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Neighbourhood Tree Disputes: Consultation Paper

  • Posted on December 15, 2017

4. Planning law and regulation affecting trees on private land

Introduction

4.1 As discussed in Chapter 3, Victoria does not have a specific statutory framework that regulates disputes between neighbours over trees. Generally, an affected neighbour must rely on the self-help remedy of abatement or the common law torts of nuisance, negligence and trespass.

4.2 Planning schemes and environmental and heritage laws may also be relevant to a dispute. These laws may prescribe that vegetation or individual trees are protected or preserved on private land. They may require a landowner to obtain a permit before removing or pruning vegetation. They may also authorise the removal of vegetation in specific circumstances; for example, bushfire management or to keep electricity lines clear. Other laws may put a positive obligation on a landowner to remove some types of vegetation, for example, noxious weeds.

4.3 Landowners typically find out about planning laws affecting their land through contact with their local council.

4.4 Planning schemes administered by local councils are the most common type of regulation affecting trees on private land in Victoria. The Victorian planning system is complex and layered, and the Commission is not seeking to review the system or its operation.

4.5 Instead, the purpose of this chapter is to give a brief overview of the Victorian planning scheme, and to consider some of the planning regulations that may affect disputes between neighbours about trees. While many regulations only apply in specific and limited circumstances, they are relevant to some tree owners. This chapter also canvasses the impact other laws may have on vegetation on private land.

4.6 Any reforms to the current dispute-resolution processes in Victoria would need to consider the impact on existing tree protection mechanisms and processes contained in planning schemes and local laws.

The planning system in Victoria

4.7 The Planning and Environment Act 1987 (Vic) (the Planning Act) provides the legal framework for Victoria’s planning system. The Planning Act does two key things: it establishes the Victoria Planning Provisions (the VPPs), and enables local councils to build their own planning schemes from those standard provisions.[1]

4.8 The VPPs are a comprehensive set of model planning provisions which ensure consistent rules for planning matters across Victoria, and consistency across local council planning schemes. The VPPs are made up of standard components[2] that may be incorporated into local planning schemes.

4.9 Each municipality in Victoria is covered by a local planning scheme.[3] A planning scheme generally applies to all private and public land in Victoria and is binding on all members of the public, on every Victorian minister, government department, public authority and council, unless exempted under the Planning Act.[4]

4.10 The purpose of local planning schemes is to:

• provide a clear and consistent framework within which decisions about the use and development of land can be made

• express state, regional, local and community expectations for areas and land uses

• provide for the implementation of state, regional and local policies affecting land use and development.[5]

4.11 Local planning schemes can identify and offer protection to significant or important vegetation on public and private land. If someone complains about vegetation on a neighbouring property, planning regulations may protect that vegetation or limit the action a tree owner can take to address their neighbour’s concerns. Planning regulations may also specify the process involved and documents needed to obtain a permit to prune or remove protected vegetation.

4.12 Local planning schemes may also include provisions that are relevant to or give effect to [the Council’s] Municipal Strategic Statement and local planning policies. [6] These provisions will include the relevant state standard zones and overlays.[7] Some of these zones and overlays have local content added to them as schedules, which ‘can be used to supplement and fine-tune the basic provisions of a state-standard clause, zone or overlay in a planning scheme, adapting it to local circumstances and locally-defined objectives’.[8]

4.13 The next section gives a brief overview of the some of the key components of the Victorian planning system. It also provides examples of local content that has been added to planning schemes by some councils.

4.14 These examples are not necessarily typical of all local government areas. The focus is on councils that manage vegetation closely, such as ‘Green Wedge’ councils or councils in areas of significant ecological diversity, as well as aspects of planning schemes that are most likely to affect parties’ rights in a tree dispute.

Standard Victorian zones

4.15 The VPPs currently list 30 distinct zones that are arranged into six categories—residential, industrial, commercial, rural, public land and special purpose.[9] The way private land is zoned may impact on landowners’ rights to control vegetation on their property and specify the process and permits involved.

4.16 Some zones will have more controls relating to trees and vegetation than others. For example, the Rural Conservation Zone provides tighter restrictions on use of land and is designed to protect and enhance the natural environment for its historic, archaeological, scientific, landscape, faunal habitat and cultural values.[10]

4.17 One example of a decision-making guideline in this zone prioritises the retention of vegetation when developing land.[11] Zones must also be read alongside any schedule that applies. For example, in the City of Stonnington, a schedule to the General Residential Zone specifies that for the construction or extension of a single dwelling on a lot, a canopy tree is to be planted and that the planning application must detail any vegetation proposed to be removed or planted.[12]

Standard Victorian overlays

4.18 The main tools in the VPPs to protect vegetation in urban environments are overlays.[13] An overlay may require a tree owner to retain vegetation that is the subject of a dispute with a neighbour or require them to obtain a permit to prune or remove it. An overlay may also specify the process required and documents needed to obtain a permit.

4.19 Standard overlays for Victoria are included in the VPPs. As with zones, many overlays have schedules to specify local objectives and requirements.

4.20 There are 24 overlays listed in the VPPs. They are organised into broad categories, including environmental and landscape, heritage and built form, and land management.[14]

4.21 An overlay differs from a zone because it considers the practical constraints that apply to a particular site, whereas a zone control is directed at the central purpose of the land.[15] Generally, an overlay applies to a ‘single issue or related set of issues (such as heritage, an environmental concern or flooding)’.[16] Multiple overlays can be used if more than one issue applies to land.

4.22 The overlays most likely to be relevant to neighbourhood tree disputes are:

• the Vegetation Protection Overlay

• the Environmental Significance Overlay

• the Significant Landscape Overlay

• the Heritage Overlay

• the Neighbourhood Character Overlay

• the Bushfire Management Overlay.

4.23 These are considered below more closely, along with examples of the way some councils have added local content to them.[17] The examples concern Nillumbik and East Gippsland Shire Councils. These municipalities provide some examples of environmental overlay controls applying to vegetation on private land.

4.24 Nillumbik Shire Council is a local government area on Melbourne’s north-east fringe. It contains outer northern suburbs of Melbourne and rural localities beyond the urban area. It is known as a Green Wedge Shire.[18] This Green Wedge area has agricultural and recreational uses and other functions that support Melbourne. It also has areas of ‘strong environmental, landscape, built and Koori heritage value for Victorians—many of which are of state, national or international significance’.[19] The Nillumbik Green Wedge covers 91 per cent of the total shire area, and is zoned rural. Seventy-nine per cent of Nillumbik Green Wedge land is in private ownership and around 43 per cent of that land has environmental significance.[20] This Shire has numerous environmental overlays that apply to private property in the municipality and other planning controls which trigger the need to obtain a planning permit to clear vegetation on private land.

4.25 The East Gippsland Shire Council covers the second largest local government area in Victoria and includes extensive coastline, a major lake and river system, high country, national parks and state forest.[21] The shire has a high biodiversity of species and ecosystems, and is home to ‘many species of plants and animals which are absent from, or rare in, the rest of Victoria’.[22] The region has significant areas of original native vegetation. Planning regulations in this Shire also trigger the need to obtain a planning permit to clear vegetation on private land in some circumstances.

