1. Pursuant to clause 64(2) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, permit application 2007/507 is amended by the substation of Plan No 3420193-00-002 Rev F dated 10/02/09 (Alternative Location - Layout Plan) prepared by SM Urban.
2. The decision of the Responsible Authority is affirmed.
3. In permit application 2007/507 no permit is granted.

Mr Peter O'Farrell of counsel instructed by Deacons Lawyers. He called the following witness:

• Mr Brett Lane, an ecologist from Brett Lane & Associates Pty Ltd.

An expert report from Dr Neville Rosengren, a geomorphologist was tendered but by the agreement of all parties Dr Rosengren was not called to give evidence or be made available for cross examination.

Ms Taylor Cooper, a town planner from South Gippsland Shire Council.

For the Department of Sustainability and Environment

Mr Adrian Wakenshaw, Fire Safety Officer CFA Gippsland Area.

It is proposed to construct a dwelling and ancillary outbuilding (a shed) on the subject property, along with a 2.9km access track. This development will require the removal of native vegetation.

The proposed dwelling is a single storey building containing four bedrooms, open plan living, dining and kitchen, separate lounge and a study/den. A carport, semi-detached store room and guest's room are included under the roof line.

Floor to ceiling heights of 2.5m are proposed with a pitched roof angles of 220 and 300.

The single storey shed, of muted colour is to be located to the south-east of, and behind the dwelling.

The access track would have a nominal width of 4.5m with 10m long, 6m wide passing bays every spaced 250m apart.

At its closest point, the footprint of the dwelling would be approximately 400m from the boundary of an adjoining coastal reserve.

Section 79 Planning and Environment Act 1987.

Zone and Overlays of the South Gippsland Planning Scheme

Environmental Sensitivity Overlay Schedule 3 (ESO3) - Clause 42.01 applies to all but a northern portion of the site. The proposed locations of the dwelling, shed and access track fall within the ESO3 area.

Particular and General Provisions of the South Gippsland Planning Scheme

State and Local Policy Frameworks of the South Gippsland Planning Scheme

Clauses 11, 15.07, 15.08, 15.09,21.01, 21.03 and 21.04.

Clause 42.01: Construct a building, carry out works and remove vegetation.

Crown Allotment 8 in the Parish of Waratah, otherwise known as 260 Cape Liptrap Road Tarwin Lower.

The subject land is approximately rectangular, having an eastern frontage to Cape Liptrap Road of 617m (Approx), and boundaries to the north, south and west of approximately 3,611m, 3,125m and 609m respectively. The western boundary abuts the Victorian coastline to eastern Bass Strait.

Reeve v Hume CC [2009] VCAT 65.

1. The subject property in this proceeding is described as being:

...one of the few remaining fully vegetated, privately owned land parcels adjoining the coastal reserve at Cape Liptrap.

Mr and Mrs Taylor seek to a locate their proposed dwelling close to that reserve in order to enjoy the ambience of such a coastal location. To construct such a dwelling and provide access from Cape Liptrap Road require's a permit for the removal of approximately 2.7 hectare of native vegetation.

1. The South Gippsland Council has failed to decide the permit application in the required timeframe. As a consequence the Taylors have applied to the Tribunal to review their permit application. The Council and the Department of Sustainability and Environment (the Department) consider that a permit should not be granted. Their reasons form the determinative issues in this proceeding which are that:
   • The combined area of native vegetation to be cleared for the dwelling, shed and access track is unacceptably excessive in view of alternative locations closer to Cape Liptrap Road; and
   • The length of the access track and location of the dwelling being so deep within the property presents unacceptable bushfire risks to the occupants and to fire fighting personnel.
2. While Mr O'Farrell's initially objected to the issue of bushfire risk being relied upon, stating that they were not part of the Department's originally advised grounds, I have had regard to this issue. I am satisfied that the Taylors have been sufficiently advised of this issue prior to the hearing commencing, as evidenced by Mr O'Farrell's written submissions in response. Further Mr Wakenshaw of the Country Fire Authority (the CFA) attended the hearing and gave submissions. The Tribunal and parties also have the benefit of the CFA's written response to the permit application.
3. When considering the permit application, the Council also took issue with the location of the dwelling and its impact on coastal landscape values. Amended plans submitted by the Taylors and now adopted as the application plans for the purposes of this proceeding relocate the dwelling 400m from the coastal reserve. The Council has indicated that this relocation, along with the design of the dwelling has addressed this issue. Having had regard to these matters, I concur with this view and do not consider these to be substantive to my determination. Similarly, I have not addressed issues of geotechnical stability and erosion which were also at issue but were not contested by the Council under the amended dwelling location.

