Letter to CYC 05Dec2024

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We set out below relevant extracts from the State Planning Policy which go to the subject of discussion in
the email chain between yourself and Nadine Gorton.

State Planning Policy (SPP)

The Premises are within the bushfire hazard area as defined in the SPP.

Whilst the SPP makes reference to “state interest guidance material” it is expressly not statutory and has
been disregarded1 and in other cases utilised2.

           Part E

           Planning for safety and resilience to hazards will enable positive responses to challenges and change.
           By using an evidence-based risk management approach, planning can help ensure the continued
           wellbeing of people, the protection of property, infrastructure and the environment, and encourage
           economic development. (P.47) (underlining added)

           The state’s interest in natural hazards, risk and resilience seeks to ensure natural hazards are properly
           considered in all levels of the planning system. This includes avoiding or mitigating the risks associated
           with natural hazards to an acceptable or tolerable level, increasing community resilience, and
           decreasing the burden for emergency management. (P.50) (underlining added)

           State Interest

           (2) A fit-for-purpose risk assessment is undertaken to identify and achieve an acceptable or tolerable
           level of risk for personal safety and property in natural hazard areas. (P.51) (underlining added)

           (4) Development in bushfire, flood, landslide, storm tide inundation or erosion prone natural hazard
           areas:

           (a) avoids the natural hazard area; or

           (b) where it is not possible to avoid the natural hazard area, development mitigates the risks to people
           and property to an acceptable or tolerable level.

           (5) Development in natural hazard areas:

           (a) supports, and does not hinder disaster management capacity and capabilities

           (b) directly, indirectly and cumulatively avoids an increase in the exposure or severity of the natural
           hazard and the potential for damage on the site or to other properties

           (c) avoids risks to public safety and the environment from the location of the storage of hazardous
           materials and the release of these materials as a result of a natural hazard




1
  Roubaix Properties Pty Ltd v Somerset Regional Council [2020] QPEC 34 The site is within a flood hazard area as defined
in the SPP.37 The SPP also includes “state interest guidance material”, but it is expressly stated that this is “not statutory
in its effect”, and I therefore will not have regard to it in applying the SPP.38

2
    Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 7, para 59


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        (d) maintains or enhances the protective function of landforms and vegetation that can mitigate risks
        associated with the natural hazard. (P.51)

        Assessment benchmarks – natural hazards, risk and resilience

        A development application for a material change of use, reconfiguration of a lot or operational works
        on premises in any of the following:

        (1)     bushfire prone areas …

        All of the following requirements are assessment benchmarks for the development:

        Bushfire, flood, landslide, storm tide inundation, and erosion prone areas outside the coastal
        management district:

        (3) Development other than that assessed against (1) above, avoids natural hazard areas, or where
        it is not possible to avoid the natural hazard area, development mitigates the risks to people and
        property to an acceptable or tolerable level. (underlining added)

State Interest Consideration

The state interest requires an evidence-based assessment which has been provided by North Coast
Environmental Services, which concludes at page 41:

        Overall, the development proposed for the site, in combination with recommendations referenced
        herein, is deemed suitable with respect to providing a reasonable level of protection for people and
        property within the site.

The State interest does not require that there be no risk but rather that the risk be to “an acceptable or
tolerable level”.

That assessment has been described as follows:

        [55] I do not accept that the Development Tribunal erred in its construction of the assessment
        benchmarks. The assessment benchmarks contain no quantitative indication of the level of risk that
        should be regarded as acceptable or tolerable when assessing whether the proposed development
        satisfactorily maintains the safety of people and minimises the potential damage from flooding to
        property. Rather, the question of compliance calls for the Development Tribunal to make a broad,
        evaluative judgment having regard to the facts and circumstances of the case.3

An assessment in regard to an acceptable or tolerable risk for bushfire hazard has been considered as follows:

        What do the bushfire experts recommend based on their assessment?

        [58] During their oral evidence, both bushfire experts explained that they regard the contemporary
        technical guidelines as providing appropriate criteria. They explain that the previous guidelines34
        adopted a “rule of thumb” approach based on a prescribed distance (1.5 times the tree canopy height)
        from prescribed bushfire hazard areas. Mr Friend says that one of the limitations with the earlier
        approach is that it did not take account of understorey, fuel loads and other such considerations that

3
 Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020]
QPEC 61


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                                                                                                 5 December 2024




           have come to the fore as a consequence of improved understanding about bushfires. As such, the
           previous approach did not include a site-specific analysis of radiant heat exposure. The experts are
           both of the opinion that the incorporation of a site-specific analysis of radiant heat exposure in the
           current guidelines provides a more robust and finer-grained analysis of bushfire risk and allows
           determination of a more appropriate bushfire hazard protection zone.

