VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P1400/2020
Permit Application no. PA292/2019	

CATCHWORDS	
Section 77 of the Planning and Environment Act 1987; Farming Zone; Four Lot Re-Subdivision/Boundary Re-alignment; Campbells Creek Township; Building Envelopes; Effluent Fields; Removal of Native Vegetation; Rural Living; Growling Grass Frog; Eltham Copper Butterfly.	

Applicant	Robert Sporle	

Responsible Authority	Mount Alexander Shire Council	
Referral Authorities	Goulburn Murray Water Corporation Department of Environment, Land, Water and Planning	
SUBJECT LAND	75 Rowley Park Road
CAMPBELLS CREEK    3451	
HEARING TYPE	Hearing	
DATEs OF HEARING	8 and 9 September, and 3 November, 2021	
DATE OF INTERIM ORDER	9 September 2021	
DATE OF ORDER	26 November 2021	
CITATION	Sporle v Mount Alexander SC [2021] VCAT 1374	
Order
Permit application amended
1	Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended to:
Boundary re-alignment/subdivision and native vegetation removal, with building envelopes.
No permit granted
2	In application P1400/2020 the decision of the responsible authority is affirmed.
3	In planning permit application PA292/2019 no permit is granted.

Margaret Baird
Senior Member			

Appearances
For Robert Sporle	Ms L Hicks of counsel instructed by Mr J Lyons, Ratio Consultants.  She called the following person to present expert evidence:
•	Mr S Mueck, botanist.	
For Mount Alexander Shire Council	Ms C Harriott, Statutory Senior Planner (Days 1 and 2).  Mr D Spark, Fast Track Planner (Day 3).	
For Department of Environment, Land, Water 
and Planning [DELWP]	Mr T Norden, Department of Environment, Land, Water and Planning (Days 2 and 3).  	
Information
Description of proposal	Re-align the boundaries of four Crown allotments to create four lots, each with building and effluent envelopes.  Remove native vegetation associated with fencing, driveways, effluent disposal areas and building envelopes intended for one dwelling on each lot.	
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. 	
Planning scheme	Mount Alexander Planning Scheme [scheme].	
Zone and overlays	Farming Zone [FZ].  Bushfire Management Overlay [BMO].	
Permit requirements	Clause 35.07 to subdivide the land.  Clause 44.06 to subdivide the land.  Clause 52.17 to remove native vegetation.	
Relevant scheme policies and provisions	Clauses 02.03, 02.04, 11.01, 11.02, 12.01, 12.03, 13.02, 14.01, 14.02, 15.01, 16.01, 35.07, 44.06, 53.02, 65 and 71.  	
Land description	The land comprises four Crown allotments and is 10.25 hectares in area. Several dilapidated buildings are associated with a cleared area of approximately 0.8 hectare on the largest Crown allotment 3.  The allotment has access from the unsealed public Rowley Park Road. Most of the land is heavily vegetated, with “Poverty Gully” running through the southern part of the site.  	
Tribunal inspection	23 November 2021 (unaccompanied).   	

Reasons
What is this application about?
1	Mr Robert Sporle [applicant] applied to the Mount Alexander Shire Council [Council] for a planning permit to re-align the boundaries of four Crown allotments.  
2	Three existing Crown allotments range in size from 0.476 hectare to 0.651 hectare.  The fourth, and largest, is Crown allotment 3 with an area of 8.4 hectares.  The proposed configuration is shown in the plan of subdivision (an extract of which is below).  Proposed lot sizes are:
Lot 1 – 1.671 hectares	Lot 2 – 2.257 hectares	
Lot 3 – 2.089 hectares	Lot 4 – 4.251 hectares	

