Gray v Minister for Energy, Environment and Climate Change
[2019] VSC 382
•12 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S CI 2019 01480
| JAMES GRAY | Applicant |
| and | |
| MINISTER FOR ENERGY, ENVIRONMENT AND CLIMATE CHANGE AND ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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JUDGE: | OSBORN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 May 2019 |
DATE OF JUDGMENT: | 12 June 2019 |
CASE MAY BE CITED AS: | Gray v Minister for Energy, Environment and Climate Change |
MEDIUM NEUTRAL CITATION: | [2019] VSC 382 |
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TOWN PLANNING – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Tribunal decision to refuse permits required with respect to proposed dwelling and proposed works – Authority of Departmental Officer to object to grant of permit – Authority to institute application for review of local Council’s decision – Tribunal finding as to access – Whether access track a public highway – Whether Tribunal’s conclusions as to access track correct – Whether Tribunal’s reasoning with respect to bushfire risk, removal of native vegetation and impact on waterways open – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gray in person | Self-represented |
| For the First Respondent | Mr R Appudurai | Victorian Government Solicitor’s Office |
| For the Fourth Respondent | Ms N Blok | In house, Country Fire Authority |
HIS HONOUR:
Mr Gray is a solicitor whose wife owns a bush block of land at Myers Creek, north of Healesville. He has made three successive applications for planning permits to enable the land to be used and developed as a dwelling.
On each occasion, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) has directed that no permits issue. He now seeks leave to appeal[1] against the third such decision made on 6 March 2019 by Deputy President Gibson AM and Member Harty.
[1]Pursuant to Victorian Civil and Administrative Tribunal Act 1998 s 148.
The proposal required 10 separate permissions under the planning scheme.
Permit requirements Clauses 35.06-1 to use land for a dwelling in RCZ1[2]
[2]Rural Conservation Zone 1.
Clause 35.06-5 to construct a building or construct or carry out works for a dwelling in RCZ1
Clause 42.01-2 to construct a building or construct or carry out works for a dwelling in ESO1[3]
Clause 42.01-2 to remove, destroy or lop vegetation in ESO1
Clause 44.01-2 to construct a building or construct or carry out works for a dwelling in EMO[4]
Clause 44.01-3 to remove, destroy or lop vegetation in EMO
Clause 44.06-2 to construct a building or construct or carry out works for a dwelling in BMO[5]
Clause 51.03-3 to construct a building or construct or carry out works for a dwelling
Clause 51.03-3 to remove, destroy or lop vegetation
Clause 52.17-1 to remove, destroy or lop native vegetation[6]
[3]Environmental Significance Overlay 1.
[4]Environmental Management Overlay.
[5]Bushfire Management Overlay.
[6]Department of Environment, Land, Water and Planning v Yarra Ranges SC (Red Dot) [2019] VCAT 323 (‘Reasons’) 4.
The Tribunal was required to satisfy itself that each permit was appropriate and that the proposal as a whole was acceptable.[7]
[7]Boroondara City Council v 1045 Burke Road Pty Ltd (2015) 49 VR 535.
The Tribunal identified key evidentiary issues relating to:
·the dwelling — bushfire risk and environmental impact;
·the access track — legal status and condition of track; and
·uncertainty about plans for the siting of the dwelling, effluent disposal fields and internal driveway.
The fundamental difficulties confronting Mr Gray arose from the constraints of the appeal site.
The site is a vacant parcel of land that is generally rectangular in shape, heavily vegetated with an area of approximately 3.6 hectares and located to the west of Myers Creek Road approximately 6 kilometres north of Healesville. It has no direct frontage to Myers Creek Road and hence is landlocked.
The site is located at the base of the Myers Creek valley with heavily vegetated, steep slopes rising in all directions. Myers Creek, which separates the site from Myers Creek Road, flows along the site’s eastern boundary with a tributary of the creek flowing west to east into and bisecting the south-west corner of the site. A contour plan of the site and surrounding area is included in Appendix A.[8]
The site is surrounded further afield by the Yarra Ranges National Park to the east and the Toolangi State Forest to the north. Myers Creek Road runs through dense forested areas for up to 4 kilometres in both north and south directions before reaching more open, lower bushfire prone areas.