1. The condition of this property and its surrounds are relevant in understanding the context of my decision.

1. As is described in the introductory table to these reasons, the property is an elongated bush block that is zoned for Farming. To the west is a coastal reserve zoned for Public Park and Conservation. This reserve also wraps around the north-west corner of the subject property for a distance of some 700m. Land along the remaining portion of the northern boundary is private farmland, some of which is cleared of native vegetation and used for grazing. Beyond this are large lots of farming zoned land that is also largely cleared of native vegetation.
2. To the south of the subject property is Lot 8A. It is also a bush block within the Farming Zone. Further south is a series of lots that vary in size, all of which fall within the Farming Zone. Of these, eight smaller lots are aligned along the coastal reserve. Some have been developed with dwellings on the elevated coastal dunes or cliff faces.[1] They have all the appearances of 'lifestyle' developments rather than being dwellings associated with farming purposes. Away from the coast the lots sizes are larger and are used for grazing. These properties have been cleared of native vegetation to varying degrees.
3. To the east of the subject property, the land is largely cleared of native vegetation and falls within the Farming Zone. The predominant use of this land is for grazing.

1. The Taylor's property is undulating, consistent with its coastal dune geomorphology. The land rises sharply from the coastline to the proposed building envelope; a rise of 10mAHD[2] to around 60m to 70m AHD over a 400m distance.
2. The elevation of the land to the south (and therefore behind) the dwelling's proposed location continues in an undulating line of dune faces at around 80m and 90m AHD that parallels the current coastline. There would therefore be a backdrop of higher, vegetated dunes behind the dwelling site.
3. The land to the east of the building envelope is also undulating. However, the overall relief reflects a general rise in topography to around 140m to 150m AHD at the Cape Liptrap Road boundary. There are various inter-dune swales between the higher elevations of this portion of the property.
4. The proposed access track to the dwelling is to be located largely along the southern portion of the property, avoiding various high points. Its final western leg extends around the south face of the aforementioned ridge where the building envelope for the dwelling is located.

1. Mr Lane and his firm undertook surveys of the proposed (amended) dwelling and shed envelopes, portions of the access track's alignment[3] and the proposed off-set zone. He otherwise relies on the assessment of the remaining portions of the access tracks alignment undertaken by the firm Tall Tree Sustainability Solutions (Tall Tree) that was submitted with the permit application.[4] Tall Tree also provide an assessment of fauna impacts. The following details of the site's ecological conditions are drawn from that and other evidence given by Mr Lane during the hearing.
2. The site's biodiversity or ecological value comprises of:
   • Damp Heathy Woodland of Very High Conservation Significance;
   • Coast Banksia Woodland, Coastal Dune Scrub and Wet Heathland of High Conservation Significance;
   • Three flora species listed as rare and one flora species listed as poorly known in Victoria;[5]
   • No flora species or ecological communities listed as threatened under the Flora and Fauna Guarantee Act 1988 (the FFG Act) or Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act); but
   • One fauna species, the Swamp Antechinus (Antechinus minimus), is identified as being present on the property under the Atlas of Victorian Fauna. The Swamp Antechinus is listed as vulnerable under the FFG Act. There is anecdotal evidence of Southern Brown Bandicoots and White-footed Dunnarts being present on the site. These are EPBC Act listed species.

IS THE EXTENT OF NATIVE VEGETATION CLEARING ACCEPTABLE?

1. That native vegetation has to be cleared from this property to provide space for any dwelling is undisputable and not contested. It arises from the conditions of the property set out above. What is at contest is the extent of clearing required to meet the Taylor's desire to locate the dwelling approximately 400m from the coastal reserve. It is this clearing that triggers the need for a permit under the ESO3 and the extent of clearing that requires permission under Clause 52.17. As consideration of the latter encompasses the issues for both permissions, I will address the requirements of Clause 52.17 first.

The purposes of Clause 52.17, the Framework and Net Gain

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

• To avoid the removal of native vegetation.
• If the removal of native vegetation cannot be avoided, to minimise the removal of native vegetation through appropriate planning and design.
• To appropriately offset the loss of native vegetation.

These objectives follow the 'three step approach' set out under Victoria's Native Vegetation Framework - A Framework for Action[6] (the Framework) to avoid losses, or minimise losses and provide appropriate offsets for such losses, and to achieve a 'net gain' in native vegetation quantity and quality across Victoria.