3	The Council refused to grant a permit on two grounds.  DELWP objects to the permit application with respect to native vegetation removal.  The Council relies on DELWP’s view.  It also considers the permit application fails to implement scheme policy for agricultural land, is inconsistent with the purpose and decision guidelines in clause 35.07, and is inconsistent with policy to discourage new dwellings on existing small lots in the FZ.
4	The applicant challenges all of the Council’s grounds.  It relies on expert evidence with respect to native vegetation removal.  It argues that there are specific reasons why the proposal will assist to “unlock the land and enable it to be used and managed in a similar way to conservation zone allotments which will protect and enhance the biodiversity in the area”.
5	A bushfire management plan, a land management plan, and an amended land capability assessment were submitted as part of the permit application.  A Cultural Heritage Management Plan has been approved.  The applicant submits the proposal is an acceptable planning outcome which achieves a net community benefit.  
6	DELWP’s referral response to the Council said that it was not in a position to assess the permit application as full details had not been provided.  
7	Following the Tribunal’s remarks in practice day hearing orders of 19 May 2021, the applicant arranged for a representative of DELWP to attend the second day of the hearing.  DELWP did not provide a submission prior to the hearing.  Day 2 of the hearing included Mr Mueck’s expert evidence.  As was foreshadowed by Ms Hicks on the first day of the hearing, a process was requested and approved by the Tribunal to allow DELWP to review the evidence, and addendum evidence to which I refer below, and provide a written submission by 8 October 2021.  DELWP’s subsequent submission explains why it maintains its objection to the permit application.
8	Mr Mueck prepared addendum evidence dated 7 September 2021.  It refers to recommended plan adjustments for the purpose of native vegetation avoidance and minimisation.  On 9 September 2021, I directed the applicant to file and serve a plan (and any associated material) responding to the addendum evidence.  A revised habitat hectare assessment and offset calculations were part of this.  I refer to these modifications below, noting Mr Mueck indicated that they did not take account of other factors such as parameters associated with the siting of effluent fields and bushfire management.  The additional information was required to be sent to all referral authorities with clarification of the description of the permit application that the applicant relies upon.  The Country Fire Authority [CFA] and Powercorp maintain their positions not opposing the permit application, subject to modified conditions.
9	This material was addressed at the third hearing day, with the balance of the applicant’s case, replies, and ‘without prejudice’ permit conditions.
What is the permit application for?
10	At the start of the hearing, I questioned the lack of clarity about what the permit application is for.  The permit application made to the Council was for “Realignment of boundaries”.  This is (or reflective of) the heading used in letters from the Council to referral authorities and the authorities’ responses. 
11	As the Council considered that it was clear from the material accompanying the permit application that the proposed use was for dwellings, the Council assessed the permit application as including the use and development of dwellings.  This is reflected in the Notice of Decision to Refuse A Permit which described what has been refused as:
Four lot subdivision (boundary realignment), use and development of a dwelling on each lot and native vegetation removal.
12	Notwithstanding that the applicant’s pre-filed submission referred to permit triggers as including the use and development of dwellings under clause 35.07 and buildings and works for accommodation under clause 44.06, after some discussion at the hearing Ms Hicks said this was not correct.  She stated the permit application is for boundary re-alignment/subdivision and native vegetation removal, with building envelopes, for the purpose of dwellings; and that no permission is sought to use and develop dwellings.
13	The permit application was not amended through its processing.  The applicant has made clear that the building envelopes are intended as dwelling sites.  Two land capability assessments (2020) show effluent fields (preferred and reserve areas) for houses.  The permit application made to the Council did not seek approval for the use and development of dwellings.  There were no building/dwelling designs submitted with the permit application.  Further, the permit application was not made for the removal of native vegetation.  Such removal is, however, part of the proposal and how the Council and referral authorities appear to have understood the application.
