The Respondent may prepare further plans and provide further information that respond to the Tribunal's remarks as summarised in paragraph 82 and the conclusions of these reasons. If that material is to prepared, the Respondent must provide an updated assessment of habitat hectares lost, based on the use of the existing track and additional loss associated with the proposed location of the track to the southern end of the road reserve and into the Lindsay land.

If the Respondent prepares such information, it must be filed with the Tribunal and served on the Responsible Authority, Applicants for Review and Department of Sustainability and Environment within six weeks of the date of this order. If no response is received by that date, the Tribunal will finalise a determination based on the submissions and evidence presented prior to and at the Hearing.

On receipt of any further plans and information, and no later than four weeks from the date of receipt, the Responsible Authority, Applicants and Department of Sustainability and Environment may provide further written comments on amended plans, further information and any further proposed permit conditions to the Registrar of the Victorian Civil and Administrative Tribunal.

In providing further submissions by the dates set out, all parties are also invited to comment on the permit condition suggested by Deacons Lawyers referred to at paragraph 84 and my preliminary remarks at paragraph 85 of these reasons.

A copy of any response provided by the Responsible Authority, Applicants for Review and Department of Sustainability and Environment must be forwarded to the Respondent and all parties to the proceeding. All responses must indicate whether a further Hearing is sought to enable submissions to be put orally.

Mr M Vale, solicitor of Michael Vale and Associates, for the 15 Mile Creek Camp. He called Ms K Scanlon, director of the Camp, to give evidence.

Ms Z Darmos of Deacons Lawyers, for the Trust for Nature. She called Dr M Looker, Executive Director of the Trust for Nature (Vic) and Mr S Mueck, botanist of Biosis Research Pty Ltd, to give evidence.

Ms S Brennan of counsel instructed by Stewart, Thompson & Francis lawyers. She called Mr P Kelly, ecologist of ERM Australia Pty Ltd, to give evidence.

Mr T Sloan and Mr M Sheehan for the Department of Sustainability and Environment.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by the 15 Mile Creek Camp and Trust for Nature to review a decision made by the Rural City of Wangaratta ("the Council") to determine to grant a permit in application no. 03-062. A Notice of Decision ("the Notice") was issued by the Council on 22 October 2003. Applications for Review were lodged on 7 November 2003.

2 Several procedural matters were raised at the commencement of the Hearing. First, Ms Brennan sought leave to amend the name of the permit applicant to "Mrs J E Lindsay". There being no objection, I granted leave to make this amendment pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998. Second, Mr Sloan sought to present a submission on behalf of the Department of Sustainability and Environment ("DSE") but did not seek to be joined as a party. There being no objection, I granted leave to allow DSE to make a submission.

3 Third, Mr Vale raised a question in relation to the permissions required for the proposal and submitted that the use of the land for the purpose of a road was prohibited. Having heard comments and submissions from the parties in relation to this matter, I also sought the parties' consent to the matter of determining what permission is/are required for the proposal pursuant to the Planning Scheme being determined by the Tribunal as constituted (a planning member and not a legally qualified member). All parties consented to the Tribunal, as constituted, determining the matter.

4 I record that Ms Brennan had submitted that although her primary position was that a permit would only be required for the clearance of native vegetation, if the Tribunal came to a different view in relation to the Public Conservation and Resource Zone then she proposed that the permit application be amended to refer to the use and development of the road.

5 I indicated at that time that I would not immediately rule upon the question of the relevant permissions required pursuant to the Scheme being mindful of additional factual information that might influence such a ruling. The parties proceeded to present their submissions addressing matters of native vegetation removal and the impact of the proposed road; issues that had been foreshadowed in their statements of grounds. I record that toward the end of the Hearing, Ms Brennan conceded that the sections of the road that would fall outside the road reserve, but within the Public Conservation and Resource Zone, would require a permit for use and development.

6 At the end of the second day of the Hearing, the conditions set out in the Notice were discussed. Ms Darmos tendered a proposed set of conditions and other parties commented upon this. Following some discussion, I directed that a revised set of conditions be prepared by the Respondent (based on the Respondent's position) noting that the Applicants' views varied in respect to some matters (such as involvement of the Trust for Nature in relation to certain conditions). My directions required the revised conditions to be filed with the Tribunal and served on other parties and the Department of Sustainability and Environment by 30 March 2004 with any responses to be similarly filed and served by 16 April 2004. I also allowed Ms Brennan the opportunity to address the fact that a small part of the existing track is within the Trust's property and how that could be dealt with, notably under Section 36 of the Subdivision Act 1988 as she had canvassed by way of oral submissions at the Hearing.

