Victorian Bushfire Royal Commission - Submission


  • Human life must be placed above all other considerations. Begin all planning legislation with this requirement and frame all other provisions to prioritise human safety as the first and highest obligation. Recognise in legislation that humans are an important part of the environment.
  • Reduce ground fuel on all large areas of council land and Government reserves then commence a rotating plan to continue this fuel reduction by prescribed burning.
  • Abandon Local Law 5 20(B) namely the restrictions on clearance of all roadsides and nature strips.
  • Prior to commencement of the 2009/2010 fire season the State Government in cooperation with councils in high fire risk areas to clear roadsides and nature strips of ground fuel. Thereafter to be maintained by council.
  • Permit landowners to maintain these roadsides if desired and allow and encourage resumption by CFA of this task by burning.
  • Box clearance of major and minor firebreak roads be implemented, inspected and maintained annually.
  • Abandon that part of preferred future Neighbourhood Character clause 22.12 that mandates prescription planting of indigenous vegetation.
  • All properties in townships and urban areas be issued with section 41 notices to clear ground fuel from their properties.
  • Abandon the recent Tree policy designed to create an indigenous urban forest.
  • Remove ESO’s from rural areas, currently covering approximately 70% of Nillumbik. Legislate for landowners to plant the vegetation of their choice.
  • Revise zonings from the current environmental categories of bias to reflect fire risk categories. eg. Rural Conservation Zone / Fire Risk 1, for Warrandyte North. This should in no way affect the ability of Government or council to restrict development.
  • Amend the exemptions under clause 52.17 Native Vegetation to exempt the requirement for a permit to remove a tree within 10 meters of a building, ground and middle story fuel within 30 meters of a building.
  • Amend clause 52.16 to include a requirement for a fire management plan approved by the CFA to be submitted with each land management plan.
  • Reinstate Wildfire Management Overlays (WMO) to urban fringe townships and suburbs.
  • All overlays must include all Government and Council land. The Fire Municipal Fire Prevention Officer to be authorised to issue section 41 notices on council and Government land.
  • Stop planting vegetation under high voltage power lines and remove those existing trees and shrubs from these easements.
  • Abandon the Green Wedge Management Plan currently under Council consideration.
  • Commence an education campaign to fully inform people of the relationship between bushfires and native vegetation.
  • Fire danger index/risk factor information to be included with advertising and contract of property sales in very high risk areas. eg. Warrandyte North. 

Nillumbik Shire came into being with amalgamation in 1994 and consisted of mainly Eltham and Diamond Valley Shires and is a Melbourne metropolitan Shire.  The area was made up of small hobby farms consisting mainly of horses, cattle, sheep and pigs and the landscape was open, lightly treed and well grazed. Until the Second World War there was 1675 hectares of orchards in this area.

The existing vegetation type (dry foothill forest) is the most abundant, least threatened in Victoria with over 70% remaining and it is also the most fire prone. (Port Phillip and Westernport Native Vegetation Plan)

These gum trees that cover around 70% of urban and rural Nillumbik, drop leaf litter and twigs in greater quantities during the summer months, causing fuel loads on the ground to accumulate. This is part of the natural cycle for this native vegetation and so is fire.

Until sometime around the early 1990’s the CFA burnt the roadsides in the cooler months to reduce ground fuel and landowners in large part mowed, slashed and maintained the roadsides outside their fences.

Changes in recent years have led to a massive build up of fuels on the ground in the many State and National Parks that surround Nillumbik. The reasons for this build up include virtual cessation of prescribed burning in cooler months to reduce these fuel loads and planning policies and restrictions.

Our suburban and township properties carry high ground fuel loads also.

It was therefore inevitable that when the fires were ignited they would be uncontrollable and of high intensity. The threat to the remaining 75% of Nillumbik not burnt on Black Saturday is extreme and if ground fuel loads are not reduced the heavily populated urban areas including Eltham, Diamond Creek and Apollo Parkways are in danger of a potential holocaust.

New arrivals to this area particularly over the last twenty years or so are generally not fire aware.  This is evidenced by the findings in the report by John Gilbert. (Attachment 1) New residents are under the impression that gum trees are low maintenance. This is not true even for the bushland scrub; it requires prescribed burning or other forms of fuel reduction. 

