royalcommission.vic.gov.auroyalcommission.vic.gov.au/.../Transcript_VBRC_Day_095_14-Dec-2009.pdf ·...

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__________________________________________________________

TRANSCRIPT OF PROCEEDINGS__________________________________________________________

The attached transcript, while an accurate recording of

evidence given in the course of the hearing day, is not

proofread prior to circulation and thus may contain minor

errors.

2009 VICTORIAN BUSHFIRES ROYAL COMMISSION

MELBOURNE

MONDAY 14 DECEMBER 2009(95th day of hearing)

BEFORE:

THE HONOURABLE B. TEAGUE AO - ChairmanMR R. MCLEOD AM - CommissionerMS S. PASCOE AM - Commissioner

__________________________________________________________CRS WORDWAVE PTY LTD - A MERRILL COMPANY.4/190 Queen Street, Melbourne. Telephone: 9602 1799

Facsimile: 9642 5185

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.Wordwave:MB/SK 14/12/09 HAYES XNBushfires Royal Commission BY MR RUSH

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MR RUSH: Commissioners, this morning, we intend to call somewitnesses in relation to neighbourhood safer places andthe first witness is Mr Hayes.

<TERENCE ANTHONY HAYES, sworn and examined:MR RUSH: Mr Hayes, your full name is Terence Anthony

Hayes?---Yes.And you are the acting executive manager of fire management

planning systems with the CFA?---Yes.And in that responsibility, or I'm not sure if it is outside

that responsibility, you at the CFA have an overallresponsibility for neighbourhood safer places?---Yes, Ido.

Mr Hayes, a statement was provided to the Royal Commission, Ithink on Friday night, by you for the purposes of yourevidence this morning?---Yes.

Are the contents of the statement true and correct?---Yes, theyare.

I tender the statement of Mr Hayes.#EXHIBIT 614 - Witness statement of Terence Anthony Hayes

(WIT.3004.032.0147).MR RUSH: Mr Hayes, you in the statement indicate you joined

the CFA in 2003 as a project coordinator inoperations?---Yes, I did.

And that, I take it, is in operational responses and - --?---In the operations directorate, yes.

Can you indicate to the Commissioners what your background wasprior to join the CFA?---I had had a career in theCommonwealth level in primarily Social Security. I had anumber of leadership and executive roles there. I haddone some work of a project nature in community servicewith the City of Melbourne and I had had some experience

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in private enterprise as director of my own company, so arange of experiences.

In 2007 you took on a role at CFA in relation to communitysafety?---Yes.

What was that role?---In 2007 I moved into the executivemanager role of either looking after communityinfrastructure or fire management planning systems.

And just by way of background, had any of your experience priorto 2003 been - it had been, what, a community-basedexperience but not specific to firefighting or emergencymanagement situations?---That's fair, yes.

One of the matters that you became involved in in 2007 was thedevelopment of risk assessment tools?---Yes.

For what you call in paragraph 6 a "risk precinctsapproach"?---Yes.

What was that?---It's a way of looking at how our communitiesare organised on the basis of land use and, from that,what type of treatments we might propose. It is a fairlyuseful, everyday language. For example, the interests ofthis Commission is how we would describe our interfaceareas, which is primarily where the populations meet theforested areas, if you like, and so we were using thatinformation in fact to sort of help us inform where ourhigh risk townships would be, but equally we couldseparate out and look at farming and rural living and saywhat other treatments are appropriate for thatenvironment, so its some useful descriptive words that wewere able to organise our discussions around land use andengage the population or our communities and otheragencies.

Can you give us an example of how it worked in relation to a

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particular area?---It might be easier if I just sort ofindicate that, as we were working through trying toidentify the high risk townships, we were able to sort ofoverlay those areas that we had described as interfaceonto the map of Victoria and compare that to otherconditions such as drought or low stream flows, heavilywooded areas, if you like, to sort of say these are theareas we should be concentrating on.

And so, when you talk about a risk precincts approach, and wewill come to it, but 52 areas have been highlighted forthe purposes of neighbourhood safer places?---Yes.

Were they previously identified as high risk areas in the riskprecincts approach? Why the differentiation?---I thinkthat the 52 was sort of narrowing the focus, if you like.I mean, we would see that if you talk about bushfire, asit were, that people living in interface-type areas andperhaps farming and rural living in the edge of townships,they all generally face an elevated risk of bushfire. Thepurpose of looking for the 52 was to provide the focalpoint for those that were perhaps at a higher level inthat elevation, as it were, the more extreme level.

At paragraph 7 you set out a number of the recommendations fromthe interim report of the Royal Commission?---Yes.

At 8.5 you set out the recommendation in relation to the Stateto promulgate criteria for identification and operation ofneighbourhood safer places and I think you go on to saythat that was taken up in section 50E of the amendment tothe CFA Act and consequently the CFA produced guidelinesin relation to neighbourhood safer places?---A guideline.

A guideline?---Yes.And the guideline set out the criteria that were to be applied

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in the assessment of neighbourhood safer places. Thatcriteria is that it has to be a place of lastresort?---Absolutely.

It is intended to provide a place of relative safety?---Yes.It does not guarantee the survival of people who may take

shelter at a neighbourhood safer place?---That's right,nor travelling there.

Nor travelling there. And there is no guarantee that it in anyway will be defended by any of the emergency services andparticularly CFA?---That's right. There will beoperational decisions on the day.

The guideline refers to a neighbourhood safer place as being aplace in general terms for people whose own bushfire planshave failed?---Yes. We are very cognisant of the advicethat we give to people to have a primary plan and we don'tdeviate from that. Neighbourhood safer place has beenreferred to in other documents as a plan C, if you like,when personal bushfire survival plans fail.

You would agree, however, would you not, that the experience of7 February, with hundreds of people taking shelter fromCFA sheds to ovals and the like, that there is a criticalneed in relation to neighbourhood safer places or entitiessuch as that?---We agree.

So, in that context, just looking again at the recommendations,8.6 is to the effect that the State commence progressivelyidentifying, establishing and advertising designatedcommunity refuges and neighbourhood safer places. Infact, the system that has been established takes away thatresponsibility from the State, doesn't it?---I'm notcertain that I understand that question.

The system that's been established at the moment is that there

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will be, through municipalities or community groups ororganisations, recommendations put forward to have anassessment done of a neighbourhood safer place?---Yes.

And after that assessment is done, it is either found to complyor not to comply with the guidelines that are establishedby the CFA, and after that assessment is done the CFA handback to the local municipality the further consideration,if the CFA for example say yes, it meets the guidelines,that's not the end of it, is it?---The CFA provides arecommendation to local government. We would expect abroad discussion about other issues that might need to beconsidered at the time and, yes, ultimately it will be adecision of local government.

So, at the moment, in general terms, the CFA have assessedhundreds of areas that have been put forward as potentialneighbourhood safer places?---Quite a number, yes.

We will come to the figures in a minute, but there have alsobeen quite a number that have met the guidelines that havebeen set up by the CFA?---Yes.

And those when the CFA acknowledge a meeting of the criteriathat has been established, then the matter is sent back tothe local municipality?---That's right.

How many neighbourhood safer places have been actuallyaccredited by local municipalities after being sent backby the CFA?---To my knowledge, none.

So, in that sense that recommendation 8.6 said that the Statecommence progressively to identify and establish andadvertise neighbourhood safer places, that has not beentaken up in the structure that is in existence at themoment?---It's right that there are no formally designatedneighbourhood safer places. The CFA is awaiting advice on

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that.In relation to the recommendation 8.6, insofar as the

recommendation indicated that it should be the State thatdoes that, what I suggest to you is the reason that ithasn't been taken up is because the State has through theCFA said, yes, these neighbourhood safer places meet thecriteria, but then it has been handed back to anotherlevel of bureaucracy?---It has been, and that's as it'slegislated.

You say to the best of your knowledge at the moment that thereis not one neighbourhood safer place that has gone throughthe system to be properly accredited so it can beadvertised to the community as a neighbourhood saferplace?---I have not received any advice and I checked aslate as Friday whether we had received any formal advicefrom any local government that any had been so designatedand I would expect that this will be rapidly resolved, butthat's an expectation. I have no evidence to support it.

Well, here we are approaching Christmas and at the moment, tothe best of your knowledge, there is not one that has beennotified for the coming holiday season and indeed what wecan consider to be the peak of the fire season?---Yes,that's the situation. CFA, as early as we had a guidelinesettled, had instructed its field staff to work in theircommunities to identify as many sites and assess them asearly as possible to create the window to enable thedesignation process to work. But, to be fair, it's acomplex process that people need to consider at the locallevel.

I've been instructed that the Shire of Yarra notified after ameeting of 8 December it designated two neighbourhood

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safer places in its municipality last week?---I'm sorry?The Shire of Yarra at its council meeting of 8 December

accredited within its area two neighbourhood saferplaces?---I didn't have that advice.

So, if we accept that, there are two?---Yes.But none in areas where many, many people, many Victorians,

will be going on their holidays arguably next week?---Thatwould appear to be, yes.

Do you know of any reason why it was that that recommendationas to the state taking up the identification,establishment and advertising was not followedthrough?---I have no knowledge.

The guidelines were established in October of this year, theCFA guidelines, and from what is contained in yourstatement that was after considerable discussion andrepresentation to a number of people, both in and outsidethe state, to establish those guidelines?---Yes.

You indicate in your statement that you are not a fireexpert?---That's right.

So, I take it from that, whilst you have responsibility, youare in no position to comment on the precise features inrelation to the guidelines from a fire expert point ofview?---That's right.

At annexure 3 you have provided us at (RESP.3001.001.0127) withthe document from October 2009 of "Neighbourhood saferplaces, places of last resort during a bushfire"?---Yes.

And if we go over the page, it sets out by way of introductionthe background, the concept and the limitations that wehave been to on 0129. Then if we go over to 0130, we seethe specific criteria that are established in relation tothe neighbourhood safer places?---Yes.

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If we look at paragraph 1, the criteria is designed anddirected at providing a safer level of protection forpeople from lethal levels of radiant heat and providing anappropriate separation distance from fire hazards,particularly vegetation at the site of a neighbourhoodsafer place?---(Witness nods.)

So your statement, and I suggest the intent of this document,is to recognise the potential lethal effects of radiantheat and the criteria was based around that particularphenomenon?---That's right, and almost by definition thatwe are keeping people away from the fire itself.

Then it goes on to say that if the neighbourhood safer place isin an open area, that the appropriate separation distanceshould be 310 metres and if the neighbourhood safer placeis a building, then the distance should be greater than140 metres?---It's saying that in terms of providing anouter limit, as it were. The issue is really about theexperience of the people using it being subjected to aradiant heat measurement of 2 kilowatts. We are at fairlyextreme conditions at 310 and it was to enable people tosort of fairly quickly make a judgment about the spacethat they're looking at and say, yes, that would satisfy,but we might find the distance would be less than 310 werethe conditions less extreme, so the vegetation that mightbe there is of a lower order or the slope of the land wasless so. So, we see 310 and 140 as being, as it were, thedefault position and by properly investigating the siteand determining the vegetation, fuel loads and slope wemay come to a view that the distance is lesser than 310 or140.

So, are there any neighbourhood safer places that have been

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accredited or meet the standards from the CFA guidelineperspective that for an open space are less than 310metres?---I think so. I would be fairly confident sayingthat, yes.

You can't point to any?---I don't.I don't want you to do it off the - - -?---No, I don't want to

do that either, but I would be fairly confident that therewill be some that have lesser vegetation in the immediateenvironment that would give rise to a shorter distance,but putting my finger immediately on one at this time isdifficult.

We know, for example, in the Royal Commission that many peoplewent to Gallipoli oval as a safer place?---Yes.

Indeed, what had been designated there previously as arefuge?---Yes.

Now, Gallipoli oval would not meet the criteria, wouldit?---I'm uncertain of that. I can't say for a matter offact. We have some work going on to examine Gallipolioval and a few other sites to better inform us. I mean,we note that we have an interim guideline and thoseexercises will be instructive in forming future views, butit may not. I'm unable to sort of comment on the weatherconditions and fire conditions of that particular day andthat environment. It might be that they didn't meet thecriteria, yes.

In that area, indeed in the area of the Dandenongs, you are notgoing to get a recreation reserve such as Gallipoli ovalthat really has 620 metres of open space, 310 circularlyaround that particular recreation reserve?---Yes, you'reright. We have said from the outset that it will bepotentially difficult to find what we have called

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neighbourhood safer places in all of the 52 high riskenvironments. By definition they are high riskenvironments and the Dandenongs in particular and othersare heavily vegetated and it's difficult. That's not tosay that in time they may not exist, that they will neverexist, and that we will never be able to assess one, but Ithink there are going to be some difficult debates thatcommunities need to have as they arrange themselves interms of fire protection, and CFA will be there to do theassessment when it's required, but coming into this summerit's difficult, I agree.

But there, just as an example, we had a place of last resortfor many people in Marysville, including CFA and emergencyservices personnel, that would not be designated now underthe current criteria a neighbourhood safer place?---Well,I don't know that it's - I don't know that it wouldn'tnecessarily meet the criteria, but I think it's probablyright that it wouldn't. Our other option is almost tolessen the criteria and that's a difficult prospect, too.

Then, on the other scale, I suggest, there were six CFA firesheds that have been put up as neighbourhood safer placesand we know from the experience in the Royal Commissionthat at Marysville and Kinglake and Kinglake West peoplesheltered in fire sheds and not one CFA fire shed has beendesignated or been given the approval of CFA in relationto a neighbourhood safer place?---That may well be thecase, yes.

And in relation to structures, the Walhalla mine is not goingto get approval, I suggest, as a neighbourhood safer placebecause it's not 140 metres from vegetation, even thoughit's underground?---Yes. I am aware of this particular

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issue and it's fair to say that the guideline as it'scurrently structured didn't anticipate a mine scenario andagain I would reiterate that this is an interim guideline.There may well be, when we are looking at mines, as indeedbuildings, there's probably a range of engineering issues,in particular a mine that we might be wanting to look atin terms of ventilation and the like that would requiresome special expertise and maybe, as the State's broaderpolicy in terms of refuge unfolds, those types of thingsare better considered in that context with some strongerguidance than a neighbourhood safer place.

I want to suggest to you that there in that particular townshipyou have a facility that has proven itself previously inbushfires as being a safer place. What happens to thepeople in Walhalla? What are they meant to do in relationto making a decision if the guideline is so strict and itcan't be interpreted as a matter of urgency to permit adesignation?---Well, I understand that the mine has beenused in years gone by as a bushfire shelter, a refuge.There is nothing in CFA's guideline that would prohibitthat to go on in the future. Indeed, we encourage in ourmessaging, and have done so for a number of years, to askthe community to think themselves about where their placeof last resort, their informal place of shelter might beand in this case the Walhalla exercise probably fits inthere, that the community has so organised itself and doneso well and the community understands what it is that theyhave and that's where I think it sits at the moment.

Mr Hayes, as the criteria points out, it has designed, it says,a safer level of protection for people from lethal levelsof radiant heat and for a structure that's set at 140

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metres?---Yes.How many homes in bushfire areas, how many thousands of homes

do you imagine do not comply with that?---Many, and manyare a lot less than that and the position that is adoptedin the criteria reflects a situation where we are lookingat - we haven't considered design principles in thebuildings, as it were, that this is considered a safedistance to have materials from a radiant heat impact orto have buildings away to a point of less than 10kilowatts per square metre and that avoids the issue ofcomponentry starting to consider to combust.

You surely could understand some bewilderment in the communitythat a neighbourhood safer place cannot be designated safebecause of the potential lethal effects of radiant heat at140 metres. Yet people in CFA advertising and the likeare encouraged in some instances to stay in their homes,more vulnerable than the 140 metres, more subject to thelethal heat. How does that work?---I clearly see thepoint that you make in that statement. In terms of ouradvice to home owners, there are generally speaking arange of issues that we talk to people about in terms ofimprovements to their homes or, if they are indeedbuilding new homes, the quality of materials that theyuse, but this envisaged the use of halls and the like thatperhaps were built to no particular standard whatsoever.

But there are many homes, as you would be aware, throughout the52 regions, for example, that meet no standards inrelation to bushfire safety. How do we explain that orhow does CFA intend to explain that difference to thecommunity of Victoria?---I think we are encouraging peoplein extreme circumstances and we talk about our code red

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days and we sort of think about neighbourhood safer placesand the setting, that the way that we have arrived at thecriteria is factoring in fairly significant settings andon a code red day or a catastrophic day our messaging isclearly encouraging people to leave the night before orearly in the morning and we are I think in that statement,we are acknowledging that there is a difficulty that manyVictorians are confronted with in terms of their housing.So there is a gap between the positions that you put, butI see that we are saying to folks that under these extremeand catastrophic conditions, that it's time perhaps toreconsider what we held to be true in the past and thatyou may not be able to defend your home. A neighbourhoodsafer place may be safer, may be a safer option, but thebetter option is to leave early and be well away from thefire.

But here apparently CFA, and we will have a look a little bitcloser in a minute, rejects areas that have proven inprevious fires to be that safer place on a criteria thatis not applied to people in their homes.

MS FOLEY: If I could just object to that question. If Mr Rushcould perhaps indicate the sites he is referring to. Hehas previously referred to the Marysville oval. If hecould specify the sites he is referring to.

MR RUSH: Let's take the Marysville oval, the Woods Pointmine, the Walhalla mine. Here the CFA is rejectingsituations such as that and many other recreation reservesthat you have identified in your statement that I suggestprovide potentially that safer option, yet the 140 metrerule is not being applied to the community ofVictoria?---I can only reiterate that the CFA - or not

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reiterate - state for the first time, perhaps, that CFAtook its view on this matter from a wide-rangingdiscussion with fellow fire services about how it wouldset itself up for this policy area and I believe New SouthWales follow it similarly to our line, that we have lookedat appropriate texts and formed that view and, as I say, Ithink that we are still saying to communities on thoseextreme days and catastrophic days that maybe they are notin a safer position. The old truths that they had and theassessments they made in the past might need to bereconsidered.

You refer to township protection plans in your statement. Areyou familiar with what a safety zone is as described in atownship protection plan?---Not particularly, no.

Perhaps if we could have a look at the plan for Anglesea,(RESP.3001.005.0144) and whilst it's coming up I justmight ask you some questions generally. Each of thetowns, but particularly the townships that have beendesignated in the 52, are required to produce a townshipprotection plan?---Yes.

If we go to 0146 to the glossary, I see the second last entryin that column is "safety zone", which is defined as,"Generally enlarged clear areas that can be used withrelative safety by firefighters and their equipment in theevent of increased fire activity in the vicinity." And ifwe have a look at 0153, we will see the safety zones asset out for the Anglesea township?---Yes.

If you go down just a little to safety zones for firefightersafety only. Now, I just want to take you through acouple of these. The Anglesea Surf Club beach, GreatOcean Road, off Harvey Street. That's designated as a

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place, according to the glossary, that can be used withrelative safety by firefighters and their equipment in theevent of increased fire activity in the area. That hasbeen assessed by CFA and rejected as a neighbourhood saferplace. Why would that be?---I think, without knowing thedetail of the assessment, my understanding is thatfirefighters will have appropriate protective clothingthat is not necessarily available to the general member ofthe public, they will have their own equipment and theyhave instructions in terms of how to maintain thatequipment to provide themselves as firefighters with somelast resort measures and appropriate equipment, so theyare more likely to be more equipped at that point to beable to cope with a fire, a situation that's a bit moredire than the general member of the public who may haveattended with limited personal protection.

So the Anglesea Surf Club, if you go to the next one, PointRoadnight Beach car park, the Anglesea Bowling Club, allrejected as neighbourhood safer places, but safety areasfor firefighters?---I am presuming that in each of thosecases, it's only a presumption on my part, that theseparation distance between what would be the fire hazardand those facilities is far less than we would expect fora neighbourhood safer place.

And the beach at Lorne has been rejected as a neighbourhoodsafer place and the beach at Aireys Inlet rejected as aneighbourhood safer place. The beaches, is thatright?---I haven't read those assessments.

You see, I suggest the last place the CFA would want to putfirefighters is in a potential dangerous situation?---Iagree.

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And as a place of last resort, the sort of areas that you aredirecting firefighters here in the township protectionplan are places of last resort that would be suitable,particularly if they are attended by firefighters, for thecommunity of Anglesea?---Well, I don't know that therewould be any guarantee that those safety zones would infact be attended. They would be attended again as a lastresort, depending on - I am by no means a firefighter inthis regard - but the tactics and the operations of theday, I mean whether they were there or not, but they couldbe, I don't know. I couldn't take it as a fact that theywould be there because it's written down; it's where theymay attend if they had to.

On the Surf Coast, the figures of 21 neighbourhood safer placesput forward, five have been given a tick by the CFA. Doesthat fit in with your calculations?---Yes.

Five out of 21 on the whole of the Surf Coast and none of themat present have been accredited by themunicipalities?---I am not aware that they have beenaccredited. Again, I will refer to my previous comment,that these high risk areas are high risk. We said at theoutset that it would be difficult to locate them. Idon't, and nor do my colleagues, nor would we see theidentification of neighbourhood safer places as a piece ofwork that is finished. It is a progressive piece of workand we need to be continuing to be working in that areawith our colleagues in council and other places toidentify more spaces and the community needs to be engagedin that.

If we just go through them. The Baw Baw municipality, sevenput up, none approved; the South Gippsland municipality,

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14 put up, none approved; Colac and Cape Otway, a highrisk bushfire area, 13 put up and two approved?---Yes.Many of those that were put up were those that weinitially identified ourselves as CFA in our search forspace.

COMMISSIONER McLEOD: What does that say to you about theprocess, if something like 50 per cent of the localitieswere identified by the CFA as satisfactory and yet remainto be endorsed?---I think the first thing I would say isnone of us ever going into this ever thought it was goingto be a simple concept, a simple thing to do. It isdifficult, we need to be quite clear about what we aredoing here, we are offering people a measure of lastresort that fits in their plan, so it is a complex issue.There are many uses of land and during an emergency otherpeople want to use it as a staging area. CFA would havemuch preferred that, as we were progressively assessingand so certifying that a place might be useful, that wecould have been moving ahead with the designation process,but there have been issues in terms of the municipalities,I suspect, getting themselves organised to work throughthose processes. It is a new concept. I mean, theconcept of an informal place of shelter is nothing new.Well, it's newly expressed, perhaps, as an informal placeof shelter, but we have always encouraged the community tounderstand where it is that they would go if their primaryplan were to fail, but we have headed into a new area withneighbourhood safer place. None of us disagree thatpeople need more options in the environment that we nowfind ourselves in, but it has been complex to move a largenumber of people through what is a complex area and the

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decisions are local decisions and so again that sort ofincreases the number of people that are involved and needto be brought along.

Do you think it says anything about the confidence that thecommunity has in the professional judgment of the CFA ifsomething like in excess of 100 localities have beenexamined and endorsed by the CFA as having met thestandard, that there's been so little positive actionthat's flowed from that?---CFA has attempted to advise thecommunity that we have been making progress in that areaand we have put on our website those places that we haveassessed and found compliant, and indeed those that wehave found non-compliant, to give the community someinformation, but to the extent that it is seen as areflection on the community, I mean on CFA and thecommunity, I think CFA can say that it got out of the boxearly, as it were, and after we sort of came up with aguideline to try and get into the community to identifysome spaces and it's progressively provided that advice tolocal government in accordance with the way neighbourhoodsafer places have been organised in terms of thelegislation, so I think we try to progress and move thingsalong.

MR RUSH: Does the CFA, Mr Hayes, agree with the concept of aplace of last resort?---Yes. The board acknowledges thatthey have been fully briefed and we do have anunderstanding of a place of last resort. We would see itas its been so described in the past, that it's for when aperson's primary plan, either their stay and defend planor their plan to leave early, is for whatever reasonunable to be enacted and they don't have any immediate

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last recourse, in i.e. the house next door or somethinglike that, that there is a neighbourhood safer place. Intime, and we have been in a very short, compacted periodof time here, but in time neighbourhood safer places Iwould expect will take its place alongside what willbecome refuges, I suspect, and other types of options thatwe might consider as we look forward to how ourcommunities are organised.

Mr Hayes, just following up on Commissioner McLeod's question,if we can go to 10.4 of your statement, 0151. Youindicate, as we have discussed, that CFA will providedetails of assessment and conclusions to the neighbourhoodsafer place to the relevant local council?---Yes.

And then you set out that, "Councils are required to considerassessments conducted by CFA and to make a decision ...taking into account a broader range of factors includingaccess and possible uses for a location. A potentialvehicle for consideration of NSPs should be through themunicipal emergency management planning committee", I takeit of the local, obviously, municipality?---Yes.

So, there is the potential on the way in which neighbourhoodsafer places are currently structured and set up forconsideration for one municipality to take a view of aneighbourhood safer place through its committee, asopposed to the way in which another municipality'scommittee might look at it?---Yes, there could be a rangeof reasons for that. The purpose of putting it through -well, CFA would argue for it to be considered by themunicipal emergency management committee is to ensure thata range of factors are considered and that's the issues ofaccess, whether in fact a site that had been identified by

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CFA may in fact be a staging area for another emergencyservice. We would want to know about that. So there maybe a range of things that need to be considered and thosemunicipal emergency management committees would generallyhave a strong feel for the organisation of theircommunities and be in a position to provide good advice.

They may adopt different criteria depending on who comprisesthe committee?---They could, but they are not in aposition to vary our view.

No, but they are in a position to vary whether therecommendation or the tick of CFA actually becomes aneighbourhood safer place?---They are indeed. Well, thatcommittee, but ultimately also council is in a position tomake that determination also.

Then at 10.6 you indicate that, if the council then decides todesignate a site as a neighbourhood safer place, thecouncil will then make a formal designation, arrange forsignage and advertising and the like concerning thesite?---Yes.

An important factor in relation to a neighbourhood saferplace?---Yes.

But I take it obviously from your evidence that none of thathas taken place as far as this date in December isconcerned?---One, it's a small point, but nevertheless thesignage has been agreed and made available and hopefullyone would expect, reasonably, that local governments whoalready have, as I have been advised today, or others thatare about to designate are well aware of that and in aposition to put that signage in place and will work withus in terms of publicity.

