My opinion on the question referred to me is set out in the following reasons.

1 Moran Logging Company Pty Ltd has made application to review the failure of the responsible authority to grant a permit for timber production (timber harvesting from, and revegetation of, existing native vegetation) at 565 Thonemans Road, Beenak. The responsible authority ultimately decided that, had it not been for the application for review, it would have refused to grant a permit. During the course of the hearing before Senior Member Liston and Member Harty, the responsible authority raised an issue, which it characterised as a question of law, in relation to the proper interpretation of a policy known as Victoria's Native Vegetation Management - A Framework for Action ("the Framework").[1]

2 This issue was subsequently formulated as follows:

What is the appropriate response (ie Harvesting generally not permitted or Harvest and regeneration may be permitted as part of sustainable land use option) in terms of the Native Vegetation Framework to a proposal for timber harvesting on a site that has High Conservation Significance if that level of conservation significance was attained by way of threatened/rare species (in terms of table 5 at Appendix 3)?

3 Although the Applicant contested whether this issue was a question of law, the tribunal has referred the question to a judicial member pursuant to clause 66 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. This was appropriate, as the question of whether a matter is a question of law is itself a question of law.

4 Parties have made written submissions about the matter, which I have read.

5 For the purposes of this opinion I adopt the following facts.

•

The subject land is private land.

•

The applicant proposes to harvest timber from naturally established native forest on the land.

•

Pursuant to the Framework, the vegetation to be harvested has a "High" conservation significance.

•

The reason why the vegetation to be harvested has a "High" conservation significance is that it forms part of the remaining 50% of habitat for a threatened species in the applicable bioregion, namely the Powerful Owl.

•

Harvesting of native vegetation is currently allowed on public land within the same bioregion as the subject land in circumstances where that vegetation has a "High" conservation significance pursuant to the Framework.

6 Clause 52.17 of the Yarra Ranges Planning Scheme provides that a permit is required to remove native vegetation. It also provides that before deciding on an application the responsible authority must consider, as appropriate, the Framework. This publication, which is incorporated in the scheme, is also referred to in various policies that form part of the scheme.

7 The Framework is a policy document, in the sense that it is intended to provide guidance in the making of decisions. It is not a statutory document, in the sense that it is intended to create rights, impose liabilities or determine the lawfulness of particular activities. This is so notwithstanding that it is incorporated in the planning scheme. Many documents incorporated into the scheme have the role of providing policy guidance rather than establishing rules or requirements.

8 Appendix 3 of the Framework contains a table which sets out a method of determining the conservation significance of vegetation, in terms of "Very High", "High", "Medium" and "Low". Importantly a ranking might be assigned by reference to various biodiversity attributes: vegetation type, habitat for species, or some other attributes. For example, the quality and type of vegetation, if considered in isolation, might initially attract a "Medium" level of significance; but, because the vegetation provides significant habitat for an endangered bird or mammal, the vegetation might be attributed a "High" level of significance.

9 Appendix 5 of the Framework contains a table that applies to the harvesting of timber from naturally established native forest on private land. The table suggests that the appropriate response to a proposal to harvest such timber, where the conservation significance of the vegetation is "High", is "harvesting generally not permitted". However this statement is qualified by a footnote, which provides:

Unless harvesting is currently allowed on public land within the same bioregion for areas of vegetation which have equivalent conservation values.

10 The body of the publication explains the basis of this policy. It provides, relevantly:

The harvesting of naturally-established native forest has environmental consequences but is clearly a different level of impact to permanent clearing. In general terms, the approach to this activity on private land will reflect the approach on public land. However, an important difference with respect to environmental factors at the landscape scale is that private land timber stands are often neither as large in area nor as surrounded by extensive areas of other forest as stands on public land, and so there are often more limited options for "buffering" the impacts of harvesting in time and in space.

The Net Gain approach will complement the framework for sustainable forest management on public land. Consistency with the Net Gain approach means that utilisation of native vegetation for timber products (eg. selective harvesting, harvest and regeneration) on private land must be part of a sustainable forest management approach and will only normally be permitted in Low and Medium conservation significance categories. In some cases there are combinations of conservation status and quality of vegetation that result in a Very High or High Conservation Significance rating, but harvesting is currently allowed on public land under certain conditions (eg. silviculture prescriptions) within the same bioregion. In these circumstances harvesting followed by regeneration can be permitted on private land with similar conditions unless other criteria on the site warrant a Very High or High rating (eg. threatened species). However, the amount of harvesting will need to be determined on a site by site basis taking into consideration the need to buffer the impact of harvesting in time and in space. Appendix 5 summarises the offset criteria for harvesting timber from naturally-established native forest on private land.

11 The issue that has been referred to me centres on the differences between the content of the body of the Framework and Appendix 5 of the Framework.

12 As the dispute centres on the meaning of a document, it raises a question of law. It is true that the document does not determine rights - the mandate in the planning scheme is only that the Framework be considered - but the meaning of a document might need to be ascertained if it is to be considered. This will not always be the case. It will often be unnecessary to determine the precise meaning of poorly expressed or ambiguous policy documents when this will make no difference to the exercise of the discretion, which would be the same regardless.

13 In my opinion Appendix 5 of the Framework is intended to be the principal articulation of the policy to be considered when considering an application to harvest timber on private land. I form this opinion having regard to the tabular manner in which the appendix is expressed and the apparent intention that it provide a day-to-day guide to planning officers about relevant scenarios. This is so notwithstanding that it is described as a "summary"; it would be odd if it was an incomplete or an inaccurate summary. By contrast, the body of the Framework is written in a narrative or explanatory style; it is not written as a set of clear guidelines that might be followed in particular cases.

14 The applicable response suggested by Appendix 5 of the Framework is "harvesting generally not permitted". This statement stands on its own. (It is not materially different to the statement in the body of the Framework that harvesting will only "normally" be permitted in "Medium" or "Low" conservation significance categories.) Hence, even if the qualification in the footnote to Appendix 5 is inapplicable, the suggested response still allows for the possibility that the particular case under consideration may be an exception to a general rule. Further, even if the qualification in the footnote is applicable, it does not follow that it would be inappropriate to refuse a permit for the harvesting.

15 What, then, is the role of the statement in the body of the Framework to the effect that harvesting of vegetation on private land should not be permitted if the "High" ranking results from an attribute such as the vegetation forming the habitat of threatened species? In my opinion, this forms the role of a flashing amber light (not a red light), suggesting that close consideration be given to the question of habitat retention before any permission is granted.

16 It is important to understand that the Framework is not intended to determine rights or to dictate outcomes. It is intended to provide guidance. Common experience tells us that the appropriate decision will depend on many circumstances, which will often be unique to the particular case under consideration. It is a mistake to think that a document such as the Framework can provide all the answers, as if it is some form of digital supercomputer that provides an automated outcome based on a given set of inputs. The planning scheme intends that permit decisions be made by human beings (whether planning officers, councillors, Ministers or tribunal members). Human beings make discretionary decisions by considering all relevant factors and then exercising judgment. This is what is required in the present case.

[1] Arguably I should refer to the publication as "a Framework", but this is linguistically inconvenient.