//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2001] VCAT 1593
appellant. The Tribunal granted the application for review, set aside the Responsible Authority's decision and ordered that a planning permit issue for removal of selected trees, planting of vineyard and...
The Tribunal reviewed council refusals of permits to remove a small area of regrowth native vegetation and to convert parts of a 14 ha property to olives and vines and enlarge dams. Although the planning scheme emphasises retention of remnant vegetation and protection of catchments, the proposal bundled limited clearing with a substantial package of environmental measures: revegetation, buffer plantings, fencing, dam construction controls and a required Section 173 Agreement with a long-term management plan. The Department of Natural Resources and Environment, initially objecting, accepted the proposal subject to these measures. The Tribunal found that, on balance, and with the conditions imposed, the proposal would conserve and enhance landscape and biodiversity values and achieve net gains required by the Biodiversity Strategy, and therefore granted the permit subject to detailed conditions.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,717 words · generated 06/09/2026
1 cited instrument linked from this judgment.
Sally W. Bell applied for planning permits to remove selected trees, establish an olive grove and a vineyard, and enlarge existing dams on a 14 hectare property at 45 Brick Kiln Road, Woodend. Two permit applications were lodged (P99-0420 on 29 June 1999 and P200-0191 on 27 February 2000). The Macedon Ranges Shire Council refused the application(s) following referrals and objections, principally on grounds that the proposals were contrary to landscape and native vegetation protection objectives and potentially inconsistent with Victoria's Biodiversity Strategy (Reasons [28]–[36], [31]).
The applicant sought review at the Victorian Civil and Administrative Tribunal. The Tribunal heard evidence, accepted substituted plans prepared by the applicant’s landscape architect (plans 2242/1–3), inspected the site, and received submissions from the Council, the Department of Natural Resources and Environment (DNRE), and the applicant’s expert witness (Reasons [3]–[6], [6]). The site comprised largely cleared grazing land (approx 80–85%) with remnant native vegetation in two small pockets and along a drainage line; the applicants proposed to remove 0.185 hectares of regrowth saplings, plant approximately 2.3 hectares of olives and 4.2 hectares of vineyard, enlarge a dam (from 3 ML to 7 ML), and undertake 0.5 hectares of revegetation plus buffer plantings and fencing to exclude stock (Reasons [7], [40]).
DNRE initially objected, but by the hearing reported it had moved to 'no objection' provided the proposal was implemented in accordance with the submitted plans and conditions, including a Section 173 Agreement; DNRE expressly stated the approach would achieve net gains as required by the Biodiversity Strategy (Reason [42]). The Council's environmental officers remained concerned about the proposed removal of the small remnant area, its value for wildlife habitat and its role in wildlife corridors (Reasons [43], [39]).
The Tribunal concluded that the package of measures (revegetation, buffer plantings, fencing, management plan and conditions, plus a Section 173 Agreement) addressed the decision guidelines in Clause 52.17 and the planning scheme policies sufficiently to secure net biodiversity gains, and that the proposed layout balanced environmental and commercial outcomes. The Tribunal ordered that the Council's refusal be set aside and a permit issue subject to detailed conditions (Order and Reasons [45]–[47]).
The Tribunal's reasoning turned on a policy-driven, fact-specific balancing exercise grounded in the Planning Scheme's decision guidelines, especially Clause 52.17 (native vegetation), the State Planning Policy Framework (SPPF), the Municipal Strategic Statement and local policies emphasising conservation of remnant vegetation and catchment protection (Reasons [20]–[27], [23]). Clause 52.17 decision guidelines highlighted the need to consider land management works, replanting elsewhere on the land, buffers, and fencing to exclude stock (Reason [41]). The Tribunal identified that the applicant’s proposal included a land management program: 0.5 hectares of revegetation, buffer plantings along the north boundary, fencing of the watercourse and remnant stands, and a plan for dam works and sediment control (Reasons [40]–[41], [9]).