So the position is the signage is ready, but on the basis that

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there may be two areas of neighbourhood safer placesticked off by one municipality, the reality is that, asfar as the signage going up, the advertising or theeducation of the community to the existence of anyneighbourhood safer place has not, as of this date inDecember, taken place?---If I can make a couple ofcomments in relation to that, I suppose partly the reasonfor CFA advising on its website the work that it's done inthis space. We have an undertaking that we will mail outthe community information page of the township protectionplan. We are waiting advice from the various localgovernments and we have a plan in process that asneighbourhood safer places are designated, households inthose areas will receive written advice that will includethe community map and also advice in terms of theneighbourhood safer places that have been designated inthat township, so there will be direct advice going intothose households.

Thank you. It we can briefly have a look at 0430 which isbehind annexure 9 of your statement. You set out the 52locations in 25 local government areas that have beenidentified as being particularly vulnerable and needingimmediate attention and that is directed, the immediateattention, is it not, at neighbourhood safer places?---Ithas directed our immediate attentions, yes.

Are you able to tell us how many of the 52 locations will nothave a neighbourhood safer place in this fire season?---Atthe present time I think it's 22, if I have done my mathsright, or it might be 23, have no neighbourhood saferplace at this point in time. Ultimately, of all of them,even where we have identified those that we actually think

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have a space that will meet our criteria, we still do nothave them designated at this point.

I think we are at the 14th of December with the wind-up forChristmas about to commence. Is the position that the 22or 23 communities should anticipate there will be noneighbourhood safer place in their particular township orarea?---To be candid, yes, I think they should beanticipating that, notwithstanding that CFA will continueto work. We do not shy away from the urgency or thepredicament of these communities. If we can find somespace, we stand ready to work with those communities toget that to happen, but, as I said right from the outset,we did acknowledge that taking on board the 52 high riskareas may well be problematic to find neighbourhood saferplaces in all of them. We said that from the outset. Itmay require to find in those places, it might requiresignificant works to be done and some compromises incommunities about if we need to move vegetation to createopen space. I mean these are the challenges that are infront of communities, the debates that need to be had, andwe are happy to sort of support any assessment of that andwe would, in those communities where there's 22, we wouldstrongly urge them to be thinking of their primarysurvival plan and if they have some informal place ofshelter around them, have a good look for that, but whereit doesn't exist they may need a higher level of cautionin their plans because they do live in high risk areas.

Just quickly have a look at annexure 12, which is sitesassessed by CFA found not to comply within SP guidelinesat (WIT.3004.032.0450). You almost need a magnifyingglass to read it, but if we can go over the page to 0450

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and if we just have a look at Lorne. At Lorne we see theLorne Surf Lifesaving Club, the North Lorne beach, theStribling Reserve. All have been put forward asneighbourhood safer places and as we go across we see theactual locality and then we see Barwon Corangamite is themunicipality?---Mm-hm.

I may be wrong. Barwon Corangamite might be the CFAregion?---That's right.

And then we see the Surf Coast shire, is that correct?---Yes.We go across and is that the date of nomination or the date of

assessment?---I think, if I could go to the top of thecolumn, I think it might have been the date of assessmentand then the date of advice provided to council.

So that the date of assessment, if we go back again, was 21October for those areas in Lorne and advice was providedto the council on 28 October and we go to the final columnand we will see the reasons. For example, I think that'sthe surf club, "Did not meet criteria, does not meetrequirement but with modification to vegetation to thewest and north, west of the surf lifesaving club, it wouldmeet the standard." And for each of the areas in Lorne,the second one which I think is the beach, "Does not meetrequirement," modification to vegetation, the same thing.If we just take those as examples, when areas such as thisdo not meet the criteria, is anything done to attempt toget them to meet the criteria or anything done then toproactively identify somewhere else in the immediatelocality that does meet the criteria?---Well, to answeryour last point first, I would be fairly confident thatthe search for neighbourhood safer places in those highrisk areas has been going on for some time and is still

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ongoing. In terms of CFA is not undertaking thevegetation management there, there would be a number ofconsiderations in terms of the vegetation management andperhaps it goes to that issue of broader policy andcommunity debate about how vegetation is considered. Someof it may well be subject to other legislation and somemay well be subject to the community view about amenity ofenvironments and CFA - I go back to a point I made before.These are local community decisions and from my end of CFAwe have been fairly straightforward in talking with ourfolks in the field and saying that we regard these aslocal decisions, you know your communities, you know whatneeds to be done and so I would imagine that there isquite a number of conversations going on from time to timeand were the circumstances of a particular site to changebecause they were cleared, we could certainly reassessthose and have another look.

There were a number of sites put up by local CFA brigades thathave been rejected?---There might have been, yes.

The Victorian fire risk register, how does it make a suggestionas to a neighbourhood safer place?---It doesn't in termsof - of itself, the risk register is a useful tool that weare using now to assess a range of assets in a number ofclasses across our municipalities and we are ending upwith a municipal plan, or a municipal risk register Ishould say, that we are arriving at that is sort ofthrough a consultative process with local communitydetermining those things that are at risk and that we needto be fairly quickly putting in treatment plans. So theVFRR, at this stage it doesn't inform the guideline. Itmay inform local decision making in the sense that there

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is some general agreement about the level of risk in anenvironment, so that's where that sits.

Has there been any discussion that you have had with any personat the CFA that the guidelines are too strict?---No.I have not been engaged - I am aware that there are viewsabout in community and otherwise, but I am not beingapproached by CFA to review what has been done. We noteagain it's an interim guideline, along with things liketownship protection plans. We sort of acknowledge thatthis is a new policy area, that there will be lessonslearned, there will be things that were not considered,not anticipated by the guideline, and they will be provenand become evident in its implementation, that we need torigorously assess and make sure that we gain thoselearnings and have them in place for subsequent fireseasons.

Mr Hayes, I will just finally ask you about some figures atparagraph 28 of your statement and following. As of 11December, at 28.1 you indicate 215 sites have beenassessed and you indicate at 28.2 that 104 were found tocomply with the guidelines and 111 not to comply?---Yes.

Then, of the 111 found not to comply, you have set that out inthe annexure that we have been to. Then you say in 29,"At the end of October 2009 all potential NSPs identifiedby CFA and councils in high risk bushfire zones at thattime had been assessed by the CFA. As at 25 November allexcept 18 of the NSPs identified by local councils and CFAin the high bushfire risk zones have been assessed by CFA.These 18 assessments have now been completed." What doesthat mean?---In hindsight I probably haven't expressed itas well as I would like. We were urging our folks in the

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field, our leadership in the field, to work with localgovernment to get as many sites as possible identified andassessed by the end of October because we were cognisantof the point that's been made during our conversation;it's the need to alert community and let them know wherewe are at. So we were pushing very, very hard to get asmany identified and assessed as possible into localgovernment so that we could get them incorporated intotownship protection plans. So I am saying those that wehad identified inside the 52 in October, we had completedthose assessments. As at 25 November, when we submittedquite a number of assessments and township protectionplans to the Commission, there were 18 neighbourhood saferplaces that had been identified that existed within the52. So, this identification process is a rollingcontinuous process, so the number had increased. We had18 inside of the 52 to assess and I'm advising that wehave now completed those assessments and hence council,local government, has been so advised of the outcome.

So, of those that have met the criteria of the CFA, thoseneighbourhood safer places are advertised or put on theCFA website?---They are on the CFA website and those thathave failed to meet the criteria also are on a separatepage on the website.

Despite the fact that CFA have done that without bothering, ineffect, and I don't use that word in any way, but CFA haveseen it necessary to do that in circumstances where thelocal municipality has not gone through the procedure youhave identified in the statement?---We understand theanxiety that some in the community - I mean it is a clearpolicy position that's been identified and communities

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were clearly thinking about spaces in their ownenvironment and wondering what was happening and, forbetter or worse, we thought we would take them into ourconfidence and show them where we were up to so that insome cases their anxiety would be allayed or they would beinformed about perhaps spaces they were thinking aboutthemselves, yes.

And does that information appear on the DSE website aswell?---Hand on my heart I can't say at this point. Goodquestion.

Because we are still operating two, aren't we?---CFA certainlyoperates its website, but we are operating - operationallywe are operating one means of messaging, but it's a pointwell taken.

Those are the matters, Commissioners.COMMISSIONER McLEOD: Maybe it's labouring the point, Mr Hayes,

but in a situation where only one local governmentauthority has been able to identify neighbourhood safer -- -

DR LYON: At least three, Mr Commissioner.COMMISSIONER McLEOD: All right, three. Out of how many

potentially available?DR LYON: In terms of the TPPs, there's 52 TPPs across 25 local

government areas.COMMISSIONER McLEOD: Thank you. Given that only a very small

number have been so far able to identify neighbourhoodsafer places in their localities, or alternatively haven'tbeen prepared to support recommendations that have beenmade to so endorse certain localities, what do you believethe local authorities in those cases are saying about theinherent nature of their communities in respect of hazards

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to life?---It's difficult to arrive at a view, tospeculate on why it is that these decisions haven't beenmade at this point. It is recognised that it is adifficult area and it's a new policy area. Ourconversations with MAV would have led us to a view thatmany, many more decisions to designate would be imminentand we are banking on it, quite frankly. We are holdingoff sending township protection plan advices tocommunities so that we can include the neighbourhood saferplace advice in those letters so they are informed and wehave been in very, very close consultation with MAV onthis point and understand that resolutions of councildon't necessarily occur in a uniform way. It's difficult.There's a constitutional process, I presume, that theyneed to follow to arrive at decision making that I am notfully conversant with, but nevertheless there will bereasons but we deliberately went through a review processwith MAV on 2 December to sort of look at that issue totry and help expedite things along and so we have workedclosely with the Municipal Association of Victorialeadership to arrive at a point and we are in a positionto press print buttons and send letters and we want to bedoing that and doing it very, very soon.

Would you agree that those communities that have a large numberof visitors and holiday makers, that in those communitiesthe existence of neighbourhood safer places has aparticular relevance because those people often don't havethe opportunity to seek safe haven in a dwelling?---Agree.I would.

Thank you.COMMISSIONER PASCOE: Just before Dr Lyon asks you some

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questions, listening to you in the interrogation thismorning I am struck by what appears to be a lack ofurgency and it may well be that it's Mr Spence we need totake this matter up with this afternoon. Also, inlistening to some of your responses to Mr Rush, a senseperhaps that the mindset is still in the space of a refugerather than a last resort. You are shaking your head, soyou might want to respond to that?---No, clearly I am not- I haven't meant in any way to convey a lack of urgency.We have worked continuously since August in this space,and earlier, thinking about how we would be progressingit. We have engaged with fire services around thecountry, we have engaged with researchers, and at locallevel here in Victoria we have been talking with themunicipal association, Department of Justice and otherfolks. We gave clear instruction to our people in thefield to move ahead of other stakeholders and startidentifying and assessing. We really wanted this stuff tobe out there. We have been in weekly conversations. Iwould say probably more recently over the last monthdaily, I'd think, conversations about how we progressthis. I know that our people in the field have beenworking closely with local government. Ultimately CFA, tokeep the community informed, has done what I havedescribed. We have published material on the website tokeep people abreast of where we are going, so in no waywould I want us to have an image of complacency in termsof identifying these sites and we continue to do that workand we will continue to do it as they are identified. Interms of refuge, no. In some respects it has been adifficult transition. There would be many in CFA that

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would struggle with previously held views about tellingpeople to be in open space. It conflicts with years ofadvice. We have managed to find a formulaic way thatkeeps people in relative safety. We don't guarantee thatsafety, but we are not thinking in terms of refuge, we arethinking in terms of minimal standard and I think it isprobably a point that's not necessarily been communicated- not necessarily one that has got enough traction atpresent time. People do need to understand that theycould be exposed to ember attack or smoke, that theremight not be drinking water immediately available to themand if we think about days like February 7th or otherextreme days, we are talking about days that are very hotand very windy. These will have their own danger beforeeven the fire comes for some and they need to think abouttheir own personal health and wellbeing before evengetting to a point about thinking about a neighbourhoodsafer place. The circumstances can be quite withering, aswe found; we experience them ourselves anywhere in summer.So, we are at a lot lower standard than a refuge, butthere needs to be an appreciation, I think. Some of usremark to ourselves that community debate aboutneighbourhood safer places often - change the word and put"refuge" in and that seems to be where the debate is andwe are at great, great pains and we will take everyopportunity to encourage anyone who has a role incommunicating about this that they should be making aclear distinction in the community about what a refuge orrelief or any other place might be and what the role of aneighbourhood safer place is. It is a place of lastresort. It may not be the safest place and it might be,

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just general weather conditions, in not a very good place.Thank you. In considering where we are at at the moment,

I note that you spoke of people in the 22 townships thatdon't have a designated neighbourhood safer place needingto exercise a higher level of caution in the 2009/10 fireseason. The trouble hearing that is the onus goes back tothe individual. What we saw on 7 February was manyindividuals who, for a range of reasons, some of thempsychological, really struggled to make effectivedecisions in a crisis, so I think that's a particularconcern. It is a particular concern because, say, peoplewho have built in a particular locality with dueauthorisation could reasonably expect that the agency ofgovernment would afford them some protection, be itadvice, be it locale, whatever. So, we are stuck in avery difficult space and I take your point about thecomplexity. I suppose where it leads me is to reflectthat the process that has been put in place for this fireseason, taking your point that these are interimdesignations and interim guidelines, is one that wouldseem in its intent was designed to have the CFA as theagency of the State working very closely with localgovernment, which had local knowledge to bring to bear onthese matters. The dilemma is if that iterative processends up being one of ducking and weaving and we don't havedecisions made. I suppose I would just like yourreflection on that because I think the people of Victorianow are left, many of them holiday makers and residents,wondering where they would go if they find themselves in acritical emergency?---I think my first reflection would bethat, on the period of time that we've had to get places

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identified, that we are not in a position - CFA is not ina position to create the space, as it were. We are notthe landholder or the landowner, the land manager. So,those communities that do not have neighbourhood saferplaces or any other thing that may well come into being ata future date, be it a refuge or otherwise, there's goingto need to be some serious decision making about those andmake provision in the course of time. It's not as simpleas moving in and making a huge clear fell area and thenmoving it all out. There is a range of regulatory,legislative and community issues that would need to beconsidered to arrive at that point. Going to the concernabout delay, if I could just sort of comment in the broadrather than the specific. The legislation, asI understand it, requires all local governments to have aneighbourhood safer place plan in place and to have themidentified and, where they haven't, they need to seekexemption or it is through an exemption. So, we wouldtake some heart that, in time, perhaps for the next fireseason, that will be a bit more comprehensively organisedand, yes, that's where I perhaps would leave it.

<CROSS-EXAMINED BY DR LYON:Mr Hayes, my name is Greg Lyon, I appear for the MAV and the

local councils. I have a few questions for you. Just byway of information first of all, Commissioners, can I saythat NSPs have now been designated in Yarra Ranges,Ballarat and Moorabool and that the CFA will be notifiedof those matters shortly. Taking up Commissioner Pascoe'spoint, one of the last points made, Mr Hayes, you haverejected on behalf of CFA that there has been a lack ofurgency about the implementation process. Can I take that

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up on behalf of local government. It is yourunderstanding that, since the identification of potentialNSPs within various locations, councils have been workingvery hard indeed through the designation process, do youagree?---I'm not in any way denying that local governmenthasn't been doing what it needs to do.

I'm not going to make this a laborious exercise, but I do needto hand a copy of the legislation to you and to theCommissioners. I just want to point out some keyprovisions. Apparently it is in your statement, Mr Hayes,at (WIT.3004.032.0164). If we just step back a moment andmake a couple of observations. Do you agree that in arough time line, and there are many, many steps inbetween, neighbourhood safer places were announced as aninitiative of the State government on or around 1 July2009?---On or about.

That after that time, on 17 August 2009, the Commissionerspublished their interim report and made therecommendations that you refer to in your statement; isthat right?---Yes.

It became apparent from at least August, if not July, that CFAwas to be the lead agency in taking up the initiative thatwas announced on behalf of the State, that the State wasgoing to identify and establish neighbourhood saferplaces?---CFA was certainly very, very active, yes.

No, I'm putting it to you that you were nominated as the leadagency?---Yes. We were developing the thinking andbringing the players to the table, yes.

And that initially the way it was announced by the State andrecommended by the Commissioners was that it was the Statethat was to undertake this roll-out?---I acknowledge that

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being in the recommendation, yes.Pardon?---I saw that in the recommendation.That's what it says, isn't it?---Yes.Certainly that changed by 30 September, when the State in its

response to the interim recommendations made it clear thatultimately responsibility for the identification anddesignation of neighbourhood safer places would fall notto the State but to local government; is thatright?---Yes. That's what the legislation says.

Through this whole period CFA had a lot of work to do, did itnot, because at the very beginning no-one knew what aneighbourhood safer place was?---That's right.

As a concept it had to be developed?---As a concept, it did.We were taking our - that's right. It did.

In addition to developing the concept, it had to develop theguideline?---Yes.

And the assessment criteria?---Yes.At the same time we knew that there was going to be legislation

relating to the implementation of neighbourhood saferplaces, but do you agree that that did not come intoparliament until late November?---Yes. It came in lateNovember, yes.

And the legislation was in fact passed on 1 December and cameinto operation on 2 December?---That's my understanding.

So, from the point of view of the legislation, it has only beenin operation for 12 days?---That's right.

In this same time it has been incumbent upon the CFA as thelead agency to develop, as we say, the guidelines and theassessment criteria. Do you agree with me that theguideline was not developed or released until some time inOctober 2009?---That's right.

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The identification process commenced at that time and I thinkthe identification of NSPs was notified to councils inabout late October, around 28 October?---Yes. I don'thave any disagreement with your timeframes, but I thinkall of us had been - a number of key stakeholders had beenworking in this space and understood the direction inwhich things were going and we had started anticipatingwhere we needed to be and identifying the places andI think some local governments were perhaps movingpreemptively as well as CFA was to identify places. Butwe understood where this was going to ultimately end upand we needed to in effect be in good shape when thelegislation was in fact passed.

Indeed. But from the point of view of all of the stakeholdersin relation to the identification, recommendation anddesignation of NSPs, it has been a tight timeframe?---Noneof us would disagree that it has been a tight timeframe.Yes, it has been a tight timeframe; what can I say. Weall would liked it otherwise, I suspect.

Just turning to the Act, if I can take the Commissioners to acouple of key provisions. At page 6 of the Act, section50E puts the obligation upon the CFA to issue guidelines;do you agree?---I'm sorry, I'm just not at that spot atthe moment.

If you look at page 6 down the bottom, 50E?---Yes.The Act requires under section 50E for the CFA to issue

guidelines from time to time?---Yes.Under 50F the local government, each municipality, it says may

prepare a plan in relation to the identification,suitability and designation of an NSP?---Yes.

So they are two different requirements, aren't they?---Yes.

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Although it says "may" in relation to the municipal council, doyou understand that the operation of the so-called policydefence that comes later in the provisions, if councilswant to avail themselves of a policy defence they can onlydo it if they have a plan in place; is thatright?---I won't claim that I'm completely versed in thepolicy defence of local government, but I see the pointyou are making.

In fact, it has to be a reasonable plan, more or less, withoutgetting into a debate about the actual wording, but atsection 50O there is the policy defence?---Yes.

So what I'm suggesting is that CFA have got the guidelines,municipal councils draw the plan, the plan has to havecertain content, it has to ensure that the NSP in questionis suitable and if they want to avail themselves of thepolicy defence if they are sued down the track, it has tobe more or less a reasonable plan; okay?

COMMISSIONER McLEOD: Dr Lyon, I think what you have said todate suggests to me there is a kind of discretion on thepart of the council whether or not to proceed to identifya neighbourhood safer place.

DR LYON: Commissioner, although the wording of section 50suggests that there is a discretion as to whether or notthey implement a plan, what I'm actually suggesting isthat in terms of actual operation it is closer to amandatory requirement.

COMMISSIONER McLEOD: It is pretty clear in 50G, isn't it, thata municipal council must identify and designate places ofneighbourhood safer places. It "must", which ismandatory.

DR LYON: That's mandatory.

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COMMISSIONER McLEOD: So the obligation on the part of thecouncils is a mandatory obligation under the statute.

DR LYON: That's right. It is a mandatory obligation toidentify NSPs. The plan itself, the policy plan, whichmust be a reasonable one - it is a best endeavours clause.I don't want to get too far into it, but the operation ofthe policy - - -

COMMISSIONER McLEOD: I didn't want there to be anymisunderstanding amongst the audience that there was adiscretionary process here at play.

DR LYON: You can put that to one side.COMMISSIONER McLEOD: Thank you.DR LYON: Under subsection (6) of section 50G, page 8 down the

bottom, do you see, "A municipal council must notdesignate a place as a neighbourhood safer place unlessthe place been certified by the Authority." So there is atwofold step that comes into play. That is, that therehas to be recommendation and certification by theauthority and only thereafter can there be designation bythe council?---Yes.

Then if we can just turn quickly to subsection (7), a municipalcouncil is not required to designate a place as an NSP ifthere has been no recommendation by the Authority, if thecouncil is satisfied on reasonable grounds that it is notappropriate to designate as a neighbourhood safer place orif the place recommended by the Authority is onnon-council land and the owner does not consent. So it ispretty clear that there are other considerations thatcouncils have beyond the simple certification by the CFA;do you agree?---Absolutely.

I'm sorry if that took a little bit of time, Commissioners, but

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I simply want to make the point through this witness.Mr Hayes, you agree that certification by the CFA does notlead to a simple rubber stamp by the localcouncil?---That's right.

As you say in your statement, there are a broader range offactors that must be taken into account?---(Witness nods.)

Although these are lesser requirements than a refuge, there arestill things that must be considered and they are, do youagree, things such as the ability to travel to and from anNSP?---That will always be a consideration depending onwhere the fire is and people need to be aware of that. Wecan't predict, but, yes, travelling during a fire isalways going to be an issue.

Access and exit from the NSP?---Absolutely.Operability. It has to be able to operate 24 hours a day,

seven days a week?---Accessible, yes.There is no point, for example, nominating the MCG as an NSP if

there is no-one there to open the gates.COMMISSIONER McLEOD: A pretty implausible example, I would

suggest.DR LYON: It has to be defendable in the sense that you cannot

rely upon emergency services being there to be sprayingwater on it?---Well, yes.

It may be that there are considerations about what uses aremade of the buffer zone, the 310 metres in open space, the140 metres if it's a building. Councils have to look atthat?---When we are assessing these sites I am advisedthat we instruct our folks to take account of the usualuse of that space. I suppose if you are proposing that weidentify a site and then at some later date someone comesalong and plants a massive stand of trees in the middle of

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it, then I suppose we would need to reconsider it, but wetend to take account of the usual use of the space.

There is also traffic management issues?---May be. May be.The nature of the building itself if it is a building?---We are

not particularly concerned about that, given the bufferzone. We have arguably tried to position it so it doesn'tmatter so much the condition of the building. But all ofthese issues, and they are a long list and there areprobably others, we would argue would be reasonablyreconciled, considered, debated within municipal emergencymanagement planning committees where - - -

Let's get to that. You are racing ahead?---Sorry.There are also issues of ownership of the land?---Yes.On the other hand, the assessment criteria used by CFA is

distance and radiant heat, is that right? I will ask youto answer rather than nod so we can get it on thetranscript?---Sorry. Yes.

There is a clear difference between the responsibilities andassessment between that undertaken by CFA and thatundertaken by local government?---Yes.

And CFA only consider vegetation in the buffer zone, they don'tconsider other aspects?---What we consider in terms of theseparation zone is its capacity to carry fire. There maywell be objects within the buffer zone, but it will be thejudgment of the folks doing the assessment that that won'tbring the fire hazard into the neighbourhood safer place.So, it is not necessarily the case that it will beabsolutely scorched earth. There could well be things inthe middle. There could be maybe a parked car, therecould be a small garden, there could be a number of thingsdepending on the type of location. But it is the judgment

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that's made that the separation distance is adequate fromthe hazard and it won't carry fire.

But ultimately the decision as to whether the other use of thebuffer zone can cause fire hazard is one that's notundertaken by CFA. It reverts to council, does itnot?---I'm trying to imagine a circumstance.

Cars?---I've said that there will be a possibility that therewill be cars in the space, there may be some cars in thespace, depending on how these things are organised, but ifit was regarded as wall-to-wall cars, that may be onething, but a few cars parked might be a differentcircumstance.

What I want to suggest to you is that, whether it is one car orwall-to-wall cars, that is not a matter that the CFA inundertaking these assessments has taken into account, thatthe only thing CFA has looked at is vegetation in thebuffer zone?---And its usual use.

What is the answer to my question? Does it go beyondvegetation or not?---We have considered whether there isan appropriate separation distance. There may or may notbe some cars or, as I say, a garden or two in the space.But it is the view that the hazard, the fire hazard, isappropriately set back from the neighbourhood safer place,notwithstanding that there may be some things that are inthe middle.

There has been some considerable debate, has there not, aboutwhat the appropriate assessment criteria should be?---I'mnot aware that we have needed to require any - we've beenin this space for quite some time, really, quite a numberof months now.

Is that right?---The CFA has, yes.

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I'm talking about the debate between MAV and CFA. On2 December 2009 there were urgent talks held in order todetermine what the appropriate assessment criteria were,were there not?---On 2 December at MAV's request we didmeet and put on the line all of the assessing staff one byone that had been engaged in assessing neighbourhood saferplaces and my understanding is our decisions stood, butthere was arguably lessons learned in terms of how wellthe detail of that assessment has been provided and I notethat we have been moving fairly swiftly. We have recentlytrained our staff. But we did understand that there maybe a much earlier date than - not a much earlier date butprobably a week or two before 2 December that there mighthave been some conversation about how the communicationwent to local government and we were certainly urging ourfolks and urging our Municipal Association colleagues thatboth of us, and I think that we all sent out emails tothis effect, we needed to get together at the local endand make sure there was no doubt about what was beingsaid, rather than people at a headquarters level trying todecide that we needed to expedite the decision making andpeople needed to get together quickly to collaborate. Butwe did get together at the state level on the 2nd andreviewed those decisions.

Just in relation to that, the view was expressed within the CFAitself that the assessment process had led toinconsistencies, wasn't it?---I don't believe - it is aquestion of how we apply the term.

