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NSW Bushfire Inquiry calls for greater operational capacity and planning to prevent and respond to bushfire risks

  • Legal Development 23 September 2020 23 September 2020
  • Asia Pacific

An Inquiry by the NSW Government into the 2019-2020 Bushfire Season released its final report to the public on 26 August 2020 ("the Report").[1] All 76 recommendations will be accepted in principle by the NSW Government.

Key recommendations include establishing a national bush fire database, to monitor bush fire activity and impacts, and evaluate costs and effectiveness of risk mitigation efforts, enhanced funding for research, technology, and services to detect and respond to bush fire risks, and improving communications protocols between agencies. This article provides a snap shot of some of the key recommendations, and if implemented, their implications for landowners, property developers, utilities operators, and insurers.

We expect that the findings of the Report will result in changes to legal requirements concerning planning, vegetation management and potential legal liability for fire prevention and management. Businesses, landowners, and Councils with exposure to bush fire related risks should be considering the Report and how to manage and respond to the potential risks from property damage, legal liability, and potential for retrospective building standards.

Background to the Inquiry

The 2019-20 Bushfire Season was unusually extreme, with fires burning through forested regions at a scale not seen in recorded history, and with fire behaviour that had not been seen by even experienced firefighters. While prescribed burning and hazard reduction activity reduced fire severity in some locations, in others it had no impact on the severity and spread.

As the Report acknowledges, with the impacts of climate change looming, it can be expected that there is an increased risk of similar weather conditions which lead to the bushfires, and supported their spread, such as extended dry and hot weather. However climate change was not the only factor contributing to the extreme fires, with other weather patterns and factors also contributing. While fuel loads were a contributing factor, the Report found that there was not any greater amount of fuel in 2019-20 than the past 30 years, and so that alone did not account for the unusual conditions, but rather the dryness of fuel was significant.

Other factors, including inadequate resources, lightning, difficulties with the terrain of remote fires, and challenges in detecting fires in remote areas also contributed to the spread and scale of fires. The Report noted that fire suppression strategies which had worked in previous years did not work well in this season, and that more research into methods for megafires, as well as conventional fire fighting, is required.

Operational improvements for fire fighting services

A number of recommendations centred on the effectiveness of how fire fighting services were coordinated and prepared. The Report concluded that while generally the response was well coordinated, there were many opportunities to address gaps which became evident, and to improve operational aspects of RFS and overall strategy for fighting fires. This included, for example, recommendations on enhanced training for fire-fighters (Recommendations 6 and 10), strengthening cross-agency accountability and coordination (Recommendation 8).

Fire prevention and mitigation

Many recommendations also focused on how might better prepare and mitigate fires. Key recommendations and findings included:

  • That fire-preparedness programs are evaluated, and the most effective programs are rolled out to communities and at-risk cohorts (R15).
  • Improving information on fire behaviour and risks, for example Recommendation 18 recommended enhanced collection and mapping on data concerning fire risks, assets, passive protection measures, access, hazard reduction results, and other data such as information held by NSW RFS local brigades.
  • A re-commitment to regionally based bushfire risk planning, including hazard reduction activities, regional priorities, and implementation of modelling, and auditing of Bush Fire Risk Management Plans (R 19).
  • Calls for greater collaboration with, and implementation of, Aboriginal land management practices for planning and preparing for bush fire risks (R 25 and 26).
  • A suite of targeted and more strategic hazard reduction activities across all tenures, working from the perimeters of settlements outwards, and involving communities in their design and implementation, including a cost benefit analysis of different hazard reduction methods in different locations. The Report noted that there is not a ‘one size fits all’ solution to prescribed burning treatment, and the potential risk mitigation resulting from any particular prescribed burning strategy varies significantly between landscapes.

Implications for planning for bushfires

Overall, the Report found that the framework in place for hazard reduction planning in NSW has a sound foundation, with the planning system incorporating extensive and generally effective bush fire resilience into all developments on designated bush fire prone land. However, the Report also identified opportunities to develop a more proactive and strategic approach by NSW RFS, Local Councils, and other planning authorities to managing bushfire risks.

