[2004] VCAT 2511

The Respondent may prepare further plans and provide further information that respond to the Tribunal's remarks as summarised in the conclusions of these reasons including proposed draft conditions. If the Respondent prepares such information, it must be filed with the Tribunal and served on the Responsible Authority and Applicant for Review within eight 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. Leave may be sought for an extension of time if required.

On receipt of any further plans and information, and no later than four weeks from the date of receipt, the Responsible Authority and Applicant may provide further written comments on plans, further information and any proposed permit conditions to the Registrar of the Victorian Civil and Administrative Tribunal. A copy of any response provided by the Responsible Authority and Applicant for Review must be forwarded to all other parties to the proceeding.

All responses must indicate whether a further Hearing is sought to enable submissions to be put orally. In the absence of any request for a Hearing, the Tribunal may determine the Application based on the submissions and evidence received, including the supplementary submissions arising from these directions. The Tribunal may of its volition determine that a further Hearing is required.

Mr R Attiwell of Counsel instructed by the Environment Defender's Office. Evidence was called from Mr R Hill, Zoologist and Field Biologist with Birds Australia.

Mr C Mibus, Director Municipal Services. Evidence was called from Mr G Evans Department of Sustainability & Environment Co-ordinator, Horsham.

Ms T Heber, solicitor of Maddocks Lawyers instructed by Mr P Westley of Westley DiGrigorio Lawyers.

These reasons address an Application brought by Environment Victoria ("EV") seeking review of a decision by the West Wimmera Shire Council to allow the removal of river red gums and yellow gums on a property near to Powers Creek in western Victoria.

The permit applicant initially had sought approval for a maximum of 300 trees to be removed per year over 20 years to an unspecified total number of trees. Through the course of the proceeding, the number of trees proposed to be removed has been reduced to 697 based on the advice of the Department of Sustainability and Environment ("DSE"). The proposal involves selective harvesting of scattered trees where milled timber would be processed by a veneering plant for superior grade furniture. A draft management plan has been prepared in an attempt the address the provisions of the Native Vegetation Management - A Framework for Action ("NVF") although DSE is not yet satisfied with that draft plan and the principles upon which it is based.

EV contends that the proposal is not sufficiently detailed, or supported by the necessary investigations, to provide a basis for approval. It gives weight to the conservation significance of the land and its role as part of the habitat of the endangered species, the Red-Tailed Black Cockatoo. It also claims that the proposal has not properly been assessed in terms of Clause 52.17 of the Planning Scheme, the NVF and the Code of Forest Practices for Timber Production ("the Code") and that the extent of tree removal sought is not justified. There is a further concern as to the extent to which a secondary consent process is appropriate in relation to the achievement of the requirements of the NVF, a process that would also limit the rights of EV. EV also argues that the conditions set out in the Notice of Decision issued by the Council are invalid.

In response, the case brought by the Council relies heavily on the position of DSE in relation to the extent of clearing to be permitted and the requirements of a management plan. The Council submits that it is appropriate to defer the requirements in relation to the NVF to a secondary consent. It also considers that the proposal would allow the land owner to continue farming and living on the land but not at the expense of declining tree populations.

The Respondent contends that the proposal positively responds to the NVF given that only solid trees are proposed to be removed, the habitat of the Red-Tailed Black Cockatoo would not be affected and some 58 hectares of land would be set aside for regeneration involving 14,500 new trees. It argues that the provisions of the Code are not relevant and, in circumstances where DSE supports a proposal subject to conditions, then it is appropriate to defer the detailed requirements of the NVF to a secondary consent.

These reasons are set out in a number of parts. First, I explain my findings in relation to the applicable policies, including that the Code does not strictly apply and that Appendix 4 of the NVF forms the basis for assessment.

Second, these reasons address the information provided wherein I form the view that the information before me is not yet sufficient to direct the grant of a permit, particularly in relation to:

•

The lack of a proper plan of the subject site and proposed stages of harvesting/clearance.

•

The need to define exclusion areas (such as buffer areas from drainage lines, piles of old stumps that offer habitat, and seasonal wetlands).

•

The need to address various and inconsistent terminology for the identification of trees to be removed which, on review, may impact on the number of trees to be removed to avoid the requirement for a permit under the provisions of an Environmental Significance Overlay.

•

The need for a revised management plan reflecting the Concept Principles relied upon by DSE and including information that is otherwise lacking at present.

In reaching that conclusion, I have been mindful that DSE has yet to be satisfied on several important elements of the proposal notably in relation to the management plan and the application of the Concept Principles upon which its conditional support for the proposal is based.

Third, these reasons address the question of secondary consent and factors that might influence a decision as to when aspects of a proposal can fairly be deferred to a secondary consent. The factors include:

•

The significance of the vegetation proposed to be removed and the complexities of the subject land.

•

The extent of vegetation removal proposed including the nomination of exclusion areas.

•

The purpose for which the land is zoned.

•

The potential to achieve offsets/net gain in terms of the physical capacity of the land (or other land/or by other mechanisms) and relevant supporting information available.

•

A demonstrated commitment to achieve offsets including agreement reached with DSE in relation to an offset program.

Fourth, I refer to the conditions included in the Notice and accept that they are substantially unworkable or too uncertain.

I conclude that the proposal, on its more limited scale as now contemplated, is acceptable in principle, and that it is reasonable in the circumstances to defer the detailed arrangements for the identification and provision of offsets to a secondary consent. However, given my concerns about some information that is lacking, I have decided that it would be appropriate in the circumstances to allow the permit applicant an opportunity to prepare further information in response to my concerns, including revised draft conditions. Other parties have been afforded an opportunity to respond to any new material that is filed.