Access to the site is via an informal track, 3-4 metres wide, which runs approximately 400 metres from Myers Creek Road along land abutting Myers Creek described as Crown Allotment 2005 Parish of Tarrawarra[9] to a partially cleared vehicle turn around area near the south-east corner of the site. In 2017, the permit applicant obtained a licence from DELWP to gain access over the track (‘2017 Licence’). However, DELWP advised us that this licence would be cancelled due to unauthorised works to the track.
The proposed location of the dwelling in the south-west corner of the site is near a small existing dam that is fed by the tributary with some excavated and benched areas. The location is densely vegetated with native canopy trees that create a healthy and thick canopy and understorey, even though the site was significantly affected in the 2009 Black Saturday fires. The vegetation is now in an advanced state of regeneration.
The topography of this part of the site is very steep, with only a small flat area adjacent to the dam. The remainder of the site slopes steeply upwards in a northerly and southerly direction from the creek line.
The adjoining property to the north, west and south is a 61.1 hectare property, which also appears to be vacant land and is densely vegetated. Further to the north is a 54.9 hectare parcel of land on two titles. This parcel is also densely vegetated in parts, although it has some cleared pasture and a dwelling.
The allotments on the eastern side of Myers Creek Road vary in size and are predominantly used for rural residential purposes. The land is a mixture of vegetated areas and cleared patches. The surrounding area is substantially vegetated with the exception of a few properties to the immediate north and east.[10]
[8]It is unnecessary to append this contour plan for the purposes of this judgment.
[9]Crown folio Volume 11773 Folio 516.
[10]Reasons [8]–[15].
Ultimately, the Tribunal concluded that no permit should be granted in respect of any of the development permissions required under the planning scheme. In addition, the Tribunal found that the grant of a permit for the proposed use for a dwelling was prohibited.[11]
[11]Ibid [226].
Mr Gray’s proposed grounds of appeal go to:
(a) the authority of the officers of the Department of Environment, Land, Water and Planning (‘the Department’)[12] to first object to the grant of a permit and then review the decision of the local council as responsible authority (‘the Council’) to grant a permit;
[12]As it then was.
(b) the status of the access track over which Mr Gray seeks to obtain permanent access to the proposed dwelling;
(c) the alleged incompatibility of the proposal with native vegetation controls;
(d) whether the Tribunal’s decision with respect to the requirements of the Bushfire Management Overlay was open; and
(e) whether the Tribunal erred in considering works other than buildings when considering environmental impacts upon waterways on and adjacent to the site.
The authority of the Department
The first proposed ground of appeal (paragraph [10] of the proposed notice of appeal) is:
VCAT erred in law in failing to consider or impliedly finding against the Appellant’s submission that the First Respondent’s objection to Yarra Ranges Council (‘Council’) and appeal [to] VCAT in relation to the Appellant’s permit application … was not a valid engagement of the authority of the State of Victoria as neither the objection nor the appeal were enacted by duly authorised officers of the First Respondent.
The first respondent named in this proceeding was initially described as the State of Victoria. This Court subsequently substituted the Minister for Energy, Environment and Climate Change as the true respondent.
The Department is recognised as an entity under the Planning and Environment Act 1987 (‘P&E Act’).[13]
[13]P&E Act s 3(1).
The owner of unreserved Crown land is also defined by the P&E Act to be the Minister or public authority that manages or controls the land.[14]
[14]Ibid.
The local Council as responsible authority for the grant of the relevant permit notified the Department of the permit application. In turn, an officer of the Department lodged an objection to it. A further objection was lodged by Melbourne Water.
The Council accepted both objections as valid.
The right to review the responsible authority’s decision to grant a permit depended upon the existence of a valid objection to permit.[15] Mr Gray submits that a valid objection was dependent upon the relevant officer of the Department being authorised to make the objection by an appropriate instrument of delegation from the Minister or the Secretary of the Department.
[15]Ibid s 82(1).
A like submission is made with respect to the application for review which was lodged by the Victorian Government Solicitor on behalf of the Department.
Mr Gray does not refer to any specific provision of the P&E Act nor cite any authority in support of his submissions.
