Clause 52.17-2 (Native vegetation) - to remove, destroy or lop native vegetation, including dead native vegetation

Clause 52.02 (Easements, Restrictions and Reserves) - to create an easement

The subject land is about 5 kilometres northeast of Romsey. As shown in figure 1 within the blue dotted line it comprises four lots totalling 121.4 hectares.

Most of the subject land is heavily wooded with native vegetation with some cleared areas used for grazing on the western edge. The subject land is hilly and contains relatively steep slopes in some areas and stands in stark contrast to the relatively flatter area between Romsey and Lancefield. Figure 4 shows a perspective of the site from Mr Glossop's evidence.

A single dwelling of 1970's-1980's vintage exists on the subject land as marked on figure 1 along with some shedding and dams. The dwelling would be contained within the new Lot 1.

Figure 3 Proposed three lot subdivision and easement

1. Inca Farms Pty Ltd ('applicant') has a planning permit to subdivide the subject land from four lots into two lots. It seeks to amend the permit to allow subdivision from four lots into three lots.
2. Macedon Ranges Shire Council ('council') refused the planning permit amendment on the following grounds (in summary):
   • Biodiversity and native vegetation concerns
   • Fragmentation of agricultural land and the proliferation of dwellings
   • Failure to retain productive agricultural land and promote the use of land for sustainable agriculture.

1. Having reviewed the submissions and evidence, the key issues to be determined are:
   • Is the amended subdivision an acceptable planning outcome when considering relevant planning controls and policy?
   • Is the native vegetation removal proposed acceptable?

IS THE AMENDED SUBDIVISION AN ACCEPTABLE PLANNING OUTCOME WHEN CONSIDERING RELEVANT PLANNING CONTROLS AND POLICY?

1. The Farming Zone ('FZ') in the Macedon Ranges Planning Scheme ('planning scheme') and policy in the planning scheme seek to protect agricultural land, and particularly productive agricultural land. For example, the zone purposes include retaining productive agricultural land for agriculture, ensuring non-agricultural uses do not constrain agricultural uses and encouraging retention of employment for rural communities and sustainable land management.
2. Clause 35.07-3 outlines that the minimum subdivision lot size in this area of the Macedon Ranges Shire is 40 hectares. Both the approved subdivision and the amended subdivision meet this minimum lot size.[3]
3. The FZ also contains decision guidelines. Relevant guidelines for use and development (including subdivision) were recently articulated in Hamilton v Surf Coast SC [2025] VCAT 608:

The FZ also includes extensive decision guidelines for use and development. Many of these require the decision maker to consider issues around loss of agricultural land or curtailment of agriculture on adjacent agricultural land from offsite amenity impacts on accommodation and dwellings. The decision guidelines also require consideration of the specific agricultural qualities of the land including 'soil quality, access to water and access to rural infrastructure'. The potential for a proposal to lead to a 'concentration or proliferation of dwellings in the area' and how this might affect surrounding agriculture also needs to be considered.[4]

1. Relevant planning policy includes:
   • Clause 14.01-1S - preserving productive farmland which includes relevant strategies to protect productive farmland, prevent it from being permanently lost to agriculture, limiting new housing in rural areas and avoiding incompatible land uses for agriculture.
   • Clause 14.01-1L - protecting agricultural land in the Macedon Ranges by ensuring use and development relates to productive use, ensuring development including dwellings relate to agricultural production, the discouragement of fragmentation, and ensuring dwellings and residential activity are secondary to the agricultural use, and protecting high quality agricultural land by encouraging uses that restore fragile soils.
   • Clause 14.01-2S - encouraging sustainable agricultural use.
2. A number of policies in the Municipal Planning Strategy also speak to the need to protect agricultural land:
   • Clause 02.03- 4 - protecting agricultural land, particularly in the northern and eastern parts of the Shire, avoiding subdivision and development of rural land to avoid fragmentation, supporting sustainable productive agriculture.
   • Clause 02.03-6 - support rural residential development in Rural Living Zones to avoid fragmentation of rural land.
3. Mr Glossop in his planning evidence for the applicant was comfortable supporting the amendment application. His reasons were, in summary:
   • The number of lots is being reduced from the current four lots;
   • The land is not productive for agriculture;
   • The Land Management Plan will result in land management improvements;
   • The outcome will be a reasonable planning outcome that allows for environmental improvements.
4. While Mr Harms was not called to give evidence, his memorandum on agricultural use of the subject land provides some guidance on its agricultural values which were not contested by council, including that there is only approximately 24 hectares of grazing land with 91 hectares of moderately timbered 'conservation zone'.
5. His summary view of the agricultural potential of the site included:

The property has considerable slope with moderately steep terrain, and from the information provided, doesn't appear to be generating any significant level of agricultural output. Uses for the site in its current form are limited to low levels of grazing, being sheep or beef cattle. The site does not appear to be suited to any form of agricultural production other than low intensity grazing.

The site, when reviewed from satellite mapping or viewing technology, contains significant areas of vegetation, gullies, steep gradients and fragile waterways and waterholes/soaks/springs. This limits the productivity possible on the site without causing a degree of environmental damage or impact. In my opinion, this should be a consideration for how this property is viewed from a local land-use and agricultural significance perspective.[5]

1. A Land Management Plan ('LMP') dated December 2023 has been prepared by Ranges Environmental for the subject land and implementation of the LMP is proposed to be included in the planning permit. The LMP identifies two major zones on the subject land for conservation (green in figure 5) and farming (orange in figure 5) largely based on existing vegetation cover and grazed areas.

1. The LMP also includes environment improvements such as managing existing soil erosion above the main dam on the subject land and managing pest plants and animals.

1. The protection of agricultural land, and particularly productive agricultural land, from subdivision and residential development to retain its agricultural values is a long-held approach in planning schemes. There are many Tribunal decisions attesting to this strategic direction and I don't think these principles are contested in this matter.

1. Having heard submissions and evidence and reviewed the memorandum of Mr Harms, I am satisfied that the impact on agricultural values of the amended subdivision is not likely to be significant and will result in an acceptable planning outcome.
2. My observations from the site inspection reinforce the submissions and evidence at the hearing; the subject land is hilly and forested in the upper regions with remnant vegetation. Grazing of the lower levels is occurring on the cleared areas but has limited potential for expansion given the slopes and fragile soils. Removal of vegetation for agriculture on these upper areas increases the risk of erosion; some of which is already occurring as identified for rectification in the LMP.
3. While the land is in the FZ, it is unusual in its context of being largely forested. While agricultural production receives significant support in the planning scheme as outlined earlier in these reasons, so does environmental, biodiversity and landscape protection.[6]
4. There is nothing in the planning scheme in my view that suggests the forested areas of the subject land should be cleared for agriculture; neither of the parties suggested this is a preferred outcome.
5. This leaves the approximately 24 hectares of cleared land which is used for grazing. These areas are shared across Lot 1 and Lot 2 in the approved subdivision. This situation would largely remain in the amended subdivision with the exception of a relatively small, cleared area in the new Lot 3. It is unlikely in my view that the existing lot layout, the approved subdivision, or the proposed amended subdivision provide viable economic farming units.
6. Their future farming use may be as small-scale grazing units, agistment to neighbours or a new, more intense agricultural use with additional investment. Either way, due to the fundamental aspects of topography and remnant vegetation, I do not consider the amended subdivision layout an inferior outcome from an agricultural point of view. Rather, when balancing the limited agricultural values and the broader environmental objectives to be achieved, it is in my view an acceptable planning outcome.
7. Council took me to a Tribunal decision they suggested raised similar issues, being a refusal of a three-lot subdivision in the FZ where the minimum lot size in the planning scheme was met.[7] Cases always turn on the particular facts and circumstances. In that case it was a subdivision creating three lots from one; not a subdivision reducing four lots to three. There were also particular bushfire concerns related to driveway access and the CFA objected to the application.
8. While I think the observations regarding agricultural use and production in that case may be relevant, here I give significant weight to the reduction in the number of lots.