1

This is an Application under Section 82 of the Planning and Environment Act 1987 brought by Environment Victoria Inc. seeking review of a decision made by the West Wimmera Shire Council ("the Council") to determine to grant a permit in permit application no. P630. A Notice of Decision ("the Notice") was issued on 5 March 2004. The Application for Review was lodged on 23 March 2004.

2

I record three procedural matters raised during the course of the Hearing.

3

At the commencement of the Hearing, Ms Heber sought leave for J S & R J Warner to be joined as parties to the proceeding. To the extent that was required, I granted leave pursuant to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 to confirm J S & R J Warner as the permit applicant/Respondent.

4

At the commencement of the Hearing, Mr Attiwell objected to Mr Geoff Evans being called as an expert witness by the Council on the basis that he was not qualified to give evidence on the full range of subjects referred to in the statement that had been filed and served. Mr Mibus referred to Mr Evans' role with the Department of Sustainability and Environment ("DSE"). Mr Mibus stated that he could call Mr Evans in his capacity as regional co-ordinator for DSE and also noted that Mr Evans is a qualified forester and could give evidence in that capacity.

5

The Hearing proceeded on the basis that Mr Evans was called to put and explain DSE's position in relation to the proposal and I left open the opportunity for his opinions as a forester to be regarded as expert evidence dependent on the matters he addressed in his evidence. As the requirements of the Tribunal's Practice Note in relation to expert evidence had not been satisfied by the written statement of evidence, they were dealt with orally during evidence in chief.

6

During Mr Hill's evidence, I was referred to a document he described as a Decision Tree to Determine Whether Hollows are Suitable which was said to be part of a Habitat Management Plan prepared by the Red Tailed Black Cockatoo Recovery team. The document could not be provided during the Hearing. In absence of the document, Mr Attiwell agreed to file and serve a copy of the document, with any supplementary submissions, by close of business on Monday 22 November 2004 and I directed that any response by Ms Heber and Mr Mibus be filed and served by close of business on Monday 29 November 2004. [In the interim I undertook my site visit].

7

Subsequently, a document entitled A Draft Habitat Management Plan for the South-eastern Red-Tailed Black-Cockatoo[1] was forwarded to the Tribunal. Supplementary submissions in relation to the document have been taken into account, being correspondence from the Environment Defenders Office (Vic) Ltd dated 22 November 2004 and Maddocks Lawyers dated 24 November 2004. The submissions also comment on Conditions 4 and 5 of the Notice.

8

The subject site comprises multiple titles with a combined area of 1,469 hectares[2] in 22 paddocks. The subject land is undulating with scattered River Red Gum and Yellow Gum trees but little understorey. Two stands of Stringybark Woodland are located to the north-east and east of the review site, abutting the adjacent Durong State Forest. That State Forest is to the north and east of the review site while the Meereek State Forest abuts the north-west and western portion of the subject land. There appear to be no permanent watercourses or waterbodies (other than a recently constructed dam) although there are several seasonal wetlands on the land.

9

The subject land is part of a larger holding of some 4,500 hectares. The entire property is used for the grazing of cattle and sheep and I was advised by Ms Heber that it has continued in that use for more than 50 years. I understand that trees were harvested from the land some 50 or more years ago. There are a number of unused road reserves that traverse the subject land that are also treed. These are licensed to the Applicants by way of grazing licenses from DSE. The only made road is Fergusons Road that forms the southern boundary of the review site.

10

The proposal changed as a result of the proceedings before me and since the permit application was lodged with the Council. As originally set out in the application lodged with Council, the proposal is to "remove native vegetation - 300 red gum trees per annum for timber milling and furniture production". Accompanying information in the form of a referral form under the Environment Protection and Biodiversity Conservation Act 1999 to the Commonwealth Government ("the referral form") provides further details. The proposal is described as a joint venture to harvest selected timber and re-forest the land with Red Gum and Blue Gum trees. Ms Heber stressed that there is now no intention to plant Blue Gum.

11

In the material presented at the Hearing reference was made to the removal of River Red Gum and Yellow Gum and replanting with trees of local provenance for regeneration. The referral form states that the milled timber would be processed by a veneering plant for superior grade furniture, a sample of the veneer being tendered at the Hearing.

12

During the Hearing, the Respondent relied on the evidence of Mr Evans that would limit tree removal. Based on Mr Evans' evidence, some 697 trees[3] would be removed in a staged process over a long timeframe with an offset of 14,500 trees over approximately 58 hectares. The Respondent relied on 11 principles advocated by DSE through Mr Evans (the "Concept Principles") as set out in Mr Evans' statement. The principles focus on the process by which harvesting and revegetation should occur via a management plan. A draft Management Plan (June 2004) was tendered.

13

Only solid trees would be harvested with Mr Evans' estimate that around one third of the trees on the land would be potentially suitable for the type of product sought. I understand that the operation would involve trees being felled with upper branches removed and retained for mulching/chipping on-site. Older trees and trees with hollows would not be removed; nor would the Stringybark Woodlands and trees associated with unused road reserves. Harvesting and a replanting program would occur in a 20 year cycle with three rotation cycles possible. No new access tracks are proposed.

14

The subject site is zoned Rural under the provisions of Clause 35.01 of the West Wimmera Planning Scheme ("the Scheme"). A permit is not required to use or develop the land as proposed. However, as discussed later, the categorisation of the proposed use is relevant in terms of whether the provisions of Clause 52.18 are triggered. Clause 52.18 addresses timber production and requires that all timber production activities (except agroforestry) comply with the Code of Forest Practices for Timber Production ("the Code"). A permit "may require that matters required by the Code must be done to the satisfaction of the responsible authority or a Minister, public authority or referral authority...".

