Villawood Properties v Greater Bendigo CC [2005] VCAT 2703 | Case summary

Villawood Properties v Greater Bendigo CC [2005] VCAT 2703 | Case summary | Zoe

[27]

6 It is the final sentence of clause 15.09-2 that is in issue. The criteria for determining the appropriate response and offsets may well be contained in the Framework but they are not proving easy to apply. They are complex and the practical outcomes are proving to be uncertain, onerous and time consuming to administer. The Framework adopts a 'one size fits all' approach and draws no distinction between land that is zoned for urban purposes and land zoned for essentially rural purposes: the same criteria for determining response and offsets apply.

7 Urban zoned land on the fringe of developing areas will frequently contain vegetation types, often grasses, that have been lost or severely depleted because of surrounding development. This can raise the conservation status of the vegetation thereby increasing the offsets required if the vegetation is removed. The need to provide offsets increases the costs of development, which are, in turn passed on to purchasers. In itself this is not objectionable as the community must be prepared to pay for protecting valuable conservation assets. But it is important that costs are proportional to the benefits gained and that other, equally important, community benefits are not compromised in the process.

8 These proceedings raise issues that are typical when dealing with vegetation loss in urban areas. The comments we make are focussed on these circumstances. They are not directed at situations involving vegetation removal in rural locations where there is often far greater opportunity to provide offsets on the subject land. We are concerned with vegetation removal on land zoned for urban purposes where implementing those purposes will result in the likely removal of much, if not all, the vegetation.

9 The introduction of Net Gain as a primary goal for native vegetation management in Victoria is a bold, worthwhile step. But if the principle of Net Gain is to retain credibility and is to be translated into reality, then its implementation needs to be soundly based. Implementation should lead to good conservation outcomes and take account of the resources available, the capacities of people responsible for making assessments and decisions and implementing offset plans, and a practical view of what can be achieved in a given location. Net Gain will depend upon actions being undertaken by a broad range of stakeholders. Victoria's planning system will be one means, although not the only means, of delivering Net Gain. Where the planning system is being used as a means of implementation, the Net Gain approach will need to dovetail into the existing framework of the system. This may mean that not all the criteria for determining the appropriate response and offsets which are contained within the Framework can be fully implemented by way of planning permit conditions. Fundamental principles of certainty and enforceability, which determine the validity of permit conditions, apply as much to conditions implementing Net Gain principles as to any other planning permit conditions. We are concerned that an understanding of these principles is not fully reflected in the Framework, the draft operational guidelines[4] or many planning permit conditions requiring offsets which have been prepared to date.

10 Whilst we have resolved the problems arising in the context of these particular matters, the issues raised require attention at a higher, more comprehensive level. It may be that too much reliance is being placed upon the planning system to deliver Net Gain. Other implementation measures need to be equally progressed. Regional Native Vegetation Plans, which may be able to address some of the issues we have identified, development of the BushBroker programme referred to in the Framework and identifying public and for private land where revegetation could be undertaken are possible options. Whatever is done through should be kept as simple and straightforward as possible with the emphasis on practical, long term Net Gain.

[44]

17 A permit is required for subdivision under the Residential 1 Zone. A permit is required for buildings and works under the Environmental Significance Overlay. A permit is required for vegetation removal under both the Vegetation Protection Overlay and clause 52.17 of the planning scheme.

18 Under the Incorporated Plan Overlay a permit must not be granted until an incorporated plan has been incorporated into the planning scheme. Any permit granted must be in accordance with the incorporated plan and include any conditions or requirements specified in the schedule to the overlay. Schedule 2 to the Incorporated Plan Overlay simply requires that all development must be generally in accordance with the Maiden Gully Structure Plan and that all residential and commercial development must be provided with reticulated services. The Maiden Gully Structure Plan is an incorporated document in the planning scheme.

