1. No permit shall issue for subdivision and vegetation removal in Permit Application No. PL07/276.

Mr Brendan Seydes, Solicitor of Environmental Defenders Office. Mr Seydes called from Mr Ian Smales, Biologist.

Mr John Block. Mr Block called evidence from Geoffrey Carr, Botanist.

1. This an Application for Review by South Beach Wetlands and Landcare Group Incorporated against the decision of Moyne Shire Council to approve subdivision of land into 43 allotments with associated works and removal of native vegetation.
2. The Grounds for review were:
   1. The proposed use of the land is not compatible with adjacent public land of environmental significance.
   2. The proposal does not recognise the significance of the adjoining wetlands nor seek to mitigate adverse impacts.
   3. The proposal does not protect and enhance flora and fauna.
   4. The proposal does not avoid, minimise or offset loss of native vegetation.
   5. The proposal does not adequately assess or address the environmental and cultural heritage values of the adjoining land.
   6. The proposal does not address the capability of the land for the proposed development, particularly land subject to inundation and flooding and stormwater impacts.
   7. The development is proposed to occur on hilltops, ridgelines and highpoints, contrary to policy.
   8. The proposal will adversely impact on open space in Port Fairy.
   9. The development does not comply with coastal planning policy, including the Victorian Coastal Strategy.
3. The Department of Sustainability and Environment also opposes the issuance of a permit and considers:
   1. The proposal will result in a permanent loss of Latham's Snipe habitat, and is therefore inconsistent with the objectives of the State Planning Policy Framework.
   2. The application does not demonstrate how the "three step approach" to native vegetation management (as outlined in Victoria's Native Vegetation Management - A Framework for Action" has been applied to determine subdivision layout.
4. The respondent/applicant PEMS Pty Ltd claimed:

(a) The applicant has already made many concessions in the design of the subdivision (with the advice of DEH) in order that it has minimal effect on the Latham's Snipe.

(b) The proposed development will have a beneficial effect on the water quality and quantity of the adjacent wetland.

(c) There are alternative foraging and roosting areas immediately adjacent to the subject property (to the east) for these highly mobile birds.

(d) The Federal Department of Environment and Heritage assessed that the subdivision is not a controlled action subject to conditions which the applicant has already accepted.

(e) The development accords with good planning policy and practices.

(f) The subdivision is an infill subdivision located within an existing township and does not require further expansion of utility services to cater for the development.

1. Having considered all submissions and evidence and inspecting the site we consider the matters which need to be determined in this application are:
   • Has the proposed subdivision and vegetation removal adequately responded to State and Local Planning Policy Framework and the provisions of the Moyne Planning Scheme?
   • Will the subdivision have an adverse impact on flora and fauna utilising the site and more particularly the Latham's Snipe?
   • Has the proposal responded to the principles of Victoria's Native Vegetation Framework?
   • Has the subdivision responded to the objectives and techniques of Clause 56 of the Planning Scheme and produces an acceptable outcome?

1. This application proposes subdivision of three remnant super-lots that were created by an earlier 1970/80s subdivision to the south of the subject property in Port Fairy. The three lots (or super-lots) as:
   • Lot 3 LP54806
   • Part of Lot 5 LP54806
   • Part of Lot 4 LP5486
2. The proposed lot sizes in the proposed subdivision vary in size between 622m2 to 1385m2 with the general intention of development of each lot for detached housing. The subdivision involves construction of Hill Street, a section of Mills Crescent and the south west section of Villiers Street that will be formed into a court. There will also be a new street constructed on the western side of the subdivision called Davrelle Street.
3. Lots on the southern side of Mills Crescent and in the eastern section of the subdivision, that is on the super-Lot 3 and super-Lot 4 will be conventional suburban sized allotments reflecting the housing lots in the subdivisions to the south and west of the subject site.
4. Proposed lots on super-Lot 5 comprise conventional suburban sized lots at the eastern end and larger, lower density sized on and around the main rocky outcrop and in close proximity to the Powling Street wetland. Lots 1, 2, 4, 6, 8, 10 and 12 are in excess of 1000 square metres and will have common shared access from Hill Street. The common driveway treatment is intended to avoid vehicular or pedestrian access to the north abutting Powling Street wetlands.
5. All native vegetation is intended to be removed.

