Native vegetation net gain in Victoria and Amendment VC38

By Megan Schroor.

Key Points:
Permit applicants will no longer need to invest significant amounts of time and money in preparing detailed offset plans before knowing whether their application has been successful.

On 16 March 2006, Amendment VC38 to the Victorian Planning Scheme came into effect. The Amendment introduced a number of changes to the management of native vegetation in Victoria and sought to clarify various issues which had arisen since the incorporation of the DSE document: Victoria's Native Vegetation Management - A Framework for Action into the Victorian Planning Provisions in July 2003.

The Framework is a 60 page document which, among other things:

• identifies the primary goal for native vegetation management in Victoria, namely a reversal of decline in the extent and quality of native vegetation, leading to a Net Gain; and
• sets out a three step approach to achieving Net Gain:

1. avoidance;
2. minimisation; and
3. identification of offset options.

Prior to the Amendment, Clause 15.09 of the VPPs stated that planning and responsible authorities "should" have regard to the Framework. One of the changes in the Amendment was to replace this "should" with "must" so that permit applications for the removal of native vegetation must now be considered in light of the Framework's policies.

At the time of the incorporation of the Framework into Planning Schemes in 2003, it was intended that operational guidelines would be produced to assist in the implementation of the Framework. Various draft guidelines were proposed but none were finalised. Following the introduction of Amendment VC38, the Department of Sustainability and Environment released four new Practice Notes which go some way to filling this void:

• Assessing applications involving Native Vegetation Removal
• Managing Native Vegetation in the Planning System
• Preparing a Native Vegetation Precinct Plan
• Native Vegetation Offsets

These Practice Notes can be found on the DSE website.

Villawood - the Tribunal considers how and when offsets should be determined

Practical application of the principles in the Framework has not been without difficulty since incorporation into the VPPs in 2003. Not surprisingly, there have been a number of recent VCAT decisions addressing the question of how the Framework policies should be applied and how the goal of Net Gain should be balanced against other important considerations.

In December 2005, the Tribunal handed down a decision in Villawood Properties Pty Ltd v Department of Sustainability and Environment [2005] VCAT 2703. This is a leading decision – it represents the culmination of a number of Tribunal decisions which have dealt with native vegetation management in the past three years and provides a comprehensive discussion of these issues.

The case involved an appeal by a developer who had been granted permits for a residential subdivision on the outskirts of Bendigo. The permits were granted subject to various conditions, in particular conditions relating to offsets required by DSE as referral authority. The developer applied to the Tribunal for review of those conditions arguing, among other things, that:

• the offset calculation did not take into account the native vegetation which would be retained on the site; and
• the wording of the conditions was uncertain and unreasonable.

Vegetation retained on site doesn't equal offset "discount"

The Tribunal did not agree with the applicant's first claim and held that retention of native vegetation on a site should generally not be considered in determining the offset required - 100% losses should be assumed in urban developments unless retained vegetation is on land subdivided into public space/reserve. These reasons were given:

• responsibility for offset should not be passed on from developer to future private owners;
• it would be contrary to the ordinary expectations of landowners to impose ongoing obligations in respect of native vegetation;
• in any event, compliance with such obligation would be very difficult, if not impossible, to police; and
• both the quality and quantity of remnant vegetation, once surrounded by private urban development, would be very difficult to maintain.

Permit conditions must be understandable, quantifiable and enforceable

The offset conditions in the Villawood permits contained details about the specific nature of the offsets required. It was this level of detail the applicant argued was inappropriate to be included in a planning permit. The Tribunal agreed and ordered that the detailed conditions be redrafted to require simply that "offset plans to the satisfaction of the DSE" be prepared and submitted to Council. (The type of detail that would be required in the offset plan was also outlined in the redrafted condition). The Tribunal held:

• Planning permit conditions must be certain/quantifiable and offset plans enforceable.
• Whether a permit to remove vegetation is granted depends on the significance of the vegetation and the extent of proposed removal. The decision to grant or deny the permit should not be determined by whether an offset plan has been prepared.
• It is unworkable to require final offset plans at the permit application stage as developers need the certainty of knowing they have a permit before, for example, acquiring land for the purposes of fulfilling the offset obligation or entering into negotiations with persons to improve the quality or quantity of vegetation on other land.
• A permit which involves the removal of native vegetation should be subject to two conditions:

1. preparation of an offset plan to the satisfaction of the responsible authority and the DSE (where appropriate); and
2. the offset plan should be implemented (mechanisms should be in place to ensure this occurs).

Native vegetation offsets

The Villawood decision has been an influential one and many of the issues the Tribunal discussed in the decision are addressed in the VPP Practice Notes which accompanied the Amendment only three months later. In particular, the Native Vegetation Offsets Practice Notes make it clear that:

• It is only necessary to determine an appropriate offset once it is decided that native vegetation may be removed.
• Details of the offset can be defined through a secondary consent process.
• It is better to define offsets in two stages:
• at the proposal stage (is there scope for a suitable offset?)
• at the approval stage (identify general source or strategy for providing appropriate offset)
• The actions in an offset plan must be reasonable, specific, achievable, quantifiable and enforceable.
• A condition could be to require the offset plan to be submitted to the satisfaction of the responsible authority (and DSE where it is a referral authority) before the vegetation removal starts.

More certainty for permit applicants

It will be interesting to see whether the guidance provided in the new Practice Notes will improve the workability of the Framework and the implementation of its policy of Net Gain. Importantly, it seems that following Villawood and the introduction of the Native Vegetation Offsets Practice Note, permit applicants will no longer need to invest significant amounts of time and money in preparing detailed offset plans before knowing whether their application has been successful.

For further information, please contact Megan Schroor.