19 The Maiden Gully Structure Plan divides Maiden Gully into seven precincts, with Precinct 4 being an inner part of the township area and identified as the Central Residential Precinct for Maiden Gully. The subject land is included in Precinct 4. The structure plan provides that prior to the approval of subdivision and in accordance with the general objectives outlined in the structure plan, an Outline Development Plan must be prepared in conjunction with an Environmental Assessment Report for each precinct. When completed and approved by the responsible authority, the outline development plans shall form the basis of subdivision applications. The structure plan further provides that any Outline Development Plan must be placed on public exhibition if deemed necessary by the responsible authority prior to being approved and shall be referred to the relevant statutory authorities. It then sets out other requirements for an Outline Development Plan and an Environmental Assessment Report.

20 Outline Development Plan for Precinct 4 has been prepared and adopted by the responsible authority following public exhibition. An Environment Assessment Report has also been prepared and exhibited. A flora and fauna assessment was prepared by consultant Garry Cheers (dated September 2003) in connection with preparation of the Outline Development Plan and is included as an appendix. It undertook a vegetation assessment of the subject land and established habitat hectare scores for the habitat land. The Outline Development Plan also identified areas where offsets could be provided to compensate for vegetation lost as a result of residential development of the land.

21 The habitat hectare assessments in the Cheers Report have been accepted by DSE and formed the basis for calculating the habitat hectare loss associated with the proposed subdivisions. There has been no dispute about the figures or assessment.

22 At the hearing, the council treated the Outline Development Plan as part of the incorporated plan under the Incorporated Plan Overlay and was clearly under the impression that it had the same status as an incorporated plan. We consider this view is misconceived. The Outline Development Plan is not an incorporated plan under the planning scheme even though its preparation is referred to in an incorporated document. It has no more status than a strategic plan which has been adopted by a municipal council within the meaning of section 60(1A)(g) of the Planning and Environment Act 1987 and is something that the responsible authority may consider in deciding on an application. However, nothing turns on this distinction in the context of these proceedings.

[58]

28 The primary issue in these proceedings concerns the wording of condition 9, which the applicant has challenged on the basis that it is vague and uncertain or alternatively unreasonable. The condition has been included to implement the Net Gain principle embodied in the native vegetation Framework. The applicant argues that the conditions proposed by DSE are unreasonable, particularly in that they make no allowance for the retention of vegetation on site, which the applicant argues can be achieved through a complex set of conditions requiring building envelopes and other measures (including the provision of trees to new owners for planting).

29 The proceedings involve an unusual 'twist' on the usual scenario where an application for subdivision involves the clearing of native vegetation. In the current applications, DSE and the council support the removal of all native vegetation from both sites and the establishment of offsets elsewhere. On the other hand, the applicant wishes to retain some of the native vegetation and says that it ought to be given a credit for the vegetation that will remain on the sites subsequent to subdivision and development of each lot.

30 This measure is proposed as a means of reducing the applicant's obligation to provide offsets elsewhere. It appears that the offsets identified in the Outline Development Plan will not be sufficient to meet all the offset obligations of developers in the Maiden Gully area. The operation of the criteria for offsets set out in the Framework is extremely complicated and requires like vegetation categories to be replaced by like within the area. It can prove difficult to find suitable vegetation to rehabilitate to satisfy the criteria, hence developers are keen to satisfy their obligations on site wherever possible. However, this leads to inherent conflicts between developing the land for its primary purpose and retaining and enhancing the vegetation on it.

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

32 One of these difficulties is associated with the methodology used to express or quantify the offsets that must be provided. DSE, in line with the Framework, has used 'habitat hectares' as the measure for calculating the offset that must be provided. The applicant submitted that this was an inappropriate measure because it was too uncertain.

33 The other difficulty associated with drafting permit conditions to ensure that offsets will be implemented is the reliance that is placed upon secondary consents. For example, in conditions 9 and 19 the following secondary consents will be required:

[65]

43 In applying Net Gain via the three step approach outlined in the Framework, it will not always be possible to undertake or complete each step simultaneously.