Vegetation Protection Overlay

4.26 The Vegetation Protection Overlay [23] focuses on the protection of significant vegetation, including native and introduced vegetation in urban and rural environments.[24]

4.27 The overlay can be applied to individual trees, groups of trees or areas of significant vegetation.[25] It requires a landowner to obtain a permit to remove, destroy or lop any vegetation specified in a schedule to the overlay subject to a list of exemptions.[26] Some of those exemptions apply to particular types of vegetation and others apply to specific situations, for example, to clear vegetation from electricity lines and to ensure emergency access.[27]

4.28 The East Gippsland Shire Council has eight local schedules to the Vegetation Protection Overlay which outline the nature and significance of the vegetation to be protected and the vegetation protection objective, as well as permit requirements and decision-making guidelines.[28]

4.29 For example, Schedule 8 is the Mallacoota Vegetation Protection Area Overlay. It seeks to protect vegetation of high conservation value and vegetation with high aesthetic and landscape value within built-up areas around the township of Mallacoota. Some remnant native vegetation in this area provides habitat for vulnerable rare or threatened species and some vegetation is rare or threatened on a state or national basis.[29] For those living in this area, the schedule provides some exemptions to the need to obtain a permit, including pruning of garden vegetation in the course of regular maintenance, provided this does not significantly affect the extent or nature of vegetation on a lot.[30]

Environmental Significance Overlay

4.30 This overlay is applied if vegetation protection ‘is part of a wider objective to protect the environmental significance of the area’. [31] It is broader than the Vegetation Protection Overlay because it can also contain requirements about building and fence construction.[32] A permit is required under this overlay to remove, destroy or lop any vegetation, including dead vegetation, unless there is an exemption in the overlay or any schedule.[33]

4.31 The Nillumbik Shire Council has added three separate local schedules to the Environmental Significance Overlay, one of which is the Faunal and Habitat Significance Schedule.[34] It is designed to protect and enhance significant faunal and habitat sites and to allow fauna to move between different areas. There are ‘specific sites on both public and private land that have been identified as being of particular importance’.[35]

4.32 The Shire requires that any application for the removal of vegetation include detailed information about the number and size of any trees to be removed or pruned, as well as information about the reason for removal and steps taken to avoid that removal and any offsetting arrangements. An arborist’s report is also required in some circumstances.[36]

4.33 The Shire notes the impact that vegetation removal may have on neighbours. It suggests that neighbours are sometimes unaware of approved removal of vegetation, and therefore recommends that residents:

advise any nearby neighbours of [their] intention to remove the vegetation and that [they] have obtained permission to do so before [they] proceed to remove the vegetation. Failure to do so may result in Council officers being obliged to visit [their] land, and also potentially delay the vegetation removal.[37]

Significant Landscape Overlay

4.34 This overlay exists to conserve and enhance the character of significant landscapes.[38] It mainly applies when vegetation is aesthetically or visually important in the broader landscape and vegetation is identified as an ‘important contributor to the character of

an area’.[39] A permit is required to remove, destroy or lop vegetation unless an exemption applies.[40]

4.35 The Nillumbik Shire Council has seven schedules to the Significant Landscape Overlay,[41] meaning that ‘the planning controls and desired landscape outcomes of the overlay vary from neighbourhood to neighbourhood’.[42]

4.36 For example, in the designated ‘Garden Court’ area, described as a residential development set within predominantly native vegetation, a permit is required to remove, destroy or lop any ‘substantial tree’.[43]

4.37 The Shire’s Neighbourhood Character Policy (to be read in conjunction with the overlays) specifically outlines the existing and preferred character of each neighbourhood precinct covered by the Significant Landscape Overlay.[44] The policy aims to ensure that development respects local community and environmental values, and maintains and enhances the character of urban and township areas. A design objective of this policy is to maintain the existing vegetation including canopy trees. [45]

4.38 Where the need for a planning permit is triggered by an overlay requirement and a resident wishes to remove only one or two trees or to prune trees and no development is involved, the Nillumbik Shire Council allows residents to lodge a ‘fast track’ application.[46] Otherwise, the standard application for planning permit must be used.[47]

4.39 A council arborist will inspect the tree/s, and will then provide a recommendation to the Shire planning team so Council can determine the application. A condition of approval may include a requirement for the replanting of trees to compensate for the approved removal of trees.[48]

Heritage Overlay

4.40 The Heritage Overlay may protect specific individual trees or groups of trees on private land (such as a landmark tree or an Avenue of Honour).[49] A heritage overlay aims to conserve and enhance heritage places[50] of natural or cultural significance and to ensure that development does not adversely affect the significance of heritage places.[51]

4.41 The overlay includes a statement outlining what is valuable about a place or object, and this is often supplemented by local policy.[52] A permit is required to remove, destroy or lop a tree if a schedule identifies tree controls for a heritage place.[53]

4.42 These tree controls are not intended to protect trees for their amenity value, but to protect trees that are ‘of intrinsic significance (such as trees that are included on the National Trust Register or trees that contribute to the significance of a heritage place)’.[54]

4.43 One of the decision-making guidelines to be considered in granting a permit is whether the lopping or development will adversely affect the health, appearance or significance of the tree.[55]

4.44 One criterion used for the assessment of heritage values is a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons. This includes the significance of a place to Aboriginal people as part of their continuing and developing cultural traditions.[56]

Neighbourhood Character Overlay

4.45 The Neighbourhood Character Overlay identifies areas of existing or preferred neighbourhood character and aims to ensure that development respects that character.[57] Vegetation removal may be controlled by this overlay. If trees are specified in a schedule, a permit is usually required to remove, destroy or lop them.[58] The overlay only protects large trees over a certain height or girth.[59] The overlay lists factors relevant to decision making, including the contribution that the tree makes to the neighbourhood character and the health of the tree.[60]

Bushfire Management Overlay

4.46 The Bushfire Management Overlay[61] specifies planning requirements for bushfire protection and developmental controls to ‘mitigate risk to life, property and community infrastructure’.[62] One of its purposes is to identify areas where bushfire hazards warrant bushfire protection measures being implemented. Consequently, this overlay may provide exemptions where a permit would otherwise be required to remove certain vegetation.[63]

Particular provisions

4.47 Particular provisions are statewide specific planning provisions that apply to particular issues or application types. They apply in addition to a zone or an overlay unless specified otherwise. Some particular provisions have schedules for local requirements.[64]

4.48 The particular provisions relating to native vegetation and bushfire protection exemptions are potentially relevant to private tree owners’ management of their trees. These provisions may require a landowner to obtain a permit to remove or prune protected native vegetation on large blocks of land. They may also excuse a landowner from having to obtain a permit required elsewhere in a planning scheme, in an overlay, for example, for bushfire safety purposes.

Native vegetation particular provisions

4.49 Native vegetation is defined in the VPPs as ‘plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses’.[65]

4.50 The native vegetation particular provisions of the VPPs control the removal of native vegetation. A permit is usually required to remove, destroy or lop native vegetation,[66] subject to some limited exemptions.[67] The provisions also establish offset requirements to compensate for removal, with the aim of ensuring that clearing native vegetation has a neutral impact on Victoria’s biodiversity. The type of offset required depends on the characteristics of the native vegetation being removed, and the extent of the loss.[68]

4.51 The native vegetation particular provisions will not affect most private properties in Victoria. They ‘aim to prevent broad-scale clearing of vegetation and will have limited applicability in urban areas with small lot sizes’.[69] They are more relevant in country areas or Green Wedge areas because this is where most native vegetation is located and because of the way the VPP defines native vegetation and the way the exemptions are framed.

