Living With the Bush

Mr BARBER (Northern Metropolitan) -- If Mr Guy's party has been feeling like it has been unable to influence the debate on fire safety in the last decade, the reason could be a lack of a clear articulated set of policies designed to make homes and people safer and, for that matter, a lack of a clearly articulated policy background as to why a particular set of policies would work.

Today we have the opportunity to debate a particular policy. Unfortunately neither the proposer of the policy, the Minister for Planning, who did a bit of a ring and run this morning, nor the shadow Minister for Planning, who says he is supporting it, were able to articulate why this set of magic numbers is correct. For that matter neither of them were particularly able to articulate the current situation, so I will have a go.

The reason we are having this particular debate is that there is a special provision in the Planning and Environment Act whereby changes to the Upper Yarra Valley and Dandenong Ranges regional strategy plan need to be formally adopted by both houses. But it is also correct that changes that are being made to that plan will be identical to the ones, in content, that will be rolled out through all of the other municipalities across Victoria save the city-based ones. We have the opportunity to debate them and say not only what we think should happen in one particular municipality but across the state. We have the opportunity to compare and contrast that to the current situation.

When the Minister for Planning and Minister for Environment and Climate Change got up in question time and made a series of announcements and answered a series of questions about this issue, they said it was all about clarity. They said this policy was good because it would make things clearer, implying that the existing regulations are somehow complicated to understand.

But then when I asked the Minister for Planning in question time for his definition of a 'tree', which is quite an important definition when you start to read this new control, he basically said, 'I will get back to you with some more information about what a tree is'. As I will explain, it is not simple to understand at all. But here is the Minister for Planning backed up by the Minister for Environment and Climate Change coming in to this chamber with a control that they say will make things clearer, but even they cannot explain it. I would hope if I could get to the highest authority in the planning system, the Minister for Planning, that he would be able to explain it to me. If he cannot, who can? We have to hope the Yarra Ranges Shire Council can explain it.

The minister missed his opportunity. He briefly introduced his motion and then he bolted out of the chamber. Under the main body of this requirement it says: 

     "The removal, destruction or lopping of any vegetation within 10 metres of building used for accommodation -- 

     "is exempt from planning scheme requirements."

Then it says: 

     "The removal, destruction or lopping of any vegetation, except for trees, within 30 metres of a building used for accommodation -- 

     "is also exempt. "

That is meant to make it clearer. But is it clear to me, as a citizen, standing with my chainsaw, whether I am facing up against a shrub, a bush, a part of an understorey or a tree? Of course it is not.

We are talking about 50 different municipalities which have across them probably hundreds of ecological vegetation classes including overstorey species, from eucalypts to acacias and tea-trees, which may or may not be trees.

Right now I could get the shadow Minister for Planning on the blower with this piece of paper in my hand and say, 'Mate, I am out here. I am about to clear a few things off my property. It says on my piece of paper I can clear trees to 10 metres. Is this thing a tree?'. The shadow Minister for Planning might say, 'How tall is it?'. He might say, 'How thick is it?'. He might say, 'What species is it?'. He might say, 'Is that the tallest thing on your block?'. He might say, 'Are you in the middle of a heathland, a woodland or a tea-tree swamp?'. Mr Guy cannot explain it, unfortunately. So the idea that this is going to bring clarity is obviously out the window.

If you believe the existing controls are unclear -- and I do not believe they are -- then you simply have to look -- --

Mr Jennings -- That is a bit hard to sustain what you have been saying. That is very hard to sustain the logic of what you have just said because you have been criticising it for being unclear. You have been using the example that in fact the field is not described in the way you want to be described as it currently is. So how can you say it is not clear?

Mr BARBER -- I will take up the interjection. At the moment the issues of trees does not come into it. You are quite able to lop anything that is hanging over your house. It does not matter if it is a tree, a shrub or a vine. If it is hanging over your house, you can lop it.

Currently you can also clear native vegetation, which is everything, out to 30 metres to a certain extent. So the distinction between the terms 'tree' and 'shrub' is not currently relevant in the planning scheme.

But the piece of paper that my learned friend Mr Jennings and his compatriot the Minister for Planning brought in yesterday suddenly creates a new distinction that people have to get their head around: the difference between tree and shrub. Thank you very much. You have just introduced more confusion, not less, into the planning scheme. But Mr Guy is all for more confusion so he is going to vote for it.

