Neighbourhood Tree Disputes: Report (html)
10. Interaction of the new Neighbourhood Tree Disputes Act with other laws
Introduction
10.1 In Victoria the management and removal of trees on private land is affected by numerous laws and policies. These laws and policies may be relevant to the rights and responsibilities of parties in tree disputes and their relationship to the new Tree Disputes Act must be considered. The new Act may intersect with the following:
• the Planning and Environment Act 1987 (Vic)
• local tree protection laws made under the Local Government Act 1989 (Vic)
• the Heritage Act 2017 (Vic)
• the Aboriginal Heritage Act 2006 (Vic)
• the Fences Act 1968 (Vic)
• the Catchment and Land Protection Act 1994 (Vic)
• the Victorian Conservation Trust Act 1972 (Vic)
• the Conservation, Forests and Lands Act 1987 (Vic)
• the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth)
10.2 Other Acts also relate to the management of vegetation for fire prevention; to minimise interference with powerlines and to protect public health and wellbeing and the environment.[1] These Acts are less likely to impact the new Act.
10.3 The first section of this chapter examines how the above laws operate and how they may intersect with the new Act. The chapter then considers community responses on this issue and discusses how the interstate Acts address the interaction of laws. The chapter concludes with recommendations to ensure that the new Act interacts with existing laws and policies as simply as possible and causes minimal disruption to existing legal processes and established policies.
10.4 A key recommendation made in this Chapter is amendment to the Victoria Planning Provisions (VPPs) to exempt orders made under the Act from requirements to obtain a permit to remove, destroy or lop vegetation under some planning provisions. Orders made by VCAT should override local tree protection laws. An amendment to the Heritage Act should address a situation of imminent danger to life or property by a tree, and damage to fences should be addressed in the new Act by an amendment to the Fences Act. In the case of other legislation discussed in this chapter, the Commission is not recommending amendments or recommends further consultation.
10.5 The technical content of this chapter is intended to assist in drafting the new Act, and to explain why the Commission recommends that the new Act should constrain existing laws in some situations.
The Planning and Environment Act
10.6 The Planning and Environment Act 1987 (Vic) (the P&E Act) provides the framework for Victoria’s planning system. The P&E Act sets out objectives for planning in Victoria including provision for the fair, orderly, economic and sustainable use and development of land, as well as provision for the protection of natural and man-made resources.[2] The P&E Act does two key things: it establishes the Victoria Planning Provisions (the VPPs), and enables the responsible authority (in most cases a council)[3] to build its own planning schemes from those standard provisions.[4]
10.7 The VPPs are a statewide reference used to construct a planning scheme. They comprise a comprehensive set of model planning provisions that may be incorporated into individual planning schemes in each municipality across Victoria.[5] VPPs ensure consistent rules for planning across Victoria, and consistency across local planning schemes.
10.8 The VPPs outline the purpose of a number of zones and overlays that councils may apply, where appropriate, to land within their municipality. Some 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’.[6] Specific provisions of the VPPs control the removal of native vegetation.[7]
10.9 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.[8]
10.10 Planning schemes are higher level subordinate legislation. They may identify and manage significant or important vegetation on public and private land.[9] Planning schemes typically require a permit to be obtained to remove, lop or destroy native or other identified vegetation.[10]
Different policy considerations
10.10 Planning laws are underpinned by broad and complex policy considerations. Section 4 of the P&E Act lists the objectives of planning law in Victoria which are to:
• provide for the fair, orderly, economic and sustainable use, and development of land;
• provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
• secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
• conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
• protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community;
• facilitate development in accordance with the objectives set out above;
• provide affordable housing in Victoria; and
• balance the present and future interests of all Victorians.
10.11 The relevant authority must make all planning applications available for inspection by the public.[11]There are strict requirements to advertise some development applications where a proposal may cause a detriment to another party. This mechanism allows an affected person to consider the development proposal and its potential impact on them.[12] VicSmart applications are not advertised in this way.[13]
10.12 In addition, planning laws are applied consistently across Victoria:
• The permit is the principal instrument of development approval.
• Local variations cannot be made to the state-standard provisions.
• Local provisions must not conflict with the state provisions.
• Local requirements are expressed in a schedule following the relevant state-standard provision.[14]
10.13 Importantly, it is very difficult to change these existing policies. Any amendment to a planning scheme must be formally approved and gazetted.[15]
10.14 These features of planning schemes reveal the policy considerations at play that are typically broader than those present in disputes between adjoining neighbours about trees. The Victorian planning framework assumes and enables greater community involvement in everyday planning decisions and in setting standard planning policies that are applied consistently across Victoria.
Permit process
10.15 The next part of this chapter considers the two permit processes and the key planning mechanisms that apply to trees on private land in Victoria that may intersect with the new Act. This may occur in two key ways:
• a permit may need to be obtained before any works can be carried out to the problem tree, or
• an existing permit may need to be amended or revoked so that works on the problem tree can be carried out.
10.16 Two types of permit processes are provided—regular and fast-tracked (VicSmart). Determining which permit process to use will depend upon the number of trees involved and the nature of the new tree works. Planning schemes may also specify what evidence needs to be provided to obtain a permit.
10.17 An application for a permit is made to the responsible authority, generally the local council.[16] Permit applications for overlays are generally made by the owner of the land covered by the overlay.[17] If the permit applicant is not the owner, the application must be signed by the owner of the land or include a declaration that the applicant has notified the owner about the application.[18] In this way, the P&E Act does not restrict the category of persons who can apply for a planning permit to the owner of the tree.[19]
Regular permit process
10.18 The permit process is outlined in Part 4 of the P&E Act. Key components of the permit process are:
• notifying:
a) the owners and occupiers of adjoining land to which the application applies, unless the responsible authority is satisfied that the application will not cause material detriment to any person[20]
b) any other persons if the responsible authority considers it may cause material detriment to them
c) the municipal council if the application applies to or may materially affect land within its municipal district
• allowing members of the public to inspect the permit application prior to determination of the application by either the responsible authority, or the Victorian Civil and Administrative Tribunal (VCAT) on review[21]
• allowing any affected person to object in writing to a grant of the permit application.[22]
10.19 In deciding whether to grant a permit, the responsible authority, generally the local council, must consider:
• the relevant planning scheme
• the objectives of planning in Victoria
• all the objections and submissions it has received in relation to the permit application
• any decision and comments of a referral authority which it has received[23]
• any significant effects on the environment
• any social and economic impacts.[24]
10.20 The responsible authority may also consider other plans, policies, planning scheme amendments adopted by a planning authority and any agreement made pursuant to section 173 of the P&E Act affecting the land.[25]
10.21 Reviews of permit decisions are heard by VCAT. In reviewing the application, VCAT is limited to considering only the matters that were before the original decision maker.[26] VCAT also has original jurisdiction to hear some types of matters, including applications to cancel or amend permits and applications for enforcement of orders.[27]
VicSmart permit process
10.22 VicSmart is a simple, fast planning permit assessment process for straightforward, low-impact planning and development applications in Victoria.[28] VicSmart allows for a quick planning decision to be made to ‘remove, destroy or lop a tree’.[29]
10.23 The VicSmart process has fewer steps than the regular permit process and decisions are made within 10 business days.[30] Key features of the VicSmart permit process are:
• Applications are exempt from the notice requirements under section 52 of the P&E Act. This means that they are not required to be publicly advertised.
• The application is only assessed against specific decision-making guidelines set out in the planning scheme. [31]
• The information to be submitted with an application is pre-set and includes 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.[32]
• Decision are made by the Chief Executive Officer of the Council or a delegate.[33]
10.24 Reviews of VicSmart applications take place at VCAT. Unlike the regular permit process, reviews of VicSmart permit applications do not extend to third-party objectors. They are limited to the applicant requesting a review of a decision to refuse a permit application. These applications are heard in VCAT’s Short Cases List.[34]
Restrictions on tree works in planning provisions
Tree protection overlays
10.25 Overlays are one of the main tools in the VPPs to protect vegetation.[35] An overlay details practical constraints that apply to a particular site.[36] Overlay requirements could restrict or limit the ability of an affected neighbour to obtain a remedy under the new Act. Standard overlays for Victoria are included in the VPPs.
10.26 Local councils are able to use schedules to include ‘local content in planning schemes’[37] and to describe when an overlay will apply to particular land through the planning scheme map. For example, councils can use schedules to remove a permit requirement as long as this accords with the broader planning objectives of the overlay.[38]
10.27 The Commission has identified four main overlays[39] that operate to protect or preserve trees, other vegetation and significant landscapes on private land within Victoria:
• The Significant Landscape Overlay (SLO) aims to conserve and enhance the character of significant landscapes. 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’.[40]
• The Environmental Significance Overlay (ESO) is applied if vegetation protection is ‘part of the wider objective to protect the environmental significance of the area’.[41]
• The Vegetation Protection Overlay (VPO) focuses on the protection of significant vegetation, including native and introduced vegetation in urban and rural environments.[42]
• The Heritage Overlay[43] aims to conserve and enhance heritage places of natural or cultural significance and to ensure that development does not adversely affect the significance of heritage places.[44]
10.28 Tree protection overlays can apply to significant portions of land with Victoria.[45] As an example, in 2013, the VPO applied to 2500 residential properties within the City of Monash.[46] The Environmental Significance Overlay (ESO) applies to a significant proportion of land within the Nillumbik Shire.[47]
10.29 Under the SLO, ESO and VPO a planning permit is required to remove, destroy or lop any specified vegetation. The regular permit process applies to works to more than one tree and the VicSmart process applies to only one tree.
10.30 A Heritage Overlay schedule can apply to the whole of a heritage place (for example, over a house site or an area) or a tree or group of trees could be specifically nominated as the heritage place. Heritage Overlay tree controls are intended 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).[48] A VicSmart permit will only apply to the lopping of heritage trees. A regular permit is still required to remove or destroy one or more trees covered by a heritage overlay.
10.31 There is a standard list of exemptions to the requirement to obtain a permit under the SLO, ESO and VPO.[49] The Heritage Overlay also contains an exemption that enables works to keep whole or part of a tree clear of electricity power lines,[50] or ‘if the tree presents an immediate risk of personal injury or damage to property’.[51]
10.32 The standard exemption across all of these overlays allows tree works or removal where a tree presents an immediate risk of personal injury or damage to property.[52] The risk is considered immediate if the vegetation needs to be removed before a permit can be granted.[53] The exemption does not extend to vegetation that may cause injury or damage in the longer term. A qualified arborist should assess whether there is an immediate risk of tree failure, where practical to do so.[54]
10.33 As noted above, schedules to overlays may modify permit requirements to create additional exemptions. For example, schedule 1 to the City of Whitehorse SLO provides that a permit to remove, destroy or lop a tree does not apply to:
• a tree with a single trunk circumference of 0.5 metre or less at a height of one metre above ground level
• the pruning of a tree for regeneration or ornamental shaping
• a tree which is dead or dying to the satisfaction of the responsible authority.[55]
10.34 In addition, schedule 1 to the VPO in the City of Whitehorse provides that a permit is not required to remove, destroy or lop a tree which is ‘deemed unsafe by a suitably qualified arborist, and to the satisfaction of the responsible authority’.[56]
Bushfire management overlay
10.35 The Bushfire Management Overlay is used to guide the development of land in areas where vegetation can create an extreme bushfire hazard.[57] It operates to ‘prioritise human life and strengthen community resilience to bushfire’.[58] Therefore, it manages vegetation differently to the other environmental overlays.
10.36 Bushfire protection provisions in planning schemes also create permit exemptions to allow people to create defendable spaces around certain buildings used for accommodation and along a fence line to reduce fuel load.[59] Bushfire exemptions override any other requirement to obtain a permit in a planning scheme, including if a different overlay requires a permit.[60] These provisions were added following the recommendations of the 2009 Victorian Bushfire Royal Commission.[61]
10.37 Nillumbik Shire Council informed the Commission that the permit exemptions allowing the clearing of vegetation to create a defendable space around buildings used for accommodation have reduced the number of enquiries council receives about removing trees on private land.[62]
Native vegetation particular provisions
10.38 The native vegetation particular provisions of the VPPs control the removal of native vegetation.[63] A permit is usually required to remove, destroy or lop native vegetation unless an exemption applies.[64] The process has three steps: avoidance of removal; minimisation of impacts; and offset requirements.[65] Offset requirements compensate for removal, with the aim of ensuring that clearing native vegetation has a neutral impact on Victoria’s biodiversity.[66] The type of offset required depends on the characteristics of the native vegetation being removed, and the extent of the loss.[67]
10.39 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’.[68] They are more relevant in country areas with larger lots or Green Wedge areas because this is where most native vegetation is located and because of how the VPP define native vegetation[69] and how exemptions are framed.
10.40 If native vegetation particular provisions apply to private property, the provisions allow the clearing of some vegetation without a permit. A permit is not required for sites of less than 0.4 hectares.[70] An exemption to the requirement to obtain a permit also applies in an emergency or where there is an immediate risk of personal injury or damage to
property.[71] A further exemption allows lopping and pruning to maintain vegetation provided no more than 1/3 of the foliage of each individual plant is lopped or pruned.[72]
Trees planted or maintained as a condition of existing planning permits
10.41 A permit that has already been granted may need to be enforced or amended in some way to enable a resolution of the tree dispute under the new Act. For example, a planning permit granted for the development of land may specify that a tree is to be planted and maintained as part of an endorsed landscaping plan (landscaping plan) which forms part of the permit.[73] Model conditions of landscaping plans require:
• maintenance to the satisfaction of the responsible authority, including that any dead, diseased or damaged plants are to be replaced
• that any tree or particular trees to be retained during development are pruned by a qualified arborist to Australian Standard AS 4373-2007 Pruning of Amenity Trees.[74]
10.42 Permits generally operate indefinitely when acted on or after a development project has commenced, and for as long as the landholder is still benefiting from the use of the land.[75] This means that trees planted and maintained as part of a permit may need to be maintained for months or years following the initial development of the land.[76] This may not occur if a permit contains a sunset provision that limits the duration of its operation or under the circumstances listed in section 68 of the P&E Act, which provides for the expiry of permits.[77]
10.43 Two scenarios may arise where an affected neighbour wants to obtain a remedy under the new Act in relation to a problem tree that already forms part of an existing planning permit.
10.44 First, where an affected neighbour seeks to have a problem tree on adjoining land properly maintained in accordance with the model maintenance provisions in a landscaping plan. In this situation the affected neighbour would be able to contact the responsible authority and ask them to investigate their complaint about the tree.[78] If this is unable to resolve their concerns, section 114 of the P&E Act provides that any person may apply to VCAT to force a permit holder to comply with a condition of their permit.
10.45 However, if the permit conditions are such that the affected neighbour needs the existing permit amended to resolve the dispute, the affected neighbour would have little redress. VCAT currently only has the power to cancel or amend a permit at the request of:
• the responsible authority
• any person under section 89 of the P&E Act (this includes any person who objected or would have been entitled to object to the issue of the permit)[79]
• a referral authority
• the owner or occupier of the land concerned, or
• any person who is entitled to use or develop the land concerned.[80]
10.46 Further, VCAT must be satisfied that one of the following circumstances has occurred before it will interfere with a permit:
• a material mis-statement or concealment of fact in relation to the application for the permit
• any substantial failure to comply with the conditions of the permit
• any material mistake in relation to the grant of the permit
• any material change of circumstances which has occurred since the grant of the permit
• any failure to give notice in accordance with this Act, or
• any failure to comply with sections 55, 61(2) or 62(1) of the P&E Act.[81]
10.47 Under the current legislative framework, VCAT’s ability to amend planning permits is limited to the circumstances outlined above and this amendment process would only be available to affected neighbours on adjoining land who could show that they either objected or would have been entitled to object to the grant of the permit. VCAT will only act on such a request by an affected neighbour if the person:
• could not reasonably be expected to have been aware of the application for the permit in time to lodge an objection
• was substantially disadvantaged by the issue of the permit
• it would be just and fair in the circumstances to do so.[82]
10.48 The provisions of the P&E Act are complex and there are a number of hurdles that must be satisfied if a request by a third party to amend a permit is to succeed.[83] Further, if the Tribunal amends a permit, then compensation may be payable to any person who has incurred expenditure or liability that is now wasted as a result of the permit amendment.[84]
Section 173 agreements
10.49 Some councils use section 173 of the P&E Act to protect trees on private land.[85] This provision allows councils to enter into agreements with private residents to protect and retain particular trees on private property or to achieve other planning objectives in relation to the land.[86] These agreements may expressly require owners of land to maintain vegetation to the satisfaction of council.[87] For example, in Nillumbik Shire these agreements typically apply to applications to subdivide land less than 0.4 hectares in size.[88] Lots of this size are not covered by the native vegetation particular provision under its planning scheme.