1. The subject site comprises three super lots remaining from an earlier subdivision of the South Beach area of Port Fairy. It is about 1km southwest of the Port Fairy central business district.
2. Lots to the south and west of the site were subdivided prior to the 1980'sbut after some time this section of the subdivision was virtually abandoned. The Council obtained possession of the land in the 1990's due to unpaid rates and/or charges. Subsequently the three super lots were purchased by PEMS following what appears to be a lack of interest from any other party/developer.
3. Super-Lot 3 is on the southern side of the subdivision south of an unmade road known as Hill Street. Super- Lot 4 is to the east of the current unconstructed alignment of Mills Crescent and super Lot 5 is located on the northern side of the unconstructed Hill Street alignment and southeast of the Powling Street wetlands area. For most parts the site is moderately undulating with a stony ridge extending across in a southwest to northeast orientation on super-Lot 5 and partly extending/ rising into super Lot 4.
4. The site has an area of about 4 hectares and is substantially cleared except for part of the central stony ridge area that contains native vegetation with weed species interspersed.
5. Powling Street on the eastern side of the subdivision is a constructed road that serves as a collector road. The constructed section of Mills Crescent and Villiers Street are both local streets. Detached houses of various sizes are developed on land to the east of Powling Street and south (in Singleton Street) and a substantial area of open space to the east of the site. The Port Fairy consolidated school is located to the northeast on the other side of Stawell and Villiers Street.
6. The general locality is characterised by post 1960's residential development on and around undulating coastal landscape with some rocky outcrops and low coastal vegetation.

Planning Controls and Policies-Moyne Planning Scheme

1. The subject site, the land to the north including the Powling Street wetlands and to the south and west is zoned Residential 1 whilst the school is zoned Public Use 2. Land on the other side of the unconstructed (closed) section of the southern part of Albert Street is reserved for Education Purposes.
2. The site is subject to two Design and Development Overlays:
   • DDO18 South Beach Area
   • DDO21 Peripheral Areas of Port Fairy
3. Permits are required under the provisions of the Residential zone and the DDO'S for subdivision. A permit is also required under Clause 52.17 to remove Native Vegetation.
4. There are various planning controls and policies and legislative provisions relevant to the consideration of this application. These include:
   • Section 60 of the Planning and Environment Act 1987
   • Decision guidelines in Clause 65
   • Rescode (Clause 56)
   • Decision guidelines to DDO's in Clause 43.02-5 and in Section 3 of DDO21 and DDO18
   • Clause 52.17 - Native vegetation which includes reference to Net Gain principles
   • Reference to the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act) and the Flora and Fauna Guarantee Act 1988

1. At the review hearing each party tabled and read from detailed written submissions. Mr Smales and Mr Carr provided written evidence and were available for cross examination.
2. The Department of Sustainability and Environment was given an additional week to provide written comments about concerns with the subdivision particularly in reference to their ability to respond to the witness statement of Mr Carr.
3. A legal issue raised by Mr Seydes was circulated to each party for an opportunity to make further responses and this was then referred to deputy President Gibson Section 66(1) of the VCAT Act and complementary to this decision.
4. Following the review hearing we undertook an inspection of the subject site and general neighbourhood.
5. After the Hearing and our site inspection we called a brief Directions Hearing to discuss deficiencies in the material provided, particularly related to contours and the details of the common access drives. We will refer to this issue in the body of our reasons.