A pivotal factual point was DNRE's conditional acceptance. DNRE shifted from objection to no objection on the basis that, implemented according to plans and conditions including a s173 Agreement, the proposal would achieve net gains required by the Biodiversity Strategy (Reason [42]). The Tribunal gave this agency view weight: it treated DNRE's conditional support as evidence that the statutory policy objective of biodiversity net gains could be satisfied by the proposed conditions and legal covenant (s173) (Reason [42]).
The Tribunal also considered additional plantings to strengthen a habitat link along the north boundary as recommended by DNRE and endorsed some extensions to the revegetation modules to augment conservation outcomes (Reasons [46]). On balance, the Tribunal judged that the proposed removal of a small area of regrowth, coupled with substantial revegetation and enforceable management obligations, would conserve and enhance the natural environment and landscape values and assist the role of native vegetation in conserving flora and fauna and protecting water quality (Reasons [44]–[46]).
Before this decision, the relevant planning framework in the municipality already placed strong emphasis on retention and protection of remnant vegetation, catchment management and landscape character (SPPF, MSS, Clause 22 policies, Reasons [23]–[27], [11]). Clause 52.17 required decision-makers to consider retention and re-establishment of native vegetation and its roles (Reason [21]). The practical legal question was not the existence of those policies but how strictly they operate as an absolute bar to clearing in every case.
After Bell v Macedon Ranges SC, the decision demonstrates the Tribunal exercising the ordinary planning discretion to permit limited clearing where an overall package of works, conditions and a s173 Agreement can be shown to produce net biodiversity gains and to respond to decision guidelines. It confirms that an agency’s conditional concurrence (DNRE) can be decisive where it indicates the statutory objectives (here, those of the Biodiversity Strategy and Clause 52.17) will be met through conditions and covenants (Reason [42]). The case therefore stands as an example of pragmatic balancing within the planning framework: strong policy protection of vegetation is important, but not invariably fatal to proposals that include compensatory and protective measures secured by enforceable agreements.
Passage: "Ms Slechton... acknowledges that the proposal before the Tribunal 'addresses several of the decision guidelines contained within Clause 52.17 of the SPPF'..." (Reason [41]). Plain-English: The Council planner agreed the applicant had included many of the specific elements the planning rules say you should have when clearing vegetation, things like a management program and replacement planting.
Passage: "Mr David Grace of DNRE... 'now has `no objection' provided the proposal is implemented in accordance with the tabled development plans and conditions (including a Section 173 Agreement). 'The Department is satisfied that this approach will now achieve net gains as required in the Biodiversity strategy.'" (Reason [42]). Plain-English: The state environment agency initially objected, but accepted the proposal if the Tribunal imposed the recommended conditions and a legal covenant, because it judged that would lead to an overall environmental improvement.
Passage: "The Tribunal finds the proposed layout carefully balances the environmental and commercial outcomes for the site... the proposal with suitable conditions can result in net gains as required in the Biodiversity Strategy and a permit should issue." (Reason [47]). Plain-English: The Tribunal decided that the mix of limited removal plus the steps to restore and protect vegetation makes the development acceptable and consistent with biodiversity goals, so it granted the permit.
Passage: "It is policy that 'all remnant vegetation and exotic vegetation which contributes to the unique landscape quality or character of the area should be preserved.'" (Clause 22.06, Reason [27]). Plain-English: Local policy prefers preserving most native and even some exotic vegetation because it helps define the area's character.
This Tribunal decision is most directly relevant where:
If those facts are present, Bell illustrates that a Tribunal may exercise discretion to permit limited removal provided the overall package secures net environmental gains.
The source text contains no citations to later cases, and the decision itself does not report subsequent judicial treatment. Within the judgment the Tribunal cites and relies on local and state planning policy and the DNRE's stance. Practitioners should treat Bell as an administrative tribunal decision applying statutory scheme provisions and agency concurrence in a particular factual setting. Its value as precedent lies in persuasive application of balancing principles in similar fact situations: limited clearing offset by robust on-site conservation measures and binding agreements. For authoritative treatment beyond VCAT, one should search subsequent VCAT and higher court decisions citing this case.