1. Clause 52.17 also responds to State Planning Policy for native vegetation found at Clause 15.09 of the Planning Scheme, which similarly responds to and seeks to implement the Framework goals of 'net gain' in planning decision making across Victoria.
2. Decision guidelines contained in Clause 52.17, which the Responsible Authority and now this Tribunal are to have regard to, include amongst other matters whether the proposed development can be located to avoid or otherwise minimise the removal of native vegetation. Other biodiversity, environmental and landscape values are also to be considered; matters which I will refer to later in these reasons.
3. Mr Lane's evidence is that his review of portions of the tracks alignment has resulted in modifications that minimise the impacts of the clearing, most particularly:
   • Avoidance of any requirement to pass through or remove vegetation of the Damp Heathy Woodland patch which has been assessed as having a Very High Conservation Significance.
   • Avoidance of mature Coast Banksia in the Coast Banksia Woodland areas.
   • Re-alignment of the track on flatter land in the southern portion of the property to minimise cut and fill construction and therefore reduce the width of construction and reduce the amount of vegetation removal.
   • Re-alignment of the track's route along with the shifting of the dwelling away from the coastline has reduced the track length by 300m and area of vegetation removal by an estimated 0.14ha.
4. In respect to broader ecological impacts, Mr Lane states that the area of vegetation removal will represent an estimated 1.4% of the property's total vegetated area. It his evidence that this 'removal is not expected to prejudice the future ecological integrity of the native vegetation remnants and connectivity in the Cape Liptrap region'.[7] Such 'ecological integrity' includes potential habitat for a number of FFG Act and EPBC Act listed species, as I have set out earlier in these reasons.
5. I do not disregard such evidence. I accept that the area of clearance is small when compared to the overall area of native vegetation. By way of logical extension, the small area of clearing forms the basis of Mr Lane's conclusion that there is not expected to be a detrimental impact to the biodiversity values of the property. It is an understandable conclusion.
6. I also accept that the offsets required for the proposed clearing can be secured onsite and would result in an increase in habitat hectares as is sought under the Framework.
7. However I do not consider that such an outcome meets with the primary goal of 'net gain' as is set out in the Framework and which forms the underlying basis of the relevant objectives of Clause 52.17. That goal 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.[8]

1. The three step approach of avoid, minimise and offset is to be read in the context of this goal. It is set out within the Framework that Net Gain has 'as a priority, the avoidance of further permanent losses of existing vegetation through clearing'.[9] Tables 1 and 6 of the Framework further serve to support these outcomes, both highlighting that clearing of vegetation with High Conservation Significance should be minimised and generally not permitted.
2. The focus of the Taylor's case on the net gain of habitat hectares that can be achieved for the clearing of vegetation fails in my view to properly account for this expressed policy to avoid or minimise removal in the first instance.
3. In the context of this property, where some removal of native vegetation will be necessary for the dwelling and an access track, the proper application of Clause 52.17 and the underpinning policies of the Framework lead to the conclusion that minimising the vegetation in the first instance is the proper approach. The fact that greater losses can be sustained and adequately dealt through off-sets does not justify such losses at first instance.
4. The Taylor's reason for the degree of vegetation removal, being solely to provide a dwelling 400m from the coastal reserve is similarly insufficient to permit it when weighed against the significance of this vegetation.

1. Mr O'Farrell submits the Framework and the three step approach are but policy and not a prescriptive approach to be applied when removal of native vegetation is contemplated. He argues that discretion is available to the decision maker and flexibility should be applied.
2. In the Reeve decision the Tribunal set out that:

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.[10]

1. This view as to 'why' clearing should occur as being the starting point rather than 'how' is supported by the Department and one that I consider to be appropriate in this proceeding. It follows logically from my consideration of the application of Clause 52.17 and the Framework set out earlier. I have not been persuaded otherwise by Mr O'Farrell or by the evidence of Mr Lane.

Conclusions as to the extent of native vegetation clearing

1. What Mr Lane's assessment and redesign has sought to minimise some impacts to native vegetation and biodiversity by avoiding more sensitive vegetation of Very High Conservation Significance. What it does not do is minimise the extent of native vegetation removal. If it did, the proposed dwelling would be located closer to Cape Liptrap Road. Consideration of Clause 52.17 and underlying policies direct me to a conclusion that the extent of any clearing on this property should be minimised in view of the conservation significance of the vegetation.
2. The reason for the extent of native vegetation clearing arises from the dwelling being located close the coastal reserve. While understandable for the amenity of the Taylor's, it remains a reason that is insufficient to justify the proposed extent of native vegetation clearing. I conclude that the extent of clearing required most particularly for the access track weighs against the granting of a permit. A revised location is warranted in order to minimise the extent of native vegetation losses.