           [59] The bushfire experts agree that, applying the State Interest Guidance Material and Bushfire
           Resilient Communities, a setback from hazardous vegetation that achieves a BAL rating of no more
           than BAL-29 (or radiant heat flux 29kW/m2 ≤ at the building or building location) is deemed to achieve
           an acceptable or tolerable level of risk to people and property. As such, the experts say that a 12-
           metre-wide setback is all that is necessary, whether the house is located as proposed by Traspunt or
           in accordance with condition 1. This is the extent of setback that both experts recommend.
           (Underlining added)

           [63] When the Council provided its revised conditions of approval, it did not have the benefit of the
           evidence of the bushfire experts. Those experts are eminently qualified to express opinions about the
           appropriate extent of clearing around any house on Lot 909 and Lot 910. As is reflected by my
           summary of their evidence in paragraphs [34] to [59] above, the bushfire experts have undertaken a
           detailed, sitespecific analysis of the bushfire risk of the subject land. They detail all of the material
           facts on which their reports are based, reference the literature and other material on which they rely,
           comprehensively document their observations, investigations and calculations, and provide a cogent
           explanation for the opinions they express. No material challenge was made to their evidence. There
           is no suggestion of relevant error with the material facts on which their reports are based. With the
           exception of the evidence of Mr Friend referred to in paragraphs [48] and [49] above, I accept their
           evidence.4

Without suggestion of relevant error with material facts upon which the report of North Coast Environmental
Services is based, the evidence contained within it ought to be accepted.

The State interest requires avoidance of development in the “natural hazard area”, not generally upon any
premises upon which a natural hazard area is mapped.

The proposed development has avoided “development” in the “natural hazard area”.

A consideration for the SPP relating to flooding described numerous ways in which avoidance could occur.

           [27] The plain and ordinary meaning of the phrase ‘avoid areas prone to flooding’, in context, requires
           development to ‘keep away from’, ‘keep clear of’ or ‘evade’ an area prone to flooding38. This may be
           achieved, in my view, in a number of ways, including the following: (1) development does not occur
           on any land which is flood prone, be it in whole, or part; or (2) development is designed to remove the
           flooding constraint – i.e. land is filled to the point where flood immunity is improved, and the
           constraint is effectively removed; or (3) development occurs on land partly flood affected, but sited
           to laterally avoid the constraint; or (4) development occurs on land that is flood affected, be it in
           whole or part, but is vertically elevated above the constraint, thereby allowing flood waters to rise
           above, and pass beneath, it. Here, it is said the proposal has been designed, and sited, to achieve
           avoidance in a manner consistent with item (4).5

4
    Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 7

5
    Black Ink Architecture Pty Ltd v Ipswich City Council [2020] QPEC 13




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In the present circumstances the development has achieved avoidance by being constructed on areas outside
of the bushfire hazard mapping.

Assessment Benchmark Consideration

A review of the amended plans for the outdoor education center identify the proposed new infrastructure
being constructed in areas which appear to be outside of the state mapping for bushfire hazard area or at
the very least capable of being conditioned to be placed outside of those areas.

Whilst the “premises” contain areas that are within the state mapped bushfire hazard area the new
development is not.

Assessment benchmark (3) is in two parts, the first is to avoid natural hazard areas and the second is where
natural hazard areas cannot be avoided, the requirements is to mitigate risk to acceptable or tolerable levels.

Assessment benchmark (3) above does not require the “premises” to be outside of the natural hazard areas
but rather that the development avoids “natural hazard areas”.

The proposed development avoids the natural hazard areas and would appear to thereby comply with the
assessment benchmark.

The proposed development also mitigates risks to acceptable or tolerable levels and also complies with the
assessment benchmark on that basis.

Conclusion

Based upon the material with which we have been instructed it would appear that there has been compliance
with the SPP in relation to bushfire hazard and that bushfire hazard should not be an issue that warrants
refusal of the proposed development.

Yours faithfully




Lestar Manning LLB
Director - Maroochydore Office
e [email protected]




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