Current management of bushfire risks through planning controls

At present, these risks are managed by the NSW RFS Commissioner designating land as bush fire prone, in practice through maps prepared by councils in accordance with RFS guidelines for bush fire prone land mapping. Once designated, the NSW RFS Planning for Bush Fire Protection (PBP) guidelines must be applied at a strategic level to that land when preparing Local Environmental Plans or planning proposals, and at a specific development level (eg development applications). Certain developments will be referred to the NSW RFS for concurrence. Once approved, the Principle Certifying Authority must ensure that conditions regarding fire risks are implemented before occupation.

The Report noted a number of issues regarding these existing arrangements, including:

  • There are no mechanisms to prohibit development in areas where bush fire risks are too great and cannot be mitigated.
  • The planning system needs to adapt to changing risk profiles for different areas, eg, where bushfire risks are increased or changing from past known risk profiles.
  • Places doubt on whether aspects of the PBP and AS3959:2009 are sufficiently rigorous and reflect observed fire behaviour during the 2019-20 season.
  • The Environmental Planning and Assessment Act 1979 (NSW) does not comprehensively understand risks across LGAs or manage cumulative impacts (such as traffic in evacuation routes servicing multiple LGAs).
  • There are many legacy facilities and dwellings which were built before current standards, when bush fire controls and measures were less rigorous. Such buildings do not meet minimum standards and there is no legislative mechanism to require they be upgraded or to relocate residents who are in inappropriate locations.
  • Patterns of development in bush fire prone areas are assessed on a site by site basis, without necessarily a full understanding or consideration of cumulative issues and risks in that area.
  • Approvals for fire mitigation measures for particular developments are at a single point in time, and are not centrally recorded. Landowners are responsible to maintain systems, which may not be consistently carried out in practice, particularly when there is a change in ownership of the properties. There is little monitoring of compliance with existing conditions, or means of ensuring existing measures are upgraded to modern standards.
  • Designing, building and upgrading existing dwellings in bush fire prone areas is becoming more difficult and, in some instances, adds as much as AUD100,000 to overall costs.

Reforms to planning system approach to managing bush fire risks

The Report noted that it is desirable to ensure the planning system supports and strengthens the bush fire resilience of existing properties and towns, enabling them to adapt to new and increased risks due to population growth in bush fire prone regions. It noted that avoidance should be the first line response, followed by mitigation. The Report also reemphasised the importance of ensuring that Asset Protection Zones and fire trials are maintained, particularly in relation to critical infrastructure at a local level.

The Report signalled that a new approach to risk management would be required, noting that the planning system needs to:

  • be upfront about the bush fire risk across a landscape, taking into account the specific environmental conditions of that landscape, when identifying future land uses and areas; and, rather than making assessments on a site-by-site basis, using standardised quasi-steady bush fire behaviour principles;
  • deal with legacy bush fire issues arising from previous planning decisions transparently and equitably, using a suite of tested mitigation methods.

Some of the key recommendations for policy reform included:

  • In the long term, a new NSW Bush Fire Policy similar to the NSW Flood Prone Land Policy should be developed, in order to accommodate changing climate conditions and the increasing likelihood of catastrophic bush fire conditions. The NSW Flood Prone Land policy provides an integrated strategic planning approach to flood impacts in both new and existing development, developing understanding of flood behaviour in specific areas at a strategic level rather than an ad hoc, individual proposal basis or based on standardised information, and dealing with legacy issues through requiring upgrades or buy-backs of land. The Report recommended a similar approach to bush fire risks.
  • In the shorter term, a range of measures to improve education, compliance, auditing and enforcement in respect of bush fire standards for local developments and assets.
  • Working out in advance the relative value to the community of different assets, to determine priorities in advance where multiple assets are threatened by fire and there are insufficient resources to protect them all.
  • Accelerating the preparation of spatial mapping of assets, to understand the location and bushfire risks of infrastructure and assets within the state, and ensuring RFS has full access to the necessary information.
  • Incorporating Aboriginal traditional land management practices to managing bush fire risks.
  • Better bush fire mapping which accurately depicts the bush fire environment of an area, and takes bush fire risks into account when identifying the most appropriate places to build.
  • Urban planning policy and landscape design principles and practices that create buffers between flammable landscapes and urban areas without compromising amenity and biodiversity values.
  • A strategic planning model which provides mitigation and adaptation measures, including the opportunity for people to relocate out of extreme risk bush fire communities, i.e. swaps and buy back schemes for developments that are incompatible with a tolerable bush fire risk level.

