In determining these applications, the tribunal is required to consider the effect of the ploughing (or ripping) of the land, but not the application of pesticides or the planting of trees, on environmental values inhering in the land subject to the Land Subject to Inundation Overlay applicable to the applications.

Mr Brendan Sydes, solicitor, of the Environment Defenders Office

1 The applicants propose to establish blue gum timber plantations on four properties in the vicinity of Swan Marsh, in the municipality of Colac Otway. The responsible authority refused to grant permits pursuant to the Colac Otway Planning Scheme. The permit applicants applied to the tribunal for the review of these decisions. Earlier this year the tribunal - constituted without a legal member - heard detailed evidence and submissions. During that hearing a question of law arose, namely what was the scope of the discretion available to the tribunal given that a permit was only required for works by reason of a Land Subject to Inundation Overlay ("LSIO") in the planning scheme. In accordance with clause 66 of Schedule 1 of the VCAT Act, that question has now been referred to me for my opinion.

2 In Great Southern Property Managers Pty Ltd v Colac Otway Shire Council[1] I decided that the ploughing of a field, preparatory to the establishment of a blue gum timber plantation, constituted works for the purposes of the LSIO. In my reasons for that decision I set out a summary of the processes involved in establishing and operating a blue gum plantation.[2] I was informed that these processes would also be undertaken by Timbercorp Limited, the other applicant in the present proceeding.

3 In my previous decision I observed that the decision as to whether to grant a permit would be confined to considerations that arise under the LSIO.

4 The LSIO in question generally affects land that will or may be inundated by the flooding of drains and watercourses in the Tirrengower drainage system and (in the case of the Timbercorp properties) the Pirron Yallock Creek. The Pirron Yallock Creek ultimately drains into Lake Corangamite.

5 In contesting the applications for review the responsible authority and the objectors advanced a number of environmental concerns. These concerns have been summarised as follows:

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the impact of pesticide use (both herbicides and insecticides) on the health of Swan Marsh residents;

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the impact of pesticides on surface water quality, in particular in the Pirron Yallock Creek and in Lake Corangamite;

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the impact of pesticides on groundwater quality;

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the impact of the proposal on groundwater volumes;

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an increase in fire risk;

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an increase in the frequency of vermin;

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the impact of the bluegum plantation on visual amenity and the landscape; and

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the impact of transporting harvested trees on the surrounding road network.

6 It is clear that some of the concerns relied upon by the council and objectors are beyond the scope of the discretion which the tribunal is required to exercise. Indeed, the solicitor acting for Otways Environment Council Inc, Friends of the Earth Melbourne and Viola Spokes conceded that the scope of discretionary considerations did not extend to fire risk, vermin, visual amenity, air pollution or the transport of harvested trees.

7 In White Ash v Frankston City Council[3] I gave an opinion as to the scope of considerations relevant to the determination of applications for dwellings where a permit was only required because the land in question was subject of an LSIO. (The relevant provisions of the LSIO in that case are substantially the same as the relevant provisions in these cases.) I concluded that, in the exercise of discretion under the LSIO, the tribunal is entitled to consider the effect of the construction of the dwellings, and the effect of the subsequent use of the dwellings, on environmental values within the LSIO. I concluded that this was so whether the effect was caused by altering the quality of the water in the wetlands or by changing the hydrology of the wetlands or for any other reasons. I reached this conclusion having regard to the stated purposes of the overlay, the decision guidelines of the overlay, relevant policies set out in the scheme and the inherent and inextricable connection between land subject to inundation and a particular kind of wildlife or natural habitat value that inheres in such land.

8 More recently the Supreme Court of Victoria has had to consider an allied legal question in Burns Bridge Services Pty Ltd v Greater Bendigo City Council[4]. The issue in that case was whether, in circumstances where a permit was required for development but not for use, a proposal could be refused on the ground that it was premature. Osborn J observed that a requirement for a development permit does not convert an as of right use into a use that requires a permit, as to so hold would subvert the fundamental structure of the zone controls. Nonetheless a development requirement could be used to achieve "orderly planning" which necessarily embraces some consideration of the effect on use of the sequence of development.

