2009 VICTORIAN BUSHFIRES ROYAL COMMISSIONroyalcommission.vic.gov.au › getdoc ›...

2009 VICTORIAN BUSHFIRES ROYAL COMMISSION Letters Patent issued 16 February 2009

SUBMISSIONS ON PLANNED BURNING

Date of Document: 8 April 2010 Filed on behalf of: The State of Victoria Prepared by: Victorian Government Solicitor's Office Level 25 121 Exhibition Street Melbourne VIC 3000

Solicitor’s Code: 7977 Telephone: +61 3 8684 0444 Facsimile: +61 3 8684 0449

DX 300077 Melbourne Ref: PAC 944884

Attention: John Cain

1. These submissions are made on behalf of the State of Victoria (the State) in

response to the submissions by Counsel Assisting dated 22 March 2010 to

the 2009 Victorian Bushfires Royal Commission (the Commission).

Overview of State’s response to proposed recommendations

2. The State:

2.1 The State supports proposed recommendations 19.1, 19.3, 19.4,

19.11, 19.14, 19.15, 19.17, 19.18 and 19.19. The State suggests

some rephrasing of 19.1, 19.3 and 19.17 to reflect the fact that DSE

already undertakes these activities.

2.2 The State supports in principle proposed recommendations 19.5,

19.6, 19.7, 19.9, 19.10, 19.12, 19.13 and 19.20. The State would

support alternative proposed recommendations.

3. In relation to proposed recommendations 19.2 and 19.16:

3.1 The State supports a progressive increase in planned burning but

does not support the adoption of a target in the order of 385,000

hectares as put forward by Counsel Assisting.

3.2 The State supports the use of science and risk management

frameworks to inform planned burning.

3.3 The State supports the suggestion of the expert panel that DSE

undertake a trial in selected parts of the foothill forests.

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3.4 Any hectare target should be considered in the context of treatable

public land and as such the State does not support a

recommendation that nominates a minimum annual rate of 385,000

hectares of planned burning.

3.5 The State will explore how it may be able to allocate resources to

achieve an incremental higher target based on an appropriate

percentage of treatable public land.

Introduction

4. The Department of Sustainability and Environment (DSE) is the lead agency

with respect to the management and delivery of planned burning on public

land in Victoria. DSE works closely with Parks Victoria (PV) and VicForests

as well as other agencies forming part of the Networked Emergency

Organisations (NEO) to achieve planned burning objectives.1 CFA also play

a role in respect of planned burning, particularly when a planned burn may

have an impact on private land.

5. Planned burning is indisputably a valuable bushfire mitigation tool. It is one

of the few ways to reduce fuel over significant areas to provide any

significant moderation of bushfire ignition, spread and intensity.2 It also

provides areas of reduced fuel load from which to safely conduct fire

fighting.

6. Planned burning promotes the main fire management objective ‘protection of

life and property’.3 An appropriate planned burning program will also

minimise the adverse effects of unplanned fire on land management

objectives such as timber production, water quality and conserving

biodiversity.

7. However, planned burning to reduce fuel hazard is not the ‘silver bullet’ for

bushfire risk reduction and must be considered in combination with other

impact mitigation strategies. Planned burning needs to link in across a

spectrum of other activities such as fuel breaks in the right locations and

Fogarty Ex 716, WIT.3024.005.0143, [8] Fogarty Ex 716, WIT.3024.005.0143, [36] Fogarty Ex 716, WIT.3024.005.0143, [7]

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preparedness of neighbours around their homes;4 community education and

awareness; individual and community preparedness; residential and

township planning; building design and construction; firefighting services

and suppression efforts;5 and weather forecasting and early warning

systems.6

Positive action taken by DSE

8. The State’s position is that planned burning plays a vital role in managing

the environment and reducing risk. As a result DSE has taken a pragmatic

approach to the use of planned fire, and has increased it focus on planned

burning particularly in the past five years. The annual area burnt and 3 and 5

year rolling averages show consistent positive growth in the amount of

planned burning since the 2006-2007 fire season.7 The improved Fire

Operations Program process has involved greater community and

stakeholder engagement. In addition to the actual areas burnt, the proposed

burns based on Fire Operations Plans in place prior to February 2009

showed an increase in both the extent and area of burning that had been

planned and available for burning.8

9. The impetus for this change was based on investment in and available

scientific and expert knowledge within DSE and more broadly. This

knowledge includes work done by DSE which identified that positive benefits

would be gained in reducing risk by incrementally increasing planned

burning above the existing target.