1. There is one dwelling on the subject land. In its current state the four lots could be sold individually and potentially use and development allowed via permit; possibly including dwellings.
2. The approved subdivision allows for one additional dwelling on an 80 hectare lot. The amended subdivision allows for a further dwelling; being three in total rather than two allowed under the existing subdivision permit.[8]
3. I do not consider this a 'proliferation'; effectively one additional dwelling to that already approved. The lots will all be in excess of 40 hectares and given the location of proposed building envelopes and the topography, new dwellings should be able to integrate into the landscape without being seen as a rural living area.
4. In the context of this site and its topography and environmental values, I consider the allowance of an additional dwelling on a larger lot an acceptable outcome.

IS THE NATIVE VEGETATION REMOVAL PROPOSED ACCEPTABLE?

1. Council submits that the applicant has not made serious attempts to avoid or minimise the loss of native vegetation due to the minimum lot sizes (40 hectares) being pursued. The issue largely relates to clearing along the proposed fence lines.
2. Removal of native vegetation to construct fences along the existing boundaries of the four lots would be exempt under clause 52.17-7 if the lots were sold and in different ownership. In this circumstance clearing generally up to 4 metres wide in total is allowed to construct and maintain a fence.
3. The approved subdivision permit allows for the assumed loss of 0.356 hectares of native vegetation along new boundary fences. The amended subdivision, due to the second internal boundary, which may be fenced, has an assumed native vegetation loss of 0.536 hectares in the subdivision application.
4. Mr Organ's evidence is that the vegetation to be cleared is in the Valley Grassy Forest Ecological Vegetation Class ('EVC') 47. This EVC is considered vulnerable within the region.
5. Mr Organ generally agreed with the Ranges Environmental vegetation assessment but considered that it did not effectively address large trees within the potential fence impact area on the boundary between Lot 2 and Lot 3. This he says has implications for the Native Vegetation Removal Report ('NVR Report') and the detailed assessment for native vegetation. His revised NVR Report in Appendix 1 to his evidence for the three-lot subdivision includes:
   • Assumed loss of native vegetation of 0.763 hectares.
   • A general offset amount of 0.396 general habitat units.
   • A minimum Strategic Biodiversity Value for offsets of 0.4329.
6. Figure 2 in his evidence identifies the impacted large trees along the proposed new boundary between Lot 2 and Lot 3 (see figure 6.)

Figure 6 Southern native vegetation impact area[9]

1. Mr Organ concluded that the changes in the NVR Report overall are minor and can be offset. He also noted that while the large trees in figure 6 are assumed 'lost' in the vegetation assessment they should be able to be retained in practice by minor fence realignments and avoiding impacts on their root zones. He suggested this could be addressed via permit condition.
2. An easement across Lot 2 for access to a house site on Lot 3 is proposed to make use of an existing access from the unmade Knights Track, take advantage of gentler terrain, and avoid vegetation removal in the road reserve (shown in figure 3). Mr Organ's evidence is that there is no native vegetation along this easement constituting a 'patch' that requires assessment or offsetting.
3. In response to Council questions around avoidance and minimisation of vegetation impacts, he noted that the subdivision has been designed to achieve the 40 hectare minimum lot size and thus the boundaries are generally 'fixed'.
4. The applicant submitted in the hearing:

The Applicant is willing to define the boundary between lots 2 and 3 in a manner that ensures that the 10 trees assumed to be lost will be retained. This would mean that the extent of vegetation loss associated with boundary fencing is known and accounted for and there will not be consequential tree loss associated with fencing.

