In permit application no. 04-043, the decision of the Responsible Authority is affirmed. A permit is granted and is directed to be issued. The permit relates to the land known as part of Lot 2 LP119170 (part Tarooga Park) Murdoch Road, Wangaratta. The permit will allow buildings and works including the removal of five trees to allow the construction of baseball diamonds, in accordance with the endorsed plans and subject to the conditions set out in the Notice of Decision dated 12 August 2004 with the following variations:

* Part (a) in Condition 2 is amended by the addition of the following words: "within timeframes to be specified in the EMP".

(g) A plan to protect wildlife impacted by the removal of the trees including (but not limited to):

* The timing and staging of the removal of limbs to avoid the breeding and nesting periods of wildlife.

* Measures to protect any birds and animals found to be resident in the trees and nests in the trees during removal of the trees.

* The potential for the relocation of any branch with animals or hollows so that they can continue to provide nesting hollows.

* The heading and all the words after "Offset Replanting Ratios" are deleted.

Mr K Pool, President of the Wangaratta Baseball/Softball Club Inc.

1 This is an Application under Section 82 of the Planning and Environment Act 1987 by Dr N P Curtis and others seeking review of a decision made by the Rural City of Wangaratta ("the Council") to determine to grant a permit in application no. 04-043. A Notice of Decision was issued on 12 August 2004. The Application for Review was lodged on 1 September 2004.

2 The subject site is located on the west side of Murdoch Road and is to the south of Wenhams Lane. The land is known as Tarooga Park which has an area of some 8.3 hectares and is owned by the Rural City of Wangaratta. Part of Tarooga Park is licensed to the Wangaratta Baseball/Softball Club Inc. ("the Club"). I was advised that the Club has occupied the site for around 15 years. There are currently two senior baseball diamonds on the eastern portion of the land, known as diamond nos. 1 and 2. These are close to Murdoch Road, a gravel car park and the Club rooms/pavilion. A third less formalised area for junior and senior baseball/softball is located to the west of diamond no. 2. There is some landscaping around the perimeter of the existing diamonds including along the southern boundary of diamond no. 1. The remainder of the Club's license area appears to be used for agricultural purposes. Land remaining in the control of the Council, to the north-west of the Club's license area, is more heavily treed but fenced off to Wenhams Lane. Grazing land is to the south of the subject site while developed residential allotments are located in Wenhams Lane.

3 The proposal involves works to allow the construction of a fourth senior baseball diamond that could also be used as two junior diamonds. The additional playing area would be located directly to the west of diamond no. 1, effectively completing a fourth quadrant. The works seek approval for the removal of five mature River Red Gums, one standing alone and four others in a group. The trees are to the west of diamond no. 1.

4 The following provisions of the Wangaratta Planning Scheme ("the Scheme") are relevant to this review:

* The subject site is located in a Public Park and Recreation Zone pursuant to Clause 36.02 of the Scheme. A permit is required for buildings and works associated with the use of the land for an open sports ground.

* A permit is required to remove native vegetation pursuant to Clause 52.17. Victoria's Native Vegetation Management - A Framework for Action[1] ("the Native Vegetation Framework") is based on the concept of "net gain" and other decision guidelines in the Clause must be considered.

* Other Clauses including Clauses 11 and 15.09 of the State Planning Policy Framework, Clause 21 (Municipal Strategic Statement) and the decision guidelines at Clause 65.

5 I have considered the submissions presented having inspected the subject site and locality prior to the Hearing (as I advised the parties) and again subsequent to the Hearing. I do not recite all of the material tendered, as the written submissions are retained on file, although I do refer to some of the main points next.

6 Dr Curtis and Mr Twitt submitted that the removal of the group of four River Red Gums should be rejected given that the proposed baseball diamond(s) could be relocated a short distance of some 40 metres to the west allowing the trees to be retained. They submitted that the group of trees has important habitat value being older trees and noted that their retention was sought by the Department of Sustainability and Environment ("DSE") and Council's Environment Officer. They accepted that the fifth, solo River Red Gum, is apparently in poorer health and its removal would be more acceptable.

7 Dr Curtis and Mr Twitt submitted that the Club had not properly addressed the question of net gain, how the objectives of the Native Vegetation Framework would be achieved and questioned whether the retention of the trees would result in additional costs to the Club. They also submitted that the permit applicant had not properly supported a number of claims made in support of the proposal and specifically contentions about the difficulty in retaining the trees. The Applicants concluded that the retention of the trees would not preclude additional diamonds, rather it would require the relocation or replanning of facilities.

8 In response, Mr Scale and Mr Pool submitted that alternative locations were considered by the Club and Council but they have various disadvantages including costs associated with servicing (eg. installation of irrigation), the more distant location from other diamonds and centralised support facilities, and the potential danger to spectators given the propensity for limb drop from the Gums. Mr Pool referred to some considerations in relation to the possible relocation of the diamond(s) further to the west, particularly the position of a dam and overflow area that would need to be addressed through culverts and/or other works. He also explained why swapping the area shown as "junior area" on the plans for the proposed works was not regarded as appropriate by the Club. Mr Pool raised issues relating to the "unusable" space created by retaining the group of four trees including the need for the area to be fenced to address public liability issues (and to meet the requirements of DSE if a permit was to issue) and practical difficulties including maintenance and balls landing in the fenced-off area.