The making of an objection and the institution of review proceedings before the Tribunal are not functions vested in either the Minister or the Secretary by the P&E Act. One may compare provisions such as s 20 of the P&E Act which vests specific powers in the Minister. The officers of the Department did not act as delegates of designated persons.
The day to day administration of the Department included the management of Crown land including the appeal site. Such administration would be totally unworkable if every task undertaken by officers of the Department required a written authorisation by the Minister or the Secretary.
The application for permit contemplated the use for access of Crown land administered by the Department. It also contemplated development presenting the risk of potential environmental impacts upon such land and other streamside land administered by the Department. The objection and review application were undertaken in the course of the management of the Crown land.
Mr Gray has not established an arguable basis for the contention that such steps could not be taken without a written instrument of delegation. There is no basis for suggesting they were other than regular. The letter of objection was signed by the Regional Manager Planning & Approvals Land and Built Environment, Port Phillip Region. On the face of it, he was simply doing his job.
Likewise the application for review was lodged by a Principal Solicitor with the Victorian Government Solicitor’s Office. There is no reason to suggest she was acting without instruction.
The first proposed ground has no real prospect of success.
The access track
The majority of Mr Gray’s proposed grounds of appeal go to the Tribunal’s rejection of proposed access arrangements to the appeal site. Mr Gray seeks to use an access track running along a streamside allotment for the purposes of such access.
A precondition to the grant of a permit for the use for dwelling upon the appeal site was satisfaction of the requirements of cl 35.06-2 of the Yarra Ranges Planning Scheme (‘the planning scheme’):
Access to the dwelling must be provided via an all-weather road with dimensions adequate to accommodate emergency vehicles.
In addition, the submissions of the Country Fire Authority and the evidence as a whole supported the conclusion that such access must be provided if the site was to be regarded as safe in terms of bushfire management.
Mr Gray put the case with respect to the access track at three levels and it is convenient to address each level of the argument in principle before going to the proposed grounds of appeal.
First, Mr Gray submitted that members of the public have a general right of access to unreserved Crown land and hence he was entitled to use and maintain the access track. The evidence showed that the water frontage[16] allotment was unreserved Crown land. In turn, it may be accepted that the public had a general right of access to it. It does not follow however that Mr Gray had an ongoing right to maintain and use the track across it.
[16]Water frontage is defined by the Land Act 1958 s 3.
Secondly, Mr Gray submits that the evidence shows that the track constitutes a public highway and if this is the case then he has an ongoing right to use it.
The Tribunal rejected this submission after considering the definition of public highway contained in s 3(1)(d) the Local Government Act 1958. It recorded that the access track:
(a) was not declared to be a public highway under s 204(1) of such Act or under any other Act;
(b) had not become a public highway under s 24(2)(c) of the Subdivision Act 1988; and
(c) was not a public road under the Road Management Act 2004[17] unless it was an area of land ‘that is a highway for the purposes of the common law’.
[17]Applicable by reason of the Land Act 1958 s 3A.
Mr Gray relied on the principle that long, open, and unconcealed and uninterrupted public use of land as a roadway may give rise to an inference of dedication of a public highway. In the absence of evidence to rebut it, the inference will be drawn that the use was with the knowledge and acquiescence of the owner. In turn, Mr Gray adduced evidence of recurrent use of the access track by the public over many years.[18]
[18]Anderson v City of Stonnington (2017) 227 LGERA 176 (‘Anderson’).
The Tribunal accepted the submission of the Council and of the Department that the track was not a highway at common law having regard to three factors:
·a history of the grant of licences by the Crown over the track governing rights to use it;[19]
·the apparent purpose of the creation of the water frontage land comprised in the relevant Crown allotment being the provision of access to Myers Creek for recreational use and not the creation of a right to pass over the Crown land as such;
·the fact that evidence of use of the track by members of the public was consistent with recreational use and did not support an inference of dedication arising from such use.[20]
[19]Anderson (2017) 227 LGERA 176, 189-190 [49]-[52].