1. I accept that the ability to substantially redesign the subdivision to avoid and minimise native vegetation along the new boundaries is limited due to the desire to obtain the minimum 40 hectare lot size. However, the subdivision design does take advantage of cleared areas to minimise vegetation loss; an example can be seen in figure 6 where the proposed boundary traverses a large cleared area. The northern internal boundary, in the approved subdivision, likewise takes advantage of clearing east of the main dam to avoid and minimise vegetation loss.
2. I also note the desire of the applicant, based on Mr Organ's evidence, to allow for the retention of the large trees along the southern internal boundary by permit condition, even though they have to be offset as a 'loss' under the native vegetation provisions.
3. Overall, I am satisfied that the native vegetation provisions in clause 52.17 have been met to an acceptable level and should not be an impediment to granting the permit amendment.

1. Most of the subject land is in the Bushfire Management Overlay ('BMO'); a reflection of the topography and remnant woodland. Bushfire policy in cl 13.02 prioritises the protection of human life above all other policy considerations.
2. A bushfire report was prepared by Nexus Planning in accordance with cl 44.06-3 including a bushfire hazard landscape assessment, bushfire hazard site assessment and bushfire management statement.
3. While the subject land is within the BMO, at a landscape scale it is surrounded by large, cleared areas that are bushfire prone, but not in the BMO.
4. The bushfire assessment concluded that:
   • The level of risk to the existing dwelling is not increased by the subdivision.
   • There are areas on the proposed Lot 2 and Lot 3 where dwellings can be constructed that would comply with the approved measures in cl 53.02-4.
5. The Country Fire Authority advised that it considered the approved measures had been met in the bushfire management statement via the building envelopes and did not object to the grant of a permit.[10]
6. Under cl 44.06-5 the bushfire assessment and associated building envelopes and bushfire protection measures are to be included as mandatory subdivision conditions on land zoned residential or rural residential, which is not the case here. However, the planning permit put forward on a 'without prejudice' basis includes a s 173 agreement under the Planning and Environment Act 1987 (Vic) and the conditions are included in Appendix A.
7. Council submitted that a permit for a subsequent dwelling under the BMO is not required under cl 44.06-2 because of the s 173 agreement requiring the bushfire protection measures be implemented; a position I accept.
8. On balance I consider the bushfire risk has been considered in accordance with the requirements of the planning scheme and risk can be managed to an acceptable level.

1. A 6 metre wide carriageway easement is required to facilitate access to Lot 3 across Lot 2. The applicant requested that this be included in the permissions sought and I have amended the application accordingly.

1. A set of 'without prejudice' conditions were considered in the hearing. Changes to the conditions include:
   • Inclusion of the existing dwelling to require a new wastewater disposal system. This was supported by Mr Glossop and given the age of the existing dwelling a more contemporary system is a reasonable outcome of the application.
   • Inclusion of the Land Management Plan in the s 173 agreement under the Planning and Environment Act 1987 to ensure ongoing management responsibilities transfer to subsequent landowners after the subdivision permit is spent.
   • Inclusion of reference to building envelopes for bushfire response in the endorsed plans.
   • Other minor changes to improve expression and grammar.
2. Conditions on the planning permit relate to fencing. Council sought a reference to 'wildlife friendly' fencing. I have not included this as the applicant will need to balance the nature of the fencing between continuing the agricultural use for restraining livestock with perhaps different fencing in the more remote wooded areas. This is an issue where I consider flexibility in implementation is reasonable.

1. I need to consider the amendment application in the terms of cl 71.02-3 in the planning scheme and balance the competing policy provisions in the interests of net community benefit and sustainable development. Having considered the application against relevant controls and policy and the decision guidelines in cl 65.02, I am satisfied that the balance of reducing the number of lots, protecting the agricultural land that is already cleared and 'available' for use and facilitating environmental improvements weighs in favour of a permit being granted.
2. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions shown in Appendix A.

