Living With the Bush

BY JASON GILLICK
13/10/2009
FRANKSTON Council is defying the State Government's new laws aimed at reducing bushfire risk - the so-called '10/30 right' - claiming legal advice is that its local tree law overrides Victorian legislation.

The stand-off leaves Frankston landowners in limbo, with the council threatening to fine them for clearing their properties without a permit, which the Government says they can.

The 10/30 right, introduced in the wake of the Black Saturday fires, applies to all municipalities in Victoria except 20 inner suburban ones, cutting off at Eel Race Road, Carrum, the border between Kingston and Frankston.

There has been widespread concern among environmentalists and councils that the law may be abused.

The Government has instructed all municipalities affected by the changes to amend their local laws but Frankston Council is refusing.

Frankston says advice from its lawyers, Maddocks, is that 10/30 does not apply in Frankston because the council's tree law comes under the Local Government Act and not a planning scheme.

"While it is true a local law is inoperative to the extent it is inconsistent with any Act or regulation ... a planning scheme is a subordinate instrument, it is neither an act nor a regulation," the council's advice states.

"Council's tree protection local law will still apply for the removal of trees over 110 centimetres circumference at ground level. Even if the tree is within 10 metres of your house, residents will need to contact council to apply for a local law permit to remove the tree."

A spokesman for the Government said Frankston must abide by the new laws.

"The Department of Planning and Community Development will be contacting Frankston Council to again inform the council of its obligations under the 10/30 right.

"The Municipal Association of Victoria advised all mayors and chief executive officers by email on September 28 that local law provisions become inoperable due to an inconsistency with state law, regulation or planning provision. Local law cannot prevail over state law.

"The 10/30 right provides clarity for landowners in bushfire-prone municipalities that have been designated by the State Government to allow them to remove trees from their property up to 10 metres from their houses and vegetation up to 30 metres from their houses."

Mayor Colin Hampton says the council will ensure landowners with genuine fire risks on their property will be granted a permit and he blames the Government for any confusion.

"They [the Government] should write the law more specifically and with full consideration of local laws."