Vegetation management

The Report noted that there are processes in place to enable private landholders to undertake hazard reduction – including burning and clearing – but observed a need to expand the mechanisms for working with private landholders to ensure everyone understands the approval processes and why they are necessary.

Recommendation 28 suggested a review of the vegetation clearing policies to ensure that the processes are clear and easy to navigate for the community, and that they enable appropriate bush fire risk management by individual landowners without undue cost or complexity. Other recommendations such as R32 focused on ensuring outcomes based roadside vegetation management to reduce roadside tree fall and grass ignitions in planning and preparing for bush fire.

Other recommendations relevant to local government

As local government are involved in Bush Fire Management Committees (BFMCs), they should be aware of recommendations relevant to those committees, for example:

  • Recommendation 8 recommends amongst other things that BFMCs refer to Bush Fire Coordinating Committees any issues which are unable to be agreed and resolved at a local level.
  • Recommendation 11 recommends measures to strengthen the capability of local councils for future events, including by delivering training to Local Emergency Management Officers (LEMOs), councils regularly sending LEMOs to refresher training, and ensuring that LEMOs are appropriately senior and with authority to commit resources.

Councils may find they have more resources to plan hazard reduction activities. For example:

  • Recommendation 20 calls for government to support local Councils to implement more comprehensive hazard reduction at a local level, including the full suite of management strategies including prescribed burning, clearing, mowing, and mechanical treatments, in combination as appropriate. Recommendation 28 likewise calls for ensuring that local government is resourced to enable effective audit, enforcement and compliance powers in respect of local developments and assets on bush fire land.
  • Recommendation 70 calls for Resilience NSW to work with Local Emergency Management Committees (LEMCs) to update the guidelines concerning risk assessment of potential and existing evacuation centres, and to review and report of the risk assessment of existing locations.
  • The Report suggests increasing enforcement, compliance and educational activities by local councils in high risk areas to identify existing non compliances e.g. non-compliant alterations and additions, non-approved dwellings, APZs and BAL maintenance.

Developing a centralised BAL and APZ database with local government to ensure information regarding BALs and APZs is easily accessible by insurance companies and existing and future landowners.

Where Council is land manager for public land, the Report has recommended that government which is managing land be the best neighbours possible by considering their neighbours when undertaking activities related to bush fire preparation and having clear, two-way communication about these activities, with the aspiration that government landholders will be seen as highly desirable neighbours. (R24)

Implications for Insurers

The 76 recommendations are designed to promote a strategic approach to bushfire coordination, funding, research, education, training and data capture. These arrangements are intended to achieve more effective and efficient bushfire risk and hazard reduction outcomes, and in turn promote enhanced bushfire resilience.

If successfully implemented, these measures will increase our ability to respond to, manage and control fire events. This will ultimately achieve a reduction in loss of life and property sustained in bushfire events. The insurance industry will undoubtedly welcome the opportunity to be involved in and support the pursuit of these objectives and outcomes.

That said, the recommended new oversight and responsibility framework is complex. It necessarily involves multiple different agencies. This will demand a high degree of inter agency cooperation and communication - and inevitably, given the subject matter, in times of extreme challenge and stress.

Therefore, clarity of operational and functional responsibility will be critical. Demarcation and coordination of respective agency and other key stakeholder roles is essential. Unless these organisational matters are carefully structured and implemented, the risk of mismanagement and error - and the resultant loss and attendant liability - will be high.

Insurers should particularly note recommendation 28, which recommends that Government should amongst other things:

  • prepare, in association with the insurance sector, a model framework and statutory basis for the establishment of an enforcement, compliance and education program which adopts a risk-based approach to routine inspection of local bush fire prone developments.
  • consider the introduction of subsidies for property owners to undertake site mitigation works to reduce bush fire risk and work with the Insurance Council of Australia to develop an agreed set of measures to insure against with a view to risk reductions resulting in lower insurance premiums.