10. The increased use of planned fire has been guided by DSE’s existing

planning and management processes,9 including:

10.1 fire protection plans;

10.2 fire ecology assessments;

4 Fogarty, T14753:13 – T14753:22 5 Williams Ex 738, EXP.014.001.0001 at 0022 6 Tolhurst Ex 737, EXP.013.001.0001 at 0011 7 Fogarty Ex 716, WIT.3024.005.0143, [15] and WIT.3024.005.0143 at LGF1 (Figure 2). 8 See 2009 map demonstrating planned burn history and areas where DSE planned to undertake fuel reduction burns based on FOPs in place prior to 7 February 2009, Fogarty Ex 716, DSE.HDD.0145.0070 and Fogarty, T15822:14 - T15822:27 9 Tainsh Ex 719, WIT.3024.005.0182

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10.3 annual guidance from the Fire Prevention and Planning Committee

(which ultimately results in a direction from the Chief Officer); and

10.4 fire operations processes guided by regional management and

informed through local involvement including community

stakeholders and partners such as the CFA.

11. There was also an acknowledgement at that time of the need to develop a

more comprehensive scientific basis for planned burning. Over the last five

years, DSE has used its existing knowledge whilst at the same time

accelerating investment in its scientific and operational framework in a

number of ways, including:

11.1 Phoenix Rapid Fire in partnership with Melbourne University and

Bushfire CRC (modelling software);

11.2 Fire Behaviour Analyst program (training course available to skill up

a pool of staff to enhance knowledge of available fire science);

11.3 Future Fire Management Program (explicit risk analysis model for

resolving conflict between competing objectives);

11.4 Fire Ecology Strategic Directions Program (a program of planning,

research, monitoring and engagement for ecological management

of fire);

11.5 Monitoring and research program (monitoring and research

focusing on fuel hazards, fire disturbance including fire severity

mapping and flora and fauna habitat responses); and

11.6 Increased spring and autumn burning program, greater use of PFFs

and movement of personnel around the State to support this.

12. Areas of reduced fuel conditions assisted with the suppression of various

lightning fires leading up to 7 February 200910 and on 7 February 2009

moderated fire behaviour and impact in certain areas such as Bendigo and

Beechworth.

Fogarty Ex 716, WIT.3024.005.0143, [40]

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Planned burning is a sophisticated process with constraints and limitations

13. The above positive action taken by the State has occurred notwithstanding

the fact that planned burning is not a simple process but involves

considerable complexity. Planned burning is inherently risky with operations

constrained by weather and the need to protect human life, essential

services and natural and built assets.

14. The limitations and complexities raised by planned burning include;

14.1 That not all public land is treatable with planned burning;

14.2 There may be limited opportunities to burn due to the

predominance of private land in the vicinity unless every affected

private landowner consents to DSE taking its planned burn out to a

sensible boundary on neighbouring private land;

14.3 The highly populated rural and interface areas in close proximity to

forest where the residents have a diverse range of values and

opinions on the management and use of planned fire;

14.4 The competing objectives of stakeholders such as grape growers

and wine makers, tourism operators, councils, airports, the forestry

industry and peak body groups representing members of the

community (eg respiratory ailments and environmental concerns);

14.5 The limited window of opportunity to conduct planned burning due

to fuel moisture and fire danger conditions, in other words there is a

limited range of weather conditions under which planned burning

can be conducted;

14.6 The ecological impact of fire and acknowledgement that different

ecosystems have differing requirements for and tolerances to fire;

14.7 That significant cultural sites have to be located and relevant

protection measures implemented;

14.8 The risk of escaped burns; and

14.9 That planned burns are resource intensive, physically intensive and

require skilled crew.

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The Framework for conducting planned burning in Victoria is robust and sound

15. The evidence before the Commission is that DSE carries out its planned

burning program competently and skillfully. In the words of Dr Bradstock the

framework within which planned burning is conducted in Victoria:

‘is solidly constructed and incorporates a wealth of

practical and scientific experience. It is also well directed to

and shaped by the attributes of local ecosystems and

human communities. The detail of the planned burning

program in Victoria reflects not only the opportunities and

demands of the local scene but also the varied constraints

on prescribed burning, such as weather, safety, resources

and air quality. Major relaxation of these constraints via

changes to relevant policies and planning procedures

would increase the likelihood of accidents, escapes and,

unintended damage and adverse air quality. Such effects

may be counter-productive. Planning and operational

procedures targeted at these constraints are detailed and

sophisticated.11

16. DSE’s Fire Management Framework has led to the creation of a series of

strategic documents which form the basis for operational planning and

implementation. These include Codes of Practice, Fire Protection

(Management) Plans and the Planned Burning Manual. There is also the

Living with Fire – Victoria’s Bushfire Strategy which provides a high level

focus for planned burning including objectives of better targeting and

managing risk across the landscape, promoting healthy and resilient

ecosystems as well as monitoring and research to support adaptive

management. This approach is supported by the evidence of the expert

panel and in particular Mr Jerry Williams. Mr Williams, when speaking about

reducing the risk of mega fire, referred to the need for high level and over

arching objectives.12

Bradstock Ex 733, EXP.012.001.0001, [42] Williams, T15426:15 – T15426:18

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Strategic burning

17. The documents described above provide a framework for planning and

implementing a strategic approach to planned burning.