10.50 Section 173 agreements can be recorded on the title of the land so that future owners and occupiers can be bound by conditions under the agreement.[89] VCAT has some scope to direct the responsible authority to amend or end these agreements.[90] However, the council must initially agree to such a review being undertaken.[91] If the responsible authority decides that it does not agree in principle to a proposal to amend or end an agreement, then the agreement will remain in place.[92] The applicant cannot apply to VCAT for a review of this initial decision.
10.51 Landowners can also enter into these agreements as an ‘ontitle security agreement’ to establish native vegetation offset sites.[93] This means that once the agreement is signed and registered on title, native vegetation credits will be registered in the landowner’s name.[94] The nature of these agreements are therefore varied and complex.
Local tree protection laws made under the Local Government Act
10.52 Trees on private land may also be protected or managed under local council laws. Local Laws are made by local governments under the Local Government Act 1989 (Vic). Under section 111 of this Act a local law must not be inconsistent with any other Act or regulation. Local laws are therefore aimed at dealing with local issues only. Decisions are made by council officers. There are no appeal rights to VCAT for decisions made under local laws; instead councils may offer internal review processes.[95] Local laws enable councils to make the final decision in relation to the protection of a valued tree in a timely and efficient manner.[96]
10.53 Not all councils have enacted local laws to manage vegetation. Where they do exist, local laws generally contain similar tree protections which operate to:
• protect trees identified as ‘significant’ or ‘protected’ on private land
• extend protection by reference to a tree’s 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 (TPZ) 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 TPZ.[97]
10.54 Some councils have enacted local laws in response to community concern about the loss of significant trees and other vegetation.[98] Local laws can supplement overlays and sometimes councils choose to use local laws as the main vegetation protection mechanism in the municipality.[99] Some councils choose not to use local laws at all. Nillumbik Shire Council suggested that local laws complicate internal processes and it prefers to protect trees under the planning scheme.[100]
10.55 In Boroondara, the Tree Protection Local Law 2016 (City of Boroondara) protects ‘significant trees’ and ‘canopy trees’ on private land within the municipality.[101]
Landowners and contractors need a permit to interfere, or to authorise interference, with the protected tree.[102] If a permit is not issued and a protected tree is interfered with, the landowner is guilty of an offence,[103] whether or not the person who actually interfered with the tree is identified.[104] The burden is on the landowner to prove that the interference was undertaken by another party without the landowner’s knowledge.[105]
10.56 As discussed in Chapter 8, the Boroondara local law sets out detailed decision-making criteria that must be applied by council when determining applications under the local laws.[106] A decision must be made within five to 10 working days and an applicant for a permit is able to apply for an internal review of the decision to refuse to grant a permit.[107]
10.57 The City of Boroondara noted that approximately 75 per cent of rateable properties in Boroondara contain trees protected by the local law.[108] Boroondara stated that ‘the local law had been recently reviewed and was working well to protect tree canopy’.[109]
10.58 The City of Port Phillip local law applies to and protects a large number of significant trees on private land in the locality.[110] Port Phillip informed the Commission that ‘there are approximately 200 significant trees registered in the council area, and the significant tree register is constantly evolving’.[111] A permit is needed from the City Permits Unit (CPU) to remove a significant tree or palm.[112] The CPU must decide the application within 15 days and the applicant has no right of appeal if a permit is refused, but the applicant will be advised of the reasons for the decision.[113] Council investigates all alleged breaches of the local law and has issued infringement notices on a few occasions.[114]
The Heritage Act
10.59 The Heritage Act 2017 (Vic) establishes the Victorian Heritage Register.[115] Places and objects of cultural heritage significance[116] to the state are protected by the Register.[117] A permit is required to carry out any works on a place or object protected by the Register.
10.60 Trees, gardens or other places of natural or cultural significance and associated land can be listed on the Register.[118] Therefore, a permit may be required for works to a registered heritage place, such as a tree or garden.[119] The Commission was informed that it very unusual for single trees to be listed on the Register.[120]
10.61 Heritage Victoria is the principal State Government agency that identifies and protects non-Aboriginal cultural heritage resources that are of state-level significance.[121] The Act establishes the Heritage Council, which is an independent statutory body that identifies and protects registered places and objects of cultural significance to Victoria.[122] The Heritage Council or the Executive Director of Heritage Victoria can create exemptions to permits to allow certain works or activities to be undertaken without a heritage permit.[123] The Heritage Act specifies that a formal application must be made to seek an exemption from the need to obtain a permit.[124] A permit exemption will generally be issued:
• if the works relate to conservation of a place or object
• for routine maintenance activities which will not harm the cultural heritage significance of the place or object
• to remove dead, diseased or dangerous trees provided an arborist’s report is submitted verifying the condition of the tree.[125]
10.62 The Heritage Act does not otherwise contain an exemption allowing emergency works to heritage-listed places or objects.
10.63 The Heritage Council can review permits that have been refused by Heritage Victoria and conditions attached to permits.[126] The Minister may also call-in a review and either determine the matter or refer the matter to VCAT for determination.[127]
The Aboriginal Heritage Act
10.64 The Aboriginal Heritage Act 2006 (Vic) establishes the Victorian Aboriginal Heritage Register (VAHR), which records the details of all known Aboriginal objects and places in Victoria.[128] The Act is administered by Aboriginal Victoria.[129]
10.65 Aboriginal Victoria is a government agency under the auspices of the Department of Premier and Cabinet (Vic). It is responsible for the implementation of the Aboriginal Heritage Act 2006 (Vic). It has a statutory function to maintain the VAHR and ‘has regional teams who assess recommendations for areas or objects of Aboriginal cultural heritage significance for inclusion on the VAHR’.[130]
10.66 Registered Aboriginal Parties (RAPs) are organisations that hold decision-making responsibilities under the Aboriginal Heritage Act in a specified geographical area.[131]
10.67 The Aboriginal Heritage Act aims to minimise or prevent harm to Aboriginal heritage, including Aboriginal scarred trees and other trees of indigenous cultural significance.[132] Harm is broadly defined to include damage, destroy, disturb, injure or interfere with.[133] Harm would include pruning an Aboriginal scarred tree.[134]
10.68 The Commission was informed that there may be approximately 3700 scarred trees on private land within Victoria, depending on the interpretation of available data.[135]
10.69 Pursuant to the Aboriginal Heritage Act, a landowner would need to apply for either a Cultural Heritage Permit or a Cultural Heritage Management Plan (CHMP) to carry out any works to a scarred tree.[136] A Protection Declaration may also apply to the tree.[137]
10.70 A CHMP is mandatory for high-impact works within areas of Aboriginal Cultural Heritage Sensitivity,[138] and this includes areas within 50 meters of a scarred tree.[139] Whether an area is of Aboriginal Cultural Heritage Sensitivity can be ascertained by using an online mapping tool.[140] This map is specific to individual parcels of land.
10.71 Permits or CHMPs are generally assessed by the relevant Registered Aboriginal Party (RAP)[141] or, if there is no RAP in the area, then Heritage Officers at Aboriginal Victoria.[142]
10.72 The Aboriginal Heritage Act provides VCAT with jurisdiction to determine disputes about CHMPs, cultural heritage permits and protection declarations.[143] However, most disputes are resolved on an informal basis including via mediation or negotiation.[144]
The Fences Act
10.73 The Fences Act 1968 (Vic) provides the Magistrates’ Court with jurisdiction to resolve disputes about fences.[145] The Act operates from the general principle that owners are liable to contribute in equal proportions to a dividing fence.[146]
10.74 Fences and trees are often located within close proximity to one another. Therefore, a tree may cause damage to a fence and activate the jurisdiction of both the Fences Act and the proposed Neighbourhood Tree Disputes Act.
10.75 While the Fences Act provides a remedy to rectify and repair fences damaged by a tree,[147] it does not assist with the management of trees that have caused or are likely to cause damage to fences, for example, through the making of orders for the pruning or removal of trees. If the fence itself is a ‘hedge or similar vegetative barrier that encloses or bounds land’,[148] then the Magistrates’ Court may make orders for fencing works, which include ‘the planting, replanting, repair or maintenance of a hedge or similar vegetative barrier that is the whole or part of a dividing fence’.[149] However, the Court cannot make orders for a tree that is independent of the fence.[150]
The Catchment and Land Protection Act
10.76 The proposed Neighbourhood Tree Disputes Act may interact with the Catchment and Land Protection Act 1994 (Vic) (CLP Act) if the subject tree is a declared noxious weed that the landowner would otherwise be required to control or eradicate. Noxious weeds are generally exempt from the requirement to obtain a planning permit pursuant to the P&E Act.[151]
10.77 Landowners have responsibilities to manage specific weeds on their properties pursuant to the CLP Act. Under this Act, certain plants are declared as noxious weeds in Victoria. These plants have the potential to cause environmental or economic harm.[152] Accordingly, landowners may be issued with directions by the Secretary of the Department of Environment, Land, Water and Planning to prevent the growth or spread of state-prohibited weeds.[153]
10.78 In addition, 70B of the CLP Act provides that a landowner may be issued with a direction to take measures to control or eradicate certain categories of weeds on their land. Landowners have responsibility to take all reasonable steps to eradicate regionally prohibited weeds[154] and to prevent the growth and spread of regionally controlled weeds.[155] It is an offence to fail to comply with a directions notice.[156]
Other Victorian Acts
10.79 Other Acts also require landowners to maintain vegetation on their land:
• for fire prevention
• to minimise interference with powerlines
• to protect public health and wellbeing
• for conservation purposes.
10.80 The Acts discussed below are unlikely to affect the operation of the new Act recommended in this report. Rather, the Commission considers that the obligations placed on landowners under these Acts are likely to complement the new Act.
Country Fire Authority Act
10.81 This Act enables council Fire Prevention Officers to issue a Fire Prevention Notice to a landowner requiring the removal of vegetation fuel hazards in the ‘country area of Victoria’.[157] These notices may be issued if the officer forms the view that is it necessary, or may become necessary, to remove vegetation to protect life or property from the threat of fire.[158] It is an offence for a person to fail to comply with a Fire Prevention Notice.[159] Councils may enter private lands to remove fire hazards if fire prevention notices are not complied with.[160]
Metropolitan Fire Brigades Act
10.82 This Act operates in the same way as the Country Fire Authority Act 1958 (Vic) but it applies to the metropolitan fire district.[161]
Electrical Safety Act
10.83 This Act requires a landowner or occupier of land to keep private electric lines clear of vegetation.[162] Notices may be issued by Energy Safe Victoria or the relevant distribution company requiring a person to clear vegetation within a specified timeframe.[163]
10.84 If action is not taken within the given timeframe, works can be carried out by third parties to ensure that the tree is kept clear of the line.[164]
Transport legislation and road reserves
10.85 Legislation regulating public land in rail corridors and road reserves may require private landowners to maintain vegetation on their property.[165] For example, private landowners may be required to prune or remove a tree on their land if it poses a safety risk to railway users or road users.
10.86 Some local laws may also place obligations on private landowners to ensure vegetation on their land does not interfere with or obstruct public traffic, including pedestrian traffic.[166]
Public Health and Wellbeing Act
10.87 Under the Public Health and Wellbeing Act (PHW Act), councils have a duty to investigate and remedy all nuisances within the municipality wherever possible.[167] The PHW Act applies to nuisances which are dangerous to health or offensive.[168] It is possible for a tree to form a nuisance and therefore for the PWH Act to be used in managing tree disputes on private land.
10.88 Any person can contact their local council if they believe a nuisance exists.[169] The council can:
• issue an improvement notice or prohibition notice[170]
• initiate proceedings for an offence under the Act[171]
• enter the premises and abate the nuisance if the owner or occupier of the land cannot be found,[172] or
• advise the complainant of any options to settle the matter privately.[173]
10.89 If council fails to investigate the nuisance within a reasonable period of time, the complainant can commence proceedings in the Magistrates’ Court.[174]
10.90 The Commission asked a number of councils whether the nuisance offence under the PHW Act applied to tree disputes on private land. All councils consulted with suggested that the PHW Act had not been used or had not played a role in resolving neighbourhood tree disputes.[175]
It is more likely to be used ‘to manage noise issues, odour issues and rodent infestations’.[176]
Flora and Fauna Guarantee Act
10.91 This Act protects certain flora and fauna within Victoria.[177] It aims to conserve threatened native plants or communities of native plants and animals and manage processes that are potentially threatening to them.[178]
10.92 The obligation to obtain a permit or other authorisation under the Act does not generally apply to private landowners or occupiers of private land.[179] However, a permit is required to take flora from private land which is part of the critical habitat of that flora.[180] Under the Act a determination may be made that the whole or any part or parts of the habitat of flora is critical to the survival of that particular category of flora.[181] If such a determination is made, the landowner or occupier of land will be notified.[182] At the time of writing the Victorian Government has not used this mechanism to protect critical habitats.[183]
Victorian Conservation Trust Act
10.93 Native vegetation on private property can also be protected by a conservation covenant established under the Victorian Conservation Trust Act 1972 (Vic).[184] Baw Baw Shire Council suggested that it has some of these covenants within its local government area.[185]
10.94 These agreements are legally binding, registered on title and are entered into voluntarily between the Trust for Nature and individual landowners.[186] Once agreed, the Trust assumes responsibility for monitoring the restrictions and rights agreed to through the Trust’s Stewardship Program.
10.95 Each conservation covenant is approved by the Minister for Environment. The covenant is then registered on the Certificate of Title and remains there, binding current and future owners of the land to the terms and conditions of the covenant.[187]
10.96 All currently worded covenants are subject to responsible fire prevention, weed and pest control as well as acts that are outside the control of the owner, for example a natural disaster that may adversely affect protected habitats. Restrictions set out in this covenant, for example, disallowing tree removal, may also be waived to the extent necessary for:
• reasonable maintenance of fences, culverts, dams, bridges, watercourses, buildings, tracks, paths, roads and other services
• any act required under any law, rule or regulation of any government or government agency, executive or administrative order or act of general or particular application
• the proper management of the land as a protected environment for indigenous flora and fauna.[188]
• Only in ‘extreme and highly unusual circumstances’ will removal of a covenant be considered. The Trust and the Minister must agree to the removal.[189]
10.97 The current intention of the Trust is to ensure that the deeds of covenant do not impede covenantors (landowners) from complying with general laws, rules or regulations.[190] This means that a tree owner whose land is subject to a conservation covenant would need to comply with an order if a statutory scheme is implemented to resolve neighbourhood tree disputes.
10.98 Landowners are also able to enter into these agreements as an ‘on-title security agreement’ to establish native vegetation offset sites.[191] This means that once the agreement is signed and registered on title, native vegetation credits will be registered in the landowner’s name and can be traded.[192] The nature of these agreements is varied and complex.
Conservation, Forests and Lands Act
10.99 Land management co-operative agreements can also be entered into under the Conservation, Forests and Lands Act between the Secretary to the Department of Environment, Land, Water and Planning and landowners. These agreements, known as ‘section 69 agreements’, can either:
• relate to the management, use, development, preservation or conservation of land in the possession of the landowner, or
• otherwise give effect to the object or purposes of a relevant law,[193] in relation to land in the possession of the landowner.[194]
10.100 Agreements may be binding on a landowner’s successors in title.[195] For this to occur the Secretary must record the agreement on the Register of Titles.[196]
10.101 This Act may be used for agreements between the Secretary and the Trust for Nature.[197] However, the land to which these agreements apply must be managed as if it were Crown land.[198]
10.102 All agreements restrict the use of the land, with some agreements requiring more active land management than others. The landowner can receive funding to undertake actions to manage vegetation subject to the agreement.[199]
10.103 As discussed in relation to section 173 agreements and conservation covenants, landowners can use section 69 agreements as an ‘on-title security agreement’ to establish native vegetation offset sites.[200] This means that once the agreement is signed and registered on title, native vegetation credits will be registered in the landowner’s name and, for section 69 agreements, can be traded.[201]
10.104 An agreement may be varied or terminated in a number of ways, including by agreement between the Secretary and the landowner or by a VCAT order.[202]
Commonwealth law: the Environment Protection and Biodiversity Conservation Act
10.105 The Environment Protection and Biodiversity Act 1999 (Cth) (EPBC Act) provides a legal framework to protect and promote the recovery of threatened species and ecological communities and preserve significant places from decline. The Act regulates matters of national environmental significance including World Heritage property, listed threatened species and communities, and wetlands of international importance.[203]
10.106 A person must not take an action that has, will have or is likely to have a ‘significant impact’ on any of the matters of national environmental significance or other protected matters without approval.[204] If the proposed action meets the ‘significant impact’ test, it must be referred to the Commonwealth Department of Environment and Energy for assessment and approval by the Minister.[205]
10.107 The EPBC Act affects any group or individual, including landowners,[206] whose actions may have a significant impact on a matter of national environmental significance. An action is broadly defined and can include the clearance of vegetation.[207] Generally, a significant impact refers to an impact which is important, notable, or of consequence, having regard to its context or intensity.[208]
10.108 The regular permit process under Part 4 of the P&E Act is one of the accredited assessment processes under a bilateral agreement between the Commonwealth and Victoria.[209] This means that once the Commonwealth has determined an action is a ‘controlled action’, it can be assessed by a responsible authority under the permit application process. The relevant Victorian Minister must assess the action in parallel with the related assessment undertaken by the relevant authority. The assessment process invites the public to comment on the proposed action and an assessment report must be prepared by the Victorian Minister.[210]
10.109 An order under the new Act may in theory have a significant impact on a matter of national environmental significance, for example listed threatened species and communities or migratory species.[211] If a private landowner wishes to clear native vegetation on their property which is listed as a threatened species or part of a threatened ecological community, the requirements of this legislation will only apply if the clearance meets the significant impact test. While it is highly unlikely that the removal of one or two trees on a suburban block would meet this test, it might apply on a larger property outside Melbourne.
