PRACTICE OR PROCEDURE - consideration of individual instance or systemic issues

Balancing the outcomes of native vegetation protection under Clause 52.17 on urban land infill zoned for residential use. Acceptability of the degree of native vegetation losses has been considered in context of vegetation's values.

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

Consideration of the degree of vegetation loss and values of that vegetation within context of Clause 52.17. Outline of principles in the consideration of vegetations conservation significance and biodiversity values.

This decision addresses the issue of subdivision of urban infill land that contains native vegetation of high and very high conservation significance and other biodiversity values. The central issue was whether or not the 'avoid and minimise steps' sought under Clause 52.17 had been adequately addressed by subdivision proposal. It is an issue that is regularly before the tribunal.

Having considered commentary set out in Villawood[1] along with amendments to Clause 52.17 since that decision, it is concluded that a priority is to be given to native vegetation values and the outcomes being sought by state policy, particularly the NVMF. In particular, various amendments to Clause 52.17 are considered to have shifted the focus toward the conservation of native vegetation and the first two steps of avoiding and minimising losses, most particularly avoidance.

In recognising such a shift, the starting point when contemplating a subdivision (or development) proposal, should be to ask the question why such vegetation should be lost rather than how can the loss be offset. The latter approach has more often than not been adopted for infill urban subdivisions and developments. More particularly, the zoning of the land is not the starting point in considering the suitability of a subdivision proposal. The proposition that a residential zoning carries with it an overriding or automatic expectation that conventional subdivision can or should occur, with all its subsequent consequences for loss of native vegetation, is not accepted. What is called for on such land is innovation that enables the retention of significant native vegetation on the land.

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit. Residential 1 zone. Infill subdivision. Extent of native vegetation to be removed. Vegetation of Very High conservation significance. Off-set management plan.

Melbourne Water Corporation and Department of Sustainability and Environment

Graham Paul Fell, James & Merralyn Evans, WJA & MA Dennis

Reeve v Hume CC & Ors (includes Summary) (Red Dot) [2009] VCAT 65

1. The decision of the Responsible Authority is affirmed.
2. In permit application P101/20 no permit is granted.

• Dr Bram Mason, ecologist of Brett Lane & Associates.

Mr Barnaby McIlrath, solicitor of Maddocks Lawyers.

Ms Virginia McLeod, Senior Statutory Planner, assisted by Mr Richard Beokel, Senior Biodiversity Officer appeared on behalf of the Department of Sustainability and Environment.

Mr James Evans was present but did not wish to make oral submission. No other respondents appeared, relying on their written submissions.

Subdivision of the subject land to provide for 16 residential lots and three vegetation reserves, along with access road connecting to a public road via a Road Zone Category One road easement. Provision of the access road, underground services and building envelopes within the lots will require or eventuate in removal of native vegetation assessed as being of High to Very High conservation significance.

Section 79 Planning and Environment Act 1987

Residential 1 Zone (Clause 32.01 of the Hume Planning Scheme).

Clause 52.29 (Land adjacent to a Road Zone Category 1)

Clause 52.29 (subdivide land adjacent to a Road Zone Category 1 and alter access in a Road Zone Category 1)

Lot 4 of Plan of Subdivision LP 73246 Volume 8558 Folio 862; otherwise known as 160 Riddell Road Sunbury.

The lot is an irregularly five sided block of land of approximately 2.2ha. It has a frontage to Riddell Road of 127.12m and a depth of 169.2m on its western side. Boundary lengths are 91.2m, 68.4 and 139.3m on the northern, north-east and eastern sides respectively.

The land slopes from the north-east to the south-west (i.e. from the rear to front boundary) with an overall fall of approximately 10m. A drainage easement, parallel to a drainage line, angles across the south-west corner of the lot. A small dam is located to the immediate north of the easement lying along the drainage line.

The lot contains of native and exotic vegetation, an existing single storey dwelling located toward the rear (north-eastern end) of the lo and two outbuildings. Access is via a gravel track that curves through the lot and leads directly onto Riddell Road.

Urban Alliance Corporation v Hume CC [2008] VCAT 1328; Villawood Properties Pty Ltd v Greater Bendigo CC [2005] VCAT 2703; Coughlan Civil Pty Ltd v Yarra Ranges SC [2007] VCAT 1923; I & M Hamilton and R & G Smith v Nillumbik SC [2006] VCAT 18; The Estate of W G Hiscock & others v Mornington Peninsula SC [2007] VCAT 546; Moran Logging Company Pty Ltd v Yarra Ranges SC (Directions re Question of law) [2006] VCAT 1758.