7 Ms Brennan undertook these tasks, based on the permit applicant's position, and I have taken into account other views about conditions that were expressed by Ms Darmos and Mr Vale, as well as Mr Darke. Ms Brennan filed a further submission via Stewart Thompson & Francis dated 1 April 2004.

8 Further submissions were received in accordance with the oral directions given by the Tribunal as follows - Deacons Lawyers for the Trust for Nature (dated 14 April 2004), Mr Vale for the 15 Mile Creek Camp (dated 16 April 2004) and Mr Darke for the Council (dated 16 April 2004). These supplementary submissions have been taken into account by the Tribunal.

9 The permit applicant owns land known as Crown Allotments 104A & 104B, Parish of Myrrhee, in addition to two other lots to the south known as Crown Allotments 110A and 110B. I refer to these lots as "the Lindsay land" for ease. There is currently no formalised vehicle access to these lots, land to the east of CA110A and 110B and land to the north and east now being in other ownerships.

s land owned by the Trust for Nature to the immediate north (Lot 2 PS317170).

s land to the east that is Crown land under the control of the Department of Sustainability and Environment (Crown Allotment 104E).

s Crown Allotment 99 (land owned by a family known as the Collivers).

11 The title information available to me shows various unmade government roads in the immediate area, such as that separating CA104A and 104B that extends to the north and south. To the north, the road reserve traverses the Trust for Nature land holding (Lot 2 PS317170) and Lot 5 PS414316 (a property owned by a family known as the Pravicas). A survey plan shows this road reserve, as it traverses the Trust for Nature land holding, to be some 30.18 metres wide. I was advised that the Trust has a 99 year license over the road reserve dating from 1994. That is made under Section 130 of the Land Act 1958.

12 Stakes marking out the road reserve where it runs through the 15 Mile Creek Camp/Trust property were evident on my site inspection. I also observed an existing track that is identified on the survey plan. That track is outside the road reserve in several places, albeit for a short distance at three points, as shown on the survey plan. The track is much narrower than the road reserve, at around 3 or so metres (although the width varies).

13 There is also an unmade government road that runs generally in an east-west direction separating CA99 and CA104A.

14 The Trust for Nature site is managed as part of the 15 Mile Creek Camp. The Camp also occupies the site of a former state school, abutting the Benalla-Whitfield Road, that is to the north-east of the Trust for Nature land holding. The circumstances leading to the acquisition of these properties by their current owners between 1975 and 1992 were well described by Mr Vale and through Ms Scanlon's evidence and I do not need to set out those matters in detail.

15 The Camp caters for many users, such as local primary school children and others drawn from a wide regional area as well as a range of service and community groups. Up to 40 children/persons plus staff can be accommodated. The Camp provides outdoor adventure activities including bushwalking, environmental studies, bird watching, rock climbing, abseiling, bike riding, orienteering, canoeing and many other activities.

16 I was advised that the Camp's activities are undertaken in accordance with relevant guidelines and the Camp has achieved accreditation through the Camping Association of Victoria. Activities associated with primary school children now require the activities to be confined to the Camp's property (including the Trust for Nature land). Ongoing support is provided by service and other groups to assist with works around the property.

17 All of these properties are to the west of the Benalla-Whitfield Road. Some lots, such as the Trust for Nature land, the Crown land (CA104E) and part of the Lindsay land comprise significant stands of vegetation. Other lands are more extensively (but not wholly) cleared, such as the Colliver land and parts of CA104A and 104B.

18 The land is generally undulating with gullies and valleys evident in addition to some prominent ridgelines.

19 The Application seeks approval to remove native vegetation in association with the construction of a road to access the four lots owned by the permit applicant, that is, CA104A, CA104B, CA110A and CA110B. It involves the use of the unmade government road reserve that extends from the Middle Creek Road in generally an easterly then south-easterly direction. The length of road sought to be created was variously described in submissions. It appears to be some 2.2 kilometres if terminating at the closest points of CA104A and CA104B or some 3.9-4 kilometres when extended to CA110A and CA110B (the latter not on the road reserve).

20 The location of the proposed road within the road reserve and the form of the road is not specified in either the permit application material or by way of the Notice. During the course of the Hearing, the form of the road within the road reserve has been more precisely articulated. The evidence of Mr Kelly was that the existing track could generally be used (although it peters out to the southern end). That possibility would not have been clear from the permit application material but could have been known by some of the parties. A condition included in the Notice would require the road to be built to the Council's standard specifications, which Mr Darke indicated would be 6 metres with 1 metre wide shoulders for a road serving 3 or more properties and defined by the Council as "an access track". I asked Mr Darke whether this could be varied, given the special circumstances of the land. He stated on the second day of the Hearing that it could, potentially to 4 metres with 0.5 metre shoulders and passing bays to 6 metres or with a road spilt around trees. Mr Vale referred to the Country Fire Authority's requirements as being a 4 metre road with 0.5 metre shoulders with passing bays every 200 metres.

