Mount Alexander v Felmar Garden Supplies Pty Ltd [2000] VCAT 1115 (31 May 2000)

Planning List; Application under s.114 and Application for Review under s.79 Planning and Environment Act 1987; Mount Alexander Planning Scheme; tree removal; enforcement order application; application for permit .

1. In accordance with Section 119 of the Planning and Environment Act 1987, I specify that the development that has contravened the Mount Alexander Planning Scheme is the removal and destruction of native vegetation without a permit, contrary to Clause 52.17 of the Planning Scheme.

2. This Order is made against Felmar Garden Supplies Pty Ltd as owner of the subject land and Mr Trovatello as occupier of the subject land (both of whom are referred to as "the respondents").

3. Within one month of the date of this Order the responsible authority, in consultation with the Department of Natural Resources and Environment, shall prepare a plan showing the area described by Mr Morison in the vicinity of the location of the proposed road widening adjacent to the subject land as appropriate for replacement planting, and serve copies of it on the respondents.

4. Within 12 months of the date of this Order, the respondents must replant a total of 340 indigenous trees and shrubs within the area shown on the plan prepared under paragraph 3.

5. The trees and shrubs to be replanted under this Order are to be maintained to ensure that a survival rate of at least 70 per cent is achieved after 24 months from planting. If the 70 per cent success rate is not achieved within the specified time, the respondents must replant until the specified rate is achieved.

6. Mr Trovatello must advise the North West Region of the Department of Natural Resources and Environment when replanting has been completed pursuant to this Order, and give access to such officer or officers of the Department as may attend to inspect the replanting.

7. Application for Review no. 1999/72406 is struck out.

8. The interim enforcement order dated 9 August 1999 is discharged.

Mr A D Lang of Counsel, instructed by Corrs Chambers Westgarth, Laywers, appeared on behalf of the Applicant (Responsible Authority).

Mr I McP Pitt of Best Hooper, Solicitors, appeared for the Respondents.

Note: the parties as shown in the heading are the parties in Application no.1999/5593.

1. At the time the events described in this Application arose, Mr Trovatello was in the process of clearing the subject land for the purpose of an olive grove. At least six native trees were cleared without a permit (the number of trees is in dispute). Mr Trovatello submitted application no.152/99 to the Mount Alexander Shire Council ("the Council") for a permit to remove six trees on 20 May 1999. The trees had already been removed by that date.

2. The plan which accompanied the permit application did not show the location of the removed trees in the context of the entire property. It was a sketch of part of the subject land, showing the olive plantation area, between the driveway and the southern boundary of the subject land. It indicated that there were to be 5,000 olive trees planted, generally in the south-west portion of the subject land. The removed trees were shown as a group of four, and two isolated trees. They were all well back from Redesdale Road, to which the subject land abuts, and some distance from the southern boundary of the subject land.

3. This Application was commenced under Section 114 of the Planning and Environment Act 1987 ("the Act"), by the Council as Responsible Authority under the Mount Alexander Planning Scheme, seeking an enforcement order. Particulars subsequently provided alleged that 13 trees were removed without a permit.

4. The Council has not determined the application for the removal of the six trees. Mr Braslis, who gave evidence on its behalf, stated that the Council had thought it would be improper to make a decision on the merits of the application after it had initiated an enforcement action, and while the Section 114 Application was pending before the Tribunal.

5. On 14 September 1999, by Application no.1999/72406, Mr Trovatello commenced proceedings to review the Council's failure to make a decision within the prescribed time, under Section 79 of the Act.

6. Although the number of trees, whether six or thirteen, is small, the Council has treated this issue of one of principle, applying to the issue of compensatory planting an approach which has been contested by the respondents.

7. The land which is the subject of these Applications is situate at and known as Lot 2 on PS 110809, being Crown Allotments 8, 9, 11A and 11C and part of Crown Allotments 7, 10, 11B and 11D, Parish of Emberton County of Dalhousie, and being the land more particularly described in Certificate of Title volume 9235 folio 658. It is situated in Redesdale Road, Barfold via Kyneton.

8. The alleged clearing of native vegetation took place at a time when the relevant planning scheme was the Metcalfe Planning Scheme, and the relevant provision Clause 7-4 of that Scheme. However, between the date of lodging of the Application and the hearing, the new Mount Alexander Planning Scheme was brought into effect.

9. The Application alleged that "the occupier of the land is in breach of 7-4 of the Metcalfe Planning Scheme State Section. The occupier has felled trees on the land without a planning permit".

10. Under Section 24 of the Planning and Environment (Planning Schemes) Act 1996, rights and liabilities existing under the revoked Scheme immediately before the commencement of a new Victoria Planning Provisions format Planning Scheme continue under the new Scheme to the extent that the new Planning Scheme has provisions to the like effect as provisions of the revoked Scheme.

11. The subject land is now located in the "Rural Zone" under the Mount Alexander Planning Scheme. It was common ground that horticulture, and in this case in particular an olive grove, is an "as of right use" for which no permit is required in this zone. However, a permit is required under Clause 52.17 to remove, destroy or lop native vegetation, unless one of the exemptions set out in the Clause is applicable.

12. Clause 52.17 is one of the "Particular Provisions" set out in the Victoria Planning Provisions format Planning Schemes, which apply to the matters specified in them "in addition to any requirements which apply because of the zone, an overlay or any other provision of the Scheme", as explained by the introduction to that part of the Scheme.

13. Under both Planning Schemes, a permit was (and is) required to remove, destroy or lop native vegetation. As a preliminary matter at the interim enforcement order hearing, the Application was amended to substitute the currently applicable provision, Clause 52.17, for the provision originally cited as having been contravened.

14. The Application thus amended sought the following orders:

"1. That the occupier and owner of the land not breach Clause 52.17 of the Mount Alexander Planning Scheme.

2. That the occupier and owner of the land restore the land as is practicable to its condition immediately before the trees were cleared.

3. All restoration works must offset the environmental impact caused as a result of felling the trees off the land."

15. Mr Pitt, who appeared on behalf of the respondents, waived the necessity for formal proofs. He conceded that:

· there had been a breach of the Planning Scheme in relation to the six trees included in the permit application.

· Mr Trovatello is the person who felled the trees;

· Felmar Garden Supplies Pty Ltd ("the company") is the registered proprietor of the subject land, and has been since 1989.