THE ENVIRONMENTAL SIGNIFICANCE OVERLAY & COASTAL PLANNING POLICY

1. In addition to the matters set out in Clause 52.17, it is instructive to consider the coastal context of the vegetation present on this property as applicable under the permit trigger of ESO3 and wider state policy.
2. Decision guidelines under ESO3 include considering applications in light of the need to preserve the 'existing natural vegetation' and the conservation of areas of 'environmental importance or significance'. Given the matters out earlier in these reasons, such as the conservation significance assigned to the vegetation on this property, it follows that it is appropriate to consider that this property contains existing natural vegetation that is of environmental importance. The conservation and where necessary preservation of the coastal vegetation therefore is an appropriate step to take to achieve the objectives of ESO3.
3. Consideration of State policy is also required. Relevant policy in regard to coastal areas sets out that:

Decision-making by .... responsible authorities should apply the hierarchy of principles for coastal planning and management as set out in the Victorian Coastal Strategy 2008, which are:

1. Provide for the protection of significant environmental and cultural values.

4. Ensure development on the coast is located within existing modified and resilient environments where the demand for development is evident and the impact can be managed.[11]

It is evident from the above that State coastal policy directs development away from areas of significant environmental value and toward existing modified environments.

1. I find that the objectives of policy and the ESO3, along with the decision guidelines of the latter, weighs against the granting of a permit for this dwelling, when it relies on the degree of vegetation clearing that it does on a coastal location.

1. The advice of the CFA is that with the long access track to the dwelling and the nature of the surrounding vegetation, the Taylor's, or any other resident, cannot be guaranteed of a response or support from the CFA in the event of a wildfire. The CFA takes the view that accepting such a risk is a matter of choice and do not object to the issue of a permit for the dwelling's location despite these risks.
2. Such advice clearly underscores that there is an inherent risk of wildfire impact to this dwelling. It arises from its location deep within the property and the nature of the surrounding bush on and adjoining the property.
3. I am cognisant of the need to consider this risk despite this property not being located in a Wildfire Management Overlay area. The decision guidelines of ESO3 and Clause 65 require such matters to be considered when relevant. Clearly they are in this case.
4. The main source of guidance in respect to managing such risk is found under the State Planning Policy Framework of Clause 15.07 of the planning scheme. The objective of this policy is:

To assist the minimisation of risk to life, property, the natural environment and community infrastructure from wildfire.

The policy refers to a number of other documents and guidelines that Responsible Authorities should have regard to when exercising discretion for a planning permit. I was not taken to any of these documents or guidelines and so I have not considered them here.

1. What was argued by the Department is the inherent risk of the dwelling's location as has been set out earlier. It is the Department's view that in relocating the dwelling to minimise vegetation losses, the risk from wildfire would also be addressed.
2. Mr O'Farrell submits that it is up to the Taylor's to accept or not accept the wildfire risk and that if the CFA does not object, weight should be given to the CFA's position.
3. While I note the CFA's position, I do not find that I agree with it. It is apparent that the advice of this authority effectively defers decision making about the risk to others. Others are unlikely to have the expertise to fully recognise, assess or understand such risks. I draw little comfort from the advice.
4. Neither do I draw a comfort from the provision of passing bays along the access track or other permit conditions that may be imposed, such as the provision of fire fighting water or management of vegetation around the dwelling. Such precautions do not address the inherent risk that arises from such a setting deep within heavy vegetation, most particularly the safety of people in the dwelling or emergency personnel. The various options put forward by the CFA and relied on by the Taylors are a response that deals with the outcomes of risk rather than the root cause of the risk.
5. The length of the access track through almost three kilometres of heavy coastal bush is the underlying reason for the risk. It would be the only way in and the only way out of the dwelling in the event of a fire. No alternative vehicle escape routes are available. Pedestrian escape would require traversing a further 400m of bush before reaching the coastline. Effectively the deep location of the dwelling during a wildfire represents a fire trap.
6. I find such arrangements weigh against the proposed dwelling location. I concur with the Department that a better outcome would be served by a location much closer to Cape Liptrap Road.

1. While the Taylors seek a location that maximises the view of the coast, this does not outweigh the wider sweep of planning outcomes that are applicable to this matter. For the reasons that I have set out above, I find that the location of the dwelling and the resulting 3km of access track is unacceptable due to the required extent and location of native vegetation of High Conservation Significance to be removed. The location also results in an unacceptable risk from wildfire. I do not consider it an appropriate or orderly planning outcome to grant this application a permit in light of these findings.
2. I have made my orders accordingly.

[1] These dwellings are clearly visible from the photographs tendered by Mr O'Farrell.

[3] More precisely Mr Lane's firm assessed the section of a the access track passing through the (Damp) Heathy Woodland and the entrance to the property which passes through a vegetated roadside reserve.

[4] Native Vegetation Assessment - 260 Cape Liptrap, Tarwin Lower, Tall Tree Sustainability Solutions 2008.

[5] Listed under the Advisory List of Rare and Threatened Plants in Victoria (DSE 2005).

[6] Department of Sustainability and Environment, 2002.

[7] At section 7.3.1 of Mr Lane's written evidence.