4.52 If the native vegetation provisions apply to private property, the provisions allow the clearing of some vegetation without a permit. Some of the exemptions include: lopping and pruning for maintenance to a maximum of one-third of the foliage from an individual plant; where the vegetation has been planted, for example, in a garden or as a street tree; or to enable the removal or destruction of a listed weed in certain circumstances.[70] The permit requirements will not apply to vegetation on small blocks.[71]

4.53 Planning schemes also consider the non-biodiversity impacts of native vegetation removal, for example, for managing bushfire risk, Aboriginal cultural heritage, timber harvesting, minimising land and water degradation, and preserving landscape values.[72]

Bushfire protection particular provisions

4.54 The bushfire protection particular provisions were added following the recommendations of the 2009 Victorian Bushfire Royal Commission.[73] They provide additional exemptions to the need to obtain a native vegetation clearing permit, and they also apply to non-native vegetation. They allow for the clearance of some vegetation around existing buildings, used for accommodation and adjacent to fences on property boundaries, to reduce fuel load.[74]

4.55 A further exemption allows a private land holder to clear vegetation along a fence line without a permit.[75] This exemption applies across Victoria but only to maintain a fence between properties in different ownership.[76] Some local government areas are specifically excluded from the operation of the provision.[77]

4.56 Written permission must be sought from the neighbouring landowner before any vegetation is removed from a neighbour’s property, including from the public land manager.[78]

4.57 These exemptions override any other requirements to obtain a permit in a planning scheme, including if an overlay requires a permit.[79]

Incorporated documents

4.58 Planning schemes may incorporate documents that relate to the use, development or protection of land. These documents can ‘inform the planning scheme, guide decision making or affect the operation of the scheme’.[80] For example, the guidelines for the native vegetation particular provisions are an incorporated document in all Victorian planning schemes.[81] Local councils can incorporate their own documents into the planning scheme.[82]

VicSmart provisions

4.59 The VicSmart provisions provide a mechanism that allows for a quick planning decision to be made about the removal, destruction or lopping of only one tree.[83] The application must provide a range of information, including the species and size of the tree and any other significant trees removed in the past three years on the site. It must also explain why works need to be conducted and include a photograph of the tree. The decision-making guidelines include consideration of the objectives of any applicable overlay, whether the tree contributes to the significance of the area and the extent to which the health, appearance or significance of the tree will be affected by the works. [84]

Administration of the planning scheme

4.60 The Planning Act is administered by the Victorian State Government Minister for Planning. The Department of Environment, Land, Water and Planning (DELWP) advises the Minister and administers and implements the state government’s role in the system.[85]

4.61 The Planning Act specifies two roles in Victoria’s planning structure—the Responsible Authority and the Planning Authority.

4.62 The Responsible Authority is the person or organisation that will administer and enforce the planning scheme, generally the local council.[86]

4.63 A Planning Authority is the person or organisation authorised to prepare a planning scheme or an amendment; the default Planning Authority is the local council in a municipal district. However, the council will need approval from the Minister to change a scheme.[87]

4.64 Decisions can be made at the state and local level, depending on the nature of the proposal. Generally, local councils control the day-to-day administration of Victoria’s planning system, and each must also keep an up-to-date copy of the VPPs and its planning scheme available for inspection during office hours, free of charge.[88]

Non-compliance and enforcement

4.65 Any person who uses or develops land in contravention of, or fails to comply with, a planning scheme, a planning permit, or an agreement with the owner of land under section 173 of the Planning Act, is guilty of an offence.[89] There are a range of enforcement options available to a Responsible Authority, including negotiation, warnings, infringement notices, injunctions and prosecution.[90]

4.66 A recent Nillumbik Shire Council prosecution for an illegal tree removal under the Planning Act resulted in a fine of $30,000. The Council noted that ‘removing significant trees is something that this Council takes very seriously and the message is clear—if [residents] remove trees without a permit we will take action’.[91]

The role of the Victorian Civil and Administrative Tribunal

4.67 Applications can be made to the Victorian Civil and Administrative Tribunal (VCAT) to independently review planning decisions made by a Responsible Authority.[92] VCAT also has original jurisdiction to hear some types of matters, including applications to cancel permits and applications for enforcement orders.[93]

4.68 The Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) sets out the powers of VCAT and procedural rules relevant to the hearing of disputes.[94]

The role of arborists in planning schemes

4.69 Councils often rely on arborists to assist them to manage vegetation in local government areas. Some councils employ in-house arborists and others engage contractor arborists. The bulk of work done by arborists is in relation to council trees.

4.70 As well as carrying out works and assessments of trees for councils,[95] arborists may also assist councils with ensuring that proposed work on trees aligns with planning principles. Their work may include:

• providing reports for planning applications that involve the removal of vegetation (residential or commercial)

• reviewing submissions to prune or remove private protected trees and carrying out that work or inspecting it[96]

• determining the boundaries of tree protection zones[97]

• approving Tree Protection Management Plans

• conducting risk assessments for trees that may pose a danger to people or property and removing unsafe trees or branches[98]

• surveying and making an inventory of the trees on a given site.

Local tree protection laws

4.71 Some councils have local laws to protect trees on private and public land.[99] Councils sometimes introduce these laws as an added protection mechanism where trees are important to the character of the district or are otherwise significant. These laws supplement planning regulations. If a tree is protected, these laws may limit the action a landowner can take to resolve a dispute with their neighbour (namely abatement) and may require a particular process to be followed before work can be done to that tree.

4.72 Where they exist, local laws generally contain similar tree protections, operating to:

• protect trees identified as ‘significant’ or ‘protected’ on private land

• extend protection by reference to trees’ large size, age, rarity, ecological value, or cultural and historical significance

• extend protections to a root zone around the base of the tree and/or a tree protection zone around the trunk of the tree

• require the owner to obtain a permit to prune or remove protected trees or to carry out works in proximity to the tree protection zones.

4.73 The operation of local tree protection laws can be understood through the following examples from the Cities of Boroondara, Port Phillip and Frankston.

City of Boroondara

4.74 The City of Boroondara is in the eastern suburbs of Melbourne, and includes established, leafy suburbs, some alongside the Yarra River.[100] The City of Boroondara Tree Protection Law 2016 protects canopy trees and significant trees in the municipal district on private property.[101] In outlining the context of the new laws, the Council acknowledged the environmental benefits of trees in the suburban environment and the contribution the local tree canopy ‘makes to the quality of its suburban environment. Damage and or removal of Significant Trees or Canopy Trees results in a degradation of this established character.’[102]

4.75 Three key principles are identified by the City of Boroondara:

• Significant trees must be retained and cared for and will be the major determining factor in any redevelopment of land in the vicinity of the tree.

• Trees that contribute to the municipal district’s overall tree canopy character should be retained where practicable. Works near significant trees or canopy trees should be minimised to prevent damage and disruption to tree roots or growing conditions.