No, no. My question was, was the view expressed?---A view wasexpressed in that regard but the inconsistency applied tothe level of communication rather than the decision

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making.The email was printed in The Age on 4 December 2009 that said,

"I hate to be the bearer of bad news. It appears thatthere may be some inconsistencies within CFA's certifiedNSPs in regard to maps, identification of certified NSPson maps and advice to local government regardingassessment." Was that the view that was circulated in anemail?---That view was circulated in the email and I willsay that it goes to the point that I was making, that I dothink that it is fair to say there was a lesson learned interms of how we did uniformly communicate this informationto local government and that's why preceding 2 Decemberthat we encouraged, if there was this doubt amongst folksabout what was being said, that we needed to urgently getpeople together and resolve that uncertainty and then weultimately had that meeting, so, yes.

You agree, though, that the email - - -?---The email was sent.No, listen to the question, please. You agree that the email

says that it goes beyond mere advice. It talks aboutinconsistency with regard to maps, identification of NSPson maps and advice to local government?---Yes, I agreewith the point that you're making. It may have been -I wasn't party to the review process on 2 December - butI would be reasonably confident in saying thatneighbourhood safer places in some mapping exercises couldhave been far better drawn and communicated.

Just finally in this respect, are you aware of a letter dated10 December 2009 from Mr Bourke to Mr Spence in relationto the clarification of the separation distance assessmentcriteria?---No, I'm not aware of it and haven't seen it.

Commissioners, I only have one copy. Perhaps if it could be

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put up on the overhead.MR RUSH: Commissioners, bearing in mind the date of this

document, it should have been provided. There is aprocedure in relation to the provision of documents tocounsel assisting, and that is dated in November.

DR LYON: December. 10 December.MR RUSH: It should have been provided to counsel assisting,

along with a few of the other documents.DR LYON: When you say other documents, I had provided the

other documents. The email was referred to in The Age on4 December and the other documents that I receivedI provided over the weekend to counsel assisting.

You see here in the third paragraph, first of all it says,"Thank you and your team for the active participation inthe process that leads to the designation of NSPs, placesof last resort. In recent discussion you have asked forCFA advice on two matters on the separation distancearound these NSPs. First, on the question of parkingmotor vehicles in the separation distance or within theNSP as designated, CFA has confirmed with our NSPassessing officers that this activity would not lead to achange of its certification of the sites as compliant withits guidelines. CFA appreciated the logic that peopletravelling to NSP-PLR will often do so by motor vehicleand will therefore park in the vicinity. On the secondissue, where the site certified compliant with the CFAguidelines also has an operational purpose at many times,CFA is of the view that those operational activities willnot affect the site certification against its guidelines.Therefore, the operational activity would be able tocontinue (to the extent practical in the circumstances)

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whilst being utilised as an NSP-PLR." Do you see thatletter? Were you aware of the contents of that?---No,I was not.

I tender that letter.#EXHIBIT 615 - Letter to Rob Spence "Neighbourhood safer

places - places of last resort" dated 10 December 2009(EXH.615.0001).

DR LYON: Just on the question of the clarification of theassessment process, are you aware of the assessmentcriteria that was used to certify as compliant NSPs atMount Evelyn and Monbulk in the Yarra Ranges shire?---Itis the same assessment process that we have used for all.I don't have any reason to believe people have moved awayfrom the standard methodology.

Morrisons Reserve, Mount Evelyn. Given the process in thelegislation that I have already outlined, that is undersubsection (6) of 50G, a municipal council cannotdesignate an NSP unless it has previously been certifiedand recommended by the CFA. Do you agree?---Yes.

The Mount Evelyn NSP must, therefore, have been recommended bythe CFA as an NSP, do you agree with that, workingbackwards?---If we're looking - I'm not sure how MountEvelyn was identified as a potential NSP. I'm not surewhether it was community, local government or CFA. But itcertainly had to be identified and then, as you say, wehad to assess it.

Would you agree that if CFA then objected to its designation asan NSP by local government, that would show that there wasdifficulties, ambiguities, in the recommendationprocess?---I don't understand the case fully enough tocomment.

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It is just that at paragraph 42 of your colleagueMr Armstrong's statement I see it says here, "MorrisonsReserve is listed in CFA wildfire response plans as astaging area and therefore in the requested feedback tothe municipality, CFA advise that we do not agree to itbeing an NSP as it has another use"?---I'm absolutely notfamiliar with that discussion. It puts that sort ofadvice, it puts it slightly at odds with Mr Bourke'scorrespondence, but it is part of what I had said earlier,the important thing about considering the uses ofneighbourhood safer places because they may well haveother means, but I see the point that you're making, thatit is at odds with that advice, yes.

All I'm doing is really saying that none of these things areimpossible, but there are many steps that local governmentare required to go through in order to designate anNSP?---I agree that there is - we went through quite anumber and I do agree that there are a lot ofconsiderations.

So really, when you said to the Commission in answer toquestions from Mr Rush, "There are other issues,I suspect, with municipalities", it is not simply a caseof the municipalities necessarily putting something up tothe MEMPC, is it?---No, I rather think that there are someprocesses that probably in practice do go concurrently.But I think in the ideal world, if councils identify asite and the CFA has assessed it, there can be somedeliberations within the MEMPC on the matters that we havediscussed this morning, whilst some of the other mattersthat might be the purview of council only, such asownership of land, they could also be considered. It is a

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question of how the time lines and the structure of thediscussion goes. But I do agree, though, that there arequite a number of issues for council.

COMMISSIONER PASCOE: Dr Lyon, one of the things that concernsme with the line of questioning is the sense that somehowwe need to have an apportionment of blame for the currentdelays.

DR LYON: Absolutely not.COMMISSIONER PASCOE: We've had a bit of information about

formal notifications from the CFA through to the MAV aboutthe formal enactment of legislation and it strikes methat, both because the municipalities have their emergencymanagement plans and ought to have some consideration ofsafe places for residents and because the interim reportwas a very public document that laid out fairly cleardirections, that it wouldn't be unreasonable to expect themunicipalities to undertake some preliminary work in thisarea and not wait for formal prompts. I go back to thepoint I made a little earlier, and that is I am a residentin this state and a tourist in this state and I would bevery worried if the Royal Commission was spending its timein circular debates about who did what. It is more what'sgoing to happen now and what arrangements are in place sothat we can have some confidence that, as many familieswill be heading to various locations in the next week,that they will have some advice about where they can go.

DR LYON: Let me allay your fears, Commissioner. I'm not outto attack the CFA. That is not the point of thiscross-examination. It is simply showing that it is morecomplex than someone from the council and someone from theCFA walking onto the oval and saying, "What do you reckon,

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Terry? Give that a tick." Unfortunately there are alwaysmore considerations. Now, when you hear from councillorSamantha Dunn for Yarra Ranges the comprehensive nature ofthe documents produced by Yarra Ranges - late, I'm sorry,but I only got them myself at 7 o'clock last night - thosedocuments will show the Commission just what has to beundertaken, even for a much simpler thing than a refuge.The problem is the timeframe. As Mr Hayes has alreadysaid, we started on 1 July and we didn't know what aneighbourhood safer place was. It takes a lot. The nextissue I want to go to very quickly is the issue ofownership, because the CFA identification of neighbourhoodsafer place potential locations was made irrespective ofownership of the land. Is that right?---Yes, and weidentify and, yes, ownership is a key issue.

The difficulty that has arisen, although councils like YarraRanges are working through it, is that the legislationrequires consent from owners of the land?---Yes.

If there is land owned by non-council owners, if I take you,Mr Hayes, to section 50G subsection (7) subparagraph (c),50G(7)(c)?---Yes.

It is not a case that CFA or the council can walk into land andsay that as a matter of public necessity this land must beavailable for use as a neighbourhood safer place?---That'sright.

So the Act requires consent. And if it is DSE land forforeshores and things like that, there is usually acommittee of management; is that right?---Yes.

And the consent of the occupier and the owner has to be soughtbefore the land can be used?---Yes.

If it's private land, if there are tenants, occupier/owner,

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there are other consent issues; do you agree?---(Witnessnods.)

And Department of Education, then that presents consents towork through as well?---My understanding is that stategovernment instrumentalities who have land that could beso designated as a neighbourhood safer place should bedoing so and supporting the local communities.

You talked about the issue of signage. You were askedquestions about signage. You said that - - -?---That'sjust been promulgated.

Just been promulgated. The sign-off on signage by thegovernment for very good reasons did not occur untilFriday, is that right?---I'm not sure of the date, butI think it might have been Friday or Wednesday orThursday. I know it was very late last week. I can'tremember the date.

I'm going to stick to my guns and suggest it was Friday?---Allright.

Can I ask you this. I'm not clear of the position. So far asthe 52 township protection plans go, they have priorityfor the identification and designation of neighbourhoodsafer places; do you agree?---Yes, they do.

Are you able to answer this question: is the CFA able toidentify and certify places as potential NSPs outside theTPPs for this fire season?---I think we have.

Mr Rush asked you questions about the Walhalla mine LTE andWalhalla is not one of the 52 TPPs?---That's right.

What you are saying is whether or not it is within the 52 TPPsan assessment can be made?---That's right.

CHAIRMAN: I understood that one of the places that you'd saidwere the three, one is Ballarat and as I understand it

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Ballarat is not in the 52.DR LYON: I have just been handed a note. I might be wrong

about saying Ballarat.CHAIRMAN: Yarra Ranges, Ballarat and Moorabool. I may have

taken it down wrongly.DR LYON: The latest advice I have is that designated NSPs

exist in Yarra Ranges and Moorabool only.CHAIRMAN: So I cross out Ballarat.DR LYON: Cross out Ballarat for the moment, sir.You were asked a number of questions in relation to the

Gallipoli oval?---Yes.And its designation. Were you aware of the evidence of police

officers Hamill and Collyer that was given, that they saidin their opinion Gallipoli oval was unsafe and they werepart of the convoy away? Does Gallipoli oval, although itwas used as an NSP by people on the day, just as it was atthat time does not meet the criteria that have beenposed?---I can't answer whether it does or does not meetthe criteria. I'm not sure whether it has been assessed,but I think the CFA has - and for everyone I thinkGallipoli oval was the sort of mindset of what aneighbourhood safer place might have been earlier in thepiece and there were perhaps other places that weresimilarly used. I'm looking to gather up all of thelearnings and conversations around those places so I caninform future work in this space because there wereprobably many things that we could learn from that daythat will help us talk to the community more aboutneighbourhood safer places.

And that's exactly what's going to take place through thebalance of 2009/2010 and into 2010?---As I said before, we

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call it an interim guideline, but CFA will spend some timespecifically looking at these other things that occurredin detail so that we capture that information as early aswe can going into the next round of preparation.

They are the matters, thank you.<CROSS-EXAMINED BY MS FOLEY:Mr Hayes, why haven't NSPs been designated in all townships

that are designated as high risk?---We have haddifficulty, along with our partners, identifying suitablespaces. It is not, as I understand it, from want oftrying.

In fact, 215 sites have been assessed by the CFA as part ofthis process?---Yes, and hopefully growing every day.

104 have been found to comply?---Yes.And the fact of that compliance has been communicated to the

councils?---Yes.As we have seen from the Lorne example, which you were taken to

by Mr Rush, that communication was made in many caseswithin a week of the assessment having taken place?---Yes,I think it would have been fairly short timeframes betweenall of that occurring.

There are some 90 sites which are presently undergoingassessment?---Or scheduled for, yes.

In relation to the listing of noncompliant sites on thewebsite, CFA's website, is there any disclaimeraccompanied with that listing?---We tell people that theseare sites that haven't been designated at this point.

Have you had any involvement in consultation with councils andthe MAV in relation to their responsibility for thedesignation of neighbourhood safer places?---It's fair tosay that it's been a feature of our conversation and again

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that was probably the point of the meeting on 2 December,doing what we can to help expedite that process and givepeople confidence about where we are at. It has been anongoing conversation.

So if it was suggested to you that this had come out of theblue or it had happened at the last moment, what wouldyour response to that be?---I suppose the policy positionthat's informed the legislation has been developing forsome time leading into its assent on the 2nd.

The councils were kept formally involved in that process?---I'mnot able to comment. My colleagues that represent themwould have been clear, but I know that they have been atpains - well, not pains, but they have taken steps becausewe have contributed to it in terms of providingcommunication in their weekly bulletin. We have done thaton a couple of occasions.

It was put to you that a number of CFA sheds had been nominatedas potential neighbourhood safer places. Why wouldn't younominate a CFA shed or accept a CFA shed as an appropriateneighbourhood safer place?---If it met our criteria andthere were reasonable safety issues resolved, thosebroader questions that might need to be considered,I don't see that we wouldn't. I'm not aware of any policythat says a CFA shed can't be a neighbourhood safer place,but it would be fair to say, going back to a point we weretalking about earlier, where people seek out informalplaces of shelter and have done so historically, thatthere would be a number of fire stations where peoplegather and I think we saw that in February. Whether theyare safest, there is always that question.

In relation to the long tunnel extension at Walhalla, it was

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put to you that the CFA have rejected this site. Is thatcorrect? Has it been nominated as a site?---I am advisedby field staff that I have spoken to that we have notformally assessed or received a request to assess. But wewill, after we finish here, I dare say be having aconversation and our local folks would need to gettogether with local council and have a bit of a look atthat issue. But, as I say, it wasn't necessarilyforeshadowed. There are complexities about mines.I wouldn't want to shy away from that.

Notwithstanding the fact that it is not a formally designatedneighbourhood safer place, can it still be used as a placeof informal shelter?---I think that's an important issue,that there is nothing - the neighbourhood safer placecriteria or guideline of CFA's in no way prohibits otherpeople, any person, from doing what they have donehistorically. In fact, we have been encouraging peopleand we saw it in the interim report, the reference toinformal places of shelter, and we think that they are avery, very necessary part of a person's plan to stay anddefend. It is not simply "Stay and defend on myproperty". There is an adjunct to that which says, "Whatis a reasonable position for me if I need a fallback."That's always been there, arguably. All of us need to besort of shouting it from the rooftops, as it were.

In relation to some of the examples you were taken to at Lorne,it was indicated along the assessment column that ifvegetation modification were undertaken they could becomecompliant. If that occurred, would the CFA reassess suchsites?---CFA will always reassess. Vegetation may wellhave only been one of the issues. I'm not familiar there,

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but if communities organise themselves to sort of seethings differently then when we initially assessed them,that would be a good thing.

In relation to the suggestion that there has been someinconsistencies in approach of undertaking theseassessments, is it the case that the application of theguidelines is a matter that's not closed, that they willbe re-evaluated and continuously improved upon?---Yes,they are deliberately titled "interim". All of us wouldrecognise that this is new policy area and there will berigorous evaluation still of what happened last summer,let alone what will happen this summer. We haveexperiences to learn from in New South Wales. There willbe others from South Australia. So, we need to take allof that on board before putting something into what wemight call a final state. We even need to be looking atthe linkage between what we've got and where that will fitwith the position on refuges, for example. These thingsneed to link to be a coherent story for our community sothey understand and can use them.

Commissioner Pascoe put a number of questions to you andexpressed some concern about the level of responsibilitybeing placed on individuals in relation to personal fireplans and the absence of a neighbourhood safer place. Isthe decision to go to a neighbourhood safer place apersonal decision?---Yes, and we must do all that we canto make sure that it is not the only decision that peoplemake in terms of their fire survival plan. They need todo the other plans first.

The fact that there is a neighbourhood safer place designatedfor a particular community is no guarantee that that

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neighbourhood safer place is in fact safe?---No guaranteeat all. We're saying that they are safer, but I think theother point that needs to go with that is that we are notin a position to ever know where fire is and how it isimpacting in the environment, so it might be that peoplewho do see it as a place of last resort, it may well beinaccessible simply because of what is occurring on theday. We need to have these conversations so that there isno doubt in people's mind that these are complex andtricky issues and they represent one option, but at theend of the day, bad days, leave early.

What are the dangers associated with neighbourhood saferplaces?---They are many and varied, really. These placesare going to be, generally speaking, within the fire area,as it were, if fire comes, so you have all of the issuesof smoke and ember attack and they present their owndanger for people's health. Certainly those who havebreathing conditions, they need to consider that factor.If we are talking about open space and we are talkingabout hot and oppressive days, we need to think about howwell people are prepared for that. In other environments,non-fire related, we encourage people to get out of thesun too. You wouldn't want people arriving atneighbourhood safer places too early in the morning and besort of sitting there. There are some inherent thingsthat people need to think about.

Travelling to a neighbourhood safer place is inherentlydangerous?---It could be, depending on where the fire is,yes.

There has been some criticism by Mr Rush of the number of sitesthat have been identified as being compliant with the

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guidelines. I put to you that implicit in this criticismis that the guidelines in relation to radiant heat shouldbe reduced. Does the CFA think the guidelines should bereduced and, if not, why not?---No, we don't have any viewthat they should be reduced at this time. We didn'tarrive at the position lightly. We did discuss with ourcolleagues around the countryside in other fire servicestheir views. In my evidence, I won't profess expertise inthis area, there are quite a number of documents therethat discuss the impact of radiant heat. So,notwithstanding that in future maybe they are lesser, butthat will be based on further evidence that we are yet togarner and put into place and test that modelling.

Can I just ask you what is the key message that CFA would liketo deliver to the community in relation to neighbourhoodsafer places?---We have been discussing it this morningand we have used it a lot, and I think that we need tofirmly position neighbourhood safer places in the minds ofour folk as a place of last resort. It has been referredvaryingly as plan B or C. I would argue it is plan C. Weneed our people and we need our communities to have verygood stay and defend plans, if that's what they choose todo. They need to have as well their leave early optionalways open in the event that they can't put in placetheir plan and always to see a neighbourhood safer placeas a place of last resort in the type of discussion thatwe have had where, for whatever reason, people have beencaught short.

You have read Ms Gasking's statement?---Yes.In that she refers to difficulties with relocating residents

out of the Dandenongs as a particular issue. Given that

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difficulty, what does that mean for neighbourhood saferplaces in the Dandenongs in particular?---It probablymeans a couple of things, and that is that we need all ofour very, very best endeavours both this season and infuture seasons in terms of the type of conversations thatwe are going to have to have in our communities about howwe organise ourselves to be safe. So, whilst we might nothave what we want this year, it doesn't mean that therewon't be what we want next year or getting closer to it.We can always be moving towards that. But it certainlydoes mean that for many folks - well, put it another way.The neighbourhood safer places that we do have and eventhose that we might have next year would probably not beenough to provide refuge for all of the folks that live inthat environment. We need to recognise that it has beenidentified as a high-risk area. We would encourage peopleto go to our website and do their self-assessment. Wewould argue that they should go to Fire Ready Victoriameetings, they attend Community Fireguard meetings andunderstand their level of risk and, if they are in anydoubt, they should have a plan to leave early andcertainly for the extreme and code red days that should betheir advice, so plan to leave early. No-one would doubtthat there could be difficulties if everyone decided toleave at the last minute, and that's the important pointof the message about leaving early.

In relation to the issue of township protection plans,Ms Gasking has been critical of the maps used in townshipprotection plans. Do you have a response to thosecriticisms?---I am in no way a mapping expert, but I'madvised that our maps are the Vicmap base which is

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maintained by SII, which is a division of the Departmentof Sustainability and Environment. The maps are used byall emergency services and 000. There are from time totime inaccuracies identified in those maps. I believe SIIhave a process to take information and to remedy that.Recently I believe there was a discussion about a beachname in Blairgowrie, I think it was. My understanding isthat matter has already been rectified.

In relation to Ms Gasking's criticism of the failure toidentify exit roads in the township protection plans, doyou have a response to that?---Yes. An important point.The township protection plans do identify primary andsecondary roads and what they traverse, as it were. It isvery difficult sitting here today to point out where anexit road might be for a fire that's occurring in theDandenongs given that that pre-supposes you know where thefire is and where it is going to impact. It is reallyimportant that people have a full understanding of thegeography of where they live and how the road system worksbecause it may well be different at different times. Inany event, though, traffic management is work that isundertaken by Victoria Police.

To your knowledge has any work been undertaken to clearroadsides and make roads safer?---Yes. CFA brigades formany, many years have done work in maintaining vegetationon roadsides on a voluntary basis. But within the contextof the township protection plans there is a process inthere where we have got the prevention elements of it. Sowhat are the fire prevention issues that need to be takencare of with this township? That draws heavily on what iscalled the municipal fire prevention plan. As we went

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through the discussion of this process through thisSeptember/October period I think all of us started torealise the magnitude of work that needed to be done. Ouroperations folk along with some staff that work with mequickly got together with VicRoads and our colleagues inthe Municipal Association and we looked across the whole52 at which were the critical ones, which is the highpriority, and put in place some views around standards andwhat needed to be done and which were the high prioritiesand we have been progressively working through that. So,rather than leave that to chance and hope that the rightthings got done in the right order, we have tried to putsome structure around that and I think that will be afeature of planning for some time in that area. It isvery important.

Finally, Ms Gasking has been critical of the lack ofconsultation in relation to township protection plans. Doyou have a response to that?---The first thing I will sayis we have worked in a very short timeframe. We need toacknowledge that. Clear direction has been given to ourfolks in the field to engage as far as possible with thosein the community. I am aware that across the state therehave been many, many meetings with many, many attendeesparticipating, not only in the Yarra Ranges but in otherplaces. Have we included all the views of all ofthe community? At this stage it would be hard to say thatwe have, and there will be some that feel as though wehaven't consulted far enough. But, again, townshipprotection plans exist in that same sort of space asneighbourhood safer places. The material that's beentendered with my statement clearly indicates that we

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intend to review the outcome that we have got. ButI think CFA, our field folks and working with ourmunicipal colleagues, we have tried to make a good fist ofgetting together with community where the opportunity hasbeen.

<RE-EXAMINED BY MR RUSH:Mr Hayes, in the course of the morning we might have forgotten

some basics. 7 February revealed that neighbourhood saferplaces are a necessary feature of the bushfire regime inVictoria?---I would hope that I have not given any view tothe contrary.

The position in relation to the roll-out or implementation orwhatever words we want to use, it is urgent?---Agreed.

The matters that Dr Lyon has put to you and all the things thatget in the road potentially of a neighbourhood safetyplace and all the committees and all the councils that maybe involved I suggest underscore the recommendation thatwas made by the Commission that this be done by oneentity?---That's another way of organising it. I'm sortof charged with delivering the legislation as it is.

Just one matter I wasn't going to take you to, but you wereasked about Ms Gasking's statement. Attached toMs Gasking's statement is a photograph of a sign that isat present outside the Olinda hall. I will ask that it bebrought up?---I haven't seen the photograph.

You haven't?---Not before now.It is at (WIT.128.001.0009). I want to ask you about the

writing of this in the context of the potential importanceof neighbourhood safety places in this area where it isput forward on this sign, and I'm instructed it went uptwo or three months ago, that the safest option is to stay

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in a well-prepared home and actively defend it. Wheredoes that fit in relation at the moment to CFA's bushfireplan and the manner in which people in these high-riskareas should conduct themselves on a day of code redcatastrophic bushfire?---I say again this is the firstI have seen of it. I take your point that this went up inSeptember, was it, or thereabouts? I think youcommunicated that to me. I think as a matter of urgencythis needs to be reviewed.

It suggests, does it not, that there are mixed messages goingto the community in relation to bushfire planning and whatthey should do?---Because of this illustration, I thinkyou are right. I think it is fair to say, though, upuntil more recent times the messaging hadn't been settledin terms of how we express code red and those sorts ofthings. But I do share your concern and I think, leavinghere, we will have a very close look at that.

I'm instructed it is not a CFA sign but a council sign?---Itis, nevertheless, one we should be working with ourpartners on.

Just finally, there is evidence Mr Armstrong will give that on4 November he communicated with the brigades in his areasetting out 20 localities in the Dandenong Ranges thathave been given the imprimatur by the CFA. On yourevidence that would have been sent to the localmunicipality within days of that date?---Well, in a shortperiod of time, yes. I have not discussed - - -

Are you aware of any communication from the MAV or themunicipalities prior to 2 December in relation to issuesconcerning these very matters?---Which very matters?

The matters that they raised on 2 December, having regard to

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the CFA providing information concerning - - -?---I didagree earlier and I conveyed the message personally to mycolleagues in MAV and back with my own folks, they didindicate to ourselves that there was perhaps not a fullunderstanding of what had been communicated to them and mymessage was that we were not in a period of time where wecould be passive. I don't for a moment say that CFA'scommunication has been perfect in all or any of the cases.We may well have had shortcomings. But, if that is thecase, this is an issue that needs to be resolved locallyand quickly. We sent an email to that effect to our fieldstaff. I think the MAV provided similar encouragement totheir local people, "If what is in front of you is notclear, don't wait. Let's get together and sort this thingout."

Thank you. May Mr Hayes be excused?CHAIRMAN: Yes, thank you, Mr Hayes. You are excused.<(THE WITNESS WITHDREW)CHAIRMAN: We will take the break.

(Short adjournment.)MS DOYLE: Commissioners, in order to deal with some time

constraints for some of the witnesses, we are going tochange the order and call Mr Seear to give evidence now.I call Mr Simon Seear.

<SIMON ANTHONY SEEAR, recalled:MS DOYLE: Mr Seear, you gave evidence in these proceedings

some months ago. For the public record and the parties,I indicate that Mr Seear's original statement is exhibit88 in these proceedings. He gave evidence at transcriptpage 2787 onwards when he was first called to giveevidence. Mr Seear, can I have you confirm for the record

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your full name?---Simon Anthony Seear.You gave evidence in these proceedings, I'm just going to be

summarising them very briefly, to the effect that yourfamily has a long connection with the town of Walhallaand, although you are now resident in metropolitanMelbourne, you still visit Walhalla regularly and areaware of the use by the members of that township of thelong tunnel mine as a refuge, and I use that terminologyonly in the most general sense there. You gave evidencethat members of your town, including your father, had usedthe long tunnel mine in 1939 during fires and that youwith a number of townfolk had used the long tunnel mine onthe night of 7 February when the town of Walhalla wasthreatened by the Thomson fire. It is a very briefsummary, but is that a fair summary of the matters youattested to on the last occasion?---Yes, that's correct.

You gave evidence about some of the physical features of thatlong tunnel mine when you were last here and about the wayin which it is organised. In the time available beforeyou attended today you haven't signed or prepared a formalstatement, but you have assisted Corrs solicitors to puttogether notes in effect that summarise what you havebecome aware of since you gave evidence here. Do you havea copy of those notes in front of you?---Yes, I do.

Those are at (TEN.155.001.0001). Attached to those notes,Mr Seear, are a poster that I will ask you to explain in amoment and an engineering report that you supplied toCorrs solicitors. Although it is not in the form of aformal statement, Commissioners, I seek to tender thesummary and the two documents as a useful aide memoirewhile Mr Seear gives evidence.