15

Clause 52.17 triggers a permit requirement for native vegetation removal. Decision guidelines are set out and include the goal of Net Gain expressed in Native Vegetation Management - A Framework for Action[4] ("NVF"), the conservation and enhancement of the area, the role of the native vegetation and the need to retain native vegetation in specified circumstances.

16

The three objectives of the NVF are to avoid, minimise and offset native vegetation removal. An application must be referred to DSE as occurred in this case. The NVF is listed as an incorporated document at Clause 81. As discussed later, Clause 52.18 states that the if land is to be used for timber production then a permit may not be required pursuant to Clause 52.17.

17

An Environmental Significance Overlay ("ESO") applies pursuant to Clause 42.01. The review site is affected by Schedule 2 Red-Tailed Black Cockatoo Habitat Areas. The policy basis in the Schedule is:

The Red-tailed Black Cockatoo (Calyptorhynchus banksii graptogyne) of south-eastern Australia has been classified as an endangered species. The current population is estimated to be less than 1000 birds with no more than 100 breeding pairs. It is prone to further threats which are likely to result in its extinction. Its feeding habitat is concentrated on public land but its nesting habitat occurs mainly on private land. The survival of this species depends very much on the availability of nesting sites which are generally dead River Red Gums. Nest trees are cut down to remove risk to life and property, to facilitate cultivation and, most commonly, for firewood. Widespread protection of hollow bearing trees, particularly isolated specimens, is a significant factor in ensuring the survival of this species.

18

The environmental objective to be achieved is:

•

To protect areas of critical breeding habitat of the endangered Red-tailed Black Cockatoo by ensuring the retention of suitable nesting trees within the bird's known nesting area.

19

Under Schedule 2 (inter alia):

•

A permit is not required to remove, destroy or lop any vegetation except that a permit is required to remove, destroy or lop any hollow or hollow bearing dead eucalypt trees having a diameter of greater than 60 cm at 1 metre above ground level. This permit requirement does not apply to solid trees. [Tribunal emphasis added]

20

DSE is not a referral authority for this Schedule, but its comments may be sought based on the decision guidelines.

21

Other relevant Clauses include 15, 17, 21 and 65 (general decision guidelines). Of particular relevance are:

•

Clause 15.09: Conservation of Native Flora and Fauna. The objective seeks to assist the protection and conservation of biodiversity, including native vegetation retention and provision of habitats for native plants and animals and control of pest plants and animals.

•

Clause 17.07: Forestry and Timber Production. The objective seeks to facilitate the establishment, management and harvesting of plantations, harvesting of timber from native forests and the development of forest based industries consistent with the National Forest Policy Statement.

The General Implementation includes a requirement that "...responsible authorities should consider environmental, social and economic factors in planning for forestry and timber production activities."

22

There are no local policies at Clause 22 that are relevant.

23

I was referred to a draft Wimmera Native Vegetation Plan (April 2004) by DSE that is intended to accompany the NVF but is not complete. Being a draft document, of somewhat unknown status, it is not able to be given any significant or influential weight. It does, however, contain some interesting background material and provides an indication of current thinking at a regional level in response to the state-wide NVF.

24

I have considered the submissions presented. That has been assisted by my inspection of the subject site subsequent to the Hearing in the presence of representatives of the parties. I do not recite all of the material presented, as written submissions and statements of evidence are retained on file, although I do refer to some of the main points. I set out my findings in relation to the following key issues in this Application having regard to the policies, objectives and decision guidelines of the Scheme:

•

what permission(s) is(are) required for the proposal pursuant to the provisions of the Scheme and what are the relevant principles of the NVF that provide a basis for assessment?

•

is the proposal adequately defined and supported by sufficient information to enable a decision in relation to the merits to be made?

•

to what extent should aspects of the proposal or provision of offsets in accordance with the principles of net gain be deferred to a secondary consent process?

•

can the proposal achieve the desired planning outcomes in relation to significant habitat and net gain?

25

It is necessary to first establish why a permit is required for this proposal, whether the provisions of Clause 52.18 apply and how to approach the concept of net gain based on the goals and principles in the NVF. These are matters that are in dispute between the parties.

Does Clause 52.18 and the Code of Forest Practice Apply?

26

Mr Attiwell submitted that the proposal should be described as timber production triggering Clause 52.18 and the Code. The Council's assessment was that the Code is not relevant while Ms Heber submitted that the proposal is more accurately described as crop-raising, there being no "propagation" or "cultivation" that are elements of "timber production"[5].

27

At Clause 74 of the Scheme, the definition of "timber production" is "Land used to propagate, cultivate, manage and harvest timber". It is nested under "crop raising". At the same Clause, the definition of "crop raising" is "Land used to propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf, and vegetables". It includes timber production.

28

There appears to be no dispute between the parties that the proposal involves the harvesting and management of timber. As I understand it, Ms Heber's argument that the proposal does not comprise propagation and cultivation is based on the premise that the regeneration program is part of the management process rather than involving separate steps of propagation and cultivation. Her submission was that if the Tribunal found differently, then the Code has little relevance to this type of proposal.

29

The Macquarie Dictionary defines "propagate" as "to cause to multiply by any process of natural reproducing from the parent stock...to cause an increase in number of amounts". It defines "cultivate" as "improve by husbandry....to promote or improve the growth of (a plant etc) by labour and attention". In my view, the regeneration activities associated with the proposal fall within these definitions when relying on the concepts described by Mr Evans and supported by the Respondent. This is because Mr Evans evidence was that the regeneration program might involve activities such as seed collection from harvested trees, natural regeneration or thinning of trees[6] as cited in the draft management plan. They fit within the definitions of propagate or cultivate - the use of seeds collected from felled trees for replanting would be propagation and the thinning of trees to encourage the growth of remaining trees would be cultivation.

