24 Murray Road, 10-22 Columbia Avenue, 11-23 Webster Street

[2004] VCAT 470

The decision of the Responsible Authority is affirmed and no permit is granted.

The Responsible Authority is directed that no permit issue in relation to Maroondah City Council planning permit application M/2002/963.

Mr Nick Crawford of Maddocks Lawyers (20 October 2003).

Mr Terry Montebello and Mr Nick Crawford of Maddocks Lawyers.. Mr Montebello called the following witnesses:

.Mr Donald W Bartlett and Mr Graham Bower and Mr Keith Loveridge

Mr Ian Pitt SC of Best Hooper and Associates appeared on behalf of the permit applicants. He called the following witnesses:

Mr Ernie Mensforth, Associate, Grogan Richards Consulting Engineers

Mr Adam Muir, Team Leader, Department of Sustainability and Environment

Ms Natalie Gray, Town Planner, Natalie Gray Pty Ltd

1. During the first morning of the hearing Mr Crawford submitted that there was insufficient description in the applicants' material of the trees /vegetation proposed for removal. Pursuant to Clause 22.0, Canopy Vegetation Policy, it is policy that all planning applications be accompanied by a site analysis that includes the following:

* Detailing the location, species and condition of all canopy vegetation

* Identifying the vegetation to be removed or retained

* Buildings and works be designed and sited to allow for the maximum retention of canopy vegetation on the site.

* Development involving the removal of canopy vegetation makes provision for suitable landscaping to enhance the canopy vegetation of the area.

* Canopy vegetation be protected during the construction phases of all development

2. Having heard Mr Crawford's submission, the Tribunal questioned whether there was detailed information on the reasons for vegetation to be removed. On the advice of his client Mr Scully, who appeared on behalf of the permit applicant, sought to adjourn the hearing to provide additional information particularly since the most recent tree survey was likely to be out of date. The opportunity to engage further witnesses, provide further evidence and respond to reports was provided to all parties. Further time was also sought for the hearing.

3. Greater detail, particularly with respect to trees to be removed, was sought. As a result of the Tribunal's direction an updated and revised tree survey was circulated prior to the resumption of the hearing by the experts engaged on behalf of the applicants. Additional witnesses were called on behalf of the Responsible Authority and the permit applicant.

4. There being no objections and pursuant to Clause 64 Schedule 1 of the VCAT Act the Tribunal directed the substitution of the following plans:

5. A detailed history of the Permit application is set out at page 8 of Mr Crawford's submission which is attached to the Tribunal file.

6. In brief, the application was advertised pursuant to Section 52 of the Act, and the responsible authority received 110 objections.

7. A Notice of Refusal to Grant a Permit was issued by the City of Maroondah on 10 July 2003 in relation to the twenty lot subdivision proposal. The Grounds of Refusal are as follows.

The proposed lot sizes and configuration are not responsive to, or in keeping with, the character of the area and have resulted in some building envelopes being impractical for the future siting of a dwelling and outbuildings.

The proposed subdivision layout does not adequately respond to and comply with the policies for residential development and canopy tree protection and enhancement contained within the Local Planning Policy Framework of the Maroondah Planning Scheme.

The proposed subdivision is considered too intensive and does not satisfactorily respond to the site constraints and environmental qualities of the site.

The proposed subdivision fails to meet the objectives of the relevant overlays that affect the site including the Vegetation Protection Overlay and Significant Landscape Overly - Schedule 1.

The proposed subdivision fails to comply with certain objectives and standards of Clause 56 of the Maroondah Planning Scheme, particularly:

Clause C1 - Residential character and identity objective

Clause C3 - Environmental sustainability objective

Clause C16 - Public Open Space provision objective

Clause C20 - Site constraints and features objective

8. An application for review was lodged with the Tribunal on 11 July 2003. Statements of grounds were lodged subsequently by groups of objectors. The application for review and the statements of grounds are attached to the Tribunal file.

9. Amended plans for a seventeen lot subdivision were circulated prior to the hearing.

10. This application for review was lodged on behalf of the Roman Catholic Trusts Corporation in relation to the refusal by the Maroondah City of planning permit application M/2002/963 for the subdivision of land at 24 Murray Road, 10-22 Columbia Avenue and 11-23 Webster Street Croydon.

11. Mr Crawford provided the following description of the site and surrounds on behalf of the Responsible Authority:

The Land is identified in the "Sites of Biological Significance in Maroondah (1997)"

The Land has a total area of 2.677 hectares with frontages to Murray Road (24.69m), Columbia Avenue (168m) and Webster Avenue (164m). The Land's western and northern boundaries abut the rear fences of residential properties that front Murray Road and Banool Court.

The Land slopes generally towards the south with a ridgeline offset some 30 metres west of Columbia Avenue. Extensive vegetation is located on the Land.

The Land is developed with an existing dwelling, which fronts Columbia Avenue, and outbuildings. The Land was formerly used as a monastery for the Benedictine Sisters Community. The Land has been unoccupied for some time.

The surrounding properties generally comprise single detached dwellings on large allotments with large garden areas containing extensive mature canopy vegetation.

Murray Road provides a link to Maroondah Highway (located north of the Land) and Mount Dandenong Road (located south of the Land). Webster and Columbia Avenues are both local access streets.