A permit is required to remove, destroy or lop native vegetation, including dead native vegetation.

Clause 52.02 (Easements, Restrictions and Reserves)

1. Before the Plan of Subdivision is certified under the Subdivision Act 1988 (Vic), 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 this permit. The plans must be generally in accordance with the proposed subdivision layout plan prepared by Hellier McFarland dated 30 September 2024 but modified to show:

(a) A plan showing the building envelopes for Lot 1, Lot 2 and Lot 3 generally in accordance with the 'Domestic Zones' shown on Map 2, Map 3 and Map 4 in the Bushfire Hazard Site Assessment Plan (pages 23, 24 and 25) prepared by Nexus Planning dated 11 March 2024 modified to show dimensions and setbacks for each building envelope from at least two lot boundaries.

1. The subdivision and native vegetation removal allowed by this permit and shown on the plans endorsed to accompany the permit shall not be amended for any reason unless with the prior written consent of the Responsible Authority.
2. Before the plan of subdivision is certified under the Subdivision Act 1988, the owner/s of the lots must enter into an agreement with the Responsible Authority in accordance with Section 173 of the Planning and Environment Act 1987 (Vic). The agreement must:

(a) Stipulate that no buildings and works (except driveways, fencing and effluent areas) may be erected outside the approved building envelopes unless with the further written consent of the Responsible Authority.

(b) Provide for all dwellings on the subdivided lots to be fitted with a wastewater treatment and disposal system to a design approved by Council's Environmental Health Officer and such that all effluent is disposed of within the boundaries of the allotment. A separate permit must be obtained from Council's Environmental Health Department prior to its installation.

(c) Provide for the Land Management Plan prepared by Ranges Environmental dated December 2023 to be approved and endorsed by the Responsible Authority and implemented to the satisfaction of the Responsible Authority.

(d) State that it has been prepared for the purpose of an exemption from a planning permit under Clause 44.06-2 of the Macedon Ranges Planning Scheme.

(e) Incorporate the plan prepared in accordance with Clause 53.02-4.4 of this planning scheme and approved under this permit.

(f) State that if a dwelling is constructed on the land without a planning permit that the bushfire protection measures set out in the plan incorporated into the agreement must be implemented and maintained to the satisfaction of the responsible authority on a continuing basis.

The landowner must pay the Responsible Authority's reasonable costs of the preparation, execution and registration of the Section 173 Agreement.

1. Prior to the commencement of the subdivision development a plan of the lot boundary fencing between Lots 2 and 3 ('Lot Boundary Fencing Plan') must be submitted to and approved by the Responsible Authority. The Lot Boundary Fencing Plan must provide for the retention of Trees 1 to 10 in Figure 2 of the expert report of Aaron Organ of Ecology & Heritage Partners dated June 2025.
2. Before a Statement of Compliance is issued for the plan of subdivision under the Subdivision Act 1988, the boundary fencing must be constructed in accordance with the approved boundary fencing plan.
3. Before a Statement of Compliance is issued for the plan of subdivision under the Subdivision Act 1988, the applicant must provide drainage for each lot to the satisfaction of the Responsible Authority.
4. Disturbed surfaces on the land resulting from the works authorised or required by the subdivisional works shall be revegetated with indigenous species and stabilised, to the satisfaction of the Responsible Authority.
5. To offset the assumed loss of 0.7630 hectares of native vegetation, the permit holder must secure native vegetation offsets, in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (DELWP 2017) as specified below:

(a) A general offset of 0.396 general habitat units and eight large trees;

(b) Located within the North Central Catchment Management Authority (CMA) or Macedon Ranges Shire Council municipal district; and

(c) With a minimum Strategic Biodiversity Value score of at least 0.4329.