If it is not about clarity at least tell me what is the rationale for this. The rationale appears to arise out of a piece of mythology and that is that trees, as opposed to elevated fuels and ground fuels, would make a significant difference to the bushfire hazard of your house.

I say 'mythology' because for more than 30 years it has been well understood that the additional hazard associated with a house having trees around it is minimal. There are many factors that are very important: first of all, the design of your house and whether there are any cracks or points of entry for embers. Secondly, the most important issue as to whether your house survives is whether there is a capable person there who is able to fight the fire. Thirdly, is any fuel load brought on to your house which may come from ground fuel around your house but could just as easily come from outbuildings, wood piles, plastic rubbish bins, your car, if it is parked next to your house, or anything that is flammable that could put direct heat load onto your house? In fact we need to be aware of this: it could be your neighbour's house.

In a tightly settled area -- and we are seeing more and more fires making it into even suburban areas -- it is the fuel in your neighbour's house upwind that could be the main source that overwhelms your house.

This was brought up in the royal commission. Are other houses fuel? Absolutely, and they are at levels of many tonnes per hectare, much more than native vegetation.

Those are the major risk factors associated with whether your house survives or not. Whether you have trees around your house is a minimal contribution to hazard and, as argued in the royal commission just a few days ago, trees can actually reduce wind speed and catch burning embers. They can be a shield from ember attack. I see the shadow Minister for Planning has gone to make a few telephone calls; he is just trying to clarify the definition of a tree.

The ACTING PRESIDENT (Mr Elasmar) -- Order! I think Mr Barber should keep to the motion.

Mr BARBER -- Thank you for that guidance, Acting President.

Those are the major factors and this has been well understood for over 30 years, even going back to the initial surveys of which houses did and did not survive in fires in some cases not as severe as the ones we have seen.

There was even a CSIRO home survivability meter, which was a small hand-held device. You could walk around your house with it, measure the different hazards and give yourself a risk rating. Using that risk rating, you could decide which hazards it would be best to reduce. One of the smallest factors on those meters was whether there were trees around your house. I stress that that is a very different proposition to ground fuel, fine fuel, stuff that is the size of your finger, and perhaps elevated shrubs. They would be a major source of fuel and should absolutely be cleared, which the current planning rules allow you to do.

Firstly, it is worth understanding what the current rules are.

Somehow, and I am not telepathic, I doubt that most members of this chamber understand the current rules. They can all stand up, make a contribution and prove me wrong. Secondly, it is important to understand the biophysical factors, as well understood by expert groups such as the CSIRO and the Bushfire Cooperative Research Centre, as to what are the major sources of hazard.

So we have had this shuffling, half-hearted performance from the Minister for Environment and Climate Change and the Minister for Planning when they put this measure forward saying it is nothing, it is not intended to change anything much; it is just about clarity. In some ways they are arguing against the effectiveness of their own measure. Perhaps they know; perhaps deep down they know that this is not a measure that is likely to be effective in making people's homes safer. There is plenty of evidence from the royal commission that it will not make a house safer. In fact trees around your house could reduce wind speed and ember attack.

Why is it here? The Premier pretty much belled the cat. When he announced it in the Age he said that he had been listening to talkback radio. The Premier should lead. If the Premier spoke to people in the community and said, 'Do you know what? It is a myth that cutting down trees around your house will make your house safer' he would probably get their attention because he would be telling them something that they did not know or perhaps did not understand. But instead, the Premier has made it quite clear that he is just trying to stay out in front of a stampede. However, running in front of a stampede does not mean you are leading the stampede. It is not as if the Premier is doing it because he is a raging greenie; there would be no confusion that the Premier is a greenie. The Premier's only motivation in speaking out and giving people useful information about how to make their home safer is that he is trying to make their home safer.

Unfortunately that is a missed opportunity. By telling people that they can clear trees to 10 metres is tantamount to saying that you should clear trees to 10 metres and that will make your home safer which, as I say, goes against all the scientific evidence, and that is a body of scientific knowledge that has been built up from surveys of what has happened during actual events. The original studies go back as far as the 1940s.