The Mingarra Retirement Living Estate is situated south-east of the Land.

12. The Tribunal inspected the site and surrounds on the afternoon of Sunday 19 January.

13. A brief summary of the relevant planning controls was provided by Mr Montebello as follows:

As already explained in the principal submission, a planning permit is requires for the subdivision of land and the removal of (native) vegetation pursuant to the following controls:

* the subdivision of land in the R1Z (Residential 1 Zone) - the criteria of Clause 56 to the Scheme is to be applied

* the removal of specified vegetation in the VPO1 (Vegetation Protection Overlay Sites of Biological Significance - Schedule 1)

* the removal of specified vegetation in the SLO1 (Significant Landscape Overlay Ridgeline Protection Area - Schedule 1); and

* the development (including subdivision of land in the DDO2)

14. The tribunal has amplified the titles of the controls using the words in brackets above. A more detailed description of relevant planning controls was provided in Mr Crawford's submission to the hearing on 20 October 2003.

15. Mr Pitt outlined the application of the Residential 1 zone as follows.

The land is zoned Residential 1 with a purpose for residential and ancillary development, including to provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households and to encourage residential development that respects the neighbourhood character. A permit is required to subdivide the land and is subject to meeting the requirements of Clause 56. Planning permission is also required in relation to the relevant overlays and particular provisions of the Planning Scheme.

16. As stated at Clause 43 of the Planning Scheme:

If an overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of this scheme.

17. Subject to certain exceptions including those in relation to the construction of a dwelling and ancillary buildings and works, pursuant to Clause 52.17, a permit is required to remove destroy or lop native vegetation, the area of the Subject Land being greater than 0.4 hectares. The decision guidelines include the requirement to consider as appropriate the goal of Net Gain expressed in Victoria's Native Vegetation Management - A Framework for Action (Department of Natural Resources and Environment 2002) and relevant operational guidelines.

18. Before deciding on an application to subdivide land in the Residential 1 zone, the Responsible Authority and hence this Tribunal must consider as appropriate the State Planning Policy Framework and the Local Planning Policy Framework including the Municipal strategic Statement and local planning policies.

19. State planning policy at 15.09, Conservation of Flora and Fauna, encourages amongst other things that:

Planning Authorities should utilise mapped information from the Department of Sustainability and Environment to identify areas of significant vegetation and biodiversity.

Planning and responsible authorities should have regard to Victoria's Native Vegetation Management - a Framework for action (Department of Natural resources and Environment 2002). If native vegetation is proposed to be removed as part of a land use or development proposal, planning and responsible authorities should achieve a Net Gain outcome as defined in the Framework. This is achieved firstly, as a priority, by avoiding adverse impacts, particularly native vegetation clearance, secondly, if impacts cannot be avoided, by minimising impacts through appropriate consideration in planning processes and expert input into project design or management ; and thirdly, by identifying appropriate offset actions. The criteria for determining the appropriate response and offsets are contained within the Framework.

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

20. The landscape character of the Wicklow ridge area, with its treed appearance, has key value to Maroondah as expressed in the MSS.

To what degree does the Native Vegetation Framework apply?

21. The incorporation of Victoria's Native Vegetation Management - A Framework for Action into the Maroondah Planning Scheme (and all Planning Schemes in Victoria) occurred through Amendment VC 19 to the Victoria Planning Provisions, which was gazetted on 24 July 2003. Amongst other decision guidelines Clause 52.17 requires consideration of the following as appropriate:

The goal of Net Gain expressed in Victoria's Native Vegetation Management - a framework for Action (Department of Natural Resources and Environment 2002) and relevant operational guidelines

22. Mr Pitt raised the issue as to the weight to be given and the extent of application of the Native Vegetation Framework(NVF), since the evaluation guidelines have not yet been finalised. He called Mr Adam Muir team leader, Native Vegetation Management DSE. The Tribunal was provided with a copy of a letter dated 19 November 2003 from Chris McRae, Director Land Management Group, Department of Sustainability and Environment. The letter was addressed to the Chief Executive Officers of municipalities in Victoria and provided advice on the following:

The status and implementation steps of Victoria's Native Vegetation Management - A Framework for Action, and

The process for exempting native vegetation removal from the need to obtain a permit when destroying burrows

23. The letter has appended to it "Attachment 1"entitled "Victoria's Native Vegetation Management - A Framework for Action - Status and Implementation Update October 2003". Under the heading Background in the Attachment is the following statement:

The government released its policy on Native Vegetation, Victoria's Native Vegetation Management - A Framework for Action, in August 2002. The policy has the central goal of a Net Gain of Native Vegetation - that is a reversal across the entire landscape of the long-term decline in the extent and quality of native vegetation, leading to a Net Gain. The Framework also introduces a consistent state-wide valuation method for native vegetation.

The amendment requires planning and responsible authorities to seek to achieve a Net Gain outcome when assessing land use development proposals that involve native vegetation removal by following the three step approach:

* If impacts can not be avoided, to minimise impacts through appropriate consideration in planning processes and expert input to project design or management

The Planning Guidelines for Native Vegetation Retention Controls issued by the Department of Conservation and Natural Resources in 1996 are currently under review. New guidelines are being prepared that will provide specific guidance on the operational aspects of achieving Net Gain in the planning system, in line with the framework, as well as an update of the 1996 Planning Guidelines. These new guidelines are referred to as the Operational Guidelines.