21 The precise number of trees and extent of understorey required to be removed is not specified in the information accompanying the permit application. Net gain offsets have not been identified.

22 I was advised by Mr Darke that the Council expects the road to become a public highway once constructed and that the Council would assume management and maintenance responsibility.

23 The area affected by this proposal is included within a Public Conservation and Resource Zone pursuant to Clause 36.03 of the Wangaratta Planning Scheme ("the Scheme"). [Essentially, that is the Trust for Nature land at Lot 2 PS317170].

24 A permit is not required to use land for the purpose of a road if the conditions set out are met. If the conditions are not met, the use becomes Section 2. A permit is not required to remove vegetation.

25 The remainder of the land associated with the proposed access is located in a Rural Zone pursuant to Clause 35.01. A permit is not required to use land for the purpose of a road. A permit is not required to remove vegetation.

27 Clause 52.17 provides that a permit is required to removal, destroy or lop native vegetation. It is common ground between the parties that none of the exemptions apply in this case. Decision guidelines are set out and have been taken into consideration by the Tribunal. I note that they include the goal of Net Gain expressed in Victoria's Native Vegetation Management, the conservation and enhancement of the area, the role of the native vegetation and the need to retain native vegetation in specified circumstances. [I note that VC19, introducing the Net Gain Framework into the Victoria Planning Provisions, was gazetted on 24 July 2004 after the permit application was lodged with the Responsible Authority].

28 A number of other Clauses are relevant to this Application, and have been considered by the Tribunal. They include Clauses 15.09 and 17 of the State Planning Policy Framework, Clause 21 (Municipal Strategic Statement) and the decision guidelines at Clause 65.

29 I first refer to my conclusions in relation to the permissions required.

30 There is no dispute between the parties that the use of land for a road is a Section 1 use pursuant to the provisions of Clause 35.01 of the Scheme or that approval is required for the removal of native vegetation along the entire course of the proposed route pursuant to Clause 52.17 (notwithstanding different ownerships of land along the route).

31 In my view, the proposed road is not "conducted by or on behalf of a public land manager" as specified in Section 1 of Clause 36.03. Mr Darke conceded that the Council would not be seeking to make the road of its own volition and there is no suggestion that DSE would either. The road is not sought by any public land manager. Rather, the permit application is made by a private land owner with the purpose of securing access to privately held lots that can not otherwise be accessed without agreement from other private land owners. I reach that view aware of the Council's willingness to take over management of the road once constructed pursuant to the provisions of the Local Government Act 1989 and acknowledging that the consent of the land owner, DSE, has been obtained by the permit applicant.

32 There is no dispute that the other condition associated with "road" in Section 1 of the table at Clause 36.03 is not relevant, there being no incorporated plan in the schedule to the Zone.

33 The conditions not being met, a permit is therefore required for the use of the land for a road and for works as referred to in Clause 36.03-2.

34 I am not satisfied that the use would be prohibited, as was suggested by Mr Vale, as the reference to " The use in Section 1 described as `Any other use not in Section 2 or 3' - the Section 1 condition is not met" specifically addresses the final matter in Section 1 and is not applied more broadly.

36 Ms Brennan submitted that existing use rights apply in relation to the track within the road reserve, and where the track moves outside the road reserve, the permit application could be amended to seek approval for that part.

37 I have limited evidence in support of existing use rights being in place, although I note the provisions of Clause 63.11 in relation to the proof of continuous use. I also note that the valuation obtained by the Trust for Nature when considering its purchase of land refers to a track that is probably the same as that under consideration in this proceeding (see discussion below in relation to an existing track along part of the road reservation). That valuation dates from April 1990, 14 years ago.

38 It seems likely that the main track has been in continuing use primarily as a bike path and also as a walking trail, with some (earlier) limited private vehicle use. "Road" is defined at Section 4 of the Act and includes "footway" as well as highway, street, lane and other elements. It is notable in the circumstances of the current proceeding that there is no requirement for a road to be a thoroughfare or accessible to the public generally.

39 I am not persuaded on the information and evidence before me that the southern section of the track has experienced continuous use to satisfy the terms of Clause 63 of the Scheme and a small part of the existing track appears to be in a section of the Trust for Nature land holding rather than on the road reserve. To the south, the track may have been used in the past but has become bogged. It appears unused at present given the leaf debris and plant growth that were observed on inspection and commented upon by Mr Kelly and Mr Mueck.