I think it is fair to say that this idea got a push along immediately after the fires, perhaps as much as anything by one particular article that appeared in the Age. The article was written by Richard Baker and Nick McKenzie and had the headline 'Fined for illegal clearing, family now feel vindicated'. It appeared in the Age on 12 February 2009. The reason I know this article appears to have been influential is that the Deputy Leader of The Nationals in this house, Mr Drum, referred to it again yesterday. Mr Drum claimed that the family had been fined $60 000. Previously I heard the Deputy Leader of the Liberal Party in this house, Ms Lovell -- this is two of the eight leaders of the coalition -- putting forward the proposition that this family had been unjustly treated and heavily fined. This appears, at least for coalition politicians, to have become the touchstone that they reach for whenever they want to argue the case for more clearance. I am not sure whether they are arguing that if people clear illegally it should be allowed. So it is worth looking at this article and the claims that were made in it.

The first claim was this family were fined $50 000; yesterday Mr Drum said $60 000 but the claim in the article was $50 000. Liam and Dale Sheahan were each fined $15 000. The court also awarded $20 000 in council costs against the Sheahans. The fine in this case for taking the action of clearing native vegetation was $15 000, and we should make that clear. If Mr Guy has another policy that says the fine should be higher or lower, perhaps he could call on one of his colleagues to announce it.

Mr Guy -- Do you? Are you going to announce yours?

Mr BARBER -- Yes, that is what I am doing.

Mr Guy -- The whole policy?

Mr BARBER -- I am announcing our policy in relation to this matter which, by the time we get to the end of the story, will be -- through you, Acting President -- --

Mr Guy -- It must be the longest policy in history then.

Mr BARBER -- That the current rules are quite adequate.

But you will just have to wait for a bit more of the story in order to get that.

The claim was also made that the Sheahans 'bulldozed trees to make a fire break'. These were not just any trees; they bulldozed about 1.2 hectares of old-growth eucalypt forest that was actually under an environmental overlay. Their property adjoins a 40 hectare state forest. So they bulldozed a good proportion of that particular patch of vegetation.

The Age story of course did not mention whether the vegetation was significant or non-significant, whether it had a particular environmental value or the reasons why that environmental significance overlay might have been put in place. When Today Tonight covered the story it raised the possibility that the reason for the clearing had more to do with the fact that the Sheahans keep horses and they wanted to create a cleared paddock for their horses. Their property is very steep, and this was one of the flatter pieces.

The Age simply took the line from the Sheahans that the reason they had originally done the clearing was for fire protection. The article claims that this act got them 'dragged before a magistrate' It fails to mention the steps that the council first took when it received complaints from local residents -- the Sheahans' neighbours -- about the clearing. The article fails to mention that from about November 2002 until early 2005 the council had attempted on many occasions to come to a settlement with the Sheahans.

A reading of the council minutes -- because the Greens did go back to primary sources before looking at these claims -- demonstrates this. The council was going through a set of processes to try to avoid a court battle with the Sheahans.

But reaching a settlement with the Sheahans was never going to be easy. In the Herald Sun of 6 August 2004 there was an article covering the case, and it quoted the letter the Sheahans had sent to the council and to complaining local residents. I will read what I think are the relevant paragraphs in the Herald Sun article: 

     'We could not care any less than we do now what any self-righteous self-appointed --green police-- person thinks about what we are doing,' they wrote. 

     'It is our place, not theirs. We have owned it since 1982. We paid for it, not them, and they can go and get stuffed.' 

I do not know if that is the voting base that Mr Guy is trying to appeal to, but certainly Ms Lovell and Mr Drum are trying to turn people such as this into folk heroes.

It was not going to be easy to reach a mediated settlement, but despite this in 2003 the council did reach a settlement with the Sheahans. The Sheahans agreed to pay $2500 council costs and undertake some revegetation work.

If you look at the photo that accompanies the Age article you can see a whole range of new shrubs that have been planted in the area where the clearing occurred and along their driveway. Unfortunately at the time the Sheahans failed to honour the agreement. Rather than immediately commence a court case, the council again attempted to reach a settlement, and the court case did not begin until April 2004; this is in the Mitchell Shire Council minutes.

Had the Sheahans stuck to the agreement they signed in 2003 they would have avoided prosecution, legal costs and the fines. So claiming that they were 'dragged' into court is a little bit strong.