44 Implementing the principles of 'avoid' and 'minimise' will be essential components in the initial decision about whether a permit should be granted to remove vegetation. If consideration of these principles leads to the conclusion that a permit can be granted, then at this point the provision of offsets becomes mandatory.

45 We consider there is some ambiguity in the way in which the three step approach to applying Net Gain is expressed in the Framework. We refer to the quotation in paragraph 27. We consider that the statement: "Only after these steps have been taken should offsets (actions undertaken to achieve commensurate gain) be considered", refers to steps one and two - avoid and minimise. It will only be after the application of those principles that the actual amount of vegetation loss in terms of habitat hectares or number of trees or number will be known. Until that is agreed upon, appropriate offsets cannot be devised.

46 In the context of urban land it will be rare that an offset is capable of being fully approved at the permit stage for a number of reasons. It is likely that offsets will be required to be provided off site. This may involve the acquisition of land for revegetation or entering negotiations with persons or bodies to improve the quality or quantity of vegetation on other land. It is unlikely that an applicant will wish to commit to these steps without the certainty of knowing that a planning permit has been issued and without knowing the number of habitat hectares that the offset plan must compensate for the loss of. It is for these reasons that the Tribunal has endorsed deferring the definition of offsets to a secondary consent process.

47 This issue was considered in some detail in Environment Victoria Inc v West Wimmera Shire Council.[13] The Tribunal reviewed a number of earlier decisions and concluded that a secondary consent process was a useful tool to implement the requirements of the Framework.

48 Likewise in Lorne Country Club Inc v Surf Coast Shire Council[14] the Tribunal said:

[68]

49 We endorse the use of the secondary consent process to determine the detail of offsets. We consider that all offset plans should be prepared to the satisfaction of both the responsible authority and DSE as referral authority. Requiring offset plans to be to the satisfaction of DSE ensures that the appropriate level of expertise is brought to bear in their assessment and approval, and it ensures that DSE as a referral authority is a specified body for the purpose of any applications for review under section 149 of the Planning and Environment Act 1987. We consider that as a matter of course the detail and approval of offset plans should be left to a secondary consent process rather than confusing the permit issuing process. The permit should specify the vegetation that may be destroyed and this should be expressed in terms of habitat hectares or numbers of large old trees in accordance with the Framework. If a permit for vegetation removal is granted, it is a given that the permit cannot be acted upon in this respect until an appropriate offset plan has been approved. And if appropriate offsets cannot be provided, then the vegetation cannot be removed.

50 We consider that the primary issue of whether a permit should be granted to remove vegetation should not depend upon whether an appropriate offset plan can be provided, but rather on the significance of the vegetation itself and the extent of vegetation removal proposed. The need for appropriate offsets then becomes mandatory once it is decided that vegetation may be removed. However, whilst it is not necessary to be aware of all the specific details of the offset plan at the time a permit is granted, the decision maker would need to be satisfied that there was general scope for a satisfactory offset plan to be implemented. If there is no scope to provide appropriate offsets (for whatever reason) then this may be grounds for saying that a permit should not be granted for removal of this quantity of native vegetation.

51 This then leads to consideration of what constitutes appropriate offsets and whether the amount of offsets should be the same in all situations.

[70]

52 The Framework draws no distinction between offsets that should apply on a rural property or land that is zoned for urban purposes. This places a substantial cost impost on the development of urban land. The intensity of development contemplated by the zoning may mean that much, if not all, vegetation will be removed, in which case offsets must be provided off site, either through acquisition of other land or revegetation or rehabilitation of publicly owned land. Depending on the significance of the vegetation lost, this will not necessarily translate into a one-for-one replacement of hectares cleared. The use of habitat hectares as the quality/quantity measure means that in many instances substantially more hectares will be required as offsets than will be cleared. This may prove to be not only costly but difficult to achieve due to the application of the complex criteria used to calculate offsets.