Degree of generalisability: The Tribunal’s finding depends heavily on the specific measures and the small area of clearing. It remains open how readily the balancing approach would apply where larger areas of remnant vegetation are proposed for removal or where revegetation is off-site rather than on-site, or where DNRE maintains objection.
Quality of vegetation and habitat value: The Tribunal accepted removal of regrowth and some older specimens but weighed this against revegetation. How higher courts would treat removal of higher-quality, mature or endangered vegetation in comparable contexts is unresolved in this decision.
Net gain measurement and enforceability: The judgment accepts DNRE’s view that the conditioned package would achieve 'net gains' for biodiversity. It does not articulate a quantitative or threshold test for net gain. Future disputes could focus on how to measure net gains reliably and whether s173 Agreements and planting specifications are sufficient to secure them long-term.
Precedent effect on other municipalities with stricter policies: The decision interprets local policy in context. How this balancing would fare under a more prescriptive local policy framework or under overlays that impose stronger constraints (e.g. heritage overlays, more stringent environmental overlays) remains to be tested.
Interaction with Flora and Fauna protections beyond planning: The decision rests on planning controls and agency concurrence; it does not address separate statutory protections (e.g. threatened species legislation) that might apply independently of planning permissions. Whether a planning permit in such circumstances could be constrained by other environmental statutes was not in issue here.
This concludes the deep dive into Bell v Macedon Ranges SC [2001] VCAT 1593. This analysis is based only on the text of the judgment provided above. It is general legal information, not legal advice. I can be mistaken. Before you act on this, rely on it, or use any draft based on it, get a qualified Australian lawyer to check it.
The Application for Review 2000/92021 is granted, the decision of the Responsible Authority is stood aside and a planning permit shall issue to allow the removal of selected trees, the planting of a vineyard and olive grove and to carry out building and works to enlarge existing dams in accordance with the Landscape Statement dated 20 March 2001 and endorsed plans and subject to the following conditions:
1. Before the use and/or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with plans numbered 2242/1 of 2, 2242/2 of 2, and 2242/3 but modified to show the areas A, B, C, D, E and F as on the attached sketch entitled "Section 173 Agreement Plan."
2. The revegetation approved under condition 1 of this permit shall be undertaken within 12 months of the date of this permit and maintained thereafter to the requirements and satisfaction of the Responsible Authority.
3. The existing vegetation within the areas set aside for grazing shown on Section 173 Agreement plan to be fenced out of the grazing area shall be fenced with stock proof fencing within 3 months of the date of this permit to the satisfaction of the Responsible Authority.
4. Only those trees indicated for removal on the attached endorsed plan shall be removed.
5. Within 3 months of the felling of the trees, all foliage from the fallen trees shall be mulched on site or removed from the site to the satisfaction of the Responsible Authority.
6. Vegetation removed must be removed and disposed of without causing any damage to surrounding native vegetation stands or habitat to the satisfaction of the Responsible Authority.
7. The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by means of the emission of smoke, dust, fumes,odour, noise, vibration, waste product or otherwise.
8. The site shall be so ordered and maintained as not to prejudicially affect the amenity of the locality by reason of appearance.
9. The following shall be undertaken to the requirements of Goulburn Murray Water and the satisfaction of the Responsible Authority.
9.1 Designs and specifications of the proposed dam to be enlarged must be submitted to the Responsible Authority and Goulburn Murray Water for assessment prior to commencement of any works.
9.2 A minimum 30 metre buffer strip of undisturbed vegetation and no development must be maintained along all waterways.
9.3 Construction must follow sediment control principles outlined in Construction Techniques For Sediment Pollution Control (EPA, 1991).
9.5 Grading, excavation and construction must not proceed during periods of heavy rainfall.
9.6 Sediment traps must be designed, installed and maintained to maximise the volume of sediment trapped from the construction site.
