Brett Stevenson - 3 December 2019
Brett Stevenson presented to Council regarding A Case Study in Eurobodalla Council’s Record in Heeding NSW Rural Fire Service (RFS) Advice on Bushfire Risk Management at the Public Access Session on 3 December 2019.
Public Access Presentation : A Case Study in Eurobodalla Council’s Record in Heeding NSW Rural Fire Service (RFS) Advice on Bushfire Risk Management
Today I would like to address an important issue which is of great public concern at the moment, and will only increase into the future.
The issue is Council’s record in heeding advice from the NSW Rural Fire Service in matters of strategic bushfire risk management, which has important implications for public safety, public and private property, public liability as well as the safety of both government and RFS volunteer fire fighters. It is also a yardstick for assessing how Council’s performance measures up to the “good faith” requirements of the NSW Environmental Planning & Assessment Act and the Local Government Act, as well as how it approaches risk management in other areas.
The case study I will use is based on the recently gazetted Amendment 11 to the Eurobodalla LEP, which resulted from the adoption of the Rural Lands Planning Proposal. The case study will highlight key points of the RFS’s advice to Council up to when the Planning Proposal was submitted for approval to the NSW Planning Minister, and pose questions for Council arising from each step. All quotations used are taken from official RFS correspondence with Council.
1. RFS letter of 4th December 2015
The RFS’s first letter of advice to Council regarding the Planning Proposal indicates that it will need to satisfy requirements of Section 117 (2) 4.4 Planning for Bushfire Protection Guidelines, which were developed following the disastrous NSW fires in 2000, and have subsequently become the key resource for statutory bushfire requirements within NSW planning legislation.
The RFS letter makes it clear that many areas affected by the Planning Proposal are remote high risk bush fire prone lands which will require thorough investigations to justify any further development. The RFS flags the importance of taking into detailed consideration various aspects including steep slopes, heavily timbered land, road access requirements, minimum lot size, requirements for water, electricity and gas, and protection of High Conservation Value (HCV) land.
The RFS also identifies concerns with the use of open land use tables in these high risk bushfire prone rural lands as suggested in the Planning Proposal, and recommends the use of suitable large Minimum Lot Sizes and Environmental Zonings to avoid inappropriate development and protect high value conservation lands.
The RFS also recommended the use of appropriate overlay maps and their supporting clauses within the Local Environmental Plan, rather than transferring them to a Development Control Plan, as outlined in the Planning Proposal. The RFS considered that this provides greater clarity and certainty, and allows the community and landowners (or prospective land owners) to have realistic expectations of the development potential of these high risk lands.
It is notable that none of the RFS recommendations were incorporated in the final Planning Proposal.
The need to fulfil the requirements of Section 117 (2) 4.4 Planning for Bushfire Protection Guidelines is a key aspect in this whole matter, as the NSW Minister for Planning cannot approve rezoning of high risk bushfire prone lands which do not meet the Planning for Bushfire Protection Guidelines without the written approval of the Rural Fire Services Commissioner.
2. RFS letter of 12th July 2016
RFS Quotes : “Bush fire risk management should be addressed at the strategic planning stages to ensure that adequate bush fire risk management is incorporated into the development landscape and environmental planning instruments which form the platform for future statutory assessment ….”
Bush fire risk management measures should not be left to the statutory assessment stage. Bush fire planning, at the strategic stage, should consider bush fire hazard in areas proposed for future development to ensure future development can only occur where it has been determined there is an acceptable level of bushfire risk.
Notwithstanding this RFS advice, Council maintained its preferred course of removing strategic bushfire considerations from the LEP and into a DCP where these important matters now have to be negotiated on a case-by-case basis at the development assessment stage.
Questions for Council :
On what basis has Council decided that the Eurobodalla should not have bushfire planning dealt with at the strategic level in the LEP, as occurs in neighbouring bushfire prone LGAs of Shoalhaven and Bega Valley?
What unique characteristics of the Eurobodalla area justify this differentiation from our neighbouring bushfire prone LGAs?
What professional advice has Council sought to reject the clearly stated preference of the NSW RFS?
What level of strategic protection does Council’s decision afford to Eurobodalla residents and their properties, government fire-fighters and RFS volunteers?
The RFS also reiterated that the Planning Proposal’s use of open land use tables for bushfire prone rural areas was of particular concern, as it opened the way for Special Fire Protection Place (SFPP) activities such as Health Services Facilities, Group Homes, Educational Establishments, Child Care Centres, Seniors Housing, and Respite Centres to be located in these hazardous areas. These uses require abnormally large Asset Protection Zones and large scale road infrastructure, which will impact on High Conservation Value lands, as well as impacting downstream water quality critical for oyster growing and commercial and recreational fishing. These uses are also inconsistent with the primary objectives of rural zones, which are to encourage primary production. The RFS expressed similar concerns regarding land uses of Function Centres, Entertainment Facilities and Places of Public Worship now being allowed in bushfire prone rural areas.
The RFS restated its concerns expressed in a letter to Council in December 2015 regarding highly constrained sites subject to steep slopes, heavily vegetated land with limited access options, and once again stressed the need to undertake a thorough strategic bushfire assessment of areas proposed for rezoning. This assessment would need to address aspects such as topography, vegetation type, land tenure, proximity of existing settlements, the existing road network, access to and from the locality and the ability to provide suitable infrastructure to support residents and/or fire fighters in defending a locality. However, this assessment was never undertaken as part of the Planning Proposal.
