The decision of the responsible authority in permit application PL05/016855 is set aside

A permit is granted in relation to land at 632-634 Ringwood Warrandyte Road, Park Orchards . The permit will allow the construction of a building and the construction and carrying out of works associated with a dwelling and the removal of vegetation, generally in accordance with the endorsed plans and subject to the following conditions:-

1 Before the use and development starts, two copies of amended plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and will then form part of the permit.

The plans must be generally in accordance with the plans submitted with the plans substituted at the hearing of the Victorian Civil and Administrative Tribunal on 11 April, 2006, but modified to show:

a) Finished surface levels noted for the top and toe of all cut and fill batters, including retaining walls;

b) The finished surface levels of the driveway to demonstrate suitable grades (not greater than 1:6);

2 The layout of the site and the size of the buildings and works shown on the endorsed plan must not be modified for any reason, without the written consent of the Responsible Authority.

3 Prior to the commencement of the development, the building envelope approved under Planning Permit No.9695 must be pegged to clearly identify its boundaries, to the satisfaction of the Responsible Authority.

4 Prior to the commencement of the development, the effluent disposal field must be fenced to clearly identify its boundaries to contractors on site and to ensure no earthworks take place within this area, to the satisfaction of the Responsible Authority.

5 Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan dated March, 2006 prepared by Habitat Landscape and Environmental Design Consultants, except that the plan must show:

(a)

a survey (including botanical names) of all existing vegetation to be retained and/or removed

(b)

buildings and trees (including botanical names) on neighbouring properties within three metres of the boundary

(c)

details of surface finishes of pathways and driveways

(d)

a planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant

(e)

landscaping and planting within all open areas of the site

All species selected must be to the satisfaction of the responsible authority.

The landscape plan must also indicate that an in-ground irrigation system is to be provided to all landscaped areas.

6 Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

7 The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced.

8 Prior to the release of the endorsed plan, a $515 cash bond or bank guarantee must be lodged with the Responsible Authority to ensure the completion and maintenance of landscaped areas and such bond or bank guarantee will only be refunded or discharged after a period of 13 weeks from the completion of all works, provided the landscaped areas are being maintained to the satisfaction of the Responsible Authority.

9 Without the permission of the Responsible Authority, no land filling other than that shown on the endorsed plan or allowed in the zone without a planning permit, may be placed on the land.

10 Disturbed surfaces on the land resulting from the buildings and works approved by this permit must be stabilised and revegetated within 3 months of the completion of the development to the satisfaction of the Responsible Authority.

11 The dwelling must not be occupied prior to its connection to an all-purpose septic system of sufficient capacity to handle all sewage and sullage from the dwelling. Such system must be designed, installed and maintained to the satisfaction of the Responsible Authority.

12 The owner must use appropriate site management practices to prevent the transfer of mud, dust, sand or slurry from the site into drains or onto nearby roads. In the event that a road or drain is affected, the owner must upon direction of the Responsible Authority take the necessary steps to clean the affected portion of road or drain to the satisfaction of the Responsible Authority.

13 No vegetation, apart from that shown on the endorsed plan as vegetation to be removed may be felled, destroyed or lopped without the written consent of the Responsible Authority.

14 The owner must ensure that all contractors/tradespersons operating on the site are advised of the status of vegetation to be retained prior to the commencement of the related construction tasks.

15 All existing vegetation shown on the endorsed plan to be retained must be marked with plastic tape and provided with a protective barrier erected a minimum of 1.5 metres from the trunks to assist in the preservation of such vegetation. Such barriers must be constructed prior to the commencement of works on site and be maintained to the satisfaction of the Responsible Authority during construction; and

16 No goods or materials shall be stored or vehicles parked within the dripline of any tree retained nominated to be retained on the subject site.

17 Sediment control to the satisfaction of the responsible authority must be in place during construction to ensure there no impacts from sediment on Anderson Creek.

18 The effluent disposal mechanism must be designed to the satisfaction of the responsible authority so as to minimize runoff impacts ion Anderson Creek.

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

a) The development is not commenced within two years of the issue date of this permit.

b) The development is not completed within four years of the issue date of this permit.

The Responsible Authority may extend these times if a request is made in writing before the permit expires or within three months afterwards.

The responsible authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Sumner called Mr R Galbriath, arborist of Galbraith Associates.