Will the proposal lead to adverse impacts on the Latham's Snipe

1. The principle concern to the applicants for review relates to the potential impact of the subdivision on Latham's Snipe (Gallinago hardwickii). Latham's Snipe, also known as Japanese or Australian Snipe breed on the Japanese islands of Hokkaido and Honshu.
2. The population of Latham Snipe annually migrates through Papua New Guinea, to eastern Australia and then inhabits various wetlands in southern Australia usually towards the coastal zone. It arrives around late spring until about late January, although these periods are, at times, longer.
3. Latham' Snipe is listed under the provisions of the Environment Protection and Biodiversity Conservation Act 1999(Commonwealth) for migratory species. Clause 15.09 - Conservation of native flora and fauna requires planning Authorities ensure that any changes in land use or development would not adversely affect the habitat values of wetlands and wetland wild habitats designated under the convention on Wetlands life of International Importance (the Ramsar Convention) or utilised by species designated under the Japan - Australia Migratory Birds Agreement (JAMBA).
4. Latham's Snipe feeds, forages and seeks refuge in shallow wetlands and damp paddocks especially with reeds, tussock grasses, taller saltmarsh and other dense ground vegetation,.
5. The Powling Street Wetlands is dominated by Sharp Club-sedge and Narrow -leaf Cumbungi with the remainder of the the reserve and surrounding land, including much of the subject site covered with exotic grasses. Powling Street wetland has been adapted, or at least modified, by the Council over the past 20 years or so to treat urban runoff from nearby residential sub-divisions.
6. Most focus was on the area to the north of and contained on the rocky outcrop on super lot 5 but also the ephemeral "wetlands" to the south of the rocky outcrop on super lot 3. Mr Seydes argued that the significance of the site is reinforced by the extraordinarily large numbers of Snipe utilizing the area relative to other wetlands in South East Australia. He claimed that whilst there was modification lots and access to that part of super lot 5 to address matters raised by DEH the subdivision has not been designed with the intention of avoiding or minimizing the impact on the Snipe using the subject site. He claimed it is not in dispute that the proposed subdivision will result in the loss of Snipe Habitat.
7. Mr Seydes pointed out that there was little difference in evidence between Mr Carr and Mr Smales on the impact of the subdivision on the habitat of the Snipe. Mr Carr's evidence, at page 3 states:

"The current assessment suggests that the Powling Street Wetland satisfies the 'important habitat' definition as defined under the EPBC Act in that it occasionally supports an ecologically significant proportion (i.e. >1%) of the National population of Latham's Snipe (i.e. > 150 birds). Whilst the Wetland is considered `important habitat' in its own right, and snipe clearly use the PEMS land and sometimes in large numbers (e.g. 80-100 birds), data are insufficient due to a lack of systematic surveys across both sites to fully determine the relative importance of the PEMS land to the overall population using both the Powling Street Wetland and PEMS land. While DEH may have determined earlier that the loss of the PEMS land would not significantly impact on 'important habitat', there will nonetheless be an impact on the snipe population at this particular wetland site and the extent of that impact remains uncertain."

1. There was little dispute between the experts that the land within super Lot 5 provided refuge and resting opportunities for the Latham Snipe in one form or another. Information provided at the hearing demonstrated that the numbers of Snipe that visit the site has increased substantially over the past 20 years. Observations of in excess of 80 birds at the wetlands at one time are recorded although it is not clear whether the recordings discriminate between the wetland reserve and the subject site.
2. On the basis of the evidence from Mr Smales and Mr Carr the subdivision will impact on the habitat of the Latham Snipe. The above observations were not contradicted despite the extent of urban development that has taken place around the wetlands. Further the Snipe did not seem to discriminate between native vegetation and weeds rather it was the extent of inundation of the land which made it more or less favourable.
3. We are reluctant to approve the subdivision, particularly on the area contained within super-lot 5 because the impact on the snipe will be the greatest in that area. It is the closest to the wetland area and provides the greatest level of vegetation cover that is suited to the Snipe. Whilst there is debate about impact on the snipe on super lot 3 we are satisfied that habitat on super lot 5 is most at risk.
4. Mr Bock referred to the conditions imposed by DEH as a measure to protect the Snipe however we consider this treatment is inadequate when viewed alongside other issues raised by the subdivision including vegetation removal and a Net Gain assessment and access issues that derive from the DEH conditions.
5. We do not consider that the placement of larger sized lots with unusual vehicular access measures are sufficient to provide protection to the habitat of Snipe. The total removal of all vegetation and then the construction works for access and new dwellings should also be considered. If the vegetation cover is removed completely in one action what then becomes of the habitat on super lot 5?.We appreciate that there will be time limits on blasting but that does not protect the habitat per-se.