10.110 Routine vegetation management, for example to maintain existing facilities or roads, is not normally considered to have a significant impact on a matter of national environmental significance.[212] The clearing of vegetation for the creation of a new road, however, may require referral under the Act.[213]
10.111 As most tree disputes occur between neighbours living in the urban context where land has already been developed in accordance with assessment processes under the P&E Act, these scenarios would rarely be relevant to tree disputes and are more likely to arise in relation to larger development projects.[214]
Community responses—interaction of laws
Interaction of laws
10.112 The community has told the Commission that it finds the laws governing tree disputes unclear. One community member explained that navigating the existing ‘multitude of legal considerations surrounding tree disputes’ is ‘extremely complex’.[215] A number of survey respondents also expressed dissatisfaction with the variation in laws that may apply to protect trees on private land.[216] For example, one survey respondent expressed the view that:
the law or laws governing this area are spread over what seems to be a number of acts. The efficacy in understanding the implications of such laws then becomes quite cumbersome. It is not always obvious to neighbours when a tree enjoys ‘extra’ protective status, such as heritage status as deemed by council or other such bodies.[217]
10.113 The Law Institute of Victoria noted that ‘conservation covenants have the potential to spark a dispute about trees or vegetation on private land’. Disputes may arise between neighbours about competing interests in land, for example:
10.114 a farmer may be concerned by the spread of weeds, or an increase in native fauna such as kangaroos, as a result of the conservation covenant, whereas the covenantor might be concerned with chemical spray drift, soil disturbance and noise, caused by farming operations.[218]
10.115 In the consultation paper, the community was asked how a new Act to govern neighbourhood tree disputes should interact with other Acts and laws. A range of responses were received to this question. A number of submissions were in favour of new tree dispute laws overriding existing local laws and other legislation.[219] Others suggested that only local laws, rather than other Acts of Parliament, should be interfered with.[220]
10.116 On the other hand, a number of responses supported an approach where orders made under a new tree disputes Act would work alongside existing local laws and other legislation.[221] Arborist Ben Kenyon suggested that many existing mechanisms, such as significant tree registers and planning permits, work well to protect vegetation and have adequately built-in exceptions for safety and damage.[222]
10.117 The Commission met with a number of local councils to discuss the possible interaction of a new Act with existing laws that are either administered by councils or where council is the responsible authority under other legislation for example in planning schemes. These councils generally supported an approach that would see the new Act working alongside existing local laws and other legislation.[223]
10.118 The City of Port Phillip thought that any new tree dispute scheme should not override planning schemes but rather complement them.[224] It was suggested that this approach would enable a broader range of issues to be to be heard by the same decision-making body, for example, VCAT.[225] Similarly, Nillumbik Shire Council stated ‘any new scheme should align with planning controls and not erode them and Council should be given a place at the decision-making table’.[226]
10.119 Baw Baw Shire Council’s preference is not to enable the new Act to override planning schemes or local laws. However, Baw Baw expressed the view that:
The Queensland approach where an applicant was required to progress through local council policies and processes first before an order was made by QCAT may also be helpful.[227]
10.120 The City of Boroondara explained that:
Planning schemes consider a broad spectrum of environmental and public policy matters which would not be considered in a civil case. It is therefore appropriate for a Planning Permit to continue to be required, to enable these matters to be considered even if an order [under a new Act] has been made.[228]
10.121 The City of Boroondara also raised concerns about an order under a new Act fettering council’s ability to make its own decision under a local law.[229] Boroondara proposed a process whereby council would make a final determination about a protected tree following an order made under a new Act.[230]
10.122 Arborist Robert Mineo observed:
Overriding the decisions made by councils under planning schemes and local laws could be problematic. However, there is merit in having a third party mediate serious tree disputes between neighbours. The NSW approach of providing councils with the opportunity to attend tree dispute hearings would provide some compromise and appeared to be a sensible approach.[231]
10.123 VCAT drew a distinction between the interaction of a new Act with decisions that are made under local laws and with decisions that are made pursuant to the P&E Act. VCAT commented that decisions made under local laws provide no external right of review and so are distinct from decisions made under the P&E Act.[232]
10.124 VCAT explained that planning schemes made pursuant to the P&E Act operate in a different context to inter-party neighbourhood tree disputes, for example:
• Overlay controls apply to land for purposes that relate to broader issues, such as soil stability, native vegetation, landscapes and biodiversity.
• In some cases where tree removal is authorised under a planning scheme, the responsible authority may require re-vegetation to offset any loss of vegetation.
• Decisions made by the responsible authority pursuant to planning schemes enable third parties to seek an administrative review of the decision in VCAT.[233]
10.125 For these reasons VCAT did not support the new Act addressing both civil and planning law matters. The Tribunal was unsure about how the new Act could give effect to the often complex issues that arise as part of the planning scheme decision-making process.[234]
Bushfire protections
10.126 Some specific responses were received about the interaction of the new Act with bushfire protections under the P&E Act. Some submissions suggested that concerns can arise about trees located on adjoining land that may pose a risk of damage or harm in the event of a bushfire.[235]
10.127 The Law Institute of Victoria noted the obligations a bushfire management overlay imposes on landowners:
Private owners whose land is affected by a Bushfire Management Overlay must undertake pre-emptive work to plan and prepare for bushfire, often including the removal of trees or vegetation, which may result in a dispute.[236]
10.128 Nillumbik Shire Council, much of it covered by a Bushfire Management Overlay, stated that any new scheme to resolve neighbourhood tree disputes should not interfere with the bushfire protection exemptions in place in planning schemes.[237]
Other jurisdictions—interaction of laws
10.129 Planning law frameworks in New South Wales, Queensland and Tasmania use different mechanisms to regulate vegetation on private land. However, planning permits for control of vegetation on private land in each jurisdiction are mainly administered at the local council level, either through planning scheme mechanisms or local laws. This is in keeping with the approach in Victoria.
10.130 New South Wales, Queensland and Tasmania all adopted a cautious approach to how their new tree dispute laws would interact with established planning laws and other regulations. Ultimately, they all allow orders to override local laws[238] provided certain safeguards are met. Some also allow state planning laws to be overridden in certain circumstances. The interstate schemes do not generally allow orders that are prohibited under other Acts.[239]
New South Wales
Regulation of trees on private land in NSW
10.131 In New South Wales, trees on private land may be managed by planning laws at the state level and requirements at the council level. These laws have recently undergone significant amendment.[240]
10.132 The NSW Government describes the planning system as having a hierarchical structure, with the Environmental Planning and Assessment Act 1979 (NSW) the primary piece of legislation. It sets up Environmental Planning Instruments (EPIs) comprising State Environmental Planning Policies (SEPPs) and Local Environmental Plans (LEPs).[241]State Environmental Planning Polices (SEPPs) cover issues of statewide importance.[242] One SEPP addresses vegetation in non-rural areas.[243] The aims of that policy are to:
• protect the biodiversity value of trees and other vegetation in nonrural areas of the state
• preserve the amenity of non-rural areas of the state through the preservation of trees and other vegetation.[244]
10.133 Each local government authority has a Local Environment Plan (LEP) to guide development, for example through applying zoning controls to land, and protect natural resources.[245] A Standard Instrument sets out compulsory and optional provisions for LEPs.[246]
10.134 Development Control Plans (DCPs) also fit within the framework of the Environmental Planning and Assessment Act. These plans are provided by councils and provide more detailed guidance about design and planning requirements in local areas.[247]
10.135 Prior to recent legislative amendments, Tree Preservation Orders were the main mechanism by which councils managed vegetation on private land. Tree preservation orders previously made under clauses 5.9 and 5.9AA of the Standard Instrument (Local Environmental Plans) have largely been replaced by the State Environment Planning Policy (Vegetation in NonRural areas)[248] but existing tree preservation orders will continue to have effect.[249]
10.136 The clearing of native vegetation in rural New South Wales is governed separately by the Local Land Services Act 2013 (NSW) and the Biodiversity Conservation Act 2016 (NSW).[250]
Trees (Disputes Between Neighbours) Act 2006 (NSW)
10.137 The Trees (Disputes Between Neighbours) Act 2006 (NSW) (the NSW Act) provides that an order does not authorise or require a person to carry out work or engage in activity for which consent or other authorisation must be obtained under any other Act without that consent or authorisation.[251] However, a NSWLEC order has effect despite any requirement that would otherwise apply to obtain consent or authorisation under the Environmental Planning and Assessment Act 1979 (NSW) or the Heritage Act 1977 (NSW).[252] This exception is mitigated by two safeguards:
• The NSWLEC must consider whether interference with the tree would normally require consent or authorisation under these Acts and if so whether it has been obtained.[253]
• A relevant authority, for example a council or heritage officer, is able to appear in proceedings.[254]
10.138 Tree Preservation Orders (TPOs) have been recognised as a hybrid statutory mechanism under the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).[255] An order made by the NSWLEC has effect despite a TPO or presumably a Vegetation SEPP[256] that might otherwise prevent or restrict interference with the tree.[257]
10.139 Where local council’s authority or a permit would ordinarily be needed, the NSWLEC will consider the factors that the local council would ordinarily take into account in its decision-making process.[258] This includes matters concerning native vegetation and bushfire zones. The Court may also consider whether or not the permit was refused by local council where a prior application was made.[259]
10.140 The NSWLEC gives significant weight to consistently applied council policies relating to TPOs, for example policies about the management of trees including circumstances in which tree removal may be permitted.[260]
Queensland
Regulation of trees on private land
10.141 Queensland has also recently overhauled its planning system with the Planning Act 2016 (Qld) commencing in 2017. It establishes state planning policies to identify issues of statewide importance.[261] One of the broad policy themes is environment and heritage, including the conservation of biodiversity and cultural heritage.[262]
10.142 Local planning instruments are made by local governments in consultation with the community. They consider local growth and development and take into account the state planning instruments. There are three local planning instruments: planning schemes; temporary local planning instruments and planning scheme policies.[263] Local planning schemes specify defined land uses and assessment requirements.[264]
10.143 In Queensland, trees can also be protected by local councils through Vegetation Protection Orders administered under local laws, created under the Local Government Act 1993 (Qld).[265] For example under the Natural Assets Local Law 2003 (Brisbane City Council), Council can protect significant vegetation by requiring a permit to be lodged for any proposed structure or works that may interfere with protected vegetation.[266] This includes significant native vegetation (from small ground covers and native grasses to large trees) and significant urban vegetation (both native and exotic vegetation on private property).[267]
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
10.144 The Queensland Civil and Administrative Tribunal (QCAT) cannot make an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Queensland Act) that would be unlawful under another Act.[268]
10.145 Section 43 further provides that the Queensland Act does not otherwise limit the operation of another law requiring consent or authorisation to be obtained before work to a tree can be carried out. QCAT confirmed it would not hear a matter if consent to intervene with the tree is required under another Act.[269]
10.146 This limitation is qualified in relation to local laws. Section 67 of the Queensland Act provides that if QCAT is satisfied there is a genuine dispute, it may make an order for a person to carry out works to a tree even though:
• consent is withheld by a local government or a tree-keeper under a vegetation protection order
• a local law requires consent or authorisation to be given before the work may be carried out, or
• the work is otherwise restricted or prohibited under a local law.[270]
10.147 The Queensland Act specifically provides that work carried out pursuant to this section is lawful despite a local law.[271] Section 65(b) also provides that QCAT may make an order if it is satisfied that the neighbour has taken all reasonable steps to resolve the issue under local law, a local government scheme or local government administrative process.
10.148 In Queensland, ‘it is the specific intention of the Bill that QCAT can override a local law, particularly relating to vegetation protection orders, where it can be demonstrated that the tree is a nuisance’.[272]
10.149 If a council has local law which would allow concerns about a dangerous tree to be addressed, then the process under the local law should be used first to try to resolve the issue.[273]
Tasmania
Regulation of trees on private land
10.150 In Tasmania, councils can protect vegetation under their individualised planning schemes established under the Land Use Planning and Approvals Act 1993 (Tas), which also controls land use and vegetation.[274] The Tasmanian planning framework is undergoing significant change and now operates in a similar way to the planning schemes in New South Wales, Queensland and Victoria.[275] For example, the Tasmanian planning scheme consists of State Planning Provisions and Local Provisions Schedules for each municipal area.[276]
10.151 Planning schemes contain standardised codes that can apply to control and protect trees. The Local Historic Heritage Code enables local councils to recognise and protect significant trees so that they are not unnecessarily destroyed and are managed in a way that maintains their health, structural stability and appearance.[277] The pruning of a tree to improve its health or appearance is exempt from a permit application provided that ‘its normal growth habit is not retarded’.[278]
10.152 Councils may also create local laws, known in Tasmania as by-laws, to protect trees.[279]
Neighbourhood Disputes About Plants Act 2017 (Tas)
10.153 Pursuant to section 14 of the Neighbourhood Disputes About Plants Act 2017 (Tas) (the Tasmanian Act), RMPAT cannot make orders that would be unlawful under another Act or otherwise limit the operation of another law requiring a consent or authorisation to be obtained before work may be carried out on a plant.
10.154 The Tasmanian Act includes a number of mechanisms that enable parties to obtain the relevant consent or authorisation and to notify other authorities of an action under the Act:
• At the outset the applicant is required to identify the consent or approval that would ordinarily be required by a government body if the type of order sought was granted by RMPAT.[280] The applicant is required to notify any interested government party that it is entitled to appear in proceedings.[281] The Act authorises that government body to appear in proceedings if it wishes to do so.[282]
• In making an order, RMPAT must consider, among other factors, whether consent or other authorisation would normally be required under any other Act.[283]
• Where a planning permit would ordinarily be required for the works to the tree, section 33(3)(a) allows RMPAT to defer its determination until the application for a planning permit is made or determined.
• Section 33(3)(b) allows RMPAT to make an order that the applicant can appeal a decision to grant a planning permit where they might otherwise be out of time under section 61(5) of the Land Use Planning and Approvals Act 1993 (Tas). This process ensures that RMPAT has the best available information before it when determining its decision.
• Ultimately, section 33(3)(c) of the Tasmanian Act provides RMPAT with the power to amend a permit granted under the Land Use Planning and Approvals Act 1993.
10.155 The interaction between the Tasmanian Act and planning scheme permits was outlined by Minister Hidding in the Second Reading Speech:
Parties who are seeking redress under the bill will be required to obtain the relevant permit from the planning authority in the first instance, or if the permit has not been obtained when the matter comes before the tribunal, the tribunal may put a stay on proceedings in order to enable the relevant permit to be obtained. In this way, the bill retains the current policy settings for decision-making under other legislative regimes, including notification and rights of appeal.[284]
10.156 The application of the Tasmanian Act is in its infancy and at the time of writing there is no case law about how these specific provisions have been interpreted by RMPAT. The Commission is therefore uncertain about how RMPAT orders may intersect with local tree protection laws in Tasmania.
The Commission’s conclusions—interaction of laws
10.157 The Commission recommends a straightforward, accessible and timely statutory scheme to resolve neighbourhood tree disputes. A tree dispute should not be revisited by multiple decision makers, and the community should not have to navigate multiple dispute resolution frameworks to obtain a decision. Interaction with other laws should cause minimal disruption to existing legal processes and established policies.
The Planning and Environment Act
10.158 Neighbourhood tree disputes are essentially party–party civil disputes and generally involve factual interpretation rather than complex legal interpretation. Existing laws are underpinned by much broader, more complex policy considerations.
10.159 The Commission’s recommendations therefore only sanction interference with planning instruments in limited situations and subject to safeguards. These are discussed in the following sections.
Tree protection overlays
10.160 If a tree on neighbouring land is protected under a planning scheme overlay, an affected neighbour would be required under planning law to obtain a permit from council to remove, destroy or lop the tree. Because the affected neighbour would not be the owner of the tree, they would need to persuade their neighbour to seek a permit or require the owner of land to sign the permit application form.[285] This is likely to be impractical in a situation in which neighbours are in disagreement. Alternatively, the affected neighbour would need to declare that they had notified the owner of the application. There is no need for the owner of the land to consent to the application being made.[286]
10.161 The question arises as to who would bear the costs of the planning application and the works to the tree. It would be unfair to place all of this burden on the affected neighbour.