· Mr and Mrs Trovatello are directors of the company.

16. Subsequently, Mr Pitt also conceded the tender of an extract from the Biodiversity Strategy, on the basis that it was not a part of the Planning Scheme. This was agreed by Mr Lang, who appeared on behalf of the Council.

17. The orders were sought against the company, Felmar Gardens Supplies Pty Ltd, as the owner of the subject land, Mr Felice Trovatello as the person who has been occupying the relevant part of the subject land, and also both Mr and Mrs Trovatello as persons against whom the order should be made because they are directors of the respondent company.

18. It was not conceded Mrs Trovatello had anything to do with the contravention which is the subject of this Application. Indeed, apart from her directorship and shareholding in the company, it was not alleged that Mrs Trovatello had any part in the actions which are the basis of this application.

19. The persons against whom an enforcement order may be made are identified in Section 114(3) of the Act as follows:

(c) any other person who has an interest in the land;

(d) any other person by whom or on whose behalf the use or development was, is being, or is to be carried out.

20. I accept the argument of Mr Pitt, who appeared on behalf of the Respondents, that the fact of being a director of a company which owns or occupies the subject land is not sufficient to attract an order under Section 114(3) of the Act. No "interest" in the land has been shown on the part of the directors independently of the interest of the company in the land. Nor is it suggested that Mr Trovatello acted under direction from Mrs Trovatello or the company in cutting down the trees.

21. The distinction between a "body corporate" and a person who is concerned or takes part in the management of a body corporate appears in Section 128, in relation to offences under the Act. If directors were intended to be pursued under Section 114 on the basis of their management and control of a company, independently of any interest they may have in the subject land, that same distinction should have been made in Section 114(3). No order will be made against Mr and Mrs Trovatello in their capacity as directors. Mr Trovatello, however, has the separate role as occupier of the subject land.

22. In addition to the six trees originally identified as having been felled by Mr Trovatello, the Council, acting on the advice of the Department of Natural Resources and Environment ("DNRE") has identified further trees as having been cleared without a permit. This was denied on behalf of Mr Trovatello.

23. Mr Pitt indicated that it would be disputed that any trees numbering more than six had been removed in breach of the Planning Scheme. It was also submitted in relation to penalty on behalf of the respondents that once the requirement for a permit under the Planning Scheme had been drawn to Mr Trovatello's attention, no more trees had been cut down. The Council does not contend otherwise. The additional trees were alleged to be trees that had been cut down but were not found on the Council's initial visit.

24. The grounds of objection to the enforcement order application are in two categories. By way of defence, it is alleged that the trees that were removed were dead, and that they were to be used for the personal use of the occupier as domestic firewood. Secondly, the "compensatory works" sought by the Council were challenged. They were alleged to go far beyond what would be required to restore the land as nearly as practicable to its condition before the tree removal; also the location for compensatory planting was alleged to be remote from the area from which the trees had been removed.

25. At this hearing, Mr Lang applied for further amendment of the orders sought, by way of substitution of a new set of orders. Notice of the proposed amendment had been given to the respondents prior to the hearing. The proposed orders were derived from the form of permit that the Council would have been prepared to issue for the removal of 13 trees if an application for a permit had been made before the removal was completed. They are accordingly framed like permit conditions. The proposed orders are as follows:

Replanting should occur to compensate for tree loss and comply with Victoria's Biodiversity Strategy aim of achieving `no net loss of extent or quality of native vegetation'. The following replanting is to apply:

a) within 3 months of the date of this Order a total of 500 indigenous tress and shrubs are to be replanted along the cleared areas adjacent to the Campaspe River. The specific sites are to be determined in conjunction with the Department of Natural Resources and Environment.

b) The trees and shrubs are to be replanted within 12 months of the date of this Order [and] maintained to ensure a survival rate of at least 70 per cent is achieved after 24 months from being planted. If the 70 per cent success rate is not achieved within the specified time, replantings are to re-occur until the specified rate is achieved.

Within 30 days of the date of this Order the applicant must lodge a $1500 Cash Bond or Bank Guarantee with the Responsible Authority. This Bond or Guarantee will be held by the Responsible Authority until such time condition 1(b) is completed to the satisfaction of the Responsible Authority. If such works are not commenced within the 12 month period, Council may exercise its discretion to undertake the works, drawing on the secured funds. At such time all works have been completed in full to the satisfaction of the Responsible Authority, the bond or Bank Guarantee will be refunded".

26. Mr Pitt made no objection to the amendment; but he expressed strong objection to the orders sought. The amendment was made.

27. Before turning to the evidence, I will set out some relevant aspects of policy.

28. The first two objectives of planning in Victoria (as set out in Section 4 of the Act) are:

"(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity."

29. At the time the trees were cut down, there was a policy for protection and conservation of native vegetation in Clause 3-8.1 of the State Section of the Planning Scheme. This policy stated:

"It is planning policy that native vegetation is to be protected and conserved and that, in particular:

· Habitat for native plants and animals is protected.

· Ecological processes and genetic diversity are maintained.

· Carbon is stored and does not add to the greenhouse effect.

· Soil is protected from degradation, including salinisation and erosion.

· Adverse effects on groundwater recharge are minimised.

· Rivers, streams, wetlands and water resources are protected.

· Land is used and managed in a sustainable manner.

· Visual amenity and landscape quality are preserved and enhanced."

30. Implementation measures were also set out. In addition to this State policy, set out in the Planning Scheme, Section 60(1)(b) of the Act provided (as it still does), that if the circumstances appear to require it, a responsible authority may consider any strategic plan or policy statement which has been adopted by a Minister or government department.

31. The State Conservation Strategy was adopted in June 1987. This led to introduction of the native vegetation clearance controls, originally in November 1989, through the introduction of a proposed amendment to the all Planning Schemes in Victoria, a modified form of which ultimately became part of the State Section. The arrest and reversal of the decline of native vegetation in rural Victoria was an objective adopted in that Strategy.

32. The native vegetation clearance controls had two main aspects, as can be seen from the policy quoted above. They are aimed at achieving both protection of biodiversity, which leads to protection of flora and fauna habitat, and good principles of land, air and water management. A separate element appears in the last paragraph of the policy, which deals with aesthetic issues.

