I seek a declaration from VCAT instructing Latrobe City Planning Authority that the land owner must decease (sic) with all current works pertaining to the construction of said fencing pending the outcome of a permit application to erect such a structure in accordance with s.52.17 of the State Planning Policy Framework.

2 By way of background, the applicant, Mr Theo Morsink, is aggrieved by the extent of clearing that a neighbour, Mr Vin Nightingale, has carried out in connection with the construction of a fence around Mr Nightingale's property. The applicant considers the extent of clearing to be excessive and contends that a planning permit is required for the removal of native vegetation pursuant to the provisions of clause 52.17 of the Latrobe Planning Scheme. He has tried unsuccessfully to persuade the responsible authority to require a planning permit or to take enforcement action. He has therefore applied for a declaration under section 149B of the Act.

3 The subject land at 215 Thomson Road, Hazelwood South has an area of 96.13 hectares and comprises thick bushland. The land is in a Rural Zone and there are no overlays affecting it. Surrounding land is also covered in native vegetation.

4 The Nightingales have constructed approximately 5 kilometres of fencing around the perimeter of their property. The fence is a post and wire fence with 8 strands of plain wire using concrete fence posts and wooden strainer posts sourced from the property. A vehicular access track has been bulldozed along the fence line for access purposes. The amount of vegetation cleared is generally from 4 - 5 metres but the cleared areas vary from between 3 to 6 metres in width. The responsible authority does not consider that the amount of clearing along the fence line is excessive but that it falls within the ambit of the exemption to the need for a permit to clear native vegetation found within clause 52.17 of the planning scheme, namely the minimum extent necessary for construction of the fence.

5 The applicant takes a different view and it is this that he seeks to test by means of this application for declaration.

6 Because the land is native bushland with no dwelling on it, its use could best be described as "natural systems", which is a section 1 use in the Rural Zone. It is not necessary to examine whether a permit is required for a fence as buildings and works in the Rural Zone because clause 62.02 of the planning scheme provides that any requirement in the scheme relating to the construction of a building or the construction or carrying out of works does not apply to a fence. It does not apply to the removal, destruction or lopping of trees or the lopping of vegetation either except there is a rider to the whole of clause 62.02 that the exemption does not apply if a permit is specifically required for any of the matters listed.

7 A permit is not specifically required for a fence in the Rural Zone (or otherwise) therefore no planning permit was required for the construction of the fence. With respect to the removal, destruction or lopping of trees and the removal of vegetation, clause 52.17 contains a specific permit requirement to remove, destroy or lop native vegetation. However, clause 52.17 contains a number of exemptions and the exemptions relevant to the present case include the following:

•

If the removal, destruction or lopping of native vegetation is necessary for fire fighting measures, periodic fuel reduction burning, or the making of fire breaks up to 6 metres wide.

•

To the removal, destruction or lopping of the minimum extent of native vegetation necessary for the construction, operation or maintenance of a farm structure, including a dam (other than on a stream), tracks, bores, windmills, tankstands, fences, stockyards, loading ramps, sheds and the like. This does not include the removal, destruction or lopping of native vegetation required for the installation or operation of a central pivot irrigation system.

8 The Council has taken the view in dealing with this matter that the Nightingales were exempt from the permit requirement of clause 52.17 by virtue of the 'rural activities' exemption relating to fences. It is not in contention that the native vegetation was removed to facilitate the construction of the fence. Council officers consider that as a consequence of the heading of the exemption in clause 52.17 - 'rural activities' - and the specific reference to fences contained in the exemption, the exemption applies in this case. They take the view that the current bushland of itself constitutes a rural activity. The term 'rural activities' encompasses more than simply agricultural activities. The use of land as bushland is characteristic of the way in which land may be used in the country (as distinct from towns or cities). It therefore follows that the fencing of land which is used for this purpose should be considered a rural activity for the purpose of clause 52.17 and exempt from the permit requirement contained therein.