9 Both the Council and Respondent stressed that there was no opposition to the DSE's recommendation that an Environment Management Plan be prepared if the removal of the trees was allowed or to DSE's calculated off-sets involving the planting of 750 native plants (a mix of trees and shrubs). The EMP is referred to by way of a condition on the Notice of Decision.

10 I turn to my findings in relation to the issues raised by this Application having regard to the policies, objectives and decision guidelines of the Scheme. The key issue is whether the removal of the five River Red Gums is acceptable in terms of the decision guidelines of the Scheme and particularly the Native Vegetation Framework.

11 In considering the submissions before me, I record that:

* I have no expert evidence or professional assessment as to the physical condition and health of the River Red Gums although it appears that the group of four trees is in reasonable health while the fifth isolated tree shows signs of deterioration. However, I have no doubt that the trees provide important habitat in addition to their aesthetic value as stately trees.

* I have no expert evidence in relation to required off-sets in the event of the trees' removal, only the material included in correspondence from DSE to the Council as noted above.

* I have estimates by some of the parties as to some of the costs involved with the retention and removal of the trees but no overall costs that provide a basis to evaluate total costs in any of the scenarios posed.

* 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.

13 In relation to the first two criteria cited above I note that:

* It appears that the proposal before me could potentially be undertaken with the removal of only one tree, although that would in turn raise issues relating to the siting of the diamond(s) given the dam and possible drainage line that I doubt are insurmountable but would add to cost. I therefore do not think that it can be said that the removal of the group of four trees can not be avoided, but there are issues associated with the retention of the trees which must be considered in reaching a balanced decision, as discussed below.

* I have already noted that I have no expert input or advice other than the qualified position of DSE that opposed the removal of the trees but also referred to appropriate conditions in the event that the removal of the trees was supported by the Council.

14 The off-sets proposed by DSE involve 750 trees and shrubs and are accepted by both the Respondent (the Club) and the Council as land owner. That is relevant to my decision. It is also relevant that the trees in issue are separate from (although not distant from) the larger stands of mature native trees to the north-west of Tarooga Park and that new off-set planting could supplement those existing trees and other plantings establishing around the constructed diamonds. There would be a loss in habitat in the short term, but the potential long term gain would be substantial in adding to the current stands while not fragmenting those stands.

15 What is the outcome if the trees are required to be retained? The positive aspect is that the trees would be protected for their habitat and aesthetic values. However, they would need to be fenced off based on the recommendations of DSE to address matters such as public liability for spectators. The fencing would need to be high if it is to prevent balls landing in the secured area. The land would still need to be maintained and there would be additional capital and other costs to address drainage and irrigation issues associated with the construction of a baseball diamond(s) further west. I find these arguments to be more persuasive in favour of the removal of the trees than others referred to in some submissions, such as the additional distance of some 40 metres to toilets and the kiosk for spectators.

16 However, these and various practical considerations need to be balanced with other factors, in particular that removal of the trees would allow a more integrated recreation facility. Moreover, given the zoning of the land, which is Public Park and Recreation (and not, for example, Public Conservation and Resource Zone) then it is reasonable to facilitate a development that is consistent with the primary purpose of the land which includes "To recognise areas for public recreation...". In saying that, I do not disregard another purpose of the Zone that is to "conserve areas of significance". Rather, the off-set planting could provide a very important and significant habitat in the long term compared with the retention of the five trees in the shorter term when being mindful of the other trees in Tarooga Park that would be unaffected and continue to provide habitat.

17 While this is not an easy matter to decide, I have been persuaded (with some reluctance) that the removal of the five trees is acceptable given the primary purposes of the Zone, the impacts on the layout of the baseball/softball facility by the retention of the trees, the practical issues with re-positioning the diamond(s) westwards and also the need to otherwise fence retained trees. A very influential element in reaching my decision is the very significant planting that will be required by way of a permit condition and is not contested by the permit applicant or Council.

18 I finally refer to the conditions included on the Notice of Decision.

19 Mr Scales correctly observed that the conditions include a detailed statement of off-sets proposed by DSE that should have been a note. I do not consider that a note is appropriate, rather, the off-sets can be formalised as part of an EMP based on the formula recommended by DSE.

20 One matter that does concern me, having observed on site that the trees appear to be serving as a habitat, is to ensure that care is taken to protect any birds or animals that might be impacted by the removal of the trees. I will consequently add an element to the EMP that requires consideration of:

* The timing and staging of the removal of limbs to avoid the breeding and nesting periods of wildlife.

* Measures to protect any birds and animals found to be resident in the trees and nests in the trees during removal of the trees.

* The potential for the relocation of any branch with animals or hollows so that they can continue to provide nesting hollows.

21 I do not believe that these additional requirements are unduly onerous and in my view these considerations accord with the principles of Clause 15.09 of the Scheme. They simply require care to be taken and a management program to be implemented.

22 I also believe it is necessary for the EMP to specify the timing for the planting program, which should be undertaken within a nominated timeframe. That can also be added by way of condition.

23 To conclude, while I would prefer that the trees remain on the land, particularly the group of four River Red Gums, I am persuaded that the removal of the trees is acceptable for the reasons that I have explained and particularly because of the significant new planting that can be achieved on the subject land. I will consequently disallow the Application and direct that the decision of the Responsible Authority be affirmed, subject to some minor variations to the Notice of Decision.

[1] Department of Natural Resources and Environment December 2002. Operational guidelines have yet to be adopted.