By Andrew Stephens – Bushfire Consultant / Senior Ecological Consultant

Changes to the Bushfire Management Overlay

Since shortly after the introduction of the Bushfire Management Overlay (BMO) in late 2011, there have been rumblings from a range of voices, including with the State Government, for its revision. The BMO has resulted in situations where many property owners being unable to build on land previously acquired for that intent. Telling a property owner that their dream of retirement on a bush-block in the hills is no longer going to happen, has been a difficult task to stomach. In conjunction with the government being unwilling to consider a buyback scheme, this has resulted in significant distress and hardship for affected property owners.

Consequently, the Coalition have been indicating a softening of the BMO for some time and this has been most recently affirmed by a press release from the Minister Guy, in late May this year that indicated reforms are afoot. Among other things, they are to most significantly include:

• Alternative safety measures and sensible safety regulations to be considered, which may enable people to build on land with a higher Bushfire Attack Level (BAL) rating (we presume Flame Zone)
• Allowing private bushfire bunkers as an alternative safety measure, where there may be increased bushfire safety risks that need additional consideration
• Ensuring the assessment of bushfire risk is consistent with the Australian Standard (it appears that this will mean a softening of BAL assessment methodology)
• Allowing homes to be built on ‘infill’ lots surrounded by other dwellings. Where a dwelling is allowed, it will be able to be built with a fair and equitable bushfire response
• Allowing more sensible bushfire safety measures in new master-planned estates.

We wait with keen interest as to how these reforms will be effected. By-and-large we support amendments to the BMO that will allow a more considered and specific approach to planning approval, where it is warranted. The current version of the BMO can be too coarse to fully appreciate the intricacies of a site’s risk and a proponent’s application. This is particularly relevant to established urban areas and infill lots. However, we also urge caution that the events of Black Saturday and the subsequent findings of the Royal Commission are not forgotten. Victoria is arguably subject to the highest bushfire risk in the world and we need planning controls that are up to that challenge.

By Michelle Savona – Senior Ecological Consultant, and Yasmin Kelsall – Ecological Consultant

Victoria’s Native Vegetation Regulations have been overhauled!
…what you need to know…

On December 20th 2013 the requirements for applying and processing applications for vegetation removal in Victoria changed dramatically.

The changes resulted from a State Government review of the former system under Native Vegetation Management: a Framework for Action (the Framework) that had been operating for ten years.

The new system which will be guided by the Permitted Clearing of Victoria’s Native Vegetation: Biodiversity Assessment Guidelines (the Guidelines), aims to achieve a streamlining of the assessment process.

The nuts and bolts of the changes in Victorian planning schemes have involved updates to:

• Clause 12 – Environmental and Landscape Values (part of the State Planning Policy Framework);
• Clause 52.16 – Native Vegetation Precinct Plan;
• Clause 52.17 – Native Vegetation; and
• Clause 66 – Referral and Notice Provisions.

Key differences between the new policy and the old include:

• A change in the objective of the policy.
  The Framework aimed to achieve a net gain in the extent and quality of native vegetation.The new Guidelines now aim to ensure that the permitted clearing of native vegetation results in no net loss in the contribution made by native vegetation to Victoria’s biodiversity.The new policy has narrowed its focus to the realm of permitted clearing, whereas the Framework aimed to balance all types of loss of native vegetation (permitted and unpermitted) with gains that outweighed the losses. The Framework also considered the wider range of processes native vegetation provides, such as mitigating land management issues such as salinity and soil loss, rather than just for supporting biodiversity.

• A reliance on the use of modelled data. Whilst some modelled data was used for guidance under the old system, the majority of the decisions to be made under the new system are guided by State-wide, computer-generated modelled datasets.

• Use of risk-based pathways. This involves assigning each application to a High, Medium or Low-risk based pathway with corresponding requirements.

In order to determine which pathway each application will follow, two factors are to be considered. These are:

1. Location Risk. This information is provided by a map that can be accessed via an online tool the Native Vegetation Information Management tool or NVIM. This map provides an approximation of the level of impact the clearing is likely to have upon biodiversity, i.e. What risk to indigenous biodiversity values does clearing in that particular place pose?
2. Amount of clearing. There are threshold levels for the amount of clearing that can move an application from low to medium risk or medium to high risk. The thresholds are based on area to be cleared and number of scattered trees.

Applicants who fall into a low risk pathway are not required to have a site assessment undertaken by a professional botanist or ecologist as they can self-assessed by the applicant. There are also relatively simple reporting requirements associated with this pathway. The NVIM tool is offered as a method by which landowners may be able to gain much of the information that they need to complete an application in line with State Government requirements. Local government and national government requirements are not covered.

Applicants under the moderate and high risk pathways need to have a site assessment undertaken to assess any native vegetation to be affected. There are also reporting requirements associated with these pathways that involve supplying more information than for low risk. The NVIM tool cannot currently be used to source information to inform moderate or high risk applications.