1. The issues in this proceeding raise the sometimes difficult and problematical question of balancing the outcomes of native vegetation management sought under state policy in an urban development context. Before me is a proposal for a 16 lot subdivision of Residential 1 zoned land that has been assessed and found to contain native vegetation of Very High conservation significance. It contains Melbourne Yellow Gums (Eucalyptus leucoxylon subsp connata), a species that is identified at a state level as vulnerable to extinction. The land also forms potential habitat for two endangered fauna species and is locally known for its habitat and foraging value to other native fauna species.
2. Hume City Council (the Council) has refused the application for a planning permit for subdivision. The grounds of refusal centre on matters related to the native vegetation. It is the Council's position that the amount of native vegetation lost would be excessive and is not in keeping with various planning policy objectives and the Victorian Native Vegetation Management Framework[2] (the NVMF). The Council is also concerned about the ability to provide offsets for the extent of native vegetation that would be removed under the current proposal. The anticipated loss of native vegetation is also said to be compromising 'the natural amenity of the area'.[3]
3. The Department of Sustainability and Environment (DSE) also objects to the subdivision,[4] or rather the extent of it, contending that the application does not conform to the principles of the NVMF. It is DSE's view that an alternative subdivision proposal that reduces the loss of significant vegetation would be consistent with these principles. DSE have also expressed a concern as to the level of certainty regarding the provision of off-sets, suggesting that with reduced levels of native vegetation loss, the developer would be better placed to provide such off-sets within the site.
4. Some of the neighbours also object[5] to the subdivision on the grounds that the bushland quality will be compromised or lost with a consequential loss of native wildlife. Apart from such losses per se, some neighbours are concerned about the loss of associated amenity the flora and fauna affords their properties.[6]
5. Some objectors also have concerns over increases in vehicle traffic on nearby roads that they consider would arise from the proposed subdivision.
6. In contesting the Council's and DSE's grounds, the permit argues that the degree of native vegetation loss is not excessive and that state policies have been met by having proper regard to the NVMF and the three step approach of avoid, minimise and offset of such losses. In respect to other objections, the permit applicant relies on the above grounds and the fact that being zoned residential 1, subdivision and future residential use is appropriate.
7. I have considered these various submissions along with the expert evidence of Dr Mason and supporting reports prepared by others in respect to the permit application. I have formed the view that the proposal has failed to give proper weight to the NVMF in light of the conservation significance of the vegetation and its associated habitat and biodiversity values. I conclude that while some form of subdivision may be possible, this proposal is not a satisfactory outcome when the various requirements for native vegetation management are taken into account. It follows from this conclusion that no permit should be granted and the Responsible Authority's decision is to be affirmed.
8. My reasons for these findings are set out below.

1. Before turning to my reasons proper, it is useful to first provide further context by way of the details of the subdivision and the site's native vegetation and biodiversity values.

1. The DSE submission provides a useful summary of the native vegetation conditions of the subject site, which for the purposes of these reasons I will repeat here:

The subject site contains 1.85 hectares of native vegetation of the Ecological Vegetation Class Grassy Woodland which is endangered in Victoria. This vegetation community consists predominantly of Yellow Gum woodland, with this tree species (Eucalyptus leucoxylon subsp. connata - Melbourne Yellow Gum) considered threatened in Victoria (Witness Statement of Dr Bram Derek Mason, page 4). The presence of [the] Melbourne Yellow Gums remains unconfirmed in the reported tabled as the Expert Witness Statement of Dr Bram Derek Mason.

As show on Anexure B (page 21) in the Witness Statement of [Dr Mason], Habitat Zones A, D, E & F consist of native vegetation of which approximately 1.5 hectares is of Very High conservation significance. Dr Mason's statement (page 4) notes that [his] site assessment recorded nearly twice the number of indigenous plant species on the site than recorded in the previous assessment prepared by Felix Botanica. The habitat quality scores were significantly higher than those previously submitted for Zones D and E that elevates the conservation significance of these Zones to Very High (page 9). The proposed subdivision requires the removal of 0.87 hectares, or over half of this category of vegetation.[7]

1. Further to the above description, Dr Mason was able to confirm in his evidence that the Yellow Gums present on the site are indeed the Melbourne Yellow Gums, a species that is noted by DSE and Dr Mason to have a threatened status in Victoria.[8]
2. DSE also highlight that the Yellow Gum Woodland is foraging habitat for the endangered Swift Parrot (Lathamus discolour). This species is listed under the Flora and Fauna Guarantee Act 1988 (the FFG Act) and classed as 'endangered' under the Environment Protection and Biodiversity Act (Cth) 1999 (the EPBC Act). The Ecowild[9] assessment undertaken on behalf of the permit applicant considers the potential loss of some of this foraging habitat to be of a lesser consequence compared to breeding habitat which occurs in Tasmania. The DSE submission highlights however that the Swift Parrot is subject to an Action Statement prepared under the FFG Act[10] and in their view, urban foraging habitat such as presented on this site, is important to this species during its winter migration to mainland Australia. Reference to the Action Statement indicates incremental loss of foraging habitat is one of many threatening processes to this species.
3. The Council's conservation officer's assessment of the site highlighted not only the foraging value for the Swift Parrot but also the provision of habitat, foraging values and fauna corridor for local species of koalas, echidnas and the Grey-headed Flying-fox. In addition to the Yellow Gum, this report also highlighted the value of Manna Gums (Eucalyptus viminalis) and the wattle/grassy understorey which supports these habitat values. Dr Mason's evidence also acknowledges the value of the site as local fauna habitat tempered to a degree by its fragmentation from other remnant areas, but nevertheless 'providing refuge for birds and bats'.
4. The subject land is also assessed as possible habitat for the Golden Sun Moth (Synemon plana), a species listed as critically endangered under the EPBC Act. One such moth has been observed in the north-east corner of the site during the fauna surveys of the site.[11]
5. A referral under the EPBC Act has been made to the Commonwealth Department of Environment and Heritage in respect to this species and the potential for any impact. The Department response tendered in the permit application material is that the action of subdivision is not considered one that would be need to be a controlled action (i.e. has the potential for significant adverse impact on the species) provided certain conditions are met. These conditions include that the subdivision would need to be undertaken in the manner set out in the tendered plan (i.e. the 16 lot subdivision) with land in Zone F and part of Zone A set aside as a reserve.
6. While DSE acknowledge that the moth was identified on the site, it is their view that the site it is unlikely to be a 'key site' for this species. However, this view is couched in concessions that little is known of this species. It is generally agreed that its habitat comprises of open or grassy ecosystems. Dr Mason evidence is that the wallaby grass vegetation in open and understorey environments on the site presents viable habitat for the moth.

