1. Excludes the land from the controls in the Green Wedge Zone Schedule 4, the Environmental Significance Overlay and the Significant Landscape Overlay. 2. Allows development and use of the land in accordance with the Land Use Plan and Overall Development Plan[3] for: * An 18-hole golf course. * An 18-hole resort golf course incorporating a golf club house and golf shop. * A residential hotel that must not exceed 208 rooms and 44 self-contained accommodation units. * A convention centre that must not accommodate more than 250 delegates at any one time. * Dwellings the total number of which must not exceed 210. * A residential building not exceeding 12, two bedroom units for the accommodation of National Golf Club members and guests. * Associated car parking, access, utility installations, golf practice areas, recreation facilities, landscaping, advertising signage and maintenance facilities. * Function centre, beauty salon and food and drink premises that must be located in the area designated 'Cape Schanck Clubhouse' and must be reasonably associated with resort.

1. Allows further subdivision in accordance with the Green Wedge Zone provisions or the re-subdivision of existing lots provided the number of lots is not increased. All lots must have a minimum area of 4000 square metres.

1. Additional conditions are provided for particular use and development and deals with approved plans, internal roads, parking of vehicles, landscaping, vegetation, buildings, services, erosion control, road construction, residential hotel, golf shop, National Golf Club, maintenance facilities and expiry. 2. Importantly for this case, vegetation removal requires approval by the Responsible Authority or where necessary a permit obtained pursuant to Clause 52.17 (Native Vegetation). 2. Various changes to ownership have taken place since the resort was first developed. 3. In 2003 Brandwill Holdings Pty Ltd purchased an interest in part of the resort complex. In 2005 Brandwill Holdings Pty Ltd sold its interest to the RACV which now owns the resort golf course, the golf clubhouse, the golf shop, the golf practice facilities, associated accommodation and a number of residential lots. Some other residential properties are privately owned. Part of the contract was that Brandwill Holdings Pty Ltd could re-subdivide new lots to replace existing lots along Casuarina Drive (including Lot 58 Casuarina Drive which now forms part of a golf course fairway). 4. Brandwill Holdings Pty Ltd is now the beneficial owner of the land subject to this application for review.

What matters are subject to review by Mr Jonson and for consideration by the Tribunal?

1. Mr Jonson's written submission lists eight points as to why the application should not be approved. In summary these are:
   1. The new lot is inconsistent with the incorporated document for The National Golf Course and Cape Schanck Resort Development, October 2003.
   2. The new lot is inconsistent with the proper planning, layout and functioning of the integrated resort because the new lot is at the fringe of the integrated resort and separate and external access is inappropriate.
   3. The lot is inconsistent with the 'avoid' strategies of the Bushfire Management Overlay.
   4. Is inconsistent with the 'avoid' directions and outcomes of the Bushfire Royal Commission because it inappropriately and significantly increases the potential for loss of life and property by way of bushfire.
   5. Is inconsistent with the 'avoid' provisions in the Planning Scheme because the subdivision and development will require the removal of significant amounts of native vegetation rated as of 'Very High Conservation Significance'.
   6. Will detrimentally affect the amenity of nearby properties.
   7. Will not eliminate the potential for golf ball strike which was a reason used to justify the proposal.
   8. Has little merit as a planning outcome when considered in its entirety.
2. Whilst I accept that these are all genuine concerns and matters may ordinarily would be subject to consideration by the Tribunal in a Section 82 application for review[4], in this particular proceeding the issues able to be reviewed by third parties are very confined.
3. Except for matters concerning native vegetation removal, either no permit is required for the subdivision (boundary realignment) and development or there are no third party rights of review under the Bushfire Management Overlay. Of the eight points listed above, only item v is open to assessment as part of the application for review.
4. Having regard to the provisions of the Incorporated Document set out in paragraph 3, I agree with Mr Morris QC that the wording and operation of the Incorporated Document is such that there are no planning permits required for the subdivision (boundary realignment) or the buildings and works and hence no ability by Mr Jonson and others to review those aspects or impacts of the proposal as set out in points i, ii, vi, vii and viii of paragraph 4.
5. It is clear that items iii and iv dealing with the Bushfire Management Overlay cannot be reviewed because of the exemption provisions at Clause 44.06-6. I do note however that the Country Fire Authority attended the hearing and presented a written submission explaining why the Authority had given conditional support for the proposal.
6. My assessment therefore focuses on native vegetation clearance and the provisions contained in relevant State policy and Clause 52.17. I have also taken into account the evidence presented by Ms Jane Burke on these matters.
7. I also note that paragraphs 5, 6 and 7 of Mr Jonson's submission explicitly confirm that the issue in contention is the boundary realignment.

Assessment of the relevant issue that can be reviewed

1. Requests to remove the native vegetation on the proposed lot are required to be assessed utilising the provisions of Clause 52.17. The central issue is whether the lot and resulting buildings and works will avoid and minimise the removal of native vegetation in accordance with relevant policy, particularly policy contained in Victoria's Native Vegetation Management - A Framework for Action ('Framework'). The Framework is an incorporated document in the planning scheme and is referred to in Clauses 12.01-1, 12.01-2, 12.01-3 and 52.17 as something that must be had regard to, or considered, before deciding on an application.
2. Clause 12.01 is policy for biodiversity. Clause 12.01-1 deals with protection of habitat. The objective is:

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.