• Owners of land and/or contractors will be responsible for the loss or damage of significant trees or canopy trees that are required to be retained.[103]

4.76 Local law prohibits a range of activities in relation to significant trees and canopy trees including removing, pruning and damaging the tree and carrying out works in a tree protection zone or a structural root zone.[104] They apply whether or not the tree extends beyond the boundary of private land but do not apply to a tree or part of a tree that is on public land.[105]

4.77 In deciding whether to grant a permit to allow those activities, the Council or authorised officer must consider:

• the effect of the proposed action on the aesthetics of the neighbourhood

• whether the tree is a significant tree

• the condition of the tree

• the appropriateness of the tree for its location on the property, having regard to the existing buildings and conditions on the property

• whether the proposed action is to be undertaken for reasons of health or safety

• whether the tree is causing any unreasonable property damage

• whether the tree is causing any unreasonable public nuisance or creating any unreasonable nuisance to private property owners or occupiers

• whether the tree is a recognised weed

• the nature of the zoning of the land under the City of Boroondara Planning Scheme

• any legislative requirements

• any other matter relevant to the circumstances associated with the application.[106]

4.78 A qualified arborist visits and inspects the tree and provides a report to council.[107] If granted, permits are valid for 12 months and can be issued for longer if needed. Special conditions may be attached to the permit, including requirements to replace trees that have been removed, conduct remediation works to existing trees, and to protect trees close to building works.[108]

4.79 The provisions also set up a security bond scheme where an authorised officer or council can ask that the owner of private land proposing to do works within protected zones pay a security bond to the council. This bond may be retained to pay for replacement vegetation or refunded at the discretion of the council.[109]

4.80 If a tree or a part of a tree is interfered with contrary to the tree protection law, the owner of the private land that the tree is situated on is guilty of an offence.[110] This applies whether or not the person who actually interfered with the tree is identified or prosecuted, unless the owner can prove that the interference occurred without their knowledge.[111]

4.81 An authorised officer may direct a private landowner or anyone engaged to work on private land who appears to be in breach of this local law to remedy the situation. The officer may also direct someone in breach of these provisions to plant by way of replacement of one or more trees.[112]

4.82 Other protections that are provided in the local laws include the cancellation of a permit, inspections and infringement notices as an alternative to prosecution for the offence.[113]

4.83 The Council also carries out follow-up inspections to make sure permit conditions are being met. If a condition is breached, Council may issue a fine, send a ‘notice to comply’ or prosecute.[114]

City of Frankston

4.84 The City of Frankston is located on the eastern side of Port Phillip Bay, approximately 40 kilometres south of Melbourne. The municipality covers an area of about 131 square kilometres from Seaford Wetlands in the north, to Mount Eliza in the south, and the Western Port Highway in the east. The western boundary of the city is made up of about 10 kilometres of coastline.

4.85 Under Tree Protection Local Law 2016 No 22, trees with a trunk circumference of over 100 centimetres may not be removed, otherwise killed, or pruned (more than one third of the canopy) without a permit from the council.[115] The stated aims of the Tree Protection Law include to:

• protect [the] community forest by maintaining tree canopy on private land

• require a minimum standard of tree pruning for the protection of trees and public safety

• protect and enhance the amenity and environment of Frankston.[116]

City of Port Phillip

4.86 The City of Port Phillip[117] is an inner-city bayside local government area of Melbourne. It has tree protection laws that protect palms and other significant trees.[118]

4.87 A significant tree permit is generally required in addition to any planning permit required under the Port Phillip planning scheme. The Council has some exclusions to its permit requirement. For example, a permit is not required to prune a significant tree where the tree overhangs a footpath or other part of the road used by pedestrians,[119] or extends over a road to create a danger or obscure or block vehicles, lighting or council assets.[120]

4.88 The Council encourages people relying on these exemptions to keep photographic evidence of the tree before conducting any work.[121]

Other laws relevant to vegetation management

4.89 Other pieces of legislation supplement the core planning framework in the Planning and Environment Act.[122] While planning schemes and local laws are most likely to prescribe what can and cannot be done on most private property in Victoria, other laws may also be relevant, particularly outside metropolitan areas.

4.90 Although less likely to apply to neighbourhood disputes, these laws potentially impact on disputes between neighbours about trees. They can oblige a landowner to remove vegetation, for example, a noxious weed or vegetation that is dangerous to road users. They may also require a landowner to protect important vegetation. Some of these laws are considered below and deal with issues of public health and land protection, environmental protections, transport and road reserves, and heritage and cultural protections.

Public health and land protection

4.91 Private landowners with trees that adversely affect public health and wellbeing, or the land of another owner, may be required to take certain actions under the Public Health and Wellbeing Act 2008 (Vic) and the Catchment and Land Protection Act 1994 (Vic).

Public Health and Wellbeing Act 2008 (Vic)

4.92 Under the Public Health and Wellbeing Act 2008 (Vic), councils are required to remedy nuisances within the municipality, insofar as possible.[123] To be considered a nuisance under this Act, an act or phenomenon must be ‘dangerous to health or offensive’.[124]

4.93 If notified of a potential nuisance, the Council is obliged to investigate it.[125] If a nuisance is found to exist, Council must take action it considers appropriate,[126] including issuing an improvement or prohibition notice or bringing proceedings under the Act for the offence of creating a nuisance.[127]

4.94 The relevant part of the Act applies in particular to nuisances arising from or constituted by any: ‘premises … state, condition or activity … or other matter or thing’, and could theoretically be applied to private tree disputes.[128]

4.95 However, if the council is satisfied that the matter is better settled privately, it must advise the complainant of any available methods for doing so.[129]

4.96 In practice, these provisions are designed to address nuisances posing extreme public health risks. Councils are therefore unlikely to become involved in private tree disputes through this mechanism. The provision of information on council websites about how to resolve private tree disputes, and referrals from council officers to DSCV and other resources, would satisfy the Act’s requirements.

Catchment and Land Protection Act 1994 (Vic)

4.97 Landowners have responsibilities to manage specific weeds on their properties.[130] The Catchment and Land Protection Act 1994 (Vic) (the Catchment Act) defines noxious weeds,[131] and is Victoria’s primary legislation dealing with invasive plants and animals, although local laws may also apply.

4.98 Under the Catchment Act, landowners must take all reasonable steps to eradicate regionally prohibited weeds and prevent the growth and spread of regionally controlled weeds on and from their land.[132]

4.99 If required steps are not taken, the government may serve a notice on a landowner outlining measures that must be taken to control noxious species on their land.[133] Not complying with the conditions is an offence.[134]

Environmental protections

4.100 Private landowners may need to obtain a permit under the Flora and Fauna Guarantee Act 1988 (Vic) or the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth) to remove native vegetation.[135]

Flora and Fauna Guarantee Act 1988 (Vic)

4.101 The Flora and Fauna Act aims to conserve threatened native plants or communities of native plants and manage processes that are potentially threatening to them.[136] The permit requirements under the Act mainly apply to public land because of the significant exceptions for private landowners.[137] However, the exceptions that apply to private land do not extend to taking flora from land that forms part of a critical habitat[138] or taking tree-ferns, grasstrees or sphagnum for the purpose of sale.[139]

Environment Protection and Biodiversity Conservation Act 1999(Cth)

4.102 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) provides a legal framework to protect and promote the recovery of threatened species and ecological communities and preserve significant places from decline.[140]

4.103 The Act affects any group or individual whose actions may have a ‘significant impact’ on a matter of National Environmental Significance,[141] including landowners.[142] If the proposed action meets this test, it is a ‘controlled action’ and must be referred to the Commonwealth Department of Environment and Energy for assessment and approval.[143]

4.104 If a private landowner wishes to clear native vegetation on their property which is listed as a threatened species, the requirements of this legislation will only apply if the clearance satisfies the significant impact test. While it is unlikely that the removal of one or two native trees on a suburban block would meet this test, it might apply on a larger property outside metropolitan Melbourne.

