VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P957/2020
Permit Application no. YR-2019/413	
CATCHWORDS	

Section 82 of the Planning and Environment Act 1987; Yarra Ranges Planning Scheme; Removal of vegetation; Environmental Significance Overlay 1; Significant Landscape Overlay 9; clause 52.17.     	

	
APPLICANT	Save the Dandenongs League Incorporated	
responsible authority	Yarra Ranges Shire Council	
RESPONDENT	Parks Victoria	
SUBJECT LAND	69, 71-73 Olinda-Monbulk Road
OLINDA  VIC  3788	
HEARING TYPE	Hearing	
DATE OF HEARING	11 February 2021	
DATE OF ORDER	7 May 2021	
CITATION	Save the Dandenongs League Incorporated v Yarra Ranges SC [2021] VCAT 435   	

Order
Permit refused
1	In application P957/2020 the decision of the responsible authority is set aside.
2	In planning permit application YR-2019/413 no permit is granted. 

Juliette Halliday
Member			

Appearances
For Save the Dandenongs League Incorporated	Ms Caroline Ebdon, Vice President, Save the Dandenongs League Inc. She called the following witness:
Mr Lincoln Kern, ecologist and bushfire risk consultant of Practical Ecology 	
For Yarra Ranges Shire Council	Ms Shaan Brooker, town planner of Brooker Planning	
For Parks Victoria	Ms Briana Eastaugh, lawyer of Maddocks. She called the following witnesses:
Ms Amanda Ring, town planner of SJB Planning
Mr Bruce Callander, arborist, Tree Logic Pty Ltd

Information
Description of proposal	Remove vegetation to allow the redevelopment of the existing cricket and football nets at the Olinda Recreation Reserve, as follows:
•	Removal of the existing netball court to the immediate north of the Olinda Public Hall and the construction of two new netball courts (north-south orientation), including two coaches shelters at the eastern and western boundaries of the proposed new courts;
•	Removal of two existing netball court light towers and replacement with four new light towers;
•	Refurbishment of the existing cricket nets, including new nets and concrete bases;
•	Relocate the existing access point off The Georgian Road; and
•	Fencing at The Georgian Road frontage.	
	It is proposed that the works would be carried out by Parks Victoria on behalf of the responsible authority, who is the relevant crown land manager.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Yarra Ranges Planning Scheme 	
Zone and overlays	Public Park and Recreation Zone (PPRZ) (eastern half (approximate) of the existing netball court and cricket nets).
Public Use Zone - Schedule 6 (PUZ6) (western half (approximate) of the existing netball court and cricket nets).
Environmental Significance Overlay - Schedule 1 (ESO1-Z4).
Significant Landscape Overlay - (SLO9).
Heritage Overlay (HO272) (Olinda Mechanics Institute Hall).
Bushfire Management Overlay (BMO).	
Permit requirements	Clause 42.01-2 of ESO1- to remove vegetation
Clause 42.03-2 of SLO9 - to remove vegetation 
Clause 51.03-3 (Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan)- to remove vegetation
Clause 52.17-1 (Native vegetation)- to remove native vegetation	
Land description	The Olinda Recreation Reserve is located at the north-eastern corner of the intersection of Olinda-Monbulk Road and The Georgian Road, Olinda, about 400 metres east of the Olinda township. The land is irregular in shape, with a frontage to Olinda-Monbulk Road of approximately 350 metres.
The Olinda Recreation Reserve provides various active and passive recreation facilities, including a sports oval, a clubhouse and amenities, a netball court and cricket nets, a Scout Hall and the Olinda Public Hall. Vehicle access to the site is via three access points, one from the Olinda-Monbulk Road (east of the Olinda Public Hall) and two via The Georgian Road. There is informal, unmade space for car-parking in various locations around the reserve. The permit application relates to the area where the netball court and cricket nets are located in the south-western corner of the Olinda Recreation Reserve.	
Tribunal inspection	I inspected the site after the hearing.   	

Reasons
WHAT IS THIS PROCEEDING ABOUT?
1	The Olinda Recreation Reserve hosts sporting and other recreational facilities in a picturesque location near the Olinda township. Parks Victoria is the permit applicant and it proposes to remove vegetation to enable the construction of cricket nets and two new netball courts, as well as accompanying buildings and works, including construction of new netball coaches shelters and new netball court lights.
2	Contrary to the recommendation of the officer who assessed the permit application to remove the vegetation, the responsible authority decided to issue of notice of decision to grant the permit to allow the removal of vegetation. A subsequent motion to rescind the responsible authority’s decision was lost, and the notice of decision to grant the permit was issued.
3	Save the Dandenongs League Inc (SDLI) applied to the Tribunal seeking review of responsible authority’s decision. SDLI relies on a number of grounds in support of its position that the responsible authority’s decision should be set aside. In addition to its submission that the removal of vegetation is inconsistent with the relevant provisions of the Yarra Ranges Planning Scheme (Scheme), the SDLI asserts that the removal of the vegetation will impact the scenic landscape and will lead to a loss in biodiversity protection in an area of conservation. 
4	The responsible authority submits that the impact of the vegetation removal is not so great as to warrant refusal of the application. It takes the view that the proposed removal of vegetation is consistent with the relevant provisions of the Scheme, and it will produce an acceptable outcome having regard to relevant Scheme provisions. 
5	Parks Victoria submits that the proposed removal of vegetation represents a net community benefit. It also submits that the objectives of the relevant provisions of the Scheme (including policy objectives relating to biodiversity) are met by the respondent’s proposal to remove native vegetation; to offset the removal of vegetation, and to plant 20 additional trees. 
6	The Tribunal must decide whether to grant a permit and if so, what conditions should apply. Having regard to the relevant provisions of the Planning and Environment Act 1987, the Scheme, the submissions of the parties and the documents filed with the Tribunal I have determined that a permit should not issue to allow the vegetation removal. My reasons for reaching this conclusion follow.
What are the key issues?
7	The key issues for determination in this matter are as follows:
a.	Should a permit be granted to remove the vegetation? 
b.	Is the proposal an acceptable outcome in terms of the provisions at clause 71.02-3 of the Scheme regarding integrated decision making? 
Site context
8	The Olinda Recreation Reserve has an oval with an adjacent clubhouse and amenities. The oval is used for cricket and football. There are cricket nets and an existing netball court (with an associated small pavilion) located to the south-west corner of the reserve which is the area of the site which is the subject of this application. The aerial photograph below (extracted from Ms Ring’s statement of expert evidence) shows the reserve and its improvements. The general location of native vegetation proposed to be removed is marked with green circles, with the access points from surrounding roads marked with blue arrows.