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#EXHIBIT 616 - Summary of supplementary evidence of SimonSeear (TEN.155.001.0001). Fire season poster - Walhallapreparation meeting (TEN.150.001.0001). Report - Safetyand geotechnical inspection of the long tunnel extendedtourist mine (TEN.151.001.0001). Walhalla refuge(CORR.0912.0030). Neighbourhood safer places(CORR.0912.0032).

MS DOYLE: Mr Seear, can you first tell us about what you havelearnt in terms of the operation of the long tunnel mineand its management? I gather that something has changedsince you were last here. Can you explain how it nowworks?---Yes, that's correct. There has been a new boardof management installed who report through to DSE; so anumber of new board members that consist of individuals,public members and a member from Baw Baw Shire, along withDSE and others. So basically a new group.

Is the mine still run as a tourist attraction during theday?---Yes, it is.

So it is this new DSE board of management, as far as you areaware, that would have responsibility for running the mineas a tourism venue?---Correct.

Paragraph 4 of these notes indicate that a personal contact youhad, Mr Proells, has ceased managing the attraction andnotes the new arrangement. Have you had contact with thenew board of management or its members since the changeoccurred?---Yes, we have. We presented what we believedto be our case for retaining the current arrangement withthe long tunnel mine to a board of management meetingrecently.

Did the board give any indication as to their view aboutwhether the long tunnel mine ought to continue as either a

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refuge or a neighbourhood safer place?---Yes, the boardwas supporting the endeavours by the local community andlocal CFA to work with us in terms of allowing the mine tobe used as a refuge.

When you say "we", you have referred to "we put a proposal",are you speaking as a community representative, a CFAmember or both?---I guess primarily as a communityrepresentative regarding the refuge. I am an active CFAvolunteer. So it does form part of our planning, ourlocal planning, as a community and CFA.

You say in paragraph 3 that you have made efforts to obtainofficial approval and that you understand the new term fora refuge is a neighbourhood safer place. Are you seekingto have the mine designated as a refuge, a neighbourhoodsafer place or either or both?---Well, either or bothwould be good. I guess in true form when you have a lookat the CFA website there is a good example. I notice theWoods Point adit, as it is called, is listed as a refuge.We are very similar to the Woods Point adit. My opinionpersonally is a refuge is more appropriate for ourcircumstances given that it is not a structure, it is anunderground mine, as such; where I think a neighbourhoodsafer place could be confused with a structure in the caseof our particular circumstances if we are trying to get amessage across to the community as it stands or inparticular the transient community that we actuallyreceive every year as far as campers and tourists.

Although you seem to have indicated a personal preference forthe term "refuge", as a community representative do youmind whether it is designated as a refuge, neighbourhoodsafer place or both?---Either or an alternative, would be

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happy.You just referred to the transient population. Your evidence

on the first occasion was that the permanent population ofWalhalla is very small, 12 to 20 people, but thattraditionally it swells to the order of 200 or 300 people,particularly on holiday weekends or other warm weekends byreason of the campers and other tourists whoattend?---That's correct.

In terms of your presentation to the DSE board of management,you say in paragraph 5 of the notes that the DSE boardcommissioned an engineering report and provided it to you.You have also presented a copy of that report. Theimportant pages of the report are from page 13 onwards,(TEN.151.001.0013). This is part 2.7 of this consultant'sreport which appears to have been provided in Septemberthis year. Without reading it line by line, what was yourunderstanding of the purpose for which the report wassought and the conclusions it gives about the suitabilityof using the mine as a refuge?---My understanding of thereport is it is part of the operational requirements of anactive mine and, in the case of the Walhalla long tunnelextended mine, to be used as a tourist facility. It doesrequire periodical inspection. The periodical inspectionreport, which is I think the full document here that is inthe evidence, was undertaken in September. I believe, asan appendix, the board of management asked them toconsider the long tunnel mine as a refuge and get theopinion of a second contractor, I guess, because we had afirst opinion by Hercules Mining and, since HerculesMining no longer have any involvement with the long tunnelmine, the board of management asked AMC Consultants to

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take over Hercules's position and that was where this wasadded to the requirement.

So, although you weren't involved in commissioning it, yourunderstanding is it was part of the routine audit orreview that's necessary because this is a mine that thepublic go into, but that there seems to have been asupplementary question put to the engineers, namely, "Alsoturn your mind to whether it is suitable to be used as arefuge"?---Correct.

If we look at the bit that's shown on the screen now, page0013, where the report turns to this question, "AMC", theyare the engineering consultants, "recommends the use ofthe machinery chamber as a potential bushfire refuge."Just to confirm in terms of the terminology, is that thearea in which you and townsfolk sheltered on the eveningof 7 February?---Yes.

"AMC estimates the volume of air in it and the adjacentchambers is about 978 cubic metres, enough for 100 personsfor about 15 hours were it to be sealed against theingress of smoke." On the evening of the 7th was thechamber area sealed?---No, it wasn't.

Was it capable of being sealed had anyone wanted to doso?---Yes, it was.

By what means could that have been done?---By installing acanvass tarp or blind, I guess you could refer it to. Wehad those in provision to activate in case it wasrequired, but we found it not necessary on the basis thatthe smoke wasn't that intolerable in the vicinity and alsoin the mine.

The next page of the report, page 0014, recommends that therebe available one of two options: either a steel air-tight

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door that could be located near the entry to the chamberor a roll of canvass that might be used to suit theopening. I assume at this stage there is no provision foran air-tight door to be closed on that chamber?---No, notat present.

But there do exist the canvass blinds that you have alreadyspoken about that were held in reserve on thenight?---Yes, that's correct.

At the bottom of this page, the last paragraph, it says, "AMCsuggests that canvass rolls be installed now in readinessfor the next bushfire season." As far as you know, arethe rolls which were available on the 7th, do they remainavailable or in the vicinity of the mine?---Yes, they do.

There is another suggestion here. It indicates that a fewcrates of bottled water would be a good idea and thatthere is the possibility that one could take bottles ofcompressed air and secure them in a locked enclosure. Areyou able to speak for your community group; would thosetwo possibilities be suitable and undertaken by yourcommunity group if necessary to pass this process?---Yes,without a doubt. We have certainly got provisions alreadyfor water and we have actually got new canvass materialready to activate when we have been given some form ofgreen light, I guess.

This report seems to have been provided to you. Do you knowwhether it has been provided to the Baw Baw ShireCouncil?---A Baw Baw Shire representative is own the boardof management. So, in terms of just full exposure tothese meetings, I have no doubt that the Baw Baw Shireshould be fully aware of this report.

Has your community group made a formal application or do you

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know whether anyone else has on your behalf to the CFA tocome and assess the mine as against its criteria as afirst step?---We have certainly been making most of ourapproaches to Baw Baw Shire through the board ofmanagement and DSE, and we have been making approaches toCFA locally in terms of our - our brigade are aware.Region 9 would be fully aware of it. So, apart from thosefundamental pieces of correspondence and various meetings,I think everyone would be fully aware of our intentions.It is not new, by the way. We sat in this room six monthsago and it was fairly public knowledge at that point aswell.

Do you understand or have you heard in the proceedings or eventoday that the approach that is being taken by the CFA andthe councils is to assess locations in the 52 mostvulnerable towns, so described, first and do youunderstand that Walhalla hasn't made that list?---Yes,I had a look at the CFA website and noticed that it is notlisted as being assessed, either rejected or actuallyawaiting assessment either.

Did you recently become aware through a Mr Venville of theBaw Baw Council of what steps he is aware of that havebeen taken in relation to dealing with the CFA?---I did onFriday night, yes.

Can I just have Mr Seear shown this letter just recentlyreceived and coded (CORR.0912.0033)? If that letter couldbe brought up. It is a letter 12 November to Mr Potter.Did Mr Venville, who is the author's name at the bottom,provide this to you on Friday?---Yes, I received an emailFriday afternoon.

Commissioners, I stand to be corrected but my recollection is

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Mr Venville's statement was tendered in the context of theBunyip fire and, through that, it became identified thathe is the MERO for Baw Baw Shire. This letter wasprovided to you and it indicates Mr Venville has writtento Mark Potter, manager community safety at the CFA.12 November is the date of the letter. It says, "I referto a request that I made on October 14 requesting a datewhen the CFA would be in a position to assess potentialneighbourhood safer places not influenced by a townshipprotection plan." As you understand it, is Walhalla inthat group; because you are not in the top 52, you don'tyet have a completed plan?---I believe so.

Mr Venville's letter then says, "I was advised that followingthe implementation of township protection plans CFA wouldbe in a better position to assess potential NSPs"effectively in other townships. "At a recent MFPCmeeting delegates were encouraged not to provide the CFAwith a list of preferred potential locations due to achange of laws happening at the time. The community hasbeen very anxious in having locations assessed, inparticular (but not limited to) the Tanjil Bren dugout andthe long tunnel mine in Walhalla." Pausing there, thatanxiety, is that an accurate description of the feel ofthe community in Walhalla in terms of the dealings youhave had with them?---Yes. I'm not sure where the hold-upon this has been, but the community, given thecircumstances over the last four or five years, that wehave had three fires in five years, are fairly anxious.As someone involved in the CFA, we have been also veryanxious in attempting to get some resolution.

The letter concludes, "Can you indicate when the CFA will be in

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a position to assess sites as requested by the community,brigades and council?" In your dealings with Mr Venvillehas he been able to tell you whether since this letterthere's any date set or timeframe set for your mine beingassessed?---No, this is the first I have heard officiallyfrom Mr Venville. We have attempted to meet with him on afew occasions and he has failed to attend both meetings.After a fair bit of correspondence it was only really atthe last moment, and I presume it was to do with the factthat he was aware that I was probably going to appear herethat we got some correspondence. This is my onlyknowledge of what is occurring.

DR LYON: Can I object to this sort of evidence being given.The witness is speculating on reasons why things haven'toccurred. It is simply not accurate.

MS DOYLE: I will ask Mr Seear to look at an email that camefrom Mr Venville which will clarify what has beencommunicated to him. It has just been coded(CORR.0912.0030). Mr Seear, the context is in the notesthat you participated in preparing for these proceedingsyou indicated that you had organised a function at whicheffectively the mine would be launched and that a councilrepresentative had accepted an invitation but didn'tarrive. Have you since found out via this email on Fridaythat Mr Venville, the author of the letter we just lookedat, did intend to come and indeed was planning to come butfell unwell unfortunately on the day and passed a messageto the only contact person he had on the day in an effortto get through to you and all those who put effort intothe function, through to you a message that he would notdue to his illness be able to come that night?---Yes,

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obviously I got that in the email that you are readingfrom and I was only made aware of that on Friday.

So do you now understand that, despite your keenness to meetwith him, personal circumstances meant he was unable to dothat on the night of the meeting and he hoped and assumedthat his apology had made it through?---Yes, I certainlyunderstand that now.

The other person he refers to in the email is a Mr BrianBrewer. Do you know what his position is and have youbeen able to speak to him about your efforts?---Yes, Brianis also a member of CFA and actively involved in thecommunity. He is also on the local heritage committee,who have got some authority over a number of buildings andfacilities in Walhalla as well. He has been, as a memberof the community, pretty actively involved in supportingand attempting to communicate and liaise with Baw BawShire and CFA on issues as well. It's actually Brian whohas been doing a fair bit of liaison with Baw Baw Shire .

You see in the middle of this email Mr Venville does say, "Asyou may know, Walhalla is not a TPP area. The council" -and that means Baw Baw Shire - "has sought to have the CFAassess other sites in Baw Baw which are not in TPP areas,including the dugout and Walhalla." He attached theletter we have just looked at which effectively informsyou that he asked on 14 October and on 12 November, buthas not yet got a formal response as to when the CFA willassess the mine?---I understand that from thecorrespondence, yes.

I have asked you a number of questions about formally assessthe mine. Do you know whether anyone from the CFA region9 or higher up has come and looked at the mine?---Not

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officially, but someone from region 9 I believe inspectedthe mine a number of weeks ago. I wasn't there at thetime, so I couldn't actually confirm what time and whatday it occurred.

But you haven't been given any feedback about the results ofthat?---No, but I guess they have been asked to inspectquite a lot of facilities, so we might be in that list.

I want to just make that letter and the email correspondence,in fairness to Mr Venville and to complete the picture,made part of that exhibit.

CHAIRMAN: Yes.MS DOYLE: If that could be added to exhibit 616. The other

matter I want to ask you about is your town meeting. Yousay in paragraph 9 of these notes you organised a meetingfor the 29th. Were you involved in preparing a graphicand a poster that was aimed at advertising this meetingfor the community?---Yes, probably not unlike hundreds ofmeetings that occur across the state ahead of the fireseason.

I'll just ask that that be brought up, (TEN.150.001.0001). Ifwe can just first of all have a look at a view where wecan see the whole poster. Is this the poster that wasdistributed around the town to encourage people to attendyour meeting on 29 November?---Yes, it was.

The poster indicates under the heading "Discussion anddirection", "Walhalla has been threatened by fire threetimes in four years. We also have an arsonist at large.CFA, DSE and local delegates will outline the followingpoints post the recent phase 1 findings of the RoyalCommission." Were there representatives of each of thosegroups - the community, CFA, DSE and the council - at the

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meeting?---We did have our local councillor attend. Thelocal police officer wasn't able to attend, but he didattend the Erica meeting. We had the CFA support it withCFA region 9 delegates, who took the community through thenew policies.

So the subject of the meeting was not just confined to themine; it educated all those who attended about all the dotpoints there: the "stay or go" policy, the refuge, butalso warning systems, private equipment et cetera?---Yes,there were quite a lot of topics covered.

You directed this poster, it seems, both at those who live intown and own properties but also visitors?---Correct.

Roughly how many people came to the meeting?---At the Walhallameeting we had around 35 to 40 in total. I think at theErica meeting we had about 80. With a population of 300,we got around a third of the population, I guess.

You say in paragraph 12 that feedback on the meeting was thatit was well run and informative and there was extensivediscussion on the mine and other matters at themeeting?---Yes, that's correct.

Was there a motion or a suggestion put at the meeting regardinguse of the mine?---Yes, there was.

What was the disposition? Was it voted up or were there anyqualifications put on it?---No, we had a fair bit ofdiscussion along the lines of the discussion we've hadthis morning, we discussed the engineering report, and webelieve we got unanimous support for the use of the mine.

You mention in paragraph 13, "There were no objections.Councillor Balfour, however, stated that the council andCFA were still deliberating on the use of the mine." Youhave not been informed of the results of a CFA assessment

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against its criteria?---That's correct.And this is probably a necessary consequence, but equally you

haven't been informed by the council that it has formallydesignated the mine as a neighbourhood safer place?---Yes,that's correct.

Mr Seear, as we go into the next bushfire season, if the minestays as it is, namely with no formal status, is it yourunderstanding that the community nevertheless intends touse it to shelter during a fire in the event that firethreatens the town of Walhalla?---I think we will carry onusing the mine as we have used it since 1939, as a placeof last resort. So I don't think we will have any changethere. It will just remain a little difficult to do asbroadly as we would like to handle it.

When you last gave evidence you explained the great efforts youwent to personally to visit caravan parks, campers andvisitors on the morning of the 7th. If in a similarposition again during the next bushfire is it yourunderstanding that you and/or other CFA members willattempt to let visitors to the town know that there is apossibility of using the mine?---That's the intention. Itis not just myself; it is other members of the CFA thatare actively involved and members of the community thatare actively involved in getting the message out to thosethat are around.

There are some questions from the MAV. Commissioners, do youhave any questions prior to that occurring?

COMMISSIONER McLEOD: Just one question, if I could. Thereport was from AMC Consultants, but it was accompanied byMr Peck and Mr de Veth, who are WorkSafe inspectors. Werethey party to the report, the WorkSafe inspectors, or were

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they there as observers?---I actually can't answer thatbecause I wasn't there on the inspection. My knowledge isonly from reading the report that was handed to me.

Would you have any reason to believe that that kind ofinspection, which clearly has safety as one of itsessential focuses, would likely not cover matters that youwould think the CFA would be concerned about from theirpoint of view or would their interests be verysimilar?---I would think their interests would be verysimilar. In actual fact I think AMC Consultants have beena hell of a lot more extensive than we would be,considering as CFA, in terms of looking at the structuralintegrity and maintenance and all sorts of other issues.Our primary focus was whether it was suitable for ourneeds. They seemed to have acknowledged that, in theiropinion, they agree with us and agree with the previousmining advice that we have had from Hercules. So that'sprobably put our mind at rest.

<CROSS-EXAMINED BY DR LYON:Mr Seear, my name is Greg Lyon. I represent the local councils

and the MAV. I just want to clarify two aspects of yourevidence. The first is this. The email that you receivedfrom Mr Venville that has been put into evidence, that'sthe one of 11 December 2009, that was in fact in responseto an email you had sent to him, wasn't it?---Correct.

You had sent it on 9 December at 10 pm; is thatright?---I would say that would be correct.

You had asked him, amongst other things - it is part of abundle that I understand Ms Doyle has, but it says this,"If it was not inconvenient, would you be able to assistme in answering the following question: what to your

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knowledge is the status of the Walhalla LTE mineassessment as to be included as a refuge," and then itsays, "(same as the Woods Point mine listed as a refuge)or an NSP?" So really what you are asking is: what's goingon?---Correct.

That was the question you asked. That was the question heanswered in that he told you that the council had put themine up to CFA by a request on 14 October and then it wasfollowed up on 12 November; is that right?---On thisoccasion, that's right.

Then in the body of the email of 11 December Mr Venvilleupdates those requests and tells you that he had spoken tothe CFA, to Mark Potter, only a week before and that hewould let you know the outcome once he has a response; isthat right?---According to the letter, yes.

As a concerned member of the community or as a member of theCFA, do you understand that councils cannot simplydesignate neighbourhood safer places?---I understand it isa combination between work with the council and the CFA.

Do you understand that the legislation specifically prohibitscouncils from designating neighbourhood safer placesunless they have been certified by the CFA?---I amcertainly not an expert on the legislation, hence mecontacting the shire and CFA to find out what position weare in as a member of the community. So I certainly don'tfollow the legislation closely.

MS DOYLE: There are no matters arising. I would ask thatMr Seear be excused.

CHAIRMAN: Yes. Thank you, Mr Seear. You are excused.<(THE WITNESS WITHDREW)MR RUSH: Commissioners, I call Mr Armstrong.

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<GRAEME STUART ARMSTRONG, recalled:MR RUSH: Mr Armstrong, your full name is Graeme Stuart

Armstrong?---That's correct.You have given evidence to the Royal Commission previously, but

this time as operations manager of region 13 in connectionwith the region's approach to neighbourhood saferplaces?---That's correct.

Firstly, are the contents of your statement true andcorrect?---That's correct.

I tender the statement of Mr Armstrong.#EXHIBIT 617 - Witness statement of Graeme Stuart Armstrong

dated 11 December 2009 and attachments(WIT.3004.033.0001).

MR RUSH: At paragraph 13 of your statement you refer to thetraining that was undertaken by your personnel and inessence what you refer to as a radiant heat assessmenttool. That's the training that was undertaken?---Thereare two aspects to the training and qualification. One isa five-day course which provides people with the knowledgeto assess a wildfire management overlay area, which ispretty much the same assessment requirements for an NSPradiant heat criteria, and there is a one-day trainingcourse in order to properly input the data into the NSPassessment tool, which is a New South Wales model.

Radiant heat is the basis upon which assessment is made?---Thatis the initial criteria that CFA have been requested toundertake once a neighbourhood safer place has beennominated.

At paragraph 17 you refer to nominations in relation toneighbourhood safer places. How does the CFA get notifiedof nominations?---Formally the process is via the relevant

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municipality that would advise CFA in the appropriateregion of a location that's been nominated for an NSP.I probably need to say that in the first round ofnominations that we received in region 13 in good faith wetook on nominations that were given to us directly by ourlocal brigades, by community members or community groupsas well as council.

You refer to nominations given by the local brigades atparagraph 19, I think. What did you understand thereasons why local brigades were making nominations?---Froma historical context where local brigades would haveawareness of locations within their brigade district wheremembers of the community would historically go to if theywished to gather in the location apart from their ownhomes or businesses.

But is it not also the fact, Mr Armstrong, that the localbrigades were putting forward neighbourhood safer placeson the basis of their own community involvement in theseareas and putting them forward as seeing them as essentialtools in a bushfire risk strategy?---My understanding wasthat our brigades would have nominated such locationsbased on historical context where members of the communityhistorically have gathered.

But didn't you speak to the brigades?---In what respect?That nominated neighbourhood safer places?---I'm sorry, I'm

not - - -These are brigades in your region, are they not?---That's

correct, yes.Did you not speak to the brigade members to get an

understanding as to why they were putting forward ornominating particular neighbourhood safer places?---We

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were in discussion with our brigades when they wereinquiring about the NSP process and the ability ofnominating locations to be considered for NSP endorsement.

My question really is this, what I put to you before: thesebrigades were putting forward these neighbourhood saferplaces at least in part because various members, communitymembers, of the brigades saw them as an essential part ofbushfire risk strategy?---They are not my words. Thebrigades would have nominated the locations, I say again,because of the historical context that such locations hadbeen used in the past by community members as a place togo to; say, an informal place of refuge.

Were any of the places nominated by brigades in your areaaccredited by CFA?---Could you clarify the word"accredited"?

Were any of the places nominated or put forward by localbrigades in your area accredited by CFA as neighbourhoodsafer places?---CFA does not accredit places asneighbourhood safer places.

Excuse my terminology . Did any of them pass the guidelinesthat are set by the CFA?---I could check the list - - -

If you would?---For any that met the compliance for radiantheat assessment. This document has been tendered, is myunderstanding.

Let me put this to you. I want to suggest that none of theplaces put forward by local brigades passed the test thatwas applied through the guidelines?---The list I have herefor the Dandenong Ranges township protection area showedtwo locations that were provided to CFA for assessment bylocal brigades or community did meet the compliance forradiant heat assessment.

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Did?---Yes.Which ones are they?---The Belgrave Safeway building and I will

say the Monbulk recreation reserve. It is listed here asthe soccer, football and bowling club.

You would, on the basis of evidence that the Commission hasheard this morning, immediately identify a problem thatwas put forward by the municipalities that one of those ison private land?---That's correct.

Are you aware of, firstly, the State government having provideddocumentation to all municipalities putting forward adraft indemnity for the municipalities, firstly, inrelation to their own land but a draft indemnity documentfor private landowners?---I'm not aware of the document assuch, but I am aware of the issue in hand.

And that that has been done?---I'm not aware whether it hasbeen done or taken out of draft. I have not sighted suchdocument nor been aware of the actual process.

I will tender the documents perhaps after lunch, Commissioners.Can I just quickly ask you about an attachment to yourstatement which is behind annexure 4. It is at(WIT.3004.033.0020). If we go to 0022, we see whatI understand to be an assessment document for the FernyCreek Primary School building?---That's correct. It ispart of the documentation undertaken during the assessmentprocess for radiant heat criteria.

Does this document indicate who put it forward?---It would be asign-off or an indication of the NSP team that went outand did the physical assessment.

But, as to who put forward the Ferny Creek Primary School forassessment, the document doesn't appear to say on itsface, as I'm looking at it?---No. Although the list would

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actually have the nominated - the Ferny Creek PrimarySchool, it looks like it was a nomination given to us bythe Shire of Yarra Ranges.

If we go to page 0023, this sets out the assessment that wasdone by the persons involved?---That's correct.

On the basis of what we see for north, it would havefailed?---Given that there is some criteria for distancefrom the risk to the location on the initial assessment,yes. But there may have been some other issues such asthe slope of the land that were not there that mayameliorate those particular conditions.

I will just quickly go to another one at 0031, which appears tobe the Belgrave recreation reserve. If we go to 0033,what are we looking at there if we go across the page from"medium forest"?---Where it says "medium forest" and "drysclerophyll forest"?

Yes?---From the south the distance of 210 at a height of27 metres, and from the west a distance of 300 metres anda height of 25 metres.

And then what happened to the Belgrave recreationreserve?---The Belgrave recreation reserve, according tothe list here, was assessed as compliant for an openspace.

There is just one other document I wanted to look at at 0055 ofthis bundle which I understand to be the Belgrave shoppingstrip. Just so we can understand, what are the variousblack and red lines referring to?---First off, probably inthe centre the hatched area shows the area in questionbeing assessed for radiant heat criteria. So any personstanding or being placed within that hatched area is thereas subject to the radiant heat assessment. The black

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lines would have been the building criteria for minimumdistance and the purple/red lines would have been the openspace distance criteria being measured.

So the hatched lines are for the buildings that people would beusing as safer places?---It was assessed as an open space.But, because it was a shopping strip location being givento us, the team actually assessed both the open space,being the roadway in the shopping strip, as well as thebuildings subject to that area where the roadway wasindicated.

So what happened there?---The open space of the Belgrave mainstreet shopping strip was assessed as compliant withthe radiant heat criteria. Because the open space wasassessed as compliant, then by virtue the buildingscontained within would also be compliant.

If I can just take you to paragraph 40 of your statement. Youthere refer to a discussion with Mr Brett Ellis of theShire of Yarra Ranges. What position does Mr Ellishold?---Mr Ellis is the executive officer of the emergencyand safety planning section of the Shire of Yarra Rangesand also holds the title of municipal fire preventionofficer.

You provided information of 52 locations assessed as compliantwith the radiant heat criteria in the YarraRanges?---That's correct. Throughout the Yarra Ranges,both inside and outside the area subject to the townshipprotection plan that we assessed at that point of time ofthe discussion with Mr Ellis, there were 52 locations thathad been assessed as compliant with the radiant heat.

When was that discussion?---I cannot recall specifically atthis point in time when that discussion was held.

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At 0015 of your statement you have provided us with amemorandum that you sent out to brigades, as I understandit, in region 13 or brigades in the DandenongRanges?---The memorandum was to both brigades in theDandenong Ranges township protection plan area and forthose brigades in the Warrandyte, North Warrandytetownship protection plan area.

That was dated 4 November 2009?---That's correct.I have counted them. There were 20 of these places found

compliant out of that list?---At that point in time.So what we have seen since then is an extra 32?---That's

correct.I take it on 4 November or thereabouts that it was a matter of

providing it to Mr Ellis or to the Shire of Yarra Rangeson an ongoing basis how areas were being found compliantwith the criteria?---That's correct. This list here,subject to the memorandum, was the initial lot of NSPnominations that we received. They were all assessed andthen the results provided back to the relevant municipalcouncil. As you stated, on an ongoing basis we havecontinued to receive nominations for other potential NSPs.