9.7 The proponent is required to comply with the Irrigation Development Guidelines implemented by G-MW and NRE.
9.8 The dam must be constructed with a clay liner (or similar impervious material) to a hydraulic conductivity equal to 1 x 10-9 m/s to prevent seepage and groundwater flow towards the structure.
9.9 The extent of earthworks during construction shall be minimised and disturbed areas stabilised and revegetated following the completion of works.
9.10 Works must be carried out in accordance with the submitted designs and specifications. Any alterations to the proposal must be forwarded to G-MW for approval.
9.11 A licence must be obtained from Goulburn Valley Water where surface water or groundwater supplies are required.
10. The following shall be undertaken to the requirements of the Department and Natural Resources and Environment and satisfaction of the Responsible Authority:
10.1 Vegetation located along the north-south watercourse shall not be removed, destroyed or lopped and no vegetation shall be removed, destroyed or lopped for the proposed enlargement of the dam.
10.2 The development shall be in accordance with the Plan titled `Orchard, Tree Removal and Dam Enlargement, 45 Brick Kiln Road, Woodend South, Landscape Statement' as amended by letter from Carol Frank-Mas dated 26 April 2001.
10.3 No development of any kind may be carried out on the subject land unless the owners of the land have entered into an agreement with the Responsible Authority pursuant to Section 173 of the Planning and Environment Act 1987. That agreement will be placed on those areas marked `A', `B', `C', `D', `E' and `F' and those extended revegetation modules along the northern boundary on the attached Section 173 Agreement Plan which forms part of this permit and must provide for the following matters:
10.3.1 A long term Management Plan to maintain, protect and enhance the habitat values of the indigenous vegetation.
10.3.2 Regeneration of the areas marked `A' to `F' (inclusive) and replacement planting in areas `B' and `E' to compensate for the removal of the vegetation in the south-west corner of the land as permitted by this permit.
10.3.3 Measures to protect and maintain all regrowth and new plantings established in accordance with this permit from future activities carried out on the subject land.
10.3.4 The removal of environmental and/or noxious weeds.
10.3.5 The construction of fences where necessary which are to be maintained to the satisfaction of the Responsible Authority in order to prevent the entry of any livestock on to the areas subject to this Agreement. No livestock shall be permitted to enter this area. Any fencing shall be designed to minimise the impact of free ranging wildlife to the satisfaction of the Responsible Authority.
10.3.6 No native trees plants grasses or understorey shall be removed, destroyed or loped or otherwise damaged in any way.
10.3.7 No non-locally indigenous flora (including tree shrubs or grasses) shall be planted.
10.3.8 No act or omission that may adversely effect any indigenous flora or fauns or related habitats is to occur.
10.4 Within 12 months of the date of this permit, noxious weeds, in particular gorse, shall be removed from site to the satisfaction of the Responsible Authority.
10.5 The dam shall be constructed in accordance with sound engineering practices to the satisfaction of the Responsible Authority and should include:
10.5.1 Removing and storing topsoil and respreading on the dam bank in order to shape it.
10.5.2 Revegetating the dam bank after it has been shaped by the planting of pasture species.
10.5.3 Internal dam batters should not exceed 2 (horizontal) : 1 (vertical).
10.5.4 The water overflow should be properly stabilised either by planting or by mechanical means so as to prevent soil erosion.
10.6 The area of gully erosion below the dam should be stabilised to the satisfaction of the Responsible Authority.
11. The applicant shall pay all reasonable legal cost associated with the preparation, execution, stamping and lodging of the Section 173 Agreement required by Condition 10.3.
12. This permit shall expire if the development hereby permitted is either not commenced within two years, or not completed within four years, from the date of the permit. A written application may be made to the Responsible Authority for the extension of the permit prior to the permit expiring or within three months after the expiry of the permit.
Ms Fiona Slechton, Town Planner, appeared for the Responsible Authority in conjunction with Ms Margaret Brennan of the Council's Environment Department.
Mr David Grace, Senior Statutory Planner appeared for the Department of Natural Resources and Environment.