1. The planning officer's description of the conditions surrounding the site as presented in Mr McIrath's submission is in my view a fair representation of conditions:

Land to the north and west of the site are large tracts of residential land, each occupied by single dwellings. A planning application ... has been submitted to Council to subdivide land to the north of the site [this being a lot of similar size and vegetation cover to the subject site]. A planning application was approved on land to the west of the site for a retirement village comprising of 38 units and a community centre. A subsequent planning application for a retirement village comprising of 100 units and a community centre was refused by Council [on grounds] it did not comply with the Native Vegetation Framework. To the east and south/east is an established residential area comprising of a variety of residential sized allotments in a cul-de-sac street layout. To the west and south/west, opposite Riddell Road, is a similar residential area. A large nature strip buffer of approximately 40 metres exists in front of the subject site adjacent Riddell Road.

1. The second planning application for a retirement village to the north of the site noted in this description was the subject of a tribunal review hearing, the Urban Alliance decision.[12] This review application resulted in the grant of a permit for a reduced number of 95 retirement units rather than the 100 applied for. In terms of setting the context of the subject site in my decision, it is relevant that the approval/construction of the retirement village would see native vegetation of High to Very High conservation significance retained within the village site. This will include vegetation in the south-west of that site which abuts the north-west corner of the subject site and vegetation of Zone D of the Felix Botanica assessment.[13]
2. In addition to the site's physical context it is pertinent to note that the Urban Alliance decision was made at a time when residential buildings (such as that proposed) were exempt from the requirements of Clause 52.17.[14] However, the tribunal in that review took the view that consideration of the requirements of the NVMF to avoid or minimise native vegetation losses was valid given relevant decision guidelines contained at Clause 65 and state policy at Clause 15.09.[15]

1. The subdivision on which the permit applicant relies on in this application proposes 16 lots. Lot sizes range from 554 sqm to 1,067 sqm with each containing a building envelope. Access to the lots would be via a central road, for which a reserve of 12-16m width is proposed. The road would more or less pass centrally through the site and terminate in a T-end. It would connect to Aldridge Drive by passing along the southern boundary of the site within the Riddell Road reserve and Zone E vegetation.
2. Creation of three reserves are proposed for the retention of native vegetation:
   • 4,810 sqm of land along the south-east boundary of the site, which contains all of the Zone F and 25% (approximately) of Zone A vegetation patches;
   • 1,862 sqm of land in the south-west corner of the site containing 51% (approximately) of the Zone D vegetation patch; and
   • 191 sqm of land on the north-west boundary containing a small portion of the Zone C vegetation patch.

1. Submissions and grounds of the Council, DSE and objectors variously raise issues of traffic, neighbourhood character and amenity, and the question of whether the subdivision has or can successfully address the three step approach of avoid, minimise and offset native vegetation losses as required by Clause 52.17.
2. It is clear from the various submissions however that what is the fundamentally determinative matter in this proceeding is whether the habitat and biodiversity values of the vegetation (and site as a whole) warrants greater protection and conservation than that proposed under the applicant's 16 lot subdivision plan. That is to say does the proposal satisfactorily address the NVMF and more particularly the three-step approach of avoiding or minimising losses and where losses are to occur providing secure and suitable off-sets as required under Clause 52.17.
3. I will deal with the issues of avoidance and minimising of losses before turning to the matter of offsets, which is also at issue. However, before doing so I need to address an underlying matter, which is the balance to be struck between the policy interests of subdivision of residential land such as the subject site and protection of its native vegetation and biodiversity values as called for under Clause 52.17.

1. It is Dr Mason's evidence that the site contains or will involve development within or adjacent to five patches of vegetation with conservation significance ratings of High to Very High.[16] One further patch of vegetation, Zone C, is assessed as having no conservation significance due to its degraded state, although it retains some scattered native trees. While Mr McIlrath points to the presence of some native grasses in this area, it is Dr Mason's evidence that the coverage of such grasses is insufficient to qualify it for consideration under the NVMF. I accept and rely upon this evidence which was uncontested.
2. As set out by DSE, under the NVMF native vegetation of Very High Conservation Significance is not to be cleared except under 'exceptional circumstances'.[17] Approval of clearing under exceptional circumstances is further elaborated on in the NVMF as being where:

...impacts are an of an unavoidable part of a development project, with approval of the Minister for Environment and Conservation (or delegate) based on considerations of environmental, social and economic values from a statewide perspective.[18]

1. Under a High Conservation Significance rating, the NVMF directs that clearing of native vegetation would generally not be permitted.
2. The purposes of Clause 52.17 are relevant. They include, inter alia:

• 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.

That is to say, the purposes follow the three-step approach of the NVMF, and more particularly the objectives of avoiding or minimising losses are required where this clause is to be applied. There is no dispute that it is to be applied in this matter.

1. DSE is concerned that while acknowledging some form of subdivision is consistent with the residential 1 zoning of the site, the Very High conservation significance of four of the six vegetation patches deserves greater consideration in the manner by which such subdivision should occur. Both DSE and the Council consider that a lesser intensity of subdivision is warranted that avoids more, if not all, of the Very High and High rated patches. It is also their view that in doing so greater opportunity would be provided for establishing off-sets within the site.[19]
2. The Council goes as far as to suggest there is policy support for smaller lots sizes and even some form of medium density like development within Zones C and B (i.e. the north west portion of the site) that could achieve an economically viable development while providing for greater conservation of the higher value native vegetation.
3. Such submissions and the response by Mr Scally raise the question of what weight and form of balanced outcome should occur between the purposes of Clause 52.17 and the development potential implied from the R1 zoning of the land.