There is recognition, that in the interim until these Operational Guidelines are issued, Councils, and applicants cannot be expected to require (or undertake) the full details of the Net Gain approach. In particular, application of Table 6 in the Framework to decision making - which includes the response to the proposal, the use of habitat hectares, detailed offset calculations and so on - cannot be effectively undertaken until the necessary explanatory documentation is provided. In the interim the broad principles of Net Gain (specifically the three step approach) should be used in decision making for applications to remove native vegetation. These broad principles to achieve Net Gain have been adopted by DSE in its role as a referral authority since the Framework was released in August 2002.

Some applicants are already attempting to demonstrate best practice by trialling the full Net Gain approach to their assessments for permit applications. The Department encourages this approach, particularly with state Government agencies such as VicRoads and will continue to provide technical assistance and guidance where appropriate. Working through the details of the Net Gain process with willing proponents has provided valuable opportunities to clarify and refine issues for Operational Guidelines. We have also developed a better understanding of how the Net Gain approach can be used to inform the design and layout of development proposals.

26. The above letter and attachment suggests that the Operational guidelines would have been finalised before the end of 2003. Mr Muir confirmed that the letter was provided to clarify the Department's current position with respect to implementation of the Native Vegetation Framework in the Planning scheme and to give advice as to how the NVF was to be applied.

27. It is well established through a number of Tribunal decisions that planning policy guides discretion but does not contain mandatory requirements. However, in this particular case, State planning policy requires consideration of the net gain goal of the NVF and the Framework document is listed as an incorporated document at Clause 81. Consideration of the net gain goal is also required as one of the decision guidelines to a Particular Provision at 52.17 and referred to in Clauses 11.03-2, 15.09-2.

28. The principles set out in State Policy and the incorporation of the Native Vegetation Framework document at the very least place a stronger emphasis on the value of and the need to increase native vegetation for habitat, water conservation and other purposes. Given the evidence of Mr Muir, without the operational guidelines being in place, at the very least consideration is required of how adverse impacts on vegetation could be avoided and, should it be necessary to remove that vegetation, replacement should be at higher levels such that a net gain is achieved. The Tribunal considers that the overall intent and principles of the Framework document, carry substantial weight even if the operational guidelines for the use of the document have not yet been finalised.

29. As there are more fundamental problems in relation to the response of the proposal to the planning controls the Tribunal will not be undertaking a detailed consideration of the offsets which may be associated with the habitat hectares assessment.

Response of Review Proposal to Planning Controls regarding Vegetation Significance

30. Part of the site is subject to a Vegetation Protection Overlay Schedule 1 (Sites of Biological Significance) and is shown on copies of Planning Scheme maps accompanying Mr Crawford's and Ms Gray's submissions. The area to which the VPO applies is irregular in shape, generally located in the eastern part of the site and shown on plan S108P/12 version F attached to the Tribunal file. The Statement of nature and significance of the vegetation to be protected for the VPO is as follows:

Remnant indigenous vegetation communities in Maroondah now account for only 3% of the municipality. This vegetation is significant for its biological diversity, habitat and floristic values. The vegetation contains species and communities that are significant at a local, municipal, regional, state and national level.

The retention and enhancement of the remnant vegetation is critical to maintaining and increasing biological diversity in Maroondah. Remnant vegetation provides the basis for the development of wildlife corridors for native flora and fauna.

Indigenous vegetation contributes to the maintenance of the natural systems of Maroondah.

In addition, the attractiveness of many areas of Maroondah is created by the presence of remnant indigenous vegetation.

31. The reference for the Statement of Significance is as follows:

Sites of Biological Significance in Maroondah Vols 1 & 2, G. S. Lorimer, J. C.Reid, L. P. Smith and H. Moss, 1996

32. Referring to the VPP Practice Note, Writing a Local Planning Policy, Mr Pitt submitted that reference documents do not have the status "to delegate discretion from the Scheme". From First Katone Pty Ltd vs City of Yarra and ors (2000) VPR 320 at 333, Mr Pitt quoted comment that the City of Yarra should give consideration to setting out their Demolition Guidelines in the Planning Scheme rather than locating them in an external document, which may prove tempting to change. The Tribunal acknowledges that the foregoing comments with respect to `reference documents' may well have been appropriate in the circumstances of the decisions cited, particularly if the documents contained defacto planning controls. It was however a requirement for the preparation of VPP Schemes that Statements of Significance for Vegetation Protection Overlays contain a `reference' to support the significance or provide the scientific basis for the Statement of Significance. At page 42 of the Manual for the Victoria Planning Provisions, under the heading "The VPP in Detail", the following description of the use of the Vegetation Protection Overlay is provided:

This overlay can apply to any form of vegetation, whether trees or not and whether native or not. The significance of the vegetation being identified must be stated, together with the intended outcomes of the requirements being imposed. Generally, some reference for the status of the vegetation would be expected in a reference document.