[20]Newington v Windeyer (1985) 3 NSWLR 555; Narracan Shire President v Leviston (1906) 3 CLR 846, 857, 859 (Griffiths CJ), 867–8 (Barton J), 872 (O’Connor J); Anderson (2017) 227 LGERA 176.
There was no error in this reasoning. There is an additional factor supporting the Tribunal’s conclusions. This is that the land was neither proclaimed nor reserved as a roadway in the ways contemplated by s 25(3)(c),(4), (5) and (6) of the Land Act 1958.
The Tribunal was referred to the decision of the Court of Appeal in Anderson[21] but it seems the Department did not place reliance upon the earlier decision of the Court of Appeal in Bass Coast Shire Council v King.[22]
[21](2017) 227 LGERA 176.
[22](1997) 2 VR 5 (‘Bass Coast’).
Anderson concerned land owned by a statutory corporation. Bass Coast concerned land owned by the Crown. In Australia the position of the Crown in respect of un‑alienated Crown land is to be contrasted with that of other landowners in respect of the dedication of highways.
In Miller v McKeon,[23] Griffith CJ (with whom Barton J agreed) stated of the position in New South Wales:
Reference was made during argument to a great number of cases dealing with the law relating to highways in England and the doctrines that were to be applied to them. There is certainly an identity in name between highways in England and highways in this country, but the similarity is to a great extent in name only, and when we come to the question of highways on their first dedication the similarity becomes even more shadowy. In England when a new highway is dedicated by a private owner to the public there is a change of effectual ownership. The soil ceases to belong effectually to the individual and becomes the property of the public. And it has been held that, when a private person dedicates a road to the public, the public must take it as it stands, with all its defects, but they need not take it unless they like. That was decided in Fisher v Prowse and seems to be settled law. Here in general a dedication is made by some action of the Government. There is now in force a provision that it must be made by proclamation, but it was formerly the practice to prove dedication of a highway by evidence of facts, such as the publication of an official map showing the road marked upon it, or the issue of a grant from the Crown describing land as being bounded by the road. In these cases there was no change of effectual ownership. In my opinion the doctrine of Fisher v Prowse is not applicable in its entirety. We must turn then to other considerations.
[23](1905) 3 CLR 50, 58-59 (citations in original).
In Narracan Shire President v Leviston,[24] the practice of proclamation of roads in Victoria was further considered by the High Court.[25]
[24](1906) 3 CLR 846.
[25]See also City of Keilor v O’Donohue (1971) 126 CLR 353, 369–71 (Windeyer J, Owen J agreeing).
In Bass Coast, Winneke P (Hayne and Charles JJA agreeing) said:[26]
I agree with Mr Uren that the common law principles relating to the dedication of public highways can only have limited relevance to the interpretation of those provisions of the Local Government Act which relate to the administration of the road system in Victoria. In order that counsels’ submissions can be adequately appreciated, it is desirable to have an understanding of the history of the development of Crown land in Victoria and the manner in which the Crown made provision for road access to the land so developed. Many of the provisions contained in div 2 of pt 9 of the 1989 Act (which themselves incorporate the powers contained in schs 10 and 11 of the Act) have a history extending back to the time when the colony of Victoria separated from the colony of New South Wales. As the evidence before the learned judge indicated, and as he found, the process of land development, and with it road administration, was carefully designed by the Parliament to proceed in an ordered fashion in contradistinction to the manner in which such development had occurred not only in England, but also in the colony of New South Wales itself. The aim of the legislation in Victoria was designed to ensure that the survey of land marked out for development preceded its selection and settlement. In its turn this process dictated that Crown lands reserved for roads were marked out and surveyed prior to settlement of the lands which they adjoined. As a consequence of the process it has become commonplace for the various Land Acts from 1862 to the present day to refer to land as being ‘reserved’ for roads. Of course, in the early days of the colony the vast majority of the land being alienated for settlement was Crown land (formerly called ‘wastelands belonging to the Crown’). Subject to reservation from sale for public purposes, most of the land was alienated by the Crown in the form of purchase grants rather than free grants, a practice which had been introduced by a change in policy of the English Government, influenced by Wakefield’s theories of the early 1830s: see Randwick Corporation v Rutledge[27] and City of Keilor v O’Donohue.[28] At the time of the separation of the colony of Victoria from New South Wales in 1851 these policies were in practice. The lands marked out for settlement were classified initially into ‘special lands’ and ‘country lands’. ‘Special lands’ were lands within a particular mileage radius of the City of Melbourne and other specified more closely settled parishes and townships.[29] The ‘country lands’ were required to be surveyed and divided into allotments of between 80 acres and 640 acres, with each allotment divided into two equal portions.[30] Accordingly there came into existence in the early years of the colony a large number of 640 acre allotments. It was the practice, to which later reference will be made, for the Crown to survey and reserve for road purposes the land adjoining the boundaries of these allotments.[31] There were accordingly many miles of reserved roads all of which remained Crown land. The legislation initially made provision for the adjoining land owners to erect fences across such road reserves with the permission of the local council or Board of Land and Works and/or, in appropriate circumstances for the closure and sale of such road reserves to the adjoining land owners.[32] This legislation promoted a widespread practice by local councils of permitting land owners of large holdings to fence in the road reserves abutting their properties. This practice was ultimately outlawed when the Parliament passed s 399 of the Local Government Act 1874, to which I shall refer hereafter.