10.162 Further, if the council decided not to grant a permit to the affected neighbour to interfere with a protected tree, this decision would be reviewable by VCAT pursuant to the P&E Act.[287] Alternatively, if council decided to grant the permit, the owner of land may be entitled to object to the grant of permit and possibly seek review of the decision in VCAT.[288] The tree dispute could potentially be the subject of multiple VCAT applications if a new Act is implemented.
10.163 Requiring affected neighbours to apply for a permit to interfere with protected trees on neighbouring land would duplicate application processes and be burdensome. It would also frustrate the objective of a quick, inexpensive resolution process for trees disputes.
10.164 Even if the affected neighbour is able to obtain a planning permit to interfere with the tree on adjoining land, the remedies available would not provide for ongoing maintenance of the tree or compensation for damage caused by the tree.[289]
10.165 It makes sense to streamline this process.
The Commission’s conclusions—a new exemption to the VPPs to cover tree disputes
10.166 A more streamlined approach would involve expanding the exemptions in the Victoria Planning Provisions (VPPs) to cover tree works ordered by VCAT under the new Act. This exemption would apply to both the regular permit process and the VicSmart permit process.
10.167 The current table of exemptions in the VPPs is reasonably broad and covers a wide variety of circumstances to allow the removal of vegetation to comply with requirements in other Acts. They include, for example, the removal of vegetation that presents an immediate risk of personal injury or damage to property.[290] For the risk to be considered immediate, the only option to manage the risk must be to remove the vegetation within a shorter timeframe than it would take to apply for and be issued with a permit for its removal. Only that part of vegetation that presents the risk may be removed, destroyed or lopped.[291]
10.168 Moreover, and as discussed earlier, councils have created additional exemptions within schedules to overlays, often relaxing the permit requirement for the pruning of a tree. This is consistent with recommendations made in the Cutting Red Tape in Planning report to ‘rewrite overlays so that only matters linked to the purpose of the control need planning approval’, citing ‘tree pruning’ as a matter that could benefit from full or partial removal.[292]
10.169 Expanding the exemptions in the VPPs would mean that an affected neighbour would not need to obtain a permit under the P&E Act, prior to applying to VCAT for a remedy under the new Act if the jurisdictional requirements of the new Act are satisfied. See Chapter 5.
10.170 The suggested amendment to the existing VPP exemption would not lead to major changes in policy or produce a different or new land use or development outcome, as:
• Protected vegetation will only be interfered with on the basis of damage caused or damage or harm likely to be caused within the next 12 months as determined by a suitably qualified arborist and when ordered by VCAT. Leaf litter and maintenance issues as well as concerns about perceived risks posed by a tree will not fall within the scope of the new Act.
• Decisions to interfere with protected vegetation will be based on comprehensive decision-making principles in the new Act that take into account broader planning policy objectives.
10.171 Further, because the proposed change is based on exemption to the VPPs, the broader notification requirements that apply to permits under the P&E Act would not apply. Instead, it would only be necessary to notify the parties to the dispute and any other party specified in the new Act. In addition, most tree disputes would invoke the VicSmart permit process, designed to streamline straightforward and low-impact planning permit applications where only one tree is involved. Under this process, there are no notification requirements providing third parties with an opportunity to object to or to seek review of the decision made and decisions are made at the officer level in Council. It is therefore envisioned that the new Act will not commonly remove any review rights that would otherwise be available to third parties under the P&E Act.
10.172 The Commission acknowledges VCAT’s concerns about a new Act not being able to account fully for the complex, broader issues that come into play under the P&E Act. However, some of the issues underpinning neighbourhood tree disputes do intersect with planning and environment law. For example, a tree’s contribution to amenity and other broader environmental benefits are important considerations in the context of private tree disputes. Other considerations, including whether the tree was first in time and landscaping plan requirements, may also be relevant.
10.173 The Commission is persuaded by community responses that overwhelmingly favour a clear and simple legislative pathway for the resolution of neighbourhood tree disputes. As one community member explained: ‘there should be a single, clear Act that sets out neighbours’ rights and duties and explains where to go for information and support’.[293]
10.174 The Commission acknowledges that expanding the VPP exemptions is not a straightforward process. An amendment should not seek to change the planning scheme in a manner that conflicts with the State Policy Planning Framework.[294] The Minister[295] can prepare an amendment to a VPP at any time and this may involve a small change to one provision, or major changes or additions.[296] The VPP amendment process has similar requirements to those outlined for the amendment of planning schemes.[297] Strict notification requirements apply.[298] However, there are exemptions to the notice and advertising requirements if the Minister considers that they are not warranted, or that the interests of Victoria or any part of Victoria make such an exemption appropriate.[299]
10.175 If an amendment is approved, notice of the approval must be published in the Government Gazette.[300] The amendment comes into operation when the notice is published in the Gazette, or on any later day or days specified in the notice.[301] An amendment to provisions of a VPP can also amend specified planning schemes that include those provisions. When the amendment to the VPP is approved, the amendment to the planning scheme is also approved.[302]
10.176 On balance the Commission is persuaded that broadening the exemption in the VPPs will lead to a streamlined approach that will be easier for parties to navigate. The Commission recommends safeguards to ensure that the broader policy considerations raised by VCAT are considered where relevant by the decision maker under the new Act.
Safeguards
10.177 The Commission recommends that safeguards should apply, namely:
• The affected neighbour should provide information in the application form detailing any application of planning schemeoverlays or other applicable provisions. This recommendation is discussed in Chapter 5.
• The relevant responsible authority should be notified of applications and invited to participate in tree dispute hearings.
• VCAT should consider factors that the responsible authority would have been required to take into account, such as the relevant planning scheme, the objectives of planning in Victoria and any decisions or comments by the responsible authority.[303]
10.178 These safeguards are similar to those in the NSW Act. They aim to ensure the broader policy considerations behind planning laws are considered in the decision-making process for tree disputes. The relevant authority’s views will be heard in the decision-making process, and the factors which that authority would have considered under existing laws will be taken into account when an order is made.
Bushfire overlays
10.179 The new Act should not interfere with bushfire policies and provisions in Victorian planning schemes, which are comprehensive and intended to protect human life. If a person is concerned about the bushfire risk posed by a tree on neighbouring property, they should use existing legislative measures to address those concerns.
Native vegetation particular provisions
10.180 An order made under a new Act is unlikely to impact upon existing native vegetation particular provisions due to the permit exemptions that currently apply for those provisions. A permit is not required for:
• sites of less than 0.4 hectares
• the pruning or lopping of trees for maintenance, provided no more than 1/3 of the foliage is removed
• removing, destroying or lopping native vegetation in an emergency or where it presents an immediate risk of personal injury or damage to property
• the construction or maintenance of a fence.[304]
10.181 However, there may be circumstances where the existing permit exemptions do not apply.[305] For this reason, the Commission recommends that the general exemption recommended for overlays where an order is made under the new Act, also apply to native vegetation particular provisions. Where this occurs, the decision maker should have regard to the assessment pathways detailed in the Guidelines for the Removal, Destruction or Lopping of Native Vegetation.[306]
Recommendations
38 The Commission recommends exemptions in the Victoria Planning Provisions be expanded to enable an order made under the Act to have effect despite any requirement to obtain a permit in a Victorian Planning Scheme to remove, lop or destroy vegetation under a:
(a) Significant Landscape Overlay
(b) Environmental Significance Overlay
(c) Vegetation Protection Overlay
(d) Heritage Overlay
(e) Native Vegetation Particular Provision.
39 Where an exemption referred to in Recommendation 39 applies, the following safeguards should apply:
(a) the relevant responsible authority must be notified of the application and invited to participate in hearings
(b) the Victorian Civil and Administrative Tribunal must consider the factors that the responsible authority would have been required to consider in determining a matter under the Planning and Environment Act 1987 (Vic) such as:
i. the objectives of planning in Victoria
ii. the provisions of the relevant planning scheme that apply to the land the subject of the application, including decision-making guidelines in planning schemes
iii. information provided by the responsible authority.
The Commission’s conclusions—further consideration of trees planted or maintained as a condition of existing planning permits
10.182 In recognition of the benefits of retaining trees, councils are increasingly incorporating endorsed landscape plans into planning permits.[307] This means that it may become more common for trees to be planted and maintained as a requirement of planning permits. These permit requirements may operate to facilitate the resolution of tree disputes, for example by compelling a landowner to comply with landscaping maintenance conditions. Alternatively, they may limit the ability of an affected neighbour to obtain a remedy if an amendment to an existing permit is needed.
Enforcing permit conditions
10.183 Section 114 of the P&E Act enables VCAT to issue an ‘enforcement order’ on the application of any person if a use or development of land contravenes or has contravened, or unless prevented by the enforcement order, will contravene:
• the P&E Act
• a planning scheme
• a condition of a permit, or
• an agreement made under section 173.
10.184 Parties can pursue the enforcement of planning permit conditions through the relevant authority and, if need be, under the P&E Act at VCAT. Many disputes about landscape plans may be able to be resolved through the local council if they are solely about a tree owner not properly maintaining a tree where a landscaping plan requires them to do so.
10.185 Section 49 of the P&E Act requires the responsible authority to keep a register ‘of all applications for permits and all decisions and determinations relating to permits’ and this register must be made available to any member of the public to inspect free of charge. Affected neighbours would therefore be able to confirm with their local council whether an endorsed landscaping plan applies to the tree in dispute.
10.186 In situations where the affected neighbour is unaware of the permit and therefore unable to provide VCAT with this information in their application form (see Chapter 5), it is likely that this will be brought to VCAT’s attention by the tree owner. For example, QCAT advised that trees planted as a condition of development are almost always brought to the attention of the Tribunal by the tree owner as a factor in their favour.[308]
Amending permit conditions
10.187 To resolve a tree dispute an affected neighbour may need an existing planning permit amended. This may arise, for example, where the affected neighbour seeks to:
• remove a tree that was required to be planted pursuant to a planning permit condition
• vary vegetation maintenance conditions so that a tree is pruned more frequently
• replace an existing tree with a different variety of tree that is more suited to the nature or use of the land.
10.188 As discussed earlier it is very difficult for a third party to amend an existing planning permit under the P&E Act.
10.189 In contrast to the recommendation above to expand the VPP exemptions for permits not yet granted, the position in relation to existing permits is much more complex. The P&E Act provides very little recourse for third parties who are not permit holders to amend or vary a permit. Affected neighbours who were not entitled to object to the permit application, for example neighbours who moved next to the development site months or years after the development, would not be able to apply to VCAT to amend or cancel the permit. Even if affected neighbours did object to the permit or would have been entitled to object, there are many other hurdles for these individuals to overcome prior to having a permit amended pursuant to the P&E Act.
10.190 In addition, the P&E Act provides that the responsible authority may be required to pay compensation for wasted expenditure as a result of a permit amendment.[309]
10.191 The Commission concludes that because of the complex policy considerations involved, further consultation is needed on this issue. It would not be appropriate to provide VCAT with the power to amend an existing planning permit without Government further consulting with VCAT, the Department of Environment, Land, Water and Planning and Victorian councils on this issue.
10.192 The Queensland Act does not apply to trees planted or maintained as a condition of development approval.[310] The Second Reading Speech introducing this Act explained the aim of this approach was to ensure that ‘developers do not use the provisions of this legislation to escape the responsibilities that might be imposed upon them in terms of vegetation or other issues as part of that development approval’.[311]The Commission raises this as a further policy issue that needs to be addressed in this context.
10.193 In New South Wales orders have effect despite ‘any requirement that would otherwise apply for a consent or authorisation in relation to the tree concerned to be obtained under the Environmental Planning and Assessment Act 1979 (NSW)’.[312] This is a more straightforward approach. However, because of the complexity of existing planning provisions in Victoria and the aim to cause minimal disruption to existing laws, the Commission considers that the NSW approach would require extensive consultation by Government.
Further considerations for Government
10.194 The Commission has considered some further issues that may arise if the new Act allows existing planning permits to be amended. These are:
• Payment of compensation
• Protecting the intent of a landscaping plan
10.195 It may not be appropriate for the responsible authority to be required to pay compensation as is possible under the P&E Act[313] for any wasted expenditure as a result of the permit amendment. These provisions mainly apply in situations where serious consequences flow from the amendment of a permit, for example an amendment to delete three levels from a proposed apartment building.[314]
10.196 The Commission envisages that most permit amendments would require tree maintenance rather than removal, resulting in no net loss of expenditure on the planting and maintenance of the tree as part of the endorsed landscaping plan. The Commission further notes that the ‘proximate effect’ of section 94 of the P&E Act is for responsible
authorities to pay compensation only ‘in some circumstances’ when they have made an error in granting the permit’.[315]
10.197 Safeguards may be necessary to ensure that the policy objectives of the P&E Act are considered and to also make sure that developers of land do not use the new Act to remove or destroy vegetation that is planted and maintained as part of an endorsed landscaping plan—for example, through contrived applications under the new Act where no genuine dispute exists.
10.198 The following safeguards may be appropriate:
• all relevant parties should be invited to appear at the tree dispute hearing in accordance with section 90(1) of the P&E Act
• the planning scheme, planning permit and objectives of planning in Victoria should be taken into account as part of the decision-making process—for example to what extent did the permit holder comply with the conditions to plant and maintain the species of tree required by the responsible authority in the endorsed landscape plan[316]
• tree removal or destruction will only be ordered as a last resort, if no lesser impact on the tree would be sufficient.
The Commission’s conclusions—further consideration of Section 173 agreements
10.199 It is difficult to amend or cancel a section 173 agreement. Legislative amendments in 2013 attempted to address this difficulty by introducing a process for amending or removing agreements where the amendment or removal has the support of council.[317] However, these changes do not assist where council does not support the amendment or removal of the agreement.
10.200 The Commission does not recommend that the new Act interfere with section 173 agreements because these agreements are unable to be reviewed by VCAT without the approval of the relevant council.
10.201 Section 173 agreements are also complex. Agreements are made between council, landowners and in some cases third parties such as referral authorities. Neighbours on adjoining lots of land are not parties to these agreements and they do not have the ability to interfere with the protected vegetation. Moreover, the agreements appear on land title certificates and bind any future owner/s of land.
10.202 A template agreement recommended for use by councils pursuant to section 173 of the P&E Act enables a landowner to remove, destroy or lop native vegetation to the minimum extent necessary to mitigate an immediate risk of personal injury or damage to property.[318] While this clause may not provide a remedy for an affected neighbour, it does enable tree owners to prune or remove vegetation that does pose an imminent risk to people or property.
10.203 Affected neighbours may have some recourse under section 114 of the P&E Act if land is not maintained pursuant to any of the conditions set out in section 173 agreements, discussed above.
10.204 Given the complex nature of these agreements, Government should consider further consultation with councils about how these agreements operate and the way they would interact with the new Act.
The Commission’s conclusions—local tree protection laws
10.205 Final decisions made under local laws are not reviewable in VCAT. Further complicating this scenario is the likelihood that the affected neighbour will be unable to apply for a permit under local laws because they often allow only the owner of a tree to apply for a permit or require the owner’s written consent to be submitted with the application.[319]
10.206 In the Commission’s view, this outcome would be unsatisfactory and would limit the ability of a new Act to resolve a large number of neighbourhood tree disputes. As well as being impractical in many situations, requiring an affected neighbour to obtain an additional permit would add unnecessary costs and increase the administrative burden on applicants.
10.207 Local laws can be overridden in Queensland. In New South Wales vegetation in urban areas is protected under planning legislation and relevant council policies rather than local laws. However, the Commission is of the view that the interaction of the NSW Act with these lower level planning instruments is a good guide for the new Act. The NSWLEC advised:
Where local council’s authority or a permit would ordinarily be needed, the Court will look to the factors that the local council would ordinarily take into account. The Court may also consider whether or not the permit was refused by local council where a prior application was made.[320]
10.208 The Commission notes that the NSWLEC gives significant weight to tree preservation orders and relevant council polices in the decision-making process.[321] For example, in the case of Haindl v Daisch[322] the relevant council submitted information to the Court, including applications that had been previously made under the council’s tree preservation order. The material was referred to and discussed by the Court. In particular, the Court focused on the council’s policy of not permitting the removal of trees in the particular circumstances of the case. This policy was given significant weight in the decision-making process even though the Court decided that the removal of the trees would not be appropriate for a range of other reasons.
10.209 An appropriate balance could be achieved by adopting the approach taken by the NSWLEC in relation to the planning policies of local councils. This approach would enable a decision-making body to override local laws cautiously and on a case-by-case basis through adoption of the following safeguards:
• affording ‘significant weight’ to local laws and policies in place to protect vegetation
• notifying local councils of applications made
• enabling local council to appear at tree dispute hearings.
