EJA successfully argues for greater protections for trees in farming landscapes – Case note

By January 30, 2019May 27th, 2019Cases

VCAT considers the balance of native vegetation protection and farming under new planning rules

On 16 January the Victorian Civil and Administrative Tribunal (VCAT) published its decision and reasons in McDonald v West Wimmera Shire Council [2019] VCAT 70. This is the first VCAT decision to consider substantively and apply the native vegetation clearing controls that were introduced into all Victorian planning schemes through Amendment VC138 in late 2017. The Tribunal order set aside a decision by West Wimmera Shire Council to grant a permit to remove 23 scattered trees on farming land at Serviceton, between the township of Kaniva and the South Australian border. A key basis on which the Tribunal decided to do so was whether, in light of changes to provisions and policy concerning native vegetation removal, as well as wider policy considerations (including local planning policy), removal of these trees would produce an acceptable outcome.[1]

The 2017 Amendment focused on revision of clause 52.17, which operates in all planning schemes, and accompanying planning policy and guidance.  This Amendment represented the fourth iteration of planning controls relating to the clearing or removal of native vegetation since 1989, a point noted by Member Harty in McDonald.[2] Exemptions aside, clause 52.17 contains the relevant ‘trigger’ for, or obligation to obtain, a planning permit to remove, lop or destroy native vegetation. Earlier, 2013 changes established a profound shift in how planning governs native vegetation clearing and, by extension, the contribution of those rules to biodiversity management in Victoria. In particular, the 2013 reforms significantly expanded the use of quantitative ‘scoring’ models, through digital platforms, in assessment of the biodiversity value of native vegetation. They also limited the requirement to consider avoidance or minimisation of clearing other than in circumstances where native vegetation was assessed, via online tools and reporting, as making a significant contribution to Victoria’s biodiversity.

While retaining key features of the 2013 changes – such as use of digital tools, graduated assessment pathways and proxy biodiversity value ‘scores’ – the revised, 2017 planning approach to native vegetation clearing decisions includes what the Tribunal referred to as a ‘pendulum swing in policy and regulatory control’[3] through broader application of the principle of avoidance of clearing and express consideration of the value of large trees and endangered vegetation types (EVCs). These were the 2017 changes most relevant to the decision in McDonald, as the proponent’s application concerned paddock trees that touched on both characteristics – large trees, associated with an endangered vegetation community (Low Rises Woodland, of which approximately 10% remains regionally) – and in that respect is relatively narrow in scope. More generally, the application and the case concerned the response of planning to native vegetation removal (especially scattered paddock trees) in farming landscapes, but more of that in a moment.

In this particular case, the proposal was for the removal of 23 Grey Box trees, more or less aggregated in the central part of a parcel of land of around 250 hectares, from among around 80 scattered paddock trees on the subject land. An offset for the removal was proposed on adjacent land, comprising a patch of trees of a different vegetation type. The land is used for agricultural production, specifically cropping, to which much land use has shifted over time in the Wimmera, away from grazing. Pressure has grown in the region to remove scattered paddock trees in order to facilitate large cropping machinery (such as boom sprays) and use the land more effectively and efficiently for that purpose. That was the basis of this proposal also. Farm zoning applies to the subject land, in which case agricultural uses such as cropping can occur as of right. No relevant overlays apply. The land has been cropped and one anticipates it will continue to be cropped. The Tribunal found, on the basis of the proponent’s submissions and proportionate area occupied by the trees at issue, that the area at issue was not critical in terms of economic outcomes (thereby not undermining the land use and the proponent’s enterprise) and this needed to be weighed against the strengthening of native vegetation protections. As the Member Harty remarked, having regard to the presence of large trees associated with an endangered EVC, ‘avoidance is possible because of the choices available.’[4]