30

As I understand it, the proposed regeneration is not intended for harvesting at sometime in the future. As the definition of timber production adopts an order or a process by which production occurs - planting, growth through nurturing, managing and finally felling - is a proposal limited to that process for the definition to apply?

31

I do not believe so because:

•

there is nothing in the definition that requires or suggests that harvesting is the final step for a use to fall within the definition; rather, it is open to a broader interpretation that a proposal that includes each of the four required elements fits the definition, as is the case in this Application.

•

an integral element of timber production today is the process of regeneration after the harvesting of timber, in some cases to again be harvested but in other cases only for habitat, environmental and other biodiversity objectives. The provisions of Clause 52.18 make the link explicit through the Code (which defines timber growing as including regeneration[7]) as does the NVF.

32

On the basis that the proposal can be described as timber production under the Scheme, then Clause 52.18 would apply to this Application.

33

The provisions of Clause 52.18-2 require all timber production activities (except agroforestry, wind breaks and small woodlots) to comply with the Code. That is, however, based on the definition of "timber production" set out in the Scheme (cited at paragraph 27 above). The definition of "timber production" in the Code is different, being "the growing and harvesting of timber from native forests and plantations"[8] (my emphasis added). The underlined words are significant as the Code only applies in those circumstances. This is a matter I return to shortly. That application is reinforced where the section of the Code dealing with private land states[9]:

The operational goals (set in bold type) and guidelines contained in this Section apply to the planning, establishment, tending, harvesting and regenerating, and roading of native forests on private land and for all plantations. ....

On private land the Code does not apply to agroforestry or to the occasional felling of limited numbers of trees for local uses, such as fenceposts, poles or firewood, on the same property or by the same landowner or manager. Neither does it apply to revegetation operations conducted specifically for the purposes of erosion control or salinity control, to the establishment of wind breaks or other amenity plantings, or to small woodlots. The Code applies to all other operations on private land where trees are established or felled for commercial purposes. [Tribunal emphasis]

34

Thus, the proposal would fall within the terms of the Code if involving "native forest". I form that view because the proposal does not fit within the exception described as the "occasional felling of limited numbers of trees for local uses on the same property or by the same landowner or manager" as the timber is proposed to be processed for commercial purposes by a different entity on another site remote from the subject land.

35

There is no doubt that the trees are native and on private land, therefore the obvious question is whether the land or trees are "native forest". In my view, the review site is not a forest in so far as the existing trees do not represent a woodland of substantial density.

36

"Forest" is not defined in the Scheme or Code but in my mind could be regarded as a setting where trees and other wooded plants are dominant. My description could be said to be generally consistent with the Macquarie Dictionary that defines a forest as "a large tract of land covered with trees". It is not a phrase that fairly describes the review site that, with the exception of the scattered trees, is substantially cleared; it is otherwise pasture with no understorey. The two discrete and relatively small but dense stands of Stringybark Woodland dominated by Brown Stringybark would be more akin to forest particularly as they join other forested land.

37

Mr Marriott's description in his report appended to the draft Management Plan is "an excellent cover of medium to very large River Red Gums ... and Yellow Gums...". Although that is apt, it does not imply a "forest". I maintain my finding even though some of the trees may have at one time been part of a dense native woodland or that some might be regrowth from previous clearing operations (although I have no evidence of the latter).

38

I feel that there is some ambiguity in relation to the last line of the quotation I have included at paragraph 34 "The Code applies to all other operations on private land where trees are established or felled for commercial purposes". On one view, when read alone, that could mean any timber production operations including the circumstances that apply here, but that would not be consistent with the overall application of the Code to timber production from native forests and plantations.

39

Therefore, if it is accepted that the subject land, which is privately owned, is not native forest then the Code does not apply to this Application. Consequently, a timber harvesting plan is not required (a plan that had been sought by Mr Attiwell). However, as is evident from my findings below, some of the same type of information as required by the Code is desirable in this case given the very high significance of the vegetation/land. Thus, if I am wrong in my interpretation and the Code does apply, then there would be additional obligations on the Respondent to provide information in accordance with the Code, some of which I seek in any event.

40

The NVF which must be considered pursuant to Clause 52.17. Mr Evans said that DSE assessed the proposal in accordance with Appendix 4[10] rather than Appendix 5[11] on the basis that the subject land is not native forest.

41

The parties variously referred to the provisions of both Appendices and whether "exceptional circumstances" apply in this case, that being a relevant consideration in Appendix 4.

42

In relation to private forestry the NVF says that commercial timber growing and harvesting on private land can generally be considered as encompassing two types of forest - native forest and plantations[12]. It goes on:

Clearing or destruction of native vegetation to facilitate plantation establishment or other timber products will be considered in the same manner as any other planning permit applications and will require appropriate offsets. Net Gain offset requirements for harvest and regeneration and selective harvesting activities will be deemed to have been met through effective regeneration as outlined in Table 7, Appendix 5. [Tribunal emphasis]

43

I think that there is some ambiguity in the text as to whether this comment applies only to native forest and plantations although that seems to be clarified by the heading to Table 7 which specifically refers to "establishment native forest on private land". Based on the above discussion, Table 7 is therefore not the relevant assessment base.

44

The NVF refers to the circumstances of stands of scattered old trees which could readily describe the review site[13]:

Relatively dense stands of scattered old trees that occur within pasture ....are also important environmental assets. ....scattered old trees are often less consistently protected and their health may be more at risk. Using habitat hectare assessments to calculate offsets for scattered old trees is unnecessarily complex and simple protection and replacement ratios will be adequate in this case.