Transport legislation and road reserves

4.105 Legislation that regulates public land in road reserves and rail corridors may place obligations on private landowners to maintain vegetation on private property. Examples of legislation include:

• Road Management Act 2004 (Vic)—enables a state road authority[144] to require the owner of neighbouring land to take action where the condition of land next to a road adversely affects the structural integrity of the road or the safety of its users.[145]

• Rail Management Act 1996 (Vic)—provides that the owner of land may be required to remove or prune a tree if it poses a risk to the safety of anyone on or using a railway track.[146]

Heritage and cultural protections

4.106 Heritage protections can apply to natural environments. The Victorian Heritage Register covers places of state significance. Commonwealth law applies to places of national significance, and a separate scheme protects Aboriginal heritage.[147] As discussed above at [4.40]–[4.44], protections are also provided in the VPPs and planning schemes. Examples of relevant heritage laws include:

• Heritage Act 1995 (Vic)—establishes the Victorian Heritage Register. It covers non-Indigenous heritage places of state or national significance. A ‘place’ is defined under the Act as including a building, a garden, a tree, a precinct, a site and land associated with any of those.[148]

• Aboriginal Heritage Act 2006 (Vic)— establishes the Victorian Aboriginal Heritage Council and the Victorian Aboriginal Heritage Register, which records known Aboriginal heritage places and objects in Victoria, such as scarred trees.[149]

• Environment Protection and Biodiversity Conservation Act 1999 (Cth)—contains provisions for the management and protection of Commonwealth heritage places classed as natural, Indigenous and historic.[150] The Act creates the National Heritage List and the Commonwealth Heritage List.[151]

Tree protection laws in other jurisdictions

4.107 New South Wales, Western Australia, Queensland and Tasmania adopt approaches similar to Victoria, where tree protections are incorporated mainly into local planning instruments—planning schemes, overlays or tree protection orders.[152] In these states, ‘tree protection criteria can vary significantly from local council to council’.[153]

4.108 In South Australia and the Australian Capital Territory, protections for native and non-native vegetation on private land are provided for in state-based development control legislation.[154] These laws adopt a similar approach to that of the local tree protection laws discussed above at [4.71]–[4.88].

Conclusion

4.109 The Commission is not reviewing the planning system, and is not able to recommend changes to planning law in this project. However, any changes to the current dispute resolution system in Victoria would need to take into account the impact on the planning scheme and other existing laws relating to the management of trees on private land.

4.110 Many of these laws and planning principles in this chapter apply only in very specific circumstances. Although they are unlikely to affect a large number of disputes between neighbours over trees on private property, they may place significant restrictions on some tree owners.

  1. Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) [1.2] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>. See also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 23.

    ↑

  2. Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) [1.2] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>. The standard components include: State Planning Policy Framework; Local Planning Policy Framework comprising the Municipal Strategic Statement and Local Planning Policies; zones; overlays; particular provisions; general provisions; definitions; incorporated documents; VicSmart provisions.

    ↑

  3. There are 79 local government areas in Victoria and three special planning areas (Alpine Resorts, Port of Melbourne and French and Sandstone Island). Each of these areas is covered by a planning scheme: Department of Environment, Land, Water and Planning (Vic), Planning Schemes Online—About Planning Schemes <http://planningschemes.dtpli.vic.gov.au/about#user>.

    ↑

  4. There are some exceptions. A planning scheme will not apply to places acquired by the Commonwealth for a public purpose and cannot regulate the use or development of Commonwealth land. Other exemptions relate to existing use rights, exemptions declared under s 16 of the Planning Act 1987 (Vic) and permanently reserved Crown land: Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) [1.6]–[1.6.1] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  5. These purposes are identified by the Hume City Council, General Planning Information Fact Sheet, <www.hume.vic.gov.au>.

    ↑

  6. Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) [1.2] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  7. Ibid.

    ↑

  8. Ibid [1.8.7].

    ↑

  9. See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 27. A short summary of each of the zones listed in the VPP is provided in Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide. (28 May 2015) [1.8.12] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  10. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 35.06

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  11. Ibid cl 35.06–6.

    ↑

  12. City of Stonnington, City of Stonnington Planning Scheme (19 September 2017) sch 8 cl 32.08 General Residential Zone, Items 2 and

    4 <http://planning-schemes.delwp.vic.gov.au/schemes/stonnington>.

    ↑

  13. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note — Vegetation Protection in Urban Areas (August 1999)

    4 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  14. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 42, 43, 44 and 45 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  15. See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 33.

    ↑

  16. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide (28 May 2015) [1.8.4]

    <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  17. Other land management overlays not discussed may also limit the removal of vegetation, eg, erosion, salinity or flood overlays: see Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 44.01, 44.02 and 44.03 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  18. Green wedge land is defined as land outside the urban growth boundary: Planning and Environment Act 1987 (Vic) s 46AC.

    ↑

  19. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 31: Preparing a Green Wedge Management Plan (June 2015) 2 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  20. Nillumbik Shire Council, Nillumbik Green Wedge Management Plan 2010: Part 1 (2010) [2.1] <www.nillumbik.vic.gov.au/Environment/Nillumbik-Environment-Charter>.

    ↑

  21. East Gippsland Shire Council, Know Your Council <http://knowyourcouncil.vic.gov.au/councils/east-gippsland>.

    ↑

  22. The Shire website states that 11 mammal, 45 bird and 3 reptile species in East Gippsland are threatened: see the discussion about biodiversity at <www.eastgippsland.vic.gov.au/Community/Our_Environment/Biodiversity>.

    ↑

  23. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 42.02.

    ↑

  24. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide

    (28 May 2015) [1.8.13] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>. See also Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 5

    <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  25. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide

    (28 May 2015) [1.8.13] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  26. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 42.02–2

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  27. The permit requirement is subject to the exclusions listed in Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 42.02–3 Table of exemptions <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  28. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 5 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  29. East Gippsland Shire Council, Planning Scheme (12 October 2017) sch 8 to the Vegetation Protection Overlay—Mallacoota Vegetation Protection Area, 1 and 2 <http://planning-schemes.delwp.vic.gov.au/schemes/eastgippsland>.

    ↑

  30. Ibid 3.

    ↑

  31. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 5 <www.planning.vic.gov.au/publications/planning-practice-notes>. See also Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 42.01 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  32. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999)

    5 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  33. A permit is not required if a native vegetation precinct plan applies: East Gippsland Shire Council, Planning Scheme (12 October 2017) cl 42.01–2 and see table of exemptions in cl 42.01–3. <http://planning-schemes.delwp.vic.gov.au/schemes/eastgippsland>.

    ↑

  34. Nillumbik Shire Council, Planning Scheme (19 September 2017) sch 1 to the Environmental Significance Overlay—Sites of Faunal and Habitat Significance <http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>.