Scout hall

Japanese cypress row

Olinda Public Hall

Cypress row

Cricket nets

Oval

Sports pavilion

Netball court

Figure 1
9	The reserve contains tall canopy trees, including native Mountain Ash trees and introduced species, primarily around the perimeter, but also scattered around the site. Exotic trees include a row of mature Japanese Cedar trees along the eastern side of The Georgian Road.
10	The land surrounding the reserve is as follows:
a.	To the east is the former Olinda Public Golf Course, which is no longer used as a golf course. It has an area of about 34 hectares. It has been developed under the Olinda Golf Course Precinct Plan (2017) for recreational facilities;
b.	Further to the south-east is the Olinda Pool and Community House;
c.	To the north and north-east of the reserve is public land including the National Rhododendron Gardens, the RJ Hamer Arboretum and the Dandenong Ranges National Park; and
d.	To the west is the Olinda Bushland Reserve and privately owned, predominantly residential land;
e.	To the south is residential land.
11	The Olinda township is approximately 400 metres to the west of the site, and it is close to the Dandenong Ranges National Park which is known for its Mountain Ash trees and fern gullies (amongst other things).
what vegetation is proposed to be removed?
12	To facilitate the improvements to the netball court and cricket nets (which I have already described) the Council officer’s report states that it is proposed to remove the following vegetation:
a.	One large native canopy tree (Tree 1 – Mountain Ash) which the officer’s report says is over 60 metres in height;
b.	An additional large native canopy tree (Tree 7 – Mountain Ash) may need to be removed if deemed necessary by an arborist during the construction stage. For the purposes of the native vegetation offset requirements, both trees have been considered as ‘lost’. The permit application includes the removal of both Trees 1 and 7;
c.	Nine non-native trees and shrubs (comprising 8 Japanese Cedar trees land a Rubens shrub described as Trees 15-19 and 21-22, 26 and 32). 
13	The application involves the removal of 0.134 hectares of native vegetation comprising 0.03 hectares of understorey patch vegetation and 0.104 hectares of vegetation associated with scattered trees.
14	The trees proposed to be removed, are marked in the plan in Figure 2 below, which has been extracted from the attachments to the officer’s report.