18. There was no dispute between Mr Fogarty and any of the experts called by

Counsel Assisting as to what strategic means or that there is a need to be

strategic. Counsel Assisting appear to have equated being strategic with the

need to burn close to towns and assets. However, Mr Fogarty and the other

experts agreed that being strategic meant much more than buffering the

edge of townships and much more than simply burning close to the edge of

a township.

19. Rather, all of the experts agreed that being strategic involved:

19.1 identifying opportunities across the whole of the fire catchment so

as to influence early and ongoing fire spread and how that fire

spread might impact on communities;

19.2 using planned burns to moderate fire behaviour, not just at the point

of impact but also in terms of how the early spread can be

contained or reduced and the ongoing spread can be moderated;

19.3 recognising that the fire that is going to do the most damage to a

township is likely to be a fire that starts much further out from the

township than one starting close to the town;13

19.4 consideration of multiple fire scenarios; and

19.5 consideration of a sequence of burns across the landscape over a

number of years as opposed to identifying isolated areas for

burning.

20. Although it is easy to state a requirement to be strategic, ensuring that a

sequence of burns will ultimately moderate the intensity of future fires

cannot be guaranteed. This process is enhanced enormously by the ability

of DSE to use modelling tools, in particular Phoenix RapidFire.

13 This was explained by Mr Fogarty in the context of the burns previously conducted and planned for Marysville

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21. Fire can start from many possible sources and locations and spread under a

range of fire danger conditions thereby impacting on communities and

assets. It is necessary to establish and maintain a strategic burn network – a

mosaic – across the landscape to best counter all possible scenarios. In

establishing and maintaining that network of burns DSE will need to make

decisions so as to best optimize the use of resources to reduce risk.

Landscape mosaic burning

22. Strategic burning, as outlined above, will have the effect of creating a

mosaic treatment across the landscape that will contribute to reduced

bushfire risk.

23. In addition to this, there is the opportunity to create a mosaic within a

landscape mosaic burn. This treatment option would typically be applied in

ecological burning zones. A landscape mosaic burn will typically burn drier

ridges and slopes and therefore have a consequential effect of reducing

bushfire spread and intensity as well as providing diversity of habitats for

flora and fauna.

Adverse findings suggested by Counsel Assisting that are not supported by

the evidence

24. There are a number of findings that Counsel Assisting suggest should be

made that are not supported by the evidence. For example:

24.1 At paragraphs [1.1(g)], [4.29], [11.13] and [11.18] and in other

places Counsel Assisting suggest that DSE has been inactive in its

planned burning program lacks policy and direction. This is simply

not supported by the evidence. The State refers to paragraphs 8 to

12 above as to the positive action taken by DSE over the last 5

years

24.2 At [5.15] Counsel Assisting suggest that there has been a failure to

examine the West Australian regime. Counsel Assisting base this

submission on an email that was not put to Mr. Fogarty in

evidence.14 If Mr. Fogarty had been asked to give evidence on this

14 An extract of the email is at [5.14] of the submissions of Counsel Assisting.

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topic he would have rejected the suggestion that the West

Australian regime had not been formally examined by DSE.

24.3 At [4.68] and [4.70] Counsel Assisting suggest that there is no

guidance as to treatment and coverage levels and that this should

be included in the Code. This information is provided in Fire

Protection Plans.15

24.4 At paragraph [13.66] Counsel Assisting contend that: ‘In

implementing Fire Management Plans and Fire Operations Plans,

insufficient attention has been paid to designating and selecting

Asset Protection Zones and Strategic Wildfire Moderation Zones of

sufficient size and treated with sufficient intensity to provide

significant risk reduction to towns near forested areas.’ There is no

evidence before the Commission as to the designation and

selection of Asset Protection Zones and Strategic Wildfire Zones in

the vicinity of townships. There is therefore no evidentiary basis for

the proposed finding.

25. The State submits that the Commission should not make the findings

referred to in the proceeding paragraph or any other findings adverse to the

State which are not supported by the evidence.

Targets for planned burns

19 PROPOSED RECOMMENDATIONS

Proposed recommendation 19.1

It is essential that the DSE annual performance of planned burning of the public land

estate be measured against a statewide target of hectares burned.


