Victoria implements new planning regime for native vegetation clearing

In brief

Following on from our report in June 2013, reforms to the Victorian planning scheme provisions controlling clearance of native vegetation have now been implemented, through Planning Scheme Amendment VC105. Special Counsel Meg Lee and Lawyer Katherine Kirby outline the new regime.

New incorporated guidelines

All Victorian planning schemes have been amended to incorporate the Permitted clearing of native vegetation – Biodiversity assessment guidelines (September 2013) (the Guidelines) produced by the Department of Environment and Primary Industries (replacing the previous incorporated document, Victoria's Native Vegetation – Framework for Action).¹

The Guidelines provide a framework for the consideration of impacts on biodiversity when assessing an application for a permit to remove, lop or destroy native vegetation. They include a new requirement that applications for planning permits to remove, destroy or lop native vegetation must be classified as one of three different risk-based pathways: low, moderate or high risk.

The risk-based pathway is determined on the basis of the extent and location of the clearing. Depending upon the risk-based pathway of the permit application, different application requirements and decision guidelines will apply.

The low risk-based pathway applications are intended to be more straightforward. No habitat hectare assessment report is required and pre-existing mapped site condition scores can be used for the purpose of assessment. As such, there is no requirement for an onsite assessment.

Changes to State Planning Policy Framework

The Environmental and Landscape Values (Clause 12) in the State Planning Policy Framework within the Victorian Planning Provisions (the VPP) has been amended to reflect the new 'no net loss' approach to native vegetation clearing (that is, the objective that the permitted clearing of native vegetation has 'a neutral impact on biodiversity'²), rather than the 'net gain' approach that is governed native vegetation clearance in recent years.

Additionally, Clause 12 has been amended to list the new Guidelines as an incorporated document. The strategies outlined in clause 12 have also been simplified, to focus on the protection of biodiversity and the management of native vegetation (rather than having separate strategies in place for the protection of habitat, preparation of biodiversity strategies and native vegetation management).

Amendments to particular provisions – Clauses 52.16 and 52.17

The rules governing the removal of native vegetation in Victoria continue to be set out in the amended versions of clauses 52.16 (Native Vegetation Precinct Plan) and 52.17 (Native Vegetation) of the VPP.

Both clauses have been amended to reflect the 'no net loss' approach and to refocus the objectives to minimise biodiversity impacts and preserve native vegetation with higher biodiversity values. Whereas the previous provisions had the purpose of achieving objectives to first 'avoid' and then 'minimise' the removal of native vegetation, the revised provisions include objects to 'avoid the removal of native vegetation that makes a significant contribution to Victoria's biodiversity' and then to 'minimise the impacts on Victoria's biodiversity from the removal of native vegetation'.³

The revised clauses 52.16 and 52.17 also implement the new risk-based assessment pathways as set out in the Guidelines. This appears to be intended to reduce the costs associated with preparing applications.⁴ The clauses (together with the Guidelines) set out the application requirements and decision guidelines for the removal, destruction or lopping of native vegetation for each risk-based pathway.

There is a streamlined approach for applications under the low risk-based pathway, and additional application requirements and considerations for decision makers in relation to applications made under the moderate and high risk-based pathways.

Clauses 52.16 and 52.17 of the VPP also now include specific considerations in relation to offsets, including the location of the native vegetation to be removed, the condition and extent of native vegetation to be removed, the strategic biodiversity score of the native vegetation to be removed, whether the native vegetation to be removed is important habitat for rare or threatened species, and the proportional impact of the removal of those species' habitat. This is likely to ensure that offsets are directed towards locations of higher importance for biodiversity.⁵

Changes to referral provisions

Previously, the Secretary to the Department of Environment and Primary Industry (DEPI) was a determining referral authority for certain native vegetation applications, meaning the Secretary had the power to require that a planning permit be refused or to have conditions attached to any permit granted. An amendment to Clause 66.02-2 now means that the Secretary only has the power of a recommending referral authority. This means that the local council will receive the Secretary's comments as a recommendation only and is not obliged to act according to the Secretary's direction.

Applications that must be referred to the Secretary (as a recommended referral authority) are those to remove, destroy or lop native vegetation, if:

a. the area to be cleared is 0.5 hectares or more (regardless of the biodiversity value of the vegetation);
b. it falls within the high risk-based pathway;
c. a property vegetation plan applies to the site; or
d. on Crown land which is occupied or managed by the local council.⁶

Items (a) and (b) are a change to the previous approach, and are likely to improve clarity concerning which applications need to be referred. Item (a) is more onerous than the previous approach, which differentiated on the basis of the area to be cleared and the Ecological Vegetation Class. Item (b) requires consideration of the extent and location of the vegetation to be removed, which is similar in concept to the previous approach, although less onerous. In all, it is difficult to estimate at this stage whether the amendments will significantly impact the number of applications that are referred to the Secretary.

New guidance documents

DEPI has released a variety of documents to assist permit applicants, including kits and fact sheets. There are different kits/factsheets relevant to applications for the three risk-based pathways.

A new online map-based tool, known as the Native Vegetation Information Management System (NVIM), is now available to assist applicants to determine the relevant risk-based assessment pathway for their permit application. Users can download a 'biodiversity assessment report' from NVIM that can be submitted as part of the planning permit application. For applications that fall within the low risk-based pathway, NVIM can also be used to determine the offset requirements.

DEPI has also released a Biodiversity assessment handbook to assist local councils and other authorities with the assessment of the biodiversity impacts of applications. The handbook is a work-in-progress and currently only contains assistance for the low risk-based pathway. It does not currently contain any guidelines for assessment for applications in the moderate and high risk-based pathways, however, it indicates that sections dealing with these pathways will be available in the future. The handbook contains useful information for applicants and authorities, including application checklists and standard permit conditions.

What next?

Once applicants, consultants and councils become familiar with the new processes and tools, native vegetation removal permits are likely to be easier and cheaper, particularly where the low risk-based pathway is applicable. The recent enhancement to DEPI's Bushbroker scheme to facilitate matching and trading of offsets through external accredited organisations is also likely to improve the ease of access to, and appropriateness of, offsets required to be provided by project proponents. While the reforms initially received criticism from environmental groups concerned that they reduce environmental protection, the focus of the new approach on biodiversity-wide impacts and risk-based pathways appears to strike a more pragmatic balance between 'green tape' and sustainable development.