Protection of existing trees will be required for offsets in parcels of land which are greater than 4 hectares in area and have 8 or more large old trees per hectare. Recruitment of new trees will be required for offsets in parcels of land which are greater than 4 hectares in area but have less than 8 large old trees per hectare. The offset ratios will be graded according to conservation significance. This area threshold could be reduced and the minimum ratios identified in Table 6 could be increased in regional Native Vegetation Plans. [Tribunal emphasis]

45

This quotation requires leads to the following comments:

•

the NVF contemplates a situation involving scattered old trees and applies Table 6 Appendix 4 of the NVF. However, there is an ultimate aim to avoid clearing unless exceptional circumstances apply. If some clearing is to be permitted, offset requirements are detailed in the Table for an area comprising large old trees[14].

•

my review of the tree census tendered through Mr Evans' evidence indicates that the review site has, on an arithmetic average, less than 8 large old trees per hectare although the spread is not even and stands of more than 8 large old trees do exist as confirmed on my inspection of the site.

•

there is no regional NVF that can be given weight at this time.

46

For the above reasons, I find that:

•

although Clause 52.18 is applicable to the proposal for the purposes of the Planning Scheme, the terms of the Code are not invoked given that the vegetation in question is scattered old trees;

•

Appendix 4 Table 6 is the relevant basis for the assessment under the NVF and the unchallenged evidence of Mr Evans is that the vegetation status is very high conservation significance[15].

47

One of the main concerns raised by those opposing the Application was that the proposal is not sufficiently detailed, or supported by the necessary investigations, to provide a basis for approval. Mr Attiwell submitted that the proposal is no longer the same as originally applied for and the Respondent has not sought leave to amend the proposal. He referred to the lack of evidence that the timber production would be sustainable, the failure to prepare (or for Council to request) a timber harvesting plan, the absence of an assessment in terms of the NVF and Code including in relation to the impact on the Red-Tailed Black Cockatoo, and the failure to produce evidence of exceptional circumstances that should be taken into account due to the high conservation significance of the vegetation proposed to be removed. Mr Attiwell also placed weight on the lack of support by DSE for the draft management plan, as noted through Mr Evans' evidence. In raising these matters, Mr Attiwell referred to a number of cases determined by the Tribunal and submitted that the proposal must be more fully developed.

48

In response, Mr Mibus observed that the Council had relied primarily on the advice of DSE to assist to develop its position. He submitted that the management plan requested by DSE would deal with the matters raised by Mr Attiwell.

49

Ms Heber also submitted that the management plan would allow detailed matters to be addressed and placed weight on the fact that DSE was confident that the requirements of the NVF could be met. She also referred to a report by Mr N Marriott entitled Biological Assessment of Sustainable Timber Extraction Operation. That report, dated October 2003, was tendered as an attachment to the draft Management Plan as a suitable biological assessment on behalf of the permit applicant.

50

In considering the material before me, I first re-state that no permit is required for the proposal pursuant to either the Rural Zone or the Environmental Significance Overlay assuming the trigger is not invoked as only solid trees would be removed. Based on my findings, the proposal is not required to provide the type of detail set out in the Code such as a harvesting plan and nor is a habitat hectare assessment required.

51

However, for the purposes of an assessment pursuant to the decision guidelines of Clause 52.17 and to understand the specific elements of the proposal, sufficient information is required to explain specifically what is intended and to form the basis for the preparation of a management plan. Information that would assist, or is essential, would be a proper plan of the subject site and proposed stages of harvesting/clearance, the nomination of exclusion areas (such as buffer areas from drainage lines, piles of old stumps that offer habitat, and seasonal wetlands[16]), management and maintenance regimes, and the intended locations for the provision of offsets in terms of area and estimated number of trees. This requires field assessment, recording and planning and is referred to in part in the decision guidelines at Clause 52.17.

52

I have some information on these matters through the concepts developed thus far by DSE and the draft management plan including descriptions of the proposed management units, details of the productive forest (trees measured in terms of their girth), regeneration and ongoing management. I am not, however, satisfied that all of the necessary information to properly define the proposal and offsets has been provided for reasons that I set out next.

53

I have already indicated that a habitat hectare assessment is not required and Appendix 4 Table 6 of the NVF identifies replacement ratios which has some flexibility in terms of the way recruitment of new trees is achieved[17]. The proponent relies on the position adopted by DSE that is, removal of around 697 River Red Gum and Yellow Gum trees of between 60-200 years in age with no hollows, knots or other imperfections. The proposed removal of 697 trees is based on two thirds of trees that fit that description which Mr Evans explained seemed fair to enable some of the trees in that age bracket to remain. Mr Westley stated that the Respondent would not oppose a cap on the maximum number of trees to be removed.

54

It is common ground that the subject land has environmental values most particularly in terms of the habitat of the Red-Tailed Black Cockatoo. The evidence is that it may also be a habitat for other native animals and birds. More particularly :

•

Mr Hill's evidence was that the trees that are proposed to be removed may serve as roosting trees for the Red-Tailed Black Cockatoo and possibly other birds.

•

the report of Mr Marriott, based on his "brief inspection" refers to the potential for "Spiral Sun-orchid" and "Metallic Sun-Orchid" in the Stringybark Woodlands which could be fenced off.

•

Mr Marriott notes the potential for Striped Legless-lizards and states that any potential areas on the review site associated with the piles of old stumps and branches and the Stringybark Woodlands area could be fenced to protect any populations.

55

It appears that both Mr Hill and Mr Marriott had relatively brief visits to the subject land and I do not think it can fairly be said that there has been a full assessment in terms of native fauna. Given the condition of the land, and the nature of the scattered trees, an expansive survey may not be warranted. However, I consider that a more thorough review of fauna that could be recorded or expected day or night is a reasonable proposition for a proposal of this scale as a basis to establish offsets that recognise and enhance the conservation and biodiversity values of the site. For the removal of a much lesser number of trees, or a proposal involving land of lesser significance, that may not be necessary.