33. Rather than being a set of planning guidelines, in this case the "Reference" to the Statement of Significance in VPO1 is considered to be a means of providing a supporting basis from an expert or scientific study to justify the use of the overlay. As these references can be very lengthy the Tribunal would not suggest that they be included in the Scheme provisions. The reference in this case was co-authored by Dr Lorimer, who gave evidence at the hearing. While Dr Lorimer agreed that he did not have specific qualifications in botany, he stated that his co-authors of the reference to the Vegetation Protection Overlay have qualifications in botany, natural resource management and horticultural science. The Tribunal notes that this reference was accepted as a basis for the use of the overlay control in the Maroondah Planning Scheme which was approved following a Panel process.

Objectors' and Responsible Authority's concerns regarding Response to Vegetation

34. The objectors' statements of grounds included concerns regarding potential loss of vegetation from the perspective of biodiversity as well as in relation to potential impacts on character. They provided photographs of vegetation on the site, including ground plants which flower at other times of the year than the Tribunal's January inspection time.

35. The Officer's report to Council dated 27/06/03 states the following with respect to the Site of Biological Significance at the review site:

The subject land is listed in Sites of Biological Significance in Maroondah (Lorimer 1997) as Site 40. This site is noted as containing good biodiversity, including 3 species of regional significance and 7 species of municipal significance and a total of 114 indigenous species. As such this site does represent a unique and valuable area for collection of seed and propagation / regeneration material for use in local regeneration projects.

The proposal to subdivide the land will have an impact on the existing vegetation, both canopy and understorey and ground flora. Capacity for collection of propagation materials will be altered as a consequence of subdivision of the land and resulting loss of vegetation particularly ground flora species.

That the biodiversity of the site will be "destroyed" by the proposed subdivision is an exaggeration of the likely impacts. However, over-development of the site, even if addressed through the vegetation rescue and reinstatement proposed (Carr and Way, 2002), is likely to result in loss of significant flora populations.

The assessment of the Ecological Vegetation Class (Carr and Way 2002) as Class 16, Lowland forest, appears to be a generalised assessment of the site's vegetation. The site would be more accurately be (sic) described as a combination of Ecological Vegetation Class 127, Valley Heathy Forest and 128, Grassy Forest.

36. Dr Lorimer identified vegetation, generally within the VPO area on the site, as Valley Heathy Forest, using the mapped information established by DSE and required for use by Clause 15.09 to identify areas of significant vegetation and biodiversity. Having described the vegetation as Lowland Forest at an earlier stage of the application, Mr Carr has since adopted the Ecological Vegetation Class (EVC) of Valley Heathy Forest.

37. While differing in their opinion of the emphasis to be given to the habitat hectares methodology, Mr Carr and Dr Lorimer nevertheless both made assessments of the significance of the vegetation using the work sheets associated with the Native Vegetation Framework document. Mr Carr and Dr Lorimer provided critical comment of each other's assessment. In summary they did not agree as to the extent and value of remnant native vegetation, the extent and type of weed invasion and the degree of modification of vegetation at the review site.

38. Mr Carr concluded that, in terms of the Native Vegetation Framework methodology, part of the site contains Valley Heathy Forest vegetation of High significance. He was also of the view however that the reasonably intact Valley Heathy Forest was limited to a total area of approximately 0.5ha. He stated that using methods other than the Native Vegetation Framework the remnant vegetation was considered to be of local significance. As an independent botanist and ecologist, rather than in his use of the habitat hectares methodology in the NVF, Mr Carr was of the view that much of the vegetation at the review site is modified and degraded, largely as a result of weed invasion and that overall the native vegetation at the review site is at most of local significance..

39. Dr Lorimer rated the vegetation significance of part of the site, shown on the aerial photograph in his report, as Very High in relation to the same Native Vegetation Framework methodology. As set out in the NVF, the implications of a "high" ranking include that clearing is generally discouraged, while a "very high" ranking would require Ministerial approval to clear the land. Dr Lorimer was of the view that the area of reasonably intact Valley Heathy Forest was larger than that arrived at by Mr Carr.

40. Mr Pitt submitted that Mr Carr has qualifications in Botany while Dr Lorimer does not. Dr Lorimer is not trained as a botanist however the Tribunal considers that he co-authored the reference document to the VPO Schedule relevant to the review site. In addition he stated that he has training in the use of the NVF methods for assessment of vegetation significance. His experience as a scientist is considered more than sufficient to analyse the use of NVF formulae in considering the ranking of the vegetation. The Tribunal concurs with Dr Lorimer's view that Mr Carr did not use the "modified" column correctly in terms of the written instructions and within the approach of the habitat hectares methodology. This means that his worksheet scores for the three highest scoring quadrats are lower than they should be. However, given the evidence of Mr Muir the Tribunal does not consider that it is yet necessary to give full weight to the habitat hectares methodology. Nevertheless even if, as suggested by Mr Carr, much of the site is not of a `very high' or `high'level of significance (on other bases than the NVF habitat hectares assessment) the State Policy reference to the incorporated NVF places a significant hurdle in terms of accurate assessment and testing of alternative options when considering removal of vegetation. In addition, the proposal still needs to be assessed against the overall NVF principles in the attachment and also against the other planning scheme provisions.

41. It is State Planning Policy that Planning Authorities should utilise mapped information from the Department of Sustainability and Environment to identify areas of significant vegetation and biodiversity. While Mr Carr was of the view that mistakes can be made in the mapping of vegetation, the relevant EVC is Valley Heathy Forest. The Tribunal does not have evidence before it to question the mapping and ranking of this classification for the review site.