14	My order of 9 September 2021 required the applicant to clarify its position as to what the permit application is for.  This was required to be served on all referral authorities in case there had been any uncertainty or confusion.  Procedural steps were set out in my order for responses.
15	I have proceeded on the basis of the applicant’s stated and confirmed position.  I have amended the permit application to reflect this position.
WHAT ARE THE TRIBUNAL’S FINDINGS?
16	I have considered material filed and presented by the parties focussing on the key issues which are whether the proposal is an acceptable outcome with respect to clauses 35.07, 52.17, and bushfire considerations.  Clause 71.02-3 requires the decision-maker to 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.  
Strategic context
17	Castlemaine (including Campbells Creek and Diamond Gully) is the main population centre in the Shire.  For the purposes of this proceeding, it is helpful to summarise key policy themes in the scheme relating to settlement, biodiversity, bushfire, agriculture and rural living:
•	Clause 02.03-1 recognises the settlement pattern and Crown allotment structure of the Shire is diverse, with small townships and farming areas developed around the demands of the gold rush era. There is a legacy of dispersed small allotments, which are popular for hobby farming and rural lifestyle activities. Strategic directions focus on consolidating development in identified and properly serviced locations and earmarking some areas for growth and expansion.
•	Clause 02.03-2 acknowledges the extent of tree and vegetation cover, and significant native flora and fauna, and their considerable ecological and environmental values.  Strategic directions for biodiversity include minimising the impact of development at the urban-forest interface that pose a threat to native flora and fauna and protecting wildlife corridors from rural living development.
•	Clause 02.03-3 addresses bushfire.  It identifies the significant urban bushfire risk at the fringes of all main townships. The highest bushfire risks to Castlemaine are to the north, west, south and south-east. Strategic directions to address bushfire risk include directing urban development to the lowest risk locations; avoiding development in areas of high bushfire risk where defendable space cannot be provided; and minimising biodiversity impacts when creating areas of defendable space around new dwellings.
•	Clause 02.03-4 addresses agriculture, which is the main rural land use across most of the Shire’s rural areas. A concern is that productive agricultural land is being lost to non-agricultural uses, especially to rural living and low density residential development. Dwellings in rural areas can also lead to amenity conflicts with existing agricultural activities and potentially impede their operation.  Strategic directions to protect agriculture include:
•	protecting agricultural land of local and regional strategic significance; 
•	promoting agriculture and horticulture as the primary land uses in the Shire; 
•	avoiding the fragmentation of productive agricultural land through the development of dwellings and subdivision (including dwelling excisions) to maintain the productive capacity of the land; 
•	discouraging the use and development of land that could create conflict with existing agricultural activities; 
•	controlling the unplanned loss of agricultural land to rural living and residential uses; 
•	restructuring old and inappropriate subdivisions;
•	discouraging new dwellings and subdivisions that excise a dwelling that adversely impact the agricultural activities carried out on the land and neighbouring sites.
•	Policies relating to heritage and character include supporting the development of rural land that does not detract from the appearance and character of the area. 
•	Clause 02.03-6 addresses rural residential development.  It states that opportunities to provide for new rural living development in the Shire are limited.  It continues:
The only areas specifically designated for rural living are in the central part of the Shire around Castlemaine. Some low density residential land exists in Maldon. Small Crown allotments make a substantial contribution to the supply of land that is potentially available for rural living purposes, although the development of these lots can undermine the potential of the land for agriculture and can impact on environmental qualities and the natural resource base. 
Council’s strategic directions for rural residential development are: 
•	Discouraging rural living areas where isolated from services and infrastructure.
18	Clause 11.01-1R is the Loddon Mallee South Regional Growth Plan that gives a broader context to the subject land.  The applicant relies on Plan 2 in clause 02.04 in describing the subject land as within the identified urban centre and proximate to existing urban areas and identified areas for expansion.  Clause 02.04 states the strategic framework plan at clause 02.04 is to be read in conjunction with the strategic directions in Clause 02.03.  