10.210 This approach is appropriate given the nature of local laws: decisions are generally made at the council officer level, there are no appeal rights and no advertising requirements under local laws. It would also respond to council concerns that the interaction of laws not limit its decision-making authority by involving them in the process if they so wished. The approach is generally consistent with the submissions received in relation to this inquiry.
10.211 In Chapter 5 it was recommended that the initiating VCAT application form should require an applicant to provide information about any requirements affecting the management of the tree under other laws, including local laws. This will assist VCAT to identify issues involving local laws early.
Recommendations
40 Orders under the Act should have effect regardless of requirements for consent or authorisation under local tree protection laws made under the Local Government Act 1989 (Vic).
41 Where Recommendation 41 applies, the following safeguards should apply:
(a) the Victorian Civil and Administrative Tribunal must afford the relevant council tree protection laws significant but not determinative weight in the decision-making process
(b) the Tribunal should invite council to appear at a tree dispute hearing or to provide a written submission.
The Commission’s conclusions—the Heritage Act
10.212 It is rare for the Heritage Act to protect individual trees on private land within Victoria. However, trees that form part of the significance of a heritage place are more commonly listed on the Heritage Register. For proposed maintenance works to registered trees, Heritage Victoria will generally issue a permit exemption.[323]
10.213 For example, a permit exemption may be issued for the removal of dead, diseased or dangerous trees. An arborist report must be submitted verifying the condition of the tree, unless considered inappropriate by the Executive Director.[324] Heritage Victoria stated that ‘the bulk of tree removals and planting are done by way of permit exemptions’.[325] The key consideration is that the proposed works will not harm the cultural significance of the place or object.[326]
10.214 A tree owner must make a formal application seeking a permit exemption. Section 92(3) of the Heritage Act only allows only an owner to apply for a permit exemption or another individual who has obtained the owner’s written consent of the owner. Therefore, an affected neighbour would not be able to apply for a permit exemption to undertake works to a heritage- listed tree on adjoining land.
10.215 Heritage-listed trees have been assessed by the Heritage Council as of importance to the history of Victoria.[327] In these circumstances it would not be appropriate for a new Act to interfere with heritage-listed trees, except in emergency situations.
10.216 If there is an emergency situation and the tree poses a danger to life or property, the new Act should provide a remedy to an affected neighbour where the tree is declared dangerous by VCAT. If the new Act does not operate in this way the affected neighbour cannot remedy the situation or resolve the dispute.
10.217 The Heritage Act is limited by an emergency order under the Building Act 1993 (Vic) relating to the securing, pulling down or removal of dangerous buildings if a municipal building surveyor is of the opinion that the order is necessary because of a danger to life or property.[328] Section 86 of the Heritage Act should be expanded to encompass circumstances where an emergency order is made under the new Act to remove a dangerous tree/s where VCAT has decided that there is an imminent danger to life or property. An arborist’s assessment should be obtained in these circumstances to properly assess risk. However, this would ultimately be a decision for VCAT.
10.218 The Commission recommends that safeguards should apply to enable Heritage Victoria, and the National Trust of Australia (Victoria),[329] to participate in tree dispute hearings. The application form should also seek information about whether Heritage laws might apply to the management of the tree. See Chapter 5.
10.219 Where a decision is made to interfere with a tree for which authorisation would ordinarily be required by Heritage Victoria, the Commission recommends that the VCAT decision maker consider the factors that Heritage Victoria would be required to consider under the Heritage Act. Further, where a heritage-listed tree is removed, it recommends that the decision maker consider requiring a replacement tree to be planted as occurs in Heritage Victoria decision-making process.[330]
Recommendations
42 Section 86 of the Heritage Act 2017 (Vic) should be amended to provide that the operation of the Heritage Act is subject to any order under the new Act where the Victorian Civil and Administrative Tribunal determines that a registered tree or a tree situated in a heritage place poses an imminent danger to life or property.
43 Where Recommendation 43 applies, the following safeguards should apply:
(a) Heritage Victoria must be notified of the application and be invited to participate in the hearing
(b) the Victorian Civil and Administrative Tribunal should consider the factors that Heritage Victoria would have been required to take into account pursuant to the Heritage Act 2017 (Vic) and any information provided by Heritage Victoria.
44 Where a registered tree under the Heritage Act 2017 (Vic) or a tree in a heritage-listed place is ordered to be removed by the Victorian Civil and Administrative Tribunal under the Act, the Tribunal should have regard to any replanting requirements that Heritage Victoria may consider necessary to maintain the heritage value of the landscape.
The Commission’s conclusions—the Aboriginal Heritage Act
10.220 Under the Aboriginal Heritage Act a person does not commit an offence if ‘the harm is the result of doing an act that is necessary because of an emergency’.[331] This provides some scope for an affected neighbour to interfere with a scarred tree in the case of an emergency.
10.221 If the situation is not an emergency and an affected neighbour is seeking to carry out works to a scarred tree on adjoining land, they can apply for an Aboriginal heritage permit because these applications are not restricted to the owner of the land.[332] This is because one of the key principles underpinning the Aboriginal Heritage Act recognises that as far as practicable Aboriginal Cultural Heritage should be owned by traditional owners.[333]
10.222 This means that there is sufficient scope in the Aboriginal Heritage Act to allow an affected neighbour to apply for a permit to carry out works to a protected tree. For these reasons, a new Tree Disputes Act should not amend the Aboriginal Heritage Act and decisions about works to trees protected under the Aboriginal Heritage Act should continue to be determined by Registered Aboriginal Parties or Aboriginal Victoria.
10.223 If an affected neighbour seeks a remedy under a new Act that impacts on a tree that is of Aboriginal cultural significance, this should be identified in the VCAT application form. See Chapter 5.
The Commission’s conclusions—the Fences Act
10.224 If a tree is found to be causing damage or likely to cause damage to a fence, VCAT should have jurisdiction to make orders in relation to both the tree and the fence.
10.225 This is the approach taken in New South Wales. The NSWLEC informed the Commission that allowing the Court to determine tree disputes involving fences is ‘working well’ and is generally ‘very straightforward’.[334]
10.226 The NSWLEC has jurisdiction under the NSW Act to hear matters and make orders under the Dividing Fences Act 1991 (NSW). Section 13A of the Dividing Fences Act gives jurisdiction to the NSWLEC to hear and determine matters arising under that Act if:
• the application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and
• the tree that is the subject of those proceedings:
– has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
– is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to any person.
10.227 QCAT has jurisdiction to hear neighbourhood disputes about trees and dividing fences with reference to a single Act.[335] In Tasmania, the provisions of the Act will apply if trees are causing or are likely to cause serious damage to a fence.[336]
10.228 Where a tree has caused damage to a fence or a tree is part of a fence that has caused, is causing or is likely to cause damage to property or harm to any person, it would be prudent for orders to be made in relation to the tree and the damaged fence at the same time.
Recommendations
45 Section 30C of the Fences Act 1968 (Vic) should be amended to provide the Victorian Civil and Administrative Tribunal with jurisdiction to make orders under the Fences Act where a tree:
(a) has caused, is causing, or is likely in the next 12 months to cause damage to a dividing fence, or
(b) forms part of the fence that has caused, is causing, or is likely in the next 12 months to cause damage to property or harm to any person.
The Commission’s conclusions—noxious weeds
10.229 It has been suggested to the Commission that noxious weeds should be excluded from the scope of a proposed Act.[337] However, most community responses are supportive of a broad definition of vegetation, including environmental weeds.[338]
10.230 Noxious weeds can cause disputes between neighbours for which a remedy under a proposed Act may be appropriate.[339] Baw Baw Shire Council noted that ‘environmental weeds can become an issue’.[340] Arborist Robert Mineo suggested that a new scheme should not discriminate between tree species. For example, a common weed tree, the pittosporum, is viewed as a valuable tree by some individuals despite its categorisation as a weed.[341]
10.231 All interstate Acts encompass noxious weeds where the jurisdictional tests are otherwise met—that is, the weed has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause harm to any person. The NSWLEC held that the NSW Act does not specify particular species of plants, and the jurisdiction of the Court may be engaged whether the plant is or is not a declared weed.[342]
10.232 In the Queensland case of Sowden v Winzar,[343] QCAT heard a tree dispute concerning a tree of a species defined as a weed. However, the only basis for the application to remove the tree was its status as a weed. The Tribunal held:
The fact that the umbrella tree is a weed species is the only basis for its removal. There is no evidence that the tree is posing a threat of serious injury to person or property. There is no evidence to suggest that it is causing substantial, ongoing or unreasonable interference with Mr Sowden’s land. Therefore, there is no reason to make an order about the umbrella tree.[344]
10.233 The new Act should apply to noxious weeds if the weed has caused, is causing or is likely to cause damage to property or harm to individuals. Excluding noxious weeds from the definition of vegetation would unnecessarily prevent a number of tree disputes from being resolved under a new statutory scheme.
10.234 Whether a tree is a declared weed is something that VCAT should consider as part of the decision-making process under a proposed new Act. This would enable the VCAT member to turn their mind to any past actions taken by the landowner with respect to the weed, for example whether or not the landowner was issued with a directions notice and failed to comply with this notice.
10.235 Vegetation declared as a noxious weed[345] is exempt from the permit requirements to remove, destroy or lop vegetation pursuant to most of the tree protection overlays under the P&E Act, namely the Significant Landscape Overlay, Environmental Significance Overlay and Vegetation Protection Overlay.[346] There is also an exemption to remove, destroy or lop weeds listed in a schedule to the native vegetation particular provision but this is limited to 15 native trees[347] over a five-year period.[348]
Recommendation
46 The Act should apply to recognised weeds provided that the weed is a ‘tree’ and has caused, is causing or is likely to cause damage to property or land or harm to people in the next 12 months.
The Commission’s conclusions—the Environment Protection and Biodiversity Conservation Act
10.236 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) is a Commonwealth Act. Therefore, the new Act cannot override it and will be invalid to the extent that is inconsistent with it. If tree works are likely to have a significant impact on a matter of National Environmental Significance or other protected matter then the tree dispute hearing should be vacated and the applicant should work through the Commonwealth assessment and approval process under the EPBC Act.
10.237 Even if an exemption currently applies under a VPP and the EPBC Act is triggered, consent would still need to be sought from the Commonwealth Government.[349]
The Commission’s conclusions—further consultation required on some
other Acts
Victorian Conservation Trust Act 1972 (Vic)
10.238 The current wording of conservation covenants requires landowners who are subject to these agreements to comply with existing requirements under other Acts and laws. This suggests that tree owners would need to comply with orders made under the new Act.
10.239 However, the Commission cautions that this may differ for older existing conservation covenants and the specific provisions of each covenant would need to be considered.
10.240 Given the unique, varied and complex nature of conservation covenants Government should consult more broadly with the Trust for Nature as well as landowners subject to these agreements to determine the practical effect of these covenants and the extent to which they may intersect with the resolution of neighbourhood tree disputes under the new Act. It may be necessary to consider whether the Trust would need to be notified of any proceedings under the new Act involving land that is subject to a Trust for Nature Covenant.
Conservation, Forests and Lands Act 1987 (Vic)
10.241 Land management co-operative agreements made pursuant to section 69 of the Conservation, Forests and Lands Act 1987 (Vic) (the CFL Act) are complex vegetation conservation and protection management arrangements that require landowners to protect and conserve land. They do so by enabling the government to pay landowners to carry out land management and conservation activities. Agreements vary in nature depending on the environmental matters that are protected.
10.242 At this stage the Commission does not think it would be appropriate for the new Act to limit the operation of section 69 agreements under the CFL Act. This is in keeping with the Commission’s approach to Trust for Nature Covenants and section 173 agreements under the P&E Act.
10.243 The Commission is of the view that the Government should also undertake further consultation with the Department of Environment, Land, Water and Planning and landowners subject to land management cooperative agreements to determine whether and to what extent these agreements may intersect with the operation of the new Act.
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Country Fire Authority Act 1958 (Vic); Metropolitan Fire Brigades Act 1958 (Vic); Electrical Safety Act 1998 (Vic); Flora and Fauna Guarantee Act 1988 (Vic); Public Health and Wellbeing Act 2008 (Vic); Road Management Act 2004 (Vic); Rail Management Act 1996 (Vic).
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Planning and Environment Act 1987 (Vic) s 4. The objectives of the planning framework established by the P&E Act include enabling land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at state, regional and municipal levels: Planning and Environment Act 1987 (Vic) s 4(2)(c). To this end, the effects on the environment, as well as social and economic effects, must be considered as part of the decision-making process about the use and development of land: Planning and Environment Act 1987 (Vic) s 4(2)(d).
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Planning and Environment Act 1987 (Vic) ss 13–14. The administration and enforcement of a planning scheme is the duty of a responsible authority. In most cases this will be a council but it can be the Minister administering the Act or any other person whom the planning scheme specifies as a responsible authority for that purpose.
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Ibid pts 1A, 2; Department of Environment, Land, Water and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes,
(Version 1.1, October 2018) [2.2]-[2.4] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>; see also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 23. -
Planning and Environment Act 1987 (Vic) pt 1A. These provisions are under the central control of the Minister for Planning.
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Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [1.8.7]
<https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>; see also Department of Environment, Land, Water
and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) [6.5.3].
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Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17.
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Planning and Environment Act 1987 (Vic) ss 6–7; see, eg, Hume City Council, General Planning Information Fact Sheet
<https://www.hume.vic.gov.au/Building_Planning/Planning/About_Planning>.
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See generally Planning and Environment Act 1987 (Vic) s 6.
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Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 59.06.
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Planning and Environment Act 1987 (Vic) s 51.
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Ibid s 52.
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VicSmart applications are not advertised because VicSmart is a streamlined assessment process for straightforward planning permit applications: Department of Environment, Land, Water and Planning (Vic), VicSmart—A Simpler Planning Permit Process (Web Page,
20 March 2019) <https://www.planning.vic.gov.au/permits-and-applications/vicsmart>.
-
See, eg, Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) 2
<https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>; see also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 22-26, 42-44.
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Planning and Environment Act 1987 (Vic) ss 4B, D-E, G-J; see also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 164-183.
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Planning and Environment Act 1987 (Vic) s 47.
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Ibid s 48.
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Ibid s 48(1).
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Cf Heritage Act 2017 (Vic) and some local laws made under the Local Government Act 1989 (Vic).
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Planning and Environment Act 1987 (Vic) s 52. The Act does not specify what matters may be taken into account by the responsible authority in deciding whether or not material detriment may be caused. Each application must be considered on its merits. As a basic rule, it should be possible to link detriment to specific matters such as restriction of access, visual intrusion, unreasonable noise, overshadowing or some other specific reason. General terms such as ‘amenity’ and ‘nuisance’ are not specific enough, nor is the fact that the matter is controversial a conclusive test that a person may suffer material detriment. Conversely, agreement to the proposal by the owners and occupiers of adjoining land is not conclusive, although it may help the responsible authority form an opinion. Careful judgment of the situation by the responsible authority is necessary: see Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [3.1.2] <www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
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Planning and Environment Act 1987 (Vic) s 51. A planning scheme may exempt any class or classes of application from some or all of the notice requirements that may otherwise apply under section 52(1) of the Act. In these cases, there is no opportunity for other people to make submissions or objections in relation to the application. The application must still be referred to any referral authority and the responsible authority must still take into account all relevant planning considerations in deciding the application.
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Ibid s 57.
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Planning and Environment Act 1987 (Vic) s 60(1)(a)–(d). A referral authority may be a determining referral authority or a recommending referral authority. Both types of referral authority can object to the granting of a permit, decide not to object, or specify conditions to be included on a permit. The effect of that advice on the final outcome of an application is different for each type of referral authority. If a determining referral authority objects, the responsible authority must refuse to grant a permit, and if a determining referral authority specifies conditions, those conditions must be included in any permit granted. In contrast, a responsible authority must consider the recommending referral authority’s advice but is not obliged to refuse the application or to include any recommended conditions. A recommending referral authority can seek a review at the Victorian Civil and Administrative Tribunal if it objects to the granting of a permit or it recommends conditions that are not included in the permit by the responsible authority: Department of Environment, Land, Water and Planning, Planning Practice Note No 54: Referral and Notice Provisions, June 2015 <https://www.planning.vic.gov.au/resource-library/planning-practice-notes>.
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Planning and Environment Act 1987 (Vic) s 60(1)(e)–(f). For the complete list of considerations see Planning and Environment Act 1987 (Vic) s 60.
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Planning and Environment Act 1987 (Vic) s 60(1A)(b)–(h). For example, if needed the responsible authority may consider the approved regional strategy plan under section 17 of the Upper Yarra Valley and Dandenong Ranges Authority Act 1976 (Vic); the Melbourne Environs Strategy Plan approved under section 46U(2); and any relevant state environment policy declared in any order made by the Governor-in-Council under section 16 of the Environment Protection Act 1970 (Vic).