Mr John Cicero, Principal of Best Hooper, Solicitors, appeared for the Permit Applicant/Applicant for Review who called Ms Carol Frank-Mas, Landscape Architect as an expert witness.
Both applications are made under Section 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.
Both applications are for the removal of selected trees in order to plant an olive grove and to install a dam.
268 metres west and 452 metres south abuttals to Brick Kiln Road.
The land is located within a "Low Density Residential Zone" under the Macedon Ranges Planning Scheme.
1. The application is contrary to the objectives of the Landscape Residential zone.
2. The proposal would be detrimental to the outlook and amenity of the area.
3. The proposal is contrary to the purposes of the Macedon Ranges and Surrounds Policy.
4. The proposal is inappropriate due to the area of cleared land already available on the site.
5. The Department of Natural Resources and Environment is of the view that the proposal is inconsistent with Victoria's Bio-Diversity Strategy and have objected to the proposal.
1. The application is not contrary to the objective of the Landcare Residential Zone.
2. The proposal would not be detrimental to the outcome and amending of the area.
3. The proposal is not contrary to the purposes of the Macedon Ranges and Surrento Policy.
4. The proposal is not inappropriate due to the area of cleared land already available on the site.
1. The proposal is contrary to the decision guidelines contained within the Low Density Residential Zone.
2. The proposal is contrary to the purpose and decision guidelines contained within the Particular Provisions - Clause 52.17 Native Vegetation.
3. The proposal is contrary to the policies relating to the State Environment Policy and more specifically the Conservation of Native Flora and Fauns as expressed in the State Planning Policy and the Local Planning Policy Framework of the Macedon Ranges Planning Scheme.
4. The proposal is inappropriate due to the area of cleared land already available on the site.
5. The proposal would be detrimental to the outlook and amenity of the area.
6. The Department of Natural Resources and Environment is of the view that the proposal is inconsistent with Victoria's Bio-Diversity Strategy and have objected to the proposal.
1. The proposal is not contrary to the decision guidelines contained within the Low Density Residential Zone.
2. The proposal is not contrary to the purpose and decision guidelines contained with the Particular Provisions - c.52.17.
3. The proposal is not contrary to the State Environment Policy the State Planning Policy or the Local Planning Policy Framework of the Macedon Ranges Planning Scheme.
4. The proposal is not inappropriate due to the area of closed land already available on the site.
5. The proposal would not be detrimental to the outlook and amenity of the area.
6. The Department of Natural Resources and Environment have incorrectly formed the view that the proposal is inconsistent with Victoria's Bio-Diversity Strategy and have wrongly objected to the proposal.
7. The Macedon Ranges Shire Council has the discretion to grant the permit application and should have exercised its discretion accordingly.
1. These applications have been brought by a Permit Applicant against decisions by Macedon Ranges Shire Council to refuse to grant planning permits to allow the removal of selected trees in order to plant an olive grove and install a dam at 45 Brick Kiln Road, Woodend.
2. The parties presented oral argument with supporting written submissions. These together with the photographs and other material tendered in the course of the Review, have been retained on the Tribunal's file.
3. Mr Cicero on behalf of the Permit Applicant sought leave to substitute new plans for those that accompanied the applications for Planning Permit. There being no objection, leave was granted.
4. The substituted plans prepared by Carol Frank-Mas are numbered 2242/1 of 2, 2242/2 of 2 and 2242/3.
5. Amendment of the permission sought, namely permission to remove selected trees, plant vineyard and olive grove and carry out building and works to enlarge existing dams - leave was granted.
7. Ms Slechton has described the land and environs, as follows:
"The subject property is located approximately 2.5 kilometres south of the centre of the Woodend township.
The property is described as Crown Allotments 4 & 6C, Section 14 Parish of Woodend, being No. 45 Brick Kiln Road.