33. Under Clause 7.4-2 of the old State Section, one of the guidelines for a decision on whether a permit should be granted was:

. Planting, replanting or other treatment of any part of the land."

34. Like all Victoria Planning Provisions (VPP) format Planning Schemes, the Mount Alexander Planning Scheme now contains the present State Planning Policy on Conservation of native flora and fauna: Clause 15.09.

35. The Objective of this policy is set out in Clause 15.09-1:

"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."

36. Clause 15.09-2, "General implementation", provides (as far as is relevant):

"Planning authorities should utilise mapped information available from the Department of Natural Resources and Environment to identify areas of significant native vegetation and biodiversity.

If native vegetation must be removed as part of a land use or development proposal, planning and responsible authorities should require, where possible, the replacement of lost native vegetation by regeneration or replanting at least an equivalent area of vegetation."

37. Decision-making by planning and responsible authorities should:

"Assist the protection of conservation values of national parks and conservation reserves.

Assist the conservation of the habitats of threatened and endangered species and communities as identified under the Flora and Fauna Guarantee Act 1988, including under-represented species such as native grasslands, grassy woodlands and wetlands.

Address potentially threatening processes identified under the Flora and Fauna Guarantee Act 1988.

Assist re-establishment of links between isolated habitat remnants.

When considering planning scheme amendments or permit applications for land adjacent to a national park or conservation reserve, planning and responsible authorities should have regard to approved park and reserve management plans.

Planning and responsible authorities should have regard to The National Strategy for the Conservation of Australia's Biological Diversity (Department of Environment, Sport and Territories 1996), and any relevant regional catchment strategy and associated implementation plans and strategies, particularly regional vegetation plans and roadside management strategies, as well as special area plans approved under the Catchment and Land Protection Act 1994 when preparing planning scheme amendments or municipal strategic statements affecting native vegetation, waterways or wetlands.

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

Responsible authorities should encourage the use of land management plans or works programs as a basis for decision making and consider the need to protect waterways and soil from degradation that may result from the loss of native vegetation and the use of voluntary conservation agreements between land owners and the Department of Natural Resources and Environment."

38. It can be seen that the policy of protection of native vegetation, with particular reference to habitat value, was well established under the former Planning Scheme, and has been continued and developed in more detail in the new Planning Scheme. The conservation principles derived from the National Strategy and the recently adopted State Biodiversity Strategy have been developing parallel to the Planning Scheme, and the National Strategy now has explicit recognition within the strategic framework set out in the Victoria Planning Provisions. The aesthetic element of the Conservation Strategy has been separated from the specific policy dealing with Conservation of Native Flora and Fauna.

39. The principles set out in Victoria's Biodiversity Strategy would in any event have been available in making decisions on permit applications, where relevant, under Section 60 of the Act, even if not explicitly adopted or incorporated into the Planning Scheme at the time when the trees in question had been removed and the issue of compensatory planting arose. Those principles were already given statutory force in the Planning Scheme in some respects, through the version of the native vegetation clearance controls then applicable. The statutory controls have not changed much in the new VPP Scheme, although the policy framework has been expanded. The State Biodiversity Strategy itself, as Mr Pitt pointed out, is not a document incorporated into the Planning Scheme.

40. All evidence was given on either oath or affirmation.

41. The evidence on behalf of the Responsible Authority may be summarised as follows.

42. Mr Keogh is an officer of the Council. He is the Group Manager, Technical Services, and is the only Shire Officer who has been involved in investigating the alleged contravention. On Monday the 3 May 1999, as a result of a phone call, Mr Keogh went to the subject land at about 4.00pm. He identified the subject land. He was able to see that trees had been felled as he drove along Redesdale Road. When he entered the subject land, he found a man near the house, and told him that it was against the Planning Scheme to cut down native trees. He was to stop cutting the trees, and apply for a permit.

43. The trees as he saw felled were mature eucalypts. He would estimate that they were a metre in diameter at the stump. He did not look at every tree that had been felled, as he found the air very dusty. He did not count the felled trees. He imagined that they were either box or red gums. The trees that had been cut down did not look like dead trees. The foliage looked very much alive to Mr Keogh.

44. In cross-examination, Mr Keogh admitted that he had no qualifications in relation to botany or identifying trees, other than his general experience in municipal engineering.

45. Mr Keogh was not entirely sure that he had not seen dead trees on the property from the road previously, although he did not recall noticing dead trees as he passed. He has passed the subject land on a large number of occasions. He said he generally takes notice of dead trees on a property.

46. He agreed with Mr Pitt that what he saw was done in board daylight, as a matter of preparing for cultivation, and without any attempt to disguise the activity. Nor did the person to whom he spoke dissent when told of the need to obtain a permit.

Eric Andrew Braslis, Town Planner, City of Greater Bendigo

47. Mr Braslis is a qualified town planner and described his qualifications and experience. He is contracted through the City of Greater Bendigo to work for Mount Alexander Shire Council.

48. Mr Braslis stated that he was contacted by Mr Keogh, and was the person who got in touch with DNRE. He was also asked by a person who was obviously Mr Trovatello to provide the necessary documents to make an application for a permit for the removal of trees. He put together a package of documents and sent it as requested on 4 May 1999. In response, he received the application for removal of six trees, the sketch plan, and a covering letter dated 20 May 1999.

49. He was responsible for processing the application. He "referred" it to DNRE for consideration and advice on 31 May 1999. He did not inspect the subject land when he was first involved with it. Instead, about 5 July 1999 he received comments back from DNRE which included results of their inspection. A copy of DNRE's letter dated 30 June 1999 was tendered.

50. Mr Braslis first inspected the subject land on 13 July 1999 (approximately), from the roadside along the frontage. He took photographs, which were tendered.

51. Mr Braslis described the subject land as being in the north east portion of the Shire. It backs onto Barfold Gorge. The property is mainly used for grazing. There is a small ridge across the property, dividing it so that the part that slopes down towards the Campaspe River is not visible from Redesdale Road. Mr Braslis marked up a copy of the site plan, showing where the photos had been taken and where he saw felled trees.

52. The photos show trees in three areas. The first two show trees that have been felled and dragged to the north west corner of the site. These were thoroughly cut up; but green foliage still appeared amongst the branches. The next group of photos depicted felled tree stumps. One group is in the south west corner of the property, and the other in the middle of the property. These locations are all on the Redesdale Road side of the ridge line running through the property, so are visible from the road.