53 It may also lead to attempts by developers to quarantine areas of vegetation on the lots subdivided either as a means of reducing the habitat hectares of vegetation lost or providing offsets, which is what has occurred in the present case. There is no certainty that such attempts will be successful in the long term. They can run counter to land owners' expectations of how they may reasonably use their land for normal residential, commercial or industrial purposes and the level of control and administration required on the part of councils in connection with such vegetation protection areas is time consuming and onerous and raises legitimate questions of whether the outcome is worth the effort involved.

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

55 For example, with respect to urban development, the government has imposed urban growth boundaries to curtail the spread of urban growth thereby limiting the supply of land for residential development. It is unreasonable to then expect that this land will not be developed for urban purposes at densities designed to optimise use of a scarce resource because vegetation on the land will be lost. If there is highly significant vegetation on the land that should be protected, then this part of the land should be brought into public ownership where its long-term management and protection can be assured. In larger subdivisions, the loss of vegetation can be minimised by designing subdivisions so that vegetation is incorporated into public open space. But in all other aspects it should be assumed that 100 percent of vegetation will be lost. In then calculating offsets to compensate for the vegetation lost, a realistic and practical offset plan should be approved to ensure that the costs associated with providing the offsets do not adversely affect other strategic planning objectives, such as affordability and urban consolidation.

56 In Environment Victoria Inc v West Wimmera Shire Council,[15] Senior Member Baird reviewed a number of Tribunal decisions and discerned a difference in approach depending on the significance of the vegetation proposed to be removed and the complexities of the subject land; the extent of vegetation removal proposed; the purpose for which the land is zoned; the potential to achieve offset/net gain in terms of the physical capacity of the land (or other land/or by other mechanisms); and any demonstrated commitment to achieve offsets. Having regard to these considerations, Senior Member Baird said:

[76]

58 The Framework states that any losses associated with clearing are mitigated by commensurate gains through appropriate offsets.[16] The Framework sets out detailed criteria as to what constitute appropriate offsets. This includes mechanisms to ensure that inappropriate tradeoffs between high and low quality vegetation are not allowed.

59 The Framework uses two methods for calculating vegetation loss - the habitat hectare and the number of large old trees. The loss of large old trees triggers a separate set of criteria for offsets based on the protection and recruitment of specific numbers of trees for each large old tree lost.

60 For other vegetation loss, the Framework establishes the habitat hectare as the 'accounting' measurement for managing native vegetation. A habitat hectare is a site based measure of quality and quantity of native vegetation that is assessed in the context of the relevant native vegetation type. This measure can be consistently applied across the state.[17]

61 The habitat hectare is a method of combining a number of well accepted indicators to calculate a practical relevant measure. It is not necessary in the context of the present case to identify those indicators: they are complex but well understood by experts in the field. It was the evidence of Mr Brett Lane, who is such an expert, that the habitat hectare is a very robust method of measuring vegetation loss. We accept this evidence. But we consider that the strengths of the habitat hectare as a method of measuring vegetation loss stem from the fact that it is based on existing conditions or indicators.

62 The difficulties in expressing obligations to provide offsets in terms of habitat hectares arises because the Framework recognises that the achievement of gains may be through improvement to the management of existing vegetation as well as through revegetation. The problem is that the methods of improvement are based on theory and their effectiveness, when assessed against the same scoring methodology used to produce the habitat hectare score in the first place, will only be demonstrated over time. Thus at the stage when a planning permit condition is being framed, the methods of improvement are only theoretical and the level of detail they involve to produce these theoretical outcomes are both uncertain and prone to interference.