42. As set out above, the VPO contains a reference to biological significance at the review site and this can only be changed through PS amendment.

43. As will be amplified further in these reasons, Mr Galbraith's report provided the preferred evidence on tree size and identification and this evidence supports Dr Lorimer's assessment that some trees have been incorrectly sized and identified in the reports on behalf of the permit applicants. The Tribunal is not convinced that the condition and significance of trees has been assessed on behalf of the permit applicants in a sufficiently clear and accurate manner to inform the habitat hectares assessment, and the site analysis and design response for the proposed subdivision. This will be detailed further in these reasons.

44. The initial description of the vegetation, which was part of the site analysis informing the initial design of the subdivision, was provided in John Patrick's report of October 2002 as follows:

The subject site at 24 Murray Road, Croydon has been subjected to a two stage vegetation assessment, firstly a rapid visual assessment and secondly a more detailed assessment on a tree by tree basis. The latter assessment, in conjunction with Ecology Australia, allowed for the provision of a detailed Tree Survey, attached as Appendix 1.

A preliminary vegetation assessment indicated several points:

Much of the existing vegetation within the Vegetation Protection Overlay consists of indigenous tree species, the majority of which are to be retained within the proposed subdivision;

There has been significant woody invasion into the site including Acacia elata (Cedar Wattle) and Pittosporum undulatum (Sweet pittosporum);

Vegetation surrounding the existing dwelling consists of a mix of planted exotic and native vegetation some of which are to be retained in the proposed subdivision

45. Following the additional tree survey work conducted by Mr Patrick's office, seven additional trees, including a group of immature eucalypts, were described by Mr Greenwood as being appropriate for retention but no change was made to the proposed layout of subdivisional lots and building envelopes.

46. Mr Galbraith questioned the accuracy of the tree survey information, which was provided on behalf of the permit applicants. He gave evidence with respect to tree size and condition, identification of tree species, leaning trees, `missing' trees and safety. The Tribunal has inspected the site and noted Mr Galbraith's critique was accurate with respect to a number of those matters. The Tribunal could not check the height of trees, however Mr Galbraith stated that he had used a clinometer and also gave the degree of accuracy of that method. The Tribunal could confirm the width of tree canopies and some trees missing from the survey with reasonable accuracy. In particular there were instances where the dimensions of tree canopies were larger than set out in Mr Patrick's report if on occasion lopsided (eg trees 68 and 69).

47. Although Mr Patrick' report stated that diameter of tree trunks at breast height is more important than tree canopy in terms of calculations regarding tree for protection, the dimensions of trees also inform decisions about significance of trees, canopy cover contribution (see the Significant Landscape Overlay) and the location of building envelopes. It could also be expected that size would be an indicator of maturity (eg the range of heights for a mature or immature tree of certain species can be obtained from references) and thus inform the estimation of Useful Life Expectancy and tree protection zones. As stated by Mr Galbraith no age studies were provided on behalf of the permit applicants. The measurement methods used by Mr Patrick and his staff have not been clearly explained in the relevant reports.

48. The size and quality of tree canopies also inform safety and landscape value against the SLO, which emphasises the continuity of tree canopy regardless of whether species are native or exotic. The proposal is considered against the SLO later in these reasons

49. During the inspection the Tribunal noted that there were still some substantial trees missing from the survey (eg near tree 86). While Mr Greenwood acknowledged that there were trees missing from the survey he expressed the view that some seven could be retained. On the latest tree survey plan a number of trees are shown however with no indication as to whether they are intended to be retained or removed.

50. Tree identification is clearly important in asessing the significance of vegetation, and also forms part of the calculation of TPRZs as some species are less tolerant of construction impacts than others. Accurate identification is also important for landscape character assessment. Mr Patrick stated that Mr Carr assisted with his consideration of establishing which trees were most suitable for retention given their appropriateness for development. In a number of instances tree species, including eucalyptus globoidea or White Stringybark, were not identified or were broadly classed as eucalyptus species in the tree survey table. White stringybark is one of the key trees in the vegetation type at the review site and the significance of the species in the subject location was described at p13 of Mr Carr's earlier report as follows:

The population of White Stringybark (E.globoidea), a species of eastern Victoria and New South Wales is at the extreme western limit of its distribution in Victoria (Brooker and Slee 1996) which lifts its significance considerably (see significance criteria Appendix 5). The population of White Stringybark numbers about 32 specimens and most are in good condition, and some are fine specimens (Plates 2 and 5, Attachment 1). The statistics for the population of White Stringybark are given in the Tree Survey by John Patrick Pty Ltd (Patrick and Tallon 2002). It is particularly important to retain as many White stringybark trees as possible in the development area.

51. With respect to tree identification the applicant's team acknowledged that they had not correctly identified examples of eucalyptus globoidea. The Tribunal is of the view that this has implications for assessing the significance of vegetation on site and for the design of the subdivision. The Tribunal was told that Mr Patrick prepared the tree survey in collaboration with Mr Carr. It is somewhat surprising to the Tribunal that all of the eucalyptus species were not identified or located given the collaboration between these experts.

52. In addition to informing significance of vegetation, the correct identification of tree species also informs the Tree protection zone calculations in Matheny and Clark., as referred to by Mr Patrick. These calculations are in part dependent on the tolerance of tree species to impacts (which would be assumed to require accurate species identification). The tree age or stage of the tree in the life cycle is part of the calculation and this would be in part dependent on reasonably accurate measurements of the size of tree. As stated earlier in these reasons there were no age studies provided on behalf of the permit applicants.