 According to Aboriginal elder Joy Murphy the local Aborigines burnt on a regular seven year cycle in this district.  Joy Murphy representing the Wurundjeri people said in her nationwide memorial speech for the Black Saturday fires that this lack of prescribed burning was a serious and damaging neglect of the land.

Tree cover over the Nillumbik Shire has now increased to between 70% and 80% including much of the suburban areas. (Figures prior to Black Saturday)

In recent years the bushfire danger has increased dramatically. This is due to a number of factors and it can be said that our laws and policies have effectively been instrumental in building bushfires.  

The State Government has designated Nillumbik a Green Wedge Shire with zonings framed to encourage an emphasis on the environment.  Nillumbik Council also prioritise the environment, this bias is evident throughout policy and related documentation.

Nillumbik has become a pseudo national park where trees are valued over people. Flora and fauna are and have been the primary consideration for planning decisions at Nillumbik Council. Fire as an integral part of the environment has not been included in framing these policies. Consequently the flora and fauna that is presumed to be so vital to this environment was as a result of this failure incinerated in a high intensity fire in the 23% of the shire that was burnt.  The precious habitat preserved for our birds and animals is now so denuded there is little chance the few survivors will find food or shelter for this coming winter. The denuded hills are likely to further erode with the first heavy rains that will wash away remaining topsoil, create erosion and the real possibility of landslides. The pollution of our waterways is another problem.

This horrific mismanagement led to the tragic deaths of our residents and was brought about as a result of policies, enforcement measures and the influence of particular pressure groups.


The local laws that contribute to building bushfires are

  • Local law 5, 20(B) formerly 5, 20 (f).
  • Neighbourhood Character Policies 22.12 Amendment C12 with accompanying Significance Landscape Overlays (SLO)
  • Environmental Significance Overlays (ESO)
  • Removal of Wildfire Management Overlays on townships Amendment C11
  • Street Tree Policy ( pending )

The State Policies that contribute to building bushfires are

  • Removal of exemptions for Native Vegetation Clause 52.17 VPP’s


Local Law 5 20(B) 

The roadsides have been divided into categories of A, B, C, D or E. To remove any native vegetation on A, B, C, roadsides alive or dead requires a planning permit. A planning permit is required to mow the grass in these categories.

This local law conflicts with Councils Fire Management Policy a major strategic planning document where these roadsides protected for preservation of native flora are also roads designated as major firebreak roads.

A number of these non - urban roadsides are designated as major and minor firebreak roads in Council’s Fire Management Plan 2008 - 2011. (Formerly the Municipal Fire Prevention Plan)

The Fire Management Plan describes a Major firebreak road as:

“These are to be firebreaks of adequate width to retard the spread of fire and to form a control line from which fire brigades may mount a direct attack on fire. Narrow road formations than those used for major firebreaks are considered adequate for this purpose combined with roadside clearance of undergrowth. Serving fire prevention direction notices on adjacent property owners may also be considered necessary in some instances to enhance this type of firebreak.” (my emphasis)

The two policies are in conflict but the policy given priority was the local law. An example of this is roadside areas of St Andrews/Strathewen some that were burnt in the Black Saturday fires. Mittens Bridge Road, Jacksons Road and Heidelberg/Kinglake Road are major firebreak roads. The fuel loads on these roads was allowed to accumulate and council did not attempt to reduce the debris on these roadsides. The majority of roadsides around the shire still remain heavily loaded with fire fuel.

These roadsides instead of being firebreaks have become fire wicks.  They still are.

Neighbourhood (preferred future) Character Clause 22.12 Amendment C12

 This Policy mandates planting gum trees, middle story shrubs and native grasses with every permit application. This is applied through the Significant Landscape Overlay (SLO). (The NRA submission in response to Wildfire Management Overlay previously delivered to the Royal Commission discusses this overlay)

These planting requirements for the urban areas have been in use for six years and in this time the already high fuels loads have increased to dangerous levels.

The Independent Panel recommended Amendment C12 be abandoned. 21 May 2003. The Panel stated

“The issues associated with Potential fire risk are of very high importance in the considerations made by this Panel.” (page 65, 6.3.7 Panel Report).