A number of recommendations related to the paucity of government data around the location and risk profile of property and infrastructure assets, and mapping out their exposure to bushfire risks. The Report recommends that government prepare and maintain data sets on property and infrastructure assets and their exposure to bushfire risks (R 18, R 29). The Report further recommended developing a centralised BAL and APZ database with local government to ensure information regarding BALs and APZs is easily accessible by insurance companies and existing and future landowners.  These datasets may assist insurers to better understand and manage risks of offering insurance in bush fire prone locations.

Implications for Utilities Providers

The Report was complimentary towards the actions taken by utility providers to quickly respond to power outages caused during the bushfires, and their response overall. It was however more concerned about the loss of telecommunications during the bushfires, noting the implications including the difficulty in providing warnings and contacting people in the absence of backup systems, and inadequate information for the RFS concerning the location of critical sites. The Report emphasised community expectations that utility providers should be able to provide backup power in natural disasters, although noted the corresponding costs and safety considerations for utilities providers.

The Report noted some suggestions for the preparation phase of minimising future service disruptions during bushfires, including:

  • ensuring infrastructure assets are adequately identified, protected and prepared;
  • making the electricity network more resilient;
  • ensuring reliable backup plans are in place as part of bush fire planning; and
  • consideration of undergrounding power lines and building stand-alone power systems to reduce risks.

The Report further suggested that Australian governments revise the regulatory framework for the provision to government authorities of information about all critical infrastructure (public and private) including a possible change to compel the owners of critical assets to provide all needed metadata, updated annually, for appropriate planning, preparation and response for bush fire.

Finally, the Report also recommended that:

  • The NSW Government work directly, or together with other Australian governments and/or their relevant power and telecommunications regulatory, policy and market bodies, to ensure there are sufficient redundancy options available (e.g. backup diesel generators, deployed temporary telecommunications facilities, etc.) to supply power to essential telecommunication infrastructure or alternative telecommunications infrastructure;
  • The telecommunication entities’ and electricity network providers’ Bush Fire Risk Management Plans are updated annually and reported on in the NSW RFS Commissioner’s annual statement;
  • There is appropriate auditing of distributors’ preparedness for risks arising from network assets being affected by bush fire, as well as the risk of networks initiating a bush fire;
  • Cross-carrier roaming arrangements are facilitated between carriers and the public during the period of emergency in areas directly affected by fire, and enable NSW RFS to require carriers to provide regular information on the status of outages and areas affected by fire;
  • Mobile generators are sourced and distributed on a priority basis during natural disasters, the EUSFAC work with the NSW Telco Authority, relevant NSW government agencies and commercial stakeholders to develop a mobile asset deployment strategy. The strategy should reduce duplication in purchasing, maintaining and housing mobile generators and improve agility in deployment.

Managing safety issues

The Report discussed safety for public health, noting a need to better understand the public health impacts and communication to public regarding the health impacts of bushfire smoke.

The Report also noted that there are significant issues for respiratory protection for firefighters, and supported the review of the adequacy of this equipment, also recommending that personnel have two sets of PPC. It further recommended all frontline fire fighting vehicles have radiant heat protection blankets, wheel and ‘halo’ sprays fitted to ensure firefighter safety. The Report also noted concerns and recommendations regarding managing the mental health and sustenance of firefighters during long and arduous fire seasons (R39 and 40).

Horizon scanning and key takeaways

Overall, the Report found that the NSW RFS and other emergency services generally did a good job, but there were operational and strategic improvements which could be made, such as improving safety for firefighters, improved inter-agency communication, and improvements to the strategic planning for, and operational response to, bushfires. This included both thoughtful and strategic hazard reduction activities, as well as broader land planning and housing design targeted at mitigating risks. The Report also suggested further investment in innovations and research into addressing and understanding these risks.

As the Report noted, bushfire risks are primarily driven by weather patterns, including temperature, rainfall in drought. As the weather for the 2020-2021 fire season is modelled to be wetter and milder weather, the risks are considered to be average. However, with climate change and drought ever present risks for Australia, there is no place for complacency.

Should you require any further advice on planning for bushfire risks or compliance with the existing or any future regulatory requirements, or to join our mailing list, please contact Kristyn Glanville or Jacinta Studdert. Insurers interested to discuss these changes should likewise please contact Dean Carrigan.

Clyde & Co regularly publishes articles on identifying and managing risk, which can be found at the Resilience Hub.




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