Native vegetation in a R1Z subdivision - Villawood revisited

1. In Villawood Properties Pty Ltd v Greater Bendigo CC[20], Deputy President Gibson and Senior Member Baird dealt with the issue of the workability of permit conditions to deal with off-sets required for native vegetation removal under urban subdivision. This decision is, in part, relied upon by Mr Scally in this matter and indeed it is cited in many subdivision matters where removal of native vegetation is to occur, including the Coughlin and Hamilton decisions[21] referred to by Mr Scally.
2. It is the submissions of Mr Scally that I wish to deal with here, which suggests that the balance between development and native vegetation retention on this subject site is in general keeping with the Villawood decision.
3. The Villawood decision recognises the inherent tension between these competing outcomes:

The issues involved in this case are typical of situations throughout Victoria where greenfields sites containing native vegetation are zoned for residential, industrial or commercial purposes and where the use and development of the land for these purposes will necessarily entail the loss of much, if not all, native vegetation on the site. Planning policy is clear - in such circumstances offsets must be provided to ensure that there is an overall Net Gain to mitigate the loss of vegetation that will occur. [22]

1. Relevantly this division of the tribunal also set out that:

These issues [of providing off-sets] have led the Tribunal to take a more pragmatic view. It has taken the view that Net Gain is one of many, sometimes competing, policy objectives included in the planning scheme and that Net Gain must be balanced with other strategies to achieve a net community benefit.

For example, with respect to urban development, the government has imposed urban growth boundaries to curtail the spread of urban growth thereby limiting the supply of land for residential development. It is unreasonable to then expect that this land will not be developed for urban purposes at densities designed to optimise use of a scarce resource because vegetation on the land will be lost. If there is highly significant vegetation on the land that should be protected, then this part of the land should be brought into public ownership where its long-term management and protection can be assured. In larger subdivisions, the loss of vegetation can be minimised by designing subdivisions so that vegetation is incorporated into public open space. But in all other aspects it should be assumed that 100 percent of vegetation will be lost.....[23]

1. Such commentary is relevant to this proceeding as far as it has been relied upon in this and many other proceedings and was made in a similar planning context to this proceeding. There is a view by some that the Villawood decision proceeds on the basis there must be a balance between the highest and best use of the urban-use zoned land and the competing objectives of the NVMF policy that could otherwise see the land remain undeveloped. Such views underpin, in part, the underlying premises made in the Coughlin and Hamilton decisions furnished by Mr Scally that within urban zoned land, the primary purpose of that zone is to be read, with some balance to the NVMF. As recognised in Mr McIlrath's submissions, generally this line of reasoning has resulted in subdivisions being permitted with retention of some key native vegetation and provision of offsets. Such outcomes are said to be of a net community benefit in keeping with the objectives of planning in Victoria.
2. It is my view that there is nothing in the Villawood decision that should be read as a concession that the urban zoning of the land overrides or somehow outweighs NVMF outcomes, particularly the 'avoid' step. The oft cited commentary of Villawood was made in the context of how best to prepare permit conditions to reflect workable offset requirements where clearing of native vegetation have already been agreed to be permitted. In doing so, the Villawood tribunal expressed a proviso to any such losses, this being that the initial decision as to the appropriateness of a permit to allow removal of native vegetation must first consider 'the significance of the vegetation itself and the extent of vegetation removal proposed'.[24]
3. This tribunal made it clear that 'highly significant vegetation on the land that should be protected' should be considered for reserves, nominally in some form of public ownership.
4. Such commentary reflects the objective of the NVMF that at a regional and state-wide level there will be no loss of the extent of existing native vegetation that is of very high conservation significance and minimal loss of high conservation rated native vegetation.[25] It is a view that I concur with having regard to the requirements of Clause 52.17 and the NVMF on which such requirements are based. Accordingly I do not agree that at first instance the R1 zoning of the land provides an automatic green light for subdivision when native vegetation is present on the land and the application of Clause 52.17 is triggered.