The property is bound by Brick Kiln Road to the west and south and Blackmore Road to the east. Crown Allotment 4 comprises an area of 12.14 hectares and Crown Allotment 6 has an area of 1.86 hectares. The total land area is approximately 14 hectares (34.5 acres).
A significant portion (approximately 80-85%) of the land is cleared and is used for grazing. The remaining remnant vegetation is located in two areas, one being a small fenced area in the south west corner of the land and the other being a slightly larger area in the north west corner of the property. There is some native vegetation along the southern and eastern boundaries of the site (interspersed with gorse), and along a drainage line which traverses the land.
The property includes various improvements including a dwelling, shedding, driveway, tennis court, fencing and three dams. A garden area surrounding the dwelling contains predominantly non-native vegetation.
Lot sizes in the immediate area are generally in the range of 2 hectares to 10 hectares in size. Land uses in the area are mostly of a low density residential nature. The surrounding land generally contains more native vegetation than the subject site and over time, these lots have been the subject of some minor clearing to enable dwellings to be constructed."
8. The permit applicant has made two applications for planning permit, the first, P99-0420 (VCAT 2000/000334) made on the 29 June 1999 and the second P200-0191 (VCAT 2000/92021) made on 27 February 2000.
9. At the time of the first application the land was covered by the Macedon Ranges Planning Scheme, Chapter Three (former Shire of Newham and Woodend). A planning permit was required for tree removal. The property was zoned Landscape Residential, and a permit was required for use of the land for agriculture.
10. The Responsible Authority in assessing an application should have regard to a number of issues, including:
(ix) the preservation of the natural environment and the character and the need for the proposed development to harmonise with the surrounding environment.
(x) The requirements of all relevant statutory authorities in whose area of responsibility the land is situated, including the Department of Natural Resources and Environment and the Environment Protection Authority."
11. The Council was required (and still is required) to have regard to the Macedon Ranges and Surrounds, Policy Area. The policy is directed primarily to:
"The planning and management necessary for the conservation and utilisation of the Policy Area both as a water catchment for urban and local supply and as a location of State, metropolitan and local importance for leisure activities and nature conservation."
12. The second application was determined by the Responsible Authority under the new Macedon Ranges Planning Scheme which was adopted on 8 June 2000.
13. The land is now zoned Low Density Residential and has an Environmental Significance Overlay No. 4., and Brick Kiln Road has a Vegetation Protection Overlay No. 2.
14. In this zone a Planning Permit is required for the use of land for the purpose of Agriculture which includes "propagating, cultivating or harvesting plants, including fruit, seeds, trees and vegetables."
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and Local Planning Policies.
* To provide for low-density residential development on lots which, in absence of reticulated sewerage can treat and retain all wastewater.
16. Decision Guidelines require consideration of the following before making a decision:
* The State Planning Policy Framework and the Local Planning Policy Framework including the Municipal Strategic Statement and Local Planning Policies.
* The protection and enhancement of the natural environment and character of the area including the retention of vegetation and fauns habitat and the need to plant vegetation along waterways, gullies, ridgelines and property boundaries.
17. With respect to the Environmental Significance Overlay No. 4, this overlay relates to the Eppalock Proclaimed Catchment in order "to ensure protection and maintenance of water quality and water yield within the catchment area."
18. A planning permit is required to remove native vegetation within his catchment area. Comments of the Department of Natural Resources and Environment are included within decision guidelines.
19. Brick Kiln Road which has a Vegetation Protection Overlay No. 2 recognises the important role that roadside vegetation plays as a wildlife habitat.
20. Clause 52.17 of the Scheme contains native vegetation controls. The purpose of this Clause is:
* To protect and conserve native vegetation to reduce the impact of land and water degradation and provide habitat for plants and animals.
21. Before deciding on an application, the Responsible Authority (Tribunal on Review) must consider issues such as the following:
* The policy on retention and re-establishment of native vegetation.
* The preservation of and impact on the natural environment or landscape values.
* The need to retain native vegetation in a proclaimed water supply catchment.
* The need to retain vegetation that forms part of a wildlife corridor.