Ms G Ruggeri, town planner appeared on the first day of the hearing

Mr B McIlwrath of Maddocks Solicitors appeared on the second day of the hearing

Mr R Costello, native vegetation officer, appeared on the second day of the hearing

1 This is an application to review the decision of the responsible authority to refuse permission for the construction of a dwelling and the removal of vegetation at 632-634 Ringwood - Warrandyte Road, Park Orchards. The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

1. The proposed development constitutes an overdevelopment of the site given that the site coverage and impervious surfaces would be out of character with the neighbourhood.

2. The proposed development constitutes excessive buildings and earth works outside the building envelope, to the detriment of the landscape significance and character of the area.

3. The proposed removal of trees from outside the building envelope will be detrimental to the surrounding landscape character of the area.

4. The proposed development will cause detriment to the streetscape and the amenity of adjoining properties and the character of the area due to limited landscaping opportunities.

5. The proposed development will cause detriment to the amenity of the adjoining properties through limited side and rear setbacks.

6. The proposed development does not accord with the spirit and intent of the Section 173 Agreement affecting the land, given the extent of buildings and works outside the approved building envelope.

2 It is propose to construct a dwelling and to remove vegetation associated with the dwelling, vehicular access and ancillary areas.

3 The proposed dwelling is primarily single storey except at the northern end where the dwelling has a maximum height of 8.2 m. The dwelling is proposed to be sited centrally within the site with an outdoor paving area and a swimming pool located to the rear of the dwelling.

4 The driveway is circular and has been located so that it minimises the loss of vegetation on the front section of the site, and its width has been confined to 3.0 m.

5 A total of 41 trees are proposed to be removed for the construction of the dwelling. The applicant's arborist has recommended the removal of a further six trees which in his assessment, are either invasive environmental weeds or are dead, or in one case, has fallen over and is being supported by a pine tree.

6 The site is located on the western side of the Warrandyte - Ringwood Road, and commences beyond a well vegetated creek (Anderson Creek) which runs along the western side of the road. A bridge across the creek provides access to the review site and abutting properties.

7 The site has a frontage of approximately 49 m, a depth of approximately 80 m and an area of 4011 m2.

8 The site forms part of a low density residential area to the north of the suburb of Ringwood. Lots in the area are generally large by suburban standards, and dwellings are also generally large with generous setbacks. Swimming pools, tennis courts and outbuildings are not uncommon. The level of vegetation on the lots varies but most lots retain a reasonable level of vegetation in the form of canopy trees.

9 Development on abutting lots consist of a double storey dwelling to the south, a dwelling and outbuildings used as dog kennels to the north. To the west (rear) there is a dwelling with a swimming pool and tennis court. A vacant lot also to the rear has a valid planning permit for a three storey dwelling and a swimming pool.

10 The review site is zoned Low Density Residential. The purpose of the zone is to provide for low-density residential development on lots which, in the absence of reticulated sewerage, can treat and retain all wastewater. A dwelling is a section 1 permit not required use in the zone provided it is the only dwelling on the lot and the requirements of clause 32.03-2, which relate to sewerage, water and electricity supply, are met.

11 The site is also affected by a Significant Landscape Overlay (SLO1). The statement of nature and key elements of the landscape is quoted in full as follows:

These areas have significant visual, landscape and environmental attributes. They are diverse in terms of topography, site layout, vegetation cover, road treatment and built form. The topography of these areas ranges from an undulating land form to steep slopes, prominent ridgelines and deep gullies. Some areas have a distinctive 'rustic feel'. Key elements of the landscape include the natural character, indigenous and exotic vegetation retention, panoramic views and watercourses that contribute to the 'sense of place', desirability and landscape significance of these areas.

Significant landscape areas are often attractive, low density residential areas that form an attractive backdrop against surrounding urban form. Generally, visual impacts of housing in these areas are softened by vegetation cover, and fences are unobtrusive. This assists in maintaining the environmental and landscape charm of these areas. These areas offer an alternative lifestyle choice for people who are seeking to live in a more spacious and attractive environmental setting. Although development in these areas has generally been designed to be integrated with surrounding environmental and landscape features, some development has been unsympathetic to these features, the result being vegetation loss, extensive earthworks and subdivision layouts that do not follow natural contours.

The special landscape and environmental characteristics of significant landscape areas need to be properly managed to ensure that the distinctive features of these areas are protected and enhanced.