Nillumbik Council then wrote to the Chief Panel Member, Planning Panels Victoria, requesting a meeting and the opportunity to receive an addendum or re-issued report. Following telephone calls with Nillumbik CEO and a further letter the Panel issued an addendum recommending further expert analysis and reports from suitably qualified and experienced persons.

Because of the Panel recommendation the NRA commissioned two independent fire experts to provide an assessment, both experts recommended Amendment C12 be scrapped. They also warned the existing fuel loads were excessive. Reports dated July 2003. (Packham and Incoll)

To our knowledge Nillumbik Council sought no other expert advice.

Nillumbik Council officer report claimed the Panel report was flawed and presented nine recommendations as a way forward.

The Council then again considered the Amendment and it was passed on the 20th August 2003 by six of the nine councillors.

In fact it was the Nillumbik Council process that was flawed, resulting in another dangerous bushfire building policy being imposed on the community.

Environmental Significance Overlay (ESO) 

The rural areas of the shire are covered by an Environmental Significance Overlay (ESO) applied for the preservation and protection of flora and fauna.

This overlay covers around 70% of the shire including a large part of Strathewen and St. Andrews.

The overlay was mapped according to the criteria from a study known as NEROC (North East Regional Organisation of Councils) (Sites of Faunal and Habitat significance in North East Melbourne). It was then used as the basis for the environmental controls in the Planning Scheme (ESO).

Cam Beardsell (Field Naturalist) the author of this report states in the introduction that is not intended for use in planning.

The independent Panel for the New format Nillumbik Planning Scheme 1999, said NEROC needed to be reviewed and should not be used to create planning controls.

Dr Charles Meredith (BIOSIS Research Pty Ltd) criticised NEROC as unscientific, inconsistent and “seriously flawed in a number of areas and its value for making planning decisions is therefore compromised.” (19 March 1999)

The NEROC report is still the premier reference document used in the Nillumbik Planning Scheme.

A permit application is the trigger for mandatory indigenous planting in the rural areas covered by the ESO.

This is also used to limit and restrict removal of any vegetation with breaches subject to prosecution. (See Nillumbik vs Doyle.24/1/2003 VCAT) This case is an example of the ESO being used to prevent legitimate fire clearing work.

Nillumbik has used the ESO to further build bushfires with this policy that affects 70% of the shire and prevents legitimate fire clearing works. 

Exemptions From Permit Requirements in the Nillumbik Planning Scheme.  Clause 52.17 – Native Vegetation.


Amend the exemptions under Clause 52.17 to exempt the requirement for a permit to remove a tree within 10 metres of a building, ground fuel and middle story fuel within 30 metres of a building.


Protection of human life is paramount. The ability to maintain property to minimise the fire risk is imperative and must be exempt from the requirement to obtain a permit and without fear of prosecution.

In 2005 the Minister for Planning, Rob Hulls MP, established an advisory committee under Section 151 of the Planning and Environment Act 1987 to review the exemptions in planning schemes. The review also included consistency and implications for a number of relevant overlays.

The State Government supported most of the recommendations arising from the review and implemented them through Amendment VC49, gazetted on 15 September 2008. (Advisory Note, Dept. of Planning and Community Development September 2008)

When the native vegetation controls and exemptions were introduced in 1989, exemptions from the requirement to obtain a permit were clear, concise and effective. Once a simple four page document, Clause 52.17 has expanded to eleven pages and the exemptions have become more complex and restrictive. We now have ‘exemptions from the exemptions’ – a ludicrous situation particularly in regard to protection of life and property.

Example 1.

An exemption is allowed to ‘remove, destroy or lop’ native vegetation within 30 metres of a building used for accommodation provided:

  • The native vegetation is not a tree.
  • At least 50% of native shrubs are retained.
  • Native grasses are kept to at least a height of 100 millimetres 

Example 2.

 An exemption is allowed to ‘remove, destroy or lop’ native vegetation if:

  • The native vegetation is a tree overhanging the roof of a building used for accommodation.

This exemption only allows for that part of the tree which is overhanging the building which is necessary for fire protection.

