council has an active program for inspecting
properties in the municipality and issuing fire prevention notices, apparently
with, as Counsel Assisting notes, ‘a good compliance rate’.8 Ms Kathryn
Morland’s evidence indicated that Latrobe City Council’s municipal fire
prevention officer exercises similar diligence in the discharge of her
responsibilities.9
13. Nor is there any evidence that the inability of the Chief Officer to delegate his
power to issue a fire prevention notice has limited the effectiveness of the
current system.
7 Parsons Ex 693, WIT.4021.001.0001 at [150]; Creedon Ex 692, WIT.4017.001.0001 at [22]; and Morland Ex 694, WIT.4023.001.0001 at [101]. 8 Creedon Ex 692, WIT.4017.001.0001 at [19]-[21]; T14231:25-T14233:9 (Creedon); SUBM.600.001.0001 at [9.14] 9 Morland Ex 694, WIT.4023.001.0001 at [99]-[100]; T14310:28-T 14311:29 (Morland)
350385_2\C
RESP.3000.006.0112
- 4 -
14. To the extent that councils consider that resource constraints reduce the
capacity for municipal fire prevention officers to monitor properties, issue fire
prevention notices, and enforce them if they are not complied with,10 then the
State reaffirms its response to Counsel Assisting’s submissions at paragraph
41 of its submissions:
The State will work with local government to ensure that its responsibilities under the Act relating to bushfire hazard and risk management are appropriately resourced and administered.11
15. Recognition that the current system is working well, however, does not mean
that it cannot be improved. The State agrees that empowering the Chief
Officer to delegate his power to issue a fire prevention notice to an officer or
officers of the Country Fire Authority (CFA) will ensure that the CFA officer or
officers best placed to act, if a municipal fire prevention officer has failed to
issue a fire prevention notice, can do so.
16. Although the State supports proposed recommendation 32, it wishes to
stress two matters.
17. First, the submissions of Counsel Assisting on proposed recommendation 32
do not contemplate that the Chief Officer would delegate his power to issue a
fire prevention notice to an officer or officers outside the CFA,12 although
proposed recommendation 32, as drafted, does not contain such an express
limitation. The State supports proposed recommendation 32 as drafted by
Counsel Assisting, but submits that the Chief Officer should only be
empowered to delegate his power to issue a fire prevention notice to an
officer or officers of the CFA.
18. Second, the State stresses that the CFA’s role in the issuing of fire prevention
notices should remain, and should be seen to remain, that of a last resort
where the relevant municipal fire prevention officer has refused or failed to
10 See, for example, Creedon Ex 692, WIT.4017.001.0001 at [24] and T14236:5-6 (Creedon)., third dot point; T14283:1-3 (Parsons); T14180:5-9 (Abbey). 11 RESP.3000.006.0001 at [41]. 12 SUBM.600.001.0001 at [9.6].
350385_2\C
RESP.3000.006.0113
- 5 -
issue a fire prevention notice. All parties should recognise that proposed
recommendation 32 does not contemplate,13 and should not be interpreted
as contemplating, a change in the division of responsibility for the issuing of
fire prevention notices between municipal fire prevention officers and the
CFA.
19. The State does not support any party construing the proposed
recommendation as an opportunity to diminish the primary role for municipal
fire prevention officers in the issuing of fire prevention notices.
KERRI JUDD
MARITA FOLEY
Counsel for the State of Victoria
JOHN CAIN
Victorian Government Solicitor
16 April 2010
13 SUBM.600.001.0001 at [15.6].
350385_2\C
RESP.3000.006.0114