9 It is important to understand what it is that requires a permit under the LSIO. As I have determined, the ploughing (or ripping) of the ground, preparatory to planting blue gum, constitutes works and, as a result, requires a permit under the LSIO. However I decided that the application of pesticides does not require a permit - as this does not constitute "works". Further I decided that the planting of trees does not require a permit. Thus if a blue gum plantation was established, in precisely the same manner as is proposed in these cases, save for there being no ploughing or ripping prior to the planting of blue gum, then no permit would be required under the LSIO. Conversely, if it was proposed to plough (or rip) the land the subject of these applications, not with the intention of establishing a blue gum plantation, but simply to aerate the soil to promote grass growth for agriculture, a permit would still be required pursuant to the provisions of the LSIO.

10 There may be an issue in this proceeding as to whether or not the ploughing (or ripping) of the soil on each of the properties the subject of the applications for review may have some environmental effect on land the subject of the LSIO. Having regard to my decision in White Ash such an effect must be considered in determining whether or not to grant a permit. However I do not understand the evidence to support the contention that the mere ploughing (or ripping) of the soil on any of the affected properties, without more, would have any significant effect on land outside the LSIO. Hence it is unnecessary for me to determine, in the context of ploughing, whether environmental effects beyond the boundaries of the LSIO are a relevant consideration.

11 Insofar as the application of pesticides are concerned - and this seems to be the real concern of the council and objectors - I have concluded that this is irrelevant to the determination of whether a permit should be granted pursuant to the LSIO. The application of pesticide does not constitute "works" and does not require a permit. Moreover it does not follow as a matter of logic or common experience that the ploughing of a field will necessarily be accompanied by the application of pesticide. As Osborn J emphasised in the Burns Bridge case a requirement for a development permit does not convert an as of right use (in this case timber production) into a use that requires a permit.

12 Exactly the same logic applies to the planting of blue gum trees. Although these applicants propose to follow the ploughing with the planting of blue gum trees, it does not necessarily follow that such an activity must follow from the ploughing of the land.

13 In my White Ash ruling I said that the tribunal could take into account the subsequent use of dwellings in determining the effect of the construction of dwellings on environmental values within the LSIO. But logic and common experience tells us that dwellings are not erected for the sake of it; rather dwellings are inevitably erected to be used as dwellings. However a field may be ploughed for purposes other than the subsequent application of pesticide and then the planting of blue gum trees. In other words, the act of ploughing, which is the activity which requires a permit, can stand independently of the other activities proposed in the present case.

14 There is a temptation to broaden the matters that are able to be considered when a discretion arises. Certainly when the discretion is a general one, rather than arising under a detailed and precise scheme, the usual approach is to take a generous view: the decisions in Australian Conservation Foundation v Minister for Planning[5] and Minister for the Environment and Heritage v Queensland Conservation Council Inc[6] are cases in point. But where the discretion arises in the context of a planning scheme which distinguishes between controls over the use of land and controls over the development of land and where the planning scheme carefully defines the circumstances and nature of such controls, different outcomes follow. The question is essentially one of statutory construction: that is, discerning what the legislative instruments are intended to mean. The Colac Otway planning scheme provides that the use of the subject land for timber production is as of right. The LSIO development control is limited to "works", which, in these cases, amounts to the ploughing of the land. It would be anomalous if this limited development control was interpreted to enable the various other processes involved in the use of land for timber production to be thrown open to question.

[1] [2005] VCAT 1937.

[2] [2005] VCAT 1937, at [7].

[3] [2004] VCAT 2170.

[4] [2005] VSC 422.

[5] [2004] VCAT 2029.

[6] [2004] FCAFC 190.