1. What has changed with the Bushfire Management Overlay (BMO)?
Amendment VC109 introduced changes to the bushfire controls contained in the Victoria Planning Provisions (VPPs).
The following clauses have been amended:
- Clause 44.06 – Bushfire Management Overlay (BMO)
- Clause 52.47 – Planning for Bushfire
- Clause 52.48 – Bushfire Protection – Exemptions
- Clause 66 - Referral and Notice Provisions
Specific changes include alterations to:
- application requirements
- layout and operation of some clauses i.e. new alternate measures and approved measures
- defendable space requirements
- the provision of bushfire protection measures
- rules regarding construction standards and the provision of defendable space
- the ability to remove vegetation if used for the purpose of defendable space.
- the status of CFA as a referral authority: for applications for dwellings and subdivisions in the BMO, CFA is now a recommending referral authority, while for other applications CFA remains a determining referral authority
Please refer to the above clauses for additional information on the changes on the DPCD planning schemes website
2. When did the changes take effect?
Amendment VC109 was gazetted on 31 July 2014 and the changes to the bushfire controls took effect immediately. The provisions were put into the planning scheme on this date.
There are no transitional provisions.
3. What has CFA’s response to the changes been?
The State Government led the initiative to amend the bushfire planning controls. The justification behind this reasoning can be found within the Explanatory Report for Amendment VC109.
On 31 July 2014, the Minister for Planning released new planning provisions relating to the Bushfire Management Overlay (BMO) to CFA and the public. As there were no transitional arrangements, CFA initially advised our Fire Safety Officers not to respond to council on BMO applications for a short period of time to ensure that CFA procedures and decision making processes took account of the changed provisions.
CFA also sent requests for further information to councils for all active BMO applications that were under consideration by CFA; as they would be processed under the new provisions, CFA invited applicants to provide supplementary information where required or decide whether they wished to submit new applications targeted to the new provisions. This was to avoid anyone being disadvantaged.
4. How is CFA currently processing applications?
CFA now has established an interim process for considering applications within the BMO, which responds to the amended planning provisions and is consistent with the Department of Transport, Planning and Local Infrastructure (DTPLI) Practice Note 65 and our obligations under the Planning and Environment Act 1987 and the Country Fire Authority Act 1958. All applications are now being processed as part of business as usual.
Under CFA’s interim process, many BMO applications will have streamlined assessment by Fire Safety Officers in the field, while complex and difficult sites will be escalated to CFA Headquarters for peer review before providing advice to councils. The interim process will be monitored and either confirmed or reviewed as necessary.
5. What’s the difference between a recommending and determining referral authority?
Determining and recommending referral authorities are both referral autrhorities under section 55 of the Planning and Environment Act 1987.
- Determining referral authority – similar to CFA’s previous status, Council is bound to follow CFA’s advice and apply any conditions CFA imposes or refuse an application if CFA objects.
- Recommending referral authority – CFA still provides advice in relation to the application and may object, not object subject to certain conditions, or not object. CFA may also provide comments on the application. However, Council is not bound to follow the advice of CFA. E.g. Council can disagree with the advice or amend CFA’s conditions.
For more information, please refer to DPCD Referral and Notice Provisions
6. For what types of applications is CFA now a recommending referral authority?
CFA is a recommending referral authority for applications –
• To develop land with a dwelling in the BMO
• To subdivide land in the BMO
CFA is a determining referral authority for –
• Any other type of application in the BMO (e.g. office, place of assembly, accommodation other than a dwelling)
• Subdivisions that create a road which do not meet the requirements of Clause 56.09-3.
Refer to Clause 66.03 of the planning scheme for more detail.
7. What do the changes to exemptions for vegetation removal mean?
Changes to clause 52.48-5 (Bushfire Protection Exemptions) now exempts the requirement for a permit to remove vegetation for the purposes of creating defendable space for a dwelling.
This exemption only applies to land which is mapped in the BMO and in the following specified zones: 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.
This includes the creation of defendable space even if only a building permit is required, and the land is mapped in the BMO.
Refer to Clause 52.48 of the planning scheme for more detail.
8. If CFA has already provided a referral response under the former BMO, does CFA need to change the response if Council re-refers the application?
Another assessment would be required if an application is formally referred. The application would need to be assessed against the current provisions to determine if a different response would be provided.
Generally, if there is no change to the application, CFA should encourage Councils to consider the application based on the original referral advice.
9. What conditions will CFA usually use when responding to applications under the new provisions?
CFA’s standard planning permit conditions were under review at the time the planning controls changes. For applications made under the new controls, CFA will usually respond using the updated standard planning permit conditions.
Updated conditions have now been published and are available on CFA’s website
Other explanatory material
Where an applicant has proposed different bushfire mitigation measures as part of their application, CFA may accept these when they respond to a referral.
10. What is CFA’s position on bunkers and BAL-FZ exposure?
In reviewing the changes these matters will be carefully considered. Detailed advice on how these changes should be implemented is currently being developed. Applications where development in exposed to direct flame contact or a bunker is proposed will need to be carefully considered. These applications will be escalated for peer review and consideration by management.
11. What do the changes to the BMO mean for any existing schedules?
The gazetted BMO schedules have been translated into the new schedule template. Unless noted below, there has been no change to the mitigation measures contained in the original schedules.
There have been a couple of items added to all schedules:
• Approved Measure AM2.2, which requires siting to be addressed.
• A decision guideline that requires the responsible authority to consider whether all the substitute approved measures specified in the schedule have been met.
12. If an application in the BMO is currently before the Tribunal, does this need to meet the new BMO provisions?
The Tribunal is required to make a fresh decision on all planning permit applications on the basis of the current planning controls. This means that the Tribunal will need to assess the applications against the requirements of the new Bushfire Management Overlay.
13. Why has CFA sent a letter requesting further information?
Planning permit applications lodged prior to the 31 July 2014 were prepared in accordance with now, out of date BMO controls.
Changes to the bushfire controls took effect on 31 July 2014 i.e. the provisions were put into the planning schemes on this date.
Given there were no transitional provisions, this means that all current permit applications in the system need to be assessed against the objectives and requirements in the new planning controls. Accordingly, supplementary information may be required to explain how the application meets the current controls, or applicants may wish to resubmit their application in a way that specifically targets the new controls.
14. How should I respond to the further information letter sent from CFA? Does this mean I need to start my whole application again?
If you have received a request for further information it is recommended that you read it carefully. There may be some further comments in the letter that provide some direction about the bushfire mitigation measures that CFA is likely to support.
It is recommended that when you are reviewing your application to see if it meets the new provisions you should consider any comments provided by CFA.
If CFA’s further information request letter (or any other form of referral response) was sent more than 28 days after Council referred the application to CFA, Council has the power to make a decision on the application.
Section 59 of the Planning and Environment Act 1987 provides more detail in relation to the timeframes in which Council can make a decision.
15. Are there any templates available to help me assess my application against the new provisions?
At this stage there are no Bushfire Management Statement templates available. It is recommended you refer to Practice Note 65 for advice in how to respond to the new provisions.
16. Why are there no transitional arrangements in place so my application could be completed under the old BMO provisions?
The Minister for Planning is responsible for drafting the provisions. The Minister determined that no transitional provisions should apply. The explanation of the changes can be found within the Explanatory Report for Amendment VC109.