Figure 2
15	Trees 1 and 7 in are positioned between the existing netball court and the Olinda Public Hall and to the south of the existing court, between the existing cricket nets and the Olinda Public Hall. The non-native trees proposed to be removed are located to the east of the existing netball court and cricket nets, close to the edge of The Georgian Road.
16	The application to remove the vegetation for the improvements to the netball court and the cricket nets arose out of the Olinda Golf Course Precinct Plan, April 2017 (Plan) prepared by Parks Victoria (which manages that site). The Plan was developed to guide the future of the former Olinda Golf Course after it ceased to operate. The Plan nominates the new netball court as ‘high priority’ and the new cricket nets as of ‘medium’ priority. The proposed works to upgrade the netball courts and the cricket nets follow works which have created the Olinda Green and Sports Oval, and an outdoor children’s playground and off-leash dog facility on land approximately 200 metres east of the review site.
what is the relevant policy and planning CONTEXT?
Public Use Zone and Public Park and Recreation Zone
17	As well as implementing the Municipal Planning Strategy (MPS) and the Planning Policy Framework (PPF):
a.	The PUZ seeks to recognise public land for public utility and community services and facilities and provide for associated uses that are consistent with the intent of the public land reservation and purpose, which in this case is ‘local government’; and
b.	The PPRZ seeks to recognise areas for public recreation and open space, protect and conserve areas of significance where appropriate and provide for commercial uses where appropriate.
18	I accept the uncontested submissions of the responsible authority and Parks Victoria that a permit is not required for the proposed use or development in:
a.	The PUZ6 as the use is exempt under clause 36.01-1. In addition, the proposed buildings and works are exempt under clause 62.02-1 of the Scheme on the basis that their estimated value is less than $1 million, and they are being undertaken by Parks Victoria on behalf of the Shire of Yarra Ranges as the public land manager. 
b.	The PPRZ as the use is exempt under clause 36.02-1 because it is carried out by or on behalf of a public land manager. In addition, the proposed buildings and works are exempt under clause 36.02-2 and clause 62.02-1. 
19	It was not contested that the exemption at clause 62.02-1 also applies to the permit requirement for buildings and works at clauses 42.03-2 of SLO9, clause 42.01-2 of ESO1 and clause 51.03-3 of the Scheme.
Environmental Significance Overlay 1 – Sites of botanical and zoological significance (ESO1)
20	As well as implementing the MPF and the PPF, the purposes of ESO1 contained in the head clause include identifying where the development of land may be affected by environmental constraints, and to ensure that development is compatible with identified environmental values. 
21	A permit is required to remove vegetation under ESO1. 
22	The statement of environmental significance under Schedule 1 to ESO1 is as follows:
The Shire contains extensive areas of remnant bushland which are an intrinsic part of the Shire’s unique landscape and environmental character. 
Sites of botanical and zoological significance also play an important role in contributing to the ecological processes and biodiversity of the region by forming core habitat areas within a complex network of wildlife corridors along roadsides and watercourses. Development within and around these sites needs to be appropriately managed to ensure the long term protection and sustainability of these ecological processes. 
These sites have been identified following detailed assessment of their botanical and zoological significance in studies carried out as part of previous reviews of the Regional Strategy Plan and planning schemes in the Shire. 
The reference codes (eg B1 and Z1) shown on the planning scheme map for these sites correspond with the list of sites at Clause 6.0 of this schedule. This list describes the sites and has a cross-reference to the Regional Strategy Plan.
23	The subject land in within site ‘Z4’ which relates to ‘Olinda State Forest, Silvan Reservoir and Olinda Creek Reserve’. The Report on Sites of Zoological significance in the Upper Yarra Valley (Western Sections) and Dandenong Ranges (Report) is a reference document listed in Schedule 1 of ESO1. The relevant citation in the Report:
a.	Describes the ‘Olinda State Forest, Silvan Reservoir and Olinda Creek Corridor’ as one of tall open forest comprising Mountain Grey Gum and Mountain Ash;
b.	Indicates that the ‘Olinda State Forest, Silvan Reservoir and Olinda Creek Corridor’ is of regional zoological significance due to the presence of the Broad-toothed Rat, the Black-faced Monarch and other species such as the Superb Lyrebird, Pilotbird and Large-billed Scrubwren; and
c.	Indicates that the Powerful Owl, the Barking Owl, amongst other species such as the Long-nosed bandicoot, Greater Glider and the Dusky Antechinus are also recorded as occurring in the ‘Olinda State Forest, Silvan Reservoir and Olinda Creek Corridor’.
24	The environmental objectives to be achieved under ESO1 include ensuring the long term protection of the wildlife habitat and other conservation values of sites of botanical and zoological significance, recognising the importance of sites of botanical and zoological significance as core habitat areas, and ensuring that the habitat value of the sites is not diminished by the incremental removal of remnant vegetation or inappropriate development. 
Significant Landscape Overlay 9 - Main Ridge-Dandenong Ranges (SLO9)
25	Whilst the site is within SLO1, by virtue of the table at clause 5.0 of the Schedule to SLO1, it is affected by SLO9 - Main Ridge-Dandenong Ranges. As well as implementing the relevant policies, the purposes of the SLO9 set out in the head clause are to identify significant landscapes and to conserve and enhance the character of significant landscapes. A permit is required to remove any vegetation.
26	The statement of the nature and key elements of the landscape in SLO9 is as follows:
This area comprises the cluster of small townships located in the main central ridge of the Dandenong Range. The landscape of this area is characterised by a unique combination of low density residential areas set amidst many large and mature gardens of exotic plants, pockets of rural land and remnants of the original Mountain Ash forests and fern gullies. 
The area includes many panoramic viewing points with vistas to the ranges to the east and across the Melbourne metropolitan area to the west. The townships within the area comprise only small commercial centres which have generally retained a “village” character. 
The Dandenong Ranges are an important visual, environmental and recreational resource for not only the local community, but for Melbourne and the State in general. The area is a major focus for tourist activities and its appearance is important in defining the overall image of the Dandenong Ranges as an attractive visitor destination. 