53. One photo shows what is obviously a large tree trunk which has been cut into segments. Photos also show a remnant stump, surrounded by the olive plantings. The photos also show surviving specimens of isolated large eucalypts which remain close to or are surrounded by olive grove planting.

54. Mr Braslis had since made other inspections, and had found that the property remained as it was when he took his photos. He last saw it on the 14 September. The photos were still accurate representations of the areas they showed.

55. Mr Braslis agreed that DNRE was not a statutory referral authority. The Council usually refers applications for tree removal to DNRE because the Council itself does not have the expertise to handle such applications.

56. There was some confusion at first as to whether the 13 trees mentioned in DNRE's first letter to the Council meant thirteen further trees, or a total of 13 including the six included in the permit application. Mr Braslis checked with the Department to clarify this. It is not alleged that more than 13 trees were removed.

57. In cross-examination, Mr Braslis stated it was his impression of the timber shown in photos was that it was parts of trees that had been cut down and had their foliage removed. However, he agreed that the foliage he saw could have come from six trees.

58. Mr Braslis described a permit that had been granted by the Responsible Authority for a quarry to be operated on other parts of the owner's land. Conditions on the quarry permit, which had been granted at the direction of the Tribunal, required very substantial tree planting in buffer areas. There had further been an application to widen the road and remove trees within the property boundary in association with the road widening. This was a part of the quarry operation, as the owner was required to make adjustments to the road so as to enable trucks going to and from the quarry to make the necessary turning movements into the property. There have been negotiations with Vic Roads to adjust the road widening requirement so as to minimise removal of trees. The Council had required that 200 trees be replanted to replace the specimens lost. This condition had not been challenged by the owner.

59. Mr Braslis stated that as part of the processing of the application by Mr Trovatello for the trees to be removed, a "draft permit", setting out suggested conditions, had been prepared. This was a normal part of the way the Council processed applications.

60. A further letter had been received by Council from DNRE dated 30 July 1999. This gave more details of the trees that have been removed, and also gave the Department's recommendation for replanting. The requirement suggested in the "planning permit" reflected this recommendation. It is also the basis for the amended orders now sought by the Council. The relevant text of this letter was:

"The planning permit application refers to the removal of six trees (which the planning application says have already been removed). Field inspection revealed that thirteen trees have been recently cleared, including one Red Gum at 1.8-2.0 m diameter, and four Red Gums at 1.4 m to 1.6 m. The larger trees contained depleted fauna habitat in the form of tree hollows.

1. A mixture of at least 500 indigenous trees and shrubs are planted along the cleared areas adjacent to the Campaspe River.

2. The trees and shrubs are to be replanted within 12 months of clearing, and a 70 per cent survival rate achieved after 24 months. If the 70 per cent success rate is not achieved within a specified time, replantings are to re-occur until the specified rate is achieved.

The Department is willing to assist with fencing materials for tree planting in agreed sites."

61. There are two features of the Department's recommendations, adopted by the Council, to which Mr Pitt drew particular attention. The first is that although six trees were admittedly removed, a total of 500 indigenous trees and shrubs was sought to be provided by way of "replacement".

62. Secondly, the location of the "replacement" trees was not in the area where the trees had been removed. It was considerably distant from any area where a tree had been removed and was concentrated near the Campaspe River.

63. Mr Braslis agreed with Mr Pitt that the suggested replanting location near the Campaspe River would be hundreds of metres from any site where a tree was taken, and on the slope towards Barfold Gorge, not in the area of the property visible from the road. He had made an assumption that trees had been felled from behind ridgeline and dragged forward to the area near the road. But, Mr Braslis stated, the Council also took into account that the reason the trees had been removed was to make way for the olive grove. This was an "as of right" use in the zone, and the Council had some sympathy for this, so was not seeking replacement in the precise locations from which trees had been taken. He agreed that the Department would like to see revegetation in Barfold Gorge. But the roadside vegetation is also significant in the Council's view.

64. Mr Pitt stated that there had been confusion about the road widening and tree removal permit, because it was related to the quarry use and obtained by the consultant acting for the owner company in relation to the quarry. Mr Pitt said that Mr Trovatello had only recently seen a copy of it and become aware of the tree replacement ratio imposed by it.

65. Mr Morison is a Field and Extension Officer, Flora and Fauna Unit of the DNRE. He has had nine years' experience with the Department. He took up the story at the point when he was asked to become involved in a permit application, and in relation to illegal tree clearance, on approximately 16 June 1999. He made an appointment with Mr Trovatello and inspected the subject land.

66. Mr Morison's evidence was that he found at least 13 trees felled. Most were red gum, with perhaps two being box. Some red gums were quite unusually large. About five were in excess of 1.4 metres in diameter. The trees had all been live when felled, in his opinion. This was based on the colour of the foliage and green bruising of the bark. Some of the trees had been cut into sections and pushed aside. He did not map the location of the felled trees. One tree had been dead when cut, so he had not included that tree in his count of 13. He had jotted down a note of the numbers of trees seen straight away and had a report prepared later. He had noted that there were hollows in some of the limbs. Hollows were valuable both in assessment of age of the tree, and for habitat purposes.

67. Mr Morrison explained in cross-examination that he had found it hard to identify where the "other seven trees" (i.e. the trees in excess of the six trees which Mr Trovatello admits having felled) had stood, as they had been moved since they had been cut down. They were smaller trees than the six; he estimated that they had a diameter at breast height of 20-30 cm. He thought they had been felled earlier than the six trees, but not by all that much. All the trees he saw felled, he considered to have been alive. With just a stump, it was hard to tell; the tops had been separated from them and pushed into a corner, and he had deduced which top and stump had belonged together because they were roughly the same size and species.

68. Mr Morison had no idea how many red gums were left on the property. He had not known then that there was an obligation under existing permits for large scale replanting to take place, to an extent much greater than was sought in relation to removal of 13 trees.

69. Mr Trovatello had told him that he had needed to cut the trees for his olive grove, but would be planting 4500 indigenous trees along his driveway. It was understood now that this had been a requirement related to the quarry. Some of the olive trees were planted over the site that had been required for replanting in relation to the permit for road widening at the entrance of the property, also associated with the quarry use.