Amendment VC38 gazetted 16 March 2006 was to ‘implement a new approach to native vegetation management in the Victorian planning system.’ (Amendment VC38 Explanatory Report)

The purpose of Clause 52.17 at that time made no statement in regard to protection of life and property.

It was not until the gazettal of Amendment VC44 (14/11/06) we saw the inclusion of a statement in the purpose of Clause 52.17 ‘To manage vegetation near buildings to reduce the threat to life and property from wildfire.’ 

The dreadful bushfires of Black Saturday burnt about a quarter of Nillumbik Shire and took a terrible toll on human life as well as destroying 125 homes. The remainder of the shire has not burnt for 40 years, more in some areas. The fuel loads are extremely heavy and a disaster will occur. Residents must have the ability prior to the next fire season to minimise the risk on our properties without the need for a permit and without fear of prosecution.

The Nillumbik Ratepayers Association believes the exemptions in Clause 52.17 and relevant Overlays, including the Environmental Significance Overlay, must prioritise the protection of human life above all else and that exemptions in those Clauses must be consistent with each other and should be modified to accord with the NRA recommendation.


Amend the exemptions under Clause 52.17 to exempt the requirement for a permit to remove a tree within 10 metres of a building, ground fuel and middle story fuel within 30 metres of a building.


The Wildfire Management Overlay (WMO) Amendment C11

In May 2004, the NRA made a submission to the Panel for Amendment C11, Wildfire Management Overlay and Wildfire Management Policy opposing the removal of the overlay from the urban areas and townships.

Amendment C11 coupled with Amendment C12 changed the emphasis from protecting life and property to protecting the environment. This was supported by the CFA.

Although the proposal was to increase the area covered by the overlay to 64% of the area of the shire it also removed the WMO from townships of Eltham, Hurstbridge, and Diamond Creek. The removal from in and around these township areas effectively has, due to preferred future neighbourhood character, increased dramatically the fuel loads in these townships. This is due to an increase in plantings due to neighbourhood Character and the need for a permit to remove any vegetation. We believe the mapping for WMO’s is now only where a crown fire can be maintained, this leaves the rest of the shire vulnerable to attack from grass and scrub fires.

The NRA submission in response to Amendment C11 has been submitted to the Royal Commission along with the two fire reports of David Packham and Rod Incoll dated 2003. The two experts were cross examined at the hearing and despite their advice to the contrary, the Panel recommended the overlay be removed from the townships.

It is the change of emphasis from “protecting life and property” to “protecting the environment” that led to the accumulation of fuels in Nillumbik which was a major contributor to the fire intensity when the Black Saturday fire entered Nillumbik. The restrictions on clearing, local laws, policies both state and local, led to this accumulation of fire fuels. 


The Street Tree Policy

The vegetation policies are becoming more radical and are contributing to building bushfires of higher intensity by ensuring even higher fuel loads. It seems there is no limit to these lawmakers and bureaucrats in their quest to plant trees and intimidate residents without regard to the consequence of bushfire? 

This Street Tree Policy was adopted by council on 23rd September 2008, and seeks to further expand the urban forest without consideration of fire risk to the human inhabitants. The NRA believes the implementation of this policy will proceed despite the Black Saturday fires.

In reference to roadside clearance the paper discusses the removal of unsafe trees and or branches encroaching on the road formation and the management of dead trees, balancing preservation with safety.” This is made clear with “It should be noted, however, that if a tree is recommended for removal due to its incursion into the clearance zone, the road conditions are to be taken into account to try and preserve that tree.”  The inference is clear that environmental considerations must prevail.

The business paper for 23rd September 2008 explains: “Council has had a tree planting program in place for many years, however in the 2006-2007 and subsequent budget years, has increased funding to make a demonstrable impact through the street planting program.” (Attachment 2)

Management of tree removal within Nillumbik is another related item in the business paper for the Council meeting of 28th October 2009 introduced to follow the Street Tree Policy which is focused on notification and enforcement.  Legal advice was sought in regard to forcing people to keep a copy of a permit on the front fence, to reassure neighbours and those passing by that the lopping or removal is legal.   Council’s lawyers advised such a condition would be improper and if such a condition was challenged at VCAT it would be found to be invalid. Council encourages residents to report any vegetation removal so enforcement officers can move quickly to investigate. (Attachment 3)

Council claim that in response to complaints from residents in relation to tree removal undertaken by electricity distributor SP Ausnet in Mt Pleasant Road, Eltham South, Council Officers have worked with SP Ausnet to revise its protocol whereby council is notified and agrees to any hazardous tree removal by SP Ausnet.  Also discussed are other State agencies such as VicRoads, that also remove trees while acting within their legislative framework, council refer to “an opportunity to proactively document Councils expectations of community consultation and notification and seek adherence from these agencies to such a protocol”.