63 For example, gains in extent of native vegetation may include:

[79]

65 The problem with such methods of improvement is that the degree of supervision required in order to ensure compliance with an agreement by a land owner not to graze an offset area, not to collect fallen timber or organic litter, or not to lop or fell live or dead trees over a 10 year period[20] would be both substantial and highly intrusive. Other potential management actions, which were spelt out in the draft operational guidelines and include controlling vermin or environmental weeds beyond a land owner's legal duty of care, are equally theoretical. In our view, they are incapable of measurement in terms of compliance and are dependent on individual whim or dedication. Factoring such methods of improvement into the offset equation is highly uncertain, especially when the objective is to secure gains that are on-going and secure. We accept that on a case by case basis such management actions can produce effective outcomes, but this can only be measured at a given point of time in the future. At the time when a permit is granted and an offset plan is prepared they remain theoretical. In our view, this makes them inherently unsuited for inclusion in planning permit conditions (either directly or as part of an offset plan approved under a condition).

66 This leads us to the conclusion that whilst the concept of habitat hectares might inform the mitigation measures to be implemented, it is too inherently uncertain to be the basis for an enforceable planning permit condition. In other words, whilst the habitat hectare is a robust method for measuring loss, it is not equally robust or certain as a means of measuring gain in the context of a planning permit condition which creates an obligation to comply and which ipso facto must be capable of enforcement.

67 We therefore support the practice of specifying the number of habitat hectares of vegetation loss in the permit condition but consider that the offsets required should not be expressed in terms of habitat hectares. Rather, there should be a requirement simply for an offset plan, to be prepared to the satisfaction of the responsible authority and DSE that requires appropriate offsets to compensate for the loss of (a specified number of) habitat hectares or appropriate offsets to compensate for the loss of (a specified number of) large old trees.

[81]

68 We support the approach that has been taken by the council and DSE in the present case of assuming that 100 percent of vegetation on the site will be lost as a consequence of the subdivisions when calculating the number of habitat hectares of vegetation loss. We note that this was the assumption made in the Outline Development Plan for Precinct 4. A similar assumption was previously expressed in the draft operational guidelines.[21]

69 Practical experience has led DSE and the council to the conclusion that after subdivision all vegetation will be removed or become very degraded by future development, except land on the subdivision that may have been set aside as a reserve.

70 By contrast, the applicant submits that less than 100 percent vegetation loss will occur. It proposes that some lots would have defined building envelope areas and that permission to remove vegetation would be restricted by way of a section 173 agreement to not more than 500 square metres on each lot with further permission required if more vegetation was to be removed. This is what the applicant described as the 'Road Con' model, which was an aspect of the subdivision proposal endorsed by the Tribunal in Road Con Constructions Pty Ltd v Ballarat City Council[22]. It was submitted that this model allows for retention of native vegetation on the site, the benefit of which should be taken into account when assessing what offsets should be required.

71 We do not support the position of the applicant on this point. Whatever the circumstances were in the Road Con case that led to an adoption of this model, it is not an appropriate model for general application to urban type subdivisions.

72 It is relevant to note that in the Road Con case the permit applicant's calculation of habitat hectares lost was criticised by the council as being underestimated because only the loss of 500 square metres of vegetation per lot was included. It was argued that given the size of the lots proposed, it was likely that all habitat value would be lost and, as such, the entire lot area should be included in the calculation of habitat hectares lost. In response to this criticism, Member Cimino said:

[83]

73 However, Member Cimino concluded that although the council had not been a party to discussions between the permit applicant and DSE, DSE had agreed to the methodology. He concluded that as the implementation of the native vegetation framework was still in its infancy, that there were no adopted operational guidelines and DSE was the lead agency responsible for administering the native vegetation Framework, it was reasonable for the permit applicant to rely on the advice of DSE. Member Cimino therefore accepted this methodology notwithstanding his misgivings.

74 In light of this, we do not consider that great weight should be placed on the methodology used in the Road Con case for calculating habitat hectares of vegetation lost. Just as the Tribunal in the Road Con case accepted the position taken by DSE, so we too consider that weight should be placed upon the views of DSE in calculating the habitat hectare value of vegetation that will be lost as a result of these subdivisions.