53. As stated earlier, the Net Gain approach as currently advised to municipalities includes the first step of avoiding adverse impacts, particularly through vegetation clearance. Under the heading "Ensuring that Individual Protection and Clearance Decisions Contribute to Our Net Gain Goals", at page 22 of the Native Vegetation Framework it is stated that:

* An appropriate assessment of any potential impacts on native vegetation and management options that avoid clearing

54. Similarly the decision guidelines of the VPO require consideration of the reasons for removal of vegetation but also require consideration of the practicality of alternative options which do not require the removal of the vegetation.

55. Trees to be removed, as shown on plan 03-147 TS dated November 2003 prepared by John Patrick and Associates, were described in the Legend as:

"includes weed species, trees in poor condition and species unsympathetic to the native landscape setting"

56. This description appears to provide the basis of the decision to retain or remove trees and the Tribunal cannot find any discussion of whether or not there are layout or management options that would avoid removal of trees subject to planning control.

57. The Tribunal notes that there are trees, which Mr Galbraith identified as being worthy of retention, that are within or close to building envelopes. These are trees 10, 28, 56, 57, 202, 260, 262 and 357. The Tribunal considers that the reasonably healthy state of these trees should have been considered in more detail in the site analysis and that Mr Greenwood's evidence is reduced in weight as his detailed assessment was made after his report was lodged. Consideration should also have been given to the overlay provisions which allow for the removal of trees which are within three metres of buildings as this has the potential to further reduce the canopy that would be available. The accurate assessment of the location and condition of trees should have preceded the decisions to locate building envelopes and it is not sufficient reason to remove the trees if they are then found to interfere with the proposed siting of building envelopes. Revision of the plans was an option after the revised tree survey was undertaken.

58. The VPO decision guidelines also require consideration of the habitat value of vegetation and as stated by Mr Carr, faunal habitat can be provided whether a tree is alive or dead. Hence the intended removal of trees just because they are in "poor" condition does not take account of potential habitat value.

59. While certain weed species can be removed without a permit, the Planning Scheme the SLO encourages the retention of canopy trees whether indigenous or not. The decision to grant a permit for the removal of such trees requires a rationale other than "trees in poor condition, species unsympathetic to the native landscape setting". Even at the level of the general principles of the NVF rather than detailed calculations of habitat hectares, the Net gain approach suggests that the impacts on vegetation should if possible be avoided and if unavoidable be minimised. Having considered the material provided, the Tribunal is of the view that an integrated and accurate approach to the consideration of all of the vegetation, based on all of the factors in the relevant overlays and on the NVF principles is warranted and has not been demonstrated sufficiently.

60. Questions were raised as to how future residents would deal with the management of very large trees in backyards. Mr Greenwood stated that it is not uncommon in woodland areas developed with houses to have tree canopies over roofs as is the case on the opposite side of streets addressing the review site. In relation to safety, Mr Galbraith was surprised at the lack of detailed recommendations for weight reduction of limbs of large trees. Mr Galbraith stated that the dominant indigenous trees are often 22-25m in height, yet they were only given a height of 18m in the tree survey. He went on to say that one could not be confident of medium to long term retention of any large indigenous leaning tree which has a residence built down lean from it and within its fall trajectory and that this is an example of the importance of estimating heights correctly. Given that a number of trees are very tall, and that an example of this problem was given, the Tribunal concurs with the view that allowance for tree lean should have been a factor in estimating building envelope offsets. In this particular case many of the trees earmarked for retention are very large and appear to be larger than the majority of trees close to or over dwellings in the vicinity. The Tribunal considers that particular attention to detail is needed in the establishment of tree heights and building envelopes. Given that the tree survey is less than accurate and that there were no specific guidelines with respect to weight reduction of tree limbs or other safety measures in the relevant reports, the Tribunal is not convinced that sufficient attention has yet been given to this issue.

Likelihood of Future Survival of Vegetation to be Retained

61. Both Mr Greenwood and Mr Galbraith agreed that the protection of roots was critical in terms of the survival of trees. However in the absence of safety measures, as discussed above, future residents may be concerned about potential falling limbs and may well seek to have the tees removed.

62. The NVF also requires consideration of likelihood of survival of vegetation including trees, understorey and ground level vegetation. Dr Lorimer suggested that the vegetation surrounding Mr Carr's five areas of significant vegetation provide basic habitat and support the ecological functioning of the more significant areas. He also questioned the effect on understorey survival with the proposed removal of part of the tree canopy. These aspects do not appear to have been considered with respect to the proposed open space, where the permit applicants agree that there is vegetation which should be retained, or for other areas of ground and understorey vegetation. In Mr Patrick's landscape regime, understorey vegetation and groundcover plants would be effectively destroyed or replaced except in the POS. The Tribunal is not satisfied that an integrated approach has been used in regard to consideration of the possible protection of more valuable vegetation, particularly in the understorey or at ground level, or that reasonable efforts have been made to consider possible methods for the reversal of weed invasion.