The RFS noted that lack of thorough investigation was reflected in the draft Planning Proposal including contradictory advice for many areas proposed for increased dwelling densities. Council’s advice in the Planning Proposal often indicated that an area did not meet the acceptable solutions outlined in Planning for Bushfire Protection Guidelines, but despite this concluded that it was consistent with these Guidelines.
Question for Council : What was the technical and policy basis for Council not undertaking a Strategic Fire Assessment as requested by the Rural Fire Service and specified in the NSW Planning for Bushfire Protection Guidelines?
The RFS also requested that the results from the draft Bush Fire Prone Land Mapping then being carried out by Council (in July 2016) be used to inform the Planning Proposal, and advised Council to include the Eurobodalla Bush Fire Management Committee in the consultation process to ensure that any relevant matters could be integrated into the Eurobodalla Bush Fire Risk Management Plan.
Question for Council : How was the Eurobodalla Bush Fire Management Committee included in the consultation process, and what information was supplied to this statutory body?
3. RFS letter of 28th June 2018
RFS Quote : “The NSW RFS provided detailed comments, attended meetings and joint site inspections with Council and other agencies in order to discuss the contents of the Planning Proposal and further explain our concerns. Notwithstanding, the Planning Proposal appears largely unchanged from the previous versions and has not addressed the specific concerns identified by the NSW RFS nor undertaken a strategic bush fire study”.
This quote points to serious issues with Council’s handling of the RFS advice regarding bushfire risk management, with the RFS making it clear that despite strenuous efforts on its behalf the Planning Proposal does not reflect its professional advice, and is both inconsistent with and deficient in regard to the Planning for Bushfire Protection Guidelines.
“The RFS does not concur with the assessment of the Planning Proposal that items 1, 4 and 5 are consistent with this direction. In addition, the Planning Proposal does not identify a number of items which the NSW RFS believes should address the Section 117 (2) 4.4 Direction”.
The RFS then again requested that the results from the draft Bush Fire Prone Land Mapping (still being carried out by Council, nearly 2 years after the previous RFS request in their 2016 letter) be used to inform the Planning Proposal.
Questions for Council : Why was the draft Bushfire Prone Land Mapping still not complete after 2 years ? What is the current status of this mapping?
Were results of the draft Bush Fire Prone Land Mapping integrated into the Planning Proposal? If not, why not?
Is this draft Bush Fire Prone Land mapping the same mapping as that used in the Eurobodalla Bush Fire Management Plan? If it is not the same, in what way/s does it differ?
Did Council’s exceptionally slow timetable for completing the Bushfire Prone Land lead to the Eurobodalla Bush Fire Management Plan running more than 3 years late for its statutory renewal date?
The RFS again helpfully offered to assist Council in undertaking the Strategic Bush Fire Study as required by Planning for Bushfire Protection, an offer which was yet again ignored by Council.
The RFS summarised its position regarding the Planning Proposal as follows: “It is the position of the NSW RFS that the exhibited Planning Proposal is not consistent with the Section 117 (2) 4.4 Direction as it does not achieve the primary objective to protect, life property and the environment”
4. Public exhibition of Planning Proposal July-August 2018
Notwithstanding the RFS advice outlined above, Council put the draft Planning Proposal on public exhibition without incorporating the changes requested by the RFS. The Planning Proposal documents contain the following statement for each of the extreme bushfire areas.
“It is considered that any proposed future development of these lots would be able to comply with the requirements of Planning for Bush Fire Protection 2006. There is sufficient space to incorporate APZs and other suitable bushfire protection measures that would achieve adequate bushfire protection.” (Recurring quote from Rural Lands Planning Proposal Volume 2)
However, the NSW Planning Minister did not sign off on the changes recommended in the Planning Proposal for these high risk lands because he could not do so without the written approval of the NSW Fire Commissioner.
Questions for Council -
What technical and policy information did Council rely on to make these recurring statements in a public document exhibited for the consideration and advice of the Eurobodalla community, interested stakeholders and other government agencies, notwithstanding Council’s knowledge of the RFS’s longstanding and significant concerns with key aspects of the Rural Lands Planning Proposal across multiple areas?
In the light of the above information, was it reasonable for Council to create expectations that these highly hazardous bushfire prone lands could be subdivided and opened up for a wide range of potentially unsuitable, and indeed potentially unsafe, land use categories?
Why should Council seek to place responsibility for the current confusing and unsatisfactory situation to the Planning Minister and/or Planning Department when any familiarity with the relevant legislation would have clearly shown that these areas were unlikely to be approved for further subdivision or dwelling entitlements?
The bushfire risk management actions we take now will have significant impacts as we move into a future of even greater bushfire risks. Indeed, as I prepare this presentation I have heard that residents of Bawley Point, located just to the north of Eurobodalla Shire, have been asked to evacuate because of an imminent threat from the current ongoing bushfire emergency.
I therefore think that it is important in the interests of all the Eurobodalla community, government fire-fighting staff and RFS volunteers that Council provide written responses to the series of reasonable questions this case study has raised. Our community’s future safety and security deserve no less.
In closing I would ask all Councillors to reflect on the following question :
Has Council acted in good faith and to the best of its abilities to deliver informed, detailed and safe outcomes regarding bushfire risk management in the Eurobodalla?
Thank you Councillors,