56

I have little information about the Ecological Vegetation Class ("EVC") that applies, other than an indication that the vegetation is of very high conservation significance by Mr Evans and a statement by an objector to the original advertising of the proposal by Council who refers to the Plains Grassy Woodlands. That type of information is also necessary to assist in the identification of trees for the purposes of the NVF (as discussed below) and to inform an offset program.

57

A significant concern to me is the inconsistency in the terminology adopted for understanding the size of trees proposed to be removed. The Council's and the Respondent's reliance on the figure of 700 trees for removal is based on categorisation by estimated age of the tree. Although only solid trees are proposed for removal, some are said to be up to 200 years in age and I am concerned that some might have hollows given their age. Moreover, the measure by age is uncertain and does not correspond with the draft management plan that refers to the trees proposed to be harvested from 9 of the 12 management units having "average girths" [18] over 3 metres and some over 4 metres.

58

Further, and more importantly, the measures used do not correspond with either the permit trigger established by ESO2 being diameter at breast height ("DBH")[19] or the NVF position that seeks to define old trees based on "certain" but unspecified diameter a diameter at 1.3 metres above ground level as linked with the relevant EVC benchmark[20].

59

The inconsistency needs to be resolved. In my view, the number of trees proposed to be removed should be calculated from an assessment of the tree size (DBH) to ensure that the precise nature of the proposal is clear in terms adopted by the Scheme and to confirm that only solid trees are involved if over 60cmDBH. That should be linked to the relevant EVC information.

60

Based on the material currently before me and despite requiring further information in the form described, I am of the view that the proposal is acceptable in principle having regard to the provisions of the NVF and Clause 52.17. Appendix 4 of the NVF would seek no clearing unless exceptional circumstances apply. If one accepts that removal of some trees for veneer products is reasonable in principle, then it would not be possible to avoid any tree removal. However, the amount of vegetation to be removed can exclude the habitat of the Red-Tailed Black Cockatoo and other potentially sensitive areas, potentially resulting in less than 697 trees being removed as currently proposed and thereby minimising the impacts. I also expect that a significant program of offsets can be defined and implemented (as I discuss below).

Deferring the Definition of Offsets to a Secondary Consent Process

61

Much of the focus of the cases put by the Council and the Respondent is based around their confidence that the requirements of the NVF can be met. This case raises questions about the principle of secondary consent and to what extent one can and should defer some matters to a secondary consent.

62

By secondary consent I mean consent from the Responsible Authority for matters required under permit conditions. Secondary consent can not transform what would be a primary consent required by the Scheme; thus, allowing a process of secondary consent to define, refine and provide offsets can not vary or usurp the primary permission which in this case is the removal of a specified quantum of native trees. In previous years, the concept of secondary consent has been more frequently applied in relation to matters such as the amendment of endorsed plans. The basic principles are well established, as conveniently summarised by Deputy President Gibson in Pisanelli[21].

63

In this case, I am considering the scenario where a secondary consent process is adopted to implement the requirements of the NVF. In my view, secondary consent is a useful tool in such circumstances where the concept of offsets is still evolving, there are no adopted operational guidelines for the NVF and there is no adopted Regional NVF. Once operational guidelines are in place, one can hope for more certainty as to whether a proposal can or would meet the adopted criteria and also some simplification as to the way in which the obligations can be met. [This case demonstrates that applying the principles of net gain can be complicated for all concerned].

64

I add that Clause 52.18 foreshadows the notion of secondary consent being appropriate in relation to timber production insofar as it states that a permit "may require that matters required by the Code must be done to the satisfaction of the responsible authority or a Minister, public authority or referral authority..."[22].

65

The question of the use of a secondary consent to refine habitat hectare assessments and/or identify offsets has been discussed in several recent Tribunal decisions[23]. In some cases, at the time of the Tribunal's consideration, the net gain offsets had not been fully identified or agreed. However, the parties acknowledged or the Tribunal found that the relatively small offsets required should be relatively easily achieved or that there was sufficient confidence in the approach being adopted by the Applicant to achieve an acceptable outcome in relation to a habitat hectare assessment and/or offset provision. For example, in Lorne[24] the Tribunal accepted expert evidence as to how offsets could be provided while in Curtis[25] the number of trees to be removed was small and there was ample opportunity to provide agreed offsets.

66

I have contemplated these decisions and others referred to by the parties in the current proceeding. There is not a "hard and fast" rule as to when secondary consent should apply, but there are some principles emerging from these cases and other principles that occur to me that are common sense from a planning perspective. I think that it is useful to set them out, which I have done below adding that the list is not exhaustive. It must always be remembered that the application of a secondary consent will depend on the facts and circumstances that apply in any case. '

67

Relevant factors include:

•

The significance of the vegetation proposed to be removed and the complexities of the subject land. For example, it might be relevant to consider the level of significance of the site and native vegetation proposed to be removed, its health and habitat value, and matters such as topography, slope, areas of erosion, hydrology, presence of permanent or ephemeral waterbodies, waterways and drainage lines, and places or areas of scenic value or habitat value.

•

The extent of vegetation removal proposed including the nomination of exclusion areas.

•

The purpose for which the land is zoned.

•

The potential to achieve offsets/net gain in terms of the physical capacity of the land (or other land/or by other mechanisms) and relevant supporting information available.

•

A demonstrated commitment to achieve offsets including agreement reached with DSE in relation to an offset program.