19	The Castlemaine Land Use Framework plan in 11.01-1L-02 is relevant to interpreting and understanding how the strategy described in Plan 2 is pursued at a more localised level.  
20	An extract of the Land Use Framework plan is below.  Following discussions that I initiated on third day of the hearing, the parties concur the Land Use Framework shows the subject land as being within the nominated urban boundary.  It is within an area ”Vegetation on Freehold land”.  Indeed, the impression one gains on-site is that the land is substantially surrounded by bushland and is detached from the designated township.

Subject Land

21	Strategies in clause 11.01-1L-02 apply to land use. 
22	The zoning and development controls applied to the land seek to give effect to the strategic directions and policy. The subject land is in the FZ, not the Township Zone.  It abuts land in the Public Conservation and Resource Zone and FZ.

23	I have referred to other relevant scheme provisions in the “Information” section.  I have also referred to clause 71.02-3.  I address specific provisions below in setting out my findings with respect to the key issues.  
24	I also refer to clauses 65.01 and 62.05 that set out matters that must be considered respectively in considering an application and an application to subdivide land.  Among them are:
•	The orderly planning of the area. 
•	The extent and character of native vegetation and the likelihood of its destruction. 
•	Whether native vegetation is to be or can be protected, planted or allowed to regenerate. 
•	The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
25	With respect to subdivision, they include:
•	The suitability of the land for subdivision. 
•	The existing use and possible future development of the land and nearby land. 
•	The availability of subdivided land in the locality, and the need for the creation of further lots. 
•	The subdivision pattern having regard to the physical characteristics of the land including existing vegetation. 
•	The density of the proposed development. 
•	The design and siting of buildings having regard to safety and the risk of spread of fire. 
•	If the land is not sewered and no provision has been made for the land to be sewered, the capacity of the land to treat and retain all sewage and sullage within the boundaries of each lot. 
•	Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas.
Proposal’s response to clause 35.07 
Clause 35.07 and policy
26	The purpose of clause 35.07 includes:
•	To implement the Municipal Planning Strategy and the Planning Policy Framework. 
•	To provide for the use of land for agriculture. 
•	To encourage the retention of productive agricultural land. 
•	To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.
•	To encourage the retention of employment and population to support rural communities. 
•	To encourage use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.
27	A permit is required to subdivide land. Each lot must be at least the area specified for the land in a schedule to this zone. In this case, each lot must be at least 40 hectares. A permit may be granted to create smaller lots if specific circumstances apply; relevantly in this case the permit application is the re-subdivision of existing lots and the number of lots is not increased.  
28	Under section 3 the Planning and Environment Act 1987, subdivision is within the definition of ‘development’.
29	Decision guidelines in clause 35.07 address general issues; agricultural issues and the impacts from non-agricultural uses; dwelling issues; environmental issues; and design and siting issues.  I set out my findings on this permit application against the relevant decision guidelines below.
Overview of parties’ positions
30	The applicant submits the land is not an area of productive agriculture.  It is of low and very low quality. Its heavily forested condition is likely part of this and it is too small to sustain a productive farming enterprise.  It is unlikely that the land would be incorporated into the neighbouring FZ property as it is similarly restricted and not presently utilised for farming.
31	The applicant refers to the land’s position at the edge of the Township Zone.  Land to the north, east and west also contains native forest within a public conservation and resource area. The proposal is, it says, therefore in keeping with the adjoining and nearby uses.
32	The planning report accompanying the application refers to benefits of the proposal including that the property can be used and managed in a similar way to conservation zone allotments which will protect and enhance the area’s biodiversity.  The applicant submits this is relevant since the property is surrounded by native forest. Realignment of boundaries and later construction of dwellings will enable quality management of the land, including weed control and revegetation. The improvement in lot sizes and layout and subsequent dwellings will enable quality management of the land, in accordance with the land management plan.
33	The Council submits the intent to create four lots for dwellings is an inappropriate use of the land and contravenes scheme policies. The proposal will create a pseudo rural living area and will impact the natural features of the site including native vegetation losses.  There is clear policy direction to focus rural living into areas zoned for that purpose; to discourage development of small lots throughout the Shire; and to discourage the use of existing old Crown allotments in the FZ for rural living purposes. The application does not achieve the outcomes and objectives of the FZ and the scheme to protect agricultural land from non-agricultural uses. The Council submits there are adequate cleared areas to allow some form of agricultural use on the land.  Although the land is of low quality, the Council submits the proposal would lead to a concentration and proliferation of dwellings in the area. It is policy to discourage subdivision that will lead to a concentration of lots and change the general land use and character of the rural area. 
34	The Council refers to several Tribunal decisions in support of its position.
Findings
35	I have assessed the proposal under relevant decision guidelines to reach a conclusion as to whether the permit application achieves an acceptable outcome under the provisions of clause 35.07. 
General issues
36	Relevant decision guidelines in clause 35.07 include:
•	The Municipal Planning Strategy and the Planning Policy Framework.
•	The capability of the land to accommodate the proposed use or development, including the disposal of effluent.
•	How the use or development relates to sustainable land management. 
•	Whether the site is suitable for the use or development and whether the proposal is compatible with adjoining and nearby land uses.