12 The landscape character objectives to be achieved emphasise:

• the minimisation of the visual impact of development

• the conservation and enhancement of the landscape qualities, environment, character and values of the area through the sensitive siting of buildings, access and earthworks and through the restoration of significant vegetation where necessary

• the encouragement of development in keeping with the character and appearance of the area and the discouragement of development which is intrusive to the landscape character of the area.

13 A permit is required to construct a building and to construct or carry out works, unless exempted by a schedule to the overlay. Clause 3.0 of the schedule to the overlay specifies that a permit is not required to construct a dwelling provided that specified conditions relating to site coverage, building height, building setbacks, retaining wall heights, external colour schemes, and the area of outbuildings, are met.

14 The proposed dwelling complies with the specified conditions except that the dwelling is setback 4.0 m from the northern side boundary rather than the 5.0 m setback requirement, and because at the northern end the height of the dwelling exceeds the specified height of 8.0 m by 200 mm.

15 A permit is not required to construct or carry out works associated with the construction of a dwelling provided that specified conditions relating to the height of works, the import or export of excavated material, the area of the works, and carrying out of works over easements, are met.

16 A permit is required under this provision because the import or export of excavated material exceeds 100 m3 and the area of works exceeds 250 m2.

17 A permit is required to remove, destroy or lop any native vegetation and exotic trees with a trunk circumference greater than 0.35 metre at one metre above ground level, a height of more than 6 metres, and a branch spread of more than 4 metres.

18 Applications for buildings and works must be accompanied by a site analysis and design response showing how the design responds to the site context, while an application for vegetation removal must also be accompanied by information identifying the species, height and position of the vegetation, the purpose of the removal, slope conditions and an arborist's assessment of the impact of the vegetation removal on pine trees on the land and adjoining properties, as appropriate.

19 The decision guidelines identify the matters which require consideration when determining an application. Significantly, these guidelines require consideration of the impact of development and vegetation removal on the landscape character of the area.

20 A permit is required under Clause 52.17 to remove destroy or lop native vegetation which is on land greater than 0.4 ha, unless exempted by the table to clause 52.17-6. The review site which has an area of 4011 m2 is marginally in excess of 0.4 ha. The table at Clause 52.17-6 however states that a permit is not required for the removal of native vegetation where it is to the minimum extent necessary for the construction, use and maintenance of:

• A dwelling.

• Any building or works which are ancillary to a dwelling including tennis courts, barbecues, swimming pools, utility services or vehicle accessways.

• Any building, including utility services or vehicle accessways which are ancillary to the building.

• To the removal, destruction or lopping of native vegetation within 10 metres of a building.

21 The vegetation removal in this application is clearly for the construction of a dwelling and provided the vegetation removal it is to the minimum extent necessary a permit is not required. The determination of whether the removal of native vegetation for a dwelling is exempt from the need to obtain a permit under this provision must be decided on the facts and circumstances applying in each individual circumstance. For reasons I elaborate on subsequently I am satisfied that the removal of native vegetation in this case is to the minimum extent necessary for the construction of a dwelling and a permit is not required under this provision of the planning scheme.

22 The Council did refer the application to the Department of Sustainability and Environment as part of its processing of the application and the Department advised that it did not object to the application but noted that the site abuts Anderson Creek which is a site of regional biological significance, and sought two conditions to be imposed on a permit relating to sediment control and effluent runoff.

23 As detailed subsequently, Clause 66 which sets out types of applications which must be referred under section 55 of the Act or for which notice must be given under Section 52(1)(c) of the Act, was amended following the Council's decision on the application. Applications for the removal of native vegetation must be referred to the Secretary to the Department of Sustainability and Environment in accordance with the table to Clause 66.02-3.

24 The Tribunal directed that the application be referred in accordance with the table to Clause 66.

25 With respect to the applicable policy framework, this is considered in some detail in the analysis of the question of law undertaken by Senior Member Horsfall which forms part of this decision, and I do not propose to repeat that material here.

