Exemptions from requiring a planning permit to remove, destroy or lop native vegetation Guidance December 2017 © The State of Victoria Department of Environment, Land, Water and Planning 2017 This work is licensed under a Creative Commons Attribution 4.0 International licence. You are free to re-use the work under that licence, on the condition that you credit the State of Victoria as author. The licence does not apply to any images, photographs or branding, including the Victorian Coat of Arms, the Victorian Government logo and the Department of Environment, Land, Water and Planning (DELWP) logo. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/ ISBN 978-1-76047-788-2 (pdf) Cover image: Grassy Woodland, Northwest Victoria, DELWP (Penny Croucamp) Disclaimer This publication may be of assistance to you but the State of Victoria and its employees do not guarantee that the publication is without flaw of any kind or is wholly appropriate for your particular purposes and therefore disclaims all liability for any error, loss or other consequence which may arise from you relying on any information in this publication. Accessibility If you would like to receive this publication in an alternative format, please telephone the DELWP Customer Service Centre on 136186, email [email protected], or via the National Relay Service on 133 677 www.relayservice.com.au. This document is also available on the internet at www.delwp.vic.gov.au. Contents 1 Introduction ............................................................................................................................................ 3 1.1 Purpose ................................................................................................................................ 3 1.2 Scope .................................................................................................................................... 3 1.3 General purpose of exemptions ........................................................................................ 4 1.4 Best practice when relying on exemptions ...................................................................... 4 1.5 Minimising removing native vegetation when relying on exemptions .......................... 5 1.6 Common terms .................................................................................................................... 6 2 Exemptions guidance ........................................................................................................................... 8 2.1 Conservation work .............................................................................................................. 8 2.2 Crown land ........................................................................................................................... 9 2.3 Dead vegetation ................................................................................................................... 9 2.4 Emergency works ................................................................................................................ 9 2.5 Existing buildings.............................................................................................................. 10 2.6 Existing buildings and works in the Farming Zone and Rural Activity Zone ............. 11 2.7 Fences ................................................................................................................................ 11 2.8 Fire protection ................................................................................................................... 13 2.9 Geothermal energy exploration and extraction ............................................................. 14 2.10 Grasses .............................................................................................................................. 15 2.11 Grazing ............................................................................................................................... 15 2.12 Greenhouse gas sequestration (including exploration)................................................ 15 2.13 Harvesting for timber production – naturally established native vegetation ............. 16 2.14 Land management and directions notices ..................................................................... 16 2.15 Land use conditions.......................................................................................................... 16 2.16 Lopping and pruning for maintenance............................................................................ 17 2.17 Mineral exploration and extraction .................................................................................. 17 2.18 New buildings and works in the Farming Zone and Rural Activity Zone .................... 17 2.19 New dwellings in the Farming Zone and Rural Activity Zone ....................................... 18 2.20 Personal use ...................................................................................................................... 18 2.21 Pest animal burrows ......................................................................................................... 19 2.22 Planted vegetation............................................................................................................. 20 2.23 Railways ............................................................................................................................. 20 2.24 Regrowth ............................................................................................................................ 21 2.25 Road safety ........................................................................................................................ 22 2.26 Site area .............................................................................................................................. 22 2.27 Stone exploration .............................................................................................................. 22 Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 1 2.28 Stone extraction ................................................................................................................ 23 2.29 Stock movements on roads ............................................................................................. 