40 My conclusion is that although part of the existing track may be able to establish existing use rights, that can not be said for the whole of the track.

41 As the road is sought to be created by a private individual who seeks to gain vehicular access to private property, I find that the use and development of part of the road within the Public Conservation and Resource Zone, including any sections involving land owned by the Trust for Nature, would require a planning permit. I have proceeded with my review of the proposal on that basis.

42 As a consequence of my finding, I also make the necessary amendment to the application, as requested by Ms Brennan, pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.

43 I have considered the submissions and evidence presented by the parties, inspected the site and locality in the presence of representatives of the parties, and reviewed the proposal in terms of the applicable planning policies and objectives of the Wangaratta Planning Scheme.

44 There is a complex history associated with various attempts by the permit applicant (and her late husband) to attempt to gain access to their land holdings. This led to two previous permits being issued, one in 1996 and another in 2000. There is some confusion as to whether the 1996 permit applied to the same land as being considered in the current proceedings. Despite a general view that it did, the permit itself refers to the land as CA104E which is the Crown land to the east of the review site, not the road reserve. That is not, however, a matter that becomes significant in my reaching my determination.

45 There appears to have been protracted and extensive discussions over a lengthy period with various adjacent land owners in an attempt to secure access to the Lindsay properties. These discussions have involved the Responsible Authority and DSE at times. This is set out in Ms Brennan's submission and the process appears to have been mindful of the desire to provide vehicle access while preventing or minimising the loss of native vegetation. I understand that there is a difference in opinion between the parties as to whether the Respondent may have been in a position to secure access over another lot she owned at a previous time but again I do not find it necessary to explore that matter.

46 Agreement has not been achieved with adjacent land owners whose land generally seems to have fewer environmental restrictions, or with the DSE in relation to Lot 104E (the Department previously allowing and now opposing access through its property).

47 I understand that it is now with reluctance that both the Council and Department of Sustainability and Environment have provided their support for the current proposal and that is, in my view, for obvious reasons.

48 I have not sought to explore options or to compare the current proposal with options that have been reviewed by the parties. However, I note that an option involving the Crown land at CA104E would also impact on land that appears to have significant environmental values.

49 I now turn to my consideration of the key issues:

s to the extent that a permit is required for the use of land for a road, would that use unreasonably impact on existing users of the land?

s is the proposal acceptable in terms of its impact on native vegetation, particularly in terms of the Net Gain Framework?

50 I deal first with the principle of using the road reserve to access the Lindsay land holdings.

51 I do not think it can be said that the presence of the road reserve can come as a surprise to the Applicants, as the title to Lot 2 PS317170 clearly shows the road reserve and the valuation prepared for the Trust prior to the land's purchase makes reference to the road and the then usage of an existing track through the property by a former adjacent land owner. However, I do appreciate that the potential for formalisation/construction of the road by another land owner may not have been anticipated by the Trust when it proceeded to purchase its property or by the Camp when it was established.

52 However, as a matter of principle, it is reasonable to allow a designated road reserve to be used for access purposes particularly when there seem to be no viable or feasible alternative.

53 In reaching that finding, I recognise that the introduction of a road used by more persons than at present would fragment the area of land currently enjoyed by the Camp. I also accept that the infiltration of weeds and the intrusion of other pests are possible with additional traffic and an upgraded road/pathway. These are negative impacts of the proposal that must be sought to be minimised.

54 Issues of safety and security were raised by the Camp, matters upon which Ms Darmos also commented. These are valid issues given the users of the Camp's impressive facilities. Some Camp activities would be affected. However, it seems that there are many and varied options for outdoor adventure on this property, as already demonstrated in the extensive activity program offered, and that the operation of the Camp would not be unreasonably compromised and the safety of children could continue to be readily managed. If access to the road is restricted, risks would be reduced. Access gates and keys may seem an inconvenience, but they would assist to control access to the proposed road and may give the Camp some comfort.

55 I understand from a response to a question I asked of Mr Darke that if the road was to be designed to Council's usual standards, and declared as a public highway, then it may be used by vehicles such as garbage trucks serving the Lindsay land.

56 It could be said that the Council offers its ratepayers remote from settlements a very high level of service, but the use of the track by garbage trucks would be undesirable and a strong reason why the road should be designed to be of a safe standard but of minimum required dimensions. The garbage truck would not use the narrower road option, Mr Darke said.