Is the position this, Mr Armstrong: that after the provision ofthe compliant neighbourhood safer places you leave it tothe shire or the council to take it from there?---That'spart of the legislative process, that CFA is accountableto assess for the radiant heat criteria and then providethat assessment back to the relevant municipal councilwhether it is compliant or non-compliant, for the councilthen to undertake its process of further consideration andpotential endorsement.

You, as I understand it, attended consultation meetings at

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various times in the lead-up to this, particularly inrelation to township protection plans?---I have attendedsome, not all, of the planning meetings that were held.

Are you aware, and if you are not tell us, of criticisms thathave been made in relation to those protectionplans?---I'm aware of criticisms of content and format.

What's the nature of the criticisms that you are awareof?---I think in a generalisation that people werepossibly looking at these plans to be a silver bullet;that by the development and formation of these plans thatthat would excuse an individual or community member fromhaving to consider and form their own plan.

But, as far as particular features are concerned, are you ableto give us any other level of detail of the concerns orcriticisms that have been raised?---My understanding ofconcerns or criticisms that have been raised is thatmembers of the public may have expected that there bequite a lot of the terms such as refuges or bunkers orneighbourhood safer places or what-not to be specificallylisted on the plan, and some very clear and specificdirections or instructions of what members of the publicor the community would need to do pretty much under anycircumstance of any fire.

The level of detail or material that you raise there, do younot think that that is a reasonable expectation of whatmight be expected in a township protection plan?---Thatdetail would be on those plans if those locations existed.

What about exit roads and matters of that nature?---Yes, themain and secondary roads of reasonable access are listedon the plans, including the relevance of those roads,whether they lead to and from a particular suburb or part

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of the plan.CHAIRMAN: Could I just inquire how much longer you expect to

be and how much time you expect others to take?MR RUSH: I will be one and a half minutes. Unfortunately the

estimates that have been provided to counsel assistinghave been grossly exceeded this morning, Commissioners.I will check over lunchtime, but I suspect it will be morethan five or 10 minutes. Five minutes on my left. I havea promise of not long at the back. I will be a minute anda half.

CHAIRMAN: You go for your minute and a half.MR RUSH: If you could have a look at (WIT.128.001.0009). Are

you aware of signage such as this in your area?---Not ofthat specific sign, per se, but I am aware in general ofcommunity safety signage that is up and around in theregion 13 area.

If we look at this sign, which I'm told is taken outside theOlinda hall, it puts forward the proposition that thesafest option is to stay in a well-prepared home andactively defend it. "Houses save people and people savelives"?---I would put it that the first line is actuallythe preferred option for members of the community; leavebefore a fire has started. That would be the first thingthat people would read, being the top left-hand line.

Do you know if this is something - it has, as you will see inthe centre, the CFA logo - that has come out in yourregion this year?---My understanding is that it came out.I'm not saying that it is something that I have had apersonal involvement with.

Who would be responsible from the CFA perspective, havingregard to a CFA endorsement on the sign, for putting up

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that sign in your area?---It may come from a local levelall the way through to potentially region, if region wasinvolved.

You, as the operations manager, surely have some form ofresponsibility for the sort of signage that carries theCFA logo in your area?---If it is done with my knowledgeand consultation, yes, I would take accountability forsomething that has a CFA logo on it.

Who will take accountability for it in the CFA, because whatI'm suggesting to you is that that is giving a messagewhich is completely contrary to the experience of7 February?---I probably reiterate the first line on thatmessage board is "leave before a fire has started", whichis a very clear message that has come out since 7 Februaryand one that's been endorsed, that people should activelyconsider leaving the evening prior or the morning before abad fire risk day.

You might reiterate that, but the person reading the sign wouldthen read, "Houses save people and people save lives",which would be the direct contrary of what you are puttingforward as the right thing to do all on the one sign. Sowhat I'm asking is: how is it possible for a sign likethis to carry CFA endorsement in your area, or is there nomethod by which CFA check what is going up in your area inrelation to signage?---If it was done on a local basis inlocal consultation with other agencies, then quite oftenwe have a number of brigades that are involved with otheragencies to put up local messages of information.

So what you are saying to the Commission is that in your areaat least there isn't a method or a system by which signsbearing the CFA endorsement are checked by the CFA to

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ensure that the message that it carries isappropriate?---Not necessarily so. What we do encourageis that if any brigades or groups are putting up signs ofinformation to the community that they are in compliancewith the broad CFA messaging.

I have no further matters, Commissioners.CHAIRMAN: I think we will resume after 2 o'clock.<(THE WITNESS WITHDREW)LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.00 PM:DR LYON: Commissioners, I have nothing for this witness but

there is a matter I will seek to clarify after thiswitness finishes his evidence.

MR GARNER: If the Commissioners please, I seek leave tocross-examine Mr Armstrong, not in relation to hisevidence today, but his evidence that he gave on16 November.

CHAIRMAN: How long will you be?MR GARNER: Five to 10 minutes.CHAIRMAN: The trouble is you have to recreate the situation in

relation to evidence taken some time ago.MR GARNER: I recognise it is difficult. There is a mitigating

circumstance, sir. I did indicate an intention tocross-examine on the last occasion and turned up on theday to do so. At lunchtime I spoke with counsel assistingwho indicating Mr Armstrong wasn't available that day andwouldn't be called. On that basis I left the Commissionand then found out that he became available subsequentlyand was called.

CHAIRMAN: The trouble is we have management issues . Is it amatter that could be dealt with by just briefly inwriting, can it be taken up by the State and dealt with?It sounds as if it is one of those matters that has beenraised by you that is really important from your client'spoint of view but meaningless in the long-term view, sofar as the Commission.

MR GARNER: Possibly so.CHAIRMAN: I know you find that assessment difficult.

I suggest put it in writing. If there is a problem thatarises in relation to it that necessitates him to be

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called back - unless you can do it in less than fiveminutes, in which case it is well worthwhile.

MR GARNER: I can't guarantee less than five minutes, sir.CHAIRMAN: Well, put it in writing.MR GARNER: If the Commission pleases.<CROSS-EXAMINED BY MS FOLEY:Mr Armstrong, your evidence is that 52 sites have been assessed

as compliant in the Yarra Ranges shire?---As of11 December there has been a total of 94 proposedlocations within the Shire of Yarra Ranges requested to beassessed.

And 52 have been assessed as compliant?---Currently within thetownship protection plan area we have 21 compliant NSPswith the radiant heat criteria and outside of the townshipprotection plan area we have 23 compliant locations.

The fact that they have been found to be compliant in relationto the 20 in the Dandenong Ranges area was communicated tothe council on 27 October?---That was from the initialsubmitted list, that's correct.

I take it you have read Ms Gasking's witnessstatement?---I have.

Are you aware of the allegation she makes in relation to theOlinda Community Centre and the fact that that's beenfound to be noncompliant?---I'm aware of the writing ofMs Gasking within the statement.

Are you aware of the reasons why that centre was found to benoncompliant with the guideline?---Yes, I am aware of whythat location, after being assessed within the criteriaguidelines, was assessed as noncompliant.

What was that reason?---The reason was the distance and thehazard presented by the vegetation within that distance.

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Is it the case that there is a mountain ash forest within50 metres of that site?---My understanding is it is aboutat the 50 metre mark from the site.

Notwithstanding the fact that the Olinda Community Centre hasbeen found to be noncompliant, is it the case that twosites in Olinda were found to be compliant? If I can getyou to look at annexure 2 to your statement. I understandthat the Olinda main street shopping strip and the Olindarear of the shops were found to becompliant?---I understand that to be correct.

If I can just ask you about the sign that you were shownearlier. Have you made inquiries as to how long that signhas been up?---I've received advice and it is myunderstanding that that sign has been up for at least twoyears.

What's your view in relation to the content of that sign?---Myview of the content of the sign is it would containinformation relevant to the fire safety messages of twoyears ago and that's reflected within the signage.

And on that basis it should be reviewed?---Yes, absolutely.Thank you.<RE-EXAMINED BY MR RUSH:The information and I understand the evidence from the next

witness will be that the sign was not there lastyear?---I'm not aware of that.

I have no other matters, Commissioners. May Mr Armstrong beexcused?

CHAIRMAN: Thank you, Mr Armstrong. There may a matterinvolving something that you said on a previous occasionthat we might have to bring you back for, but we will sortthat out at a later stage. Sorry, Dr Lyon.

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DR LYON: No, I don't want to ask him questions. I am justgetting ready to clarify the point that I said I was goingto clarify.

CHAIRMAN: Yes. Thank you, Mr Armstrong.<(THE WITNESS WITHDREW)DR LYON: I'm sorry to do this, but I just want to take up the

issue that you raised before, Commissioner McLeod, aboutthe obligation on councils to identify and designate.Under subsection (7) and (8) of section 50G, so page 8 ofthat legislation, you will see at subsection (7) theobligation to identify and designate is not an absoluteobligation, it is a conditional one. So if any of thethree subsections are not satisfied, that is there isnowhere certified, the council is satisfied on reasonablegrounds that it is not appropriate to designate the placeas a neighbourhood safer place or if the land occupier onnon-council land does not consent, then there is noabsolute obligation to designate an NSP, and then you havesubsection (8) which says that before 1 July 2010 amunicipal council complies with the obligation, that is toidentify and designate a place as an NSP, "if it uses itsbest endeavours to do so". So there is a best endeavoursclause and then there are the three other clauses whichqualify the obligation to identify.

COMMISSIONER McLEOD: Yes. I think what comes out of that forme is that the statute imposes an obligation on thecouncil to address the issue of whether or not there aresuitable localities under its jurisdiction such as wouldwarrant declaring them as neighbourhood safer places.

DR LYON: Yes.COMMISSIONER McLEOD: But if in the event, through the

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processes they go through, they fail to identify what theyconsider to be a suitable place, they have met theirobligation under the statute.

DR LYON: Yes, that's correct.COMMISSIONER McLEOD: But in that sense there is a mandatory

obligation on them to address the issue.DR LYON: They must address the issue; that's correct.COMMISSIONER McLEOD: Thank you.MR RUSH: I call Ms Janice Gasking.<JANICE IRENE GASKING, affirmed and examined:MR RUSH: Ms Gasking, is your full name Janice Irene

Gasking?---Yes.And you live in Olinda?---Correct.With the assistance of lawyers of the Royal Commission, there

is a statement prepared which contains the substance ofthe evidence that you wish to give to the Royal Commissiontoday?---That's correct.

Are the contents true and correct?---Yes, they are.I tender the statement of Mrs Gasking.#EXHIBIT 618 - Witness statement of Janice Irene Gasking

(WIT.128.001.0001).MR RUSH: There are just some key matters in the statement

I wish to go to, Mrs Gasking. Firstly, you indicate youhave lived in that area for 20 years. You and yourhusband initially were involved in construction and yousay you've designed and built 50 or 60 houses and then youwent into in effect what we might understand to be bed andbreakfast-like accommodation for some time?---Correct.

Over that period of time you have had a keen interest in anumber of groups that have been, I'm going to ask youspecifically, concerned about bushfire in the area?---Yes,

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I have.You make reference to a couple of them. In paragraph 5, the

Dandenong Ranges Community Bushfire Group. What does thatgroup do?---They're primarily promoting bushfire safetywithin the Dandenongs, they're lobbying, they're engagingwith community and seeking community's concerns.

Is it across the Dandenongs that that group is doing itswork?---Yes. They have three subgroups, really, one atOlinda, one at Emerald and one at Clematis.

You also refer to the Olinda Fire and Emergency Assembly AreaAssociation. Can you tell us something about thatgroup?---That group was formed back in March immediatelyafter the fires of this year with a view tore-establishing some level of refuge or place of safetyfor the community of Olinda.

In your area is there any - I might ask you to give just aquick pen picture of the area - but is there anything ofthe nature of a safer place that has been designated orarranged in the Olinda area?---There is a community hallwhich is owned by the local shire which was a formallydesignated refuge until a few years ago, and the shire dida lot of equipping of it to make it safer, as safe as theycould, I guess. A number of years ago the communityraised money to put in a swimming pool as a water sourceto specifically protect that building, but it wasdecommissioned a few years ago, four or five years ago.

What was done to that building in an effort by the shire? Youhave mentioned the swimming pool. What else was done tothat building in an effort to in some ways provide anelement of protection for those that might seek shelter init?---It has heavy duty shutters on a number of the

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windows. It has a complete roof sprinkler system. Theshire has just recently in this last six months put in twolarge water tanks as well as a swimming pool. It has apump which operates the sprinkler system and that drawswater from the swimming pool.

Has it been used over the years by residents in the area as aform of refuge from fire?---Yes, it has.

Could you just briefly tell the Commissioners how that'soperated on any particular day?---Well, there are a coupleof people, a very small number of people in our community,who, when there is a total fire ban day, actually go andunlock that building, even though it is no longer arefuge, because the community has an understanding that itis a place to go as a place of greater safety, so somepeople go and unlock it and keep it unlocked all day sothere is a place for people to go to.

The committee that you referred to, are they people that belongto that committee?---No, they're not.

You mention an ex-CFA captain as a person who from time to timehas done that?---Yes, that's correct.

Have you yourself used it on days where you have considered itnecessary or has it just been available for use?---It hasjust been available. I haven't personally used it.

It may be said that an aerial photograph of that hall indicatesit is located, despite the pool and the tanks, in an areathat carries with it what previous witnesses may havedescribed as very heavy vegetation, treed areas and thelike?---That is correct, but the area adjacent to it wasburnt in 1962. I don't know what year the swimming poolwas built and I don't know when it was first nominated asa refuge, but the forest is across a road, it is on DSE

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land and it has of course, as forests do, it has grownuntil it has now got to a size that compromises the levelof safety of the building.

You refer to your organisation concerning the hall having madecontact with DSE in an effort to move DSE to cool burns orthe like in the immediate area of the hall. What was theresponse as reported back to the committee?---The responsewas until and unless it was authorised by the shire forthe building to be a neighbourhood safer place, that theDSE would not be in a position to do anything about thelevel of vegetation.

Was the hall nominated by your group as a neighbourhood saferplace to the local council?---Yes. Progressively throughthe year we have been in contact with our local councilrequesting them to, if not approve it, at least give usthe in principle right to make the premises safer thanwhat it was and then we did formally request that it beapproved by the CFA when the process was made available tous.

Has the building been assessed by the CFA?---Yes, it has beenassessed on at least two occasions that I'm aware of.

Have you been informed of the results?---Yes. It has beenpublished that it has been refused, and I have also had adiscussion on site with a group of CFA people who told mealso that it had been refused.

Have your members tried to in any way make representationconcerning the sort of guidelines that should be put inplace for a hall that has roof sprinklers, that has waterand that has a swimming pool as to perhaps a variation inrelation to those guidelines?---Yes, we have. We haveasked for information from the assessment of what would

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have to be done for the building to become compliant andwe have been told that the process that the CFA gothrough, that their qualification process does not includean opportunity to list out what is necessary forcompliance. It's not part of their role.

Is there a neighbourhood safer place that has been passed orcriteria met as far as you are aware in your immediatearea?---No. My understanding is that on the ridge of theDandenong Ranges, which has around 15,000 population,there is no place that presently meets the NSP criteria.

On a day of severe bushfire or if a bushfire threatens, what doyou intend to do as far as the Olinda hall isconcerned?---Me, personally, is nothing. I have nopermission to do anything. The group that I belong to,the committee, have no authority to do anything, so wedon't plan to do anything about that hall.

In the past you have mentioned that it would be opened up on aday of total fire ban. Has that permission been grantedor denied?---I don't know what permission the people whoopened it had, but I do understand that a number of peopleat the local council were aware that it was opened. But,given the process of it being refused as a neighbourhoodsafer place, it is my understanding that it is unlikelythat anyone would now open it.

You raise this issue of that hall in the context at paragraph28 and afterwards in relation to relocation. You indicatethere that you've done your own calculations and alsospoken to police and CFA personnel about the difficultiesthat you foresee if people are suddenly in cars trying toget out of the area that we're talking about. Could youenlarge on that?---Yes. Fires in the Dandenongs, as

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I guess anywhere, start on days that are not necessarilyeven a total fire ban day and then you go right throughthe whole spectrum of danger through to a catastrophicday. Even if as a resident we made a decision that on aparticular level of day we would relocate, the logisticsof it are that we don't have the road structure to enablethe population of the ridge to actually get off the ridgein any kind of timeframe that makes sense. We have thevery real risk of people trying to responsibly relocateand finding themselves stuck on mountain roads in thebush, in their cars, which is just absolutelyinappropriate. It takes hours for all those cars to leavethe mountain. If it's a catastrophic day, people willleave - some people will go the night before, people willgo early in the morning. That's one situation. But if itis something a little less than a catastrophic day, thenpeople are going to presumably start leaving in themorning and we are going to end up with serious trafficissues.

You also make reference to attending by invitation a meeting atthe Montrose Community Centre concerning townshipprotection plans. You indicate at paragraph 40 that thatwas addressed by various spokespersons who indicated theprocess was 98 per cent complete and, as I understand yourstatement, there were a number of issues raised but whatyou are indicating is at the meeting there was really adirection that didn't take up the interests of what youand other people wanted taken up?---Yes, that's correct.The township protection plan we understood and hoped andread in the brief for it that part of its role was toinform community. We as a community actually don't have

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anywhere to go to discuss or consult to what might be aportfolio of options, given the difficulty in relocation,given the logistics, given the geography, the demographicof our area, the factors that are very common to us, it'swhere we live, it's our community. We acknowledge it isdifficult to get off the mountain, we acknowledge it isdifficult to have safe places on the mountain, that itmight be difficult to defend our houses, but what are theother options that we have? We went to the townshipprotection plan meeting hoping at least some of thoseissues would be touched on or addressed. Each of theissues that was raised at that meeting, we were told itbelonged to someone else, the problem was someone else's.The road issue was the police's problem, something elsewas the shire's problem. So the meeting - we didn't comeaway from that meeting informed at all.

You particularly have raised in your evidence and in yourstatement the position with exit roads. You indicate thatthat was taken up by CFA who said it was a police matter.You phoned the police who informed you it was a CFAmatter. What is the position with exit roads on thetownship protection plan?---To my knowledge, they are noteven addressed on it. There are maps but they areincredibly difficult to follow and the maps don't tell usanything that a Melway doesn't tell us. We already knowwhere the roads are in our area, but each of our roadsthat comes off the Dandenong Ranges - and we are talkinghere about 15,000 population, we are not talking aboutjust a couple of villages - those roads, one fire and theroad has to be blocked for emergency access. So, it isnot just a matter of us applying common sense to it or

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looking at a map and looking at where the roads go to.That's information we already know. What we need is tolook at it with professionals, people with skill andunderstanding and expertise, acknowledge that there is aproblem in relocation and then discussing or talkingthrough or addressing what options there might be as analternative. When we talk about exit roads, which way dowe go off, what do the police want us to do or what do theCFA want us to do? None of them are really engaging withus. There is no engagement at any level from ourperspective as residents.

You indicate that at that meeting at Montrose there were fourCFA personnel and these issues were raised, and atparagraph 43 you indicate that it was repeated that youmake your own fire plans. From your perspective and thosewhom you associate with on your committees, what do youunderstand by a fire plan and any difficulties that areassociated if you can't work out that sort of strategy,for example, in relation to exit roads?---It looks likeI'm the one with the phone that's ringing. It will stop.I think perhaps I'd better ask you to repeat the question,sorry.

You indicate that at the meeting you attended these issues wereraised concerning the township protection plan and youraised it in the sense of exit roads and people wereinformed continually, you say, to use their own bushfireprotection plans. What I was asking you is, in makingthose, is it possible to make those plans from yourperspective if you are not aware of those sorts of matterssuch as exit roads, such as the potential neighbourhoodsafer place, that type of thing?---No, it is almost

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impossible to make a plan. We have a plan of leavingearly, but we also have the experience of understandingthat sometimes fires come and you can't leave, leave earlywill fail. Leave early is great, but one tree fall andyou actually can't leave. So developing a plan that saysleave early and that fails, it is very difficult to comeup with a plan B or C or D because we don't know whatthose things might look like.

You in your final comments express frustration in relation tothe neighbourhood safer places process and thedifficulties that you have had with it. You refer to yourlocal CFA fireguard facilitator telling you that she andmany of her colleagues believe it would be better forpeople to have a safer alternative rather thanpredesignating it. What did you understand by that?---Myunderstanding of that is that if a neighbourhood saferplace is formally designated, the liability, theresponsibility for that place will sit somewhere. I don'tknow with whom; local government, perhaps, or CFA.Whereas, if people just randomly select a place, thenthere is presumably - I don't know where liability sits,but it is not nearly so clear-cut and it is a much morecomfortable thing for us to be out there in the heat ofthe fire finding or trying to find shelter in a place thatmay or may not be safe and is certainly not prepared.

The experience that you have described, and you have been inthe hearing room throughout the course of the day, haveyou any view as to whether one agency should beresponsible for neighbourhood safer places rather than acombination, as we have heard in evidence today, from yourown experiences?---It appears at the moment that many

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agencies are working very, very hard on the issue ofplaces of safety, whatever they're called, but theresponsibility for actually making sure we haveneighbourhood safer places does not appear to sit withanyone. If at the end of the day places can't be found,then every authority quite reasonably will be able to say,"We have done our part. We have done what we're supposedto do and the answer is no, we cannot approve it." Theywill have done what they believe they should do, but forus who are sitting out there in vulnerable towns, we wouldlike one authority that we can go to whose job it is tohelp us to find a place, if necessary to prepare a placethat we can equip and make safer, as safe as we possiblycan, before a fire comes. It is our lives, it is oursafety, and people that we don't know, who may not evenhave been to where we live, are telling us that you can'thave a formal place because it's not safe enough and weknow that the alternative may very well be for us to besitting in our car and that isn't safe enough for us. So,we would like one authority to be dealing with. We wouldlike someone accountable, someone responsible.

Just finally, attached to your statement is the photographthat's been shown this morning at 0009. It is aphotograph that you took, I think, Mrs Gasking?---Myhusband took the photo.

When was it taken?---It was taken perhaps two or three monthsago.

To the best of your recollection, are you able to say how longthat sign has been - that's outside the Olinda hall, isit?---Yes. There are actually several signs with the samewording on them around Olinda.

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Do you know how long that one's been up for?---No, I don't, butthis sign has actually got a perspex cover on it and thereappears to have been another sign the same underneath it.And, no, the answer to the question is I don't know howlong it has been there, no.

Thank you very much. I have no other matters for Mrs Gasking.COMMISSIONER PASCOE: Ms Gasking, I'm interested if there isn't

action from authorities, do the community intend to takeany action of their own?---It's become increasinglydifficult to see what action we actually can take. Thisparticular building that we're talking about is merely ourbest option because it's been prepared by the shire andbecause it has been a refuge. It belongs to the shire andthat enormously limits us. We would like to prepare it.We have a very active committee, who with teams - we wouldlike to get some more equipment for it. We're not askingfor money. We are just asking for the authority toprepare this building and that authority is withheld, sowe can do absolutely nothing. So, we are just hampered.

If there is a fire in the forthcoming fire season, what wouldyou be doing? I note you have a fire bunker, so you mightbe an atypical case. What do you think most residentswould be doing in Olinda?---I no longer have a firebunker. It was on a previous property that we owned. Weplan to leave early, but we recognise that we may not beable to. What do other people plan to do? I think peopleare really scrambling to find solutions. People believethey will be able to leave early and for most people theyhaven't actually come to terms with the math on the numberof people that have to leave and the road issues, so it'sreally quite a jumble at the moment.

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COMMISSIONER McLEOD: Given your personal experience in livingin the Dandenongs, with concerns that we read aboutclimate change and the likelihood that hotter, drierweather is going to become an increasing feature of ourclimate in the future and the impact that that may have inthe onset of serious bushfires more frequently, does thatencourage you to think how we should plan a city, such asMelbourne which continues to grow, for the future, suchthat perhaps hazards or increased risks that may beattendant in the future that didn't exist in the past needto be addressed before they actually occur rather thanafter they have occurred, and how would you go aboutthat?---My personal feeling about this over this year,giving it a great deal of thought, has been that in thesefringe areas where we have city and bush combining, is theneed to recognise human habitat as well as wildlifehabitat and that people live there and I'm not sure thatwe can change that; the people are going to continue tolive in these areas. But I think having a portfolio ofoptions to reduce the risk of loss of life that might wellinclude quite routinely having a bunker on a property thatis in a vulnerable area, having places of refuge or safetyin communities, recognising these things happen every 10or 20 or 30 years so that we're not just ignoring them andwaiting until they happen and then throwing up our handsin horror and saying, "Oh, there's a fire," because therewill be fire, but to be prepared with a set ofalternatives or a set of things that reduce the risk tohuman life, which in the end is the thing that is of mostconcern.

Would you see any sense in future policies that seek to limit

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the continued growth of populations seeking to live inhigher risk environments?---When the Dandenongs wasoccupied it wasn't a high risk environment. There was nobush. The bush has grown. So an area that isn't highrisk can become high risk because of the management of thevegetation.

It may be harder to deal with the past legacy, but for thefuture, with new areas that may be proposed fordevelopment, do you see any argument that might suggestthat there should be restraint in developing areas thatmay potentially become serious bushfire risks based onyour own experience? I think you mentioned that theforest had grown substantially over time which has addedto the risk from the time when development firstoccurred?---There was a time when the vegetation aroundbuilt-up areas was controlled. It was recognised thatfirebreaks and appropriate vegetation, less flammablevegetation, was located around townships. That is nolonger maintained in the same way where I live, so therehas been a change, I don't know a change of policy, achange of practice certainly. So that we now live, inthat area and in other places I'm familiar with, we livewithin the forest rather than adjacent to the forest andthere is a difference. So, again I come back to humanhabitat, recognising that our needs are a little differentto that of wildlife habitat and perhaps we have to haveguidelines that allow people to live in safety by themanagement of vegetation; not the removal of allvegetation, but the management of it to keep people assafe as possible.