•	How the use and development makes use of existing infrastructure and services.
37	The proposal is intended to facilitate a rural living future for the land.
38	The land is not within an area identified for rural living purposes.  There is not policy encouragement for the proposal as, among other things, this type of development can impact on environmental qualities, the natural resource base and biodiversity.
39	The creation of four lots for rural living purposes is not supported by the FZ.  However, it cannot be ignored that the subject land is within the urban boundary based on the mapping in the scheme.  
40	An urban future may be expected with this designation, however, the nature of future use, buildings and works are not the subject of this permit application.  
41	No party has presented the broader strategic argument that approval of the re-subdivision might prejudice an orderly future urban outcome by facilitating its transition into four different ownerships, although I note that there are currently four lots which could be sold to separate owners.
42	Policy discourages rural living areas where isolated from services and infrastructure.  The subject land is not remote noting it is part of the designated township.  However, the applicant is not seeking for the proposed lots to be connected to electricity as the lots could be developed as ‘bush blocks’.  Powercor’s proposed permit condition that a s173 agreement would confirm that no power will be supplied to the lots.
43	It appears that the land can accommodate the proposed subdivision, with effluent envelopes.  The location of those envelopes has not been challenged.
44	Better management of the land, and native vegetation, are advanced by the applicant.  I accept this could occur including with respect to vegetation that is not proposed to be removed.
45	There are no evident compatibility issues given the nature of adjoining and nearby land uses.
Agricultural issues and impacts from non-agricultural uses
46	Relevant decision guidelines in clause 35.07 include:
•	Whether the use or development will support and enhance agricultural production. 
•	Whether the use or development will adversely affect soil quality or permanently remove land from agricultural production. 
•	The potential for the use or development to limit the operation and expansion of adjoining and nearby agricultural uses. 
•	The capacity of the site to sustain the agricultural use. 
•	The agricultural qualities of the land, such as soil quality, access to water and access to rural infrastructure. 
•	Any integrated land management plan prepared for the site. 
47	There is no contention or information to suggest that the proposed lots with building and effluent envelopes have any link with agricultural production, or would support and enhance agricultural production.
48	The proposed lots, as a first step toward the applicant’s stated intent for the use and development for dwellings, would lead to a change in the way land is likely to be used and effectively preclude the opportunity for agricultural production on one or more lots.  I do not accept submissions that the land’s size means that it is too small to sustain a productive enterprise as a matter of principle.  As the Tribunal has said many times, land does not need to be high quality nor capable of stand-alone agriculture to play a role in meeting the FZ purposes.  It is agreed that the land is of low quality for agricultural production, although this does not mean it has no role (alone or with other land) for some form of production (which may not rely on high quality soils, such as some forms of horticulture or animal husbandry).  It also does not mean that the only future for this land is residentially-based.  
49	The FZ is not exclusively for farming and agriculture.  Other land uses are permissible and can co-exist with native vegetation.  However, it is very relevant that the ability to use much of the land for agricultural production and other purposes must take account of the site’s physical and biodiversity attributes.  
50	As already noted, a land management plan has been provided with permit application and better management of the land, and native vegetation, are advanced by the applicant.  Native vegetation offsets are accepted by the applicant.
Dwelling issues 
51	Decision guidelines in clause 35.07 include:
•	Whether the dwelling will result in the loss or fragmentation of productive agricultural land. 
•	Whether the dwelling will be adversely affected by agricultural activities on adjacent and nearby land due to dust, noise, odour, use of chemicals and farm machinery, traffic and hours of operation. 
•	Whether the dwelling will adversely affect the operation and expansion of adjoining and nearby agricultural uses. 
•	The potential for the proposal to lead to a concentration or proliferation of dwellings in the area and the impact of this on the use of the land for agriculture. 
52	The applicant emphasises that it does not seek approval for the use and/or development of dwellings on the subject land.  Nor is there any application for works.  However, the intent is for a dwelling on each lot with the effluent fields shown in the application plans being based on a four bedroom dwelling being constructed on each lot.  The nomination of building envelopes creates an expectation of dwelling/s being approved and a loss of land that is not without opportunities for some form of production or other uses that are permitted by the scheme.
53	Future development and use are relevant matters under clause 65.02 – “The existing use and possible future development of the land and nearby land”.
54	As already indicated, approval of the “Boundary re-alignment/subdivision and native vegetation removal, with building envelopes”, and associated requirements such as a bushfire management plan, creates expectations for future buyers for dwellings to be allowed given envelopes for both building and effluent are part of the plan which is sought to be approved.
55	While it does not appear that the proposal would adversely affect the operation and expansion of adjoining and nearby agricultural uses, it has the potential to lead to a rural living enclave, as I have already addressed.  That is, a concentration of dwellings in an unplanned location that would effectively preclude productive use of the land.
56	The applicant refers to housing affordability and limited rural living lots.  Clause 65.01 refers to the availability of subdivided land in the locality, and the need for the creation of further lots.  There is no influential material or evidence on this matter to override other concerns about the proposal.
Environmental issues 