We come back to this issue that the Sheahans illegally cleared trees in order to protect themselves from fire.

Five weeks after the complaint about the illegal clearing was first initiated the council sent a fire hazard assessment expert to check the extent of logging, and in the opinion of the expert these massive piles of deadwood left by the clearing were a fire hazard. We understand that the council issued the Sheahans with an order to clean up the fire hazard that they had left on their property. It is interesting that, according to the council minutes, when the Sheahans were asked to defend their actions they then claimed retrospectively that the logging operation had been done for fire prevention and was therefore exempt. However, when the case went to court the magistrate rejected their defence. According to the council minutes, the magistrate stated that: 

     "... they only sought to consider exemptions under the Mitchell planning scheme after the event. "

That is what the magistrate said.

Another claim made in the Age article is that: 

     "Mr Sheahan is still angry about his prosecution, which cost him $100 000 in fines and legal fees."

As I have just said, the fines and legal fees could well have been avoided.

It has been stated that council planning laws allow trees to be cleared only when they are within 6 metres of a house -- wrong! It is a misconception that tree clearing is banned. The true state of affairs under the planning scheme -- and I know Mr Guy understands this -- is that tree clearing is not permitted unless a permit has been issued. To say that council rules ban you from clearing is the same as saying that it is illegal to drive a car -- unless you have a licence. The word 'ban' does not appear. You simply have to apply for a permit.

Then there are a whole set of steps that you can go through under the native vegetation framework, including avoiding clearing native vegetation as much as possible, minimising it and ultimately offsetting it. If Mr Guy has an alternative to the native vegetation framework, he would want to put it forward.

The current regulations are really not as inflexible, nor as black or white, as headline writers like to write. The Age article also says that Mr Sheahan would 'like his convictions overturned and fines repaid'. If the reporters had approached Mitchell Shire Council, as we did, they would have found that the council had decided not to pursue recovery of the $20 000 costs it was awarded.

That is just the council being more than fair with one of its own citizens, but ultimately it is the ratepayers who have to pay those court costs because they did the right thing, someone else did not.

Mr Leane -- Wasn't it $60 000 yesterday?

Mr BARBER -- It is going up like a Dutch auction -- no, Dutch auctions go down, I got that wrong. It is going up like a bidding war between the Liberals and The Nationals to inflate the story; frankly, they ought not believe everything they read in the papers.

Mr Guy -- That could work for you on many different topics.

Mr BARBER -- Although I said I believed it when I read in the Age that the Premier had said he had been listening to talk-back and that was his reason for introducing these exemptions. I took that part at face value, so perhaps to be fair to the Premier, maybe the Age got that part wrong as well.

Where does that leave us?

In relation to the Shire of Yarra Ranges, that leaves them having had minimal or no input into this particular measure which has been introduced into the Parliament. I thought motions were not being introduced and debated within the same 24 hours? A couple of weeks ago I remember an argument suggesting that the government needed 24 hours notice before it would deal with a motion, but this is a case of a notice of motion being given yesterday, being moved today and voted on today, because Labor and the Liberals are falling over themselves to support the measure.

The Shire of Yarra Ranges, in that brief time, has had something to say about that in a press release. It is only fair that a good part of that press release gets on the record. It is headed 'Council cautions on one-fits-all approach to vegetation' and it says:

Yarra Ranges' mayor Len Cox has acknowledged the state government's decision to increase the focus on public safety in the lead-up to this year's bushfire season; but has urged the government to reconsider its interim 10/30 vegetation clearance decision citing the enormous potential for landslip and the destruction of important environment, lifestyle and scenic values.

The point they are making is that the Yarra Ranges in many cases is a very closely settled area. One of the existing exemptions from native vegetation clearance rules is any block of land in total ownership measuring less than 0.4 hectare, which is an acre. If you have an acre block -- this is for the benefit of any future constituents who approach Mr Guy -- the rules do not apply.

We should note that there is a series of exemptions that are in the table of exemptions at 52.17.

That includes lopping and pruning for maintenance; mowing and slashing of grasses within a lawn, garden or other planted area; native vegetation that is regrowth which is naturally established and is less than 10 years old, or is bracken, or is less than 10 years old at the time of a property vegetation plan being submitted. So if you have taken over a block and you want to say, 'That is clearly regrowth of less than 10 years', you are in a position to clear it.