57 If the construction of the road is allowed, an option would be to licence the Respondent, instead of creating a public highway. This is not preferred by DSE. The Council also has some concern on the basis that the four Lindsay lots may eventually be in separate ownerships - the Council wishes to maintain some control over the road and its use. I accept that position.

58 The environmental values associated with the Trust for Nature land (and license area) are undisputed. It is common ground between the parties and experts that the land has high values, comprising Heathy Dry Forest and Valley Grassy Forest of regional and possibly state significance. Mr Mueck rated some of the values as very high. The vegetation that would be affected by the proposal is part of a larger contiguous area that was said by Mr Mueck to be in excellent condition and quite intact, albeit modified by some activities including past clearing. One species of national significance was identified, as viewed on my inspection, the narrow goodenia.

59 It is impossible to quantify the amount of native vegetation that would be lost given that the precise alignment of a road has yet to be confirmed. DSE estimated the area of habitat hectares would be influenced by certain assumptions such as the width of the road. DSE submitted that off-sets would be required to meet the requirements of the Native Vegetation Management Framework. Variations in calculations are possible if a meandering path is used compared with a more direct route as well as when taking into account understorey and grasses on the land within the Rural Zone which has been the subject of only limited consideration when compared with the assessments of the section of road reserve through the Trust for Nature/Camp property.

60 It is particularly significant in my view that neither Mr Kelly or Mr Mueck were able to assess a specific road alignment. Mr Mueck's evidence and prediction of habitat hectares lost were based on the whole of the 30 metre wide reserve being cleared, which is not the case as emerged through the Hearing. Mr Kelly's evidence does not attempt the same calculations at all.

61 Moreover, there is, in my mind, the outstanding matter of where the road would be located in the southern section of the Trust property/reserve that includes some notable and threatened species, such as narrow goodenia as observed on our inspection in a formerly boggy section of the disused track.

62 I have no information before me confirming a road alignment in this area, demonstrating how the threatened community could be avoided or treated, or how an all-weather road may traverse the sections of land that have drainage difficulties.

63 It is common ground that the affected area could be reduced or minimised if the existing track was followed and a road was constructed to a more limited extent that the Council's usual specifications would seek. The two options raised by the Council have been referred to at paragraph 20.

64 Both experts, Mr Kelly and Mr Mueck, agreed that that the accurate determination of net gain losses and offsets can only be made after the form and alignment of the road are identified and the amount and quality of the vegetation to be removed is determined. At the Hearing, Mr Kelly endeavoured to identify some general options to achieve the required offsets although Mr Mueck had not visited the Lindsay land and could not conclude whether there is potential to achieve offsets on that land.

65 In addition to the area of native vegetation affected, a further consideration is the impact on retained vegetation such as the potential for increased weed infestation that would affect the quality of the retained land, as I have already referred to.

66 It is fair to conclude that the main point of dispute is, therefore, the first of the three steps in the Native Vegetation Framework - avoidance. Victoria's Native Vegetation Management - A Framework for Action (Department of Natural Resources and Environment 2002 ) was incorporated in the Scheme by Amendment VC19 (gazetted on 24 July 2003). Amendments to Clauses 11.03-2 and 15.09 were made as a result of the implementation of the Framework. Relevantly, Clause 15.09-2 provides:

* Planning and responsible authorities should have regard to Victoria's Native Vegetation Management - A Framework for Action (Department of Natural Resources and Environment 2002). If native vegetation is proposed to be removed as part of a land use or development proposal, planning and responsible authorities should achieve a Net Gain outcome, as defined in the Framework. This is achieved firstly, as a priority, by avoiding adverse impacts, particularly native vegetation clearance; secondly, if impacts cannot be avoided, by minimising impacts through appropriate consideration in planning processes and expert input into project design or management; and thirdly, by identifying appropriate offset actions. The criteria of determining the appropriate response and offsets are contained within the Framework.

* Responsible authorities should ensure that the siting of new buildings and works minimises the removal or fragmentation of native vegetation.

67 As noted, at the time the Respondent lodged the permit application, the Framework was not an incorporated document. I understand that the operational guidelines have not yet been finalised, although Mr Mueck's company appears to be involved in the preparation or review of the operational guidelines, based on his oral evidence.

