FINANCIAL INSTITUTIONS ENERGY INFRASTRUCTURE, MINING AND COMMODITIES TRANSPORT TECHNOLOGY AND INNOVATION PHARMACEUTICALS AND LIFE SCIENCES A Decade of Net Gain Legal perspective Alexandra Guild Senior Associate, Environment & Planning Norton Rose Australia 10 May 2012

Native Vegetation, 10 May Overview The Framework within the Victoria Planning Provisions The weight to be placed on the Framework Current/recurring issues with the Framework Emerging issues

Native Vegetation, 10 May The Framework within the Victoria Planning Provisions General decision making considerations Clause – Biodiversity, SPPF Clause 65 – Decision guidelines Section 60 of the Planning & Environment Act 1987 Permit triggers Clause – Native vegetation Clause – Native vegetation precinct plan Overlays, particularly ESO and VPO Specific decision making requirements Zones, overlays and particular provisions requiring consideration of native vegetation / flora and fauna / Framework

Native Vegetation, 10 May Clause Native vegetation management Objective To achieve a net gain in the extent and quality of native vegetation. Strategies Apply the three step process as set out by Victoria’s Native Vegetation Management – a Framework for Action. These are: Step 1: As a priority, avoid adverse impacts on native vegetation, particularly through clearance. If the removal of native vegetation can not be avoided: Step 2: Minimise impacts through appropriate consideration in the planning process and expert input to project design or management; and Step 3: Identify appropriate offset options. Policy guidelines Planning must consider as relevant: - Victoria’s Native Vegetation Management – A Framework for Action (Department of Natural Resources and Environment, 2002).

Native Vegetation, 10 May General decision making considerations Clause 65 The extent and character of native vegetation and the likelihood of its destruction. Whether native vegetation is to be or can be protected, planted or allowed to regenerate. Whether, in relation to subdivision plans, native vegetation can be protected through subdivision and siting of open space areas. Planning & Environment Act 1987, section 60 Any significant effects which the use or development may have on the environment.

Native Vegetation, 10 May Permit requirements Clause – Native vegetation A permit is required to remove, destroy or lop native vegetation, including dead native vegetation. Does not apply where a Native Vegetation Precinct Plan (NVPP) applies. Clause – Native vegetation precinct plans A permit is required to remove, destroy or lop native vegetation, including dead native vegetation, unless the NVPP allows it, in which case no permit is required subject to meeting conditions in the NVPP. Both clauses Must consider Framework Numerous exemptions Overlays

Native Vegetation, 10 May Balancing the Framework SPPF, clause The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development. Cases Lorne Country Club v Surfcoast SC & Ors [2004] VCAT 260 Villawood Properties v Greater Bendigo CC (Red Dot) [2005] VCAT 2703 Hamilton & Smith v Nillumbik SC (Red Dot) [2006] VCAT 18 Reeve v Hume CC & Ors (Red Dot) [2009] VCAT 65 McKerrow v Hume CC [2011] VCAT 1030

Native Vegetation, 10 May Balancing the Framework continued The relevant test is that of net community benefit The Framework means that native vegetation considerations are important The Framework is one of many decision making considerations and does not have special weight Where there is vegetation of Very High Conservation Significance and no special pro-development planning considerations, greater weight will be given to the Framework (eg McKerrow) Where there are special pro-development planning considerations, the policy of the Framework may be subordinated to these considerations, even if there is vegetation of Very High Conservation Significance (eg Lorne Country Club) Zoning of land for an urban purpose is not enough on its own to justify removal of Very High Conservation Significance vegetation (eg Reeve) There is usually room for argument!

Native Vegetation, 10 May Current issues Efficiency Panel Report for Casey Planning Scheme Amendment C113 – Cranbourne North Service Business Precinct (23 December 2011) Supporting materials Panel Report for Hume Planning Scheme Amendment C120 – Craigieburn R2 Precinct Structure Plan (17 June 2010) Native vegetation policy where no permit required Villawood Grosvenor Lodge v Mornington Peninsula SC & Ors [2010] VCAT 1006 Planning permits that indirectly allow native vegetation removal Villawood Jones v Macedon Ranges SC (Red Dot) [2011] VCAT 1893

Native Vegetation, 10 May Emerging issues Securing offsets Planning & Environment Act 1987, section 173 agreements Conservation Forests & Land Act 1987, section 69 agreements Important differences BushBroker / Native Vegetation Credits Good idea Big money Commensurate security?

Native Vegetation, 10 May Conclusions The Framework is important but not pre-eminent There are many issues still to be resolved and new issues that are likely to come up Some areas for improvement for the Framework –Efficiency in relation to achievement of net gain –Supporting materials –Anomalies produced by the current system –Legal protection for native vegetation credits For developers – beware section 69 agreements

Native Vegetation, 10 May Disclaimer The purpose of this presentation is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Norton Rose Australia on the points of law discussed. No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any constituent part of Norton Rose Group (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this presentation. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of, as the case may be, Norton Rose LLP or Norton Rose Australia or Norton Rose Canada LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or of one of their respective affiliates.