    ↑

  35. See Nillumbik Shire Council, Environmental Significance Overlays (2 February 2015) <www.nillumbik.vic.gov.au/Building-and-Planning-permits-and-advice/Planning-advice/Environmental-significance-overlays>.

    ↑

  36. See the complete checklist for planning assessment. Ibid.

    ↑

  37. Ibid.

    ↑

  38. See Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 42.03

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  39. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 6 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  40. Nillumbik Shire Council, Planning Scheme (19 September 2017) cl 42.03–2 and 42.03–3 table of exemptions <http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>. A permit is not required if complying with the terms of a native vegetation precinct plan under 52.16.

    ↑

  41. Bush and Semi-Bush Residential Areas, Bush Garden, Garden Court, Eltham Central and several new schedules awaiting content.

    ↑

  42. See Nillumbik Shire Council, Significant Landscape Overlay (2 February 2015) <www.nillumbik.vic.gov.au/Property/Building-and-Planning-permits-and-advice/Advice-Sheets/Significant-landscape-overlay>.

    ↑

  43. A permit is not needed to prune a tree for regeneration or ornamental shaping or the removal of dead trees or dead limbs or the partial removal of limbs and branches directly overhanging dwellings, garages and outbuildings or the removal of Yarra Burgan for fire prevention purposes: Nillumbik Shire Council, Planning Scheme (19 September 2017) sch 4 to the Significant Landscape Overlay—Garden Court Character <http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>.

    ↑

  44. Nillumbik Shire Council, Planning Scheme (19 September 2017) cl 22.12 < http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>.

    ↑

  45. Eg, the Garden Court precinct in the Neighbourhood Character Policy has a design objective to maintain the existing mix of native and exotic vegetation including canopy trees and understorey. Remnant indigenous understorey vegetation should be retained where possible and replanted where appropriate: Nillumbik Shire Council, Planning Scheme (19 September 2017) cl 22.12 and 22.12–3 < http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>. See also Nillumbik Shire Council, Significant Landscape Overlay (2 February 2015)

    <www.nillumbik.vic.gov.au/Property/Building-and-Planning-permits-and-advice/Advice-Sheets/Significant-landscape-overlay>.

    ↑

  46. See the discussion in Nillumbik Shire Council, Tree Removal and Pruning Application (2017) <www.nillumbik.vic.gov.au/Building-and-planning-permits-and-advice/Planning-forms/Tree-removal-and-pruning-application>.

    ↑

  47. Ibid. The fast track process cannot be used for the removal of three or more trees or if directly associated with the development or redevelopment of land that requires a planning permit. It cannot be used to clear Native Vegetation under the Native Vegetation Particular Provision 52.17 discussed at [4.49]–[4.53].

    ↑

  48. See the discussion in Nillumbik Shire Council, Tree Removal and Pruning Application (2017) <www.nillumbik.vic.gov.au/Building-and-planning-permits-and-advice/Planning-forms/Tree-removal-and-pruning-application>.

    ↑

  49. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 6 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  50. A ‘heritage place’ includes both the listed heritage item and its associated land: Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 43.01 ‘Heritage Overlay’ <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  51. Ibid.

    ↑

  52. See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 256.

    ↑

  53. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 43.01–1

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  54. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 1: Applying the Heritage Overlay (July 2015) 4

    <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  55. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 43.01–4 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  56. See Criterion G: Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 1: Applying the Heritage Overlay (July 2015) 1–2 <www.planning.vic.gov.au/publications/planning-practice-notes>. Nillumbik Shire Council notes that it is Council policy to both provide for the identification of sites of Aboriginal cultural significance and the appropriate level of management in consultation with the local Aboriginal community, and ensure new uses, developments and works do not impinge on or detract from sites and features of Aboriginal cultural heritage and archaeological significance: Nillumbik Shire Council, Planning Scheme (19 September 2017) cl 22.05 of the Local Planning Policy Framework <http://planning-schemes.delwp.vic.gov.au/schemes/nillumbik>. See also the discussion about heritage protections: Nillumbik Shire Council, How Heritage Places are Protected <www.nillumbik.vic.gov.au/Property/Planning-our-townships/Planning-for-our-Shire/Heritage/How-Heritage-Places-are-Protected>.

    ↑

  57. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 43.05

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  58. Ibid cl 43.05–2.

    ↑

  59. If the tree is less than 5 m high or has a trunk circumference of less than 0.5 m, an exemption applies. For this and other exemptions,

    see ibid.

    ↑

  60. Ibid cl 43.05–5.

    ↑

  61. Ibid cl 44.06.

    ↑

  62. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide (28 May 2015) [1.8.13] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  63. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 64: Local Planning for Bushfire Protection (September 2015) 3 <www.planning.vic.gov.au/publications/planning-practice-notes>. Schedules may be added to the Bushfire Management Overlay. A schedule can vary specified requirements of cl 44.06, including permit requirements, and notice/referral requirements, and modify the measures and application requirements in cl 52.47. Other VPPs that relate to bushfire and vegetation removal are: cl 52.47 ‘Planning for Bushfire’; cl 52.48–5 ‘Bushfire exemption to create defendable space’; and cl 66.06 ‘Referral requirements to the relevant fire authority’.

    ↑

  64. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide (28 May 2015) [1.8.5] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  65. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 72

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  66. Ibid. cl 52.17–2.

    ↑

  67. Ibid: exemptions are listed in the table.

    ↑

  68. See Department of Environment, Land, Water and Planning (DELWP) (Vic), Permitted Clearing of Native Vegetation—Biodiversity Assessment Guidelines (2013) [2.3] <www.environment.vic.gov.au/native-vegetation/native-vegetation>. DELWP is the responsible authority for determining the statewide biodiversity impacts of permit application pursuant to cl 66.02–2 of the VPPs. Offset requirements are discussed in cl 52.17–6 of the VPPs.

    ↑

  69. Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 7: Vegetation Protection in Urban Areas (August 1999) 4 <www.planning.vic.gov.au/publications/planning-practice-notes>.

    ↑

  70. Another exemption allows clearance of native vegetation to build or maintain a fence provided that the combined maximum clearance either side of the fence is 4 m in total. The complete exemption requirements are listed in ibid cl 52.17–7.

    ↑

  71. With a total site area of less than 0.4 ha: ibid.

    ↑

  72. These other issues are managed by the local council or other referral authority: ibid cl 52.17–5. See also Department of Environment, Land, Water and Planning (Vic), Permitted Clearing of Native Vegetation—Biodiversity Assessment Guidelines (2013) [1.3] <www.environment.vic.gov.au/native-vegetation/native-vegetation> and the discussion in Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 58.

    ↑

  73. Department of Planning and Community Development, Advisory Note 39: Amendment VC83—Bushfire Protection, Vegetation Exemptions (November 2011) <www.planning.vic.gov.au/__data/assets/pdf_file/0014/13901/AN39-Amendment-VC83-Bushfire-protection-Vegetation-Exemptions.pdf>.

    ↑

  74. Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 52.48–1 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>. Eg, the provisions allow the removal, destruction or lopping of any vegetation within

    10 m of an existing building used for accommodation and any vegetation, except trees within 30 m. See Department of Environment, Land, Water and Planning, Native Vegetation <www.environment.vic.gov.au/native-vegetation/native-vegetation>. These exemptions only apply to buildings that were constructed or approved to be built by a certain time and there is a long list of local government areas excluded from its operation. There is a separate exemption in cl 52.48–5 to create a defendable space around a dwelling if the land is subject to a Bushfire Management Overlay and other conditions are met.