68 In Application for Review No. P1675/2003 Roman Catholic Trusts Corporation for the Diocese of Melbourne v Maroondah City Council and Ors [2004] VCAT 470, the weight to be given to the Net Gain approach in absence of completed operational guidelines was considered. The Tribunal refers to correspondence from DSE which stated, in part:

There is recognition, that in the interim until these Operational Guidelines are issued, Councils, and applicants cannot be expected to require (or undertake) the full details of the Net Gain approach. In particular, application of Table 6 in the Framework to decision making which includes the response to the proposal, the use of habitat hectares, detailed offset calculations and so on cannot be effectively undertaken until the necessary explanatory documentation is provided. In the interim the broad principles of Net Gain (specifically the three step approach) should be used in decision making for applications to remove native vegetation. These broad principles to achieve Net Gain have been adopted by DSE in its role as a referral authority since the Framework was released in August 2002.

69 The Tribunal went on to conclude on this point as follows:

The principles set out in State Policy and the incorporation of the Native Vegetation Framework document at the very least place a stronger emphasis on the value of and the need to increase native vegetation for habitat, water conservation and other purposes. Given the evidence of Mr Muir, without the operational guidelines being in place, at the very least consideration is required of how adverse impacts on vegetation could be avoided and, should it be necessary to remove that vegetation, replacement should be at higher levels such that a net gain is achieved. The Tribunal considers that the overall intent and principles of the Framework document, carry substantial weight even if the operational guidelines for the use of the document have not yet been finalised. [Emphasis added]

70 That case concerned a 20 lot subdivision and I note that ultimately the Tribunal did not allow the Application, for reasons including the following:

These uncertainties mean that the Tribunal does not have confidence that the proposed subdivision and building envelope layout takes sufficient account of the need for protection and enhancement of both the significant vegetation on site and the significant landscape character. [Emphasis added]

71 I have already indicated that the use of the road reserve is acceptable as there is no realistic option to avoid the removal of native vegetation. The key, therefore, is minimisation.

72 I find myself in a comparable position as the Tribunal in Roman Catholic Trusts Corporation that I have cited at paragraph 70 in so far as some important matters remain uncertain in the current proceedings. While I agree with Ms Brennan that "the extent of inquiry carried out in relation to the multi million dollar Douglas Sands Mine is not appropriate or necessary in this case", the high value of the vegetation on the review site demands a proper understanding of exactly what is sought to be approved. My primary concern is not with the principle of using the road reserve per se given that it is the purpose of the reserve, rather, it is the lack of information about the extent of works proposed, notably in relation to the southern portion of the road, given poor drainage and the presence of the narrow goodenia that has identified based on a limited survey.

73 Another case involved the proposed removal of native vegetation for the extension of a golf/country club (Application for Review No. P1876/2003 Lorne Country Club Inc and Avrio Pty Ltd v Surf Coast Shire Council and Ors). The operation of the Framework was referred to by the Tribunal:

It was the case for the applicants also that there is a level of inexperience across the board with implementing the net gain approach. In support of this we were referred to the Department's letter of 19 November 2003, addressed to all Councils and tendered by Mr Costello. An attachment to that letter acknowledges that application of Table 6 in the framework to decision making which includes the response to proposal, the use of habitat hectares, detailed off-set calculations and so on cannot be effectively undertaken until the necessary explanatory document is provided. The attachment advises that new operational guidelines are in preparation and that working through the details of the net gain process with willing proponents has provided valuable opportunities to clarify and refine issues for the operational guidelines.

As provided for at Clause 11 of the Scheme we must have regard to and attempt to integrate the whole range of applicable policies and where necessary balance conflicting policies in favour of net community benefit and sustainable development. To focus on one policy outcome to the exclusion of others fails to recognise this.....

The development has sought at first instance to avoid the Wrinkle Buttons and then to minimise future impacts through the implementation of a Wrinkle Buttons Management Plan, as well through other management approaches such as specialised golf rules and codes of conduct, the adoption by the Club of a bush course image, the use of fencing, boardwalks and no go zones. All of these measures are consistent with the second of the Three Step approach set out in the Framework for Action this being if impacts cannot be avoided, to minimise impacts through appropriate consideration in planning processes and expert input to project design or management......

We agree with Mr Dance that this proposal has followed a design process that has relied heavily on expert input. As he put it it has not been some sort of a Johnny come lately scheme but rather a project reliant on a multi-disciplinary team approach, consistent with the Framework's Three Step approach. This multi-disciplinary team, according to Mr Dance's evidence, contributed to the decision to reduce the extent of clearance from more than 10 hectares to the current 5.0 hectares plus 1.1 hectares of canopy removal....

The Framework is however a guideline and not a statutory rule and as already acknowledged it is early days in the operation of net gain, with the Department still working on the operational guidelines referred to at Clause 52.17...