To ensure that the siting of new buildings and works minimises the removal or fragmentation of native vegetation.

1. Clause 12.01-2 is policy specifically directed at Native Vegetation Management with the following objective and strategies.

To achieve a net gain in the extent and quality of native vegetation.

Apply the three step process as set out by Victoria's Native Vegetation Management - a Framework for Action. These are:

Step 1: As a priority, avoid adverse impacts on native vegetation, particularly through clearance.

If the removal of native vegetation can not be avoided:

Step 2: Minimise impacts through appropriate consideration in the planning process and expert input to project design or management; and

1. Clause 12.01-03 is policy concerning the preparation of biodiversity strategies.
2. Clause 52.17 has four purposes or objectives which in summary seek to protect and conserve native vegetation to reduce degradation and provide plant and animal habitat, avoid removal of vegetation but if that cannot occur then minimise and appropriately offset lost vegetation, provide for management and removal of vegetation in accordance with a property vegetation plan, and manage vegetation near buildings to reduce the threat of to life and property from bushfire. Decision guidelines are grouped under general issues, land protection, conservation significance, offsets, timber production and Aboriginal cultural heritage.
3. State policy is unambiguous about the need to avoid the clearance of native vegetation and that it is a priority when considering whether or not to allow the removal of vegetation. It is the key question, which gains even added importance as the quality of the vegetation increases. Too often vegetation removal is justified on the basis that suitable offsets exist rather than avoiding, as a priority, adverse impacts. Identifying appropriate offsets should be the final step, not the first. I am concerned that insufficient weight has been given to the Very High Conservation Significance of the site and of the priority to avoid removal.
4. Vegetation on the proposed lot is classified as Coastal Alkaline Scrub EVC 858 and a plant community of Vulnerable Conservation Status in the Gippsland Plains Bioregion. The quality, cover, condition and species of vegetation vary across the site but two habitat zones have been identified. Habitat Zone 1 covers approximately two thirds of the northern section of the site and has a habitat point score of 0.53. Habitat Zone 2 occupies the southern one third of the site and has a habitat point score of 0.67.[5]
5. On the basis of these scores the two habitat zones are classified as being of Very High Conservation Significance. In giving these ratings, Ms Burke has identified 'edge effects', or degradation along the eastern boundary with the 15th hole of the Golf Course and along the western boundary with The Cups Drive. During a site visit in June 2013, Ms Burke observed that woody weeds had proliferated following early winter rainfall and that there were no signs of weed control or other management in the period between her visits in April 2012 and June 2013.
6. Based on the material presented by Ms Burke in her evidence statement and in an earlier report dated 21 December 2011 (and revised in April 2012), there is little doubt that the site contains significant flora including a species of state significance (Acacia uncifolia - Coast Wirilda), six species of regional significance (Comesperma volubile - Twining Love Creeper_, Hibbertia sericea s.l._ - Silky Guinea Flower_, Oxalis rubens_ - Wood Sorrel_, Pimelea serpyllifolia_ - Thyme Rice-flower_, Swainsona lessertifolia_ - Coast Swainson Pea and Agrostis billardieri - Coast Blown grass_)_ and three indicator species for the Coastal Moonah Woodland Community. (Melaleuca lanceolata - Coastal Moonah_, Acacia uncifolia_ - Coast Wirilda and Pimelea serpyllifolia - Thyme Rice-flower_)_.
7. In her December 2011 report, Ms Burke recorded 40 indigenous flora species and 15 exotic species. Ms Burke notes that the Coastal Moonah Woodland Community is a floristic component of the Coastal Alkaline Scrub EVC, and is listed as a threatened community under the Flora and Fauna Guarantee Act 1988.
8. Future development is largely confined to Habitat Zone 1 and the extent of clearing has been strongly influenced by the CFA requirement to provide defendable space for construction of the dwelling to BAL29. Although I am not reviewing the Bushfire Management Overlay or the CFA requirements, it is self evident that subdivision and construction of a dwelling designed to meet those CFA requirements has a direct bearing on how much vegetation is to be removed. It also has an impact on where offsets can be provided. In this application the CFA has sought a condition (condition 20 on the Notice of Decision to Grant a Permit) that states that no native vegetation offsets required as part of the permit are to be located on the site.
9. Ms Burke also recorded scats and other evidence of animals on the site and noted that although 13 species of nationally significant fauna have been recorded within five kilometres of the site, there is no suitable habitat for nine of these within the study area.
10. Although State policy and the Framework strongly reinforce the three step approach to vegetation removal, it is important to recognise that net gain is not solely focussed on avoiding the removal of native vegetation, but that minimisation and revegetation can also be acceptable outcomes. The Framework[6] states that:

Net Gain comprises three essential components to ensure an overall increase in the extent and quality of native vegetation:

• A reduction in losses in the extent of existing native vegetation,
• A reduction in losses in the quality of existing native vegetation due to threatening process, and
• The achievement of gains in extent and quality of native vegetation through its rehabilitation and revegetation with indigenous species for biodiversity conservation and land and water resource outcomes.