The protection of the diverse landscape elements of this area would be compromised by further intensification of residential development, the spread of commercial land uses outside established town centres and the development of inappropriate commercial development which does not reflect the established character of the townships. 
Effective management of the substantial exotic and native vegetation will also be required to ensure the ongoing protection of the unique character of the area.
27	The landscape character objectives to be achieved include the following:
Protect and enhance the environmental, scenic, visual, cultural and scientific values of the significant landscapes which have been identified in the Shire. 
Conserve the flora and fauna and associated ecological processes that contribute to the significance of the identified landscapes. 
Ensure that any new development is located and designed to avoid inappropriate visual intrusion or other detrimental effects on the key characteristics of the identified landscapes.
…
Clause 51.03 – Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan
28	The purpose of clause 51.03 is to ensure consistency between the Scheme and the Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan pursuant to the requirements of Part 3A of the Planning and Environment Act 1987.
29	I accept Parks Victoria’s uncontested submission that no permit is required under clause 51.03 for the proposed buildings and works (as the exemption at clause 62.02-1 applies). 
30	A permit is required under clause 51.03 to remove both native and non-native vegetation, as none of the exemptions in clause 51.03 apply in this case.	
Clause 52.17
31	The purpose of clause 52.17 is to ensure that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation. This is achieved by applying the three-step approach in accordance with the Guidelines for the removal, destruction or lopping of native vegetation (Department of Environment, Land, Water and Planning, 2017) (Guidelines). The three-step approach involves, avoiding the removal of native vegetation, minimising impacts from the removal of native vegetation and providing an offset to compensate for the biodiversity impact, if  a permit is granted to remove native vegetation.
32	Clause 52.17 and the Guidelines set out relevant decision guidelines and offset requirements, which I have considered, but do not recite here.
Planning Policy Framework (PPF) and Local Planning Policy Framework (LPPF)
33	Relevant themes found in the PPF include:
a.	Recognising the importance of, and protecting and enhancing the valued attributes of distinctive areas and landscapes (such as the Yarra Ranges), and developing sustainable communities through a settlement framework offering convenient access to jobs, services, infrastructure and community facilities (clauses 11.01-1S Settlement and 11.03-5S Distinctive areas and landscapes);
b.	Assisting with the protection and conservation of Victoria’s biodiversity; avoiding impacts of land use and development on important areas of biodiversity, and ensuring that there is no net loss to biodiversity as a result of the removal, destruction or lopping of native vegetation (clauses 12.01-1S Protection of biodiversity and 12.01-2S Native vegetation management);
c.	Achieving neighbourhoods that foster healthy and active living and community wellbeing through strategies which include providing conveniently located public open spaces for active recreation and leisure (clause 15.01-4S Healthy neighbourhoods); and
d.	To establish, manage and improve a diverse and integrated network of public open space that meets the needs of the community through strategies such as accommodating community sports facilities in a way that is not detrimental to other park activities (clause 19.02-6S Open space).
34	The municipal profile at clause 21.02 of the Municipal Strategic Statement (MSS) says that the Shire has long been recognised as a special place for its natural beauty and diverse habitats (clause 21.02). Olinda is identified as being in a ‘rural’ area within the strategic framework map at clause 21.03 of the Scheme. 
35	In terms of ‘Landscape’ the objective of clause 21.07 is to retain and protect scenic landscapes, rural and green wedge character and special environmental features of the Shire through strategies such as protecting and enhancing environmental and landscape values, particularly those derived from remnant vegetation. Amongst other things, it is policy at clause 21.07 that all development be designed and sited to avoid the removal of remnant vegetation, particularly healthy trees above five metres in height.
36	Relevant objectives and strategies in the ‘Environment’ policy at clause 21.09 include:
a.	Protecting and conserving the environmental characteristics of the Shire which are of local, regional, state and national significance through strategies such as preventing incremental loss of remnant vegetation and ensuring the proper consideration of the environmental effects of proposals to remove native vegetation (clause 21.09-1 Biodiversity); and
b.	Protecting and enhancing the Shire’s rich biodiversity through strategies such as identifying and ensuring effective management of sites of natural significance having regard to the role of remnant vegetation in the landscape value and visual amenity of the Shire (clause 21.09-1 Biodiversity). Olinda is recognised in the map at clause 21.09 for its significant landscapes plus its ‘botanical and/or zoological significance’.
37	In terms of ‘Community Infrastructure’ objectives at clause 21.11 seek to improve access to a well-planned range of Shire-based community services that meet the current and future needs of residents (amongst other things) through strategies such as encouraging the provision of community services in convenient locations. 
38	The policy basis at clause 22.05-1 of the LPPF regarding ‘Vegetation protection’, states (amongst other things) that the protection and enhancement of the Shire’s biodiversity is a prime objective of the Scheme;  that remnant vegetation is one of the most important resources of the Shire, and that vegetation is an important feature of the Shire’s scenic landscapes and contributes to the unique character of rural areas.
39	Relevant objectives at clause 22.05-2 include the following:
a.	Recognise the importance of remnant vegetation in providing wildlife habitat and corridor for wildlife movement, as a source of genetic diversity, as a place for recreation and as a feature of the special landscape character of the Shire; and
b.	Conserve and protect the habitat of native fauna, especially species which are threatened or endangered.
Ecological and arboricultural assessments of the vegetation
Biodiversity Assessment
40	Parks Victoria relied on a biodiversity assessment prepared by Biosis (Biosis Report) which indicates as follows:
a.	The proposed development will require the removal of 0.134 hectares of native vegetation including two large native canopy trees which are classified as ‘scattered trees’ under the Guidelines;
b.	The area is in the Wet Forest EVC (ECV 30) which has a Biodiversity Conservation Status of ‘least concern’ within the Highlands-Southern Fall Bioregion;
c.	The planning permit application will be assessed on the intermediate assessment pathway under the Guidelines;