Has the proposal responded to the objectives of Net Gain

1. The proposal involves removal of all native vegetation from the site. No Net Gain assessment was undertaken in the permit application.
2. Native vegetation removal is controlled in Clause 52.17 of the Moyne Planning Scheme. An application to remove, destroy or lop vegetation must be accompanied by the following information, as appropriate:
   • A photograph or site plan (drawn to scale) showing the boundaries of the site, existing native vegetation and the native vegetation to be removed.
   • A description of the native vegetation to be removed, including the extent and type of native vegetation, the number and size of any trees to be removed and, if possible, the Ecological Vegetation Class of the native vegetation.
   • Topographic information, highlighting ridges, crests and hilltops, streams and waterways, slopes of more than 20 percent, drainage lines, low lying areas, saline discharge areas, and areas of existing erosion.
   • A written explanation of the steps that have been taken to:
     • Avoid the removal of native vegetation, where possible.
     • Minimise the removal of native vegetation.
     • Appropriately offset the loss of native vegetation, if required.
   • A copy of any property vegetation plan that applies to the site.
3. The only information supplied in the application was a very basic hand drawn diagram of vegetation to be removed on the site. There was no written explanation of steps to Avoid or Minimize or appropriately offset the loss of native vegetation. Information about removal of Native Vegetation removal was not provided in any detail by the applicant until the witness statement from Mr Carr.
4. The evidence of Mr Carr was:

The proposed subdivision would result in the removal of the small degraded patch (c. 0.25 ha) of Stony Knoll Shrubland, with a habitat condition score of 18% of pre-European condition, and a total of 0.05 Habitat Hectares (hha). The conservation significance of the patch to be removed is High, and therefore, incurs a conservation multiplier 1.5 the calculated loss in hha. A Net Gain habitat hectare target of 0.075 hha (0.05 hha x 1.5) will need to be met to satisfy the offset requirements. As no further remnant vegetation occurs on-site, the offsets would need to be achieved off-site. Offset options should be discussed with Council.

Under the current Subdivision Plan, there will be a loss of c. 4.2 ha of degraded vegetation comprising: c. 0. 25 ha of Stony Knoll Shrubland and c. 4.0 ha of exotic grassland and shrubbery. This loss includes c. 2.0-2.5 ha of roosting, foraging and refugia habitat for Latham's Snipe on the north and south side of the stony knoll and in the vicinity of Hill Street where two ephemeral wetlands occur. The relative significance of these areas to the snipe population using the study area, appears to be less clear than the significance of the Wetland.

1. We accept Mr Carr's evidence that retention of native vegetation on the site is problematic due to the extent of weed infestation. However, we do not consider that justifies removing all native vegetation immediately particularly when there has been no offset site identified nor any discussion about measures to ameliorate the impact on the habitat of the Snipe. We acknowledge that the habitat of the Snipe is not normally an item is considered under a Net Gain assessment but there seems to be a reluctance by the applicant and the council to embrace these two environmental issues, having regard to the provisions of Clauses 15.09, 22.02-8 and 52.17 in the Moyne Planning Scheme. May be some lateral thinking on the two issues may see a more environmentally sensitive outcome.
2. We are most reluctant to allow total clearing of super lot 5 without information of an offset site. We note council did not require any offset in conditions. Whilst we can see super-Lot 3 being subdivided earlier and possibly super lots Lot 4 as a second stage in the subdivision, we are less than confident that the applicant and the council can properly institute measures to protect the Snipe on super lot 5 nor address offsets that are required if the vegetation is to be removed.
3. We consider Conditions 4 and 5 requiring a landscape plan, and an Environmental Management Plan are deficient. The landscape plan sought information on the amount of excavation, cut and fill and construction details of the roads. The information requested on size, quantity and botanical name of each tree/shrub/groundcover was rudimentary having regard to the extent of vegetation to be removed and physical constraints of the site. Whilst it is not necessarily a matter that would normally be considered under a Net Gain assessment there could be some net benefits derived from this approach that may have helped balance some of the negative aspects of the proposal.

Has the subdivision responded to the objectives and techniques of Clause 56 (Rescode)?