9 By contrast, the applicant submitted that the reference to fences in clause 52.17 is in the context of them being a farm structure. The exemptions listed are deliberately directed at farmers and should not be considered as an automatic benefit for everyone. If the property is not defined as a farm then specifically the structure being erected is not a farm structure. In this case, he submitted, the exemption should not apply as the construction of a fence is not occurring on farming property and does not abut any farming property.

10 There was some debate about whether the clearing was for the purpose of a firebreak and hence within the exemption relating to fire. I do not consider it is necessary to deal with this issue because I consider the exemption relating to 'rural activities' and fences covers the situation for the reasons set out below.

11 Before dealing with the issues and making any findings in this case it is important to consider the nature of the proceeding. The application is not an enforcement order proceeding. Despite the applicant's views, which he has expressed to the Council since January 2005, that there was a breach of the planning scheme being committed by virtue of removal of native vegetation without a permit, he has not chosen to make an application for an enforcement order even when the Council declined to do so. The applicant did not seek to restrain the construction of the fence and removal of vegetation prior to its completion, although construction took place over several months and the applicant would have had adequate opportunity to apply for an interim enforcement order stopping the vegetation removal before it was complete. The applicant stated that he is not looking to take any enforcement proceedings against the Nightingales or seeking remediation if he obtains a declaration. Rather he is concerned with establishing what the correct interpretation of the planning scheme is and then, if any loopholes exist, getting them closed via an amendment to the planning scheme.[1] He maintains that he is concerned with the global situation rather than the particular situation.

12 With respect to the particular situation, I made it clear at the hearing that I was not prepared to make any findings of fact regarding whether the clearing that has occurred is of minimum amount necessary for the construction of this fence. To the extent that the declaration that is sought, and which is set out above, is specifically directed to the current works and extent of vegetation removal relating to the construction of the fence on the subject land, I decline to make such declaration. I do not have sufficient evidence to enable me to make findings of fact to support such a declaration and the more appropriate remedy to achieve the outcome framed in the application is to make an application for an enforcement order under section 114 of the Act.

13 I turn then to the 'global' situation that the applicant is concerned about and whether it may be relevant to make a declaration about whether an exemption exists within clause 52.17 to remove the minimum extent of native vegetation necessary for the construction of a fence where such a fence is not on a farming property.

14 The subject land is not a farm within the ordinary meaning of that word. It is used for natural systems, which is a section 1 use in the Rural Zone. I find that natural systems would fall within the ordinary meaning of the term 'rural activities'. However, the term 'rural activities' as it is used in clause 52.17 is the heading for a series of exemptions for various activities not necessarily all related to farming, for example the cutting of wood for a land owner's personal use. Therefore I do not consider that the exemption in the first dot pint can be interpreted solely by reference to the heading 'rural activities' without reference to the words of the exemption clause itself.

15 The relevant words of the specific exemption in question read as follows:

To the removal, destruction or lopping of the minimum extent of native vegetation necessary for the construction, operation or maintenance of a farm structure, including a dam (other than on a stream), tracks, bores, windmills, tankstands, fences, stockyards, loading ramps, sheds and the like. This does not include the removal, destruction or lopping of native vegetation required for the installation or operation of a central pivot irrigation system. (Tribunal's emphasis)

Thus the exemption is given for a farm structure, and a farm structure is said to include a dam (other than on a stream), tracks, bores, windmills, tank stands, fences, stockyards, loading ramps, sheds and the like. These are all structures that are commonly found on farms, but they are also structures commonly found on other rural properties too.

16 In my view it would be an impractical outcome if, before an exemption applied for the removal of vegetation in connection with the construction, operation or maintenance of any of these structures, it had to be established that they were used in connection with a farm. Significant definitional problems would arise. What would happen if part of the property was used as a farm and part was native bushland? Would the structures themselves need to be used for farming purposes or would it be sufficient that they were located on a farm even though they had no connection with the agricultural production? What level of agriculture or pastoral activity would suffice to qualify land as a farm? Questions of equity would also arise. Why should a farmer be exempt from the need to obtain a permit to remove vegetation to construct a fence on his property and yet his adjoining neighbour, who may not be using his property as a farm, not also be exempt for removing similar vegetation to construct a similar fence? The same issues arise in connection with any of the structures mentioned, not just fences.