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Planning and Environment Act 1987 (Vic) s 84B.
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Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [5.1.1] and Table 5.1 <https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>. For example, the Responsible Authority or a person can apply for an enforcement order against one or more persons if a use or development of land will contravene the Act: Planning and Environment Act 1987 (Vic) s 114.
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Department of Environment, Land, Water and Planning (Vic), ‘VicSmart Permits in 10 Days—Fast Decisions for Simple Planning Decisions’, Permits and Applications (Web Page, March 2017) 2 <https://www.planning.vic.gov.au/permits-and-applications/vicsmart>.
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Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 59.06.
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Department of Environment, Land, Water and Planning (Vic), ‘VicSmart—A Simpler Planning Permit Process’, Permits and Applications (Web Page, 20 March 2019) <https://www.planning.vic.gov.au/permits-and-applications/vicsmart>.
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These include considerations 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. Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 59.06 –2 Decision guidelines. Additional requirements apply to lopping trees the subject of a Heritage Overlay under clause 59.07.
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Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 59.06 –1 Information requirements.
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See Department of Environment, Land, Water and Planning (Vic), ‘VicSmart Permits in 10 Days—Applicant’s Guide to Lodging a VicSmart Application’, Permits and Applications (Web Page, January 2019) <https://www.planning.vic.gov.au/permits-and-applications/vicsmart>.
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Department of Environment, Land, Water and Planning (Vic), ‘VicSmart Permits in 10 Days—Fast Decisions for Simple Planning Decisions’, Permits and Applications (Web Page, March 2017) 2 <https://www.planning.vic.gov.au/permits-and-applications/vicsmart>. The Short Cases List is a sub-list of the Planning and Environment List and handles short and less complex disputes that allow parties to have their matter heard and determined within a short timeframe. Tribunal members hearing cases in this list are encouraged to provide oral decisions at the conclusion of the hearing. Site inspections are unlikely to be undertaken.
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Department of Environment, Land, Water and Planning (Vic), Planning Practice Note No 7: Vegetation Protection in Urban Areas, August 1999.
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See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 33. 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.
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Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 2015) [1.8.7] <https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
Ibid [6.5.3] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>.
-
See Department of Environment, Land, Water and Planning, A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) [5.2.3] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.03; Department of Environment, Land, Water and Planning (Vic), Planning Practice Note No 7: Vegetation Protection in Urban Areas, August 1999, 6.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.01; Department of Environment, Land, Water and Planning (Vic), Planning Practice Note No 7: Vegetation Protection in Urban Areas, August 1999, 5.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.02.
-
Ibid, cl 43.01.
-
A ‘heritage place’ includes both the listed heritage item and its associated land.
-
Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 12 (City of Port Phillip), 16 (Heritage Victoria).
-
Chris Harty, Robin Crocker and Lyn Denison, Panel Report—Monash Planning Scheme Amendment C115—Vegetation Protection Overlay Schedule 1—Tree Protection Area (Panel Report, 13 August 2013) 7. This Panel was appointed under delegation on the 8 May 2013 pursuant to Sections 153 and 155 of the Planning and Environment Act 1987 to hear and consider submissions in respect of the Amendment.
-
Consultation 9 (Nillumbik Shire Council).
-
Department of Environment, Land, Water and Planning (Vic), Planning Practice Note 1: Applying the Heritage Overlay, August 2018, 4.
-
See, eg, Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 43.02-3 ‘Significant Landscape Overlay’, ‘Table of Exemptions’. For example, the requirement to obtain a permit does not apply to vegetation that is to be removed, destroyed or lopped in an emergency or where it presents an immediate risk of personal injury or damage to property or to vegetation that is to be removed, destroyed or lopped to the minimum extent necessary to enable the carrying out of fire protection activities. For a full list of examples see Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.01-3, 42.02-3, 42.03-3, ‘Table of Exemptions’. These exemptions also apply to some processes in other Acts including the Geothermal Energy Resources Act 2005 (Vic), the Greenhouse Gas Geological Sequestration Act 2008 (Vic), the Catchment and Land Protection Act 1994 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).
-
Action must be carried out in accordance with a code of practice prepared under section 86 of the Electricity Safety Act 1998 (Vic): Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 43.01-1.
-
Ibid, cl 43.01-1.
-
For the SLO, ESO and VPO only that part of the vegetation that presents a risk may be removed, destroyed or lopped under this exemption: Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.01-3, 42.02-3, 42.03-3.
-
See Department of Environment, Land, Water and Planning (Vic), Guidance—Exemptions From Requiring a Planning Permit To Remove, Destroy or Lop Native Vegetation (Practice Document, December 2017) 10.
-
Ibid.
-
City of Whitehorse, Planning Scheme (15 March 2019) sch 1 to the Significant Landscape Overlay at cl 42.03.
-
Ibid sch 1 to the Vegetation Protection Overlay at cl 42.02. See also City of Monash, Planning Scheme (29 April 2019) sch 1 to the Vegetation Protection Overlay at 42.02 which provides that permit is required to remove or destroy vegetation protected under this provision but not to lop vegetation.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 44.06; see Department of Environment, Land, Water and Planning (Vic), ‘Information for Owners’, Bushfire Management Overlay, 2017
<https://www.planning.vic.gov.au/policy-and-strategy/bushfire-protection/bushfire-management-overlay>.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 44.06.
-
Ibid, cl 53.02 ‘Bushfire Planning’; cl 52.12 ‘Bushfire Protections: Exemptions’.
-
Department of Planning and Community Development (Vic), Planning Advisory Note 39—Bushfire Protection: Vegetation Exemptions (Practice Document, November 2011) <www.planning.vic.gov.au/publications/planning-advisory-notes>. 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. Legal agreements and covenants can be used to secure offsets for vegetation that has been permitted to be removed. Agreements are typically established under section 173 of the Planning and Environment Act 1987 or section 69 of the Conservation, Forests and Lands Act 1987. A covenant can also be applied to vegetation under section 3A of the Victorian Conservation Trust Act 1972.
-
Department of Planning and Community Development (Vic), Planning Advisory Note 39—Bushfire Protection: Vegetation Exemptions (Practice Document, November 2011) <www.planning.vic.gov.au/publications/planning-advisory-notes>.
-
Consultation 9 (Nillumbik Shire Council).
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17. Particular provisions are specific prerequisites or planning provisions for a range of particular uses and developments. They apply consistently across the state and there is no ability to include in planning schemes particular provisions which are not in the VPP: Department of Environment, Land, Water and Planning (Vic), A Practitioner’s Guide to Victorian Planning Schemes (Version 1.1, October 2018) [3.4] <https://www.planning.vic.gov.au/guide-home/a-practitioners-guide-to-victorian-planning-schemes>.
-
See Department of Environment, Land, Water and Planning (Vic), Guidelines for the Removal, Destruction or Lopping of Native Vegetation (Practice Document, December 2017).
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17.
-
See Department of Environment, Land, Water and Planning (Vic), Guidelines for the Removal, Destruction or Lopping of Native Vegetation (Practice Document, December 2017) 13–18.
-
See Ibid 15.
-
Department of Environment, Land, Water and Planning (Vic), Planning Practice Note No 7: Vegetation Protection in Urban Areas, August 1999, 4 <www.planning.vic.gov.au/publications/planning-practice-notes>.
-
Native vegetation is defined as ‘plants that are indigenous to Victoria, including trees, shrubs, herbs, and grasses: Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 73.01 ‘General Terms’. The Guidelines for The Removal, Destruction or Lopping of Native Vegetation (2017) further classify native vegetation as a patch or a scattered tree: [3.1].
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17-7 ‘Table of exemptions’.
-
Ibid, cl 52.17-7 ‘Table of exemptions’.
-
This does not apply to the pruning or lopping of the trunk of a native tree.
-
See Broome v Maroondah CC [2016] VCAT 1161 [28]. Permit conditions can control more than just the actual development that may need planning approval. Conditions regarding fencing and landscaping are common on permits relating to the development of multiple dwellings on a lot. See also City of Boroondara, Landscape Plan Guidelines (Practice Document, 2019) <https://www.boroondara.vic.gov.au/planning-building/planning-permit-applications/landscape-plan-guidelines>.
-
Department of Sustainability and Environment, Writing Planning Permits (2nd ed, February 2007) 20–21; see also Growth Areas Authority, Growth Area Model Planning Permit Conditions—A Manual for Implementation (October 2011); see, eg, Knox City Council, Landscape Plan Guidelines—How to Prepare a Landscape Plan for Planning Applications (2017).
-
Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 148.
-
Ibid.
-
Ibid.
-
Ibid 163.
-
The Commission notes that further limitations apply under section 89(1) of the P&E Act. VCAT may cancel or amend the permit if a) the person believes that they should have been but were not given notice of the permit application; or b) the person believes that they have been adversely affected by i) a material mis-statement or concealment of fact in relation to the permit application; or ii) any substantial failure to comply with the conditions of the permit; or iii) any material mistake in relation to the grant of the permit. VCAT may refuse to consider a request unless satisfied that the request has been made as soon as practical after the personal making it had notice of the facts relied upon in support of the request: s 89(3).
-
Planning and Environment Act 1987 (Vic) s 87(3).
-
Planning and Environment Act 1987 (Vic) s 87(1). The P&E Act provides that the Tribunal cannot cancel or amend a permit in a variety of circumstances including: the permit is for the construction of building or works, and the construction or works are completed; the permit is for other development, and the development is substantially carried out; or the permit is for subdivision or consolidation of land and the plan has been registered under the Subdivision Act 1988: ss 88, 91(5); See also Victorian Civil and Administrative Tribunal, Planning and Environment List Guidelines—Cancellation & Amendment of Permits (Sections 87 & 89 Planning and Environment Act 1987) (Practice Document, 20 July 2016) <https://www.vcat.vic.gov.au/get-started/planning-and-environment/apply-to-cancel-or-amend-a-permit>.
-
Planning and Environment Act 1987 (Vic) s 91(3).
-
See, eg, The Secretary to the Department of Health and Human Services and Melbourne Health v Melbourne CC [2016] VCAT 2051
[64]–[65].
-
Planning and Environment Act 1987 (Vic) s 94.
-
Consultation 9 (Nillumbik Shire Council).
-
Planning and Environment Act 1987 (Vic) ss 173, 174; see also Department of Environment, Land, Water and Planning, Using Victoria’s Planning System (Guide, 28 May 2015) [8.1] <https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
See generally Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [8.3.1].
-
Consultation 9 (Nillumbik Shire Council).
-
Planning and Environment Act 1987 (Vic) s 181; Consultation 9 (Nillumbik Shire Council).
-
Ibid s 184G.
-
Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [8.8.2]
<https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [8.8.2]
<https://www.planning.vic.gov.au/guide-home/using-victorias-planning-system>. See also Planning and Environment Act 1987 (Vic) s 178.
-
This may be a first party offset site on land owned by the permit holder to remove native vegetation and used to meet the landowner’s own offset requirements.
-
Department of Environment, Land, Water and Planning (Vic), Native Vegetation Credit Register: Process to Establish a Native Vegetation Credit Site on Private Land (Register) <https://www.environment.vic.gov.au/native-vegetation/native-vegetation/offsets-for-the-removal-of-native-vegetation/i-want-to-establish-a-native-vegetation-credit-site>.
-
This is in contrast to decisions about permits under planning schemes which can be appealed to VCAT. The Local Government Act does not specifically require local laws to contain a provision for internal review of decisions made or actions taken under local laws, however, the guidelines encourage councils to have an internal review process: Department of Planning and Community Development, Guidelines for Local Laws (Manual, February 2010) <https://www.localgovernment.vic.gov.au/council-innovation-and-performance/local-laws>.
-
Consultation 8 (City of Boroondara). Section 114(c)(iii) of the Local Government Act 1989 (Vic) provides that a local law may delegate to a member of the council staff the power to do any act, matter or thing necessary or incidental to the performance or exercise of any function or power by the council.
-
See, eg, Tree Protection Local Law 2016 (City of Boroondara).
-
Consultations 8 (City of Boroondara), 12 (City of Port Phillip).
-
Consultations 8 (City of Boroondara), 12 (City of Port Phillip).
-
Consultation 9 (Nillumbik Shire Council). If a planning scheme is in force in the municipal district of a council, the council must not make a local law which duplicates or is inconsistent with the planning scheme: Local Government Act 1989 (Vic) s 111(4).
-
‘Canopy Tree’ means any tree: (a) with a total trunk circumference of 110cm or more measured at a point 1.5 metres along the trunk’s length from the closest point above ground level; or (b) if multi-stemmed, with a total trunk circumference of all its trunks of 110cm or more measured at a point 1.5 metres along the trunks’ lengths from the closest point above ground level; or (c) with a trunk circumference of 150cm or more measured at ground level. ‘Significant Tree’ means a tree listed in Council’s Significant Tree Study. ‘Significant Tree Study’ means the study prepared by John Patrick and Associates in May 2001 of trees and vegetation within the Municipal District that are considered to be of environmental, historic, horticultural, bio-diversity or other value and includes any subsequent trees added to the Significant Tree Study by way of Schedule to the Significant Tree Study: Tree Protection Local Law 2016 (City of Boroondara) ss 2, 8(1).
-
For, eg, a permit is needed to prune or remove a protected tree, or to carry out works within a specific area surrounding the protected tree: Tree Protection Local Law 2016 (City of Boroondara) s 8(3).
-
A person found guilty of an offence will be liable to a penalty not exceeding 20 penalty units, unless otherwise specified.
-
Tree Protection Local Law 2016 (City of Boroondara) s 8(5).
-
Ibid s 8(5).
-
Ibid s 12(2).
-
Ibid s 18.
-
Consultation 8 (City of Boroondara).
-
Ibid.
-
Consultation 12 (City of Port Phillip). The City of Port Phillip’s Local Law No.1 (Community Amenity) 2013, defines a significant tree, as ‘a tree or palm on private land: with a trunk circumference or 150 centimetres or greater, measured 1 metre above the ground; or with multiple stems where the circumference of its exterior stems is equal to, or greater than 150 centimetres when measured 1 metre about ground level’.
-
Consultation 12 (City of Port Phillip).
-
Local Law No 1 (Community Amenity) 2013 (City of Port Phillip) s 44. The requirement to obtain a permit does not apply: (a) where a person cuts, trims or prunes a significant tree to comply with clause 38 of this Local Law; (b) where an adjacent landowner removes branches which are overhanging that adjacent land: s 44(2).
-
Consultation 12 (City of Port Phillip).
-
Consultation 12 (City of Port Phillip). See also City of Port Phillip, City Permits—Fact Sheet Significant Tree Permits (29 November 2017) <http://www.portphillip.vic.gov.au/significant-tree-permit.htm>.
-
Heritage Act 2017 (Vic) s 1.
-
Cultural heritage significance means aesthetic, archaeological, architectural, cultural, historical, scientific or social significance: Heritage Act 2017 (Vic) s 3 ‘Definitions’.
-
Heritage Act 2017 (Vic) s 24. Places and objects of local significance may be protected by a listing on a schedule to the Heritage Overlay, and are therefore reflected in planning schemes. The Commission notes that section 56 of the Heritage Act requires the amendment of planning schemes to reflect the current status of the Register. However, places and objects listed on the Register are managed by Heritage Victoria and not via the planning scheme permit process administered by local councils.
-
Heritage Act 2017 (Vic) s 3.
-
Ibid s 3 ‘Definitions’, pt 5. It is a criminal offence to undertake works to a Heritage place without first obtaining a permit.
-
Consultation 16 (Heritage Victoria).
-
Heritage Victoria exercises its functions in a number of ways, including: Administering the Heritage Act 2017 (Vic); Maintaining the Victorian Heritage Register; Recommending places and objects that should be included in the Heritage Register; Issuing permits to make changed to heritage places and objects: See Department of Environment, Land, Water and Planning (Vic), Heritage Victoria (Web Page, 9 July 2018) <https://www.heritage.vic.gov.au/about-heritage-in-victoria/heritage-in-victoria>.
-
Heritage Act 2017 (Vic) ss 9–11.
-
Ibid s 92.
-
Ibid s 92(3).
-
Ibid s 92; see also Heritage Victoria, Policy Guideline for Heritage Permit Exemptions: Matters to be Considered in Determining Permit Exemptions under Section 92 and 49 of the Heritage Act 2017 (Document, 7 September 2017). See also Department of Environment, Land, Water and Planning (Vic), Permits—Apply for a Permit (Web Page, 15 March 2019) <https://www.heritage.vic.gov.au/permits/apply-for-a-permit>.
-
Consultation 16 (Heritage Victoria).
-
Heritage Act 2017 (Vic) ss 109, 111.
-
Aboriginal Heritage Act 2006 (Vic) ss 144, 145.
-
Aboriginal Victoria is also responsible for the implementation of the Aboriginal Lands Act 1970.