Two final points of note can be taken from this decision. The first of these is the approach taken by the Tribunal to the issue of reliance on quantitative, digitally-derived ‘scores’ operating as proxies for the value of native vegetation. In effect, these tools were the primary, if not over-riding, consideration in assessment of decisions to grant permits to clear native vegetation under the 2013 rules. Key measures include the ‘strategic biodiversity score’, which in effect ranks native vegetation in terms of its biodiversity value across Victoria, especially in relation to rare or threatened species, connectivity and condition. A ‘habitat importance score’ is used to determine the value of higher value native vegetation to listed rare or threatened species. These tools continue to be used. The point made by the Tribunal in McDonald is that assessment via scoring tools is not enough, or at least is not enough when dealing with the important biodiversity features that large trees and endangered EVCs represent.[5] That was part of the point of revising and strengthening the rules in the lead up to the 2017 Amendment, a process that was the subject of a two-year review process which included government, industry groups, environmental organisations (including EJA), and municipal councils. Policy considerations are not only relevant but, as in this case, integral to the decision-maker’s tasks, namely the exercise of discretion as to whether or not to issue a permit and, if so, on what conditions.[6] The comparison between this case and the analogous 2017 McDonald v West Wimmera Shire Council[7] case is notable in this respect.[8]

Finally, the Tribunal took the opportunity to contend with a matter arguably at the heart of this case: the role and function of large, scattered paddock trees in farming landscapes. A central concern of the objectors (review applicants) in this case, as in earlier similar matters in West Wimmera Shire,[9] was incremental loss of large trees, and the natural and biodiversity values they provide, in the farming landscape. These are heavily-cleared, indeed over-cleared, landscapes, a fact long acknowledged in the Shire’s local planning policies.[10] State planning policy also acknowledges the need to facilitate re-building environmental connectivity across these landscapes.[11] There is extensive scientific evidence of the disproportionate importance and value of large, old trees in these landscapes to a healthy balance between agricultural production and biodiversity protection. That evidence was heard and tested before the Tribunal. It included the key analogy that scattered trees are key biodiversity ‘stepping stones’ and can provide for structured and planned restoration in farming landscapes, an analogy endorsed by the Tribunal. Planning tools, such as property-level plans integrating production and natural systems on farms, are important to this dynamic. Those tools do operate under native vegetation removal guidelines,[12] although in our view they need further development, attention and promotion among landowners. Ultimately, effective use of on-farm property vegetation planning, consistent with the Landcare ethic now deeply-embedded within rural communities, can provide a useful, strategic response to the need for balance of production and habitat protection and restoration.

You can listen to an interview with EJA Lawyer, Bruce Lindsay, on the ABC’s Victorian Country Hour here.

[1] McDonald v West Wimmera Shire Council [2019] VCAT 70, [4]

[2] McDonald v West Wimmera Shire Council [2019] VCAT 70, [7]-[13]

[3] McDonald v West Wimmera Shire Council [2019] VCAT 70, [14]

[4] McDonald v West Wimmera Shire Council [2019] VCAT 70, [34]

[5] McDonald v West Wimmera Shire Council [2019] VCAT 70, [39], in which case, as here, an application falls within the Detailed Assessment pathway, as Member Harty notes.

[6] McDonald v West Wimmera Shire Council [2019] VCAT 70, [40]

[7] McDonald v West Wimmera Shire Council [2017] VCAT 1298

[8] See McDonald v West Wimmera Shire Council [2019] VCAT 70, [15]-[17]

[9] McDonald v West Wimmera Shire Council [2017] VCAT 1298; McFarlane v West Wimmera Shire Council [2015] 1405

[10] West Wimmera Planning Scheme, cl 21.07

[11] Victorian Planning Provisions, cl 12.01-1R (Protection of biodiversity – Wimmera Southern Mallee); McDonald v West Wimmera Shire Council [2019] VCAT 70, [35]

[12] DELWP Guidelines for the Removal, Destruction or Lopping of Native Vegetation (2017), p 32 [10.2]

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