It also includes 'if the native vegetation is dead, unless it is a dead standing tree'. A dead standing stump is not a fire hazard, as I have said. The fire hazard arises from fine fuel smaller than your finger. That is what puts the heat under the fire.

No permit is required, as I said, for land that has had continuous ownership; which measures less than 0.4 hectare; if the vegetation is part of the need to clear environmentally listed weeds; if it is to get rid of pest animal burrows; if it is to comply with a land-use condition under the Catchment and Land Protection Act; if it is vegetation that has been planted deliberately, such as in rows, for woodlots, street trees and so forth; if it is emergency works with immediate risk of personal injury. If you go out in the morning to find that a great branch has fallen over in the night and you want to chop it up, you certainly do not need a permit.

No permit is required for fire protection; if it is associated with periodic fuel-reduction burning, or the making of a fuel break or firefighting access track up to 6 metres wide; if it is a tree overhanging the roof of a house being used for accommodation.

The main existing exemption covers vegetation, if it is within 30 metres of a building, if it is not a tree and at least 50 per cent of native shrubs are retained, and native grasses are kept to about 100 millimetres.

It actually goes even further than that. If you want to go a lot further than the 30-metre existing rule, you can do that, and there is a provision that makes it quite clear, which is that if you are willing to submit a vegetation plan, you have the opportunity to clear shrubs up to 6 metres in height, up to 80 metres in distance to the north-west zone of your property, which of course is where most fires come from -- that is, in a shrub or heath land. In medium forest or tall forest there are other exemptions, and a diagram explains that rule. The land slope also comes into consideration.

If you are really concerned about these issues and you want to take advantage of this further exemption, it is a matter of applying to Department of Sustainability and Environment and getting a permit.

Those are some of the exemptions that are in place. Others include erecting new buildings or works in the farming zone, such as to build a shed, dam, utility service, bore or create access to it. For new dwellings in the farming zone no permit is required if the maximum extent of the native vegetation removed, destroyed or lopped under this exemption on contiguous land in a five-year period does not exceed 300 square metres.

There are exemptions for fences -- in order to construct fences or maintain fences; for vehicle access from public roads; for personal use: as reasonable amounts of wood for personal use by the owner or occupier of the land; if it is removed or destroyed or lopped as a result of grazing by domestic stock; if it occurred subject to stock movement along roads -- there is no sense that your cow would be fined for lopping a branch if it took a bite out of one; harvesting for timber production; during extractive industry, obviously, and in fact during the search for stone, mining, mineral exploration and for geothermal energy exploration and extraction.

There is a pretty wide bunch of exemptions there. I agree that many people are not aware of the exemptions, and for the sake of clarity it would be much better if they understood the exemptions. Any member of Parliament and certainly any council officer would readily be able to point people to this document. It is not hard to understand this document; it is not hard to understand what the rules are. It is as easy to read as the safety manual that might come with your Stihl chainsaw, and I definitely recommend you read that before you go out and lop any native vegetation. This would be no harder than that. It is written in quite simple language, and if you really need it explained to you, you call the council officer.

It seems the Liberal Party and The Nationals are quite happy to have lack of clarity around the existing exemptions because it helps them whip up one of these campaigns.

They do not need to whip them up -- people are quite rightly concerned -- but it allows Mr Guy to push that further, when what he could do is quietly explain to someone the existing exemptions and check that that person has taken advantage of all those exemptions before they raise a further issue. Even then it may be a case of applying for a planning permit. People applying for planning permits and finding that a difficult process is common. Local members can often assist with that process as well, as can local councillors. Over on the other side government is looking a bit sheepish, not saying exactly why it is introducing the further exemptions, using the argument of clarity.

I go back to what the Yarra Ranges council had to say about it. As I say, there are more than 50 other councils that will now be affected by these rules. Cr Cox, the mayor, stated:

While the council supports the idea of greater consistency in vegetation management, the fact is there are many areas of the shire and the state that, because of their unique environmental values and state significance, require a more sophisticated approach ...

If property owners undertake vegetation removal according to the government's 10/30 changes, the region could be transformed from one of the most picturesque in the country to a scarred landscape subject to landslip and erosion.