75 In our view, subject to that we say in the following section of our decision, when dealing with conventional residential, commercial and industrial subdivisions, the retention of vegetation on site should not be taken into account when calculating either the habitat hectares of vegetation loss or offsets. We consider that if there is significant vegetation on the site that should or can be retained, this should be reflected in the design of the subdivision and such vegetation should be included in public open space or other types of land holding where its retention and ongoing management is assured. But for lots that will be sold on the open market and are likely to change hands over time, it is unreasonable to expect that future owners will be committed to the type of management that would result in a Net Gain in terms of quality or quantity of vegetation on their land. The pressures arising from land owners' expectations associated with what they see as the primary purpose of the land and their aspirations for the land militate against any meaningful implementation of the type of management actions contemplated by the Framework and are unlikely to lead to a gain in quality of vegetation or even maintenance of existing quality.

76 We agree with the observations made by Member Cimino in the Road Con case that:

[87]

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

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

80 Clause 15.09-2 is not limited in its application just to applications for vegetation removal under clause 52.17, although this is the only clause that specifically identifies the Framework and the goal of Net Gain in its decision guidelines. In all other cases, the purpose of the control must be considered when deciding whether it is appropriate to have regard to clause 15.09-2.[23] Thus the Framework and Net Gain outcomes are unlikely to be relevant under the Heritage Overlay but may be highly relevant under the Environmental Significance Overlay.

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

82 The Framework does not assist in resolving the dilemma of when it applies. We do not consider that the discussion in 'Landscape Role' at page 24 of the Framework assists in this respect. Elsewhere the Framework refers to the assessment of planning permit applications,[24] and although the discussion of 'Statutory Protection of native vegetation'[25] focuses on applications under clause 52.17, it also states:

[91]

85 As a general principle, we consider that permit conditions should not place an undue burden on responsible authorities or referral authorities as a result of secondary consent provisions contained in either the permit conditions or subsequent section 173 agreements.

86 In the present case, if a 100 percent vegetation loss is assumed and any retention of vegetation on site is excluded from calculating appropriate offsets, we see no need for any controls over further vegetation removal to be included in a section 173 agreement. There is a Vegetation Protection Overlay already applying to the land. If council wishes to retain protection for vegetation (either trees or understorey) on the land post-subdivision it can do so by retaining the Vegetation Protection Overlay or modifying the schedule to the VPO to refine the type of control it considers appropriate. From a planning perspective, it avoids duplication and is more transparent to maintain control of a vegetation removal via a Vegetation Protection Overlay rather than through a plethora of section 173 agreements. Although, if Department of Sustainability and Environment and the council have agreed that all vegetation may be removed, and this is what the permit allows, it is questionable what value there would be in retaining the Vegetation Protection Overlay over the land.

87 A further concern with any proposal to count vegetation retained on site towards offsets or in reduction of the overall number of habitat hectares lost, is a question of how this should be compensated for in the event that future consent is granted to remove any of this vegetation. Does an obligation then arise for the land owner to provide offsets? What form might such offsets reasonably take if they were to be required? We consider that any suggestion that land owners might be required to prepare a vegetation management plan for retained or replacement vegetation on lots of this size is totally unreasonable and unrealistic, and compounds further the administrative and regulatory burdens being placed on councils (or referral authorities) if they are to be responsible for the approval and ultimate enforcement of such plans.

88 On the other hand, if no offsets are to be required in such circumstances, this only serves to demonstrate that allowing vegetation which is retained on site to be used in the calculation of offsets in the first place is inappropriate because no long term gain is achieved.

89 Our overall view, therefore, is that whilst it is entirely appropriate to defer the initial definition of offsets to a secondary consent process, it is inappropriate to allow as part of the offset plan or conditions in a permit regarding vegetation protection, the general proliferation of section 173 agreements, building envelopes or other multiple secondary consent processes.

[92]

90 Having concluded that it is preferable not to express the offsets required in a permit condition in terms of habitat hectares (or numbers of trees) and that the obligation to provide offsets should remain with the permit holder/developer, it is appropriate to consider what an enforceable offset plan might address.