23 2.30 Surveying ........................................................................................................................... 23 2.31 Traditional Owners ............................................................................................................ 24 2.32 Utility installations............................................................................................................. 24 2.33 Vehicle access from public roads ................................................................................... 25 2.34 Weeds ................................................................................................................................. 26 2 Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 1 Introduction 1.1 Purpose This document provides guidance for the interpretation and application of the exemptions from requiring a planning permit to remove, destroy or lop native vegetation in the Victoria’s planning system. This document is designed for use by: • responsible authorities • referral authorities • those relying on exemptions to remove, lop or destroy native vegetation. This document will be updated from time to time to ensure it provides effective guidance and reflects any changes in policy or law relating to native vegetation removal. 1.2 Scope All Victorian planning schemes contain state standard particular provisions that require a planning permit to remove, destroy or lop native vegetation. For the purposes of this document, the term ‘remove native vegetation’ includes to lop or destroy native vegetation. These planning scheme provisions also include exemptions from requiring a planning permit to remove native vegetation for certain uses, activities or development. This document provides guidance on the exemptions contained in: • Clause 52.16 (Native Vegetation Precinct Plan) • Clause 52.17 (Native Vegetation) This document does not address: • the exemptions from requiring a permit to remove vegetation in Clause 52.48 (Bushfire Protection) • specific sites and exclusions affected locally by Clause 52.03 (Specific Sites and Exclusions) • exemptions incorporated in the schedule to Clause 52.17 in planning schemes. More information about Clause 52.48 can be found in Advisory Note 39 – Amendment VC83 – Bushfire protection: Vegetation exemptions. Please seek information about exemptions in other parts of the planning scheme from your local council planning department. The guidance set out in this document is general in nature. It is not determinative, and may not account for all circumstances. This document does not form part of any planning scheme, and as a guidance document, does not alter the effect or application of the exemptions or the relevant planning scheme. The authority responsible for administering and enforcing the relevant planning scheme remains responsible for considering the application of the exemptions and their scope based on the specific circumstances of an individual matter. Some environmental overlays also include a requirement for a permit to remove vegetation, and have corresponding or similar exemptions to those in Clauses 52.16 and 52.17. Many of these exemptions have the same purpose and wording as those in Clause 52.16 and Clause 52.17. This document does not provide specific guidance on the exemptions within the overlays, however it may be useful to help understand corresponding exemptions in the following overlays: • Environmental Significance Overlay Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 3 • Vegetation Protection Overlay • Significant Landscape Overlay • Erosion Protection Overlay • Salinity Protection Overlay. 1.3 General purpose of exemptions The exemptions in Clauses 52.16 and 52.17 provide for the removal of native vegetation for a range of activities, uses and development without needing a planning permit. Exemptions ensure that the provisions that control the removal of native vegetation function well by: • allowing for the maintenance of areas where native vegetation has previously been removed • ensuring activities can occur for public safety • clarifying certain rights to use land that involves the removal of native vegetation • allowing access to an approval process outside the Victorian planning system that implements the objectives of Victoria’s policy for the removal of native vegetation • avoiding duplicative processes where the removal of native vegetation is approved under a separate Act or approval process • ensuring activities for land management and biodiversity improvements can occur • allowing removal of native vegetation where the costs of obtaining a planning permit would outweigh the cost to the environment of the native vegetation being removed. 1.4 Best practice when relying on exemptions Where a landholder, landowner or land manager removes native vegetation by relying on an exemption in either Clause 52.16 or 52.17, they are responsible for complying with the relevant planning scheme requirements. Steps that those relying on exemptions should undertake include: 1. Determine the purpose, location and extent of the proposed native vegetation removal. 2. Check what planning controls apply to the land, including zones and overlays or local provisions that may require a permit for the proposed use, activity or development. 3. If unsure, check with the local council planning department to confirm if an exemption applies to the proposed removal of native vegetation under all relevant planning controls. 4. Use this guidance document to help understand the exemption purpose and where it might apply. 5. Comply with any other approval processes referenced in the exemption (e.g. in the road safety exemption). 6. Consider any property law requirements that may apply. This may include the need to get consent from an adjacent landholder or land manager to remove native vegetation on their land, where the exempt activity is not on your property. 7. Comply with any conditions or requirements of the relevant exemption, such as: – only removing native vegetation to the minimum extent necessary (see section 1.5 for more information) – removing native vegetation within the exemption limit. 8. Keep records of native vegetation removal to substantiate that an exemption has been relied upon. 4 Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 9. Ensure compliance with any other regulatory requirements relating to the activity, use or development, such as: – Flora and Fauna Guarantee Act 1988 (Victoria) – Environment Protection and Biodiversity Conservation Act 1999 (Australia). 