26 The review site is also affected by an agreement made under S. 173 of the Planning and Environment Act 1987. The agreement imposes restrictions on the use and development of the land as follows:

• The owner must only erect one dwelling and associated outbuildings;

• Access to Lots 3 (subject land) and 4 must only be via Warrandyte-Ringwood Road by way of a single combined access driveway;

• Works (including building works, excavation or filling but not works related to the installation and maintenance of a septic tank and / or an on-site absorption system) which alter the topography of the subject land will not be undertaken within a Waste Retention Area without the written consent of Council;

• The Waste Retention Area must only be used for the purpose of on-site absorption of sewage, sullage and effluent;

• The owner must maintain the driveway, any landscaping, and any underground services to the satisfaction of Council;

• The owner will not build, construct or erect, or cause or permit to be built, constructed or erected any building on Lots 1, 3, and 4 outside of a Building Envelope without the written consent of Council;

• Trees on Lots 1, 3 and 4 which are outside the Building Envelope must not be destroyed, felled, lopped, ringbarked or uprooted without the written consent of Council; and

• Works which alter the topography of Lots 1, 3 and 4 including excavation or filling will not be undertaken outside a Building Envelope without the written consent of Council;

27 The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.

28 This matter was heard by Mr Hewet on 11 April, 2006 at which time Mr Hewet alerted the parties to Amendment VC 38 which had been gazetted on 16 March, 2006 and which amended the planning scheme provisions relating to the removal of native vegetation and requirements for the referral of applications for the removal of native vegetation.

29 The planning permit application which is the subject of this review had not been referred to the Secretary to the Department of Sustainability and Environment in accordance with S. 55 of the Planning and Environment Act 1987, as is now required under Clause 66 of the Manningham Planning Scheme.

30 Mr Hewet proceeded to hear the merits of the application and gave directions at the end of the hearing requiring the responsible authority to refer the application and providing both the Council and the applicant with the opportunity to make further submissions on any referral response.

31 The application was referred in accordance with the Tribunal's directions and a detailed response was received from the Department. The Department did not object to the grant of a permit but recommended the imposition of permit conditions which in effect required the applicant to prepare a plan for native vegetation offsets in accordance with the Native Vegetation Framework, the preparation and implementation of a Property Management Plan, and a Section 173 Agreement to give effect to the above.

32 In letters from council's solicitors, Maddocks, dated 7 September 2006 and the applicant dated 8 September 2006, the parties indicated that a question of law was involved and requested that a tribunal member who is a legal practitioner hear the question.

33 Accordingly during the hearing of this matter, Senior Member Horsfall joined Member Hewet and together with him heard the submissions on the question of law, which is determined by Mr Horsfall, although in agreement with Mr Hewet.

34 In this case a permit is required for the removal of vegetation under both clause 52.17 and SLO1 in clause 42.03-2, which requires a permit to remove any [emphasis ours] vegetation. Schedule 1 clause 3.0 requires a permit to remove any native vegetation, as well as an exotic tree which exceeds certain dimensions of trunk circumference, height and branch spread.

35 Clause 52.17 requires a permit to remove native vegetation. The clause also sets out exemptions from the need for a permit in a number of cases including Buildings, on which the applicant relies, as follows:

To the removal, destruction or lopping of the minimum extent of native vegetation necessary for the construction, use and maintenance of:

•

A dwelling.

•

Any building or works which are ancillary to a dwelling including tennis courts, barbecues, swimming pools, utility services or vehicle accessways.

•

Any building, including utility services or vehicle accessways which are ancillary to the building.

•

To the removal, destruction or lopping of native vegetation within 10 metres of a building.

36 Clause 42.03-2 of the SLO1 also sets out exemptions from the permit requirement but these do not include the exemption in clause 52.17 relied on by the applicant relating to buildings, which if applicable might remove the requirement for a permit under clause 52.17 in whole or in part. The SLO1 schedule permit requirement also sets out additional excemptions for construction of a dwelling (not under consideration in this matter) and does not apply to certain pruning of an exotic tree or removal of a dead exotic tree.

37 It is a matter of interest that these exemptions are the same as those in the planning scheme's Vegetation Protection Overlay.

38 Clause 52.17 and SLO1 have different purposes and objectives.

39 It is common ground that the purposes of SLO1 relate to the conservation and enhancement of significant landscapes and clauses 1.0 and 2.0 of the schedule describe the nature and key elements of that landscape character and the landscape character objectives to be achieved, but these provisions make no specific reference to native [emphasis ours]vegetation.

40 The purposes of clause 52.17 are:

To protect and conserve native vegetation to reduce the impact of land and water degradation and provide habitat for plants and animals.

•

To avoid the removal of native vegetation.

•

If the removal of native vegetation cannot be avoided, to minimise the removal of native vegetation through appropriate planning and design.

•

To appropriately offset the loss of native vegetation.

•

To provide for the management and removal of native vegetation in accordance with a native vegetation precinct plan or property vegetation plan.