The annual target for planned burning should be between 5% and 10% of the

available public land estate with an immediate goal of achieving a minimum annual

rate of 385,000 hectares (5%) of planned burning.

15 Mildura District Fire Protection Plan, pg 32, Fogarty (Annexure ‘LGF 5’) Ex 716, DSE.HDD.0012.0856 at 0891

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The total number of hectares annually treated by planned burning be set out in the

annual report of DSE.

DSE’s current annual planned burning program consists of burning at least 130,000

hectares per year across the State. The planned burning program is reported in the

DSE annual report, which includes information as to the total hectares achieved and

number of planned burns in the various DSE management areas and fuel

management zones.16

26. DSE has exceeded burning 130,000 hectares per annum for the last three

years and in 2008/09 reached 154,000 hectares. Following the 2002/2003

fire season the three year rolling average was 66,390 hectares. The three

year rolling average following the 2008/2009 fire season was 146,141

hectares.17

27. These increases have been made in recognition of the fact that planned

burning reduces risk18 and assists in managing the environment. Further,

the State has a responsibility to put fire back into the landscape to balance

the successful efforts of suppressing bushfires which effectively removes fire

from the landscape during the high risk summer period.19 The State agrees

that the amount of fire introduced into the landscape by way of planned

burns should be increased even further.

28. However, in making any recommendations about increased planned

burning, it will be important to keep in mind the necessity to achieve an

appropriate balance of risk as well as social, economic and environment

impacts and costs20 and that a simple increase in the number of hectares

burnt will not necessarily provide a measure of effectiveness.21 Further, the

Commission should be cautious about setting any short term ‘target’ and

should not be making a recommendation that involves burning at an annual

rate 385,000 hectares.

16 Fogarty Ex 716, WIT.3024.005.0143, [93] 17 Wilson Ex 729, WIT.3024.005.0265, [15]; Fogarty Ex 716, WIT.3024.005.0143, [15] 18 Fogarty Ex 716, WIT.3024.005.0143, [15] 19 Fogarty, T14735:8 – T14735:13 20 Fogarty Ex 716, WIT.3024.005.0143, [109] 21 Fogarty, T14766: 9 – T14766:14.

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29. Counsel Assisting suggest that 5% of available public land equates to

385,000 hectares. This is not correct. The expert panel used the expression

‘available public land estate’ as meaning ‘treatable public land’.22

‘Treatable’ public land is the available area of public land in which planned

burning can safely and effectively be undertaken to reduce fuel loads. The

treatable area will exclude areas of vegetation types that are impractical to

burn (such as sand dunes), do not burn readily or are vulnerable and must

be protected from fire, for example wet forest such as ash and rainforest

which will be killed by fire. However, the definition of treatable does include

the foothill forest type referred to by the panel of experts. Even if the

Commissioners formed the view that a burning regime of 5% per annum

was an appropriate aspirational figure for Victoria, 5% of treatable public

land in Victoria translates to approximately 275,000 hectares per annum

(based on there being approximately 5.5 million hectares of treatable public

land in Victoria23).

30. In making any findings about an appropriate burning regime for Victoria, the

following pieces of evidence are important:

30.1 an appropriate burning regime should accommodate both positive

protection benefits and ecological outcomes. Ecological resilience

should be accommodated, not just in respect of a single fire, but

across the whole landscape and allowing for appropriate fire

regimes.24

30.2 Whilst the principles identified in research in other jurisdictions have

validity, you cannot simply transfer the modelling from other

jurisdictions to Victoria25.

30.3 As such an appropriate regime should be based on the analysis

that has been done with Mr Fogarty’s team at DSE and in light of

22 Land and Fuel Expert Forum, T15245:18 – T15246:1 23 Fogarty, T14747:14. See also Tolhurst Ex 737, EXP.013.001.0001 at 0021 where he states that of the 7.7 million hectares managed by DSE in Victoria only 66% would be suited to routine prescribed burning. This would equate to approximately 5.1 million hectares of treatable public land. 24 Fogarty Ex 716, WIT.3024.005.0143, [75]-[79] 25 Fogarty Ex 716, WIT.3024.005.0143, [87]; Dr McCaw, T14917:20 - T14917:30; T15345:1 -T15351:23

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RESP.3000.006.0070

work that has been done in south-west Tasmania and Western Australia.26

30.4 In addition to increased burning, an appropriate way forward for

Victoria is for DSE to undertake a trial in selected parts of the

foothill forests, such as the Wombat State Forest which will be

burnt at a rate of 5% per annum and be accompanied by supporting

research and monitoring.27

30.5 The more strategic the planned burns (for example, in terms of

where the major fire pathways may be) the more effective you can

be, in comparison to burning very randomly across the landscape.