• The offset system will work quite differently.

Previous requirements including the requirement to replace vegetation of a certain type with the same (or very similar) type, often called the ‘like for like’ rule have gone.

Another significant change is that there are now two types of offsets:

• General – which are to be used to account for clearing vegetation where no threatened species will be significantly affected.
• Specific – relevant for where there are threatened species that are predicted to be significantly affected.

Additionally, a Bill has just been introduced to Parliament that aims to formalise the offset system and includes monitoring, enforcement and compliance objectives included.

Our experience with the new system so far:

Whilst one of the stated aims of the policy review was to reduce the costs associated with development associated with consultants assessment reports, we are finding that the system as it stands has not necessarily reduced our clients need for our services.

As we are a relatively multidisciplinary company and have extensive experience in assisting our clients to navigate the planning system, often involving non-standard or complex issues we often deal with more than one facet of the planning system.

The change in policy really only addresses one element, i.e. The State Government’s requirements for native vegetation (biodiversity) of a landowner’s obligations for receiving all of the relevant approvals that they require to successfully reach the outcome they are looking for.

Other requirements that a landowner will often need to address include:

• the Bushfire Management Overlay or Bushfire Prone Area requirements. Both of these bushfire safety mechanisms require further investigations to be undertaken and in the case of the BMO, a Bushfire Management Statement will be required.
• Overlays such as Environmental Significance Overlay, Vegetation Protection Overlay or Significant Landscape Overlay. These will often contain their own requirements for vegetation assessment and considerations.
• Considerations under the National Environment Protection and Biodiversity Conservation Act, 1999 (EPBC Act).

Therefore we find that our clients invariably require the assistance of an ecological and bushfire planning professional at some stage in their application process. Furthermore, even if none of the abovementioned local government or national government requirements are relevant, many landowners may not have the expertise to recognise native vegetation. If they were to submit an application and accidentally clear, this could leave them liable to prosecution.

The following are a number of other points of interest we have observed with the roll-out of the new system, and being a market-driven system, many of our points are considered from that context:

• Offset costs are up: in our experience the price of native vegetation offsets appears to have increased. This may be due to the young market sorting itself out but other factors (see below) seem to be also playing a role.
• Areas of clearing often have high strategic biodiversity scores (SBS) while many of the areas of land that are currently set aside to provide offsets have a lower SBS. This makes intuitive sense in that areas where there is pressure for development often have less native vegetation and consequently what is there is highly threatened, pushing up the SBS.
• If you have a low SBS at an existing offset site, and have not sold your credits, it may have become unviable under the new system, as the amount of credits (Biodiversity Equivalence Units) it produces is proportional to the SBS DEPI have assigned it, a low SBS means not may credits to sell and not worth the cost of managing.
• DEPI has made a policy that there be no native vegetation offsets permitted within 150m of houses in BMO areas, meaning that many bush blocks on the urban fringe can no longer provide their own offsets. The CFA generally discourage offsets within 150m of dwellings but they can be acceptable as long as they do not increase current fuel loads nor prevent creating and maintaining required fuel reduction zones around dwellings.
• Removing vegetation for fuel reduction under the BMO’s Inner zone was previously only considered to be 50% loss of vegetation, under the current version of new system it is often 100% because of the combined loss of habitat score and selected trees to reduce the canopy classed as scattered trees. This has removed the incentive to retain fuel-reduced native vegetation in this area and more-or-less doubled the offset targets for such development .This and the above point have potentially added around a 50-100K cost to building on a bush block.
• The NVIM provides for inaccurate mapping that is not repeatable; we wonder how liable applicants may be for providing incorrect spatial information through the NVIM, if a proponent clears more than the inaccurate NVIM report they have permits them to, are they liable for prosecution?
• There is no longer consideration for native weeds, non-indigenous native vegetation or modified areas with a few native species that have a cover greater than 25%, such as dam walls, or previously disturbed areas. These areas are now treated as remnant patches of native vegetation, which require offsetting.
• Specific offsets can be hard to find; maybe this will be resolved as the market evolves, however given that there is now potentially a different offset type for every threatened species (the previous system allowed this requirement to be replaced by using a Very High conservation significance offset site) it appears that this complexity will push up prices for hard to find species.
• The modelled data is not accurate, including predicted habitat scores (surprise, surprise). We often suggest it is worth an on-ground assessment of habitat score rather than relying on the modelled data as it may significantly reduce offset costs.
• All trees are treated as being the same size, and offset costs for removing trees are determined by the number of trees. So if a developer is seeking a certain area of clearing the financial incentive is to remove a few large trees rather than removing more small trees to achieve it; the opposite of what is desired from an ecological perspective.
• The modelled location risk and SBS are highly variable, carefully considering how these changes across a site can have more monetary consequence than avoiding the most ecologically important vegetation as occurs on the groun