1.5 Minimising removing native vegetation when relying on exemptions To ensure that exemptions from requiring a permit to remove native vegetation have minimal environment impacts most exemptions explicitly require that the native vegetation removal is to the minimum extent necessary. A condition of relying on these exemptions to remove native vegetation is that the removal is minimised. To achieve this, consider the following: • exemptions must be relied upon sparingly. Consider using one exemption to meet multiple objectives. For example, an access track can also be a fuel break. • any limits for native vegetation removal specified in an exemption are maximum amount, and it is not expected that native vegetation should necessarily be removed up to the limit. The onus is on those relying on the exemption to only remove that vegetation necessary to undertake the activity, use or development. • only remove native vegetation for the purpose specified in the exemption. For example, native vegetation can only be removed along a fenceline for the construction or maintenance of that fence, within the limits specified in the exemption. Then within those limits only remove the native vegetation that will enable the actual maintenance or construction of the fence. Practical approaches to minimising removing native vegetation Before relying on an exemption, check if there are any ways to undertake the activity without removing any native vegetation. If native vegetation removal is still required, it must be minimised by considering: • locate activities, use or development in areas with no or little native vegetation • design the activity or development to minimise the impact footprint • build upward instead of outward (i.e. multi-storey rather than single storey) • place buildings close to the property entrance or close together to minimise the length of roads or pathways • place infrastructure underground by boring instead of open trenching, or place it underneath driveways or pathways • use a removal method that causes minimal impact on native vegetation. Generally using hand held tools rather than machinery or pesticides minimises impacts. Focus of minimising The term ‘to the minimum extent necessary’ relates to both the area of native vegetation removed, and minimising the impacts of the removal of native vegetation on biodiversity and the other values of the native vegetation. For example, a small area of native vegetation removal is proposed, but it is important habitat for a threatened species, or could cause erosion around a creek, so therefore this native vegetation removal should be minimised. When relying on exemptions focus minimising the impact of the removal of native vegetation on the following values. See http://maps.biodiversity.vic.gov.au/viewer/?viewer=NatureKit and https://nvim.delwp.vic.gov.au/ for the maps referenced below: • large, intact or high quality areas of native vegetation. • native vegetation that has higher condition and strategic biodiversity value scores. – a condition score above 0.6 indicates the native vegetation is very good condition (See the Native vegetation condition map) Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 5 – a strategic biodiversity value score above 0.8 means the site is very important for Victoria’s biodiversity from a statewide perspective (See the Strategic biodiversity values map) • large or hollow-bearing native trees, including areas within 15 metres of the tree trunk. Large trees with hollows usually have more biodiversity value than smaller trees without hollows. • highly localised habitats for rare and threatened species, and important habitat for dispersed rare or threatened species, according to the Habitat importance maps. In addition, minimise the removal of the native vegetation in the following locations: • 30 metres from a waterway • land with a slope greater than 20 per cent • where salinity or erosion risk have been identified • where the local council has identified important landscape values, such as areas providing visual amenity • where Aboriginal cultural values have been identified. There may be requirements under the Aboriginal Cultural Heritage Act 2006 that prevent or control the removal of native vegetation. 1.6 Common terms This section describes terms commonly used in many exemptions. Where a term has been defined below, it will not be defined in the specific exemption guidance later in this document. See also Clauses 72 to 75 of your planning schemes for defined General terms and Land use terms. Term Definition Agricultural Defined in Clause 72 of all planning schemes as: production Any form of primary production of renewable commodities. It does not include Stone extraction, Mineral extraction, or timber production from native forest. Agriculture Defined in Clause 74 of all planning schemes as: Land used to: (a) propagate, cultivate or harvest plants, including cereals, flowers, fruit, seeds, trees, turf, and vegetables; (b) keep, breed, board, or train animals, including livestock, and birds; or (c) propagate, cultivate, rear, or harvest living resources of the sea or inland waters. Note that this includes timber production. Building Defined in section 3 of the Planning and Environment Act 1987 as: Including: (a) a structure and part of a building or a structure; and (b) fences, walls, out-buildings, service installations and other appurtenances of a building; and (c) a boat or a pontoon which is permanently moored or fixed to land. Contiguous land Contiguous refers to land adjoining or having a common boundary. Dwelling Defined in Clause 74 of all planning schemes as: A building used as a selfcontained residence which must include: (a) a kitchen sink; (b) food preparation facilities; (c) a bath or shower; and (d) a closet pan and wash basin. It includes out-buildings and works normal to a dwelling. Five-year period A five-year period is as any period of five consecutive years. For example, 2 June 1990 to 1 June 1995, or 15 September 2002 to 14 September 2007. 