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04. Planning Matters
Important Changes to Bushfire Exemptions
These tidbits are part of the regular contribution made by Clause 1 Planning to INTERSECT. For more information, visit www.clause1.com.au
Little bits that can make a big difference to your town planning outcomes
Ph: 03 9370 9599 www.clause1.com.au Practitioners will be aware of exemptions contained in Clause 52.12 (Bushfire Protection Exemptions) of the Victorian Planning Provisions. Those exemptions supersede any need for a planning permit to remove, destroy or lop vegetation, in specific circumstances.
Previously these exemptions applied to all Victorian land except the 21 metropolitan and outer-ring municipalities listed in Clause 52.12.
Planning Scheme Amendment VC176, gazetted on 5 August 2020, is a statewide amendment affecting all planning schemes. The Amendment altered Cause 52.12 to:
• Add a purpose to the provision –To facilitate the removal of vegetation in specified circumstances to support the protection of human life and property from bushfire. To facilitate the construction and protection of community fire refuges and private bushfire shelters.
Align the application of the existing 10/30 and fence line vegetation exemptions with bushfire prone areas designated under the Building Act 1993 across all Victorian Councils; Remove the schedules to the clause; Update the wording under the fence line exemption, specifically the four-metre rule, to match that in Clause 52.17 Native Vegetation; Clarify 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 the Bushfire Management Overlay. Previously this clause (52.12-5) referred only to the construction of a dwelling and not alterations or extensions.
These recent changes mean that the exemptions now apply to all Victorian land that is identified as a designated bushfire prone area under the Building Act 1993.
The changes also provide clarity to issues which arose in the implementation of the previous exemptions, namely defendable space and the clearance of vegetation around fences.
Previously the exemptions included vegetation for a combined maximum width of four metres either side of an existing fence on a boundary between properties in different ownership, where that fence had been constructed before 10 September 2009. This exemption has been clarified to:
The fence must be located in an area that is designated as a bushfire prone area under the Building Act 1993. The fence must have been constructed before 10 September 2009. The clearing alongside both sides of the fence when combined must not exceed four metres in width, except where land has already been cleared four metres or more along one side of the fence, then up to one metre can be cleared along the other side of the fence.[our emphasis]
This last exemption provides a little more flexibility whereby the maximum clearance width along fence lines was previously a maximum of four metres.
These changes do not allow widespread clearing of vegetation across the state under the guise of bushfire protection, but they do provide consistency in vegetation removal provisions for all areas which have been deemed as prone to bushfire. This allows landowners to reduce fuel loads in areas of bushfire risk, regardless of which municipality the land is in without the burden of the planning approval process.
Councils being a bit cheeky
It has come to our attention that some Councils are including unreasonable requests in their ‘pro-forma’ correspondence. The specific issue pertains to several Councils making demands and inferences, as part of their requests for further information, that purport to require applicants to lodge formal amendments with their RFI response.
Regular permit applicants will be aware that:
Section 50 of the Planning & Environment Act states: An applicant may ask the responsible authority to amend an application before notice of the application is first given…
Section 50A provides that: With the agreement of the applicant and after giving notice to the owner, the responsible authority may make any amendments to an application that it thinks necessary before notice of the application is first given under section 52
Section 57A provides: An applicant may ask the responsible authority to amend an application after notice of the application is given under section 52.
In all three instances, above, the formal amendment of the permit application restarts the 60-day statutory clock, in which Council is required to make a decision, to day zero. So, the implications for permit applicants are significant.
Notably, VCAT has previously held that anything short of a ‘substantial rethinking’ of the permit application/ proposal would not normally constitute an amendment to the application. This generally means that; changes to plans that result from concerns raised in the RFI, the tweaking of setbacks, the rewording of the application form and other similar changes, that do not constitute a ‘substantial rethinking’ of the proposal, would not normally require a formal amendment pursuant to s.50, s.50A or s.57A.
However, some Councils appear to be inferring otherwise. Below are some examples of correspondence from Councils that have raised an eyebrow or two:
One south eastern-metropolitan Council includes the following sentence in their RFIs:
Should you wish to make any changes to your proposal, you will need to apply to Council to amend the application pursuant to Section 50 of the Planning and Environment Act 1987. Another south eastern municipality writes:
Any changes to the plans/proposal will need to be submitted with a request to amend the application in accordance with Section 50 of the Planning and Environment Act 1987 (the Act)
Whilst, a municipality in the north-west goes even further, stating:
If changes are made or additional information is provided as part of this request then Council may consider this as the applicant’s consent to amend the application in accordance with Section 50A of the Planning and Environment Act 1987.
Any inference that “any changes” to your proposal triggers the need for a formal Sec.50 or Sec.50A amendment or that Council can make such an amendment without the permit applicant’s expressed permission, is simply not true.
Clause 1 recommends that permit applicants include the following (or similar), at the bottom of their RFI responses to Councils that infer a formal amendment is automatically required:
Any changes to the application have been made to address the issues raised in Council’s request for further information letter. The applicant considers that these changes do not constitute a formal s.50 or s.50A amendment to the application and no request is made, or permission granted for such an amendment.
We are hopeful the above and attached information, along with that previously supplied, is sufficient for Council to now determine the application. Should, for whatever reason, Council conclude that the provided information is not sufficient we request a 30 day extension to the application’s existing lapse date, for any such matters to be resolved.
Feel free to copy and paste it. We hope that helps.
All council schemes to change
As part of the Victorian Government’s push to simplify and modernise our planning regime all Victorian municipal planning schemes are required to be updated to Victoria’s new format Planning Policy Framework (PPF), by June 2021.
Moonee Valley, Golden Plains and Glenelg are some of the first to already have made the change.
Permit applicants should expect a period of adjustment. Under the new format PPF you will no longer find the bulk of Local Policy under Clauses 20-22. Rather it will be listed under the relevant state-wide Policy in the teen-clauses.
Take a peek at Moonee Valley City Council’s recently updated scheme for a preview of what’s to come.