57	Relevant decision guidelines in clause 35.07 include:
•	The impact of the proposal on the natural physical features and resources of the area, in particular on soil and water quality. 
•	The impact of the use or development on the flora and fauna on the site and its surrounds. 
•	The need to protect and enhance the biodiversity of the area, including the retention of vegetation and faunal habitat and the need to revegetate land including riparian buffers along waterways, gullies, ridgelines, property boundaries and saline discharge and recharge area. 
•	The location of on-site effluent disposal areas to minimise the impact of nutrient loads on waterways and native vegetation.
58	I have addressed some of these matters relevant to these decision guidelines above.  I consider flora and fauna, and biodiversity, further below.  I conclude the extent of native vegetation removal, which is based on defendable space for accommodation (dwellings), is not acceptable.  That is the case notwithstanding that the land management plan refers to revegetation and other actions across the land including in/along Poverty Gully.
Design and siting issues
59	Relevant decision guidelines in clause 35.07 include:
•	The need to locate buildings in one area to avoid any adverse impacts on surrounding agricultural uses and to minimise the loss of productive agricultural land. 
•	The impact of the siting, design, height, bulk, colours and materials to be used, on the natural environment, major roads, vistas and water features and the measures to be undertaken to minimise any adverse impacts. 
•	The impact on the character and appearance of the area or features of architectural, historic or scientific significance or of natural scenic beauty or importance. 
60	The building envelopes are concentrated and positioned in a way that would avoid adverse impacts on surrounding uses but are likely, in the future, to create an unplanned rural living area.   
61	Other matters referred to in the decision guidelines are mostly unable to be assessed as there is no application for works not for development associated with the use of the land for dwellings.
Piecemeal?
62	The Council and DELWP raise concerns about the capacity to properly assess the permit application because there is no application for the use of the land for dwellings, nor for buildings and works.
63	The permit application before me can be made.  It must be assessed on its merits.  However, the lack of any application for works, development and/or use has implications including for related assessments and reports that the applicant relies on.  For example:
•	the subdivision plan does not include any access arrangements. 
•	the native vegetation assessment has accounted for vegetation removal for accessways as well as requirements for defendable space based on dwellings.  
•	if a permit was granted, the components of plans to be referred to and endorsed, such as the bushfire management plan, are based on dwellings and include works that have expressly not been applied for.
64	I refer to these matters again below.
Conclusion
65	Balancing the above findings, I find the permit application is not acceptable when assessed under clause 35.07.  It would produce an outcome that does not have policy support and has the potential to undermine outcomes being pursued through the scheme based on the land’s zoning.
Native vegetation
Clause 52.17, other provisions and policy
66	I have referred to the subject land’s strategic context which is underpinned by key elements including biodiversity, environmental and habitat values.  Clause 02.03-2 is relevant in this regard.  The removal of native vegetation is considered in this broad policy context as well as assessed under clause 52.17.  I do not recite all of the provisions of clause 52.17, but refer to the purpose which includes:
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 following 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) (the Guidelines): 
1. 	Avoid the removal, destruction or lopping of native vegetation. 
2. 	Minimise impacts from the removal, destruction or lopping of native vegetation that cannot be avoided. 
3. 	Provide an offset to compensate for the biodiversity impact if a permit is granted to remove, destroy or lop native vegetation. 
To manage the removal, destruction or lopping of native vegetation to minimise land and water degradation.
67	The offset requirement in clause 52.17-5 states:
If a permit is required to remove, destroy or lop native vegetation, the biodiversity impacts from the removal, destruction or lopping of native vegetation must be offset, in accordance with the Guidelines. The conditions on the permit for the removal, destruction or lopping of native vegetation must specify the offset requirement and the timing to secure the offset.
68	Decision guidelines require consideration of the Guidelines.
69	I also have had regard to relevant environmental considerations under clauses 35.07 (to which I have referred above), 65.01 and 65.02.
70	Clause 65.01 requires consideration, as appropriate, of:
•	The extent and character of native vegetation and the likelihood of its destruction. 
•	Whether native vegetation is to be or can be protected, planted or allowed to regenerate
71	Clause 65.02 requires consideration, as appropriate, of:
•	Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas
Information and evidence
Material accompanying the permit application
72	The Council and DELWP consider that the information in the permit application with respect to native vegetation removal was insufficient.  The full extent of vegetation was not depicted while elements of clause 52.17 had not been addressed.  The correct pathway for assessment had not been able to be determined.  A Native Vegetation Removal Report was submitted showing the loss of 0.031 hectares of scattered trees on the northern boundary of the property. The responsible authority was not satisfied that all the losses had been correctly documented. 
73	Mr Mueck agreed. His evidence included - “I do not consider the NVRR provided in supporting documentation to provide an accurate representation of the likely extent of impacts to native vegetation associated with Planning Permit PA292/2019”.  The 2019 document involved surveys at different times.  Mr Mueck states there was no information on how the proposed extent of native vegetation removal was determined.  Issues included incorrect species identification, that not all affected trees had been identified, and an indigenous species that was wrongly identified as being introduced/weed.
Ecological values and native vegetation removal
74	Mr Mueck’s evidence refers to the ecological features (including Figure 2, an extract of which is below).