6 Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance Term Definition This concept appears in several exemptions to limit the amount of native vegetation that may be removed in any five-year period. Lot Defined in Clause 72 of all planning schemes as: A part (consisting of one or more pieces) of any land (except a road, a reserve, or common property) shown on a plan, which can be disposed of separately and includes a unit or accessory unit on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan. Maintenance Maintenance is routine and on-going, prevents asset deterioration, and conserves the state of the asset as near as possible to its original condition. Maintenance does not include an expansion of an asset’s footprint and should not involve the removal of large trees. Owner (including Defined in the Planning and Environment Act 1987 as: Ownership) (a) in relation to land which has been alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act), means the person who is registered or entitled to be registered as proprietor, or the persons who are registered or entitled to be registered as proprietors, of an estate in fee simple in the land; and (b) in relation to land which has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958 or land not under the operation of the Transfer of Land Act 1958, means the person who is the owner, or the persons who are the owners, of the fee or equity of redemption; and (c) in relation to Crown land reserved under the Crown Land (Reserves) Act 1978 and managed or controlled by a committee of management, means— (i) in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following— a. the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land; b. the Minister administering the Crown Land (Reserves) Act 1978; (ii) in any other case, the Minister administering the Crown Land (Reserves) Act 1978; and (d) in relation to any other Crown land, means— (i) in Part 3, if the land is agreement land within the meaning of the Traditional Owner Settlement Act 2010, each of the following— a. the traditional owner group entity within the meaning of Traditional Owner Settlement Act 2010 for the land; b. the Minister or public authority that manages or controls the land; (ii) in any other case, the Minister or public authority that manages or controls the land. Outermost point The outermost point is the edge of a building and includes anything attached to the building, including eaves, verandas, pergolas, awnings and the like. Public authority Defined in section 3 of the Planning and Environment Act 1987 as: A body established for a public purpose by or under any Act but does not include a municipal council. Roadside Defined in section 3 of the Road Management Act 2004 as: Any land (estate, interest, easement, servitude, privilege or right) that is within the boundaries of a road (other than the shoulders of the road) which is not a roadway or a pathway and includes the land on which any vehicle crossing or pathway which connects from a roadway or pathway on a road to other land has been constructed. Any nature strip, forest, bushland, grassland or landscaped area within the road reserve can be considered to be roadside. Secretary to The Secretary to DELWP as constituted under Part 2 of the Conservation, Forests and Lands Act DELWP 1987 is a body corporate. DELWP staff can be delegated to act as the Secretary to DELWP. Trunk diameter Trunk diameter means the diameter of the main trunk of a tree, measured over bark at 1.3 metres above ground level. In the case of multi-trunked trees, the diameter of the largest trunk is Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance 7 Term Definition measured. Use Defined in section 3 of the Planning and Environment Act 1987 as: In relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed. Works Defined in section 3 of the Planning and Environment Act 1987 as: Includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil. 2 Exemptions guidance This section includes specific information about the interpretation, purpose and application of each exemption in Clause 52.17. It does not explain and define all wording in every exemption. Not all the Clause 52.17 exemptions are included in Clause 52.16. Refer to the Clause 52.16-8 for the full list of exemptions included in Clause 52.16. Some Clause 52.16 exemptions have different purposes, wording and application to the corresponding exemption in Clause 52.17 (e.g. Regrowth). These differences are explained for each relevant exemption. 2.1 Conservation work  Native vegetation that is to be removed, destroyed or lopped to the minimum extent necessary to enable the carrying out of conservation work: – which provides an overall improvement for biodiversity; and – with written agreement of the Secretary to the Department of Environment, Land, Water and Planning (as constituted under Part 2 of the Conservation, Forests and Lands Act 1987). The purpose of this exemption is to not require a permit to remove native vegetation where the removal is required to do work that will clearly improve outcomes for biodiversity. Written agreement from the Secretary to DELWP is required in order rely on this exemption to remove native vegetation. The Secretary to DELWP will provide written agreement based on the following criteria: 1. The primary purpose of the work is for biodiversity conservation. 2. Steps are taken to avoid and minimise impacts on native vegetation when undertaking the work. 3. A comparison assessment shows that the losses to biodiversity due to the removal of native vegetation are outweighed by the expected improvements to biodiversity due to the work. The assessment should consider impacts on the values of native vegetation, and the information used to measure these values, described in Section 3 of the Guidelines for the removal, destruction or lopping of native vegetation. The assessment should include: a. An estimate of the losses to biodiversity due to the removal of native vegetation b. An estimate of the improvements to biodiversity due to the work, including any expected improvement to: i. native vegetation condition and extent ii. outcomes for rare or threatened species iii. ecosystem function, and the improvements that will flow from this to biodiversity. 4. Monitoring will be undertaken to ensure the objectives of the conservation work are being achieved. 8 Exemptions from requiring a planning permit to remove, destroy or lop native vegetation – Guidance