d.	An offset of 0.031 general habitat units and two large trees will be required in the Port Phillip and Westernport catchment management area or the Yarra Ranges Shire with a minimum strategic biodiversity score of 0.460;
e.	Parks Victoria intend to purchase the required offsets through a broker and a quote has been obtained through a broker, indicating that the required offset can be obtained;
f.	The native vegetation to be removed is foraging habitat for three significant fauna species being the Swift Parrot, Grey Headed Flying-Fox and Powerful Owl; and
g.	No hollows exist in either of the two large trees to be removed. 
41	Parks Victoria seeks to highlight that the Biosis Report indicates that the native vegetation to be removed is not in an area that is mapped as an endangered Ecological Vegetation Class (as per the state wide EVC map), sensitive wetland or coastal area. The Biosis Report indicates that for the purposes of assessing the offset under clause 52.17 of the Scheme, that removal of less than 0.5 hectares in this location will not have a significant impact on any habitat for rare or threatened species. I have taken the assessment of offsets under clause 52.17 in the Biosis Report into consideration in reaching my conclusions in this matter. 
Condition of the vegetation
42	Mr Callander gave expert evidence on behalf of Parks Victoria. Amongst other things, it is Mr Callander’s evidence that:
a.	The arboricultural rating of Tree 1 is ‘Moderate B’ tending towards ‘Moderate C’ category; and
b.	The arboricultural rating of Tree 7 is ‘Moderate A’ category;
c.	Retention of ‘Moderate’ rated trees is generally desirable in conjunction with reasonable design intent and appropriate tree protection measures;
d.	Based on the excessive level of tree protection zone (TPZ) encroachment to both Trees 1 and 7, it is difficult to justify retaining either of these trees in conjunction with the proposed works, and the proposed design is incompatible with retaining both of these trees. The suitability of retaining Tree 7 should be reviewed given the proposed construction within the TPZ;
e.	The Japanese Cedar trees have ‘low arboricultural value’ and their removal represents an opportunity to renew the landscape in this roadside setting.
Should a permit be granted to remove the vegetation? 
43	The SDLI submits that the proposal is inconsistent with the relevant provisions of the Scheme, including State and local policies at clauses 12, 21.07, 21.09 and with the provisions of SLO9, ESO1 and clause 52.17 of the Scheme. It also submits that:
a.	It has not been adequately demonstrated that the removal of Trees 1 and 7 cannot be avoided;
b.	The vegetation in question has been assessed as being in good health, and represents no immediate risk of personal injury or damage to property; and
c.	The granting of the permit risks destroying the heritage and cultural significance of the Olinda Public Hall (which is affected by HO 272).
44	Lay witness statements were tendered on behalf of the SDLI from a number of persons and I have taken these into account in reaching my conclusions in this matter. I have not treated the statement from Dr Greg Moore as an expert witness statement, as it was not prepared according to the Tribunal’s Practice Note - PNVCAT2 - Expert Evidence, and it was not tested as such at the hearing.
45	Mr Kern was called to give expert evidence on behalf of the SDLI. Amongst other things, it is Mr Kern’s evidence that:
a.	The proposed tree losses represent significant habitat in the form of large trees that are part of a very large site of zoological significance protected under the ESO, and incremental decisions to clear habitat can add up to significant impacts over time;
b.	The requirement to avoid and minimise native vegetation clearing has not been met adequately because of the significant opportunities to place the desired facilities across the entire Olinda Golf Course Precinct;
c.	It is likely that more trees should be considered lost than determined in the permit application because of the inevitable impacts of expanding the netball courts and changing the dynamics and pressures of car parking; and
d.	The proposal has not taken into account the likely increased bushfire risks for the users of the facilities.
46	In essence, the responsible authority submits that the proposed vegetation removal is acceptable on the following basis:
a.	The reserve has been heavily modified by human activity, and the scenic quality of the landscape will remain largely unchanged as a result of the proposed vegetation removal;
b.	The removal of the vegetation will not diminish the key characteristics of the landscape, and there is remaining vegetation, including large canopy trees that will be unaffected;
c.	It  has sought to give greater weight to the needs of the community for recreation facilities, over and above its policy with regard to vegetation protection;
d.	It is satisfied that it is not possible to avoid the removal of the vegetation, if the proposed buildings and works are to occur; and
e.	It is satisfied that the removal of vegetation has been minimised to the extent possible, and while the loss of Tree 1 and Tree 7 is regrettable, an offset will compensate for this loss.
47	Parks Victoria submits that the objectives of clause 52.17, the SLO9 and ESO1 and other policy objectives relating to biodiversity are met by the respondent’s proposal to offset the removal of vegetation, and also to plant 20 additional trees. It also submits that the proposed offsets and additional planting of new trees will:
a.	Enhance the environmental, scenic and cultural value of the Olinda Recreation Reserve in accordance with the SLO and clause 21.07;
b.	Contribute to the significance of the Olinda Recreation Reserve landscape in accordance with the SLO;
c.	Enhance the environmental characteristics of land within the Shire in accordance with clause 21.09;
d.	Ensure that the habitat value of the site is not diminished in accordance with the ESO1;
e.	Maintain the ecological processes and genetic diversity of the region in accordance with the ESO1;
f.	Ensure that the permitted clearing of native vegetation results in no net loss in the contribution made by native vegetation to Victoria’s biodiversity in accordance with clause 12.01-2S and clause 52.17.
48	It was also submitted by Parks Victoria that the proposal to upgrade the netball courts and cricket nets (being the reason for the removal of the vegetation) will be appropriately co-located in close proximity to other existing and complementary recreational facilities, enhancing public safety (including the safety of netballers, many of who are female) and improving social and community connection and public health and safety. On balance, Parks Victoria submits that the proposed removal of vegetation represents a net community benefit.
49	Ms Ring gave expert evidence on behalf of Parks Victoria. Amongst other things, it is Ms Ring’s evidence that:
On balance, I consider that the minimised loss of vegetation can be sustained for the advancement of a range of other relevant planning policies in the scheme which are aimed at ensuring that the community is adequately provided with a range of social infrastructure in suitable locations, including sporting facilities.