68

My observations in relation to the cases cited, having regard to the above considerations, are:

•

There is a strong case to approach a proposal involving a site of high conservation significance with difficult terrain seeking removal of a large number of native trees more cautiously than a site that has few constraints and involves the proposed removal of a small number of trees of moderate significance (cf. Walker and Curtis).

•

In the cases cited at footnote 23 there has been a strong argument for tree removal based on the zoning of the land, such as constructing a road in a road reserve in 15 Mile Creek Camp, developing a baseball diamond on land in a Public Park and Recreation Zone in Curtis, developing a golf course on land in a Public Park and Recreation Zone in Lorne or for residential development in a Residential 1 Zone in Australand. Thus, in reaching a balanced decision, the ability to use the land for the purpose for which it is zoned has been influential and reliance on a secondary consent to define the offset program has been found reasonable in terms of overall community benefit where the extent of removal is clear, exclusion areas have been identified and offsets have been/can be identified or are agreed. A more onerous or different approach might apply in circumstances where land is not designated for development outside urban/township boundaries on a site recognised for its environmental/habitat values.

•

In the cases I have read to date, the Tribunal has taken into account the position expressed by DSE which has mainly been in support of the proposal. The Tribunal has also given weight to whether DSE had agreed to the assessments provided or, alternatively, whether the proponent had accepted the offsets estimated by DSE to be required.

•

The availability of land on-site to provide the necessary replanting and regeneration has also been a significant influence including the potential for offsets on other land (eg. 15 Mile Creek where the proponent held substantial amounts of other land nearby that could be provide an option for offsets within the same EVC) as has the level of information available to inform such a decision where the site circumstances are complex (eg. Lorne).

69

I make the following findings with respect to the current Application taking the factors at paragraph 67 into account:

•

The trees in question were said in Mr Evans evidence to have "very high" conservation significance and that evidence is not contested albeit the subject land is substantially modified and cleared for pasture.

•

The subject land has some physical constraints such as wetlands and wildlife corridors (associated with the unmade road reserves) but it is not affected by steep slopes and other areas that would require exclusion. I do not think that it can be said that the land is complex.

•

The proposal is for a large volume of vegetation removal, although it has been scaled back from potentially 6,000 trees to a maximum of 700. The latter represents 13% of the total number of trees on the subject land.

•

The proposal is for the removal of trees for harvest and processing and as a matter of principle removal cannot be avoided unless the project proceeds at a lesser scale or not at all. It is significant that the proposal seeks to avoid the known habitat of the Red-Tailed Black Cockatoo.

•

There is the excellent potential to achieve offsets given the area available on the subject land including the ability to supplement stands of Eucalypt and Stringybark Woodlands.

•

I am satisfied that the Respondents have a commitment to implement offsets including by a Section 173 agreement, and DSE has given its long term support and commitment to participate in the project. However, parameters associated with offsets are not yet well defined insofar as the Concept Principles include elements of uncertainty and DSE is not satisfied with the principles reflected in the draft management plan.

70

Taking all of the above into account, on balance, I find that there are grounds to allow offsets to proceed to be confirmed and detailed through secondary consent if the proposal can be refined as I have identified above and if the elements of the management plan can be agreed in principle. In addition, further matters are required in the draft management plan such as provision for animals and/or birds impacted by tree removal if found during clearance and specific obligations in terms of the roles of parties and monitoring.

71

The very long term commitment required by DSE in the implementation of this proposal should it proceed is noted. The Concept Principles seek to allow trial felling in a first stage with offsets undertaken and planting reaching a nominated height before another stage commences. Not only will that mean that a second stage might not commence for many years, it could be some decades for the whole of the clearance to be complete. Net gain is about long term outcomes and the Concept Principles commit DSE to auditing and approval before the commencement of subsequent stages.

72

I accept Mr Evans' response when I asked about this matter, that the Department is willing to provide input as it sees this case as a model in some respects. While officers of DSE support the proposal and are prepared to offer their time towards supervision and other elements of the management regime, if the same type of proposal is repeated elsewhere (as was suggested in the Hearing) then the resource implications for DSE are substantial. Those obligations would be signed off through a Section 173 agreement and I simply note that therefore the authority would be obliged to maintain its involvement long term.

73

An underlying issue in relation to secondary consents is that the rights of other parties are essentially excluded. This was an issue in the current proceeding, in so far as Environment Victoria submitted that it is inappropriate to defer merits issues in a way that would exclude other parties leaving the only avenue available to Environment Victoria to take action being through Section 149 of the Planning and Environment Act 1987. It was also an issue raised by the Trust for Nature and 15 Mile Creek Camp in 15 Mile Creek Camp as well as by the parties in Lorne.

74

While I appreciate that point, if the proposal is sufficiently developed, including a cap on the number of trees to be removed, and if the parameters of a management plan are agreed taking into account the quantum of vegetation involved and the importance of the area to an endangered species, then that should provide sufficient certainty to enable a permit to issue with a secondary consent in relation to the provision of offsets via a management plan. It is appropriate that DSE has a strong role in such a management plan particularly given the embryonic stage at which net gain is currently at.

75

Finally, I consider the conditions included on the Notice. As submitted by Mr Attiwell and agreed by me at the Hearing, various conditions are not workable as they are unclear or uncertain. For example:

•

Condition 1 specifies that a management plan "for the assessment and operation of the timber harvesting" is required and must be to the satisfaction of DSE and approved by the Council. I consider that the condition is too vague insofar as it does not set out the matters required to be addressed in a management plan.

•

Condition 2 refers to "The primary objective of the Responsible Authority" but places no obligation on the permit holder.

•

Condition 4 sets a time limit but I do not think it is workable when considered in terms of the obligations being suggested by DSE's Concept Principles.