1. After the Villawood decision, Amendment VC38 was introduced to all Victorian planning schemes that made, amongst other changes, certain amendments to Clauses 15.09 and 52.17. The explanatory report and commentary to VC38 set out that such amendments sough to implement 'a new approach' to native vegetation management including clarification of the three step approach. Clause 15.09 was amended such that Responsible Authorities 'must' have regard to the NVMF, rather than the arguably less obligatory 'should' and references is made to subdivisions that could result in removal of native vegetation having to have regard to the three-step approach.
2. Notably the purpose of Clause 52.17 was also amended under VC38 to include as objectives, avoidance, minimising and off-setting of native vegetation losses. When such purposes are read in conjunction with the NVMF, it is my view that the starting point for any permit has to be consideration of the objectives of avoidance and minimisation of native vegetation losses. Offsets, the third plank of the three-step approach, are only to be regarded if avoidance cannot occur and minimisation means some losses have to be offset. VC38 also amended the decision guidelines and relevantly included consideration of, amongst other matters, the conservation status and other biodiversity and ecological values of the vegetation.
3. These amendments and the aims they seek to achieve are, in my view, consistent with the views expressed in the Villawood decision and lend further emphasis to the argument that the weight to be given to avoidance and minimising of native vegetation losses depends, in part, on its conservation significance and as well as its other biodiversity values.
4. Subsequent to VC 38, Amendment VC44 introduced exemptions for native vegetation other than trees, which provide for removal, lopping or destruction in accordance with requirements for the management of wildfire. The result of such exemptions may be the removal of understorey native vegetation[26] from zones around accommodation buildings for up to 80m radius without the need for a permit and therefore and perhaps most importantly the corresponding offset of such losses under a three step approach. Thus any consideration of permission for dwelling or other accommodation needs to extend the breadth of potential native vegetation losses beyond simple building envelope constraints.
5. More recently, Amendment VC49 was introduced into all Victorian Planning Schemes.[27] It is instructive to consider the intent and nature of these amendments as amongst other matters, this amendment included further changes to Clause 52.17 intended to 'support policies under Clause 15.09 by enhancing provisions that seek to protect native vegetation'.[28]
6. Under VC49, amendments have been made to various requirements of Clause 52.17, including the strengthening of permit requirements to remove, destroy or lop dead native vegetation and significant changes to exemptions from permit requirements. The changes to the table of exemptions has been extensive. I do not intend to canvass them all here. Relevantly however, while the exemption of land of less than 0.4ha remains, the exemptions for dwellings and any works or buildings ancillary to a dwelling on all land other than Farming or Rural Activity Zones has been removed. This is in my view, a significant departure from previous forms of exemptions.
7. I consider that two relevant messages arise from these amendments. One is that under subdivisions nominally associated with urban development, i.e. less than 0.4ha, loss of native vegetation is more than likely to follow and thus vegetation proposed to be retained as such lots must be contemplated as lost. Such an outcome is consistent with the views expressed in Villawood.
8. Mr Scally submits that for all intents and purposes there is an implied downscaling of the value of native vegetation patches of less than 0.4ha that arises from this exemption. I do not agree with such a generalised assertion. Other mechanisms that can be drawn upon from within the tool box of the planning schemes such as overlay controls, can provide for protections to biodiversity and vegetation values that exist from the en globo presence of contiguous vegetation that is otherwise contained within small abutting residential lots of less than 0.4ha. It would be an oversimplification to say that a patch of native vegetation of less than 0.4ha should be read as having no value. Each patch of vegetation will need to be assessed on a case by case basis and, inter alia, within the context of other planning, vegetation and / or environmental controls.
9. Nevertheless, the exemption does exist and therefore it is appropriate to consider how land containing native vegetation should be subdivided in order to ensure its protection from such exemptions if so warranted by its conservation significance or other biodiversity values and in the absence of any other controls. This must be a relevant consideration when deciding on whether subdivision to lot sizes of less than 0.4ha are to occur.
10. The second message from the aforementioned amendments is the change in weight between permitting a dwelling and native vegetation retention. On land other than 0.4ha in area, there is, since VC49, limited exemptions for the development of dwellings.[29] Even these exemptions are limited to a specific few land use zones and the need to demonstrate that there are no other viable alternatives to removing native vegetation. The priorities have shifted in favour of native vegetation protection.
11. Clearly 'rules of the game' have changed. The various amendments have sought to clarify the weight to be given to the requirements of the NVMF through Clause 52.17 and the values of native vegetation.

1. In the Hiscock matter[30] I adopted a view that the High conservation significance of native vegetation was a determinative matter in weighing against the extent of a proposed subdivision. Mr Scally, perhaps in anticipation of such a view resulting in no subdivision of land containing vegetation patches of Very High conservation significance, argues that the NVMF is but a policy provided for guidance. As a policy, he argues that it is therefore to be weighed against the purposes of the zone and other policies that encourage urban consolidation such as discussed earlier in the Villawood decision. He argues that it cannot limit the discretion of the decision maker.
2. In Moran Logging[31], Morris J provides an opinion on, inter alia, the question of weight to be given to the NVMF in planning matters. Having considered the nature and requirements of the NVMF, Morris J concluded that the weight of the NVMF is one of guidance and requires discretion, the exercise of judgement and further consideration of relevant matters rather than being a determinative set of rules.[32]
3. In exercising such discretion and judgement, particularly in this proceeding where the NVMF directs that clearing of native vegetation would only receive permission under 'exceptional circumstances' it is instructive to return to a consideration of Clause 52.17 and the guidance provided therein.

1. Mr Scally points out that the site is not subject to overlay controls such as a vegetation protection or the like. That may be so, however the subdivision proposal remains subject to Clause 52.17. In view of the purposes of this clause, which I have earlier referred to, the lack of other overlay controls to my mind does not diminish the weight to be given to the native vegetation existing on the site, its values and the outcomes sought under this control.
2. Relevant to the three step approach of the NVMF, the values of the vegetation patches and the caution to be exercised as per Moran Logging, the decision guidelines of Clause 52.17 call for consideration of:
   • the steps taken to avoid or minimise removal of native vegetation;
   • the conservation significance or status of the vegetation;
   • the cumulative impact of removal on biodiversity;
   • the quality and conditions of the vegetation;
   • the strategic location of the vegetation in the landscape; and
   • whether the vegetation is a threatened community or provides habitat for threatened species as listed in the FFG Act.
3. Given the earlier discussion of weighting to give to the native vegetation ratings of conservation significance, these decision guidelines, to my mind add to the weight to be given to the Very High and High Conservation Significance and biodiversity values attributed to the various patches of vegetation on this site. Not only does this land support the Melbourne Yellow Gum, which is listed as vulnerable,[33] it has potential to be habitat for the Golden Sun Moth and provide foraging habitat for the Swift Parrot, both species listed under the FFG Act and considered endangered[34] under the EPBC Act.[35]

Some conclusions as to the principles to be applied

1. While in the Moran Logging case, it was the view of Morris J that the NVMF guidelines may form an 'amber light' of caution rather than a 'red light', subsequent events and amendments as I have outlined in these reasons would suggest that this may not necessarily be the proper frame of reference by which to now apply such discretion. Undoubtedly the NVMF forms but one guide in exercising such discretion, however in the context of the objectives of Clause 52.17 set out earlier, the question for permitting the clearance of vegetation of High or Very High conservation significance must surely be couched in terms of 'why' rather than 'how' such clearance should be permitted. Such a starting point is consistent with that expressed in Villawood. Subsequent amendments to Clauses 52.17 and 15.09 I set out earlier have, in my view, further strengthened the need for such a starting point.
2. In this then I concur with the submissions of Mr McIlrath that the impetus to avoid and minimise the loss of native vegetation should be higher for 'scarce and significant EVC remnants' that are present on this site and the question of why to allow losses of such vegetation needs to be satisfactorily addressed.