70. Mr Trovatello had also told him that he had asked "the Shire" if he needed a permit to remove the trees, and had been told that he did not.

71. Mr Morison explained that he had provided the information contained in the letter to DNRE to the Shire dated 30 July 1999 containing the recommendations for replacement planting. The only basis in policy that he was able to give for the adoption of the figures he used was from the chapter "Objectives for Management of Biodiversity " at page 3 of "Victoria's Biodiversdity Strategy: Direction in Management". The first of the goals for biodiversity management is to ensure:

"......... there is a reversal, across the entire landscape, of the long-term decline in the extent and quality of native vegetation, leading to a net gain with the first target being no net loss by the year 2001."

72. The calculation of replacement planting figures was based on a standard that the Department sometimes uses. For smaller trees, the replacement ratio is 10:1; for large trees, a ratio of 80:1; and for medium trees, a ratio of 40:1. However, this is not a consistently used standard. Another basis for replacement planting sometimes used is to ask for one new tree for every year of the age of a tree felled.

73. In assessing the age of the tree as a basis for the replacement requirement, the Department works on the rate of 0.5 cm per year being added to the tree's diameter. The five larger trees, which were over 1.4 metres in diameter, were approximately 300 years old, conservatively calculated. A Report entitled Gumbower Timber Assessment - 1989, by Martin Woodward, Planning Officer, Bendigo Region of the Department, an extract of which was tendered, showed that in the case of the red gum plots studied on Gumbower Island, an average 0.25 cm per year is added to the diameter, which would make these trees very much older. The purpose of this report was forestry management, and the average was found as between two classes of sawlogs, based on date collected since 1959 from 24 permanently marked continuous forest inventory plots on the Island. The paper gave recognition to the fact that there are differences in diameter growth rates as between stands from different areas.

74. In trying to reflect the differences due to environment, Mr Morison referred to the paper "Dendrological Investigation of River Red Gum (Eucalyptus camaldulensis Dehnhardt)", being a Ph D thesis by R M Argent (1995). Mr Morison assessed the subject land as being of Level 4 type, or the type with least potential for growth under the proposed 4-level definition for appraising sites as part of the estimation of tree age as described in the chapter on Site Appraisal in Appendix A (age estimation). A level 4 definition would be applied, outside a floodplain, to sites with little or no readily available groundwater and no nearby permanent streams. On a floodplain, it would be appropriate to sites at the extent of growth of the species, with high numbers of less flood-tolerant species. The slower growth in less favourable habitat would indicate that a tree of the diameter of the five mature red gums would be a very old tree.

75. I assume it would also follow that it would also take longer for a new seedling to grow to a comparable size in a level 4 habitat than in a more favourable environment. However, Mr Morison also agreed with Mr Pitt that the subject land was very good red gum habitat, although not in a flood plain.

76. Mr Morison did not seek to establish that there was a definitive rule adopted by the Department; his evidence was that they look at each case. The ratio of 10:1 is a minimum, usually applied to smaller trees. Older and larger trees were more important in terms of habitat than small trees.

77. Mr Morison's report had stated that some of the trees were of significant size, and DNRE would probably not have approved their clearance. Four larger trees had been in one small area that could have been excluded from the plantation. I accept that a group of four mature red gums of significant size would have had habitat value greater than that of four isolated specimens, and that the fact they formed a group was to be regarded as a factor in favour of retention of those trees.

78. Mr Morison agreed that Mr Trovatello's wish to plant an olive grove had been taken into account in the location of replacement planting. But he also referred to a second, distinct reason for DNRE's desire to locate the replanting in a location remote form the sites where the trees were felled. He stated that to achieve better biodiversity outcomes, it may be better to plant near quality vegetation, rather than where the clearing took place.

79. In answer to Mr Pitt, Mr Morison stated that he was unable to say what the effect of planting thousands of olive trees would be on the soil.

80. In relation to this last matter, the replacement planting in question is replacement for removal of trees, not replacement for the impact of the olive grove planting as such. Salinity is one relevant matter to be considered in determining whether tree clearing should be permitted. Whether the olive trees would have a beneficial effect in that regard was not the subject of evidence. Nor was there evidence that there is an existing salinity problem on the relevant part of the subject land. If there is a question about the effect of the olive trees on the health of replacement trees, that seems to me to be an issue to be considered in determining where any replacement planting should be located.

81. It should be noted that Mr Morison had been absent from the room while Mr Braslis gave his evidence.

82. Mr Pitt's only witness was Mr Trovatello himself. He stated that Felmar Garden Supplies Pty Ltd conducts a number of activities. He had been a migrant, and had worked hard in garden supplies and concrete batching. His children run these activities now, and he farms.

83. Mr Pitt tendered a statement that had been prepared by Mr Ng, a planning consultant, on Mr Trovatello's instructions. This contained a statement that there were seven tree stumps on the property that were the remains of trees cut down by the previous owner. Mr Trovatello did not repeat this allegation; he admitted cutting down further trees, but on his evidence, they were exempt from the need for a permit.

84. He stated that he has a fireplace on the farm, and since he went there, he has cut down dead trees from all over the property for firewood. He described the trees as dead when they had no leaves and were completely dry.

85. In answer to Mr Lang, Mr Trovatello replied that he had stacked the wood he cut a couple of months ago, and had taken the trees cut down for wood to the house pretty much immediately.

86. Mr Trovatello confirmed that he had only seen the permit for tree removal related to the road widening work a few days previously for the first time.

87. Mr Lang submitted that Mr Trovatello, as a director of the owner company, had constructive notice of the Planning Scheme requirements for a permit to be obtained for tree clearance because the company had sought and obtained a permit for this purpose by its agent. But in any event, he argued that mens rea was irrelevant. While that may be so in relation to the existence of a contravention, the Tribunal has a discretion as to the nature of the order, and I would not regard the absence of intent as entirely irrelevant to that.

88. Mr Trovatello did not give evidence about a conversation with the Council in which he was told that no permit was required, although Mr Ng included an allegation of this nature in the "statement". The answer to a question such as "do I need a permit" will often depend on how the question is put. As the matter was not pursued, it is unnecessary to take it any further.