•

Condition 5 serves little purpose if a management plan deals with the requirements of the NVF.

•

Condition 6 requires a Section 173 agreement but does not state what the agreement must provide for or that it is to be registered on title. The parties agreed that it is intended to relate to the management plan.

•

Condition 7 states that a further permit is required to "remove designated dead trees under Section 42 of the West Wimmera Planning Scheme". There is no such section and it appears to refer to Clause 42.01 of the Scheme. As a permit is required for the removal of dead trees I do not consider that the condition serves a purpose and the point may be better as a reminder in the management plan.

76

If a permit is to issue, then the conditions need to be redrafted and I think that was generally accepted by all parties. It would be appropriate for the Respondent to propose a set of conditions as part of any further information submitted for other parties to comment upon. Conditions can be modelled on those in Writing Planning Permits[26]. Through the Council, DSE should also give consideration to possible conditions in response; the importance of this matter can not be under-stated as observed recently by Deputy President Gibson[27]:

.... The Department above all others should be setting a benchmark in the quality of permit condition drafting and leadership in the development of conditions which implement in a practical way the government's water and other environmental strategies.

77

Clause 65 of the Scheme states that because a permit can be granted does not imply that a permit should or will be granted. The Responsible Authority and Tribunal on review must decide whether the proposal will produce acceptable outcomes in terms of the relevant decision guidelines. While I find that the principle of removing a limited quantity of trees for harvesting is acceptable, I have very carefully considered the material presented and have determined that additional information is required before the proposal could be allowed to proceed. That includes:

a)

a revised proposal based on:

i) a plan showing the location of the proposed management units and specifying the order in which harvesting is proposed.

ii) identification of the existing conservation values of the land including the EVC and a process by which a fauna survey would be undertaken prior to the removal of any vegetation;

iii) the identification of exclusion areas, with buffer distances nominated such as distances from identified drainage lines, seasonal wetlands, and piles of old stumps that offer habitat;

iv) revised tree harvesting numbers taking into account nominated exclusion areas, an assessment of tree by diameter at breast height to ensure that no trees over 60cmDBH with hollows are removed and taking into account the relevant EVC tree definitions;

b)

a draft management plan including the matters set out in the current draft as well as (but not limited to):

i) refinement of and agreement to by DSE and the Respondent as to the Concept Principles upon which the management plan is based;

ii) an outline of the timing and responsibilities for implementation and monitoring of the management plan.

78

I have decided that the appropriate course is to afford the Respondent an opportunity to prepare and submit this information, with responses to be provided by the other parties. If further information and draft conditions are prepared, I will consider that information, how it responds to my concerns, and the views of the Responsible Authority and Applicant for Review, before making a final determination. It remains open to me to determine to either refuse the Application or grant a permit with conditions.

[1] Hill R and Burnard, T October 2001 for Birds Australia.

[2] The subject land is known by the Respondent as the "Content" block.

[3] A census found 5,432 River Red and Yellow Gums of which 1,046 would be suitable for veneer (60-200 years in age with no hollows, knots or other imperfections). DSE would accept harvesting of two thirds.

[4] Department of Natural Resources, 2002.

[5] I note (but do not give any great weight to) the information contained on the referral form states "All timber harvesting will comply with the relevant aspects of the Code of Forest Practices for Timber Production".

[6] Based on concepts described in Mr Evans' Concepts 4, 8 and 10.

[10] Appendix 4- Responses and Offset Criteria - Summary (Table 6) at pages 54-55.

[11] Appendix 5 - Timber Harvesting Offset Criteria - Summary (Table 7) at page 56.

[12] At page 43 of the Native Vegetation Framework (2002).

[13] At page 25 of the Native Vegetation Framework (2002).

[14] It is relevant to matters I address later than large old trees are defined in Table 6 Appendix 4 as "individuals of key long-lived tree species (as specified in the relevant EVC benchmark) that are greater than certain diameters ... at 1.3 m above ground level)".

[15] The provisions of Clause 52.18 set out circumstances when the provisions of Clause 52.17 do not apply. It being found that the Code is not applicable I do not need to address the exceptions (which I note were not referred to by any party as being relevant).

[16] I would have added areas of slope limitations and other topographic features if they existed on the review site.

[17] Refer footnotes to the Table, such as footnotes 4 and 5.

[18] I understand the girth to be the circumference of the tree.

[19] I note that a permit for the removal of "solid trees" over 60cm DBH is not required.

[20] Refer footnote 4, Table 6 Appendix 4 of the NVF at page 55.

[21] P1980/2004 Pisanelli v Yarra CC [2004] VCAT 2033.

[22] Although I have already stated that the Code referred to at Clause 52.18 does not strictly apply in this case.

[23] Lorne Country Club Inc. and Avrio Pty Ltd v Surf Coast SC and Ors [2004] VCAT 260; P664/2004 & P667/2004 Breese Pitt & Dixon v Macedon Ranges SC and Ors; P3019/2003 Australand Holdings Ltd v Knox CC and Ors; Roman Catholic Trusts Corporation v MaroondahCC[2004] VCAT 470; 15 Mile Creek Camp and Trust for Nature v Wangaratta RC and Anor [2004] VCAT 759; Curtis v Rural City of Wangaratta and Anor [2004] VCAT 2208.

[24] Lorne Country Club Inc. and Avrio Pty Ltd v Surf Coast SC and Ors [2004] VCAT 260.

[25] Curtis v Rural City of Wangaratta and Anor [2004] VCAT 2208.

[26] Issued by the Department of Sustainability and Environment/Municipal Association of Victoria June 2003.

[27] Four Seasons Hotel Pty Ltd v Hepburn Shire Council [2004] VCAT 1612.