The practices, which I have sought to describe, by which Crown lands were surveyed and reserved for roads prior to sale of adjoining land has had its influence on the provisions of the Local Government Acts and the Land Acts dealing with road administration in this State. Thus it has been and still is the practice in this State to refer to and define roads on Crown land as (or at least including) ‘land reserved or proclaimed as a road’.[33] In this sense the term ‘reserved’ means ‘reserved from sale’, as distinct from ‘reserved for subsequent resumption’.[34] Furthermore, the provisions of the local government legislation in this State, so far as they relate to road administration, have distinguished between the ownership of private roads and roads set out on Crown land. Although the local authority is invested with the care and management of all roads within its district, the legislature has, since the first Local Government Act 1874, been careful to state that the absolute property of roads reserved on Crown land remains with the Crown.[35] It has been said that these provisions have existed to rebut the common law presumption that the soil in the road ad medium filum viae accrues to the adjoining land owner.[36] However there has been little doubt that, in Victoria, there has been no room for that presumption having regard to the practice adopted by the Crown of ‘survey before settlement’.[37]
[26](1997) 2 VR 5, 15–16 (emphasis added) (citations in original).
[27](1959) 102 CLR 54, 71–3 (Windeyer J).
[28](1971) 126 CLR 353, 365 (Windeyer J).
[29]Sale of Crown Lands Act 1860 ss 12 and 13.
[30]Sale of Crown Lands Act 1860 ss 14 and 15; Land Act 1862 ss 13 and 14; Amending Land Act 1865 ss 9 and 10; Land Act 1869 ss 12 and 16ff.
[31]See Narracan Shire President v Leviston (1906) 3 CLR 846, 860-1 (Griffith CJ).
[32]Amending Land Act 1865 s 25; Land Act 1869 s 96.
[33]See Local Government Act 1989 s 3; Land Act 1958 s 399.
[34]See Cooper v Stuart (1889) 14 App Cas 286, 290 and City of Keilor v O’Donohue (1971) 126 CLR 353, 365‑6.
[35]Local Government Act 1989 s 202, which is the successor to Local Government Act 1874 s 370.
[36]See City of Keilor v O’Donohue (1971) 126 CLR 353, 372.
[37]See Garibaldi Co v Craven’s New Chum Co (1884) 10 VLR (L) 233.
In the present case, the access track has been neither reserved nor proclaimed as a road in accordance with the longstanding practice described by Winneke P. Such reservation or proclamation is the customary way in this State for the Crown to dedicate land as a public highway. Winneke P went on to say:
Mr Uren did not contest, as I understood him, the proposition that the Crown could dedicate a road by proclamation. Indeed the fact that such would amount to an act of dedication is clear from the provisions of s 25(3) and (4) of the Land Act itself. However it seems to me that the pegging out and surveying of roads by Crown surveyors and, then, marking them out on the official maps of the department is itself a reservation of Crown land for road purposes sufficient to amount to a dedication to the public. In Scott v The Shires of Eltham and Heidelberg,[38] a trespass case, Stawell CJ had directed the jury, in part, in the following terms at 100:
[38](1876) 2 VLR (L) 98.