    ↑

  75. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 52.48–2

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  76. The fence must have been constructed before 10 September 2009.

    ↑

  77. Department of Environment, Land, Water and Planning (Vic), Planning Advisory Note 83—Bushfire Protection: Vegetation Exemptions (February 2012) <www.planning.vic.gov.au/publications/planning-advisory-notes>.

    ↑

  78. Ibid.

    ↑

  79. The exemptions do not apply if there is a legal agreement or covenant in place that prohibits the removal, destruction or lopping of the native vegetation. This might arise if the vegetation is subject to a native vegetation offset: ibid.

    ↑

  80. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (19 September 2017), cl 81 and 81.01

    <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>; Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) [1.8.9] <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  81. See Department of Environment, Land, Water and Planning (Vic), Native Vegetation <www.environment.vic.gov.au/native-vegetation/native-vegetation>.

    ↑

  82. Councils incorporate documents as a schedule to cl 81.01 of the VPPs.

    ↑

  83. These provisions were added in 2014: Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 39; Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 93.06 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>.

    ↑

  84. See the complete requirements in the VPPs: Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 93.06–1–2 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>. Additional requirements apply to lopping trees subject to a Heritage Overlay.

    ↑

  85. See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 16.

    ↑

  86. This may be the Minister or any other person who the planning scheme itself specifies: Department of Environment, Land, Water and Planning, Victoria Planning Provisions (19 September 2017), cl 61.01 <http://planningschemes.dpcd.vic.gov.au/schemes/vpps>. See Planning and Environment Act 1987 (Vic) ss 13 and 14 for a complete list of responsibilities.

    ↑

  87. See Planning and Environment Act 1987 (Vic) s 8A and Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 17.

    ↑

  88. The VPPs and all planning schemes, including the associated maps, are available via Planning Schemes Online on the Department of Environment, Land, Water and Planning website <http://planning-schemes.delwp.vic.gov.au/>. Copies of planning schemes are also held in the Department’s regional offices.

    ↑

  89. See Planning and Environment Act 1987 (Vic) s 126.

    ↑

  90. See the discussion in Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide (28 May 2015)

    Ch 7: Enforcement <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  91. See Nillumbik Shire Council, ‘Biggest Fine for Tree Removal in Nillumbik’ (Press Release, 7 March 2017) available at <www.nillumbik.vic.gov.au/News/Biggest-fine-for-tree-removal-in-Nillumbik>.

    ↑

  92. Eg, there is a right of review of a responsible authority’s refusal to grant a planning permit in s 77 of the Planning and Environment Act 1987 (Vic) and a right of review of a decision to put any condition in a permit in s 80. A useful summary of the common types of decision that can be reviewed by VCAT is set out the Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide

    (28 May 2015) 5, Table 5.1 <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  93. Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System Guide (28 May 2015) [5.1.1] and Table 5.1 <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  94. Information about VCAT’s review process, relevant forms and practice notes is available on VCAT’s website <www.VCAT.vic.gov.au>.

    See also Department of Environment, Land, Water and Planning, Using Victoria’s Planning System Guide (28 May 2015) Ch 5

    <www.planning.vic.gov.au/planning-in-victoria/a-guide-to-the-planning-system>.

    ↑

  95. This includes providing guidance on the planting and maintenance of trees, treating tree diseases or pests, managing roots and providing long-term tree care plans. For a more detailed discussion of the role of arborists (in the context of private disputes), see [3.41]–[3.48].

    ↑

  96. In the City of Port Phillip, an application for the private pruning or removal of identified ‘significant’ trees requires the submission of an arborist’s report at the applicant’s own initiative and expense. This report is then reviewed by the Council’s own arborist: City of Port Phillip (Vic) Significant Tree Permits, Factsheet (2016) <www.portphillip.vic.gov.au/Significant_Tree_Permits_Fact_Sheet_Version_3.pdf >. See also City of Boroondara, Fact Sheet: Find an Arborist <www.boroondara.vic.gov.au/waste-environment/trees-and-naturestrips/find-arborist>.

    ↑

  97. See City of Melbourne, Tree Retention and Removal Policy (2012) cl 2.5 <www.melbourne.vic.gov.au/community/parks-open-spaces/tree-protection-management/Pages/tree-protection-policy.aspx>.

    ↑

  98. See City of Port Phillip, Process for Responding to Requests Chart <www.portphillip.vic.gov.au/Tree_Removal_-_Process_for_responding_to_requests_chart.pdf>.

    ↑

  99. Local laws are those made by local governments under the Local Government Act 1989 (Vic). Under the Act a local law must not be inconsistent with any other Act or regulation (state or federal): s 111. Local laws are therefore aimed at dealing with local issues.

    ↑

  100. It includes the suburbs of Ashburton, Balwyn, Balwyn North, Burwood, Camberwell, Canterbury, Deepdene, Glen Iris, Glenferrie South, Greythorn, Hawthorn, Hawthorn East, Kew, Kew East, Mont Albert and Surrey Hills: <http://knowyourcouncil.vic.gov.au/councils/boroondara>.

    ↑

  101. Tree Protection Local Law 2016 (City of Boroondara) s 2. Protections also apply to trees on public land. The City of Boroondara notes that a significant tree is protected because of its impressive size or age, rarity, ecological value, or cultural and historical significance. A canopy tree contributes to the municipality’s biodiversity, shade and privacy.

    ↑

  102. Tree Protection Local Law 2016 (City of Boroondara) 5, Part B.

    ↑

  103. Ibid.

    ↑

  104. See ibid s 8(3) for the complete list of activities that require a permit.

    ↑

  105. Ibid s 8(1).

    ↑

  106. Ibid s 12.

    ↑

  107. See City of Boroondara, Remove, Prune or Carry Out Works Near a Tree <www.boroondara.vic.gov.au/waste-environment/trees-and-naturestrips/remove-prune-or-carry-out-works-near-tree>.

    ↑

  108. Ibid.

    ↑

  109. Tree Protection Local Law 2016 (City of Boroondara) s 13.

    ↑

  110. Ibid ss 8(5), 8(3).

    ↑

  111. Ibid s 8(5). A similar provision exists in the City of Yarra’s tree protection local laws: General Local Law 3 2016 (City of Yarra), cl 39.4.

    ↑

  112. Of a type and in a location determined by the authorised officer: Tree Protection Local Law 2016 (City of Boroondara) ss 9, 10

    ↑

  113. Ibid ss14,15,16. Prosecution for the offence is outlined in ss 8 and 17.

    ↑

  114. See City of Boroondara, Remove, Prune or Carry Out Works Near a Tree <www.boroondara.vic.gov.au/waste-environment/trees-and-naturestrips/remove-prune-or-carry-out-works-near-tree>.

    ↑

  115. Frankston City, Local Laws for Trees <www.frankston.vic.gov.au/Environment_and_Waste/Environment/Trees/Local_Laws_for_Trees>.