This in turn reduces the amount of burning required in order to

achieve an appropriate reduction of risk.28

31. In relation to paragraph 31(e) above Dr Tolhurst said:

‘I think it also needs to be said that the proportion of the

landscape burnt also depends on how it is applied across

the landscape in terms of its strategic location. So, for

example, there was a study done by Dr Karen King that

sort of basically saw strategically located prescribed

burning on 5 per cent of the landscape achieved similar to

what 10 or 15 per cent achieved where it was randomly

located.’29

32. Mr Fogarty also compared the current approach to planned burns with the

situation in earlier years. He said that the science behind planned burning

(even though still emerging30) had developed enormously since the 1980s.

Although planned burning was a tool that was used quite widely in the late

1980s and early 1990s, there was a much more laissez-faire approach

during that time and the process was less strategic.31

Fogarty, T14749:12 - T14749:24 26

27 T15246:7 – T15254:2 28 Fogarty, T14761:9 - T14762:4 29 Land and Fuel Expert Forum, T15191:16 - T15191:24 30 Fogarty, T14752:26 - T14752:29 31 Fogarty, T14740:10 - T14740:18

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33. Accordingly, DSE is now much better placed to understand the best and

most strategic interventions across the landscape. DSE will continue to build

on this knowledge through the use of Phoenix modelling.

34. DSE is in a position to better identify zones:

34.1 where fire starts have the potential to cause the greatest damage;32

34.2 where fires have the greatest potential to impact life and property;33

and

34.3 where fire pathways most frequently cross and/or exceed

thresholds where crowning and long distance spotting occur.34

35. By understanding these landscape level linkages, and further weighting

them for factors such as known points of ignition, DSE is better able to

understand risk and how best to manage it by strategic planned burning.35

Such targeted and strategic planned burning based on sophisticated

modelling, together with the application of landscape mosaic burning, should

achieve appropriate planned burning objectives.36

36. As to immediate short term ‘targets’, even with an immediate increase in

resources, an increased regime for more planned burning would need to be

incremental and progressive to allow for capability to be developed. It is very

important to allow time to properly develop the skill, knowledge and capacity

of staff. It should also be noted that there needs to be concurrent

negotiation and discussion with the broader community and industry37 so

that the State will be able to achieve its target on a sustainable basis.38 The

discussions with the community and industry would be best underpinned by

a good scientific basis and modelling so that the discussion can be more

informed.39

32 Fogarty Ex 716, WIT.3024.005.0143, [59.1] 33 Fogarty Ex 716, WIT.3024.005.0143, [59.3] 34 Fogarty Ex 716, WIT.3024.005.0143, [59.2] 35 Fogarty Ex 716, WIT.3024.005.0143, [60] 36 Fogarty Ex 716, WIT.3024.005.0143, [110] 37 Fogarty, T14752:9 - T14752:10 38 It is noted that the South West region of Western Australia (the most comparable to Victoria) has not achieved its target over the last ten years. See T14994:18 – T14995:16 39 Fogarty, T14752:17 - T14752:19

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37. Finally any ‘target’ if recommended, must be a rolling target (eg over a 5-

year period) to take into account seasonal factors.

38. As to proposed recommendations 19.1 and 19.3:

38.1 The State supports proposed recommendation 19.1 save that the

recommendation be rephrased to read ‘It is essential that the DSE

annual performance of planned burning of the public land estate

continue to be measured against a statewide target of hectares

burned.

38.2 The State supports proposed recommendation 19.3 save that the

recommendation be rephrased to read ‘The total number of

hectares annually treated by planned burning continue to be set out

in the annual report of the DSE along with the total number of

hectares burnt by unplanned fire’. The inclusion of all areas burnt

would provide the public with a better picture of the total amount of

fire in the public estate in any year.

39. As to proposed recommendation 19.2:

39.1 The State supports a progressive rather than an immediate

increase in planned burning so as to allow for extensive community

consultation and a progressive increase in capability.

39.2 Any hectare target should be expressed as a five year rolling

average in order to take account of seasonal and regional

variations and the availability of suitable weather opportunities.

39.3 The State supports the use of science and risk management

frameworks to inform planned burning, such as the Phoenix

RapidFire and fire ecology analysis tools.

39.4 The State supports the suggestion of the expert panel that DSE

undertake a trial in selected parts of the foothill forests, such as the

Wombat State Forest, which will be burnt at a rate of 5% per

annum and be accompanied by supporting research and

monitoring.