89. There are a number of exemptions from the requirement a permit be obtained to remove, destroy or lop native vegetation under Clause 52.17 of the Planning Scheme . One relates to removal of dead native vegetation. Another, under the heading "rural activities", relates to "the cutting of reasonable amount of wood for personal use by the owner or occupier of the land". Thus, Mr Trovatello has claimed an exemption from the permit requirement on two grounds. The exemption claim does not cover the trees for removal of which he has made application.

90. Mr Pitt was critical of the Council's conduct of the matter. He submitted that it was the Council that had the responsibility for administering the Planning Scheme; but that it had simply gone to DNRE and regurgitated what DNRE had said. The primary purpose of the zone was for farming. The Council had given no consideration to the proper criteria, nor attempted to balance the relevant policies.

91. It seems to me that this submission was relevant to the permit application, rather than the admitted contravention. In my view, the Council had been mistaken in suggesting that Mr Trovatello could make an permit application for removal of trees that had already been cut down. Everything that could be permitted under Clause 52.17 was already over and done with. There was nothing left for a permit application to attach to. Even though "retrospective" permits are often granted for uses, buildings or works that have been commenced without a permit, this device - already artificial - cannot be meaningfully extended to the further case of works that are completed and are of such a nature that they leave no continuing structure behind, before an application is even made.

92. It was therefore inappropriate for the Council to be weighing policies or otherwise considering the matters relevant to the decision to grant or refuse a permit. It should have confined its activities to the enforcement order application.

93. The reasoning of the Council as explained by Mr Lang was that it could use a permit application as a vehicle by which agreement could be reached for conditions for replacement planting. Issuing a draft permit document to the applicant is consistent with that. However, in my view, this was also misconceived. A permit may be issued, but if it is not relied upon, its conditions will not come into effect. The proposed permit for removal of six trees (to reflect the application), containing conditions, would never be relied upon after it was issued, because the six trees were already gone. An enforcement order is a more appropriate instrument to attempt to remedy as far as possible the damage done by illegal clearance.

94. Section 119 of the Act deals with orders for restoration. It provides that the Tribunal may direct any person against whom the order is sought to do specified things within a specified period--

"(A) to restore the land as nearly as practicable to its condition immediately before the use or development started or to any condition specified in the order or to any other condition to the satisfaction of the responsible authority, a Minister, public authority, municipal council, referral authority or other person or body specified in the Order; or

(B) to otherwise ensure compliance with this Act, or the planning scheme....."

95. I consider that "the land" means "the land" identified in the enforcement order application, not the place on the subject land from which each tree was taken. This interpretation is consistent with the concept of the "planning unit".

96. In terms of assessing the seriousness of the contravention, I do not consider the fact that the subject land is in a Rural Zone is an answer to an enforcement order application alleging removal of native vegetation without a permit required under a separate provision of the Planning Scheme, which has application irrespective of the zoning of the land.

"To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production)."

· Protection and creation of an effective rural infrastructure and land resource.

· Protection and enhancement of the bio-diversity of the area."

99. The purpose of the Rural Zone and the State policy for conservation of native flora and fauna are not in conflict, although conflict may arise in certain fact situations. Then it will be particularly relevant that the General Implementation clause of the State policy includes recognition of the role of regeneration or replanting: Clause 15.09-2. This recognises that trees may be removed for a purpose that will then be given effect to on the cleared site, and also the appropriateness of compensatory planting off the immediate site of removal to enable a permissible use of development to proceed.

100. Mr Pitt submitted that the Council had not even conducted a proper inspection until well after the event, and was unable to state how many trees had been felled, and from where they were taken, and what species they all were. Having regard to the criticism he made of the qualifications of the Mr Keogh and Mr Braslis to identify live trees, I consider that it is reasonable for them to have turned to DNRE for help once Mr Keogh had confirmed that trees were being cut down.

101. Mr Pitt submitted that there was no reason for Mr Trovatello not to apply to remove 13 trees, if he had cut down 13 live trees. Against this, it is difficult to see why Mr Morison and Mr Braslis would exaggerate their evidence about observing the remains of more trees than the six trees admittedly felled live. However, I accept that the separation of the branches and canopy sections from the stumps made it difficult to identify the number and canopy spread of the trees involved, especially after a delay of some weeks. Whether the branches and leaves observed on the ground by the witnesses came from five big trees, or from five plus a number of smaller trees, would depend in part on the state of the canopies of the big trees before they were felled. The photos show some large standing specimens of obvious maturity which have only thin canopies.

102. I accept Mr Morison's identification of trees as being alive or dead in preference to Mr Trovatello's. I accept that Mr Morison is able to tell from the leaf-bearing branches of a tree, and the bark around the cut, whether it was alive when it was cut down, at least within the sort of timeframe from its felling that was in question in this case. Assessment of pieces that have already been cut up into sections and moved to different places around the property, in order to form an accurate idea of the state of the tree when felled, or even how many trees were involved, is more contentious.

103. The photos do not show a bulk of branches that I would have expected to come from the branches of eight spreading canopies as well as five big trees of the age Mr Morison indicates. Specimens of 20-30 cm diameter may not have had much canopy.

104. Mr Trovatello did not deny that he was the man to whom Mr Keogh spoke, in the act of cutting up trees. When challenged by Mr Keogh, Mr Trovatello did not say anything about firewood, but stated that he was clearing for his olive grove. No other witness stated that Mr Trovatello had told them he was cutting trees for firewood. There was no reason, therefore, for the witnesses for the Council to have asked Mr Trovatello to show them the wood he had claimed to be intended for use as firewood. The evidence of Mr Trovatello at the hearing that he had removed the trees he had cut down for firewood would explain the absence of some material.

105. Mr Morison did not count one dead tree which he observed among the 13 he included in his count. That was a tree that could well have been intended for firewood. It may well be preferable for Mr Trovatello to confine his firewood collecting to dead wood; but no permit is required for removing, destroying or lopping either dead wood, or a reasonable amount of wood for personal use by the owner or occupier. Eight trees of some 20-30 cm diameter in addition to the dead tree would be a very large amount of firewood to cut at one time, for an occupier whose residential address is not at the subject land.

106. One live tree at a time, when there are dead trees about, seems to me to the most that could be considered reasonable for Mr Trovatello to cut down as a non-resident occupier. I certainly do consider that it would be reasonable to cut down one of the living red gums of 1.4 m or more diameter for personal use as firewood.