In conclusion, I am satisfied that a permit for the removal of vegetation would produce an acceptable planning outcome with a net community benefit.
50	It is Mr Callander’s evidence (amongst other things) that Trees 1 and 7 will become increasingly inappropriate in terms of site suitability. His evidence is that a more appropriate tree species could be selected that better suits the available space and scale of the site of the netball courts and that has a lower residual risk in relation to the site usage.
Response to requirements of ESO1
51	The subject land is located within a site of zoological significance under ESO1 (being Site No. Z4 Olinda State Forest, Silvan Reservoir and Olinda Creek Reserve). The statement of environmental significance for ESO1 says that detailed assessments of the botanical and zoological significance of sites were carried out to identify sites of botanical and zoological significance which are affected by ESO1. The Report (which is a reference document under the schedule to ESO1) indicates that the broader Site No. Z4 Olinda State Forest, Silvan Reservoir and Olinda Creek Reserve is of regional zoological significance and supports the presence of a number of fauna species, including the Powerful Owl, the Barking Owl, the Broad-toothed rat, Black Faced Monarch and the Superb Lyrebird. In terms of the subject site itself, the Biosis Report indicates that the native vegetation to be removed is foraging habitat for three significant fauna species being the Swift Parrot, Grey Headed Flying-Fox and Powerful Owl. 
52	As required under the decision guidelines for ESO1, I have considered the capability of the site to accommodate the development without adversely affecting environmental features of the site and any alternative means of locating the proposed buildings and works so as to protect and enhance the environmental features of the site (amongst other matters referred to in the decision guidelines). 
53	In this regard, Parks Victoria submits that it has sufficiently considered alternative options, including siting and design, through its various consultation, design and technical investigations over the course of many years (including consultation with a range of community and government stakeholders). This includes the following:
a.	An original concept design with the coaches shelters to the north and south of the netball courts;
b.	A reduction in the crushed rock pavement width;
c.	Design changes to relocate the cricket nets to further minimise the impact of construction on Tree 7;
d.	An alternative design to retain Tree 1. This alternative design was ruled out, as there was doubt it would result in the survival of Tree 1;
e.	The option of locating part of the infrastructure to the south-east section of the site was explored and deemed inappropriate because of the presence of native vegetation; the existing use of this area (which includes access and car-parking) and lack of access to existing infrastructure on the site, including toilets and change rooms.
54	I accept that there are challenges in terms of alternative means of locating the netball courts and cricket nets to protect Trees 1 and 7. However, it appears that other alternative options may be available, such as locating the cricket nets elsewhere in the reserve and potentially reorienting the netball courts. 
55	Whilst I have taken the challenges in terms of alternative locations for the proposed netball court and cricket nets into account, on balance, I am not persuaded that a permit should be granted under ESO1 for the removal of Trees 1 and 7. I make this finding on the basis that the removal of Trees 1 and 7 conflicts with the objectives of ESO1, for the following reasons:
a.	The Biosis Report indicates that the proposal would involve the removal of forging habitat for wildlife, being the Swift Parrot, Grey Headed Flying-Fox and Powerful Owl which is also referred to in the Report as a species which is present in the broader Site No. Z4 Olinda State Forest, Silvan Reservoir and Olinda Creek Reserve. The removal of Trees 1 and 7 does not ensure the long term protection of habitat for this wildlife. It would diminish the habitat value of the site for wildlife through the incremental removal of remnant vegetation;
b.	The removal of Trees 1 and 7 is not consistent with the objective which seeks to protect the natural resources and maintain the ecological processes of the region (such as foraging by wildlife within Trees 1 and 7);
c.	The remnant vegetation on the subject land and the surrounding area includes tall Mountain Ash trees, which are an intrinsic part of the environmental character of the area. The proposed removal of Trees 1 and 7 is inconsistent with the objective which seeks to reinforce the existing environmental characteristics of the area, because it will remove, rather than reinforce remnant vegetation within the reserve; and 
d.	Whilst the Biosis Report indicates that Trees 1 and 7 form part of the Wet Forest EVC (ECV 30) which has a Biodiversity Conservation Status of ‘least concern’ within the Highlands-Southern Fall Bioregion, Trees 1 and 7 form part of a site of regional zoological significance that is part of a ‘core habitat area’ according the Statement of environmental significance for ESO1. Trees 1 and 7 are also identified as foraging habitat for wildlife including the Swift Parrot, Grey Headed Flying-Fox and the Powerful Owl.
56	I find that the proposal to remove Trees 1 and 7 it is not consistent with objectives in the Scheme which seek to protect and conserve Victoria’s biodiversity, and to protect and enhance the rich biodiversity of the Shire (clause 12.01-1S Protection of biodiversity and clause 21.09-1 Biodiversity). Nor is it consistent with strategies and objectives which seek to prevent the incremental loss of remnant vegetation on public land and to protect and enhance the long-term viability of all remnant vegetation (clause 21.09-1 Biodiversity and clause 22.05-2 Vegetation protection). I am not persuaded that the removal of Trees 1 and 7 would ensure that the clearing of remnant vegetation will not have any adverse effect on wildlife habitat (which is what is sought at clause 22.05-2 Vegetation Protection).
57	I also find that the proposal to remove Trees 1 and 7 is contrary to the strategy in the Scheme which seeks to protect wildlife habitat, including the flora and fauna values of public land (21.09-1 Biodiversity). I am not persuaded that the removal of Trees 1 and 7 is consistent with the objective at clause 22.05-2 (Vegetation Protection) that seeks to ensure the conservation of remnant vegetation to sustain and enhance natural ecosystems for both plants and animals. In my view, the proposal to remove Trees 1 and 7 is also not consistent with the objective at clause 22.05-2 (Vegetation protection) which seeks to conserve and protect the habitat of native fauna which use the trees for foraging. According to the Biosis Report this could include the Swift Parrot, Grey Headed Flying-Fox and the Powerful Owl. 
58	The Japanese Cedar Trees have not been identified as having environmental significance under ESO1. On this basis, I see no obstacle to a permit being granted under ESO1 for the removal of the Japanese Cedar trees and the shrub (being Trees 15-19 and 21-22, 26 and 32).