-
Consultation 13 (Aboriginal Victoria); See Aboriginal Heritage Act 2006 (Vic) s 144.
-
There are currently 12 RAPs in Victoria that cover approximately 66% of Victoria’s geographical location. See Aboriginal Victoria, Registered Aboriginal Parties (Web Page) <https://www.vic.gov.au/aboriginalvictoria/heritage/registered-aboriginal-parties.html>.
-
Other trees such as ring trees and birthing trees can be of cultural significance to Aboriginal people. These trees may have cultural significance, through natural or human processes, whereby branches have been fused and given a pattern.
-
Aboriginal Heritage Act 2006 (Vic) s 4.
-
Consultation 13 (Aboriginal Victoria).
-
Consultation 13 (Aboriginal Victoria). Aboriginal Victoria calculated this figure from DELWP data layers and noted that the number would likely include some trees under lease or licence that are not in fact situated on private land within Victoria. Aboriginal Victoria noted that the Aboriginal Heritage Act 2006 (Vic) does not distinguish between scarred trees situated on public land and those on private land. Aboriginal people caused scars on trees by removing bark for a variety of purposes. The scars vary in size and expose the sapwood on a tree: see Victorian Government, ‘Aboriginal Scarred Trees’, Aboriginal Victoria (Brochure, June 2008) <https://w.www.vic.gov.au/aboriginalvictoria/heritage/aboriginal-cultural-heritage-of-victoria/aboriginal-places-objects-and-land-management.html>.
-
Aboriginal Heritage Act 2006 (Vic) s 36; pt 4.
-
Ibid pt 7.
-
High-impact activities are categories of activity that are generally regarded as more likely to harm Aboriginal cultural heritage. Most high-impact activities provided for in the Regulations are subject to a requirement that the activity results in significant ground disturbance. The term ‘significant ground disturbance’ is defined in the Regulations. For more information, see Aboriginal Victoria, Aboriginal Heritage Act 2006—Practice Note: Significant Ground Disturbance <https://www.vic.gov.au/aboriginalvictoria/heritage/heritage-tools-and-publications/guides-forms-and-practice-notes-for-aboriginal-heritage-management.html>.
-
Consultation 13 (Aboriginal Victoria).
-
Aboriginal Victoria, Heritage Tools (Web Page) <https://www.vic.gov.au/aboriginalvictoria/heritage/heritage-tools-and-publications/heritage-tools.html>.
-
Aboriginal Heritage Act 2006 (Vic) pt 10.
-
Consultation 13 (Aboriginal Victoria); see Aboriginal Heritage Act 2006 (Vic) ss 40, 63, 65.
-
Aboriginal Heritage Act 2006 (Vic) pt 8.
-
Consultation 13 (Aboriginal Victoria).
-
Under the Act, a fence includes a vegetative barrier that encloses or bounds land. It follows that fencing works include ‘the planting, replanting, repair or maintenance of a hedge or similar vegetative barrier that is the whole or part of a dividing fence’: Fences Act 1968 (Vic) s 3 ‘Definitions’.
-
Fences Act 1968 (Vic) s 7.
-
Ibid s 23.
-
Ibid s 4.
-
Ibid ss 4, 30C.
-
See, eg, Fences Act 1968 (Vic) s 30C.
-
This includes ‘Vegetation that is a noxious weed subject of a declaration under the Catchment and Land Protection Act 1994. This exemption does not apply to Australian Dodder (Cuscuta australis).
-
Agriculture Victoria, Invasive Plant Classifications (Web Page, 5 December 2018) <http://agriculture.vic.gov.au/agriculture/pests-diseases-and-weeds/weeds/invasive-plant-classifications>.
-
Catchment and Land Protection Act 1994 (Vic) s 70(1).
-
Regionally prohibited weeds are not widely distributed in a region but are capable of spreading further.
-
Ibid. Regionally controlled weeds are invasive plants and are usually widespread in a region. To prevent their spread, ongoing control measures are required.
-
Catchment and Land Protection Act 1994 (Vic) s 70C.
-
Country Fire Authority Act 1958 (Vic) s 41. The ‘country area of Victoria’ means that part of Victoria which lies outside the metropolitan district, but does not include any forest, national park or protected public land.
-
Ibid s 41(2)(a).
-
Ibid s 41D.
-
Country Fire Authority, Who Does What (Web Page, 2019) <https://www.cfa.vic.gov.au/about/who-does-what>.
-
Metropolitan Fire Brigades Act 1958 (Vic) ss 87–92.
-
Electricity Safety Act 1998 (Vic) s 84B.
-
Ibid s 86(1).
-
Ibid ss 86 (5)–(7). The third-party contractor is able to recover the costs of undertaking the works from the owner or occupier of land on which the tree is situated.
-
See, eg, Road Management Act 2004 (Vic); Rail Management Act 1996 (Vic) s 67A.
-
See, eg, General Local Law 2017 (East Gippsland Shire Council) cl 28; Local Law No 1 (Community Amenity) 2013 (City of Port Phillip) s 38.
-
Public Health and Wellbeing Act 2008 (Vic) ss 60, 62(2).
-
Municipal Association of Victoria, Public Health and Wellbeing Act 2008—Guidance Manual for Local Government Authorised Officers
(March 2010) 15–16. Offensive is defined as ‘noxious or injurious to personal comfort’. -
Public Health and Wellbeing Act 2008 (Vic) s 62(1).
-
Ibid s 62(4)(b).
-
Ibid s 62(4)(c).
-
Ibid s 66.
-
Ibid s 62(3)(b).
-
Ibid s 63.
-
Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).
-
Consultation 9 (Nillumbik Shire Council).
-
The Flora and Fauna Guarantee Amendment Bill 2018 was introduced into Parliament in May 2018 to amend this Act but did not pass the Parliament before the final scheduled sitting day of the 58th Parliament of Victoria: see Department of Environment, Land, Water and Planning (Vic), ‘Review of the Flora and Fauna Guarantee Act’, Engage Victoria (Web Page) <https://engage.vic.gov.au/review-flora-and-fauna-guarantee-act-1988>.
-
Flora and Fauna Guarantee Act 1988 (Vic) s 1.
-
Ibid ss 1, 47(2)(b)(c).
-
Ibid s 47(2)(b).
-
Ibid s 20(1).
-
Ibid s 20(2)(c).
-
Department of Environment, Land, Water and Planning (Vic), Review of the Flora and Fauna Guarantee Act 1988: Consultation, Submission and Response Summary (Report, 2017) 9 <https://engage.vic.gov.au/review-flora-and-fauna-guarantee-act-1988>; Department of Environment, Land, Water and Planning (Vic), ‘Protected Flora Controls’, Conserving Threatened Species (Web Page, 22 February 2019) <https://www.environment.vic.gov.au/conserving-threatened-species/flora-and-fauna-guarantee-act-1988/protected-flora-controls>.
-
See Conservation Trusts Act 1972 (Vic) s 3(1)(b). The Trust website says that it has secured over 100,000 hectares of private land by working with land owners and others. This includes land protected by more than 1400 voluntary conservation covenants and 41 Trust for Nature reserves. Trust for Nature Reserves (Web Page, 2017) <https://www.trustfornature.org.au/>.
-
Consultation 10 (Baw Baw Shire Council).
-
Trust for Nature, Conservation Covenants (Web Page) <https://www.trustfornature.org.au/land-services>.
-
Trust for Nature, What is a Conservation Covenant? (Web Page, 2017) <https://www.trustfornature.org.au/landowner-support>.
-
Trust for Nature Covenant Deed (2019), clause 10. Other exemptions can be permitted by the Trust via a Letter of Approval. A Letter of Approval is not registered on the title. If a new landowner wants the same conditions as the previous landowner, they will need to apply for a new Letter of Approval: Trust for Nature, What is a Conservation Covenant? (Web Page, 2017) <https://www.trustfornature.org.au/landowner-support>.
-
Victorian Conservation Trust Act 1972 (Vic) s 3A(3); Trust for Nature, What is a Conservation Covenant? (Web Page, (2017)
-
Information provided by the Trust for Nature to the Commission, March 2019.
-
See further Department of Environment, Land, Water and Planning (Vic), I Need to Secure an Offset (Web Page, 2019) <https://www.environment.vic.gov.au/native-vegetation/native-vegetation/offsets-for-the-removal-of-native-vegetation/i-need-to-secure-an-offset>.
-
Department of Environment, Land, Water and Planning (Vic), Native Vegetation Credit Register: Process to Establish a Native Vegetation Credit Site on Private Land (Register) <https://www.environment.vic.gov.au/native-vegetation/native-vegetation/offsets-for-the-removal-of-native-vegetation/i-want-to-establish-a-native-vegetation-credit-site>.
-
‘Relevant law’ means the Conservation, Forests and Lands Act 1987 (Vic), the Regulations, an Act specified in schedule 1, the Regulations under an Act specified in schedule 1, and in part 9 (except sections 89, 97 and 98) includes an Act specified in schedule 1A and Regulations under any such Act.
-
Conservation, Forests and Lands Act 1987 (Vic) s 69(1).
-
Ibid s 72.
-
Ibid s 72.
-
Ibid s 69(3).
-
Ibid s 70(1)(ma).
-
Ibid s 68; Department of Environment and Primary Industries (Vic), Land Protection Under the Biodiversity Conservation Strategy—Melbourne Strategic Assessment (Report, May 2014) 4.
-
Serer further Department of Environment, Land, Water and Planning (Vic), I Need to Secure an Offset (Web Page, 2019)
i-need-to-secure-an-offset>.
-
Department of Environment, Land, Water and Planning (Vic), Native Vegetation Credit Register: Process to Establish a Native Vegetation Credit Site on Private Land (Register) <https://www.environment.vic.gov.au/native-vegetation/native-vegetation/offsets-for-the-removal-of-native-vegetation/i-want-to-establish-a-native-vegetation-credit-site>.
-
Conservation, Forests and Lands Act 1987 (Vic) s 76(1).
-
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 1(a); see also Department of the Environment and Energy (Cth), EPBC Act—Frequently Asked Questions (Web Page, 2013) <http://www.environment.gov.au/epbc/publications/factsheet-epbc-act-frequently-asked-questions>.
-
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 11–12, 15B, 16, 18, 20, 21, 23, 24B, 24D; see also Department of the Environment (Cth), EPBC Act—Frequently Asked Questions (Web Page, 2013) <http://www.environment.gov.au/epbc/publications/factsheet-epbc-act-frequently-asked-questions>.
-
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 66; see also Department of the Environment and Energy (Cth), Controlled Actions—What Next? (Web Page) <http://www.environment.gov.au/heritage/management/referrals/controlled-actions>.
-
Landholders are defined to include an owner, lessee or occupier of the area of land: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 496A.
-
Department of Environment and Energy (Cth), Significant Impact Guidelines 1.1—Matters of National Significance (2013) <http://www.environment.gov.au/epbc/publications/significant-impact-guidelines-11-matters-national-environmental-significance>.
-
Whether an impact is significant will depend on a number of factors, including the quality of the environment affected and the intensity, duration, magnitude and geographic extent of the impacts: Department of the Environment and Energy (Cth), Significant Impact Guidelines 1.1 —Matters of National Environmental Significance (2013) 2 <http://www.environment.gov.au/epbc/publications/significant-impact-guidelines-11-matters-national-environmental-significance>.
-
Department of the Environment and Energy (Cth), Victorian Assessment Bilateral Agreement (27 October 2014) <http://www.environment.gov.au/protection/environment-assessments/bilateral-agreements/vic>; Victoria has not yet entered into an ‘approval bilateral’ under which the state approval would also constitute the authorisation for the purposes of the EPBC Act: Stephen Rowley, The Victorian Planning System—Practice, Problems and Prospects (The Federation Press, 2017) 238.
-
See, eg, Department of Environment, Land, Water and Planning (Vic), Environmental Assessment Bilateral Agreement (Web Page, 10 April 2019) <https://www.planning.vic.gov.au/environment-assessment/environmental-assessment-bilateral-agreement>.
-
Department of the Environment (Cth), EPBC Act—Frequently Asked Questions (Web Page, 2013) <http://www.environment.gov.au/epbc/publications/factsheet-epbc-act-frequently-asked-questions>.
-
Department of Environment and Energy (Cth), Significant Impact Guidelines 1.1— Matters of National Environmental Significance (2013) <http://www.environment.gov.au/epbc/publications/significant-impact-guidelines-11-matters-national-environmental-significance>.
-
Ibid.
-
Confirmed by VCAT: Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).
-
Confidential submission.
-
Survey Respondents 3, 19, 57, 83, 88, 110.
-
Survey Respondent 57.
-
Submission 30 (Law Institute of Victoria).
-
Submissions 23 (Name withheld), 27 (Name withheld), 29 (David Galwey).
-
Submissions 4 (Name withheld), 9 (Dr Karen Smith), 21 (Pointon Partners Lawyers), 25 (City of Boroondara), 33 (Annette Neville); Consultation 6 (Ben Kenyon).
-
Submissions 2 (Name withheld), 19 (Name withheld); Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).
-
Consultation 6 (Ben Kenyon).
-
Consultations 8 (City of Boroondara), 9 (Nillumbik Shire Council), 10 (Baw Baw Shire Council), 12 (City of Port Phillip).
-
Consultation 12 (City of Port Phillip).
-
Ibid.
-
Consultation 9 (Nillumbik Shire Council).
-
Consultation 10 (Baw Baw Shire Council).
-
Consultation 8 (City of Boroondara).
-
Ibid.
-
Ibid.
-
Consultation 14 (Robert Mineo).
-
Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).
-
Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal).
-
Ibid.
-
Submissions 5 (Name withheld), 13 (Mandy Collins), 19 (Name withheld).
-
Submission 30 (Law Institute of Victoria).
-
Consultation 9 (Nillumbik Shire Council).
-
See Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 67; Neighbourhood Disputes About Plants Act 2017 (Tas) s 14. The Commission’s research suggests that local laws may not be relied upon to manage vegetation on private land in New South Wales as they are in Victoria. The Commission notes that the application of the Tasmanian Act is in its infancy and so there is currently no case law about how RMPAT have interpreted these specific provisions. The Commission is uncertain, for example, about how RMPAT orders may intersect with local tree protection laws in Tasmania. This is discussed in further detail below.
-
See Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 43, 67; Neighbourhood Disputes About Plants Act 2017 (Tas)
s 14; Trees (Disputes Between Neighbours) Act 2006 (NSW) s 6(1), (2); cf Trees (Disputes Between Neighbours) Act 2006 (NSW) s 6(3).
-
The Environmental Planning and Assessment Act 1979 (NSW) was updated following the passing of the Environmental Planning and Assessment Amendment Act 2017 in November 2017. Most of the changes came into effect from 1 March 2018: Department of Planning and Environment (NSW), Guide to the Updated Environmental Planning and Assessment Act 1979 (Web Page) <https://www.planning.nsw.gov.au/Policy-and-Legislation/Environmental-Planning-and-Assessment-Act-updated/Guide-to-the-updated-Environmental-Planning-and-Assessment-Act-1979>.
-
See Department of Planning and Environment (NSW), The Planning System (Web Page, 26 May 2018) <https://www.planning.nsw.gov.au/Assess-and-Regulate/Development-Assessment/Your-guide-to-the-DA-process/Getting-started/The-planning-system>.
-
Ibid.
-
See State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017. This policy was implemented to ensure that the clearing of native vegetation in urban areas is regulated. For example, Part 3 enables individual councils to declare in their development control plan that the removal of certain species of vegetation or vegetation of a particular size requires a permit or approval to be issued by council.
-
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 3. For example, Part 4 does not enable people to clear native vegetation in urban areas that would exceed the biodiversity offsets scheme threshold under section 7.4 of the Biodiversity Conservation Act 2016 without approval by the Native Vegetation Panel.
-
See Department of Planning and Environment (NSW), Local Planning and Zoning (Web Page, 18 February 2019) <https://www.planning.nsw.gov.au/Plans-for-your-area/Local-Planning-and-Zoning>.
-
Standard Instrument (Local Environmental Plans) Order 2006.
-
See Department of Planning and Environment (NSW), The Planning System (Web Page, 26 May 2018) <https://www.planning.nsw.gov.au/Assess-and-Regulate/Development-Assessment/Your-guide-to-the-DA-process/Getting-started/The-planning-system>; See, eg, Manly Development Control Plan 2013, cl 3.3.2.1(b), 3.3.2.3.
-
This has substantially reproduced the effect of clauses 5.9 and 5.9AA, allowing councils to continue to regulate clearing of vegetation through their Development Control Plan (DCP): Office of Environment and Heritage (NSW), Local Government Information and Resources (Web Page, 23 November 2018) <https://www.environment.nsw.gov.au/biodiversity/localgovernment.htm>.
-
See further Office of Environment and Heritage (NSW), Local Government Information and Resources (Web Page, 23 November 2018) <https://www.environment.nsw.gov.au/biodiversity/localgovernment.htm>.