107. Proof that the exemption applies is the responsibility of the person who relies on it, and I was not convinced to the extent of eight trees that Mr Trovatello was entitled to an exemption. But the responsibility to establish the number of trees removed lies on the Applicant. In a vegetation clearing case it may often not be necessary to prove the actual number of trees removed; but here the Application seeks an order which relies on a ratio of replacement plantings to trees removed, so must prove the number if this basis of replacement is to be accepted.

108. On balance, I have concluded that although I am of course satisfied that the six trees which Mr Trovatello admits to removing were felled, I cannot conclude with confidence that any particular number of additional trees were removed. The only evidence as to how long the tree felling had taken was the impression gained by Mr Morison that some trees had been cut down earlier than others. Mr Trovatello did not suggest that he had had any particular reason to count the trees he had felled, cut up and bulldozed around the property over a period of perhaps some days.

109. I accept Mr Morison's evidence that he found more than six trees had been felled, and were alive when they were felled; the problem of evidence lies in the way the trees had been treated before he saw them. They had been so cut up and moved around that it was difficult to be sure which tops belonged to which tree.

110. I have concluded that a number less than seven and more than three is justified as the number of additional live trees removed. I have settled conservatively on four small trees as having been removed without a permit in addition to the six trees which were admitted. In accepting what I consider to be a number on the low side, and giving Mr Trovatello the benefit of that doubt, I have also had in mind that the smaller trees are of less significance than the larger trees.

111. My finding related to the number of trees felled or cleared is that they were both removed and destroyed for the purposes of Clause 52.17.

112. After starting with the number of four disputed smaller trees, I have had regard to the possibility that one that was still alive when chopped down (in addition to the dead tree observed by Mr Morison) could have been reasonably intended for firewood, as well as clearing for the olive grove. I have therefore treated one live tree as exempt from the permit requirement. I find that three smaller trees have been removed without a required permit, in relation to the disputed difference between the six admitted trees (five of which were of significant size) and the number of up to 13 observed by Mr Morison.

113. It follows that means I am looking for "restoration" of five big trees and a total of four smaller trees.

114. Although five of the removed trees were of significant age and habitat value on account of their size and nesting hollows, the felling of the smaller trees as described is of less importance. It is not alleged that the other trees counted by Mr Morison were of any special value to the property or to the area either for land management purposes or flora and fauna protection.

115. Mr Pitt submitted that there was no statutory policy basis, nor any empirical validity established by evidence, for the number of trees sought as compensatory planting. Nor was there evidence of need for replacement of any trees. Without an established relationship between the trees that had been removed, and the planting sought by the Council and DNRE, what was proposed was not a restoration, or replacement for a loss, but a penalty.

116. I do not think it is necessary to have detailed evidence of the damage done by removal of trees of this nature. Planning and responsible authorities are told, by Clause 15.09-2 of the Planning Scheme, that they should "require, where possible, the replacement of lost native vegetation by regeneration or replanting at least an equivalent area of vegetation". The same Clause also states that decision-making should assist re-establishment of links between isolated habitat remnants. This assumes that compensatory planting is the normal requirement where a permit is granted, from which a need for replacement when illegal clearing occurs can be extrapolated. It also gives some rough guidance for effectively utilising the power in Section 119(b)(iv) of the Act to "restore" "the land" (being the subject land), as nearly as practicable to its condition before the trees were felled.

117. If it is necessary for a Council seeking to enforce the native vegetation clearance controls to prove the nature and extent of the detriment to environmental and habitat values on the subject land for every plant removed, it will be difficult to enforce the controls at all. If it is necessary to prove a relationship between mature trees lost and seedlings to be planted, the task is enormous. This is a complex matter; but the answer must be to try to produce a fair result, not to give up.

118. It is quite impossible to directly replace a mature tree of the kind described in the evidence. The best that can be done is to plant new trees which in the long term, if they survive, will eventually have the same habitat value as those trees that are being replaced. The loss of the mature, hollow bearing trees is a particularly severe loss of vegetation. It is very difficult to equate any number of new plantings with the habitat value of a red gum of some 300 years, with developed nesting hollows. A group of such trees has additional value, not least because of the greater habitat potential of the group. It will be perhaps a century before seedlings planted this year will have the same significance in terms of habitat.

119. Because the subject of the order here is defined by Section 119 of the Act, and not by a permit requirement, I do not consider that I have to define the extent of the "area of vegetation" with any degree of exactness for the purpose of replacement. How many new trees, and of what type, are a "restoration" for the purposes of Section 119 may well vary with the circumstances of the individual case.

120. "Victoria's Biodversity: Directions in Management" (at p.11) looks to the development of Regional Vegetation Plans as an important component in achieving sustainable production and conserving biodiversity. These plans are to be supported by scientifically based advice and provide a regional focus for protecting, enhancing and restoring native vegetation. In future, when such a plan is available, the task of identifying appropriate replacement planting will be easier. But in the absence of a management plan of any description, I will proceed on the general principles indicated by the policy documents to which I have referred, Clause 52.17, and Mr Morison's evidence.

121. The fragmentation of remnant vegetation in the rural landscape is a recognised problem of some complexity in "Victoria's Biodversity". Reconnection of biolinks is seen as having a high potential for enhancing the habitat for the long term survival of flora and fauna. I accept Mr Morison's evidence that the best that can be done is to try to make good the loss by extending established healthy vegetation, rather than to plant seedlings or saplings in what would now be an olive grove. This building onto existing healthy groups may be achieved by reinforcing the vegetation along the side of Redesdale Road, as the Council suggested.

122. I do not consider that I should rely on the planting to be carried out in relation to the quarrying that may occur elsewhere on the subject land as a reason to reduce restoration. Whatever planting has been required under the permits issued for that activity and its associated road works is related to the quarry use, not to the removal of native vegetation for the olive grove, which has nothing to do with the quarry.

123. There is no evidence that a certain number of trees planted over an area in some manner equivalent to the area from which trees have been removed would achieve any particular result, except increasing the vegetation in that area. Plainly, in the short term seedlings could not have any habitat or shelter function, although they may relatively soon be capable of acting beneficially on salinity or soil stability - neither of which is an issue. In general terms, DNRE has expressed a preference for enhancing the vegetation near the Campaspe River; but that might be a good outcome whether it is 500 trees or 50 which are planted. Which end of that scale amounts to "restoration" would also be affected by the increased benefit of extending an area of healthy vegetation instead of reproducing isolated trees or trees in small clumps.