IS THIS SUBDIVISION AND THE NATIVE VEGETATION LOSSES ACCEPTABLE?

1. Mr Scally contends on behalf of the permit applicant that in reducing the subdivision from 18 lots to 16 and setting aside land within the three reserves, the two steps of avoid and minimising losses have been satisfied. He submits that this has been achieved by avoiding development in all of the highest Habitat Hectare (HH) scoring value patch of Zone F and retaining various proportions of lower scoring but still High to Very High rated patches of Zone A and D. The access road is also said to affect around 17% of the assessed patch along the Riddell Road reserve, Zone E.[36]
2. Having regard to the assessments undertaken by Felix Botanica, the evidence of Dr Mason, the purposes and decision guidelines of Clause 52.17 and the weighting to be accorded to the significance of the vegetation values under the NVMF, I am not satisfied that this is the case.
3. It is true that the subdivision pattern utilises almost all of the lower scoring habitat of Zone B and the unrated patch of Zone C.[37] It is argued that such steps seek to minimise losses from the other patches and focus the smaller, more intensive subdivision lots in the unrated patch of least value.
4. However, a number of significant factors weigh against the layout and the consequential losses or potential for losses of native vegetation of Very High conservation significance.
5. Some 75% of the Zone A patch and 51% of Zone D patch have been incorporated into the proposed lots and roadway. The Zone A patch has the third lowest HH score, but nevertheless has a conservation significance rating of Very High. The HH score for this zone is largely due to its canopy tree cover of Yellow Gum and Red Box, presence of logs (habitat) and organic matter (support to existing native vegetation). The canopy forms part of the foraging value for the endangered Swift Parrot. Remnant native grasses and understorey are also recorded as being present for this patch.[38]
6. Despite the use of building envelopes much of the native vegetation and associated habitat value of Zone A would be considered as lost, not only for the purposes of estimating offsets but in the reality of future use of such residential lots. Arguably, I accept that there is a reasonable prospect of some of the canopy cover, but not all of it, being retained within the wide road reserve. However as has been already highlighted earlier the use of building envelopes does not necessarily provide a reprieve for trees or understorey, particularly in the form of words proposed for s.173 agreements confining only the building of dwellings to such envelopes. While granted that such wording can be modified to include all residential works and buildings, it is fair to say that the future use and expectations of residents could well see a gradual removal of overhanging canopy trees as well as the loss of understorey species, logs (habitat) and organic matter on each lot as well as on road reserves.
7. I agree that there are positives to that portion of Zone A vegetation proposed for retention with in a reserve that will form a habitat corridor along the eastern boundary of the site. However, there remains a significant risk for the loss of the canopy and what remnant understorey that remains in this patch and the associated habitat and foraging values that support fauna, including the endangered Swift Parrot.
8. While having a high score for tree canopy cover, the Zone D patch also rates well due to its understorey and retention of logs. These characteristics are important contributors to biodiversity and possible native fauna habitat. Almost half of this patch would lost in the same manner as for the Zone A patch.
9. The question therefore arises as to why such losses should occur? While the land is zoned for residential purposes, in its wider setting, it will abut other native vegetation to the west, the north and along the road reserve. It therefore forms part of a larger vegetation patch and habitat corridor. It has very significant conservation and biodiversity values, including the very real support of two endangered species of national significance.
10. Are there exceptional circumstances that justify the proposed extent of vegetation losses and diminution of biodiversity values for residential subdivision purposes? None were put by the applicant other than the site's residential 1 zoning and general expectation of eventual residential use raised by such a zoning. I was not taken to any strategic statement or indication of pressing need for the site's subdivision. Indeed, in my site inspection of the wider surrounds, it is evident that other cleared R1Z land is available and is being developed. There appears to be no pressing shortage of residential land or other exceptional circumstance that has driven this application.
11. Having regard then to the decision guidelines of Clause 52.17, the principles I have set out earlier in respect to consideration of the NVMF, the habitat values of the Zone A and D patches, their Very High Conservation Significance, I find the degree of native vegetation removal and habitat loss to be unacceptable. Such a conclusion is lent further weight when one regards the threatening process of incremental loss of foraging habitat set out in the Action Statement for the Swift Parrot and the possible loss of the Golden Sun Moth habitat.
12. Further, as acknowledged by Dr Mason, larger patch sizes are preferred for retained vegetation in order to minimise edge effects which can have a degrading influence. In this respect, the narrowness of the reserves and the direct interface of the Zone F patch to the new lots is not an appropriate outcome given the already existing interface to existing residential lots to the east, the ecological values of this vegetation and its conservation significance.
13. It follows that I find the subdivision is an inappropriate response for this site when it contains native vegetation of High to Very High conservation significance with important habitat and biodiversity values. The NVMF calls for the loss of such native vegetation only in exceptional circumstances and while not necessarily determinative in its own right, such a caution on development weighs heavily against excessive or unnecessary removal or loss of significant vegetation and habitat when alternative development proposals are feasible and remain to be explored. As I have mentioned earlier in these reasons and as was indicated in the Council's submissions, in light of the high conservation significance ratings for this vegetations and given the flexibility for reduced lots sizes contained in the MSS,[39] the opportunity exists for more flexible and innovative responses to the site's values.