This illustrates the domineering attitude and interference on the part of Nillumbik Council when dealing with all State agencies acting in the course of legal and important safety and fire prevention works. Authorities must be permitted to carry out safety and fire prevention works according to their legislative framework without council interference.

This paper describes the tree planting carried out by Council itself along with Landcare and Friends groups of 20,000 trees and plants annually.  This is mainly indigenous trees and furthers the desire by council to bring the forest into the urban areas. This planting program (similar to Canberra) is reckless and ignores the Packham and Incoll reports, recommendations and warnings, originally written for neighbourhood character for the urban areas of Nillumbik.

Council then describes the promotional incentives namely financial assistance provided to groups and schools.  At the 29th April 2009 council meeting Nillumbik gave 8 primary schools thousands of dollars ($4,751) for arbour week to plant indigenous plants “as another important means of promoting vegetation protection.” Who actively manages the fuel reduction arising from the plantings?  This will surround our primary schools with fire flora and place our children at risk. This builds bushfires around our primary schools. 


The Inquiry into the impact of public land management practices on bushfire in Victoria

The NRA submission to this inquiry was forwarded direct to Minister Cameron’s office. He failed to present it to his Parliamentary Committee. We then requested the Committee be reconvened as a matter of urgency and that Nillumbik be examined separately due to the serious fire threat to the Shire. As Nillumbik Council failed to address the 13 items listed for consideration and by these omissions effectively disregarded the threat to the human population.

Issues raised in our submission were that State and Local Government were aware of the fire risk, were aware the community was ill prepared for survival and were warned repeatedly of a potential fire holocaust of the highest intensity due to the fuel build up and the policies that support the building of bushfires.

We attach copies of the relevant documents.  (Attachment 4)


CFA Policy Change Claimed

I attach a transcript from the Ordinary Council Meeting of November 2006, where Councillor, Bill Penrose a long serving council representative on the Municipal Fire Prevention Committee announces that CFA policy has changed to include protection of the environment as ranking equally with life and property “and generally the consensus is that they are heading in that direction so this is just an indication that they’re recognising it and I think that, coming from the brigades within Nillumbik is a leadership for the rest of the State”.  (Attachment 5)

This statement by Cr. Penrose subsequently has been reflected on the ground on Black Saturday in both the loss of human life and the environment.   


Stay or go/Compulsory Evacuation

Compulsory evacuation will not work in Nillumbik. The Shire is a high bushfire risk, including the urban areas. Council policies in recent times has exacerbated this risk. The series of “gateways” to exit Nillumbik are inadequate for large scale evacuation. This can be seen in peak hours every day.  Black Saturday has demonstrated the difficulty of warning residents of the imminent danger. The CFA did not even mention Strathewen or have the ability to warn residents of the approaching fire. The CFA cannot foresee or predict where trees will block Nillumbik’s’ tree covered roads. Because of Black Saturday residents have become very fearful and are likely to act in panic.

The Shire has many dead end tree covered roads. The roadsides have become fire wicks instead of fire breaks and council reserves in most cases carry extreme fuel loads. The NRA considers compulsory evacuation to be too dangerous. It is the fuel loads and intensity that is the core of the problem that must be addressed urgently. A public warning system (sirens) is also needed.

Fire refuges

Fire refuges in Nillumbik were not maintained to the appropriate standard and the council failed to inform the operators of the buildings many of them Primary Schools that they were in fact fire refuges as the St Andrews and Eltham East primary school examples in 2003 show.

The Council sought NRA “official participation” in the project to review the fire refuges.  Council required the review to be “carried out with appropriate community input”. The invitation did not inform us that the seven existing fire refuges had already been assessed prior to the request and none met the requirements of AS 3959. The decision had already been made prior to the formation of the working group that included the NRA.