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39.5 The State agrees that any hectare target should be reviewed on a

periodic basis to take into account the results of new science, trials

and information.

39.6 Any hectare target should be considered in the context of treatable

public land and as such the State does not support a

recommendation that nominates a minimum annual rate of 385,000

hectares of planned burning.

39.7 The State will explore how it may be able to allocate resources to

achieve an incremental higher target based on an appropriate

percentage of treatable public land.

Legislative Duty


The requirement in s62B of the Forest Act 1958, that the Secretary of DSE not apply

or use fire in a national park or in protected public land unless the person or body

that has management and control of that land agrees to its application or use, be

replaced with a requirement that the Secretary consult with the land manager in

relation to the use of fire.

The State supports proposed recommendation 19.4.

40. In supporting this recommendation the State emphasises that the Secretary

of DSE has integrated land management responsibilities and that

consultation with the land manager is an important part of the process. The

State also emphasises that the evidence before the Commission suggests

that there have been no major issues in respect of the use of planned

burning in National Parks.

Implementation


The Code of Practice should be reviewed in order to provide a clear statement of

objectives, expressed as measurable outcomes.

41. The State agrees that the Code of Practice should be reviewed in order to

provide a clear statement of objectives. The State also agrees with the need

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to measure outcomes. However, the approach suggested by Counsel

Assisting as to measuring outcomes does not progress the understanding

and management of bushfire risk. Past measures of effectiveness have

largely been activity based measures, such as hectares burnt. DSE is

moving towards a more comprehensive approach for measuring whether

land and fire management objectives are being achieved. The State agrees

that a more comprehensive approach for measuring whether land and fire

management objectives are being achieved is appropriate. This

comprehensive approach can not be simply expressed in the Code of

Practice as measureable outcomes. A better way of measuring estimated

outcomes is through the use of tools such as Phoenix RapidFire as

explained in the statement and Phoenix RapidFire presentation of Mr

Fogarty.40

42. Counsel Assisting promote the review and revision of the Code of Practice

so as to achieve greater clarity and certainty in the articulation in the levels

of risk. The State agrees with the aim of achieving greater clarity and

certainty but submits that the Code of Practice is not the most appropriate

vehicle for achieving these aims.

43. Accordingly, the State supports in principle proposed recommendation 19.5

save that the recommendation be rephrased to read ‘The Code of Practice

should be reviewed in order to provide a clear statement of objectives and to

incorporate a reference to the need to measure outcomes. DSE measure

estimated outcomes through the use of tools such as Phoenix Rapid Fire

and the fire ecology analysis tools and report those outcomes to the public.’


The Code of Practice ought to contain an explicit risk analysis model for resolving

conflict between competing objectives.

44. The Code of Practice can state that protection of human life is the primary

objective of planned burns in the Asset Protection Zones and the Strategic

Wildfire Moderation Zones, however there needs to be a process to resolve

conflicts between other competing objectives. This is best achieved through

the existing Integrated Fire and Management Planning process.

40 Fogarty Ex 716, WIT.3024.005.0143, [56] – [62] and Fogarty Ex 716, EXH.716.0012

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save that the recommendation be rephrased to read:

45.1 ‘The Code of Practice incorporate a reference to the fact that

protection of human life is the primary objective of the fire

management program;

45.2 The Code of Practice incorporate a reference for the need for an

explicit risk analysis model for resolving conflict between competing

objectives; and

45.3 The State continue to resolve conflicts between competing

objectives through the Integrated Fire Management Planning

process.’


The Code of Practice should be revised so that it provides sufficient explicit guidance

as to the recommended scale (ie size of treatment block) and intensity of treatment

for each Fire Management Zone. The Code of Practice ought to make explicit the

facts that:

a) Where the aim is to reduce risk from unplanned fire (principally in the Asset

Protection Zone and the Strategic Wildfire Moderation Zone) planned burns

should be at least 500 or 1000 hectares in size. Near towns it is sought to

protect, very large areas for treatment might be required in order to

significantly reduce the risk of unplanned fire.

b) In Fire Management Zones where the aim is to reduce risk from unplanned

fire, between 70% and 90% of an area selected for a planned burn should be

burned.

c) In Fire Management Zones where the aim is to reduce risk from unplanned

fire, the residual fuel load should be brought down to ‘high’ (within the

meaning of the Overall Fuel Hazard Guide). When the aim is to protect towns

or construct Asset Protection Zones, it is desirable to ensure highly

flammable bark is removed through scorching in order to reduce the risk of

spotting.

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46. The State supports in principle proposed recommendation 19.7 but submits

that it will not always be possible or practicable to carry out the burns in the

way suggested. For example, positive benefits will sometimes be achieved

by burning a smaller number of hectares to achieve a particular purpose.