Objectives For Enhancement And Increase Of Indigenous Species (NVF and VPO)

63. The vegetation protection objectives of Schedule 1 to the Vegetation Protection Overlay are as follows:

Ensure the maintenance and enhancement of the biological diversity of the flora and fauna of Maroondah

Achieve an increase in the presence of indigenous species in the natural environment

64. The Tribunal notes that the intent of the VPO is not just to maintain biological diversity but to enhance it.. This intent has some similarity to the Net Gain objective of the Native Vegetation Framework in terms of the concept of an increase in indigenous species and in biological diversity. Unlike the Native Vegetation Framework, however, the VPO contains objectives for the enhancement of biological diversity within the municipality of Maroondah as distinct from the wider region or State. Also the decision guidelines require consideration of the role of vegetation in maintaining and enhancing biodiversity in Maroondah. Mr Carr recommended the use of salvaged material for amenity plantings and street trees and collection of seed for regeneration. In terms of new or replacement canopy trees the proposed landscape regime includes stringybark trees along Benedict Court. The Tribunal was not however provided with any real assessment as to whether these actions are likely to achieve an increase of indigenous species or enhancement of biological diversity, including through the retention or enhancement of habitat vegetation for fauna, within the municipality.

65. The NVF emphasises a number of roles of native vegetation, including the role of habitat in maintaining and increasing biodiveristy. The decision guidelines for the SLO1 also include the need to consider

s The role of the vegetation in providing vegetation and habitat corridors throughout Maroondah and the region.

66. Dr Lorimer referred to the review site as a stepping stone in a linked series of habitat spaces. Mr Carr questioned whether this is so and concluded that there is relatively little evidence of high diversity of fauna. Mr Carr's report set out the techniques used by his consultancy to investigate the faunal qualities of the site. In terms of methodology and observations the Tribunal prefers Mr Carr's evidence regarding existing faunal diversity. Nevertheless, the Native Vegetation Framework places emphasis on the availability of hollows old dead or dying trees etc for the potential use by fauna. As stated in Mr Galbraith's report the assessment of trees and other vegetation for potential habitat value (and not just existing habitat) has not been explained as part of a rationale for tree retention or removal. The basis of the decision to remove the vegetation does not include any discussion of possible alternative solutions for the site. Consideration of alternatives could include whether the removal of weed species would improve habitat for some species. The Tribunal notes that the proposed public open pace would possibly provide some habitat for fauna but considers that overall the permit applicants have given only limited attention to potential habitat in the design response.

67. In the Statement of nature and key elements of landscape, Schedule 1 to the Significant Landscape Overlay - Ridgeline Protection Area, a high value is placed on the canopy treed character of the Wicklow ridge from both a landscape and biodiversity perspective. As set out in the relevant Statement of nature and key elements of landscape, Schedule 1 to The Significant Landscape Overlay Ridgeline Protection Area.

Canopy trees are the main element of the urban character of Maroondah. Canopy trees in particular soften the impact of buildings in the environment and provide a distinct leafy character to Maroondah.

The continuous nature of the canopy vegetation throughout the ridgelines of Maroondah provides a strong character element and is much valued by the community. The canopy vegetation is a defining element of the ridgelines of Maroondah.

68. Photographs provided by Mr Bartlett and Mr Bower at the hearing show the visual importance of the treed ridgeline from a number of viewpoints in the surrounding area including major roads. It is clear that the Wicklow ridge is valued by the local community and that vegetation on the review site is a feature in that character.

69. The Tribunal notes that in the SLO applicable to the whole site, the decision guidelines which must be considered are:

. The effect of the proposed removal of the vegetation on the character and canopy of the area.

. The significance of the vegetation to the character and environment of the area.

. The role of the vegetation in providing vegetation and habitat corridors throughout Maroondah and the region.

. The role of the vegetation in contributing to and maintaining biodiversity and the landscape of Maroondah.

. The benefits of requiring replanting elsewhere on the site.

. The reason for removing the vegetation and the practicality of alternative options which do not require the removal of the vegetation.

. The effect of the building on the profile of the ridgeline or skyline.

70. While certain weed species including acacia elata do not require a planning permit for removal the SLO places emphasis on canopy tree vegetation, with the exception of certain specified weeds, regardless of whether the vegetation is native or not. In the vicinity of the site, the inspection demonstrated the mix of native and exotic vegetation. For example there are native trees on roadsides, a row of mature cypress trees as the backdrop to housing opposite the review site and both native and exotic species in gardens.

71. The Tribunal notes that Mr Patrick selected a native planting theme. There is however no indication of the reasoning that took place to establish this nor is there any discussion of the surrounding landscape and ridgeline character as an influence on the proposed landscape theme. While the report mentions the Significant Landscape Overly, there is insufficient reasoning given for the removal of exotic vegetation and no consideration of alternative options which do not require the removal of this vegetation. The Tribunal considers these omissions to be major failings in the preparation of the plans.

72. As submitted by Mr Pitt, through the DDO the character, in terms of lot size, is interpreted as similar to that of surrounding neighbourhood. If it were appropriate to consider lot size without considering the details of vegetation significance and local landscape character, the lot sizes proposed would be reasonably appropriate given the average size of lots in the surrounding area. In this case, as submitted by Mr Montebello, it is nevertheless clear that the particular vegetation issues as controlled by planning scheme provisions cannot be separated from the design of the subdivision.