1. A review of the Council file and documentation accompanying the submission revealed that that the Council had sought detailed response to Clause 56 of the Planning Scheme after the subdivision was designed. Whilst the applicant modified the Mills Crescent alignment and Villiers Street to appease traffic considerations, much of the basic subdivision layout, particularly on super Lot 5, was designed to meet the requirements of the Commonwealth Department of Environment and Heritage. It was not designed to address Native Vegetation issues, the steepness of lots and physical condition on the rocky outcrop. There was a brief comment about views from the hill but there was nothing to suggest that the hill was to be in any way altered or modified or what impact the removal of the native vegetation would have. The only information supplied was the offer of one tree per allotment, the use of street lighting poles, integrated stormwater inlets, 10 drought tolerant low maintenance plant species to the purchaser of each allotment, concrete paths to one side of the street, and fencing of each allotment to discourage pets. This is hardly a proper assessment of the landscape features of the site.
2. At the Directions hearing Mr Bock tabled detailed contour plans, cross sections and construction detail of the proposed common access lanes. We appreciate that this information was supplied and it served to demonstrate some of out concerns about the poor standard of information that was originally provided to the council.
3. We were told the construction of the common driveways will be above the surface of the rock surface. This does not seem consistent with the cross sections, because it appears there will be the need for some excavation of the rock to achieve a base to the access roads. However even if the access roads can be placed on top of (smooth) rock surface we consider the placement of three, eight metre wide common access drives across the contours is less than ideal and we are concerned they will leave a permanent scar on the landform. The drives will be relatively steep whilst they will technically meet the relevant Australian Standard for ramp grades they seem a last resort to achieve the desired lot yield.
4. In addition we consider that the common access treatment will provide a poor sense of address to lots 2, 4, 6, 8, 10 &12. It is likely the houses would be placed on the northern side of the ridge of the rocky outcrop with little line of sight of a dwelling on its respective lot. Whilst Mr Bock referred to another subdivision to the southeast of the Port Fairy Township as a precedent for this type of access we consider it should only be seen as a last resort. It may be acceptable if there were, on balance, other positive aspects of a subdivision, but we consider it is another indicator of a mediocre planning outcome.
5. There were many matters in the Rescode assessment that were satisfactory and when viewing the basic subdivision plan, it appeared to be a straight forward subdivision layout. However our site inspection and the consideration of an accurate contour plan demonstrated the physical constraints to the site. The large rocky outcrop presents as a physical and visual obstacle and when examined with the limits on access to the north imposed by DEH we consider the subdivision lay out and proposed access as shown is inappropriate.
6. The Decision Guidelines in Section 65.02 call upon the responsible authority to consider (amongst other things):
   • the extent and character of native vegetation in the likelihood of its destruction
   • where the native vegetation is to be or can be protected, planted or allowed to regenerate
7. We are also concern that the size of the lots on the northern side of Lot 5, whilst shown as 'low density lots' are insufficient in size to provide fro a dwelling that could be sensitively placed on each lot having regard to the physical constraints of the site. The Council sought a 10 metre building setback from the northern boundary which provided an additional constraint on any dwelling, was resisted by the applicant. We do not think this whole subdivision layout in super Lot 5 has been properly considered having regard to the physical constraints and the impact on the Latham's Snipe and we consider that the applicant should reconsider the site layout and seek approval for a lower density subdivision. Whilst Lots 11 - 16 inclusive may be suitable for subdivision in the way shown the remaining lots are less than acceptable.
8. Similarly, a proper assessment of the physical constraints of the site under Clause 56 should have included a vegetation assessment including a landscaping plan for those sensitive parts of the subdivision. This may have included some programmed replacement planting on and around the site to address environmental issues and possibly the habitat of the Latham Snipe.

1. We consider that the subdivision of Residential 1 Zone land into suburban sized lots that abuts similar sized residential lots would normally seem an acceptable planning outcome particularly if it was on relatively flat land that was unencumbered by environmental issues. However as mentioned above there are some significant environmental and physical issues with this subdivision and when these matters are considered in their totality they present an unacceptable planning outcome. We say this having regard to Mr Carr's finding that there is a need for a Net Gain offset and yet no offset site has been examined and the likelihood that there will be an impact on the Latham's Snipe population particularly on Lot 5 and to a lesser extent on the lower lying areas to the southeast.
2. Clause 65.02 of the planning scheme says:

Before deciding on an application to subdivide land, the responsible authority must also consider, as appropriate:

• The suitability of the land for subdivision.
• The existing use and possible future development of the land and nearby land.
• The subdivision pattern having regard to the physical characteristics of the land including existing vegetation.
• The movement of pedestrians and vehicles throughout the subdivision and the ease of access to all lots.