1. The proposed alignment set out in the TrafficGroup indicative layout sees the road marking a sweeping curve to the east to connect to Aldridge Drive, north of the intersection of Aldridge Drive and Riddell Road.[40] Dr Mason's evidence is that the proposed TrafficGroup layout has not been assessed for native vegetation losses and corresponding off-sets. It is evident however that this alignment would require the removal of up to eight trees.
2. It is submitted that there is an opportunity to utilise the gap in tree spaces on the road reserve to realign the proposed access road to Aldridge Drive to minimise the number of trees to be removed. Having inspected the site, I concur. I would expect that any future proposals for subdivision or development of this site would reconsider access arrangements in light of these comments.
3. In respect to this matter, Mr Scally made verbal submissions that vehicle access was exempt from Clause 52.17 requirements. That exemption applies to vehicle access 'across a road reserve from a property boundary to a public road'.[41] The application of such an exemption to what Mr Scally refers to as an access way but is in reality a new public road is, with all due respect, not one that I can be supported. It is clear that the references to access under Clause 52.17 are to be taken to mean access directly from private property to a road, such as a cross over, and not the construction of a new public road.

1. The other aspect of this proposal which was of concern to the Council and to a lesser extent the DSE, is the ability of the permit applicant to deliver offsets for the lost native vegetation.
2. The DSE's view is that while it can accept secondary consents for off-site offsets, it has a preference for as much delivery of offsets on the site rather than off-site. In light of my findings that this review application be dismissed and that no permit is to issue, the question of whether the proposed offsets are acceptable is a moot point. However, in line with the principles I have set out here for minimising vegetation losses of vegetation with High or Very High conservation significance ratings, the opportunity to then offset any losses within such retained vegetation should be one that is maximised. I am therefore of a mind to endorse the views expressed by DSE in respect to this application.
3. The Council's expression of concern as to the absence of detail in the secondary consent process for offset plans was underpinned by scepticism as to the ability to deliver on such offsets. Mr McIlrath argues that a greater level of certainty is required in terms of the ability to deliver offsets than that which was been presented in the permit application and Dr Mason's assessment. Mr Scally argues that the level of detail need not be finalised, but that the decision maker, be it the Council, DSE or the Tribunal need only be satisfied as to the general requirements of the offsets, with the finer detail to be achieved through a secondary consent process.
4. In all of this discussion, it is apparent that the findings of the Villawood decision figure prominent in this matter. I do not intend to go further into the assessment of each party's argument. It is sufficient to note that in the Villawood decision, the tribunal adopted the approach that the process of secondary consent is appropriate in dealing with the detail of the offsets and that:

...whilst it is not necessary to be aware of all the specific details of the offset plan at the time a permit is granted, the decision maker would need to be satisfied that there was general scope for a satisfactory offset plan to be implemented.[42]

1. I see no reason to depart from this view. I would consider that the further evidence of Dr Mason provided in the hearing on the availability of high quality Woody Grassland EVC patches with sufficient capacity to meet the estimated HH offset requirements is the form of 'general scope' for off-site provisions envisaged in the Villawood commentary. The means of securing such offsets and the implementation of an offset program are matters of detail that can then be left to the secondary process or review by experts in the required fields of vegetation / habitat management.

1. In respect to the traffic issues raised by the respondent objectors, the Council does not support such objections. The proposal was referred to VicRoads who do not object to the subdivision subject to conditions which principally focus on the nature of the access from the subdivision being to Aldridge Drive rather than Riddell Road. Having regard to the view of these authorities, the location of the site and the capacity of the surrounding street network, I consider the concerns expressed by the respondent objectors to be overstated. It is not a matter that I consider needs to be further dealt in these reasons.

1. From my site inspection and consideration of materials submitted in the hearing, it is evident that the retention of native trees within surrounding subdivided land contributes to the neighbourhood's character. In light of my findings to refuse this subdivision, it is not necessary to comment on whether or not this proposal was acceptable. However, it is instructive to any future proposal for this land to say that retention of native vegetation (particularly but not limited to canopy trees) will, to my mind, present a landscape character in keeping with the surrounding neighbourhood and the strategic objectives expressed in the MSS.
2. As I have noted, the Council has flagged that an opportunity exists for innovative use of smaller lot sizes within such a landscape. To my mind the opportunity exists for such a development to be integrated within the surrounding neighbourhood character, particularly in view of the proposal for medium density style retirement village to the north-west and retention of screening from vegetation to retained on the north, east and southern boundaries of the subject site.