41 Clause 21.13 MSS supports SLO1's landscape objectives but also refers to the relevant areas having environmental significance, to subdivision resulting in the loss of vegetation and gives support to management to protect both landscape and environmental qualities in a number of ways including applying the SLO's and VPO's.

42 Clause 22.02 LPPF also applies to areas of landscape or vegetation significance identified in the SLO and the VPO and encourages revegetation and a net increase of indigenous vegetation.

43 However none of these MSS and LPPF provisions refer to Victoria's Native Vegetation Management Framework (Framework)

44 Clause 15.09-2 SPPF in its current form as amended by amendment VC38 states

Planning and responsible authorities must have regard to Victoria's Native Vegetation Management - A Framework for Action (Department of Natural Resources and Environment 2002). If a permit is required to remove native vegetation, [emphasis ours - words inserted by amendment VC38] or an amendment to this scheme or an application for subdivision could result in the removal of native vegetation, planning and responsible authorities should follow the three-step approach as defined in the Framework_._ This is achieved firstly, as a priority, by avoiding the removal of native vegetation; secondly, if the removal of native vegetation cannot be avoided, by minimizing the loss of native vegetation through appropriate consideration in planning processes and expert input into project design or management; and thirdly, by identifying appropriate offset actions.

45 The questions of law are whether in considering a permit application to remove native vegetation under SLO1:

• the responsible authority and the tribunal must have regard to the Framework?

• the responsible authority and the tribunal must apply the exemptions in clause 52.17; and

• because Amendment VC38 to clause 15.09-2 introduced the words If a permit is required to remove native vegetation, there is no longer any basis to interpret the relevance of the Framework by reference to the purpose of SLO1 or the objectives set out in the schedule to SLO1, as enunciated in the tribunal decision of Villawood Properties Pty Ltd v Greater Bendigo CC[1]?

46 Mr Sumner argued that the net gain provisions of the Framework do not come into play in applying SLO1, and that if it did the applicant could rely on the buildings exemptions in clause 52.17.

47 Council and DSE submitted the Framework's net gain provisions do apply by virtue of clause 15. 09-2, as in this case SLO1 requires a permit to remove native vegetation and native vegetation is proposed to be removed as part of the applicant's proposal, and in particular council argued that :

•

Amendment VC38 was introduced on 16 March 2006 after the tribunal's decision in Villawood and now required application of the Framework under SLO1 by the introduction of the words If a permit is required to remove native vegetation.

•

Accordingly there is no longer any basis to interpret the relevance of net gain by reference to the purpose of a particular control or the objective set out in a schedule to an overlay because amendment VC38 has made it clear when the scheme intends that the 3 step process should be followed.

•

As SLO1 expressly requires a permit to remove native vegetation council should require any loss to be offset to achieve a net gain.

•

The net gain offset can be required even if the exemption in clause 52.17 applies to this proposal and/or if there is no applicable VPO.

•

The referral requirements in clause 66 are not confined to applications under clause 52.17, but are triggered by any application to remove native vegetation.

•

Council relied on the MSS and LPPF provisions mentioned above.

•

In any case, if we do not accept this reasoning, (which council said would be an error of law), the purposes of SLO1 are sufficiently connected with the intentions of the Framework and clause 15.09-2 that the Framework applies adopting the Villawood test, irrespective of the impact of VC38. I consider this is not a question of law, but one of fact and the exercise of the tribunal's discretion in the application of policy on consideration of the merits, which Mr Hewet will determine if necessary.

•

Council also argued that the tribunal should find that buildings exemption in clause 52.17 could not be invoked as there was no evidence that the removal of vegetation proposed was to the minimum extent necessary as required by the exemption. I also consider this is not a question of law, but one of fact, which Mr Hewet will determine if necessary. Leave was given to Mr Sumner to make submissions as to how the design response met that requirement.

48 My determination of the questions of law are that in considering a permit application to remove native vegetation under SLO1:

• the responsible authority and the tribunal must have regard to the Framework as required by clause 15.09-2;

• the exemptions in clause 52.17 do not apply to exempt a permit for the removal of native vegetation under the SLO1; and

• it is appropriate to interpret the relevance of the Framework by reference to the purposes of SLO1 or the objectives set out in the schedule to SLO1, as enunciated in Villawood.

49 The determination of the first question is clear because clause 15.09-2 expressly requires a consideration of the Framework, and the purposes of SLO1 expressly require the implementation of the SPPF.