73. Dr Lorimer was of the opinion that part of the property has native understorey cover of below 25% and remnant trees that are absent or significantly sparser than the natural cover. In these areas he did not believe that any significant environmental harm would be done through the loss of the sparse native understorey plants. While some areas of less significant native vegetation may be appropriate for residential use, at this stage the proposal is not considered to be based on an appropriate assessment of the varying landscape character (including exotic character) of the site and surrounds and on accurate tree surveys.

74. A report on traffic issues was lodged on behalf of the permit applicants. Mr Montebello did not seek to cross examine Mr Mensforth. Having read his report, the Tribunal accepts Mr Mensforth's conclusions. In summary, the conclusions are that the modest increase in traffic associated with the subdivision can be accommodated on existing local street without compromising either the capacity or character of those streets, and that the design of Benedict Court would satisfactorily accommodate the traffic and parkign demands as a result of the proposed subdivision.

75. The responsible authority made it clear that they did not intend to own or manage the land included in the site, and the Tribunal notes that the land is not parkland. During the inspection on a Sunday afternoon in January, the Tribunal noted individuals and families, some with dogs, and a lone dog walking through the review site. Presumably local residents use the land regularly for recreational purposes as there are a number of formal and informal tracks onto and through the land and some rubbish such as soft drink cans was observed during the inspection. The Officer report states that the City of Maroondah does not intend to buy or manage the land. The Tribunal notes that the site is private land and is not intended to be used as parkland.

76. The Tribunal notes from the submissions the concern that it can be difficult to manage native vegetation in the private and public domain. It is also noted that the VPO Schedule 1 applies to some of the vegetation in the public domain on the road verge. Given that the Tribunal is not satisfied with the basis for the subdivision and building envelope plans, detailed consideration of management issues will not be included in these reasons. The Tribunal nevertheless comments that the current proposal only contains guidelines for the protection of trees during construction. Any future proposal would need to address in detail the issues associated with the long term maintenance of retained vegetation given the objectives and decision guidelines of the overlay controls.

77. The particular site is one where significant native vegetation has been identified. A number of planning controls and policies reinforce the need to carefully consider the implications of removing or altering such vegetation through development. Further the planning controls place strong emphasis on retention of significant vegetation, management and net increase of vegetation for the purposes of local landscape character (native and exotic vegetation), enhancement of native vegetation for environmental, habitat and scientific benefit. The relevant overlays and policies include objectives for a gain or enhancement of habitat, which is intended to occur both within the municipality and at the level of the State and bioregion.

78. An analysis of site characteristics against the Planning Scheme criteria, and site analysis is not just a descriptive process but rather an identification and a balancing of opportunities and constraints. The success of the site analysis, and hence the design response which flows from it, depends on accurate information and a reasoned and integrated approach to planning for the site. This integrated approach is particularly important in the consideration of native vegetation and habitat as the basis of ECVs is an ecological one.

79. The headings of planning scheme controls were cited in Ms Gray's report and copies of the controls were included as appendices to her report. There is very little explanation for the basis of the design response in relation to the decision guidelines of the overlays. A sufficiently detailed rationale is required based on a response to all of the relevant controls and polices in the Planning Scheme.

80. From the inspection the Tribunal agrees that there are a number of instances where the measurements, identification and location of trees has not been accurate in the site analysis.

81. In relation to tree safety, size, species identification and health the Tribunal prefers Mr Galbraith's evidence.

82. In the view of the Tribunal, Mr Patrick's report does not provide sufficient detail of how the decisions to retain or remove trees were made nor is there any detail as to why the particular landscaping theme was adopted. Hence there is little that can be done in the way of assessing those decisions.

83. Given the emphasis on significance of vegetation in the planning controls, the evaluation of the trees and understorey should form a major part of the analysis behind the proposal and the Tribunal considers that a high degree of accuracy is warranted. . A number of errors were made and while these matters could perhaps be seen individually as minor errors or changes and rectified, taken together there is a combination of uncertainties. These uncertainties mean that the Tribunal does not have confidence that the proposed subdivision and building envelope layout takes sufficient account of the need for protection and enhancement of both the significant vegetation on site and the significant landscape character.

84. Ms Gray gave evidence that a number of alternative subdivision proposals had been considered, however no detailed presentation or analysis or balancing of the relevant local policies and the SLO and VPO decision guidelines was provided in her report. In any further proposal for the site an integrated, accurate and comprehensive review of vegetation (ground level, understorey, and tree canopy) is needed at the outset and an approach that considers the Net Gain principles, including that of whether impact can be avoided, is needed.

85. While the Tribunal was told that proceeds from the development would be used for welfare programs and has no doubt that a degree of community benefit would result, this was not described in any detail and is not considered sufficient to outweigh the need to address the outstanding issues. Overall the Tribunal is not convinced that a sufficiently thorough analysis has taken place with respect to vegetation in relation to the relevant planning scheme provisions. Should further development be proposed on the land, the site analysis should include strong emphasis on all of the objectives and decision guidelines of the Overlays and all of the relevant policies.

86. The Tribunal is of course concerned that the future management of native vegetation can be difficult in the private realm. However this is a relatively large site and there may be as yet unexplored alternatives that may or may not rely on conventional subdivision.

87. The Tribunal will order that the decision of the Responsible Authority is affirmed and no permit is granted.