1. It follows from the above reasons that I will uphold the Responsible Authorities refusal and direct that no permit be granted.
2. In arriving at this conclusion, I am mindful of the pleadings of Mr Scally on the applicant's behalf as to how long this matter has been on foot. However, it follows from my reasons that any attempt provide further relief by way of an opportunity to submit revised plans or modify the existing subdivision by way of an interim decision should be resisted. What is called for is a rethink of the extent and nature of development of this land in the light of this decision and, more importantly, the nature of the vegetation and biodiversity values of this site.
3. It is my conclusion that with the various amendments to Clause 52.17, there has been a shift in the priority to be given to native vegetation values and the outcomes being sought by state policy, particularly the NVMF. The shift is toward the conservation of native vegetation and first two steps of avoiding and minimising losses, but more particularly to avoiding losses. In recognising such a shift, the starting point in contemplating a subdivision (or development) proposal should be to ask the question why such vegetation should be lost rather than how can the loss be offset. The proper approach is to consider first the native vegetation's conservation significance and any associated biodiversity values. Only then should the form of the proposal be prepared. The zoning of the land is not the starting point. More particularly in respect to this proceeding, the residential 1 zone is not to be interpreted as carrying an overriding or automatic expectation that subdivision, with all its subsequent consequences for loss of native vegetation, can or should occur.
4. In contemplating options for future development potential of this site, the findings set out in these reasons should be borne in mind. Within the framework of Clause 52.17 and the associated objectives of the NVMF, the presence of native vegetation with High and Very High conservation significance is a constraint on development that has to be recognised. Conventional subdivision that would result in a substantive loss of the highly significant native vegetation is not the answer. The native vegetation requires recognition of its conservation significance and biodiversity values with appropriate management through use of reserves nominally in public ownership.
5. What is required in an instance such as this is thinking beyond conventional outcomes. An innovative solution that respects the conservation significance and biodiversity values of the native vegetation is called for. One solution may be to integrate a more intensive subdivision / development on land with lesser or no conservation significance while drawing on the higher valued vegetation to set the surrounding ambience. Such an outcome should be viewed as a positive outcome that provides a unique character for such a development.

[1] Villawood Properties Pty Ltd v Greater Bendigo CC [2005] VCAT 2703

[2] Victoria's Native Vegetation Management - A Framework for Action. Department of Natural Resources and Environment (2002).

[3] The full set of five grounds given in the Notice of Refusal were set out in Mr McIlrath's written submission. This submission, those of the DSE, Mr Scally, expert witness reports and all other written submissions and materials tendered in the hearing are retained on the tribunal's file.

[4] The permit application was referred to DSE pursuant to s.55 of the Planning and Environment Act 1987.

[5] One letter of support for the subdivision was also received by the tribunal.

[6] A number of objections also express concern over the loss of property values resulting from the loss of their amenity. The perceptions of property values is not one that the Tribunal can take into consideration in planning matters.

[7] Section 4 of the DSE submission.

[8] This species is not listed under the Flora and Fauna Act 1988 but is listed as vulnerable under the DSE's Advisory List of Rare or Threatened Plants in Victoria - 2005.

[9] Fauna Assessment of land at 160 Riddell Rd Sunbury, Victoria. Ecowild January 2006.

[10] Action Statement No 169 prepared by the Department of Sustainability and Environment.

[11] Ecowild January 2006 report, at section 6.4.2, page 11.

[12] Urban Alliance Corporation v Hume CC [2008] VCAT 1328.

[13] The classification/zoning of vegetation under the Felix Botanica assessment [presented in Map 2] was adopted by Dr Mason in his evidence and forms the basis of the native vegetation retention under the subdivision proposal.

[14] Since this decision Amendment VC49 has removed this exemption from Clause 52.17, a matter discussed later in these reasons.

[15] [2008] VCAT 1328 at [11] to [23].

[16] Annexure E and section 5.2 of Dr Mason's written evidence report (dated 5 October 2008)

[17] Table 6 in Appendix 4, Victoria's Native Vegetation Management - A Framework for Action. Department of Natural Resources and Environment (2002).

[19] A copy of a plan was tendered which apparently was prepared by Council officers showing an 11 lots layout and which DSE indicated was preferable to the proposed 16 lot layout.

[20] [2005] VCAT 2703.

[21] Coughlan Civil Pty Ltd v Yarra Ranges SC [2007] VCAT 1923; I & M Hamilton and R & G Smith v Nillumbik SC [2006] VCAT 18.

[22] [2005] VCAT 2703 at [31].

[25] Table 1, page 27 Victoria's Native Vegetation Management - A Framework for Action.

[26] Native trees are not included in this exemption.

[27] 15 September 2008, with no transitional provisions that apply to this application.

[28] Explanatory report to VC49 issued by the Department of Planning and Community Development.

[29] Exemptions also exist for other urban and non-urban infrastructure, These reasons are, for the purposes of this proceeding, necessarily limited to dwelling / resdiential developments.

[30] The Estate of W G Hiscock & others v Mornington Peninsula SC [2007] VCAT 546 at [42].

[31] Moran Logging Company Pty Ltd v Yarra Ranges SC (Directions re Question of law) [2006] VCAT 1758.

[32] [2006] VCAT 1758 at [16].

[33] A listing of vulnerable under the Department of Sustainability and Environment (2005) Advisory List of Rare or Threatened Plants in Victoria means that the species is 'not presently endangered but likely to become so soon due to continued depletion; occurring mainly on sites likely to experience changes in land-use which would threaten the survival of the plant in the wild; or, taxa whose total population is so small that the likelihood of recovery from disturbance, including localised natural events such as drought, fire or landslip, is doubtful.

[34] Endangered = A taxon is endangered when it is not critically endangered but is facing a very high risk of extinction in the wild in the near future:

[35] The Swift Parrot is also the subject of an Action Statement under the FFG Act.

[36] The area of the assessed patch was limited to the land immediate fronting the site.

[37] One small area of Zone C is left as a reserve.

[38] Page 5 of he Felix Botanica report June 2006.

[39] Clause 21.03-8 makes reference to a diversity of lots sizes and integration with environmental features.

[40] Appendix D: Traffic Engineering Assessment Residential Subdivision 160 Riddell Road, Sunbury. TraffixGroup August 2006.

[41] See table of exemptions under Clause 52.17-6.

[42] [2005] VCAT 27003 at [50].