<CROSS-EXAMINED BY DR LYON:

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Mrs Gasking, my name is Greg Lyon and I represent the MAV andthe local councils. I just want to show you an overheadmap of the area that graphically depicts, I suggest, thevery problems you have been talking about in relation tothis. It is just being brought up in the overheadprojector. Do you see there the location of the OlindaNeighbourhood House?---Yes, I do.

The area that you were describing, I think you said across theroad from the house on the right-hand side as we look atthat map, that's the DSE land that you were talking about,is it?---Correct.

Is that the RJ Hamer Arboretum?---I'm not sure. Myunderstanding is the arboretum is further along that road,more to the east.

I'm asking, not suggesting?---I'm not sure, I'm sorry.Do you agree that the map gives you some clear idea of

the forest around the neighbourhood house but also in thewhole Olinda area that you've been describing?---Yes,I do.

In fact, in that respect, if you look down the bottomright-hand corner of the map, you will see there is ascale showing 500 metres. If you apply that over thecourse of that map, which is probably a two and a half,three kilometre area, you would be hard pressed in thatwhole area to find somewhere that was clear within thesort of requirements that you have been talking aboutunder the CFA guidelines?---That's correct.

Can I also ask you to note the roads that you have been talkingabout, and you can see the Mount Dandenong Tourist Road tothe left of the Olinda Neighbourhood House; do you seethat there?---Yes, I do.

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Then there is the Olinda-Monbulk Road running just immediatelyto the left of the neighbourhood house?---Yes, I havethat.

I seek to tender that map, sir.CHAIRMAN: That can be treated as part of the exhibit which

contains the statement.DR LYON: Mr Chairman, if I could be allowed this indulgence.

Rather than putting questions to the witness, if I canpass on the information that, as I understand it, pursuantto a resolution of council and it is referred to in thestatement of Mr Armstrong at paragraph 43, he says, "TheShire of Yarra Ranges is also pursuing one noncompliantsite (Olinda Neighbourhood House) and I understand that afurther assessment of the site will take place with CFAand Shire of Yarra Ranges representatives on Monday14 December 2009." I will clarify that in relation to theevidence of the next witness, Mrs Dunn, but I wanted thewitness to be made aware of the fact that there arefurther negotiations being undertaken. They are thematters.

<CROSS-EXAMINED BY MS FOLEY:Mrs Gasking, my name is Marita Foley and I'm appearing for the

State. I'm going to ask you some questions. Mrs Gasking,do you agree that it is important that neighbourhood saferplaces are properly assessed to ensure they provide anappropriate level of safety? Perhaps if I can assist.You shouldn't just designate any old place; there shouldbe some level of safety assessment undertaken to determinewhether there is an appropriate level of safety?---Yes,I agree with that. We will find places of safety whetherthey are designated or not, but, yes.

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The assessment should be undertaken by people that are properlyand suitably qualified?---Yes.

Would you agree that the CFA is best placed to undertake theassessment of radiant heat exposure of a potentialneighbourhood safer place site?---Yes.

Would you agree that it is the worst possible thing that theCFA could do to say, "Here is a safer place" and it is notactually safer? It would actually be quite irresponsibleof the CFA to do such a thing?---Yes.

In relation to the Olinda Neighbourhood House, I think yourefer to the vegetation there as compromising the safetyof the building. So, on that basis you would agree thatit is inappropriate that that site be a neighbourhoodsafer place at this point in time?---Until now it has beenthe neighbourhood safer place.

It hasn't been a neighbourhood safer place, I think it hasprobably been an informal place of refuge, but we areprobably splitting hairs. But would you agree that thatassessment having been undertaken, a radiant heatassessment having been undertaken by suitably qualifiedCFA people, that it would be irresponsible to promote thatplace as a neighbourhood safer place to thecommunity?---I can only agree with that if I said that itleaves us with sitting on the road as our alternative andI don't think that's responsible either.

The alternative to sitting on the road - it is not analternative to sit on the road. If there is noneighbourhood safer place designated within a community,the best advice to community members who do not have aproperty which they can defend is to leave early, is itnot?---That is my understanding of the policy, yes.

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At the public meeting held in Olinda it was indicated to youthat people were reluctant to use an open space area as aplace of last resort. However, from a safety perspectivean open space area which meets the radiant heat criteriawould be preferable as a place of a last resort to abuilding that didn't meet the radiant heat criteria,wouldn't it?---It would be, but there are none in theDandenong Ranges on the ridge.

There have been a number that have been assessed as compliantwith the guideline. I won't take you to the evidence, buthave you been here this morning when Mr Armstrong andMr Hayes have indicated there have been quite a number ofplaces which have complied with the guideline?---Thoseplaces, some of the places that they were talking aboutare actually in the middle of this drawing that I've gotthere and completely surrounded by bush and that's out inthe open, so - - -

And they have met the guideline?---They may have, which puts inquestion the guideline, yes.

Do you agree that a neighbourhood safer place is not analternative to planning to leave early?---Absolutely. Itis a place of last resort.

It shouldn't be the first, second or third option; it should bethe last resort?---Certainly.

Just in relation to the early warning system for Sassafras, yousay in your statement that you are not sure why the earlywarning system is not being pursued. I'm instructed bythe OESC that there have in fact been extensivediscussions with your organisation in relation to theearly warning system and the reasons for not pursuing theearly warning system in Sassafras have been made clear to

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your organisation?---It may have been. The reason I saidI wasn't aware was because a group of people were dealingwith the early warning system and I was not one of thosegroup, a subgroup within DRCBG.

But your group has been made aware of the reasons why that isnot being pursued?---Yes, I believe so.

The most significant reason why it is not being pursued isbecause we now have the emergency alert system which wentlive on 1 December?---The emergency alert system does notcover the areas in the Dandenongs where we have lots ofvisitors. It doesn't assist with that at all, whereas theearly warning system that was proposed did.

Sorry, what is your understanding of what the emergency alertsystem does?---It is a telephone based system.

Yes, and it sends texts to mobile phones?---Yes, but to theplace where their account is based, not location.

And to landlines?---Yes, but that doesn't assist any visitorsin the Dandenongs, who will not be stopped from cominginto the Dandenongs on a day, even on a catastrophic day.They are still going to have freedom to come into thearea. Once they are there, there is no ability to warnthem in any way.

There are six sirens in the local brigade district and, asI understand it from instructions I have received, thatthose sirens are audible in the Sassafras community?---No,they're not.

In relation to the issue of relocation, do you agree that thetime required to effect a relocation will depend upon theassumptions made?---I'm not sure I understand thequestion, I'm sorry.

To determine whether the statistics you have come up with are

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correct, you need to look at the assumptions that underliethose statistics, such as whether the entire population ofthe Dandenongs is being evacuated or only the top, thenumber of vehicles, the rate of car ownership, thecapacity of the roads, whether people are attachingcaravans, trailers, that sort of thing?---First of all,the figures - whilst I had done figures early in the year,the figures I have used in my statement are those thatI understand came from VicRoads, so they are not mycalculations, although they are the same as mycalculations.

They are not from discussions that you personally have had withVicRoads; they have been reported to you by someoneelse?---Lex de Man told me VicRoads had come up withthe numbers, but I had already calculated the numbersmyself, which were similar to those. Yes, it does dependon all of those things, but anecdotally every familyI have discussed this with in the Dandenongs talk abouttaking two cars, which might be very irresponsible but itis a reality of community. With 15,000 people on theridge, even if, say, 5,000 people have to leave, or 5,000cars, I should say, it still takes a lot of time.

Given the concerns that you have expressed about the length oftime that it would take to relocate residents, it is allthe more important, isn't it, that if people plan to leaveearly that they leave early?---Yes, of course. But we aslocals, as residents, have a problem with what does leaveearly mean? Does it mean 4 o'clock in the morning or8 o'clock in the morning or 9 o'clock or 10? And if youhave 5,000 cars trying to leave an area, the sums juststart to become unworkable.

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Just in relation to the concept of leaving early, have youfamiliarised yourself with the CFA's publications on theirguidelines about bushfire plans and what it means to leaveearly?---Yes, I have.

So the CFA does indicate to the community what leave earlymeans?---Yes, it does. But what they don't cover is whendo you leave early on a day which is not a total fire banday, and we have lots of fires in the Dandenongs onnon-total fire ban days, and I can't get an answer fromanyone on that question.

Would the answer be perhaps if you don't know, leave as earlyas possible?---Well, do we leave on 1 December and go backin April is kind of the question that the community ask,what we ask one another. Is that what is meant? Can weno longer live in our community because leave early meansbefore fires start? Our main road was blocked two daysago with one house fire with 12 units attending and themain road was blocked. It happens so quickly and it canhappen so easily and that certainly wasn't a total fireban day.

You have been critical of the lack of engagement in relation totownship protection plans. Do you accept that the processis an ongoing one and that these plans are likely to bereviewed and input from the community sought in relationto those?---In my experience there has been no communityinput into the township protection plans or into thecriteria for neighbourhood safer places, so - - -

Sorry, if I could just stop you there. Is that just yourpersonal experience or you have consulted more widely withthe community in Victoria?---No, I'm talking about my ownexperience.

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Okay. You were at a meeting where people were consulted aboutthe township protection plan and you may have somedifficulties about the extent of that consultation, but itdid take place?---It wasn't a consultation. We were beinginformed as to what they were doing. That wasn'tconsultation.

I have no further questions, thank you.COMMISSIONER McLEOD: Could I ask just one final question, if

I may. Could you have a look at Dr Lyon's map of Olinda,which is informative to me in that it depicts a communityliving in an area that is substantially heavy bush. But,notwithstanding that, because of the nature of communitiesand the needs of communities, there are substantial areasnevertheless, albeit in a minority, where there aresubstantial areas of land clearance, in some casesobviously for a golf course, for a sports ground. Thereis a substantial area to the right which is substantiallycleared, the purposes of which are not directly obvious tome. There is the Olinda Neighbourhood House which adjoinsthe golf course. Just from a casual inspection, it wouldseem that with some judicious management of the vegetationsurrounding the Olinda Neighbourhood House, there could bethe potential for that establishment to meet theneighbourhood safer place criteria. Would work of thatkind be acceptable to most of the residents living in thisarea in the knowledge that, if they do, they share yourconcerns about a safe exit when a fire should hit thatarea of the Dandenongs and that part of the trade-offmight be to support some kind of modest clearing ofvegetation to create more acceptable neighbourhood saferplaces?---Yes, I believe there would be community support

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for that, and it has been discussed that replanting couldbe done in some other location to compensate for whatneeded to be removed. But there is nowhere to have thatconversation because it has been knocked back by the CFA,it kind of stops the conversation right there. There isnowhere for us to go to with that process.

It would be more a matter for the council, though, wouldn't it,than the CFA in the first instance?---Yes. The councilwould need to have the desire to create a neighbourhoodsafer place, and then I guess the council and CFA couldthen negotiate to get whatever the CFA's requirements areand then DSE need to become involved because thevegetation is on DSE land.

Thank you.<RE-EXAMINED BY MR RUSH:While the map is up, the sports ground which is to the left, if

you like, of the Olinda Neighbourhood House, what's thatsports ground?---It's the local footy oval.

Fair enough. I have no further questions of Mrs Gasking. Mayshe be excused?

CHAIRMAN: Yes, you are excused.<(THE WITNESS WITHDREW)MR RUSH: Commissioners, I call Samantha Dunn.<SAMANTHA LOUISE DUNN, affirmed and examined:MR RUSH: Mrs Dunn, could you state your full name again to the

Commission, please?---Certainly. Samantha Louise Dunn.You are a councillor on the council of the Yarra Ranges

shire?---Yes, that's correct. I'm a second termcouncillor with the Shire of Yarra Ranges and residewithin the Dandenong Ranges.

Whereabouts, as far as locality is concerned?---I live in a

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little town called Selby, which is right next to Belgrave.I think Belgrave is well represented on neighbourhood safer

places. Mrs Dunn, have you had an interest inneighbourhood safer places from the perspective of acouncillor in that shire?---I most certainly have. I havefollowed the process fairly closely in the Shire of YarraRanges because it is an issue that directly affects thecommunity that I represent.

Was the shire itself responsible for nominating various placesand localities as neighbourhood safer places?---Yes. Infact we put forward some suggestions for the CFA to assessin that first cut of assessments.

Were there approximately 30 of those?---Look, I know on thetotal list there were 67. Some came from community, somecame from council, some came from brigades. The mix ofthat I'm not sure.

Was there any structure or reasoning to the nature of theplaces that were put forward by the council?---It wouldhave been based on local knowledge around clearance ofvegetation in the main and areas where it's known in thepast that the community may find places they would go toin the case of a fire emergency.

Did it include places such as shopping centres, supermarketsand the like?---Those were included as places to nominatefor assessment.

You may not have specific numbers, but were most knockedback?---No, most weren't knocked back. Many did pass anassessment process by the CFA. However, there were otherissues at play that meant that council did not proceed infurther investigations in nominating them.

Is an issue for council, firstly, main streets or busy

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streets?---That was an issue. We actually referred thoselocations to the Victoria Police and asked their view onthose locations. The police were concerned that we wouldin fact encourage people to main arterial routes throughthe Dandenong Ranges and Belgrave main street is probablya very good example. It is on the Burwood Highway, it isa main thoroughfare through the Dandenongs and it wouldn'tbe a place we would want to encourage large numbers ofpeople to assemble.

In relation to those places that met the initial criteria, howmany have met council approval?---Of that, two have metcouncil approval.

Where are those two?---Morrisons Reserve in Mount Evelyn andthe Monbulk football ground in Monbulk.

So what has happened to the remainder?---Many of those were infact land that was non-council owned land, so there arestill some issues at play around insurance and insurancegaps in relation to those sites. So those sites were putaside until those issues can be resolved and we have onlyproceeded with council owned sites.

So, from the council's point of view, having regard to thelegislation, what are the issues in not following up thoseneighbourhood safer places that may have met criteria thatare not on council land?---We would say they have only metthe first cut of assessments in terms of radiant heat. Interms of the assessment process that council has appliedto it, they don't meet that assessment criteria becausethey are in private ownership because there is anoutstanding issue still in relation to insurance.

So is the position this: there may be a very good potentialneighbourhood safer place on private land, but there is an

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issue in relation to the potential liability that mayarise as a consequence of it being designated aneighbourhood safer place?---Yes, that is quite possible,that there is a privately owned site that in fact would bea well regarded neighbourhood safer place, but until thoseissues are resolved, and of course with consent of ownersand leaseholders and those sorts of things, we just simplycan't proceed down that road.

So from the point of view of your council at least, thelegislation, as I understand your evidence, has not met acriteria where your council is prepared to go forwardmaking recommendations in relation to neighbourhood saferplaces that are not specifically on council land?---Atthis stage, yes, that is correct.

You identify the principal reason for that being, asI understand your evidence, a failure of the legislationto properly cater for indemnity issues in relation tocouncil?---Look, it is probably more a matter of thepolicy that the councils hold, the insurance policy itselfand resolving that issue. I think once that issue hasbeen resolved, and we are working with the MAV aroundthat, we will then look back at those sites, reassess themand speak to the owners of those sites as to theirpotential as neighbourhood safer places.

Then from the council perspective is there any concern that insuch a high risk bushfire area that across the shire thereare only two identified neighbourhood safer places?---Weare in fact working to assess more neighbourhood saferplaces. Those assessments are going on as we speak.Council is trying its utmost to get as many NSPs up as wepossibly can. There are a few different issues at play.

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It is a complex matter. It is not only about the CFAradiant heat assessment; there is actually a whole lot ofdifferent criteria that these places must fit. But we arein the process of identifying more sites, assessing moresites and with the ability to hold a special councilmeeting this year to in fact designate more NSPs.

Is there a consideration at council that it may be felt thatneighbourhood safer places will not be used as places oflast resort?---Yes. That's certainly an indication thatI've got, and I will say that probably as a communitymember and also as a councillor in the Dandenong Rangespart. There is a perception by community that these areplaces of refuge, they are places of safe haven and theyare places where community will be safe. This is not theintent of these places and I actually have grave concernsabout how NSPs are being perceived out there in thecommunity.

Has that perception or view of council been in any way - hasthat hampered the process in relation to the designationof neighbourhood safer places?---No, not at all.

One of the matters in relation to this is that - the two thatare designated were designated last week; is that theposition?---That's correct.

So there has been no process of education at all for thecommunity in relation to neighbourhood safer places at themoment?---Not as yet. Really it is only our local mediaand I actually have some concerns about the initial CFAassessments that have been reported out to community,because that's in fact caused confusion about what is anNSP and what isn't an NSP out there. So, there is a lotof mixed messaging going on at the moment.

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Would it not also, though, in the same area, appreciate thesort of issues that were raised by Mrs Gasking of thegreat difficulties that may be presented to many residentsin your shire who may decide to relocate on the approachof fire, but because of the nature of the roadway and thenature of the geography are going to find themselvespotentially not being able to do so?---Look, that's alwaysan issue that all residents in the Dandenong Ranges face.It is a place that has high fire risk and always has. Inthe 17 years that I've been there that's a risk that meand my family take living there. We plan accordingly forthat and we hope that our community does the same as well.The roads are simply not a safe place to be in the midstof a fire event. They are just simply the wrong place tobe.

On the basis of the CFA material, many of the houses will notbe safe places to be, if we take the 140 metre zone forstructure. To take up, for example, Commissioner McLeod'sproposal to Ms Gasking, what is the council's view as tothe type of vegetation management around a structure suchas the Olinda hall and replacement of those trees inanother area?---Council hasn't considered that matter asyet, so I can't give you a council view on that because ithas not come before council. Council has referred thematter to the CFA to ask for advice of what actions wouldbe required, but that hasn't come back to council as yetfor our consideration.

Having regard to those matters, I think which you agree with,of the potential of people who may with the best will inthe world be monitoring a day of fire and then feelthreatened as a consequence of fire, having great

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difficulty leaving the general area, does that not in yourview create a greater urgency to be identifying those sortof structures that don't guarantee safety but at leastprovide something better than what they are leaving?---Wecertainly do hold that view and that's why we arecontinuing a process of identifying more NSPs up in theDandenong Ranges.

Without trying to pin you down, but trying to nevertheless,I guess, how many neighbourhood safer places do youanticipate in your shire will be tabled as neighbourhoodsafer places by Christmas or into the New Year?---We wouldhope to have at least five places by Christmas, maybe acouple more. It is actually very difficult to predictbecause the shire's assessment is still in train, really,in terms of referring them back to emergency services andgetting their views on them. So, until we really have afully informed view of I guess how these second set ofassessments go, it is hard to say, but we would hope forat least five by Christmas.

Are you aware of the MAV providing any outline or any documentconcerning neighbourhood safer places?---Yes, I am. Theyprovided us with a draft neighbourhood safer places plan.

When was that provided?---That was provided, if my memoryserves me right, 13 November - I'm sorry, I can't recallif that was notice of the requirement for a plan or theactual draft plan existed.

I have no further matters, Commissioners.COMMISSIONER McLEOD: Mrs Dunn, as a member of the council and

given the nature of the jurisdiction of the council,including a beautiful part of the city of Melbourne butone that's got significant potential hazard associated

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with it, in a general sense would you like to make somecomments about the extent to which a council such as yourshas ever present in its mind, if it does, concerns aboutprotection of the environment surrounding the communitywhich it serves such that the policies of the council payvery high regard to creating a safe community in manyrespects where safety can be enhanced by decisions ofcouncil? I don't pretend to suggest that safety of peopleis the only concern of a council. People are complexindividuals and there are all sorts of other values thatcommunities cherish that need to be understood andreflected by council decision making, but it is hard tosay that safety of citizens shouldn't be extremely high onthe agenda and that in an area where, as you havementioned yourself, access and egress from the area isextremely limited and extremely dangerous in situationswhere bushfire is present, such that that would seem to meto impose an even stronger obligation on a council such asyours to be constantly conscious of the need to create assafe as possible community as you can for your citizens.That's my introduction to giving you an opportunity tomake some reflections on those thoughts, if you feelinclined to?---Thank you. Yes, I will. The safety of ourcitizens and the visitors to our shire is paramount andthe Shire of Yarra Ranges does an awful lot around firepreparedness every single year, and even more so thisyear. There are many more activities being undertakenthis year as a response to the Black Saturday bushfires,so we certainly hold that as key in our municipality.I think what we also have to recognise in the Shire ofYarra Ranges is, yes, it is Melbourne's playground and we

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have many, many visitors to our area, and they arevisiting us because of our unique environment. So, it isa fine line and it is a delicate balance betweenconserving what we have, which is what makes it a specialplace, and keeping our community safe. But there are anumber of activities that we undertake in relation to firepreparedness to help assist our communities be safer.

COMMISSIONER PASCOE: Could I just elaborate on that a littlebit. In terms of the discussion that may have occurred atcouncil in relation to its responsibility for the safetyof the residents, we don't often have a chance to haveeither councillors or municipal officers speak to theCommission. Is there either a written policy of councilin relation to community safety or is it a matter that'sbeen discussed and debated at council?---Yes, council hasa municipal fire prevention plan. We have a number ofdifferent strategies in place that underpin that documentin relation to the activities we take out because a lot ofit is around education, a lot of it is actually aroundroad slashing and those sort of things, clearing roadsidereserves. Another side of that is around inspection ofproperties for fire safety and the issue of fireprevention notices, in fact enacting works on private landwhere landowners fail to clear their own property. Sothere is a whole raft of different actions that areactually outlined in a plan of the council.

Given council has effectively inherited a local area whoseplanning regulations have enabled people to build in aheavily forested area and, as you rightly said, a highbushfire risk area, but also an area of great attractionto tourists from locally and further afield which

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increases, I think, the risks to individuals but also theexposure of council, in your discussions the issue of thebalance of risk in relation to designating an imperfectneighbourhood safer place for the forthcoming fire seasonas distinct to having no neighbourhood safer place for thefire season, has that been put on the table?---We haven'tdiscussed that because we have basically focused on thatinitial first cut of CFA assessment and if it doesn't meetthat, it is not on the table for discussion. That'sreally where we've sat with that at the moment. Wehaven't considered it. If it doesn't meet that firstassessment, we just simply haven't gone there.

Looking beyond this fire season, and I think we have made itvery clear of the concerns of the Commission aboutproviding for the coming fire season, what do you see inthe medium to long-term planning for the safety ofresidents in the Dandenong area?---There are probably acouple of sides to that. One is I certainly agree of theneed to have something like a neighbourhood safer place.I have great concerns about the name because it indicatesto community members that it is in fact a safe place.Council has a view that they should be places of lastresort and be called for what they are so there is nodoubt as to what they are.

COMMISSIONER McLEOD: I don't want to interrupt, but given yourown comments that being on the road is the last place youought to be if there is a bushfire, I would have thoughtit is fairly natural for a lot of people to look for localplaces that are safer than their own homes, so I'm reallywanting to inject that into your consideration andresponse to the question?---I think that's the difficulty

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with neighbourhood safer places. They certainly have arole to play, but I think their role is probably beingoverstated in people's fire plans and people are thinkingthat they will take the risk. As recently as last weekI went to my local brigade for the normal communitybushfire update that goes on and it was apparent to methat I am much safer in my own home than out on the roadtrying to find an NSP. So, it is not to say I don't thinkthey should exist, because I think they do, andparticularly for visitors to the Dandenong Ranges, butthere is an inherent mixed messages with NSPs becausewe're saying, 'Here is a place you can go where you willbe safer," but given there are no guarantees of safety andthere is no guarantees that the CFA will be there with atanker spraying you, I just have some grave concerns aboutthem, too. So it is in fact a very difficult position tobe in.

COMMISSIONER PASCOE: Just to press it a bit further then,because I asked you to think about the medium tolong-term, do you see the Dandenongs as an area that oughtbe looking in the medium to long-term to designatedrefuges that are not necessarily newly built but purposefitted perhaps and protected by the CFA?---I think if weare actually genuine about protecting life we must havepurpose-built facilities. I think that that's thelonger-term solution to safety in the Dandenongs becausethat actually offers a level of protection that doesn'texist at the moment. So I think that is a far betterlonger term thing, but I just hope that local governmentdoesn't have to bear the cost of that because that wouldbe immense for Yarra Ranges.

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<CROSS-EXAMINED BY MS FOLEY:I'm acting for the State; Marita Foley. You have just

expressed some concern about neighbourhood safer placesbeing referred to as neighbourhood safer places and notplaces of last resort. Have you seen the approved signagefor neighbourhood safer places?---No, I have yet to. AsI understand, it only came out Friday night and I haven'thad a chance yet.

It was released on 9 December by the Emergency ServicesCommissioner, if it could be brought up on the screen,(RESP.3001.011.0263). It is also an annexure toMr Armstrong's statement. You will see on the signage itrefers to a place of last resort quite expressly. Doesthat alleviate your concerns somewhat?---No, it does not,because the words "neighbourhood safer place" still existon the signage.

Are you aware that the CFA's website consistently refers toneighbourhood safer places as places of lastresort?---Yes, I am aware of that. But also the communitythat does not seem to be getting out to community.

<CROSS-EXAMINED BY DR LYON:Unfortunately, Commissioner, I only have three copies of these

documents. I'm not going to go through them in anydetail, but I just want to give you some idea of theprocess the Shire of Yarra Ranges has undertaken to assessthe neighbourhood safer places. So would it be convenientif I only hand two copies to the Commissioners - as I say,I'm not going through them in any detail - and one copy tothe witness? Mrs Dunn, do you have there a bundle of fourdocuments?---Yes, I do.

You see the first one to be a report to council for noting, and

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it summarises various aspects of the assessment ofneighbourhood safer places in the Yarra Rangesarea?---(Witness nods.)

Could you also turn, please, to page 4 of that document, eventhough it is unnumbered. Do you see there a subheading"Olinda community house"?---Yes, I do.

There does it say, "The shire has requested of the CFAinformation pertaining to the radiant heat and fire ratingassessment of the Olinda community house, specificallywhat works might be required to make the site pass theassessment criteria. Concerns have also been raised bythe lessee of the Olinda community house regarding theircontents insurance, controlled access and security shouldthe site be designated as an NSP." In any event, does itsay there, and do you know this to be the case, that thecouncil has not let go of the Olinda community house as apotential NSP and there was to be a meeting about thatwith the CFA some time soon to determine whether there canbe modifications made that will enable it to be passed orrecommended as an NSP?---Yes, as I understand it, there isa meeting to take place on site with the Shire of YarraRanges and the CFA. I'm yet to actually get any detail onthat because our emergency services personnel are actuallyin a planning exercise around our MECC today. So I can'tconfirm whether that's happened or not happened as yet.