50 The determination of the second question whether the exemptions in clause 52.17 apply in considering an application to remove native vegetation under SLO1 also is clear. Clause 52.17 and SLO1 are separate triggers for a permit requirement. With many other such provisions each has separate purposes, objectives, decision guidelines and exemptions, which must be separately applied. The exemptions in each control are different and the exemptions to 52.17 do not apply as a matter of law to SLO1, leaving aside any relevance as policy

51 I determine the third question contrary to the position put by the council and DSE. I find that it remains appropriate to interpret the relevance of the Framework by reference to the purpose of SLO1 or the objectives set out in the schedule to SLO1, as enunciated in Villawood, despite the amendment to clause 15.09-2 by VC38. My reasons are set out below.

52 The relevant passages in Villawood in contention are found at [78] to [84] and are as follows:

78 We wish to emphasize that our comments to date have been restricted to consideration of Net Gain principles in association with a permit application to remove native vegetation pursuant to clause 52.17. There are other provisions of the planning scheme that may require a permit to remove vegetation - Environmental Significance Overlay (clause 42.01-2), Vegetation Protection Overlay (clause 42.02-2), Significant Landscape Overlay (clause 42.03-2), Heritage Overlay (clause 43.01-1), Neighbourhood Character Overlay (clause 43.05-2), Erosion Management Overlay (clause 44.01-2), Salinity Management Overlay (clause 44.02-1). The decision guidelines of each of these overlays require state planning policy to be considered, as appropriate, in connection with any application. This calls up clause 15.09-2 of the State Planning Policy Framework, which requires consideration of the Framework and a Net Gain outcome.

79 In addition, issues associated with vegetation removal will often arise in the context of assessing neighbourhood character under clauses 54, 55 and 56, even in the absence of specific overlays.

80 Clause 15.09-2 is not limited in its application just to applications for vegetation removal under clause 52.17, although this is the only clause that specifically identifies the Framework and the goal of Net Gain in its decision guidelines. In all other cases, the purpose of the control must be considered when deciding whether it is appropriate to have regard to clause 15.09-2. Thus the Framework and Net Gain outcomes are unlikely to be relevant under the Heritage Overlay but may be highly relevant under the Environmental Significance Overlay.

81 In the case of the Vegetation Protection Overlay, their relevance will depend on the nature and significance of the vegetation to be protected and the vegetation protection objective to be achieved. The Vegetation Protection Overlay applying to the subject land includes multiple objectives, including: "To maintain and enhance Bendigo's scenic and recreational landscape assets." In our view, this type of landscape or neighbourhood character objective would not trigger the need for consideration of Net Gain. But if an objective is to protect conservation significance, Net Gain may be relevant.

82 The Framework does not assist in resolving the dilemma of when it applies. We do not consider that the discussion in 'Landscape Role' at page 24 of the Framework assists in this respect. Elsewhere the Framework refers to the assessment of planning permit applications, and although the discussion of 'Statutory Protection of native vegetation' focuses on applications under clause 52.17, it also states:

The approach advocated in this Framework, in conjunction with the information provided by the [regional] Native Vegetation Plans, will facilitate better adoption of planning tools to protect native vegetation (e.g. Zones, Overlays, Municipal Strategic Statement and local policies).

83 We consider, this lack of clarity reinforces our view that offsets must be assessed on an individual basis and it is not always appropriate to apply a rigid calculation of offsets in accordance with the criteria set out in Table 6 of the Framework. In deciding whether offsets should be required in connection with permits to remove native vegetation other than under clause 52.17, we can do no more than say it depends on the purpose of the control.

84 On the other hand, we wish to make clear that our comments regarding assumptions that 100 percent of vegetation will be lost on land which is subdivided for urban purposes and stating that offset plans should not seek to retain vegetation on lots as part of the offset, are confined to situations where Net Gain principles are being applied. In situations where a responsible authority wishes to retain vegetation for other reasons, e.g. landscape or neighbourhood character purposes, other considerations will apply and other conditions may be appropriate. It will therefore always be important to identify what vegetation the responsible authority wishes to retain and why.

53 The inclusion in clause 15.09-2 of the words If a permit is required to remove native vegetation does not mean that the reasoning in Villawood is no longer applicable. Otherwise the relevant passage in clause 15.09-2 remains unaltered. The amendment does not change the dilemmas identified by Deputy President Gibson and Member Baird in Villawood, and their approach of having regard to the purposes and objectives of the particular overlays remains valid, and in my view more necessary, despite amendment VC38.

