Legal Insights

Amendment VC179 - facilitating recovery of bushfire damaged areas

By Kierra Parker & Georgia de Castella

• 13 May 2020 • 4 min read

Australia is one of the most fire-prone regions in the world. In the aftermath of an absolutely devastating bushfire season, the recovery process can be a costly, time consuming and astronomical task.

VC179 has been prepared in response to the 2019-20 Victorian bushfires that occurred in north-east Victoria and Gippsland. With approximately 6 million hectares of burnt land, 419 destroyed residential properties, $700 million in insurance claims and a smoke cloud which completed an entire lap of the earth, it has been necessary for significant changes into the bushfire planning and response mechanisms to be implemented.

Amendment VC179 was approved by the Minister for Planning under section 20(4) of the Planning and Environment Act 1987 (therefore being exempt from exhibition and notice), on 13 April 2020. The Amendment was gazetted and commenced operation on 6 May 2020.

Prepared in consultation with the Country Fire Authority, Municipal Association of Victoria, Planning Institute Australia, and various councils, Amendment VC179 seeks to assist in bushfire recovery.

How does VC179 amend the Victorian Planning Provisions?

Amendment VC179 amends the Victorian Planning Provisions (VPP) by:

  • replacing the existing blank Clause 52.10 with a new Clause 52.10 (Bushfire reconstruction)
  • amending the Schedule to Clause 72.01 (Responsible authority for this planning scheme), to designate the Chief Executive Officer of the relevant council as the responsible authority for planning permit applications made under the new Clause 52.10.

The purpose of Clause 52.10 is:

  • To facilitate the reconstruction of buildings damaged or destroyed by a bushfire
  • To facilitate the re-establishment of businesses and services following a bushfire
  • To facilitate the continued use of land for dwellings after a bushfire.

The new provisions apply to all bushfires since 1 January 2019, including all future bushfires.

The new Clause 52.10-1 provides that any requirement of the planning scheme to obtain a permit or any provision of this planning scheme that prohibits the use of land, requires the use of land to be carried out in a particular manner, or requires a specified thing to be done to the satisfaction of a specified person or body, does not apply to the use of land for a dwelling if specific requirements are met. This creates a specific exemption from use permit triggers for dwellings which were damaged by bushfire after 1 January 2019, when the conditions are met. Notably the use must commence within 5 years of the date on which the dwelling was damaged or destroyed.

The new Clause 52.10-2 exempts planning permit applications for the use and development of land in association with a use that was lawfully carried out on the land immediately before a building on the land was damaged or destroyed by a bushfire (other than subdivision of land) from third-party notice and review requirements, subject to the meeting conditions of the clause. The application must be made within 5 years of the damage or destruction of the building.

The Explanatory Report states that Amendment VC179 is required to streamline the planning scheme requirements to facilitate the timely reconstruction of homes and other buildings that have been damaged or destroyed by bushfire. It will also provide social and economic benefits by reducing some of the challenges which have been previously associated with rebuilding for fire affected residents and businesses. The removal of the notice and appeal rights of third parties, eliminates the uncertainty that these rights sometimes bring to the progression of a planning permit application. Amendment VC179 also reduces the economic burden that is generally associated with the provision of public notice and indirect costs associated with VCAT appeals.

Under the existing planning regime, there are a wide range of policies and planning requirements which deal with bushfire risk. The amendments to the VPP compliment these existing planning policies. These existing provisions include:

  • designating land as bushfire prone areas to trigger other land use requirements in relation to subdivision, buildings and other works
  • the relaxation of vegetation removal restrictions in areas subject to ‘Bushfire Protection: Exemptions’ contained in Clause 52.12 of the planning scheme
  • building and siting provisions, such as Clause 53.02 of the planning scheme, which detail acceptable level of risk associated with developing land or constructing dwellings on a site. Acceptable risk considers factors such as siting, access and defendable space.

Please contact a member of our Planning & Environment Team if your council requires further guidance.

By Kierra Parker & Georgia de Castella

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