The original plan or map is one of the public records of the colony … The instant the Government put that road on that map, that road was dedicated to the public. That is a dedication, and we want no more. A proclamation was put in, but that seems to me merely adding to that which was sufficient before.
The matter went to the Full Court, which held, at 101, that the jury ‘were properly directed as to the construction of the Crown grant’.
Similar views were expressed in the case of Rapley v Martin.[39]
[39][1865] 4 SCR (NSW) 173, 180–1.
Although, in my opinion, it has always been the law in this state that dedication of land by the Crown can be proved both by proclamation or reservation on Crown survey maps, the recent amendments to s 25 of the Land Act 1958 (Act 96 of 1994) would seem to put the matter beyond doubt. These amendments added subss (5) and (6) to s 25 in the manner following:
(5)A document describing Crown land as a road is evidence, and in the absence of evidence to the contrary, is proof that the land is a road within the meaning of this Act.
(6) Sub-section (5) applies to —
(a)a map or plan in the Central Plan Office … showing or delineating land as a road; or
(b)a copy of the Government Gazette containing a proclamation of land as a road; or
(c)a copy of the Government Gazette containing an instrument reserving or purporting to reserve land as a road.
After considering the facts of the case before him, his Honour observed:
As I have sought to indicate in this judgment, the practice in accordance with which Crown lands have been dedicated for public use in Victoria has its own peculiar history, which is dependent upon the Crown's dedication of its own land to the public as a right of way without there being any change in ownership of or title to the land set aside for the road. It has been this peculiarity which has set aside the dedication of roads on Crown land from the dedication of roads on private lands. Sir Samuel Griffith pointed to this distinction in Miller v McKeon,…
Sir Samuel was there talking about the practice of ‘Crown dedication’ in New South Wales. His remarks however are pertinent to demonstrate the distinction which has always existed between dedication by the Crown and dedication by private owners. In Victoria, for the reasons which I have previously referred to, dedication by the Crown has been and still is perfected by either ‘proclamation’ or ‘reservation’.[40]
[40]Emphasis added.
The absence of a reservation or proclamation in accordance with the usual practice adopted in this State for more than 100 years is itself evidence of the absence of the dedication by the Crown of the access track as a public highway which reinforces the correctness of the Tribunal’s decision in this regard.
The third way in which Mr Gray asserts a right to use the access track derives from the fact that he formerly held a licence for use together with a right to maintain the access track for the purpose of access to the land.
The Tribunal dealt with the licence issue as follows:
Agricultural Licence
In 1996 an Agricultural Licence under section 130 of the Land Act 1958 was issued to a previous owner of the subject land. The specified purpose of the licence was for grazing. The licensed land described was, in effect, the whole of the land now described as Crown Allotment 2005.[41] A condition of the licence was that:
[41]That is the whole of the water frontage allotment.
The Licensee … acknowledges that, pursuant to Section 401A of the Land Act 1958 any person may enter and remain on the licenced land for recreational purposes (except camping) and the Licensee must not do anything to suggest or convey to any person that he or she may not enter the licenced land for this purpose.
On 12 March 2013 an Agricultural Licence under section 130 of the Land Act 1958 was issued to James Donald Gray and Fiona Kay McAllister for all that land being:
Municipality of Yarra Ranges
Water frontage to Myers Creek being part of Crown Allotment 2005 abutting Lot 1 on TP387387
Parish of Tarrawarra
The license in effect only covered the portion of Crown Allotment 2005 immediately abutting the subject land. It did not cover the balance of Crown Allotment 2005 between the subject land and the intersection of the access track with Myers Creek Road. The specified purpose of the licence was for grazing. It was subject to the same conditions as the previous Agricultural Licence. The licence was renewed for a 5 year term from 1 October 2014 (expiring in 2019).