54 This approach is supported by some guidance in the Framework and VC38 as to how the Framework is to be applied. The Framework identifies a number of agencies which will be involved in its implementation, such as 2 departments now incorporated in DSE, the Victorian Catchment Management Council, catchment management authorities, the Trust for Nature and local government[2]. The Framework envisaged its implementation would involve a number of programs by a number of authorities on private and public land[3] The Planning and Environment Act 1987, the Victorian Planning Provisions and the SPPF are identified as relevant planning controls[4] and a review of those provisions is contemplated[5]. Council was correct in stating that amendment VC38 not only amended clause 15.09-2, but did not refer to the additional provisions of the Explanatory Report which also said:

What the Amendment Does

The amendment changes the Victorian Planning Provision (VPP) and Planning Schemes in Victoria ....to implement a new approach to native vegetation management in the Victorian planning system.

and particularised those changes.

55 The amendment makes no mention of SLO's or VPO'S in this context, but selects clauses 52.17 and 66 as the planning tools to implement the 3 step approach and the use of native vegetation precinct plans and property vegetation plans.

56 The Explanatory Memorandum also stated

Exemptions from the permit requirements of the clause are now included in a table...

57 Clause 52.17 sets out the principles of the Framework of avoid, minimise and offset, specify application requirements[6], provides for native vegetation precinct plans[7] and property vegetation plans[8] and the decision guidelines[9] require as the first item a consideration of the Framework and later offsets. Clause 52.17 is a codification of the Framework principles and a detailing of its application under the planning scheme in a way that addresses the problems identified in Villawood.

58 No such amendments have been made to the SLO's and the VPO's, which indicates that the planning scheme intends that they remain to be considered under their own purposes, objectives decision guidelines and exemptions.

59 Thus despite the general requirement of clause 15.09-2, amendment VC38 specifies clauses 52.17 and 66 including its exemptions as the vehicle to implement the Framework and leaves other controls such as a SLO to be considered on the basis of their respective purposes and objectives, whilst leaving unresolved the issues identified in Villawood.

60 The extent to which the Framework is to be applied and the weight to be given to it in considering a permit to remove native vegetation under SLO1 is a matter of discretion to be decided in the usual way of balancing policies as directed by the planning scheme:

The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.[10]

61 Senior Member Horsfall has determined that as a matter of law the exemptions in clause 52.17 do not apply so as to exempt the proposal from obtaining a permit under the SLO1.

62 Whether or not the exemptions in clause 52.17 apply so as to exempt the proposal from obtaining a permit under clause 52.17 is a question of fact which needs to be determined having regard to the circumstances in each individual case.

63 As I have stated above, I am satisfied that the removal of native vegetation in this case is to the minimum extent necessary for the construction of the dwelling and a permit is not required under this provision of the planning scheme. I have reached this conclusion on the basis that the vegetation which is proposed to be removed is limited to that which is needed for the construction of the dwelling, ancillary buildings and works and services associated with the dwelling and access to the dwelling. Vegetation which is not required to be removed for these buildings and works is to be retained.

64 It was submitted by the Council that the level of vegetation proposed to be removed is excessive because of the siting, size and layout of the dwelling and associated buildings and works, and that the exemption is therefore not applicable. A dwelling however is a section 1 permit not required use in the Low Density Residential Zone and the provisions of Clause 52.17 are not intended to control the siting, size and layout of a dwelling and associated buildings and works and they cannot be used to do so. The provisions of Clause 52.17 are concerned with the removal of native vegetation, except where the removal of vegetation is to the minimum extent necessary, required for the construction of a dwelling. Provided the removal of vegetation is limited to that which is required for the construction of the dwelling and ancillary buildings and works, the exemption provisions of Clause 52.17 are applicable.

65 Having regard to my findings above, the consideration of the merits of this application is limited to a consideration of the relevant matters under the SLO1.

66 With respect to the relevance of Victoria's Native Vegetation Management - A Framework for Action in considering applications under the SLO1, Senior Member Horsfall has found that the responsible authority and the tribunal must have regard to the Framework as required by clause 15.09-2 and that it is appropriate to interpret the relevance of the Framework by reference to the purposes of SLO1 or the objectives set out in the schedule to SLO1, as enunciated in Villawood.