17 In my view, the term 'farm structure' is a descriptive term that describes the type of structures for which an exemption applies. The word farm describes the type of structure not the type of property on which the structure is located. Therefore, the type of structures that are exempt are structures typically found on farms whether or not they are in fact located on a farm. Thus in connection with fences, vegetation removal in connection with the construction of farm type fences would be exempt but not other types of fences such as a high brick wall. Such a fence could not be said to be a farm structure. This is irrespective of the fact that the construction of the fence itself may not require a permit pursuant to clause 62.02.

18 Ms Marshall, representing the Council, referred me to some draft fence line clearing guidelines prepared by the Department of Sustainability and Environment, South West Region. The purpose of this guideline is stated as follows:

This is an interim guideline for DSE staff and Responsible Authorities to apply where fence line clearing is proposed. It provides the minimum standards for acceptable vegetation clearing relating to fence lines. They have been developed to improve the consistency of approach for clearing along fence lines. Where a local government has a written policy, that will apply, however, where no written policy exists, these guidelines can be used as a basis.

19 These guidelines have no status under the planning scheme but their content indicates an assumption that the exemption in clause 52.17 applies to all fences in rural areas, not just fences on farms.

20 I consider there is some ambiguity surrounding this exemption in clause 52.17 and if there is to be a review of the exemptions in clause 52.17 it would be desirable to clarify the government's intention and whether the exemption applies to all fences or only in a rural context. In the meantime, in terms of this proceeding, I find that the interpretation placed on the exemption in clause 52.17 regarding clearing native vegetation for construction of fences by the Council was correct, although I make no finding about whether the actual clearing carried out came within the ambit of the exemption in terms of being the minimum extent necessary.

21 I do not consider it is necessary in the circumstances to make any form of declaration regarding the general interpretation of the exemption in clause 52.17 regarding fences. This was not the nature of the declaration sought in the application, which was directed to site specific circumstances. More particularly, I do not consider this is an appropriate case in which to make a declaration. It is settled that in granting declaratory relief under section 149B of the Planning and Environment Act 1987, the Tribunal is guided by the principles developed by the courts in relation to this relief (see State Transport Authority v City of Wodonga and Ors 2 AATR 175 at 190). These principles were considered by the Tribunal in Phillips v Greater Shepparton City Council [2005] VCAT 653, which stated:

[108] Declarations are a discretionary remedy. Courts and Tribunals have consistently held that the jurisdiction to make declarations must be interpreted broadly. There are a number of well recognised factors that will influence whether discretion ought to be exercised in making a declaration. The High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10, (1992) 175 CLR 564 gave the following list of factors often used in the exercise of discretion to grant or withhold declaratory relief:

[38] It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter...by laying down rules as to the manner of its exercise."... However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions ... The person seeking relief must have "a real interest"... and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen"... or if "the Court's declaration will produce no foreseeable consequences for the parties"...

[109] The power to make a declaration is not ousted by the existence of alternative remedies. The provision within a statute setting out a particular procedure for determining an issue in relation to which a declaration has been sought will not automatically or necessarily lead to the conclusion that a declaration will be refused, but it will be an important factor that may influence whether discretion to make a declaration should be exercised.

22 In my view, a general declaration regarding the interpretation of the exemption relation to fences in clause 52.17 would offend the requirement that the issue must not be purely hypothetical. The applicant has stated that he does not wish to take specific action against the Nightingales or to remedy the loss of vegetation but rather seeks to have an interpretation as a matter of principle. I consider such a declaration would be merely of academic interest and of no practical utility. If the applicant wishes to make submissions to any review of the exemptions in clause 52.17 that is a matter for him to decide. In the circumstances however I decline to make a declaration.

[1] In this context it is relevant to note the Minister for Planning has appointed an Advisory Committee to review exemptions to the exemptions under clause 52.17.