Response to requirements of SLO1
59	Amongst other things, it is Parks Victoria’s submission that while the trees make some contribution to the landscape character of the area:
a.	Only one native tree (potentially two) is proposed to be removed;
b.	The two Mountain Ash trees are located somewhat remotely from others of their type in the area (such as the forested areas further north and east where they grow in significant numbers);
c.	Mr Callander describes the two Mountain Ash trees as having only ‘moderate’ (rather than ‘high’) arboricultural value;
d.	The exotic trees are considered to be of low arboricultural value due to their species and condition; 
e.	Any loss of landscape values will be mitigated through the proposed offset process, and the planting of an additional 20 new trees, which will in turn enhance the landscape character and environmental values of the area; and
f.	It will attempt to retain Tree 7 during construction unless an arborist is of the opinion that the tree needs to be removed during construction.
60	The landscape of the area is characterised by a large oval and associated sporting facilities set amidst a backdrop of tall canopy trees located around the perimeter of the site, and scattered through parts of the site. This vegetation includes tall Mountain Ash trees which are up to about 60 metres in height, and exotic trees planted on parts of the perimeter of the site. Trees 1 and 7 are located behind the Olinda Public Hall. Due to their location and height, both trees are visually prominent when viewed from the Olinda-Monbulk Road, the oval, the sporting pavilion and the adjoining car park.
61	Taking this context into account, I am not persuaded that a permit should be granted under SLO9 for the removal of Trees 1 and 7. I make this finding on the basis that the removal of Trees 1 and 7 is inconsistent with objectives of SLO9 and the relevant policies in the Scheme, for the following reasons:
a.	The removal of Trees 1 and 7 will not protect and enhance the scenic and visual values of the area, a key element of which is identified in SLO9 as being remnants of the original Mountain Ash forests;
b.	Removal of Trees 1 and 7 would not conserve or enhance the two Mountain Ash trees, which are identified in SLO9 as tree species which contribute to the significance of the Main-Ridge-Dandenong ranges significant landscape.;
c.	Relevant objectives and strategies in the Scheme seek to:
i.	Retain and protect the scenic landscapes and special environmental features of the Shire (clause 21.07 Scenic landscapes);
ii.	Protect and enhance environmental and landscape values, particularly those derived from remnant vegetation (clause 21.07 Scenic landscapes);
iii.	Ensure that the clearing of native vegetation will not have any adverse effect on landscape values and wildlife habitat (amongst other things) (clause 22.05 Vegetation protection).
d.	Although only two Mountain Ash trees would be removed, their removal would result in the loss of two visually prominent trees which contribute to the unique character of the reserve and the surrounding area. Their removal would significantly detract from the landscape character of the site through the loss of tall, Mountain Ash tree canopy in the south-west part of the reserve. In my view, this is inconsistent with the relevant objectives and strategies in clause 21.07 and 22.05 referred to above; and
e.	Mr Callander’s evidence is that Trees 1 and 7 sit within the range of what he describes as ‘Moderate’ rated trees, which categorises the trees as being worthy of retention (in conjunction with reasonable design intent and appropriate tree protection measures). On the basis that Trees 1 and 7 are worthy of retention, I consider that their removal would be inconsistent with the policy which seeks all development to be designed and sited to avoid the removal of remnant vegetation, particularly healthy trees above 5 metres in height (clause 21.07 Scenic landscapes).  
62	Whilst the exotic trees proposed for removal do make some contribution to the landscape character of the area, Mr Callander’s evidence is that the Japanese Cedar trees have ‘low arboricultural value’ and their removal represents an opportunity to renew the landscape. I am satisfied that the loss of landscape values from the removal of the exotic trees and shrub (Trees being Trees 15-19 and 21-22, 26 and 32) could be mitigated through planting of new vegetation in their place which could enhance the landscape character and environmental values of the area. In this regard, I accept Ms Ring’s evidence that more appropriate (and indigenous) species, could be planted in this roadside location to make an improved and positive contribution to the landscape character and environmental values of the area.
Response to requirements of clause 52.17
63	Parks Victoria submits that the proposal has sought to avoid or minimise the removal of vegetation by:
a.	Proposing a modest upgrade of the existing facilities to service local needs (rather than broader regional needs which might have required more vegetation removal);
b.	Resulting in a net increase of just one netball court;
c.	Refurbishing the existing cricket nets rather than replacing the or moving them substantially;
d.	Moving the relocated accessway further north where it will not substantially impact upon existing vegetation; and
e.	Locating the netball courts and cricket nets in an area that is already mostly disturbed.
64	The Biosis report also describes steps that have been taken to minimise impacts on biodiversity from the removal of vegetation which I have considered but do not set out here. I note that the Biosis Report also indicates the offsets that will be required, and the intention to purchase these offsets through a broker.
65	A Project Design Report also describes steps that were taken to explore alternative options for siting and design in order to identify the optimum siting location and protect and enhance the environmental features of the site, which I have considered but do not set out here.
66	Whilst I place some weight on the fact that the Department of Environment Land, Water and Planning has not objected to the proposed removal of native vegetation under clause 52.17, I do not think that is the end of the matter. In my view, I must consider clause 52.17 and the relevant decision guidelines in the Guidelines and reach my own conclusion about whether the three-step approach in clause 52.17 has been appropriately followed in this case.
Avoid, minimise and offset
67	Based on the facts and circumstances of this matter, I have not been persuaded that the proposed development has been appropriately designed and sited to avoid and minimise impacts on native vegetation, in terms of the three-step approach set out in clause 52.17 and in the relevant decision guidelines in the Guidelines. 
68	Relevantly, previous decisions of the Tribunal have acknowledged that in assessing the decision guidelines under the Guidelines, it is open to the Tribunal to consider alternative locations or designs to assess whether  a proposed development has been located and designed to avoid or minimise the removal of native vegetation.