Good examples of this are the smaller burns ranging in size from 15 to 22

hectares that had been conducted around Bendigo prior to 7 February

2009.41 In some areas such as forest in close proximity to communities,

such as Kinglake and Kinglake West, there are vegetation types such as

ash forest (Euculyptus regnans) intermixed with drier forest types.

Therefore, it will not always be possible to achieve burning between 70%

and 90% of the area selected.

47. In relation to the suggestion that residual fuel load should be brought down

to ‘high’, the State submits that the focus should largely be on maintaining

the bark fuel hazard component at these levels.

48. The State also submits that the Code of Practice is not the appropriate

document in which to set these guidelines. The appropriate document is

Fire Management Manual 4.1 – Fuel Management as this document

establishes the processes and procedures for fuel management across

Victoria and sets the standards for the recommended scale and intensity of

treatment options for each Fire Management Zone.


save that the recommendation be rephrased to read ‘The Fire Management

Manual 4.1 – Fuel Management should be revised so that it provides

guidance as to the recommended scale and intensity of treatment options

for each Fire Management Zone.

49.1 Where practicable larger burns in the order of 500 to 1000 hectares

be used in the Asset Protection Zone and the Strategic Wildfire

Moderation Zone to moderate the impact of severe bushfire.

49.2 Where practicable in the Asset Protection Zone and the Strategic

Wildfire Moderation Zone, 70% to 90% of an area selected for a

planned burn should be burned.

41 Gilmore, T10132:16 – T10133:15 and Fogarty,T14774:12 – T14774:26

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49.3 Where practicable in the Asset Protection Zone and the Strategic

Wildfire Moderation Zone there should be an aim to maintain bark

fuels at high and below.


In devising and implementing Fire Management Plans and Fire Operations Plans,

more attention should be paid at the District level to designating and selecting Asset

Protection Zones and Strategic Wildfire Moderation Zones of sufficient size and

treated with sufficient intensity to provide significant risk reduction to towns near

forested areas.

50. In respect of proposed recommendation 19.9 the State agrees that in

designating and selecting Asset Protection Zones and Strategic Wildfire

Moderation Zones priority should continue to be given to providing

significant risk reduction to communities and protecting human life as well as

essential infrastructure, the loss of which may impact upon human life and

livelihood. The State would support a recommendation in these terms.

51. The State disagrees that the appropriate approach to achieve this is to

simply focus on buffering the edge of townships. Rather the appropriate

approach is to identify opportunities across the whole of the fire catchment

so as to influence early and ongoing fire spread and how that fire spread

may impact on those communities.

52. Importantly also, fuel management on public and private land in and around

townships needs to be managed by the respective land managers and

Township Protection Plans auspiced by the CFA in partnership with the

township communities are the appropriate mechanism to help achieve this

outcome.

53. The State reiterates the submissions made at paragraphs 46 to 49 above.


The operational guidelines for DSE staff should be revised to set out prescriptive

guidelines for each Fire Management Zone as to the recommended scale and

intensity of particular fuel reduction treatments.

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RESP.3000.006.0078

54. The State supports in principle proposed recommendation 19.10 save that

the recommendation be rephrased to read ‘the operational guidelines for

DSE staff should be revised so as to ensure consistency with the revision to

the Fire Management Manual set out above’.

Biodiversity and Fire – Monitoring and Mapping


That DSE undertake and make available biodiversity mapping identifying flora, fauna

and any threatened species across Victoria, in a format compatible with Bushfire

Prone Area mapping.617


That DSE routinely record and spatially map all significant fires (planned and

unplanned) in Victoria and progressively consolidate fire maps into fire histories.


That DSE implement and maintain a program of long-term data collection, monitoring

and modelling of the effects of its planned burning programs and of wildfires on

biodiversity in Victoria.

55. The State supports proposed recommendation 19.11.

56. The States supports in principle proposed recommendation 19.12 save that

the recommendation be rephrased to read ‘DSE continue to routinely record

and spatially map all significant fires (planned and unplanned) on public land

in Victoria and progressively consolidate fire maps into fire histories’.

57. The States supports in principle proposed recommendation 19.13 save that

the recommendation be rephrased to read ‘DSE enhance its program of

long-term data collection, research, monitoring and modelling of the effects

of its planned burning programs and of bushfires on biodiversity in Victoria’.

Resources


The DSE engage greater numbers of permanent full time field staff trained and

available to undertake planned burning.

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RESP.3000.006.0079


The DSE continue to engage PFFs to supplement the numbers of full time field staff

and to enable large numbers of personnel to be available to work in the field on

planned burning in Spring and Autumn.