75	Mr Mueck’s assessment addresses native vegetation removal.  It anticipates vegetation loss in association with access driveways (taken to impact a three metre wide band of vegetation), building envelopes, effluent management fields (within the defendable space areas), BMO requirements for defendable space, and permitted clearing associated with the new property boundaries (defined as two metres either side of any new property boundaries resulting from the subdivision).  His conclusion are summarised in his Table 3, which I do not recite. 
76	Mr Mueck states that:
Spatial data (shapefiles) of proposed vegetation removal will be submitted to DELWP's native vegetation support team, who provided a Native Vegetation Removal Report for the project. However, only a scenario test is currently available (Appendix 5) and is summarised in the following sections.
77	Mr Mueck states the proposed building envelopes have been sited to avoid and minimise impacts to native vegetation and other key biodiversity values such as large trees.  The building envelope for Lot 1 has targeted a portion of HZ1A which has no tree cover while that for Lot 4 targets the location of an area which is not native vegetation.  Proposed driveways are located in association with property boundaries to concentrate and reduce the potential clearing associated with development of the site.  Mr Mueck states there is limited scope to further avoid impacts to native vegetation. 
78	Mr Mueck’s conclusions included that the proposed development would impact on approximately one quarter of the native vegetation present. While potential habitat for threatened species would be impacted, his evidence is that this is unlikely to represent a significant component of that habitat within the local area. Therefore, the impact on native vegetation is not considered a significant impact to biodiversity at the State, bioregional or municipal levels. This is reflected in the offset requirement which is restricted to general habitat units. Mr Mueck states additional surveys are required to determine if the proposed development would require approval under the Environment Protection Biodiversity Conservation Act 1999 [EBPC Act].
Recommended adjustments in expert evidence
79	Before the hearing, on 7 September 2021, addendum evidence was filed identifying potential minor adjustments to the proposed subdivision to enhance the avoid and minimise strategy for impacts to native vegetation:
•	Move the building envelope and defendable space for Lots 3 and 4 to the east to take full advantage of the existing clearing. This could avoid impacts to a large tree near the western boundary and reduce the overall impact to native vegetation
•	Move the building envelope and defendable space for Lot 4 as far north as possible to reduce the impact to areas of Creekline Grassy Woodland (EVC 68). 
•	Combine the driveways for Lots 3 and 4 to avoid additional clearing along the boundary of Lots 2 and 3.
80	I gave leave to the applicant to map the changes and update the assessment.  A further statement of evidence dated 13th September 2021 includes a revised Figure 3 (extract below, with Mr Mueck’s highlighting):