75 It is, therefore, relevant that in both cases cited that other divisions of the Tribunal have been mindful of the early stage in the evolution of the implementation of the Framework for Action. In Lorne, it is noteworthy for the purposes of the current proceedings that the Tribunal was persuaded to allow various matters to be addressed by way of permit conditions requiring secondary consent. The Tribunal said:

We are satisfied that the proponents have a clear commitment to work with an independent and expert multi-disciplinary team in order to find responsible and responsive off-set options.

While we accept the benefit of a permit being tied down as far as possible, we do not agree that a secondary consent provision is inappropriate in this case. We are confident that an appropriate offset package can be negotiated but acknowledge that its formulation may require some creative and lateral thinking. We are confident also, having regard to the nature of this proposal that the provision of an offset package would be unlikely to conflict with other aspects of the approved development or otherwise cause the provisions of the permit to become internally inconsistent and difficult to implement. We acknowledge that this can sometimes occur in relation to secondary consent conditions but are not persuaded that it is likely here.

76 From the information contained in the Tribunal's statement of reasons, it seems that extensive expert investigation had been undertaken to identify the Wrinkled Button community and to avoid it, to identify habitat hectares lost and to nominate potential off-sets.

77 In the current proceedings, the proposal is not as large as that under consideration in Lorne. A balanced assessment of the proposal against policy must not focus only on the vegetation that may potentially be lost. The fact that the road reserve has been designated for many years and provides a lawful opportunity to gain access to the Lindsay land can not be ignored. This is not dissimilar to the situation in Lorne where the Tribunal gave weight to the inclusion of the land in a Township Zone, within an activity centre under the Coastal Strategy, and objectives relating to tourism and economic development.

78 Having said that, and being mindful of the policy emphasis on native vegetation protection, as I have already foreshadowed, there are a number of aspects of the proposal that trouble me because of their uncertainty. These are summarised as follows:

(a) The precise alignment of the proposed road has not been identified once it reaches the end of the existing track.

(b) Constructing the road along the alignment of the existing track seems logical given the area has already been disturbed, however, the extent of works required to create all weather access may cause the removal or relocation of the current known location of the narrow goodenia (although perhaps it is feasible to investigate an option going over the drainage line akin to a "boardwalk"). There is no plan for the management of that species, a species of national significance that is found on the land, and the extent of the community is also unclear. It is not apparent if the community can be avoided as only one location has been identified during a summer botanical survey.

(c) There seems no dispute between the experts that a spring survey could assist in identifying the extent of the community of narrow goodenia and other species present on the land, this being the most suitable time to undertake such a survey.

(d) Two routes could potentially be chosen toward the southern portion of Lot 2 PS317170 once the existing track peters out, however, the desirability of either option when contemplating the form of an all-weather access road remains to be investigated mindful of anecdotes as to the boggy nature of at least some of this land. Even the late Mr V Lindsay appeared to have reservations about this, as referred to in correspondence tendered at the Hearing, dated 28 November 1997 (Appendix 4 to Ms Darmos' submission). It is also not yet apparent if an accessway can be confined to within the road reserve.

(e) The impact on native vegetation beyond Lot 2 PS317170 is unclear; there is no information as to the location of the proposed road in CA104A and B or leading to/within CA110A and 110B and therefore the extent of vegetation loss and exact species/communities that may be impacted is unidentified.

(f) While the evidence of Mr Kelly was that there is "huge potential" for off-sets to be found or achieved on the Lindsay land, it is common ground between the experts that the extent and form of off-sets can not be determined until the habitat loss is identified - something that requires the precise road alignment and form to be determined. There is disagreement between Mr Kelly and Mr Mueck as to whether off-sets along the road reserve could be included in an off-set calculation.

79 The lack of some of this information up-front was criticised by Ms Darmos.

80 In response, Ms Brennan submitted that her clients are lay persons and that other options have been explored without success. She said that it was relevant that DSE had walked along the various alternative routes and consented to the grant of a permit. Moreover, she submitted that on the basis of Mr Kelly's evidence:

the Tribunal can be satisfied that native vegetation removal has been minimised, can be compensated and particularly if the road follows the route of the existing track, will not result in significant loss.

81 The lengthy history of this matter makes me loathe to reach a position that adds to uncertainty and protracts a conclusion as to the possible use of the unused road to access the Lindsay land. I therefore make clear that I am satisfied that it is reasonable to allow the use of the road reserve for an accessway, as the extent of clearing can be minimised by using the existing track. I am also prepared to allow the matter of off-sets to be the subject of a secondary consent involving the Responsible Authority and Respondent. However, I am firmly of the view that there is a need for greater clarity on at least some of the matters I have listed above; notably the road alignment beyond the end of the existing track and into the Lindsay land holdings. This information is necessary for the purposes of understanding habitat hectares lost and also in ensuring that the construction of an accessway is actually possible and feasible to serve the intended function.