1. Before any native vegetation is removed, evidence that the required offset for the project has been secured must be provided to the satisfaction of the responsible authority. This evidence is one or both of the following:

(a) Credit extract(s) allocated to the permit from the Native Vegetation Credit Register, and/or

(b) An established first party offset site including a security agreement to the required standard, signed by both parties, and a 10-year offset management plan to the satisfaction of the Department of Energy, Environment and Climate Action and approved by the Responsible Authority. The offset management plan must detail the 10-year management actions and ongoing management of the site. Every year, for 10 years, after the responsible authority has approved the offset management plan, the applicant must provide notification of the management actions undertaken towards implementing the offset management plan to the responsible authority. An offset site condition statement, including photographs must be included in this notification.

1. Prior to the Certification of the Plan of Subdivision, a copy of the offset evidence must be submitted for endorsement by the responsible authority, and it will then form part of this permit. Within 30 days of endorsement of the offset evidence by the responsible authority, a copy of the endorsed offset evidence must be provided to the Department of Energy, Environment and Climate Action.
2. Prior to the commencement of works, a Plan of Subdivision must be certified and engineering plans are to be submitted to and approved by the Responsible Authority in accordance with Section 17 of the Subdivision Act 1988.

1. Prior to the issue of statement of compliance, the subdivision is to be provided with gravel crossovers and driveways to Lots 2 and 3 and vehicle access is to be provided to Lot 3 from Knights Track within the unmaintained road reserve to the easement shown on the endorsed plans, to satisfaction of the Responsible Authority.
2. The accessway and driveways must be designed to Country Fire Authority standards.
3. No polluted and/or sediment-laden run-off is to be discharged directly or indirectly into drains or watercourses. Soil erosion control measures must be employed throughout the works to the satisfaction of the Responsible Authority.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 shall be referred to the Distributor in accordance with Section 8 of that Act.
2. The applicant shall ensure that existing and proposed buildings and electrical installations on the subject land are compliant with the Victorian Service and Installation Rules (VSIR).

Note: Where electrical works are required to achieve VSIR compliance, a registered electrical contractor must be engaged to undertake such works.

1. The applicant shall establish easements on the subdivision, for all existing Distributor electric lines where easements have not been otherwise provided on the land and for any new powerlines to service the lots or adjust the positioning existing easements.

Existing easements may need to be amended to meet the Distributor's requirements.

Easements required by the Distributor shall be specified on the subdivision and show the Purpose, Origin and the In Favour of party as follows:

1. This permit will expire if one of the following circumstances applies:

(a) The plan of subdivision is not certified within two years of the date of this permit.

(b) The plan of subdivision is not registered at Land Registry within five years of the certification of the subdivision.

(c) The removal, destruction or lopping of native vegetation does not start within two years of the date of this permit

(d) The removal, destruction or lopping of native vegetation is not completed within ten years of the date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987 an application may be submitted to the Responsible authority for an extension of the period referred to in (a) of this Planning Permit condition.

[1] A memorandum on the agricultural quality of the land was provided from Matt Harms of Onfarm Consulting but Mr Harms was not called to give evidence.

[2] The Tribunal's decision considers submissions, evidence, supporting hearing exhibits and the statements of grounds. Not all of this material will be referred to in these reasons.

[3] I note and accept the position in the Estate of JE Walker v Wangaratta RCC [2021] VCAT 1257 that this is a 'condition precedent' rather than a reason itself to approve the subdivision.

[5] In the delegate report for the two-lot subdivision council acknowledged that the 'site is somewhat limited in terms of agricultural activity due to the presence of extensive native vegetation; the presence of numerous waterways and the steep, undulating terrain.'

[6] For example, in cl 02.03-2, cl 12.01 and cl 12.05.

[7] Phillips v Wodonga CC [2023] VCAT 1014.

[8] And subject to other considerations such as bushfire and onsite wastewater disposal.

[9] Black crosses showing large trees potentially impacted.

[10] I note the letter dated 12 April 2024 refers to a Mount Alexander Shire. I assume this is a simple clerical error as the property address in the correspondence is correct.