81	An amended summary has been provided.  It states that approximately 23% of the extent of patch present would be impacted.  The changes reduce the development footprint (7%) and the impact on large trees from five to three (40%).  The revised Table 3 (with Mr Mueck’s highlights) is extracted from the revised evidence below:

Council and DELWP
82	The Council and DELWP oppose the permit application for native vegetation removal.
83	The Council submits the application could have unacceptable biodiversity and landscape impacts of the site, surrounding area and Heritage Park by the removal of vegetation. 
84	DELWP agrees with Mr Mueck that the assessment has now included all ancillary impacts with the design being modified from the previous version.  It agrees with Mr Mueck that surveys are required to identify the presence of the Growling Grass Frog and Eltham Copper Butterfly.  The presence of these species would likely trigger the need for a referral under EBPC Act.
85	DELWP submits the material relied upon by the applicant does not contain all the information needed to make a decision as a revised Native Vegetation Removal Report.  It notes that the report has only reached scenario test stage, so offsets cannot yet be specified.  Further, DELWP submits the proposal does not demonstrate satisfactory responses to the avoid and minimise requirements of the scheme.  It submits:
On the basis that the removal of this extent of native vegetation from this environment is futile given the absence of a use and development element to the application. It is not possible to assess the ability to meet the avoidance and minimisation considerations of the policy where there is no desired outcome for them to be measured against.
86	DELWP does not support the removal of 2.195 hectares of native vegetation to facilitate an outcome that has not specifically been applied for. It also questions the enforceability of the permit conditions related to the development within a building envelope when there is no development element for consideration under this permit. It says the applicant has clarified that there is no use and development component to this application, but the required risk mitigation measures are being provided as if this were to be the case. DELWP submits that this level of contradiction “pre-empts future issues and clouds transparency pertaining to the purpose of the subdivision and eventually the future use of the land”. 
Removal - avoid, minimise and offset
87	Mr Mueck’s assessment of the ecological values of the site and summary is not contested.  
88	I appreciate the evidence has sought to reduce impacts through the revised development footprint.  However, the proposal results in a substantial loss of native vegetation for presumed outcomes that have not been applied for –effluent and building envelopes for dwellings as well as works including access and defendable space for accommodation (dwellings).
89	I have not been persuaded that the extent of native vegetation removal is acceptable having regard to the biodiversity values ascribed to the land.  
90	Relevant to this conclusion is that the proposal and associated removal of native vegetation would potentially impact on the habitat of a number of Nationally listed endangered species.  
91	Mr Mueck’s evidence acknowledges the 2019 land management plan which recorded an individual Growling Grass Frog within the small dam on the northern margin of the proposed Lot 4.  Mr Mueck regards the recording of the Growling Grass Frog as credible.  His evidence agrees with that comments in the land management plan that potential impacts to this dam would require approval under the EPBC Act.   He notes that he did not identify any Growling Grass Frogs on his inspection, but he also said his inspection was just before the active time for the species. 
92	Mr Mueck refers to the ecological values of the land including:
... areas of vegetation classified as Box Ironbark Forest (EVC 61), the understorey of which supports scattered Sweet Bursaria spinosa. This provides potential habitat for Eltham Copper Butterfly which is listed as critically endangered under the EPBC Act.
93	Mr Mueck’s oral evidence noted that the species was not high in its density, plants were small, and plants are concentrated around the eastern boundary.
94	Surveys have not yet been undertaken to assess the requirements for a referral under the EBPC Act in relation to potential impacts on the Growling Grass Frog and Eltham Copper Butterfly.  I am not persuaded that such surveys should be addressed by permit conditions. Rather, these surveys need to inform an assessment of the acceptability of the proposed subdivision layout with respect to biodiversity values and outcomes.
95	Another relevant matter in my view is that the evidence is based on scenario testing and no final offset figure can be specified.  It can therefore be questioned as to whether the offset requirement in clause 52.17-5 can be complied with.
Bushfire
Clause 44.06 and policy
96	I have referred to the subject land’s strategic context where the protection of human life is prioritised over all other policy considerations.  The significant risk in this area is identified by the scheme and in the Castlemaine Land Use Framework Plan (Plan 3) notwithstanding that the subject land is depicted within the urban boundary.  
97	Clauses 65.01 and 65.02 also require consideration of fire hazard.
98	Subdivision requires a permit under clause 44.06.  Schedule 1 to the BMO does not appear to apply to the subject land.  
Bushfire management plan
99	A bushfire management plan has been provided.  It has not been updated to address Mr Mueck’s recommended modifications.  
100	The bushfire management plan seeks to respond to various scheme requirements, even though there is no permission being sought for the use of the land for dwellings nor for buildings and works.  For example, it refers to all-weather access and shows driveways.  
101	The CFA’s most recent referral response includes:
CFA advises that the adjustments to the proposed subdivision design, especially depiction of the new vegetation removal footprint, and correspondingly to the location of building envelopes and defendable space as shown on the Bushfire Management Plan (BMP), dated 25 October 2019, will not increase the bushfire exposure for future dwellings located on those lots.
Accordingly, CFA has no objection to the proposed changes as shown in the plan by Mr S Mueck.
However, CFA points out that if the proposed change in location of building envelopes for future dwellings is adopted, then the BMP will accordingly need to be amended to be consistent.
Additionally, CFA in a Further Information request of 21 January 2020 requested that the following amendment be made to the water supply measures in the BMP:
…
102	It is not contested that the bushfire management plan would meet requirements for future dwellings (one per lot, within the building envelopes).  Again, this is a presumed outcome for a use that has not been applied.  The bushfire management plan sets out design requirements for access even though the subdivision plan does not include any access arrangements and there is no permit application for works.  I believe that this raises issues with respect to proposed permit conditions.
WHAT IS THE TRIBUNAL’S CONCLUSION?
103	For the above reasons, I find the proposal does not achieve an acceptable outcome principally because the proposed lot layout would create building envelopes intended for rural living purposes resulting in extensive vegetation removal.  The outcome is not supported or encouraged by the scheme, and has the potential to undermine outcomes being pursued through the scheme. Further, any impacts on the Growling Grass Frog and the potential presence of Eltham Copper Butterfly are unknown at this stage.  
104	The decision of the responsible authority is therefore affirmed.

Margaret Baird
Senior Member