69	The material before me from the Biosis Report, the Project Report and Parks Victoria’s submissions indicates that other options were considered within the site to locate the new netball court. It was assessed that the proposed location of the court minimised the number of valuable trees impacted compared to other options for siting in the reserve taking into account the impact within the court footprint and other matters such as access arrangements. 
70	Based on the facts and circumstances of this matter, I have not been persuaded that there are no other feasible opportunities on the site to further avoid and minimise impacts on native vegetation without undermining the key objectives of the proposal. This may include options such as moving the cricket nets to a different location, and reorienting the netball courts to avoid (or further minimise) the removal of native vegetation, without undermining the key objectives of the proposed development. On this basis, my conclusion is that no permit should be granted for the removal of Trees 1 and 7 under clause 52.17, as I am not satisfied that the proposed development has been appropriately designed and sited to avoid and minimise the impacts on native vegetation.
other issues
Bushfire Management Overlay
71	Whilst the BMO applies to the site, there is no requirement for a permit under this overlay, as the proposed works are exempt under clause 62.02-1 of the Scheme. Whilst bushfire management matters were raised by the SDLI and Mr Kern gave evidence about bushfire management, it is not necessary for me to address the requirements of the BMO, as there is no requirement for a permit under the BMO.
Heritage Overlay
72	The Olinda Public Hall (also known as the Olinda Mechanics Institute) is  located at 69 Olinda-Monbulk Road, Olinda and is affected by the Heritage Overlay (HO272). I understand from the submissions of the council and the evidence of Ms Ring that the area of the site that is the subject of the permit application to remove vegetation is not located within the extent of the Heritage Overlay. Whilst the impacts of the vegetation removal on the Olinda Public Hall were raised in the submissions of the SDLI, there is no permit trigger under the Heritage Overlay for the vegetation removal. On this basis, it is not necessary for me to address the Heritage Overlay.
Is the proposal an acceptable outcome in terms of the provisions at clause 71.02-3 of the Scheme regarding integrated decision making? 
73	Amongst other things, Parks Victoria submits that the correct approach to the assessment of this application requires a consideration of all relevant policy (including policy seeking to promote health and safety, enhance a safe public realm, and provide for equitable and convenient access to community recreational facilities), and the balancing of conflicting policy in favour of net community benefit and sustainable development.
74	It submits that the benefits of the proposal to develop the netball courts and cricket nets include the following:
a.	It will make use of existing community facilities and infrastructure, noting the site is in the PUZ6 and PPRZ and is already used for active sport and recreation;
b.	It will facilitate the long-awaited and much needed upgrade of the netball court and cricket nets, catering for the growing needs of the community and the sporting groups who regularly use them; and
c.	It will deliver on a funding priority of Parks Victoria and Sport and Recreation Victoria to facilitate Stage 3 of the Olinda Precinct Plan (equating to a total of $7.67 million).
75	Lay witness statements from Ben Selby-Hele (President of the Hilltop Recreation Association) and Georgia Martin (member of the Olinda-Ferny Creek Netball Club) were tendered in support of the proposed development, as was a letter from Netball Victoria in support of the proposed development. I have taken these documents into consideration in reaching my conclusions in this matter.
76	Parks Victoria submits that the proposal is consistent with relevant provisions and policies in the Scheme including:
a.	The PUZ6 and PPRZ which seek to recognise areas for public recreation and open space, and to recognise public land for public utility and community services and facilities;
b.	Clause 11.01-1S (Settlement) which seeks to ensure sustainable development by strategies including developing sustainable communities through a settlement framework offering convenient access to jobs, services, infrastructure and community facilities;
c.	Clause 19.02-4S (Social and cultural infrastructure) which seeks to provide fairer distribution of and access to, social and cultural infrastructure by strategies including plan and design community places and buildings so they can adapt as the population changes and different patterns of work and social life emerge;
d.	Clause 19.02-6S (Open space) which seeks to establish, manage and maintain a diverse and integrated network of public open space that meets the needs of the community;
e.	Clause 21.11 (Community infrastructure) which seeks to establish a network of recreational, leisure and cultural facilities and programs which reflect the natural and environmental attributes of the Shire; and
f.	Plan Melbourne, which recognises that strong communities need access to recreation spaces, the provision of open spaces and sports field (amongst other things).
77	I do not consider that the objectives and strategies in the Scheme upon which Parks Victoria referred, including those which seek convenient access to community facilities to manage and maintain a diverse and integrated network of public open spaces to meet the needs of the community outweigh the similarly important objectives and strategies in the Scheme which seek to assist in the protection and conservation of Victoria’s biodiversity and to protect the special environmental features of the Shire.
78	 In terms of integrated decision making, clause 71.02-3 provides as follows:
Society has various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development. 
Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
…
79	In reaching my conclusion that no permit should be granted to remove Trees 1 and 7, I have considered and applied the principles of integrated decision making set out in clause 71.02-3 and in Boroondara City Council v 1045 Burke Road Pty Ltd. 
80	I have found that that the removal of Trees 1 and 7 would be contrary to policies at clauses 21.07, 21.09 and 22.05 and elsewhere in the Scheme. Based on the facts and circumstances of this matter, I find that the refusal to grant a permit to remove Trees 1 and 7 will result in a net community benefit and sustainable development for the benefit of present and future generations.
conclusion
81	I have considered the proposed removal of vegetation under the various Scheme provisions for which a permit is required. Based on the facts and circumstances of this matter, I find that a permit should not be granted to remove Trees 1 and 7. The effect of this is to rule out the proposal, even though I would have granted a permit for the removal of the Japanese Cedar trees and the shrub (being Trees 15-19 and 21-22, 26 and 32). It follows that I direct that no permit is granted.

Juliette Halliday
Member