The correspondence in (attachment 6) shows our concerns about the lack of due process, the failure of the majority of the groups to even attend and that there was a need for professional suitably qualified experts to assess the suitability of the buildings. The NRA was so concerned about the process we resigned from the group.

In Summary Black Saturday

Fire us an integral part of Nillumbik’s dry foothill forest ecosystem that has been neglected by both State and local authorities: the ‘protection of human life and property’ has been written out of many of our policies and replaced by ‘protection of the environment’. This neglect and almost denial of human existence and the important role of fire must be addressed in all planning laws, Federal, State and Local.

Prescribed burning for fuel reduction has all but disappeared from Nillumbik Shire, as has any other form of fuel reduction, particularly on State and Council owned or managed lands. This is mainly due to Government (State and Local) laws. Residents are encouraged and even forced by these laws into planting locally indigenous fire flora around and over houses even in the suburbs and townships.

The majority of Nillumbik residents live in Eltham, Diamond Creek and Apollo Parkways, all suburbs of Metropolitan Melbourne. These residents particularly prior to Black Saturday, wrongly believed that because they lived in the suburbs that they were safe from wildfires. We believe that the majority still do not understand the danger they live in from a wildfire perspective and that, as David Packham said, “Nillumbik is truly living on borrowed time”.

Nillumbik resident’s lives are being put at risk through both State and Local legislation that contributes to building bushfires, such as:

Local Law 5 20 (B) - protection of roadside vegetation alive and dead.

Neighbourhood Character - Mandatory planting of locally indigenous vegetation around and over houses.

Environmental Significance Overlay (ESO) - mandatory planting of indigenous trees, shrubs in rural areas.

Clause 52.17 Native Vegetation - dramatically limits the amount of clearing of native vegetation around houses for fire protection.

Wildfire Management Overlay (WMO) – The WMO was removed from townships and suburbs, also the emphasis of the WMO changed from ‘protection of life and property’ to ‘protection of the environment’

Street Tree Policy – designed to turn our suburban areas into “urban forests”, a recipe for an even greater disaster than we experienced on Black Saturday. This will ensure a fire of the highest intensity in our suburbs.

Stay or Go and Fire Refuges

The ‘stay or go ‘policy and ‘fire refuges’ are both areas that the general public clearly do not understand, there needs to be a comprehensive education program, perhaps compulsory in high bushfire prone areas, on these choices.

The stay and defend choice needs extensive education on what residents need to do if they decide to stay, such as what clothing and equipment is needed and what to expect as the fire approaches and passes.

The ‘Go’ choice also needs to be clearly understood.

In either ‘Stay or Go’ there must be a plan B for unforeseen circumstances.

Fire Refuges policy must be reviewed, as it was quite evident on Black Saturday many people were looking for somewhere safe to go, they went to open sportsgrounds which offer no protection from embers or radiant heat.

There is an obvious need for a community early warning system such as sirens, many communities have stated they had no idea they were in any danger from the fires.

The following comments do not include CFA volunteers.

The Emergency Services Command needs a complete review of all their procedures. Command lost control; they did not know what was happening on the ground, why? Emergency Services Command not only let their troops down (CFA volunteers), they also let the people of Victoria down.

 Lives would have been saved if the Emergency Services Command Centre had operated effectively.

The Black Saturday fires were predictable and behaved predictably. Why then did we lose 173 lives?

There is legislation for safety in the workplace, there is legislation to reduce the road toll why the contradiction in Government legislation re native vegetation that promotes an unsafe living environment.

Nillumbik Ratepayers Association commissioned two fire reports in 2003:

David Packham: Bushfire Threat to Nillumbik Shire 21 July 2003

Rod Incoll: An Overview of Fire Hazard and Vegetation Controls in the Shire of Nillumbik July 2003

These reports are clear in their advice warnings and recommendations yet they have been ignored by Nillumbik Council and State Government and no amount of spin or justification can alter this.

Had the recommendations in these reports been followed the fuel on the ground would have been reduced therefore lowering the intensity of the fires.

If the recommendations in the reports are not implemented then we can expect a conflagration when a major fire event enters the urban areas of Nillumbik.


Brian Murray