67 The relevance of the framework to the consideration of this application is very limited because:

• The purpose, landscape character objectives and decision guidelines of the SLO1 are concerned with controlling the impact of development and vegetation removal on the landscape character of the area;

• The construction of the dwelling requires a permit under the SLO1 only as a consequence of variations to the SLO1 provisions relating to the construction of dwellings which are so minor as to be inconsequential;

• The review site is located within a residential area and is zoned for residential purposes;

• A permit is not required to use or develop land for the purpose of a dwelling in the Low Density Residential Zone;

• A permit is not required under Clause 52.17

68 As a consequence of the above I find that the attempt to apply the Framework and the net gain principles leading to a requirement to offset the loss of 47 trees through the provision of 957 trees is untenable.

69 This is not to say however that the Framework and Clause 15.09-2 which emphasise an approach to the consideration of applications for native vegetation removal based on principles of avoid, minimise and replace, is not applicable, but they are only applicable in the context of the outcome which is intended to be achieved by the control under which a permit is required, in this case the SLO1.

70 In arriving at my conclusion that the removal of vegetation as proposed achieves an acceptable outcome having regard to the purpose, objective and decision guidelines of the SLO1, I have been assisted by the evidence of Mr Galbraith who undertook a survey of 72 trees on site. It was Mr Galbriath's evidence that 41 trees need to be removed for the construction of the dwelling, of which 13 are in poor-fair condition, one has a significant structural defect, two are dead and two are invasive environmental weeds. Mr Galbriath also recommended the removal of a further six trees which are either invasive environmental weeds or are dead, or in one case, has fallen over and is being supported by a pine tree.

71 A total of 47 trees are therefore proposed to be removed, of which 24 are in poor - fair condition, poor condition or are dead, or are seriously invasive environmental weeds.

72 Of the trees to be retained, Mr Galbraith concluded that most are in fair to good condition except for three, but that these are capable of being retained for the medium term.

73 Mr Galbraith also recommended tree protection measures which will need to be implemented in respect of those trees to be retained.

74 Mr Galbraith's evidence was not disputed by contrary evidence and based on Ms Rugieri's submission, I note that the Council's environmental planner did not dispute Mr Galbraith's arboricultural assessment which formed part of the application material submitted to the Council with the planning permit application.

75 I accept Mr Galbraith's evidence with respect to arboricultural matters.

76 While the removal of indigenous trees will have an impact on the landscape character of the area, this needs to be balanced against the benefits to be derived from the removal of invasive weed species and trees in poor condition, and the consequential opportunity which arises for the planting and management of replacement vegetation.

77 The applicants have prepared and submitted a landscape plan which provides for the planting of some 74 indigenous trees and 188 shrubs and tussock species. It is difficult to conclude that this will have anything other than a positive impact on the landscape character of the area.

78 With respect to the siting, size, height and layout of the dwelling, it is significant that a permit to construct the dwelling is only required because part of the building is closer than 5 m to a side or rear boundary (4 m to the side, northern boundary is proposed) and there is a marginal 200 mm increase in height above 8.0 m. These variations to the SLO1 requirements are inconsequential in terms of the proposed dwelling's impact on the landscape character of the area.

79 In terms of the requirement to obtain a permit for works associated with the construction of the dwelling, I am satisfied that the proposal achieves an acceptable outcome in terms of its impact on the landscape character of the area. The works are primarily located toward the rear of the site and to the rear of the dwelling, allowing vegetation to be retained in the front 40% of the site where it abuts the creek and the Warrandyte - Ringwood Road which, from a landscape character perspective, is the most important vegetation to be retained and where additional planting will have the most beneficial impact. The vehicular access to the dwelling has been appropriately configured so that it meanders through the retained vegetation.

The building envelope and the S. 173 Agreement

80 The extent of buildings and works located outside the building envelope is not significant in terms of the impact it has on the landscape character of the area or the vegetation to be removed. The footprint of the proposed dwelling is contained primarily within the building envelope and the vegetation removal associated with that part of the building outside the envelope is limited to three trees on the south side. The works located outside the envelope is primarily limited to outdoor paving and the swimming pool which are located to the rear of the site, behind the dwelling. The works associated with the paving and the swimming pool are ancillary to the dwelling and I do not do not consider those works to be excessive in the context of a large lot located in a Low Density Residential Zone, in which large dwellings, swimming pools and outdoor recreation areas are not uncommon.

81 It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and a permit granted.

82 In deciding the conditions to be included on the permit I have had regard to the draft conditions provided to the Tribunal by the responsible authority and the submissions and evidence of the parties in addition to the matters which arise from my reasons.

[1] [2005] VCAT 2703 (20 December 2005) at [74]-[84].