The numbers of staff engaged by DSE whether permanent full time or seasonal

PFFs must be sufficient to enable the Department to undertake a planned burning

program pursuant to which at least 5% of available public land is burned annually.


The DSE to investigate and implement means of:

a) Recruiting greater numbers of PFFs in early November or late October, to

ensure they are ready to engage in planned burning each Spring and

Autumn;

b) Retaining greater numbers of PFFs for successive seasons.


The DSE to maintain a database adequate to enable it to identify numbers of

permanent field staff and PFFs who, in any given year, are available to engage in

planned burning and to enable it to report on how many staff do engage in planned

burning in each year – and for how many days, at what cost to the Department and in

which Districts or Regions the work is undertaken.


The DSE ought make publically available sufficient information to enable sensible

cost-benefit analyses to be undertaken when determining which planned burning

options will be implemented to reduce the risk of unplanned fire.

58. The State supports proposed recommendation 19.14. In supporting this

proposed recommendation the State emphasises that the staff will need to

comprise scientific, technical and operational personnel.


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60. In relation to proposed recommendation 19.16, the State refers to its general

submissions above in relation to proposed recommendation 19.2, in

particular paragraph 39. The State emphasises that:

60.1 any additional funding allocation must be properly assessed against

other financial management obligations of the State; and

60.2 any increase in capability will need to be incremental.

61. Further, the State prefers the expression ‘treatable public land’ rather than

‘available public land’ as it provides greater clarity.

62. The State supports proposed recommendation 19.17 save that the

recommendation should be rephrased to reflect the fact that DSE already

recruits PFFs to engage in planned burning in Spring and Autumn. In

supporting this recommendation the State will increase the number of PFFs

on 3 year contracts to improve retention levels.



Intersection with Commonwealth Regime


The State should seek a strategic assessment from DEWHA under the EPBC Act

with respect to all appropriate aspects of bushfire risk reduction measures

undertaken in Victoria including planned burns.

65. The State supports in principle proposed recommendation 20.

66. The State notes that:

66.1 The evidence before the Commission is that the relatively small

number of referred fire management actions and the referrals

themselves demonstrate that the EPBC Act is not usually triggered

by State or locally managed activities and that where there is the

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RESP.3000.006.0081

potential for the EPBC Act to be triggered fire activities can be

managed to avoid significant impacts.42

66.2 The approval of a strategic assessment means that activities can

be undertaken in accordance with detailed prescriptions relating to

each matter of National Environmental Significance, provided the

work is undertaken in a ‘particular manner.’ As Mr. Burnett’s

statement makes clear that actions taken in accordance with an

endorsed policy, plan or program may not require separate referral

or approval.43

66.3 Any strategic assessment will require the development of detailed

‘prescriptions’ for the treatment of each matter of National

Environmental Significance which would be expected to include

mitigation and avoidance prescriptions. The Commonwealth is also

expected to require offsets to mitigate impacts associated with

actions with impacts on matters of National Environmental

Significance.

66.4 There is only one example of a strategic assessment in Australia.

This was the Melbourne Urban Growth Boundary Assessment

which was endorsed by the Minister on 2 February 2010.44 The

proponent was the State. The experience of the State was that this

was a complex and technical exercise.

66.5 As presently formulated the proposed recommendation would seek

a strategic assessment in respect of all land under the

management of the State and in respect of a broad range of

activities. The Commission has not heard any evidence as to the

capacity of the EPBC Act strategic assessment mechanism to

accommodate the likely scope of activities contemplated by

Counsel Assisting. The Commission has also not heard evidence

as to the resources that would be involved in such an undertaking

for the State and which might be better allocated to other functions

with more urgent priorities.

42 Burnett Ex 800, WIT.6007.001.0001, [29] 43 Burnett Ex 800, WIT.6007.001.0001, [39] 44 Burnett Ex 800, WIT.6007.001.0001, [41]

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67. The State submits that its alternative proposed recommendation in relation

to proposed recommendation 18 of Counsel Assisting in relation to the

roadsides topic addresses proposed recommendation 20 in relation to

planned burning. The alternative recommendation is that:

'The State working with the MAV initiate discussions with

the Commonwealth DEWHA under the EPBC Act as to the

capacity of a section 146 strategic assessment to address

bushfire hazard reduction measures in Victoria and the

funding for this process. In considering the scope of any

strategic assessment consideration should be given to

including planned burning, construction of fuel breaks and

roadside vegetation management and removal.'

Kerri Judd SC Marita Foley

Counsel for the State of Victoria Dated: 8 April 2010

Victorian Government Solicitor's Office Solicitors for the State of Victoria

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