That is a particularly pertinent issue when we relate it to the Dandenong Ranges.

While it is one of our most hazardous areas for bushfires because of the number of people and the close interface between those people and the bush, that close settlement means that if everybody went out tomorrow and used the full value of this exemption, because of the number of small blocks that are out there and the number of people living amongst the bush you would notice a pretty significant change to the overstorey, the tree part, of the vegetation, which is so important in a landscape sense but, as I said, relatively unimportant in the sense of minimising hazard.

It is quite laughable that in the material that comes with the amendment the claim is made that this will reduce the administrative burden on the Yarra Ranges Shire Council. No, it will not do that. A complete and significant change to the existing exemptions will lead to another round of phone calls and another round of confusion for people who hear that something has changed, do not know what the past exemptions were and hear that there is some new set of exemptions.

It will certainly not reduce the administrative burden for the planning department, and if people somehow get the message that this means you can do whatever you want now, it is likely to increase the burden for the enforcement division.

I should say that this is a council that issues literally thousands of clean-up notices in relation to fuel hazard at this time of the year. When many land-holders do not comply with those fuel reduction and fire hazard notices the council takes further steps to get them to do so, and in some cases ultimately does the work itself. If a policy change or an educational change is needed here, perhaps it is around that area: the provisions within the Local Government Act that require a local council to notify residents of the need to clean up and to enforce those notices. But for some reason that receives almost no attention because it is not a good enough story -- it is not a good enough story for the Age and it is not a good enough story for the coalition.

The mayor, Cr Cox, also said:

We know that on the topic of tree clearance, we have a passionate yet divided community and we also understand the importance of doing everything we can to protect our community from fire risk. The fact that many of our residents have chosen to live in a treed landscape means that a more balanced approach than 10/30 is needed.

The problem with a one-size-fits-all approach is that it doesn't differentiate between more urbanised areas and large rural land-holdings. The cumulative effect of residents removing vegetation from smaller sized blocks in more densely populated areas, including many townships, will be far greater than someone living on a 5-hectare property.

Cr Cox warned that the application of the 10/30 vegetation removal provision, in the absence of detailed scientific research, could result in a range of unintended consequences including significantly increasing landslip risks, the destruction of important biodiversity, lifestyle and scenic values and the possibility of increased bushfire intensity.

Cr Cox further said: 

     "There is a significant body of science that indicates the removal of canopy trees can actually exacerbate the impact of fires as a result of increased wind speeds and fire intensity --"

Research which apparently did not come to the attention of the Minister for Planning, or he ignored it, or he got overruled by his boss. This is unfortunate.

For the reasons I have just explained I believe there may not be any pent-up demand by people to take up the opportunities under what is a much wider exemption and go out and start clearing. If people really do not understand the existing rules it is hard to have a dialogue with them, particularly via the pages of a newspaper, about what the rules should be and what they believe would be safety from the point of view of their house.

Unfortunately you only need to go through the Kinglake area to see evidence of the many homes that were destroyed and the few that survived. Clearly, the distance to the nearest tree had no impact on it. That is backed up by, as I have said, decades of research from the CSIRO. I can only hope that that research is considered soberly in the royal commission.

In summary, it is Father's Day this weekend. If members have not yet bought a present for their father and he happens to live out on a treed block somewhere, rather than buying him a chainsaw, which could lead to him lopping a tree onto his silly head, they should buy him a big Whipper Snipper and a bunch of rakes and get him and his mates to get out there and start cleaning up that ground fuel.

Mr Hall -- I thought it was a day of rest on Fathers Day.

Mr BARBER -- No, I do not think we have enough Sundays left, Mr Hall, for what will be quite a large job. If we are talking about using the existing native vegetation clearance exemptions which allow you, in fact encourage you, to get out and clear out the ground fuel within a radius of 30 metres, that means a 30-metre radius around a house could be an acre of land. If Father and his mates with the whole family helping can get out there and rake up and dispose of ground fuel over what might be as much as an acre of land in the available weekends between now and the start of the fire season, then we could make a real difference to the survivability of those houses. But unfortunately neither this measure nor the debate that seems to have surrounded it, including the debate here today, helps that.

Hansard, Legislative Council, 3rd September 2009.