22. Considerable emphasis is placed on protection and enhancement of the natural environment in the Planning Scheme as the natural environment is recognised as being a fundamental element of the municipality.
23. Clause 15.09 of the Planning Scheme (SPPF) relates to the conservation of native flora and fauna. It is suggested that the Responsible Authority should ensure that the siting of new buildings and works minimises the removal or fragmentation of native vegetation.
24. Clause 21.02 notes that the Shire contains significant remnant vegetation and that these forests form a defining element of the Shire's character and identity. The MSS seeks conservation of all remnant vegetation and endorses the Statement of Planning Policy No. 8 in addressing nature conservation and landscape protection. Local Planning Policy Framework
25. Clause 22.01 - Macedon Ranges and Surrounds (Statement of Planning Policy No. 8).
26. It is policy that "protection and utilisation of the resources of the policy area for water supply, tourism and recreation, and nature conservation must be the primary concern."
27. It is policy that "all remnant vegetation and exotic vegetation which contributes to the unique landscape quality or character of the area should be preserved. It is generally considered that most vegetation contributes to the landscape and character of the Shire and should be preserved.:
28. As previously stated the applicant has made two applications for a planning permit:
2. P200-0191 (VCAT 2000/92021) - 27 February 2000.
29. With respect to P99-0420, the applicant was required (13 July 1999) to give notice of the application to adjoining and adjacent landowners/occupiers with a public notice on the land.
30. Two objections were received which Council has summarised as:
1. Removal of trees will contribute to the loss of habitat for koalas in the area.
2. Removal of vegetation is unnecessary considering there is existing cleared land, which usually contains no livestock.
3. The paddock to be cleared is on the southern side of the owners home/property and will have minimal access to sunlight. The northern side of the land is already cleared and has good access to sunlight.
4. Some trees on the land are of significance and are quite mature.
5. Gorse on the property should be controlled before planting new vegetation.
6. Many trees were cut down before the planning permit application was made.
31. Although the Planning Scheme did not require referral to any Government Agency, Council referred the application to the Department of Natural Resources and Environment. The Department objected on the following grounds:
1. The application is contrary to the Landscape Residential Zone of the Macedon Ranges Planning Scheme.
2. The removal of native vegetation is unnecessary.
3. The clearing is inconsistent with Victoria's Biodiversity strategy.
4. The clearing will set an undesirable precedent in this part of the Macedon Ranges Shire.
27 October 1999 Full Council resolved to refuse the application.
20 September 2000 Council issued a Notice of Refusal.
5 January 2001 The Victorian Civil and Administrative Tribunal received the Application for Review.
32. Following the issue of the Notice of Refusal, the applicant lodged an Application for Review with the Victorian Civil and Administrative Tribunal which was to have been heard on 20 March 2000.
33. With respect to P200-0191, on the 7 March 2000, Council received the second application and the Tribunal hearing was adjourned.
34. This latter submission required the clearance of approximately 275 saplings and 12 trees from the same area as the previous application. The applicant proposed the planting of replacement trees along the southern boundary so that there would be no net loss of native vegetation.
35. The application was referred to the Department of Natural Resources and Environment (NRE) who objected on the following grounds:
* The application is contrary to the Landscape Residential Zone of Macedon Ranges Planning Scheme.
* The removal of native vegetation is unnecessary.
* The clearing is inconsistent with Victoria's Biodiversity strategy.
* The clearing will set an undesirable precedent in this part of the Macedon Ranges Shire.
36. Council's Environmental Planner endorsed the NRE comments and recommended refusal.
37. The application was required to be advertised to adjoining and adjacent landowners/occupiers together with a notice on the site.
38. One objection was received. Council has summarised the grounds as follows:
1. The application is no different to original application refused by Council except that three trees are identified to be retained in current application.
2. Most of the larger trees were cut down without planning approval prior to first application being made to Council and after that application was refused.
3. There are 20 - 25 acres of cleared land ideal for planting olives so why remove the last enclave of trees from the property?