Is the next document the Shire of Yarra Ranges neighbourhoodsafer places plan, and is that the plan adopted by councillargely from the MAV template that was provided toyou?---Yes, it was adopted last week.

But with suitable modifications to fit your owncommunity?---Yes, certainly we took the MAV template as a

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starting point and then really contextualised it to YarraRanges.

Is the next document a 25-odd page plan of the assessment ofthe Morrison Reserve Mount Evelyn NSP?---Yes, that'scorrect.

And is the final document the assessment of the Monbulk Reserveat Monbulk NSP?---Yes, that's right.

Commissioners, I seek to tender that as a bundle.#EXHIBIT 619 - Report to council for noting

(TEN.165.001.0001). Neighbourhood safer place (Place oflast resort - site assessment Morrison Reserve - MountEvelyn) (TEN.166.001.0001). Shire of Yarra Rangesneighbour safer places plan - places of last resort duringa bushfire (TEN.167.001.0001). Delburn fire - allmentions on 774 ABC Radio broadcast on Saturday 7 February2009 - 7 am to midnight (TEN.162.001.0001).

DR LYON: I just want to ask you a couple of questions aboutthe assessment process. Was it the case that you receivednotification from CFA of some compliant sites inOctober 2009, around 23 October, 20 to 23 October, butthen you received notification of a second tranche ofcompliant properties in late November?---Yes, that'scorrect. I am not sure of the dates, but I know it waslate October and there is a second tranche going on as wespeak.

What council is undertaking at the moment is an assessment ofpotential suitable sites relating to those ongoingassessments made by the CFA through November?---Yes,that's correct. There are a number of sites we areassessing against our criteria.

Is it the case that the Yarra Ranges Council is on standby in

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effect to designate any site that meets the criteria ofcouncil?---Yes, we are prepared to have a special councilmeeting on 22 December if need be.

As far as private property goes, is it the case that at themoment nothing is actually off the agenda; it is a case ofworking through the consent issues and you say theinsurance issues?---Yes, that's correct. They certainlyhaven't been discounted completely out of mind, but wejust have to work through those issues before we can givethem any due consideration.

Finally, the sign that was shown to CFA witnesses and producedby Mrs Gasking today, are you able to make anyobservations or comments on that sign?---Yes. Once thatsign was brought to my attention, which was in fact todayat the hearing, I contacted shire personnel about thatsignage because I am concerned if it does in fact haveinformation that is not in keeping with what is currentstandard the shire has undertaken to identify all thatsignage within the shire and ensure that any futuresignage is compliant. So, if need be, we will be removingthat signage and putting up compliant signage.

I'm just reminded by my instructor: the library, is it theBelgrave library?---Yes, that's correct.

That is in fact council-occupied property. Why was that deemednoncompliant by the council?---The reason that that wasnoncompliant is it doesn't have access 24 hours a day,seven days a week. So it was deemed that would not beappropriate as a neighbourhood safer place.

<RE-EXAMINED BY MR RUSH:Mrs Dunn, the Morrison's Reserve, I'm just looking at the

document that was referred to, is next to Pembroke

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Secondary College?---That's correct.But the issues that you have raised, whilst the Morrison's

Reserve was passed, the oval next door was not part of theneighbourhood safer place because it's on privateland?---That's correct. The oval is Department ofEducation land.

Mr Armstrong in his statement indicated that the Morrison'sReserve is to be in effect knocked back because it is astaging area for CFA?---That matter actually came up fordiscussion out on site assessment, and it was deemed atthat time by personnel attending that it was in fact asecondary marshalling area for the CFA and they did notsee issues with having a dual capacity as a secondarymarshalling area and an NSP.

I have no further matters, Commissioners. May Mrs Dunn beexcused?

CHAIRMAN: Yes. Thank you, Mrs Dunn. You are excused.<(THE WITNESS WITHDREW)MS DOYLE: The final witness today is Mr Robert Spence.<ROBERT NORMAN SPENCE, recalled:MS DOYLE: Mr Spence, your full name is Robert Norman

Spence?---It is.You are chief executive officer of the Municipal Association of

Victoria and you have held that position since1997?---That's correct.

You have previously given evidence to this Commission andprovided a statement in that context. In that capacityyou previously appeared here and gave evidence about theposition of the MAV and its constituent councils inrelation to the then debate concerning refuges?---That'scorrect.

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You have worked in the local government sector since1992?---Correct.

And, as I have just noted, held your current position with theMAV, the representative body for councils, since1997?---Yes.

You attend today to give evidence in relation to perhapsincidentally refuges but principally neighbourhood saferplaces?---Yes.

If I can take you back in time for a moment, Mr Spence, whenyou appeared on the last occasion you, through yourevidence and through submissions later put by your legalrepresentatives, indicated that the MAV regarded there asbeing significant problems with community refuges beingused as part of our state's response tobushfires?---That's correct.

In that context you in your evidence and Dr Lyon in the MAVsubmissions emphasised a number of possible problems withwhat we were then discussing, refuges, and those problemswere said to include the capacity of buildings or publicsites and places that might be so designated?---Yes.

Access, meaning entry and exit, to those venues?---Yes.Carparking space at those venues?---Yes.Whether there was sufficient equipment for firefighting or for

the amenity of those who attended?---Yes.The cost; you pointed to both the establishment or retrofitting

costs of such buildings and venues and the maintenancecosts of such venues?---Yes.

You also pointed to matters which we might call risk; namely,the possible impact in terms of indemnity and liabilityand the costs of increasing insurance premiums?---That'scorrect.

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That position was one you put in your evidence and that the MAVpursued in its submissions prior to the interimreport?---That's correct.

When the State government of Victoria put its position inwritten submissions and oral submissions, you no doubt sawthat the State advocated three ways that the communitymight find safer places as part of its bushfire plans.The first were the traditional refuges, and do you recall,Mr Spence, that the submission made about refuges was thatthey posed a number of problems and would take some timeto develop new criteria for?---Correct.

The second way was a new notion, the neighbourhood safer place.Do you recall that that was put in the State government'ssubmissions?---I do.

Prior to the State government making its position insubmissions, had you as chief executive officer of MAVbeen consulted about the notion or content of a newcreature called a neighbourhood safer place?---I don'tbelieve I had been.

To finish the sequence of three, the third option was said tobe an informal or essentially a self-selected place whereone might seek shelter. No doubt you are aware ofthat?---Yes.

Your council in those submissions indicated that, despite thefact MAV had not had prior notice of the notion of aneighbourhood safer place, it would - and I'm paraphrasing- do as it was asked. If the State established a regimeof neighbourhood safer places, it would do its best; itwould engage in best endeavours to assist in whatever wassaid to be its role. Do you recall that?---That'scorrect. Best endeavours I think is a bit of an

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understatement of the way we have approached it.You would do as you were asked?---Well, we think it is a

sensible policy to have in place. The mechanics of it areprobably the difficulty.

Then you are no doubt familiar with the fact that when theinterim report was published it made recommendations aboutthe three-phased approach or the three tiers. It acceptedthat refuges were more complex and would be put off forthe development of new criteria?---Yes.

Incidentally, have you seen any new proposed criteria forrefuges?---I have seen an early draft.

When did you see that?---In the last few days.Was it provided to you by the Office of the Emergency Services

Commissioner or someone else?---Yes, I sit on a committeenow - I was appointed to it probably six weeks ago - thatsees some of this material.

You were appointed only six weeks ago?---About that, I think;six or eight.

Have you been given a timeframe in which MAV ought to respondto the proposed refuges criteria?---Not yet.

Recommendation 8.5 from the interim report was that the Statepromulgate criteria for the identification and operationof NSPs?---Yes.

And involve councils and communities in their development andimplementation. No doubt you will recall recommendation8.6 was that the State commence progressively identifying,establishing and advertising designated refuges andNSPs?---Yes.

And no doubt you will recall that the second component ofrecommendation 8.6 was that priority be given to areaswhere bushfire risk is high?---That's correct.

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As you understand it, the priority to high-risk areas isessentially synonymous with the notion with which we areall now familiar, that the top 52 towns will beprioritised first?---That's correct.

Ultimately when the legislation was promulgated and is now inforce - that legislation is annexure 1 to Mr Hayes'sstatement - the mechanism by which NSPs were to be rolledout had the CFA assessing and certifying according toguidelines and municipal councils designatingneighbourhood safer places. You appreciate that's thedistinction in the Act?---That's the distinction.

In fact section 50G(1) says, "A council, the municipal districtof which is located wholly or partly in the country areaof Victoria, must identify and designate places as NSPs inits district." Now, we are to read that with section50G(8), aren't we?---That's right.

And 50G(8) says that at least until 1 July next year a councilcomplies with the obligation I have just read out if ituses best endeavours?---That's correct.

Is it fair to say, Mr Spence, that best endeavours is at themoment being treated at least as an effort by councils inthe 52 top towns to identify and designate neighbourhoodsafer places?---In the 52 there is an enormous effortoccurring, but across the state there is now a flow ofother identified sites where the CFA has to do theirassessment and determine whether they are appropriate.

The recommendations that I read to you, 8.5 and 8.6, had theState being visited with certain obligations, andrecommendation 8.7 was the one which expressly nominatedcouncils and said they should record the location ofdesignated refuges and neighbourhood safer places and

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essentially inform people about their use?---That'scorrect.

You recall that the recommendations had that split; namely, theState with the obligation for identifying and designatingand councils with an obligation of recording, listing andadvertising?---Yes.

Was MAV consulted before the Act was drafted in a manner inwhich the previous obligation or the prior obligation,identify and designate, moved from the State to thecouncils?---Yes.

In that process did the MAV express any concerns about it nowbeing the entity responsible for identifying anddesignating neighbourhood safer places?---It did.

What were those concerns that you identified in thatprocess?---We expressed concerns about the change in theprocess from that that had been put to the RoyalCommission and that that had been accepted by the RoyalCommission. We also raised a number of issues, but theparticular one was about the issue of indemnity orlegislative protection for councils, because it could beargued that there was a significant shift in liability inthis from the State to local government.

So can I take it that you are saying, Mr Spence, that MAVobjected on at least two bases: that the obligation todesignate had shifted from the tenor of therecommendation, but equally you remained concerned thatthe liability had shifted to councils?---Yes.

In terms of liability, the State sought to address that in acouple of ways, didn't it? Initially it offered councilsa written indemnity - not in legislative form, butessentially a contract - that had a sunset clause in it

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whereby the council designated an NSP, it could take thebenefit of the indemnity until an Act waspromulgated?---That's correct.

No council took up that offer, did it?---No, it didn't becausebasically the legislation was in the House when theindemnity was distributed to the councils and it was onlya matter of days before the legislation was promulgated.

Once it was promulgated, the indemnities had no force in anyevent?---That's right, and the indemnity itself was acomplex and sort of onerous structure that requiredcouncils to undertake a number of tasks. It was easierjust to step straight into the full-blown process in thelegislation.

The full-blown process in the legislation finds expression insection 50O, doesn't it? What is provided there, if wecan move to page 0172 of the legislation, is that insection 50O, "For the purposes of any proceedings for thedeath or injury to a person arising from the use of an NSPor the failure of a council to designate an NSP, an act oromission by a council which is in accordance withthe policy in its municipal council NSP plan does notconstitute a wrongful exercise or failure by the councilunless the policy is so unreasonable no council could havemade it." Can I perhaps suggest to you, Mr Spence, thatwhat this is saying is if a council is sued, and it ofcourse acknowledges a council may be sued, for death orinjury arising out of the use or the absence of an NSP,the council may erect a defence on the basis of which ifthe council can demonstrate it had a reasonable planpursuant to which NSPs are designated and followed thatplan it has a valid defence in our courts?---Yes.

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The way that these plans work is referred to earlier in thelegislation. Perhaps I will take you to the plan. Itmight be a good time to do that. MAV has assistedcouncils or perhaps been the author itself of a templateor draft municipal council neighbourhood safer placesplan?---That's correct.

That's the plan you need to have and to have adhered to forthis defence to be available?---The council can have aplan that it forms itself. What we were trying to do wasensure that we had a model out there which would make lifeeasier for councils to do it.

We will go to the first page of it, (TEN.168.001.0001). Asthat is coming up, can I ask you to confirm, Mr Spence,when that draft plan or template was developed byMAV?---The draft plan has been out in about three or fouriterations. The last iteration went out on Friday nightafter we resolved the final issue that we had with theCFA.

It went out on Friday night. So some councils would have hadearlier versions they could have relied on to undertakesome work?---All councils would have had earlier versions.There were subtle shifts that were occurring. The issueswe were trying to deal with across the last couple ofweeks have been, in relation to the neighbourhood saferplaces and its layout, what did the CFA consider in itsassessment of the fire rating and what's allowed insidethat neighbourhood safer place or in the perimeter, thebuffer zone as we describe it, because what we are tryingto determine is, if it is a showground or if it is afootball oval or if it is a racetrack or if it is afunction facility, if in its normal operation by

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conducting normal business this will affect the firerating and actually make it more dangerous.

Before we go to the guts of the plan, can I just ask you toexpress a view on this. I put to you that the State'ssubmissions as at the time of the interim reportidentified three ways forward: the refuge, theneighbourhood safer place and the informally-selectedvenue?---Yes.

Is it your view that neighbourhood safer places, at least whenfirst identified and suggested, were regarded as venuesthat would have lesser criteria attached to them thanfull-blown refuges?---Absolutely.

And that indeed the evidence and the submissions tended toproceed on the basis that refuges might be more likely tobe structures, although not all would be structures, andthat neighbourhood safer places might be anything, rangingfrom a building to an oval to a reserve to a shoppingstrip?---Could be, yes.

Can I take you to tender page 5 of this draft plan which is achart which is a handy way to see the way in which the Actnow says things must work. Step 1 is that councils are toidentify potential locations. That's what the Act says.In fact this year it appears in an effort to perhaps getthings done more quickly it has been opened to the CFA,local brigades, the community and councils to nominate avenue?---That is right. It has been a mixed bag, but ithas been very active in terms of nomination of venues.

Nomination is no guarantee of success, but it is a startingpoint in terms of a list of places that could beconsidered?---Absolutely.

The next step is the CFA must assess and certify. You have no

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doubt heard the evidence this morning from Mr Hayes andMr Armstrong to the effect that the CFA does so pursuantto criteria it devised, the focus of which is radiant heatoutcomes?---Well, you need to be very specific about this.It is not radiant heat outcomes; it is radiant heatoutcomes from vegetation. It is not radiant heat outcomesfrom buildings or cars or whatever that might catch fire.This is part of the issue we have been trying to resolve.

So the point you are making is the CFA guidelines are focusedon measurements from vegetation to particular points inthe proposed NSP and that the radiant heat outcome takesinto account only the distance from vegetation and slopetopography et cetera?---That's correct.

The next step as depicted in this chart is, if we look to thebox on the right-hand side, if the proposed location doesnot meet the CFA criteria it is the end; it must not bedesignated. We have heard from Councillor Dunn that atleast the Shire of Yarra Ranges is prepared to sometimes,at least in the case of the Olinda house, not take that asthe end and try to go back to the CFA for furtherguidance?---I think there will be a number of cases ofthis because, you know, minor changes, really, in thelayout of the site or in removal of vegetation mayactually make them compliant.

Nevertheless, the site must ultimately fall into the left-handcolumn? However it is achieved, it must be passed by theCFA?---That's correct.

Because indeed councils under the Act are prohibited fromdesignating a place that hasn't passed base 1, if I canput it that way?---Correct.

Step 3 is the council then assesses. Is it MAV's position that

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councils ought to assess any site that has passed phase 1pursuant to a plan, whether it be a copy of this plan or aplan sensibly modified in light of what would bereasonable criteria?---That's correct, and they need theplan really to deal with the defence question.

This chart then explains to us, again if we hive off to theright-hand side, if the proposed venue doesn't meet thecouncil's criteria it is the end of the line there,allowing for the fact there may be further negotiation andconsideration?---Yes.

If it does meet the criteria, if the land is council land itcan be designated fairly readily?---Yes.

If it is private land, the Act dictates and common sense wouldalso dictate the consent of the private owner must beobtained?---Yes.

Because it is only via that mechanism under the Act that theprivate owner gets the benefit of the defence?---That'scorrect.

Step 4 is formal designation. We have heard evidence fromCouncillor Dunn about the fact, by way of example, thatYarra Ranges have designated two venues after goingthrough all these links in the chain?---Yes.

Is it the case that only one other council has got to step 4,namely the designation of a venue in Moorabool?---Yes, butall of the 20 I think will be dealing with them this week.

All of the 20 what? The 20 others in the - - - ?---The 20councils that sit in the 52.

You will expect that they will deal with it this week at thephase 4?---They have advised us that they will be dealingwith neighbourhood safer places this week.

But dealing with them at phase 4, step 4, or dealing with them

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at some other link in the chain?---Formal designation thisweek. But I expect that will only be council land andsome of the public land. There may be some private landin it.

If it is private land, it may be a longer process because youwould still need to get consent?---That's correct, and wewould expect that the private landowner would seek legaladvice as to the implications of them giving the consent.

Yarra Ranges, we have been told, had the meeting at which theyformally designated two reserves, Morrison and Monbulk, onthe 8th. Can you tell us the date on which the Mooraboolvenue was formally designated?---I think it might havebeen last Monday.

This then plays out and explains there is then theestablishment of the neighbourhood safer place.Presumably that would involve erecting the requisitesigning?---Yes.

And step 6 is the annual review. Without going back to theAct, the Act requires annual review of each location toensure it still meets the relevant criteria?---That'scorrect.

Within the body of this document are the criteria that MAVproposes a reasonable council would consider. I put it toyou that way because I take your evidence to be that thisis a good guide, but a council with an eye to the policydefence might on good advice and with good reason come upwith additional or slightly different criteria?---Itcould, yes.

At two pages over in this document, the identification ofpotential locations is dealt with. At point 1.3 there area number of possible considerations. Can I just confirm

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with you this is still back in phase 1; this is at thenomination phase?---Yes, that's correct.

Even then councils are counselled that they ought to considerthe environment, the other uses, the land, access andegress?---That's correct. So we would expect that theprocess going forward will be that the council will dothis work first and then go to the CFA, which will speedthe process up significantly.

Is that not injecting in several points at which a venue mightfail, injecting the egress and access issues right back atphase 1?---Potentially. But we have had some issues inrelation to the certification that have shown that the CFAhave certified but have expressed concern about access andegress on the site. So it is probably better to deal withthose issues up front than to have the certification andthen have to deal with them at the tail end. It ispossible because we have reached an agreement now with CFAand VicRoads on a standard form of road clearance forparticularly sensitive sites like this.

I think it is a matter you are going to attest to later but,under the auspices of township protection plans, has theMAV entered into an arrangement with the CFA whereby, ifthere is a particular town and/or a particular NSP wherethere is only one or two roads that one might traverse,particular care is going to be taken to engage in safetyroadside clearing by which I mean trees that might causedifficulties?---Absolutely. So the logic of the way wehave worked is to say, "Which towns are going to haveneighbourhood safer places? Let's make sure we have gotappropriate access and egress to the neighbourhood saferplaces." In those towns that haven't got a neighbourhood

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safer place, we need to make sure that the main roads inand out are potentially free from falling trees, thethings that might block the road, dealing withthe vegetation issue more aggressively than we normallyhave done it. There are 15 critical roads being treatedat the moment by VicRoads and councils.

I'm not necessarily cavilling with the logic of this, butaren't these the sorts of matters that you put up as graveconcerns pertaining to refuges? Why are they beingre-applied in the context of the next tier, namelyneighbourhood safer places?---Because we are learning.I'm basically working full-time on bushfire matters at themoment and we learn every day ways we can adapt toactually achieve better outcomes for the community. Thedrive from us at the MAV is to ensure that people aresafe. Any ideas we have got, we will give them a run.

Can you appreciate then that it is sometimes difficult perhapsfor members of the community to see any difference betweenwhat will ultimately be refuges and this halfway housebeast of the neighbourhood safer place?---I can understandhow complex it must be. I think my view with the future,after sort of sifting through the issues this year, isthat we will end up with a mix of refuges in high-risktowns where there are no possibilities for neighbourhoodsafer places, then neighbourhood safer places and maybe anidea like the South Australian model, which is what theydescribe as safe precincts, which is an idea they havebeen running recently.

We might go to that in a moment, but can I complete looking atthe criteria that come in a couple of phases on. Page 11of this manual at the bottom, I'm not sure what the coded

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number will be, "Council assessment" sets out the criteriathat come in at that level. "When the council are lookingat a venue that has been certified by the CFA" - so that'sthe realm we are in - it says just above that (a) there,"The factors to determine the suitability of the place asan NSP are as follows." The first is, "Consents andrights of access. There must be appropriate land accessand tenure so that the council has the right to use theplace, access the site and erect signage." Is that areference both to getting the consent of the private ownerand then in any event the capacity to go on and do thingsin the property?---It is not just the private owner. Itis also the public owner. So dealing with crown land,that's been a complex process still not resolvedcompletely.

Have any venues of the three that we have talked about in YarraRanges and Moorabool been private land?---All councilland, as I understand it.

Are you getting feedback from your constituent councils thatthe question of using private land has become toodifficult in terms of getting the requisite consent?---No,I think it requires just more time to actually workthrough the issues with the landowner and for them toreally understand what they are conceding and what theyare getting, because the terms of the way the indemnityworks is quite complex and they need to take legal advice.

What about the crown? Where the consent is sought of the crown,you would think that might be fairly readily forthcoming.Has that posed any difficulties?---It is complex becauseof the various forms of land that are covered byrecreation reserves, beaches and so on. We understand

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that the minister has signed off approval for 20 sitesI think in the least week, but it still has to begazetted. We understand that's going to be gazetted next,we expect, Tuesday week.

That gazettal relates to the status of crown land wherepermission has been sought for consent to use crown landas an NSP?---That's correct. With Education it is adifferent arrangement. We have a direct relationship withEducation and we will work through agreements with them onthe sites that have been identified.

I was going to ask you about that. In the context where theproposed venue is a school, it sounds as though you aresaying you don't go necessarily through the crown landroute; what you do is deal with the Department ofEducation?---That's right. That is relativelystraightforward. The issue that we have been trying todeal with with Education is how we can ensure that theseschools, if they are the buildings - if they are thegrounds it is not an issue - how the buildings can be open24 hours a day or accessible 24 hours a day. I think thatissue is close to resolution or has been resolved. Wehave this issue we are trying to deal with with councilsand with - like any building, are we going to send someoneinto a fire-risk area or close to the firefront toactually open and manage this site when it is being usedas an NSP. There are some solutions to this; special keypads and a call in to a particular point to get the pinnumber to get in. There are all sorts of ways to dealwith it. We are just trying to work it through.

Can I ask you in that context one example that has beendiscussed this morning is a library and apparently the

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problem identified was it is not open 24/7. Could not theMERO go and open that? It seems to fall somewhat withintheir responsibilities as an emergency responsecoordinator?---I would expect if there is a fire on, theMERO would be up to his ears in other things to do.I think that's another example of where potentially thetechnology can be used to open the facility. The notionof a central contact point by phone and a keypad couldwork. There is also sensitivity with peopleabout - I think one of the things we fall into with thisis that we consider that only on the highest-risk dayspeople will go to these places. I think if people arefrightened they will go at any time. So the facilityneeds to be capable of being open when they are frightenedand worried. The concerns are coming back to us about howdo we ensure the security of the assets inside thebuilding, and should they be just open free to anybody.

That might be a particular concern in the context of a library.But in terms of a sporting reserve or an open area, thereis not so much concern about assets?---No issue inrelation to open areas.

Can I ask you about the next criteria on the next page, (b),access and egress. A criteria is said to be, "Councilmust assess whether there is sufficient access which willallow anticipated potential numbers of people to move toand from the place and the CFA and other emergencyservices to attend." Now, of course it has been drummedhome by a number of witnesses that one can't guaranteethat the CFA will be there. So that's just a prospectthat they may be there; is that right?---Yes, it is. Butwe need to give them the capacity to get there if they can

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get there.The anticipated potential numbers of people, this is the

capacity problem that was at the forefront of the evidenceyou gave on the previous occasion?---That's right.

You don't know how many people might go?---No, we don't. Wehave given significant consideration to this issue.I don't think it is solvable, really. Just the facilityjust has to be there.

Down the page it then suggests that, when considering whetherthe access and egress are adequate, you should giveconsideration to the condition of the road surface, theproximity to major roadways, type of vegetation, thecapacity of access, parking, hazards. Hasn't the CFAalready certified in terms of the buffer zone and thevegetation right near the venue that it passes theircriteria? Why would we inject another layer of criterionhere?---Because the CFA haven't given any consideration tohow people get into the site. So you could have heavyvegetation, what, 320 metres from the outside perimeter ofthe NSP, but the people travelling to the site - and thereis one classic, I can't remember the name of it, where itis okay as an NSP but the road getting in is headingthrough significant vegetation. So they haven'tconsidered those issues at all. All they have done isconsidered the space and the vegetation and radiant heat.

But that's not surprising, is it, Mr Spence, because neitherthe CFA nor the councils have been asked to certify thesafety of the entire high-risk part of Victoria; they havebeen asked to focus their attention on a few places thatmight offer a degree of shelter during the passage of afire? Are you not overreaching in an attempt to guarantee

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safe passage through every road that might lead to afootball oval?---I don't think we are overreaching.I look at these issues and say, if I have to appear beforethe Royal Commission this time next year or before thecoroner because 50 people have been killed in aneighbourhood safer place, I would suspect that I would bechallenged by the Royal Commission or the coroner to say,"Have you ensured people can safely get into this place,"because a whole lot of them might have been killed on theway in, and, "When they are in there, are they safe andare we giving them the best opportunity to survive?" Weare just following what we believe is a sensible andreasonable approach.

The appearance of these types of criteria, the need to considerthe access and egress to the extent of the access roads,are these matters that came from the bottom up, by whichI mean council saying, "We ought to have it," or have theybeen suggested by the MAV down in light of considerationsincluding liability or an uncomfortable result in a legalproceeding?---It has come both ways, so we've had the CFAin some of their certifications saying to us, "Thedocumentation of the certification says this meets thecriteria, but don't designate it because the access andegress is not safe." So, in that case they did considerit. We've got council saying to us in relation to somelocations that, "We know that the actual location of theneighbourhood safer place is okay, but the roadways in aredangerous and with high vegetation and are inappropriate."

