Australia: Clause 52.17: A Greater Focus On Native Vegetation Conservation Within Residential Zones

The Tribunal's decision in Reeve v Hume CC & Ors [2009] VCAT 65, handed down in January this year, has significant implications for the development of land which requires the removal of native vegetation.

In Reeve, the Tribunal displaced the expectation that when it comes to residentially zoned land, the focus of the three step approach under the Native Vegetation Management Framework should be on the last two steps of minimisation and offset. Member Ian Potts made it clear that the recent amendments to clause 52.17 have shifted the focus to avoidance and minimisation and that the starting point for considering the appropriateness of the development of land containing native vegetation of very high conservation significance is not the zoning of the land but rather a consideration of why such vegetation should be lost at all.

BACKGROUND

This case concerned a 16 lot subdivision of Residential 1 zoned land. The land was not subject to a Vegetation Protection Overlay, but significantly it contained 1.85 hectares of 'Ecological Vegetation Class Grassy Woodland' native vegetation which is endangered in Victoria. Certain species inhabiting this woodland carried 'very high conservation significance' including Melbourne Yellow Gums (vulnerable to extinction), the Swift Parrot and the Golden Sun Moth (both endangered). The vegetation also provided habitat to a host of native species.

Hume City Council refused the application on native vegetation grounds, which included concerns that the native vegetation loss would be excessive and inconsistent with planning policy objectives and the Native Vegetation Management Framework (NVMF). The Department of Sustainability and Environment (DSE) objected to the subdivision for like reasons.

The permit applicant argued that the native vegetation loss was not excessive and that proper regard had been given to the NVMF three step approach of avoid, minimise and offset.

The key issue before the Tribunal was determining the appropriate balance between the purposes of clause 52.17 and the development expectation created by the Residential 1 zoning of the land. While acknowledging that some form of subdivision was consistent with the zoning of the land, DSE argued that the very high conservation significance of four of the six vegetation patches warranted a lesser intensity of subdivision. In particular, a subdivision that avoided more, if not all, of the very high and high significance patches and would provide greater opportunities to offset losses. The applicant argued that the balance between development and native vegetation retention proposed was consistent with the Tribunal's previous decision in Villawood Properties v Greater Bendigo CC [2005] VCAT 2703.

DECISION

Member Potts stated that while the Villawood decision had been relied on in the past to support the proposition that the primary purpose of the zoning of the land needs to be balanced against the competing objectives of the NVMF, in his view:

He went on to clarify that the Villawood decision was made in the context of how best to prepare permit conditions to reflect workable offset requirements where clearing of native vegetation has already been permitted. He noted in particular a passage of the Villawood decision, where the Tribunal suggests that vegetation of high conservation significance should be brought into public ownership to ensure its protection.

In addition, Member Potts held that various amendments to clause 52.17, including Amendments VC38, VC44 and VC49, have shifted the priorities toward native vegetation protection. He also recognised that the weight to be given to the need to avoid and minimise native vegetation losses depends on the conservation significance and biodiversity values of the vegetation.

Member Potts found that the applicant had not demonstrated exceptional circumstances to justify the extent of vegetation losses and diminution of biodiversity values other than the zoning of the land. Amongst the matters considered relevant to the question of whether these losses should be avoided was the broader context of the land which abutted other native vegetation to the west, the north and along a road reserve, its significant conservation and biodiversity values, the lack of any strategic policy urging development of the land, and the availability of other land in the area for development.

Accordingly, the Tribunal refused to grant the permit. It suggested that the development of the subject land required a more innovative solution that respected the conversation significance of the native vegetation.

The assistance of Jake Goldenfein, Graduate, in preparing this article is gratefully acknowledged.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.