124. The loss of four large mature trees that were in a group should in my view rate at the highest level, because of the loss of the combined benefit of the group. The loss of the isolated mature specimen may be a severe one in terms of landscape; but this is an issue of conservation, not of aesthetics. An isolated tree has a reduced habitat value and prospect of survival.

125. The smaller trees (including the one whose removal is admitted) have not been shown to have any particular qualities except the diameter of the trunk, so that a lesser replacement value would be appropriate if there was a contravention involved in their removal.

126. The one objective basis for assessment of worth which has been put forward by the Applicant is the relationship between diameter and age. Although diameter is important in forestry, which is the source for the statistics produced, its relationship to age is also an indicator of the environmental significance, and especially the habitat value, of the tree. While the nature of the relationship will change with age with respect to land management issues such as impact on salinity, I am not concerned here with restoring impacts other than habitat impacts.

127. The minimum replacement ratio of 10:1 as stated by Mr Morison sounds not unreasonable. I understand that it has been the most commonly applied ratio. Although the smaller trees, at 20-30 cm, were modest compared to the venerable red gums, a seedling has a long way to go before it gets to that diameter. A straight one to one "replacement" could not be considered to be reasonable, having regard to the long time that must elapse before a seedling can fulfil the function of even a young tree with a canopy, let alone a tree which has developed nesting hollows. I have also had regard to the loss factor that is likely to occur, even if a survival condition is built into the order. Even if seedlings lost are replanted within a specified period, that will delay their arrival at the stage at which they can act as effective replacements.

128. On the basis of the numbers I have found to be appropriate, I will allow four trees at that ratio (making the allowance for a "firewood" tree). This leaves the five living trees that were over 1.4 metres in diameter.

129. The ratio of 80:1 put forward by DNRE was not shown to have any particular rationale; but at least it is a lot less than the suggested alternative of one tree per year of growth for a tree that may be 250 years or older. Having accepted that 10:1 is an appropriate ratio for the smaller trees, I consider that I should try to relate that ratio to the larger trees by way of the only objective measurement available, being the diameter.

130. Four of the big red gums averaged a diameter of about 1.5 metres, with a fifth up to 2 metres in diameter. Taking the average of the four big red gums, and allowing the smaller trees at 25 cm for comparison purposes (excluding the extremes of size), the big trees are about 6 times the diameter of the smaller ones. It seems not unreasonable to allow for a replacement "value" of six times that of the smaller trees, or 60 replacements per tree for five trees. This is within the ratio for large trees suggested by DNRE. It does not include an allowance for the enhanced significance of grouped trees over solitary trees. I do not have enough information to make adjustments of that nature. The fact that the replacement planting requires multiples to be provided, and that the species may be mixed, will have to be taken to compensate for such matters.

131. Taking 40 new trees for the loss of the smaller specimens, and 60 each for the five mature trees, I reach a total of 340 trees to restore the subject land as nearly as practicable to its condition immediately before the unlawful removal.

132. I have used the word "trees" for convenience, but it was clear that DNRE did not seek that every replacement plant should be a tree. It sought a mix of trees and shrubs. I adopt a mix in the terms of the Order, accepting that it is a reasonable response, even though only trees were removed. This is another way to respond to the difficulty of trying to replace mature trees with seedlings. It will assist a healthy plantation to be established, and will also probably have a cost advantage to the respondents.

133. The location where the replacement would be most valuable, by the Campaspe River, is indeed far removed from the area where these trees were felled, although still on the same property. But it seems to me that even though the planting would be less valuable in terms of flora and fauna protection in a broader sense than in the area preferred by DNRE, there is justification for adopting the alternative location close to Redesdale Road, suggested by the Council. The habitat value of a group of trees has been lost; but there was no evidence that any of the trees taken already formed links to a wider habitat or corridor by the river. The attempt to use the roadside vegetation, and to try for an impact on the re-establishment of links between isolated pockets of habitat in the general area where removal took place, seems to me to be a closer approximation of what is to be "restored".

134. Mr Morison was of the opinion that the best site on the Redesdale Road side of the escarpment was a damp area on the subject land near the corner where the road widening is to take place. If the road widening permit is acted on, there may be benefits from proximity to the compensatory planting required under that permit as well. I consider that the replacement planting should be located in this area. I am satisfied that this presents a site which is a practicable site not so remote from the actual location of the clearance as to be unrelated to the habitat in the cleared area.

135. An enforcement order should specify clearly what has to be done in order to comply with it. A plan would be desirable to identify the area described by Mr Morison at the hearing. I see no need for a plan intended to identify the area to come back to the Tribunal before the orders are finalised. A plan can be directed to be prepared within a specified time by the responsible authority in consultation with DNRE for this purpose.

136. The Application for Review is "on hold" until this decision is handed down. In view of the conclusions I have reached about the nature of such an Application, and in relation to the enforcement order Application, I do not see any benefit to anyone in pursuing the application for a permit for removal of six trees. I will accordingly strike out the Application for Review as being misconceived.

137. That means that the bond sought by the Council by way of condition on a permit for removal will not form part of a permit condition. I do not consider that I should impose a bond for compliance with an enforcement order.

138. Although the Council as responsible authority has power to enter and inspect, I have added an additional order to ensure that DNRE can inspect the replanting, if the Council does not feel competent to do it.

139. No species are sought to be specified by either the Council or DNRE; but the amended order sought by the Council is for planting of "indigenous" vegetation, rather than "native vegetation", which is a term defined in the Planning Scheme to mean:

"Plants that are indigenous to Victoria, including trees, shrubs, herbs, and grasses."

140. "Indigenous" vegetation is generally understood to be vegetation native to the relevant area. I have adopted the wording sought. It would be wise for the respondents to consult with the Council and DNRE on the species that would meet this description.

141. Mr Lang made a formal application for the Council's costs, which Mr Pitt opposed on the basis that his clients had already paid enough costs.

142. As Mr Trovatello did make a permit application when told to do so by the Council, and this would have given rise to a hearing covering much common ground with the enforcement order application, and also as the respondents will have to outlay the expenses of replanting in accordance with the enforcement order, I will make no further order as to costs.