The next criterion I will ask you to look at - we've talkedabout maintenance which is (c). Then (d), the opening ofthe NSP, I think this is a matter you have really touched

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on using the library example, whether it is going to bepossible or practical to keep it open 24 hours a day andthe cost. I think you have indicated you are willing tolook at novel, even technological, solutions tothat?---Yes, I think there are solutions to this one. Itis just a question of us working through the issues and weare doing it with the Department of Education or DECD, andthat's working out, it's looking quite positive.

The next, (e), defendable space and fire suppressionactivities, you repeat the matter I put to you a momentago in this set of criteria. The CFA have advised thereis no guarantee that fire units will attend an NSP.Individuals do so at their own risk. There should be noexpectation that fire units will attend. Despite this,the potential NSP should be surrounded by sufficient openspace to enable the CFA and other fire services to conductasset protection around the venue." It then says any openspace should be reasonably free of obstacles, fences,buildings and sheds and, over the page, steep incline,vegetation, other land formations. Can I suggest to you,Mr Spence, this is getting far too complicated for whatwas supposed to be the second option. The CFA havealready looked at vegetation and you are injecting itagain at the dot point where it says "vegetation,particularly large trees" and you are injecting all mannerof criteria which really have the practical result thathardly any venue is going to get through theprocess?---I disagree with you there. I actually thinkthe vast majority of them will get through the process.But what we are asking the councils to do is to look atthe sites and be sensitive about what they are designating

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to ensure that they give the citizens the best opportunityof survival.

But take a football oval and assume it is one that passes thetest under the CFA criteria, namely 310 clear metres, whatsort of football oval of any size or of any establishednature won't have some sort of fence, even if it be theboundary ring, a pavilion or a building or perhaps a kioskor tuckshop or any large tree, because it is quitetraditional to provide some sort of shade for thespectators?---But I don't think what we are suggestinghere is going to stop a football oval being used. It isjust that the council actually gives thought to what is onthe site and what is in the buffer zone to ensure thatthere is nothing there that is going to cause anydiminution in the capacity of that NSP to workeffectively.

What I'm putting to you, Mr Spence, is that when you get to thehighest level of suggested safety, the refuge, all ofthese things may ultimately find their way into thesecriteria that are apparently being developed. But at thissecond level that was supposed to be the second tier orthe refuge light, if I can put it that way, these areincredibly strict criteria that, if not productive of verylow outcomes, are obviously productive of a huge amount oftime and effort, time we don't have?---Again I disagreewith you. I actually think these are minimalist responsesto what is a very complex issue and we would expect - Imean, as I say, if I came back here next year after anincident or I was before the Coroner, I'm sure thesequestions would be asked of us.

Is it not the case, Mr Spence, though, that in addition to

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applying the criteria to the place you are now also, itseems, applying them to the buffer zone? You keepreferring to the buffer zone. That is not a concept inthe Act, is it?---But it is critical to the CFA'sassessment. So, if we take a buffer zone, the buffer zonein relation to an open space is supposed to be 310 or320 metres. If there were three petrol tankers stored inthe buffer zone, is it going to affect the safety of thesite? They are the questions we're asking, that's all.

The next, (f), defendability of buildings, then turns itsattention to ember attack, so shifts from the notion ofradiant heat to ember attack and suggests to councils thatas the CFA is not required to assess the risk of emberattack, then effectively councils should take it intoaccount and may even seek expert advice. The CFA devisetheir own criteria, effectively. You understandthat?---That's correct.

And they determined that it was appropriate to focus on radiantheat with a different level of assuredness requiredbetween structures and open places. Now, you have said anumber of times now and on the previous occasion, they arethe experts, they have devised the criteria. Why arecouncils injecting an ember attack criteria that the CFAhave not advanced?---I think it would have been useful forthe CFA to actually not have just considered radiant heatfrom vegetation in these matters and then we wouldn't havehad to consider it. The issue is they ran a very narrowmodel.

Having run the narrow model, we are now in a position, aren'twe, in light of the figures Mr Hayes gave at paragraph 28of his statement, that 215 sites have been assessed by the

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CFA. Incidentally, do you know what that represents interms of the numbers nominated?---No, I don't. I willhave them here, but I don't have them in my head.

215 assessed, 104 ruled to comply, and I'm just talking aboutthe CFA criteria, phase 1?---Yes.

104 comply, 111 do not. Of the 104 that complied, if we addthat to your evidence we find that a total of three havereached the final phase?---Yes, that's correct.

And you expect 20 more councils will at least be turning theirminds to that at a meeting in the next week?---That'scorrect, but can we just get some qualifiers in there.The councils have been waiting for the resolution of anumber of matters by the CFA and others, so can I justtake you through this. I think it was two weeks ago wehad gone through a protracted process with the CFA to tryto understand the details of the locations of the NSPs asper their assessments. As a result of a meeting withthe chief executive of the CFA, we spent a day goingthrough each site and trying to identify the locationsspecifically.

Why did that happen two weeks ago?---It happened two weeks agobecause we went through a number of iterations trying toestablish with the CFA the detail, and we were frustrated.

In light of that frustration, can I take you back a stepbecause it seems you are keen to explain the process.When did the MAV get the CFA criteria?---The criteria?

The CFA's criteria, the document that's been tendered throughMr Hayes?---It would have been - I can find the date foryou, if you want to know. Just let me have a look. Wereceived version 4 of the CFA guidelines on 12 October.

And did version 4 depart markedly from previous versions?---It

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was adjusted. It was thinner.Presumably MAV was doing some work with its councils prior to

12 October?---We were, but in working through thelegislative process on this we are dealing with a cabinetin confidence issue, so we can't talk, because of the waythe arrangements work, in detail of the councils.

So as not to rehash "He said, they said, who did what, when,"add any detail you need to in terms of the sequence ofevents, but can I suggest to you your evidence is MAV hasbeen waiting to get material and final authorisation aboutthe Act and about the CFA criteria?---Yes.

What you have added to that is that in particular you wanted tounderstand certain aspects of the CFA criteria and you gotthat two weeks ago?---No. What we were trying to identifywas the location of the neighbourhood safer places,nothing to do with the criteria at that stage, because anumber of the certified documents weren't clear in termsof the location. So we spent a day at CFA headquartersworking through the listings and contacting each of theindividuals who did the assessment and what we found wasthat the documentation in a number of cases that we hadreceived were inconsistent with the actual location of theNSP.

Can I just clarify that with you, perhaps by using ahypothetical example. Are you saying that sites had beennominated and assessed, but because of some laxity in theway the street address was described, for example, or thelocal name of a venue, there needed to be some clarityabout what actual reserve or what actual shopfront was inquestion?---Well, I'll give you some examples. There weremaybe four or five examples where a specific street

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address was nominated, that being a private house, but infact when we interrogated the individual who had done theassessment he was talking about the whole street. If wehad have just rushed in and designated these, we wouldhave ended up with facilitates being designated thateffectively weren't anywhere near the site really that wastargeted by CFA.

Can I ask you about another example, and it is not in the 52towns, but you probably heard the evidence of Mr Seear.Is there not some capacity to in addition to triaging thevulnerable parts of Victoria, to also knock off the easyones? What I mean by that is a place like Walhalla, wherethe mine has a long history of use as a refuge and thetownsfolk there use that term, obviously, without anyimprimatur of the State, is it not a far easier thing toat least designate that mine and have that one ticked offthe list even while one works through the othermatters?---On that particular instance my understanding isthat the Shire of Baw Baw have contacted the CFA, andI suspect a number of times, if I understand correctly,asking for it to be examined for certification andI understand at this stage the CFA has not examined thesite.

And that does seem to accord with the documentary evidence putforward today?---Yes, so I think the council's using itsbest endeavours to get that site considered because, asyou said earlier, it has to get stage 1 in thelegislation, the certification out of the way, before itcan do the designation, but CFA at this stage haven'tdealt with it. I don't want this to appear as if I'm CFAbashing. We are working through what is new ground, never

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done it before, we're all learning step-by-step, we muckit up, we make mistakes, we'll get to the end of this andwe'll have a really good outcome, but it's taking time.

Mr Spence, you have said a number of times it is new ground,but can I just remind you it was the State's idea. Itcouldn't have been new to them. Do you recall it was theState who proposed neighbourhood safer places?---Yes,I do. But can I also say that the way this is workingoperationally, it's the MAV driving it with the CFA. Soit's the relationship between those two organisationsthat's driving the outcome. It's nobody else in thisspace, really.

But is it fair to say, Mr Spence, that a number of constituentcouncils remain uneasy about the prospect of designatingneighbourhood safer places, that unease having featuredvery prominently in the position that was expressedpublicly here in round one?---I don't think that's thecase now, because what we are getting is sort of bombardedwith opportunities to establish neighbourhood safer placesacross the state from councils and from communities andit's a question of whether we've got the CFA and CFAcapacity and local government capacity to get them inplace. We just want to deal with the 52, get those dealtwith, and get as many others through as we possibly can.

But you, yourself, Mr Spence, as CEO continue to expressconsiderable disquiet about the prospect of having toanswer questions in either coronial inquiries or othercontexts. So is not this concern about indemnity orlitigation continuing to cast a pall over thisprocess?---I think you're twisting my words. All I'msaying is the logic that we use in thinking through how to

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do this is to say if you are challenged, if you arequestioned by the Ombudsman, by the Auditor-General, bythe Royal Commission, by the Coroner, I would expect anyof those bodies would expect us to have run a proper andcomprehensive process before we designate. I don't haveany problem about appearing before the Coroner or RoyalCommission or whoever.

I understand that, Mr Spence. But can we turn it around theother way. You have a pre-existing obligation toformulate the best possible municipal emergency managementplan and municipal fire prevention plan. So, if we lookat it from a positive perspective, would not councils wantto, as part of the best possible outcome under those twoplans, designate a neighbourhood safer place in order toprovide the range or suite of possibilities to theirpublic?---Nobody is saying to me they don't want todesignate them. They just want to make sure when they doit that they do it properly and that it provides the bestpossible protection for the individuals.

Can I ask you about who designates. What I mean by this is wehave talked about councils a number of times but thatmight be slightly sloppy on my part. I want to check withyou what is the designation body. The minutes from theShire of Yarra seem to indicate it was the council proper,but there are other materials that suggest that in somecases it will be the municipal emergency managementplanning committee and yet other information suggests thatthe CEO of some shires will do the designation. Can youexplain that?---Yes, I can. The council is the body thathas to do the designation. There will be a recommendationcoming to it from the committee in most cases. We

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short-circuited that this year to try and get them throughfaster, so there is just one step in the process. In somecouncils, because of the delays in the meeting process, sosome councils might meet every two weeks, others mightmeet every three weeks, they have delegated to the CEO thecapacity to actually designate. That's happened recentlyat Ballarat.

Is that the only place that's done that delegation?---The onlyone that I'm aware of, but potentially there will beothers.

I have no further questions for Mr Spence. Commissioners, doyou have any questions while I poll what the estimatesare?

COMMISSIONER PASCOE: Just a couple of quick ones, Mr Spence.On 7 February a lot of local residents went to the YarraGlen racecourse, not formally designated as a refuge andcertainly not as a neighbourhood safer place. Can yougive us an indication of what process would need to begone through for that to be designated?---For that to bedesignated, if you follow the full process, the councilwould advise the CFA that they want this venue assessed.We believe the councils should do a little bit of workjust to make sure it looks like it can get through thewhole process reasonably quickly. It would go to the CFA.They would do their assessment. The council would at thesame time, I believe, or around the same time be doingtheir check of the site, sign off the plan and then intothe council for designation.

Is that site owned by the council?---I'm not sure. It is quitepossible it's Crown land, which would require us to get anapproval - a consent from the land user and from the

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Minister in relation to a potential different use from itsoriginal use. One thing we would like to see in the nextround of legislation in this space is a legislative shiftthat just wipes all of that step of having to getgovernment approval or ministerial approval to allow theland to be accessed as an NSP. We think you could dealwith that with a minor legislative change.

I think the reality is that, in the absence of designation,people will self-select, even though some of them may betechnically trespassing?---I think that's right, but theway the legislation is structured it requires you to gothrough particular paths to ensure that you've compliedwith the legislation but also ensure that the landowner isprotected, and they are necessary steps. I thinkI expressed in my evidence last year my worry aboutnon-designated refuges, about what the insurance and otherliabilities would be for people who are allowed in there.But, you know, it's up to the individual.

I think the dilemma is that sometimes when bodies are goingthrough that level of planning it can sound overlyobsessed with the minutiae and a capacity to lose the bigpicture of the policy. But I note, if I can feed back toyou what I think I've heard you saying today, you said "Weare learning", you are working full-time on bushfirematters and that you are prepared to give any decent ideaa run and in fact you mentioned a notion of SouthAustralian precincts which we haven't gone back to. Butyou also said the way it is working operationally is theMAV is driving it and working with the CFA to get itmoving?---That's correct.

So this does to me sound like some movement, if you like. Has

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there been a eureka moment for the MAV and the councilswhere there has been an enhanced recognition of their rolein relation to community safety that perhaps wasn't fullyexpressed in MEMPs in the past?---I think our view hasalways been about protecting the citizens. It is thenature and the role of local government. I think, asI said before, the structure we have now is better thanthe structure we had at the start of the year. I think wewill end up with a model that has, in my view, not MAV'sview, my personal view, we will end up with a structurethat does have refuges in those towns that can't haveneighbourhood safer places and have a single road in andout and that we will have neighbourhood safer places andwe may have an array of other facilities. I'm interestedin this notion out of South Australia, because the adviceout of South Australia from that incident that occurred acouple of weeks ago where they had the code red day wasthat the question people constantly asked, and I think wedebated this out last time I was here, was, "Where doI go?" And I think the issue that South Australia isconsidering about these precincts of where you could go,for example in the central region you could go to Meltonor you could go to an urban community that's relativelysafe. If you put that into the array of options forindividuals, it's quite useful if you can sort ofdemonstrate a path for them.

That might be a matter we return to. It might be worth gettingadvice on the South Australian precincts and returning tothat at a later date in the spirit of giving any good arun?---Yes.

CHAIRMAN: Can I raise a matter that has intrigued me because

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of the number of people who have died when there have beenswimming pools nearby and the number of people we havealso heard evidence from who have been saved by going toswimming pools. One of the potential neighbourhood saferplaces are council pools or local pools?---Yes.

As you are aware, is there any suggestion that they might beincluded in those places that might be considered asneighbourhood safer places? My concern would be therewill be people who say they might drown; if you get toomany people they might drown. But I just raise the firstquestion, have they been considered?---I'm not aware ofany being considered, but that again is an issue worthgiving consideration to. It hasn't been raised by anyone,but there are a lot of pools around.

In Marysville there were two pools, and a lot of people died inMarysville, but one had been closed and the other one waspart of the Cumberland. It remained stationary where alot of people could have made use of it?---Yes.

MS DOYLE: Just arising from that, Mr Spence, you are awarefrom Ms Dunn's evidence that the Olinda community househas a pool as part of its precinct and that venue is stillunder consideration?---Yes. Again I'm not that close tothat. I just know there is significant dangerousvegetation sitting beside that facility, that's all.

Finally, one matter I overlooked and I am reminded because weare still at the page. It says "signage". If those 20councils designate a number of other neighbourhood saferplaces next week and in light of the fact that the signhas just been developed, do councils have a plan forgetting those signs up as school holidays approach?---Yes.Would you like to see the sign?

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I would just like to know whether you are going to put them onthe neighbourhood safer places before school holidays forpublic schools start?---We met with the sign manufactureron Friday after we were given the clearance. The signswill be delivered to us I think next Monday and then theywill be straight out to the councils. There are twosigns. One is the State sign, designated sign, and thenthere is the council specific one that gives more detailon the site.

I understand. Then the next step after that will be to ensurethat those addresses are transported into the municipalemergency management plans and fire protectionplans?---That's correct. We have done this around, notthrough the normal path because we are trying to get thesethings through as fast as possible. So we have droppedeffectively two steps out of the process to get thesedesignated without having to go through the committees.

Commissioners, there is no cross-examination sought by theState, and Dr Lyon will take 10 to 15 minutes. It is aquestion of weighing up the fact that Mr Spence has waitedpatiently and could be concluded today or the constraintsof a long sitting day.

CHAIRMAN: We will keep going.MS DOYLE: We appreciate that, Commissioners.COMMISSIONER PASCOE: My curiosity has been aroused in relation

to those signs, if we are able to have a look at those.MS DOYLE: Perhaps Dr Lyon could do a show and tell?---This is

the State sign. In its last iteration it has had "a placeof last resort" put on it by the State. We are getting asignificant run of these for distribution. Then thecouncil sign is a bit more complex. It goes into the

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details of the things to think about before you go intothis place.

It is probably important to know the text of that. What wemight arrange to do is have an A4-sized version of thetext of the warning page made available because, if it isgoing to be an adjunct to the signs, it would seem tobe - is it intended that will be next to the green signwhere there is a venue?---It will sit underneath it. Thegreen one will sit on top and the white one below it.

CHAIRMAN: Do you want those treated as an exhibit, with the A4to be added as part of that exhibit?

MS DOYLE: We will put in an A4 version, if we can. I need toalso tender the template MAV plan. I seek to make as oneexhibit the MAV plan and A4 versions of the two signs.

#EXHIBIT 620 - Municipal council neighbourhood safer placesplan - places of last resort during a bushfire(TEN.168.001.0001). Sign (EXH.620.0001). Sign(EXH.620.0002).

<CROSS-EXAMINED BY DR LYON:Mr Spence, I want to take you back to some of the questions

asked by my learned friend about the nature of thecriteria in the plan, but before I do that I just want togo back to the legislation for a moment. The evidencethat's been given previously and the evidence you havegiven is that ultimately the responsibility fordesignation of an NSP falls to the municipalcouncil?---That's correct.

But the assessment of criteria initially, after theidentification process, the initial certification takesplace under the auspices of the CFA?---That's correct.

Beyond that, the Act makes it clear, does it not, that the

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council is required to undertake its own assessment of thesuitability of a place to be an NSP?---That's correct.

Under 50F(1) the council has to prepare a plan as to theidentification and suitability of the NSP?---Yes.

Further, under 50G(7) the council is not required to designatea place that is not appropriate?---That's correct.

We have heard plenty of evidence to suggest that the CFA spenttime drawing up the criteria, and the criteria it drew upfor assessment of potential NSPs was one based uponradiant heat based on vegetation?---That's correct.

Now, if the legislation wanted to, it could have specified thatupon that certification taking place councils woulddesignate?---Yes, that's correct.

It did not. It reposed further responsibilities in acouncil?---It required a second step in the process.

The second step also requires councils to draw up aplan?---That's correct.

The plan must contain a reasonable policy?---That's correct.So when the MAV drew the template plan a couple of things

became clear, did it not? The first is that councils donot have to adopt what's in the MAV plan?---That's right.

It was, as you say, a model to help try and speed up theprocess?---That's correct.

Stopping there for a moment, let's just have a look at thatprocess. When did the plan come out?---The plan has beenout in a number of iterations. The last one was Friday.

The first plan came out in about mid-November?---That would beabout right.

About two days after the obligation to keep cabinet inconfidence expired?---Yes, that would be about right.

It was handed to all councils then for the purposes of them

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drawing their plans?---That's correct.If you go to page 11, it is headed "Council assessment of NSPs

following CFA certification". What you set up there are anumber of factors that councils ought to take into accountbut are free to nevertheless work around?---That's right.

In fact, are you not just setting up a checklist of things thatmay be overcome by modification?---That's correct.

You are not setting up a series of blockers, are you?---No, weare certainly not.

But, nevertheless, the idea of it being a neighbourhood saferplace is that you are hoping by designation to providesomething safer than the place from which people havecome?---Yes.

Quite frankly the issue of access and exit, if a place was, asyou say, an NSP that you had to travel through a keyholeof forest to get to, simply fails at the firstcriteria?---It might meet the CFA radiant heat criteriafrom vegetation, but if it is going to put people at riskin getting into the site then it is unlikely to be passed.

Do you know why only one criteria was chosen by CFA and notthese others such as access and exit?---No, I don't knowwhy.

It was suggested to you that you were expressing considerabledisquiet about these conditions. Is that the case,Mr Spence?---In relation to the conditions that the CFAwere applying or - - -

No, it was suggested at the time that Ms Doyle was taking youthrough the sorts of conditions or sorts of matters thathad suggested councils look at, and you said, "As far asaccess and exit goes, I don't want to be setting updeathtraps for people, I don't want to be reporting to

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another Royal Commission or to the coroner that we had nottaken into account proper, sensible conditions"?---That'scorrect.

Are you expressing disquiet about the role you have to take - --?---No, all we are trying to make sure is we have asensible process in place that delivers the best outcomefor the citizens and we do it as quickly as possible.

You said you believe the vast majority of NSPs that are underconsideration will get through?---In my view they will,yes. I have been through the process of looking at thesites, the majority of the sites, with the CFA in the 52towns and most of them are pretty sensible locations:showgrounds, racetracks, reserves; some of them arecomplicated, but the vast majority are prettystraightforward. The ownership question is questionable.

That's the next thing I wanted to turn to. As far as theownership aspect goes, the Act requires that you obtainthe consent of the principal land occupier ?---Yes.

For private landowners it may or may not be the owner; it couldalso be an occupier under lease?---That's right.

For crown land, you have already said there are various formsof crown land?---Multiple, yes.

In addition to that, there may be committees of management orother occupiers on that land that have to beconsulted?---That's correct.

You said that you consider that most private landowners willseek legal advice?---I would expect them to seek legaladvice. They might or they might not, but we wouldsuggest that they should because they are actuallyconceding some rights and they are taking onresponsibilities, but they are gaining some benefits. So

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.Wordwave:MB/SK 14/12/09 SPENCE RE-XNBushfires Royal Commission BY MS DOYLE

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they need to understand their legal position.So far as the public land goes, DSE land and the like, you

understand from the negotiations that you have had alreadythat that's exactly what DSE and other departments aredoing?---Yes, and I have learnt how complicated it is toactually get to the root of the ownership or thedesignation of some of these sites. They go back to thebeginning of Victorian history.

But, nevertheless, you are confident that you can move forwardin relation to a number of those sites as well?---Yes,I am.

Just in relation to the signs that you showed the Commissionersbefore, there is the standard generic sign and then thereis the sign that Ms Doyle has. I think she is going toask you some questions about it. The wording of that,that's an ongoing process?---Yes, it is.

It is not a set of conditions, as such; it is trying to informpeople as to what the NSP actually is?---Yes, and it sortof follows form of a lot of the material that's beenaround in relation to the operation of NSPs put out by CFAand others.

<RE-EXAMINED BY MS DOYLE:Just two matters arising. One relates to the page that's on

the screen now, but if it could be taken down a little bitfurther where 3.1 commences?---Yes.

At the beginning of page 11, 3.1. In this context, Dr Lyonasked you whether the criteria that follow are, I think hesaid, a series of blockers and you agreed with him theyare things that councils can work around; do you recallthat?---Well, they should consider, yes.

Why is it then that it says under the green text there in the

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last sentence in the first paragraph, "Unless a potentialNSP satisfies each of the criteria outlined below, itshould not be designated by council as an NSP"? That isthere phrased as a knock-out blow and not as a matter toconsider?---Well, this is a template for the councils toconsider. They can decide anything they like in terms ofthe way it works. We are just suggesting they shouldconsider all of these issues and, "If stuff doesn't meetthe criteria, then you should exclude it." That doesn'tmean to say they will.

But this is the proposed template that MAV is sending to theconstituent councils?---Yes.

You intend them to get assistance from it and you would expectthem to give this due weight, coming from their leaderbody, in what you keep describing as a brave newworld?---Yes, it is a brave new world. But I don'tbelieve there is anything in here, when I have looked atthe 52 towns and I have looked at the number ofneighbourhood safer places that have been brought forward,that these would be knocked out by any of these issues.

But you don't think that councils might be hesitant to departfrom the template in circumstances where MAV's position isthat, unless these things are given due consideration, onemight find oneself at the pointy end of a failed defencein terms of reasonable adherence to the criteria?---That'snot the advice we would give the council.

So you give them this template but you tell them, "Although itsays 'unless a potential NSP satisfies each of thecriteria', you can in fact elect not to apply thecriteria'"?---It is their call, really. It is theirdecision. You know the way the Act works. The Act says

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that they have to act as a reasonable council would. Weare just laying out what we think should be givenconsideration. They can then determine what they like.

MAV is laying out what it regards on the basis of its advice,including legal advice, as reasonable criteria?---Yes.

The other matter I wanted to ask you of course is the text ofthis sign will speak for itself, and it informs all whoread it of a number of matters, including in a number ofdifferent ways the fact that there is no guarantee ofsafety inside an NSP. It says, "Before deciding to headto or enter this NSP in the event of a bushfire be awarethat" and the first dot point is "many houses may offerbetter protection than this NSP". Can you explain howthat can be the case when, if an NSP has passed the CFAcriteria and anything approaching the template criteria,it is going to be, if it's a structure, 140 metres fromany vegetation and have met the highest standards?---I'mnot the bushfire expert in this, but that's consistentwith the material that's coming out from the CFA and theState, as I understand it.

That many houses may offer better protection than a certifiedand designated NSP?---Yes.

I have no further questions for Mr Spence. May he be excused?CHAIRMAN: Dr Lyon is coming from afar.<FURTHER CROSS-EXAMINED BY DR LYON:Can you have a look at this document, please? This is from the

CFA website. Mr Spence, is the document before youheaded, "The neighbourhood safer places are a place oflast resort" on the printout from the CFA website?---Itis.

Does it then have a section "Important information"?---Yes.

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The material on the sign, does that in fact track theinformation printed on the CFA website?---It does.

Does it say there on the CFA website, "Many houses will providemore effective protection than the place of lastresort"?---It does.

<FURTHER RE-EXAMINED BY MS DOYLE:The evidence speaks for itself. Mr Spence has now said that

the text comes from the website; is that right?---Yes.You use that as a guide?---We are working with the CFA on this

material, so we try to have consistent messages.Can Mr Spence be excused?CHAIRMAN: Yes, thank you, Mr Spence.<(THE WITNESS WITHDREW)MS DOYLE: I can indicate the program tomorrow is a 9 am start

with a sequence of electricity witnesses starting withMr Pattas.

CHAIRMAN: Yes. We will adjourn until 9 am.ADJOURNED UNTIL TUESDAY, 15 DECEMBER 2009 AT 9.00 AM

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