2017 Licence
On 18 September 2017, a further licence was issued under section 138 of the Land Act 1958 to Mr Gray and Ms McAllister, this time for that part of Crown Allotment 2005 abutting the subject land and extending to the intersection with Myers Creek Road. The specified purpose of the licence was for “access, maintenance and NVR” (native vegetation removal). The licence was subject to a number of special conditions, including:
1. Other than to maintain a space 4.5m wide and 4m high around the existing track, native vegetation on the Crown land must not be removed, lopped or destroyed without the prior written consent of the Department. Any proposed vegetation removal may require the submission of relevant ecological reports and relevant biodiversity offsets as part of any further approvals.
2. No structures or works, including earthworks and the laying of road base or similar must be undertaken on the Crown land without prior written consent of the Department. Any proposed works may require the submission of a survey plan and detailed engineering construction and stormwater management plans as part of any further approvals.
The commencement date of the licence was 1 July 2017 for an annual term. However, on 8 June 2018 DELWP wrote to Mr Gray regarding works he had undertaken on the access track the subject of the licence without the consent of the Department. These are works that Mr Gray acknowledged and detailed in his permit application to the council and in correspondence to DELWP. The Department requested Mr Gray to provide evidence of the legal basis on which he undertook these works to Crown land. On 1 November 2018, DELWP wrote to Mr Gray and Ms McAllister purporting to terminate the licence effective from 14 February 2019. The reasons for terminating the licence were said to relate to:
The grading and compacting of 130 tonnes (or 100 Tonnes) of crushed rock, filling holes, scraping of soil, installing drainage and the associated works undertaken by you to the Crown land, [which] were undertaken without the approval of the Department.
At the hearing, Mr Gray objected to production of this letter and said that he was going to appeal against the termination of the 2017 Licence. We ruled that the letter was relevant to the question of the status of access to the land and could be admitted. Any challenge to the validity of the termination of the licence and the substance of the reasons underlying it would need to be resolved elsewhere. For our purposes, we would accept the letter at face value as being a termination of the licence coming into effect on 14 February 2019 (a date that has now passed).[42]
[42]Reasons [59]–[64].
At the date the matter was decided by the Tribunal Mr Gray did not hold a licence entitling him to use the access track. The Tribunal was correct to treat this as dispositive of any case mounted upon the basis of asserted rights to a licence.
I turn then to the proposed grounds of appeal with respect to the access track. I will deal with them in what I take to be the most logical sequence rather than the sequence in which they are set out in the proposed notice.
Paragraph [12] of the proposed notice of appeal asserts:
VCAT erred in law in failing to conclude the Appellant and others had relevant access to the subject site for the purposes of the planning scheme, pursuant to the general law and/ or statute.
Paragraph [13] of the proposed notice of appeal states:
VCAT erred in law in concluding the road in Crown allotment 2005 did not comply with the provisions of Clause 35.06-2 Yarra Ranges Planning Scheme relating to access to the subject site.
For the reasons I have explained, the Tribunal was correct to conclude that Mr Gray had not established a right to access sufficient to satisfy cl 35.06-2.
Paragraph [15] of the proposed notice of appeal states:
VCAT erred in law in failing to consider the existence of John Wright’s house on the subject site in 1901.
The evidence showed that in 1901 a house was located upon the appeal site. At that time the appeal site formed part of a much larger allotment the subject of a Crown lease. Neither the actual form of access to the house nor the right pursuant to which it was obtained was satisfactorily established by the evidence. The evidence of a house upon a larger parcel of land the subject of a Crown lease did not establish the reservation of a road or the establishment of a permanent right of access over Crown land.
Paragraph [11] of the proposed notice of appeal states:
VCAT erred in law in failing to consider or impliedly finding against the Appellant’s submission the First Respondent was estopped from objecting to Council and estopped from appealing to VCAT on the basis the Appellant did not have access to the subject site by means of the road in the Crown allotment 2005, connecting Myers Creek Rd to the subject site, as the First Respondent had previously told the Appellant in writing it would provide him with a licence to access the subject property if Council granted him a planning permit to build a house on the subject site.
On 19 March 2009 an officer of the Department advised the Council that if a permit were issued in respect of an application for a dwelling house then being considered by the responsible authority, then the Department would issue a licence for access to the appeal site.