-
Office of Environment and Heritage (NSW), Native Vegetation (Web Page, 21 September 2018) <https://www.environment.nsw.gov.au/vegetation/>. The Local Land Services Act 2013 (NSW) repealed the Native Vegetation Act 2003 (NSW).
-
Trees (Disputes Between Neighbours) Act 2006 (NSW) s 6(1)(a).
-
Ibid s 6(3).
-
Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12(b); see, eg, Chapman v Harris [2012] NSWLEC 1183 [12] (a council had previously given consent to interfere with the tree); Todorovic v Mendham [2019] NSWLEC 1088 [13], in which the Court would have given ‘considerable weight to local government tree controls but the relevant council did not provide any submissions or appear at the tree dispute hearing’.
-
Trees (Disputes Between Neighbours) Act 2006 (NSW) s 13. Applicants are requirement to inform the Court in the application form whether a tree preservation order applies to the tree subject to the dispute, or whether the tree is of heritage value. The Court also requires the applicant to notify any relevant authority that would be entitled to appear in proceedings in relation to the tree by providing the relevant authority with a copy of the application form and any order sought at least 21 days prior to the first hearing: Trees (Disputes Between Neighbours) Act 2006 (NSW) s 8.
-
See, eg, Haindl v Daisch [2011] NSWLEC 1145; see also Andrew H Kelly (2013) ‘Tree Preservation Orders: A New Vision?’ in S Kajewski,
K Manley and K Hampson (eds), Proceedings of the 19th CIB World Building Congress: Construction and Society (Queensland University of Technology, 2013).
-
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 ‘Vegetation SEPP’. The Commission notes that clause 8(3) of the Vegetation SEPP provides that an authority is not required under this policy for the removal of vegetation that the council is satisfied is a risk to human life or property. The Commission notes that the legislative mechanisms used to protect vegetation on private land in New South Wales have recently changed and the implications of these changes for tree dispute hearings in the NSWLEC are not fully apparent at the time of writing this report.
-
Trees (Disputes Between Neighbours) Act 2006 (NSW) s 6(3); see also Land and Environment of Court New South Wales, Annotated Trees Act January 2013 (1 September 2016) 6; see further Ghazal v Vella (No. 2) [2011] NSWLEC 1340.
-
See, eg, Trees (Disputes Between Neighbours) Act 2006 (NSW) s 12(b); Consultation 11 (Land and Environment Court of New South Wales).
-
Consultation 11 (Land and Environment Court of New South Wales).
-
Haindl v Daisch [2011] NSWLEC 1145. Note that this is not determinative weight.
-
Department of State Development, Manufacturing, Infrastructure and Planning (Qld), State Planning Policy (Web Page, 2019)
<https://planning.dsdmip.qld.gov.au/planning/better-planning/state-planning/state-planning-policy-spp>.
-
Ibid.
-
Department of State Development, Manufacturing, Infrastructure and Planning (Qld), The Framework: The ‘What’ of Planning– State and Local Planning Instruments (Web Page, 2019) <https://planning.dsdmip.qld.gov.au/planning/our-planning-system/the-framework>.
-
See Department of State Development, Manufacturing, Infrastructure and Planning (Qld), Queensland’s New Planning System (Document, 2018) <https://planning.dsdmip.qld.gov.au/planning/our-planning-system>; see, eg, City of Gold Coast, ‘City Plan Version 6’, City Plan (Web Page) cl 9.4.14.1-3.
-
See, eg, Michelle Lensink, ‘Tree Protection Laws in Australian States and Territories’, Treenet (Web Page, 2017) <https://treenet.org/resources/tree-protection-laws-in-australian-states-and-territories/>.
-
Natural Assets Local Law 2003 (Brisbane City Council) pt 3, s 19. The Commission notes that a person may interfere with protected vegetation without a permit under the local law if the interference constitutes ‘removal of trees or parts of trees that are causing an immediate and significant threat to persons or property’ as demonstrated by adequate photographic evidence and an arborist’s report, if requested. Exemptions also apply to the removal of protected vegetation where the removal is essential for emergency access or emergency works or where the removal is immediately required in response to an accident or emergency; and pruning vegetation other than a significant landscape tree for the purpose of maintenance or hazard management, as long as no more than 20% of the live foliage volume of a tree or shrub is removed in any 12-month period and the part removed is distributed sufficiently evenly over the whole crown that the tree or shrub is not left lop-sided: Natural Assets Local Law 2003 (Brisbane City Council) pt 7, s 44 ‘Exempt activities’.
-
See Brisbane City Council, Types of Protected Vegetation (Web Page, 24 January 2019) <https://www.brisbane.qld.gov.au/laws-permits/laws-permits-residents/protected-vegetation/types-protected-vegetation>.
-
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 43, 67 (3). For example, the Act does not override laws such as the Queensland Heritage Act 1992 (Qld) which protects trees that have ‘particular cultural heritage significance’ or any other Act.
-
Consultation 15 (Queensland Civil and Administrative Tribunal).
-
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 67(1). See, eg, Beriley Pty Ltd v Novadeck Pty Ltd [2017] QCAT 29 [23].
-
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 67(2).
-
Deputy Premier and Attorney-General, Minister for Local Government and Special Minister of State (Qld), Neighbourhood Disputes Resolution Bill 2010: Results of Consultation Process (2010) 10 <https://cabinet.qld.gov.au/monthly.aspx?date=2010-Nov>.
-
Explanatory Notes, Neighbourhood Dispute Resolution Bill 2010 (Qld) cl 65. In the case of Inslay v Wilson [2018] QCAT 79, QCAT examined the relevant local Council’s website and could not identify a council process for resolving a dispute about a dangerous tree. It was therefore determined that an Order could be made under the QLD Act.
-
Michelle Lensink, ‘Tree Protection Laws in Australian States and Territories’, Treenet (Web Page, 2017) <https://treenet.org/resources/
tree-protection-laws-in-australian-states-and-territories/>; Tasmanian Planning Commission, State Planning Provisions (Web Page)
<https://www.planning.tas.gov.au/planning_our_future/state_planning_provisions>.
-
See, eg, Department of Justice (Tas), Tasmanian Planning Reform—An Overview (Fact Sheet 1, December 2017)
<https://www.planningreform.tas.gov.au/>. The Land Use Planning and Approvals Amendment (Tasmanian Planning Polices and Miscellaneous Amendments) Bill 2018 amends the Land Use Planning and Approvals Act 1993 (Tas) by establishing a mechanism to make and amend a suite of Tasmanian Planning Provisions to provide strategic direction on matters of state interest within Tasmania’s land use planning system. It was introduced into Parliament on 18 October 2018 and commenced on 17 December 2018: Tasmanian Government, Tasmanian Planning Reform—The Policies (Web Page, 17 December 2018) <https://www.planningreform.tas.gov.au/policies>. -
Tasmanian Planning Commission, State Planning Provision (Web Page) <https://www.planning.tas.gov.au/planning_our_future/state_planning_provisions>.
-
A significant tree means a tree that is listed and identified in the significant trees list in the relevant Local Provisions Schedule: Tasmanian Planning Scheme—State Planning Provisions, C6.1.1(b) ‘Local Historic Heritage Code’, C6.9 ‘Significant trees’ <https://planningreform.tas.gov.au/scheme>. The Local Provisions Schedule indicates how State Planning Policies will apply in each local municipal area.
-
Tasmanian Planning Scheme—State Planning Provisions, Table C6.4.1 ‘Exempt development’, C6.9.1 ‘Significant Trees’. Works requiring the removal or a listed tree or which may impact on the health, structural stability or appearance of a listed tree must demonstrate: (a) that there are no feasible alternatives which could be implemented to avoid impacting on the tree and the proposed methodology of the works incorporates measures to minimise and mitigate any damage to the tree; and (b) there are environmental, economic or safety reasons of greater value to the community than the cultural significance of the tree; or (c) the tree is determined to be dead or dying based on a written statement to that effect prepared by a suitably qualified person.
-
See, eg, Health and Environmental Services By-law 3 of 2011 (Kingborough Council). Part 7 – Trees on Private Property provides that a person must not cut down, top, lop, remove, ringbark, injure or wilfully destroy any tree which: (a) has a trunk circumference of greater than 80cm at 1.5m or more about ground level, unless authorised by a permit to do so; or (b) is listed on a register of significant trees applicable to the municipal area, unless authorised by a permit to do so; or (c) is protected under an agreement under Part 5 of the Land Use Planning and Approvals Act 1993 or covenant on the title: s 25(2).
-
Neighbourhood Disputes About Plants Act 2017 (Tas) s 23(5)(f).
-
Ibid s 27.
-
Ibid s 27.
-
Ibid s 30(g).
-
Tasmania, Parliamentary Debates, House of Assembly, 4 April 2017, 6 (Rene Hidding).
-
Planning and Environment Act 1987 (Vic) s 48(1).
-
Ibid s 48; see also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 45.
-
Planning and Environment Act 1987 (Vic) s 77.
-
Ibid ss 57, 82, 82B.
-
Remedies under the proposed Act are considered in Ch 9.
-
See, eg, Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019) cl 42.01-3, 42.02-3, 42.03-3, 43.01-1, 52.17-7. See also Department of Environment, Land, Water and Planning (Vic), Exemptions from Requiring a Planning Permit to Remove, Destroy or Lop Native Vegetation (Guidance Document, December 2017).
-
See, eg, Department of Environment, Land, Water and Planning (Vic), Exemptions from Requiring a Planning Permit to Remove, Destroy or Lop Native Vegetation (Guidance Document, December 2017)10. In comparison, a shorter timeframe for the regular permit process is less than 60 days. A shorter timeframe for the VicSmart permit process is less than 10 days.
-
Department of Sustainability and Environment, Cutting Red Tape In Planning—15 Recommendations For a Better Victorian Planning System (Report, August 2006) 16–17.
-
Consultation 1 (Aldo Taranto).
-
Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [2.3.3]
<www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
The Minister may authorise any other Minister or any public authority or municipal council to prepare an amendment to the Victoria Planning Provisions: Planning and Environment Act 1987 (Vic) s 4B(2).
-
Planning and Environment Act 1987 (Vic) s 4B(1); see also Department of Environment, Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [2.15] <www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
Planning and Environment Act 1987 (Vic) s 4B(3), (4). Unlike planning scheme amendments, the Minister or the body or person authorised to prepare the amendment can receive and consider submissions which seek a change to the terms of a state standard provision. The change may be made or the submissions may be referred to a panel for consideration. The panel can recommend that an amendment be adopted with changes to the terms of the VPP: see Department of Environment Land, Water and Planning (Vic), Using Victoria’s Planning System (Guide, 28 May 2015) [2.15.1] <www.planning.vic.gov.au/guide-home/using-victorias-planning-system>.
-
See Planning and Environment Act 1987 (Vic) ss 17(1)(a), 18, 19, 21.
-
Ibid s 20(2),(4).
-
Planning and Environment Act 1987 (Vic) s 4D.
-
Ibid s 4E.
-
Ibid s 4J.
-
See, eg, Planning and Environment Act 1987 (Vic) s 60.
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 52.17-7.
-
For example, the permit exemptions may not apply to the removal of a large tree protected on a lot size of 0.4 hectares or more under
cl 52.17.
-
See Department of Environment, Land, Water and Planning (Vic), Guidelines for the Removal, Destruction or Lopping of Native Vegetation (Practice Document, December 2017) 18–23. This document is incorporated into all planning schemes pursuant to s 6(2)(j) of the P&E Act: See Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 72.04 ‘Documents Incorporated in This Planning Scheme’.
-
See, eg, City of Stonnington, New Tree Protection Process (Web Page, 14 June 2018) <https://www.stonnington.vic.gov.au/Development/Planning/Planning-News/New-Tree-Protection-Process>; City of Whitehorse, Whitehorse Landscape Guidelines: How to Prepare A Landscape Plan (July 2012) 7; City of Boroondara, Landscape Plan Guidelines (Web Page, 2019) <https://www.boroondara.vic.gov.au/planning-building/planning-permit-applications/landscape-plan-guidelines>.
-
Consultation 15 (Queensland Civil and Administrative Tribunal).
-
Planning and Environment Act 1987 (Vic) s 94.These provisions mainly apply in situations where serious consequences flow from the amendment of a permit, for example an amendment to delete three levels from a proposed apartment building: see, eg, The Secretary to the Department of Health and Human Services v Melbourne CC [2017] VCAT 2139.
-
Neighbourhood Disputes (Dividing Fences and Trees) Act (Qld) s 42(4)(c).
-
Queensland, Parliamentary Debates, 2 August 2011, 3204 (Lucas).
-
Trees (Disputes Between Neighbours) Act 2006 (NSW) s 6(3).
-
Planning and Environment Act 1987 (Vic) s 94.
-
See, eg, The Secretary to the Department of Health and Human Services v Melbourne CC [2017] VCAT 2139.
-
See Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 151; Victorian Civil and Administrative Tribunal, Planning and Environment List Guidelines for Cancellation & Amendment of Permits (Sections 87 & 89 Planning and Environment Act 1987) (Practice Document, 20 July 2016) 4–5 <https://www.vcat.vic.gov.au/get-started/planning-and-environment/apply-to-cancel-or-amend-a-permit>.
-
See Planning and Environment Act 1987 (Vic) s 84B.
-
Planning and Environment Amendment (General) Act 2013 (Vic).
-
Department of Environment, Land, Water and Planning (Vic), Agreement Under Section 173 of the Planning and Environment Act 1987 (Vic) cl 10.1.1(c) <https://www.environment.vic.gov.au/__data/assets/word_doc/0025/329461/Final-S.173-Template-Offset-Agreement.docx+&cd=1&hl=en&ct=clnk&gl=au>.
-
See, eg, Tree Protection Local Law 2016 (City of Boroondara) s 11(1), (2).
-
Consultation 11 (Land and Environment Court of New South Wales).
-
Haindl v Daisch [2011] NSWLEC 1145.
-
[2011] NSWLEC 1145.
-
Consultation 16 (Heritage Victoria); Permit exemptions are generally issued by the Executive Director of Heritage Victoria: Heritage Act 2017 (Vic) s 92(3); see also section 102 for the granting of permits.
-
Heritage Victoria, Policy Guideline for Heritage Permit Exemptions: Matters to be Considered in Determining Permit Exemptions under Section 92 and 49 of the Heritage Act 2017 (Practice Document, 7 September 2017).
-
Consultation 16 (Heritage Victoria).
-
‘The Heritage Council or the Executive Director must not make a determination in relation to any works or activities if they consider the works or activities may harm the cultural heritage significance of the registered place or registered object.’: Heritage Act 2017 (Vic) s 92(5).
-
Heritage Council Victoria, The Victorian Heritage Register (2019) <https://heritagecouncil.vic.gov.au/heritage-protection/levels-of-protection/>.
-
Heritage Act 2017 (Vic) s 86(2). See also Building Act 1993 (Vic) s 102.
-
Although the National Trust Register is not legally binding, many of the trees in the National Trust Register are reflected in the Heritage Victoria Register: Consultation 16 (Heritage Victoria).
-
Consultation 16 (Heritage Victoria).
-
Aboriginal Heritage Act 2006 (Vic) s 29(c).
-
Ibid s 36.
-
Ibid s 12(1)(a).
-
Consultation 11 (Land and Environment Court of New South Wales). The Court acknowledged that some fence matters can be complicated and require different expertise. The Court can make orders that require parties to obtain further evidence where it is needed.
-
See, eg, Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
-
Neighbourhood Disputes About Plants 2017 (Tas).
-
Submissions 2 (Name withheld), 27 (Name withheld).
-
Submissions 6 (Name withheld), 7 (Ben Kenyon), 9 (Dr Karen Smith), 23 (Name withheld), 21 (Pointon Partners Lawyers); Consultations
8 (City of Boroondara), 10 (Baw Baw Shire Council), 14 (Robert Mineo).
-
Consultation 10 (Baw Baw Shire Council).
-
Ibid.
-
Consultation 14 (Robert Mineo).
-
See, eg, Sultana v Micallef [2012] NSWLEC 1078.
-
[2014] QCAT 68.
-
Sowden v Winzar [2014] QCAT 68, [10].
-
Catchment and Land Protection Act 1994 (Vic) ss 58, 58A. This exemption does not apply to Australian Dodder (Cuscuta australis).
-
Department of Environment, Land, Water and Planning (Vic), Victoria Planning Provisions (11 April 2019), cl 42.01-3, 42.02-3, 42.03-3.
-
These trees must have a trunk diameter of less than 20 centimetres at a height of 1.3 metres above ground level.
-
Ibid, cl 52.17-7.
-
Supplementary Consultation 1 (Victorian Civil and Administrative Tribunal); see also Stephen Rowley, The Victorian Planning System: Practice, Problems and Prospects (The Federation Press, 2017) 238.
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