1. Although the net gain approach has a priority to avoid permanent loss of existing native vegetation, where vegetation is allowed to be removed it requires that such losses are, at a minimum, balanced with gains elsewhere. It is also clear that the Framework differentiates between the conservation significance of a site and the outcomes that will be supported. Appendix 4 includes a summary of responses for sites of Very High, High, Medium and Low Conservation Significance. The response in Appendix 4 for sites of Very High Conservation Significance is that clearing is not permitted unless exceptional circumstances apply (impacts are unavoidable). If clearing is allowed then the net outcome (offset) is more onerous than for sites with lower conservation significance.
2. In considering whether vegetation should be removed, I am aware that the Department of Sustainability and Environment (DSE) advised the Council by letter dated 29 June 2012 that it does not object to the granting of a permit for the application; nor did it ask that conditions be included on any permit. The Tribunal advised DSE of the application for review but the Department chose not to lodge a statement of grounds or become a party to the hearing.
3. Appendix 4 of the Framework suggests that clearing of vegetation rated as Very High Conservation Significance will only be permitted in 'exceptional circumstances'. Whilst I understand the reason why Lot 58 needs to be realigned or relocated away from the golf course fairway, I am not persuaded that locating the new lot as now proposed is an acceptable planning outcome, given the extent of Very High Conservation Significance vegetation that has to be cleared to allow development of the proposed lot.
4. Mr Jonson described the vegetation removal as a significant amount. I note that the area to be cleared for the dwelling, access and fire protection zones is in the order of 1,600 square metres or approximately 30 % of a site of 5,400 square metres. I also observe that the proposed lot is located in a corridor of vegetation along the eastern side of The Cups Drive and that the clearing required for the defendable space around the dwelling in Habitat Zone 1 will significantly disrupt this corridor. State policy at Clause 12.01-1 has a strategy to assist in the re-establishment of links between isolated habitat remnants. The removal of a substantial area of native vegetation within an existing link would appear to be at odds with the intent of this strategy.
5. In noting the size of the area to be cleared I accept the applicant's submission that the proposed subdivision and development will enable vegetation that is retained, particularly the higher quality vegetation in Habitat Zone 2, to be more actively managed than at present. Not only will Habitat Zone 2 be fenced off in perpetuity to restrict access but the landscaping works and native vegetation reserve and off set arrangements provide the opportunity to limit 'edge effects' along boundaries and manage degrading processes weed invasion. That is a positive outcome but one which is not outweighed by the extent of removal of vegetation of Very High Conservation significance that is part of a larger corridor.
6. I also note that the native vegetation provisions are to change in the near future and Ms Burke made brief reference to the changes in paragraph 16 of her statement. She noted that under the reforms the vegetation on the site would be considered of lesser significance and a third of the offsets would be required. Whilst I accept these changes may be made soon, I have based my assessment on the existing Planning Scheme provisions and the submissions and evidence presented on the basis of the existing provisions.

1. What has concerned me most about this application is the Very High Conservation rating of the vegetation to be removed. I acknowledge that the necessary off set calculated by Ms Burke is available elsewhere in the EVC bioregion relatively close to the site.
2. Clause 10.04 of the Planning Scheme requires me to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.
3. Policy gives very strong support to the retention of native vegetation and, as a priority, avoiding the removal of vegetation. In the case of vegetation of Very High Conservation Significance, there is even greater emphasis on not allowing clearance other than in exceptional circumstances. I am not persuaded that allowing the subdivision and development of land containing vegetation of Very High Conservation Significance does achieve a net community benefit.

1. Having regard to all of the above, I will therefore order that the decision of the Responsible Authority be set aside and that no permit issue.

[1] Clause 44.06-6 of the BMO provides an exemption from notice and review by third parties.

[2] Council has previously advised that eleven of the people included on the joint application for review were not original objectors. That is incorrect as the written objection to Council dated 5 April 2012 includes all the joint applicants except Mr Chojna, and his name appears on a further objection to Council dated 3 May 2012. All these people are joint applicants for review. However Mr Jonson is listed as the only applicant as his name appears in part 1 on the application for review form.

[3] At the hearing there was considerable discussion as to whether a Master Plan marked 'Version October 1985' was the Land Use Plan and Overall Development Plan referenced in the incorporated document. Apart from having a different title, there is nothing marked on the plan that ties it back to the original approval as part of the specific amendment to the Flinders Planning Scheme. In October 2003 Amendment C62 included the Incorporated Document into Clause 52.03 of the Mornington Peninsula Planning Scheme. It regulates use and development on the land shown in Figure 5 of the Incorporated Document but a Land Use Plan and Overall Development Plan did not form part of that approval.

[4] Section 82 of the Planning and Environment Act 1987 - A review by objectors of a decision by the Responsible Authority to issue a Notice of Decision to Grant a Permit.

[5] Assessment table on page 9 of Ms Burke's report dated 21 December 2011.