1. Whilst the applicant agreed to undertake certain works, modify the subdivision, restrict access to the north (abutting the wetlands) and place covenants on the titles in accordance with directive of the Commonwealth Department of Environment and Heritage (DEH), we consider that is a not satisfactory design approach to the subdivision of super Lot 5.
2. As mentioned above we consider there are fundamental flaws in the subdivision layout particularly for super Lot 5. The proposed subdivision of the land contained in the Lot 5 has not adequately taken into account the impact on the habitat of Latham's Snipe, there was no Net Gain assessment undertaken prior councils consideration, there is poor vehicular access treatment and sense of address to lots 2,4,6,8,10 &12 Each of which provide less than acceptable outcomes.
3. Further Clause 22.02-8 - Hilltop and Ridgeline Protection policy, states:

"It is policy that the environmental, landscape and visual significance of hilltops and ridgelines should be considered in assessing applications for new uses and development."

1. We did not see adequate assessment of the environmental and landscape significance on the site. It was not until the Directions Hearing that proper information about contours of the site were provided, let alone geotechnical information.

Did the responsible authority properly consider the application?

1. We consider the council did not properly consider the totality of the application nor the advice presented to it from its own officers and the Department of Sustainability and Environment.
2. In this case the Department of Sustainability and Environment belatedly raised concern about the adequacy of information that had been presented to it. This concern was conveyed to the responsible authority by the Council's Planning Officer in the report to the Council at page 30:

"The proposal has failed to address environmental issues and concerns at state and local level, and based on the legal advice provided to Council, it would be remiss of the Council Officer to ignore the matters raised by DSE in their letter of objection in its consideration of the application. Although conditions to address the concerns of DSE in the form of an environment management plan could be placed on a Notice of Decision to Grant a Planning Permit, they may be impractical or cumbersome to be applied in a practical and realistic sense to be to the satisfaction of all stakeholder.

1. Mr Bock was clearly disappointed (to say the least) with the DSE response particularly as it was very late in the planning permit process. Nonetheless the issues raised required detailed examination and its late receipt does not necessarily justify granting approval for a subdivision that has inherent design flaws given the physical and environmental constraints of the site.
2. Further we consider it was disingenuous for Council to rely on a claim that the relevant authorities at State and Federal levels have not provided a co-ordinated approach to the management and actions to be implemented to improve the biodiversity of the subject site and adjoining land. The Council's legal advisor provided a better perspective of the respective powers at paragraph 2 on page 2 or its advice:

"If a particular matter requires a planning permit and a EPBC approval, then both approvals must be obtained. Each process is separate and independent, even though material in support of one process may be relevant to the other. Ordinarily, EPBC process will have a more limited focus than the broad assessment undertaken for a planning permit application. The EPBC approval does not bind council in the planning permit assessment and does not mean that a planning permit must be granted. In practice, council may find the material prepared for the EPBC Act approval and the Commonwealth approval itself to be a useful source of information in considering the planning permit application."

1. The responsible authority is empowered to consider the application under the provisions of section 60 (1) of the Planning and Environment Act and Clause 65.02 of the Moyne Planning Scheme.
2. Section 60(1) of the Planning and Environment Act 1987 requires , inter alia, that before deciding on an application, the responsible authority must consider:

(e) Any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development."

1. In addition, Clause 11 of the Planning Scheme calls upon a responsible authority to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit.
2. In this case we consider the responsible authority did not adequately consider various environmental issues related to the Latham Snipe and Native Vegetation removal and a Net Gain assessment nor the physical constraints of the site.
3. Having regard to the above mentioned issues we consider that on balance the proposal does not produce outcomes in favour of net community benefit. There are shortcomings with the design of the subdivision that are difficult to overcome through conditions on permit. We suggest there is a need for detailed consideration of the environmental and physical constraints on super lot 5and there need to be improved access treatment that is more sensitive to the locality.

1. For the abovementioned reasons the responsible authority' decision is set aside. No permit shall issue for subdivision in permit application PLO7/176.