4. Application does not recognise the need to retain mature trees for koalas and other fauna to survive.
39. In late February 2001 Council's Environmental Policy Officer, Mrs Margaret Brennan provided an assessment of vegetation at the subject site. She concluded that the clearing of vegetation is not supported, that the vegetation forms part of an existing wildlife corridor through the region and the site contains two vulnerable ecological vegetation classes.
40. The application before the Tribunal proposes (as set out in Ms Slechton's submission):
* The removal of 0.185 hectares of regrowth saplings.
* The establishment of 2.3 hectares of olive grove to the east of the property (460 olives).
* The establishment of 4.2 hectares of vineyard (7990 vines).
* The enlargement of the existing dam on the watercourse to increase the holding capacity from 3 megalitres to 7 megalitres.
- 510 indigenous grasses and groundcovers (tubestock).
* Buffer plantings along the north boundary to the north east corner of the property.
* Fencing of the watercourse to restrict stock access to a single crossing.
* Fencing of some remnant trees in the north west and north east corner from stock and to encourage revegetation.
41. Ms Slechton, in her submission, acknowledges that the proposal before the Tribunal "addresses several of the decision guidelines contained within Clause 52.17 of the SPPF," in particular:
* Whether the application includes a land management or works program.
* Whether provision is made or is to be made to establish and maintain native vegetation elsewhere on the land.
- Planting, replanting or other treatment of any part of the land.
- The retention of a buffer strip of native vegetation within specified distances of wetlands, waterways, roads and property boundaries.
- The fencing off of areas of native vegetation in particular to exclude stock or vermin.
42. Mr David Grace of DNRE, although initially "concerned about the proposal, now has `no objection' provided the proposal is implemented in accordance with the tabled development plans and conditions (including a Section 173 Agreement)." "The Department is satisfied that this approach will now achieve net gains as required in the Biodiversity strategy." Mr Grace strongly recommended two additional areas of vegetation be included to establish a vegetation/habitat link along the northern boundary of the property.
43. Ms Brennan's main concern was the proposal to remove the 0.185 ha of indigenous saplings which is largely re-growth from the 1983 bushfires, with some older specimens of Candlebark and Swamp Gum. She has noted that the area provides additional habitat for and is used by wildlife.
44. The Tribunal has noted that while the proposal involves the removal of this 0.185 ha of saplings, it also involves 0.5 ha of revegetation as well as buffer plantings along the north boundary.
45. The Tribunal finds that in regard to Clause 52.17, the proposal has:
1. Substantial regard to the policy on retention and reestablishment of native vegetation.
2. Retained and increased vegetation in a Proclaimed Water Supply Catchment.
3. By its landscaped design has generally preserved, augmented and improved the natural environment and landscape value.
5. Assisted the role of native vegetation in conserving flora and fauna, protecting water quality and providing shade and shelter.
46. However, the fifth point will be further assisted by extension of the revegetation module along the north boundary between stands of remnant trees and the west end of the modules shown on Ms Frank-Mas's drawing. In addition random infilling with guarded trees in the triangular shapes on plan west of the northern island clump of remnant trees and in the north east corner of the site. This additional planting should assist the habitual link recommended by Mr Grace.
47. While it would have been possible to layout the site in different configurations for different outcomes, the Tribunal finds the proposed layout carefully balances the environmental and commercial outcomes for the site which will be developed in accordance with a land management plan and the Tribunal agrees with DNRE that the proposal with suitable conditions can result in net gains as required in the Biodiversity Strategy and a permit should issue.
48. The Tribunal has prepared an order accordingly.
Bell
Macedon Ranges SC [2001] VCAT 1593
The Tribunal granted the application for review, set aside the Responsible Authority's decision and ordered that a planning permit issue for removal of selected trees, planting of vineyard and olive grove, and enlargement of dams in accordance with amended plans and subject to detailed conditions including revegetation, fencing, dam construction conditions, and a Section 173 Agreement securing long-term management (Order and Conditions).