91 We have referred earlier to the need for conditions, which seek to implement Net Gain, to be enforceable. It is all very well for a condition to require preparation of an appropriate offset plan to the satisfaction of the responsible authority and DSE, but there should also be a condition that requires the offset plan to be implemented and mechanisms to ensure that this will occur.

92 When the offset plan requires actions to be taken on the subject land, this will be relatively straightforward but often the offset plan will require the revegetation or rehabilitation of vegetation on land other than the subject land. Alternatively, it may require the acquisition of other land and arrangements to be made for its ongoing management and maintenance. The question arises as to how these matters are to be enforced unless they are required to be carried out before a certificate of compliance is issued for the subdivision or before the use or development commences. Neither the Framework nor the draft operational guidelines address such matters. Yet in our view they are crucial for the long term achievement of Net Gain.

93 We consider that if vegetation on any land is to be retained or rehabilitated, or land is to be revegetated as part of an offset plan, there must be reasonable certainty that the improvements will be maintained over time and that the obligations under the offset plan are specific and quantifiable so they may be readily monitored and enforced, if necessary. A requirement in an offset plan to avoid threatening processes, such as controlling weeds, refraining from collecting fallen timber or disturbing organic litter on land or foregoing permitted uses, is too uncertain as such actions are too prone to interference and require too much surveillance to be reasonably enforceable. An enforceable condition or an enforceable component of an offset plan should be objective and quantifiable. For example, if there is an obligation not to do something, that thing should be readily ascertainable and able to be objectively verified - e.g. not removing trees. Likewise, a positive obligation to do something should be quantifiable and capable of objective verification - e.g. plant 500 trees. Thus an offset plan may legitimately provide for specified revegetation or rehabilitation of vegetation on the subject land or other identified land, but the obligation should be quantifiable and responsibility for implementation within a defined timeframe should be clearly specified.

94 When drafting conditions that require preparation and implementation of an offset plan, the distinction between use and development, in terms of what the permit allows, is relevant to consider when framing the obligations and timeframe for compliance. If the permit is for use of land, then the use is dependent on the ongoing observance or implementation of the plan. There is therefore a direct incentive to comply with the plan because the ultimate enforcement sanction is to direct the use to cease.

95 Where an offset plan is required as a condition of a permit for development, e.g. subdivision, there is debate whether the condition will remain enforceable once the development is complete. This may be overcome by means of a section 173 agreement that is registered on the title to the land. But an agreement binds only the owner of the land: it is of no use if the obligation relates to works to be undertaken by the developer on other land and the developer is no longer the owner of the land subject to the section 173 agreement. Other issues arise if the developer undertakes to acquire other land and maintain it in a certain state as to how is that undertaking is to be enforced over time. It would seem that one means might be to register a section 173 agreement on the title of the land to be acquired not to use the land for certain purposes or to maintain it in a certain way. However, section 173 agreements can only be entered into between a responsible authority and an owner of land in the area covered by a planning scheme for which the council is a responsible authority.[27] This would mean that any land, other than the subject land, to which an offset plan applied would need to be within the municipal district of the relevant responsible authority, if the offset plan was to be implemented by means of a section 173 agreement. Again, if reserved land is to be used as an offset, a binding agreement other than a section 173 agreement needs to be entered between the parties, as a section 173 agreement cannot be registered over crown land.[28]

96 Finally, when approving plans, DSE should give consideration to the resource implications for the Department involved in their implementation in terms of supervision and other departmental input to any management regime. This point was alluded to by the Tribunal in Environment Victoria Inc v West Wimmera Shire Council when Senior Member Baird, referring to the substantial resource implications for DSE involved with the offset plan in that case, said:

Villawood Properties v Greater Bendigo CC

At a glance

Court

Decision date

Source

Judgment (131 paragraphs)

Villawood Properties v Greater Bendigo CC (Red Dot) [2005] VCAT 2703 (20 December 2005)

Parties