    ↑

  116. Tree Protection Local Law 2016 (No 22) (Frankston City Council) cl 2.

    ↑

  117. The City of Port Phillip includes the suburbs of Albert Park, Middle Park, Port Melbourne, Ripponlea, South Melbourne, Southbank, St Kilda, St Kilda East, St Kilda West and Windsor: <http://knowyourcouncil.vic.gov.au/councils/port-phillip>

    ↑

  118. Local Law Number 1 (Community Amendment) 2013 (City of Port Phillip) cl 44.

    ↑

  119. To any extent up to a height of 2.1m.

    ↑

  120. City of Port Phillip, Fact Sheet: Significant Tree Permits <www.portphillip.vic.gov.au/Significant_Tree_Permits_Fact_Sheet_Version_3.pdf>.

    ↑

  121. Ibid. The Council further advises that a qualified arborist should be engaged to prune the tree and that pruning must be done in accordance with Australian Standard AS4373-2007—Pruning of Amenity Trees.

    ↑

  122. See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 19.

    ↑

  123. Public Health and Wellbeing Act 2008 (Vic) s 60.

    ↑

  124. Ibid s 58, defined by s 3. In determining this, Council may not consider the number of people affected, but may consider degree of offensiveness: s 58(3)(a)–(b).

    ↑

  125. Ibid s 62(2).

    ↑

  126. Ibid s 62(3)(a)–(b).

    ↑

  127. Ibid s 61.

    ↑

  128. Ibid s 58(2).

    ↑

  129. Ibid s 62(3)(b).

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  130. See Agriculture Victoria, Victorian Noxious Weeds List (20 July 2017) <http://agriculture.vic.gov.au/agriculture/pests-diseases-and-weeds/protecting-victoria-from-pest-animals-and-weeds/legislation-policy-and-permits/declared-noxious-weeds-and-pest-animals-in-victoria>.

    ↑

  131. Noxious weeds are either state-prohibited weeds, regionally prohibited weeds, regionally controlled weeds or restricted weeds: Catchment and Land Protection Act 1994 (Vic) s 1. See Agriculture Victoria, Victorian Noxious Weeds List (20 July 2017) <http://agriculture.vic.gov.au/agriculture/pests-diseases-and-weeds/protecting-victoria-from-pest-animals-and-weeds/legislation-policy-and-permits/declared-noxious-weeds-and-pest-animals-in-victoria>.

    ↑

  132. Catchment and Land Protection Act 1994 (Vic) s 20.

    ↑

  133. See Agriculture Victoria, Noxious Weeds and Pest Management <http://agriculture.vic.gov.au/agriculture/farm-management/business-management/legal-information-for-victorian-landholders/noxious-weed-and-pest-management>.

    ↑

  134. Catchment and Land Protection Act 1994 (Vic) s 41.

    ↑

  135. A permit to remove native vegetation under the VPPs does not replace permit requirements under these Acts.

    ↑

  136. Flora and Fauna Guarantee Act (Vic) 1988 s 1.

    ↑

  137. Ibid s 47(2)(b)(c). There are other exceptions including where a person has accidentally taken that flora and has exercised reasonable care not to take that flora: s 47(2)(a).

    ↑

  138. Ibid s 47(2)(b).

    ↑

  139. Flora and Fauna Guarantee (Taking, Trading in, Keeping, Moving and Processing Protected Flora) Order 2004, cl 6. Available at: <www.environment.vic.gov.au/__data/assets/pdf_file/0013/50422/Flora-and-Fauna-Guarantee-Taking,-Trading-in,-Keeping,-Moving-and-Processing-Protected-Flora-Order-2004.pdf>.

    ↑

  140. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3.

    ↑

  141. The Act focuses on the protection of nine matters of National Environmental Significance, which are: world heritage properties; national heritage places; wetlands of international importance; listed threatened species and ecological communities; migratory species protected under international agreements; Commonwealth marine areas; the Great Barrier Reef Marine Park; protection from nuclear actions (including uranium mines); protection of water resources from coal seam gas development and large coal mining development: Ibid ch 2 pt 3.

    ↑

  142. As well as developers, industry, farmers, councils, state and territory agencies and Commonwealth agencies: see Australian Government Department of Environment and Energy, EPBC ACT Frequently Asked Questions <www.environment.gov.au/epbc/publications/factsheet-epbc-act-frequently-asked-questions>. Action includes vegetation clearance.

    ↑

  143. Environment Protection and Biodiversity Conservation Act 1999 (Cth) pt 7 s 68.

    ↑

  144. ‘State road authority’ means a road authority other than a municipal council, the Extension Corporation, the Link Corporation, EastLink Corporation or Peninsula Link Freeway Corporation. See Road Management Act 2004 (Vic) s 3.

    ↑

  145. See the example provided in Road Management Act 2004 (Vic) sch 6. Some local laws also prohibit a person from allowing vegetation to obstruct or interfere with traffic, including pedestrian traffic. See, eg, General Local Law 2011 (East Gippsland Shire) cl 30. Sch 3 specifies that a tree or plant overhanging a footpath ‘shall have foliage no lower than 3 m where it is deemed that such foliage will obstruct or interfere with the passage of pedestrian traffic’.

    ↑

  146. Rail Management Act 1996 (Vic) s 67A.

    ↑

  147. Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 4th ed, 2017) 254.

    ↑

  148. See Heritage Act 1995 (Vic) s 3 for complete definition.

    ↑

  149. An Aboriginal scarred tree is a tree that has had bark removed by Aboriginal people for various purposes, including canoe building or shield making. Scarred trees are important evidence of Aboriginal use of land and resources, and can be found all over Victoria. Notable examples in Melbourne include scarred trees in the Burnley Gardens and Fitzroy Gardens: Aboriginal Affairs Victoria, Place Identification Mini Poster 1: Aboriginal Scarred Trees, June 2008 <www.vic.gov.au/system/user_files/Documents/av/ScarTrees.pdf>.

    ↑

  150. Des Eccles and Tannetje Bryant, Statutory Planning in Victoria (The Federation Press, 4th ed, 2011) 198. Section 528 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) describes the ‘heritage value’ of a place to include ‘the place’s natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians’. See also Australian Government Department of Environment and Energy, Heritage Laws <www.environment.gov.au/heritage/laws>.

    ↑

  151. The Commonwealth Heritage List comprises places managed or owned by the Commonwealth and therefore exempt from state or local government control: see Des Eccles and Tannetje Bryant, Statutory Planning in Victoria (The Federation Press, 4th ed, 2011) 198.

    ↑

  152. See Michelle Lensik, ‘Tree Protection Laws in Australian States and Territories’, (Speech delivered at the 13th National Street Tree Symposium, University of Adelaide, 2012) <http://treenetmedia.com/up/pdf/2012/Urban%20Trees_Lensink.pdf>. See also John Watson, ‘Preserving Tomorrow’s Urban Trees with Financial Incentives: The Choice of a New (Tree) Generation’ (2015) 40(4) Alternative Law Journal 261.

    ↑

  153. John Watson, ‘Preserving Tomorrow’s Urban Trees with Financial Incentives: The Choice of a New (Tree) Generation’ (2015) 40(4) Alternative Law Journal 261.

    ↑

  154. Michelle Lensik, ‘Tree Protection Laws in Australian States and Territories’, (Speech delivered at the 13th National Street Tree Symposium, University of Adelaide, 2012) <http://treenetmedia.com/up/pdf/2012/Urban%20Trees_Lensink.pdf>.

    ↑

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