82 If the use of the existing track was to be allowed, the question arises as to how to address the circumstance that part falls outside the road reserve within land owned by the Trust for Nature.

83 Ms Brennan submitted that Section 36 of the Subdivision Act 1988 could be used to deal with this situation, as the Tribunal could make a statement to allow the permit applicant to acquire an easement over the Trust's land. Authority for this position is set out in her submission.

84 These submissions were challenged by Mr Vale and Deacons Lawyers in their supplementary written submissions, relying (inter alia) on the purpose of the Section being linked to subdivision, which is not part of the current permit application. I note the suggestion by Deacons that, as an alternative, the Tribunal could direct the Trust for Nature (being a "specified body" that includes a "public authority" under Section 148 of the Planning and Environment Act 1987) to enter into a Section 173 agreement with DSE. The purpose of the agreement would be to secure exchange of those parts of the established track that are not located in the road reserve. The suggestion went on to seek the extinguishment of the remainder of the road reserve as part an agreement.

85 I have doubt about the ability and desirability of using Section 36 of the _Subdivision A_ct 1988 and the suggestion made by Deacons Lawyers in relation to a Section 173 agreement would, on the face of it, seem to be simpler and therefore more attractive. I am not satisfied that there is adequate information before me to direct the extinguishment of the balance of the road reserve, but that may be a matter that the Trust and Camp could ultimately pursue in consultation with the Council.

86 A number of other matters were discussed in relation to possible permit conditions, upon which it is necessary to make findings or remarks.

87 First, is that a number of the conditions included on the Notice would require revision assuming the existing track is used and the form of the access is of a different standard to that originally envisaged by the Council. I would be seeking to minimise vegetation removal and impacts by adopting a narrow track with passing bays to satisfy the requirements of the Country Fire Authority.

88 Second, I am persuaded by the views expressed by the Council and Respondent that the Trust for Nature should not be included as a party in a secondary consent process. While I appreciate the Trust's interest and abilities, I am satisfied that off-sets and Environmental Management Plans can properly be dealt with by the Responsible Authority and DSE. That would not prevent the Trust being consulted, or the Trust making its views know to the Responsible Authority and DSE.

89 Third, the inclusion of warning and speed signs along the road, as suggested by Mr Vale, would be appropriate and desirable. It is noted that further approvals may be required, such as through VicRoads for a 40 km/hr speed limit. I am not persuaded that fencing should be required to be erected by the Respondent.

90 Fourth, I have already indicated that some other restrictions on the use of the road would be desirable, preventing garbage trucks, for example.

91 The desire by the Respondent to formalise access to her land holdings has a very long history. This has not been an easy matter to determine as I place great weight on the value of the vegetation on the review site as well as the need for some certainty when considering proposals for its removal and the identification of appropriate off-sets.

92 Unlike Lorne and more akin with circumstances in Roman Catholic Trusts Corporation, the current proposal can be said to fail against policy in some respects, in so far as the exact alignment and habitat loss is not defined and off-sets can also therefore not be identified.

93 I have reached the conclusion that it is reasonable to allow the permit applicant to construct vehicle access using a reserve set aside for that purpose if the impacts on native vegetation can be adequately minimised and principles of net gain achieved. Indeed, there appears no other reasonable option currently available as unfortunately agreement has not been able to be reached with adjacent land owners. Using the existing accessway, constructed to a different standard than the Council would usually require in recognition of the special circumstances of this site, would allow such impacts to be minimised, albeit there would obviously be some vegetation loss and consequent impacts. The main problem is that the proposed location of a road to the southern end of the reserve is yet to be confirmed, as is the form of road to address sections of what appears to be poorly drained land. The extent of habitat hectares lost can not, therefore, be properly determined to provide a basis for the nomination of off-sets as a supplementary stage.

94 I add that these investigations would have been required if the permit had issued in the form proposed by the Council, however, through the close scrutiny of a Tribunal Hearing, some matters have been clarified and more precisely defined. In my view, a better outcome is likely to be achieved.

95 For the above reasons, I have decided to defer a final decision in this Application to allow the Respondent to provide further information in relation to the location and form of the proposed access where the existing track peters out within the road reserve and into the balance of the Lindsay land. My directions set out a timeframe for this information to be filed and served and for responses from other parties and DSE. I also seek responses from the parties in relation to the suggestion by Deacon's Lawyers I have referred to in paragraph 84 above, and commented on at paragraph 85, and particularly whether DSE and the Trust would consent to such a condition in the more limited form that I have discussed.