The letter stated in part:
It is noted that the subject land is landlocked following an earlier subdivision and that practical access is via the existing track on Crown land. To formalise the arrangement the Department is prepared to issue a licence to the applicant (Mr James Gray and Ms Fiona McAllister) for egress, ingress and regress on formal advice that a planning permit is issued by the Council.
This letter could not permanently estop the Minister or the Department from considering subsequent permit applications on the merits. It was a letter of intention written in response to a specific permit application.[43] It was also written before the catastrophic loss of life and property which occurred in the Black Saturday bushfires and the subsequent material tightening of planning scheme controls with respect to bushfire risk. The power to grant a licence under s 138(1) of the Land Act 1958 is discretionary and the Minister could not be estopped from the ongoing exercise of her discretion in the public interest.[44]
[43]The subject of consideration by the Tribunal in McAllister v Yarra Ranges Shire Council [2009] VCAT 946.
[44]Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208-211 (Gummow J) referring, 210, to Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1962) 1 QB 416.
The Minister and the Department were entitled (and on one view obliged) to consider the current application having regard to their understanding of the impact of the current permit proposal considered in the light of the current planning scheme provisions.
Further, the letter did not purport to authorise ongoing native vegetation removal, without which the access track could not satisfy the relevant requirements of the current planning scheme.
In addition the letter could not be taken to authorise ongoing use of the track without continuing compliance with licence conditions. In the circumstances with which the Tribunal was confronted the applicant had forfeited the continuation of a licence issued to him by reason of the breach of conditions.
Lastly, the Tribunal was not bound to regard an annual licence as satisfactory for the purposes of the requirements of the planning scheme in the circumstances which confronted it. It made clear that it was not persuaded that such a licence would be adequate.[45]
[45]Reasons [67], [68], [129].
Whilst this view might seem harsh to Mr Gray, the Tribunal was fundamentally concerned to prevent the creation of a death trap in the event of bushfire affecting the subject site.
Paragraph [14] of the proposed notice of appeal states:
VCAT erred in law in concluding a planning permit is required by the Appellant to use Crown allotment 2005 to use and develop the subject site.
If the access track was not a public highway, then the applicant required a permit to use the land upon which it was located for the purposes of access to a dwelling.[46]
[46]Pioneer Concrete (QLD) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.
The Department did not consent to such a permit being granted.
The Tribunal declined to dismiss the application as futile on this basis[47] and went on to decide the application on its merits. Nonetheless it is difficult to escape the conclusion that the proposal was fatally flawed without amendment.
[47]Reasons [87]–[94].
Native vegetation
Paragraph [16] of the proposed notice of appeal is that:
VCAT erred in law in failing to conclude that vegetation loss and offsets are comprehensively dealt with by the Permitted Clearing of Native Vegetation Biodiversity Assessment Guidelines 2013 [‘the 2013 guidelines’] which cover the field and incorporate all issues related to vegetation loss and offset.
The 2013 guidelines do not ‘cover the field’ because:
(a) The statutory framework required the Tribunal to have regard to other considerations;
(b) The provisions of the native vegetation control in clause 52.17-5 of the planning scheme and the 2013 guidelines themselves contemplate guidelines and not a code;
(c) The Tribunal ultimately relied on the particular control contained in the ESO and not the general native vegetation removal controls.
Both the provisions of ss 4, 60 and 84B of the P&E Act and the general guidelines governing decisions under the planning scheme[48] required the Tribunal to have regard to considerations other than the 2013 guidelines. The Tribunal was required to have regard to the objectives of planning in Victoria. These include s 4(1)(b):
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
[48]Planning scheme cl 65.
It was also required by s 60(1)(e) of the P&E Act to consider:
(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development;
Under cl 65 of the planning scheme the Tribunal was also required to consider the State Planning Policy Framework including cl 12.01–1S relating to protection of biodiversity and 12.01–2S relating to native vegetation management.
These provisions meant that the Tribunal was entitled to look at the terms of the native vegetation control within the framework of cascading planning objectives.
Moreover, the control adopting the 2013 guidelines did not itself purport to set them up as ‘covering the field’. The decision guidelines applicable to Mr Gray’s application[49] under cl 52.17–5 relevantly stated:
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
Biodiversity considerations
For all applications
· The contribution that native vegetation to be removed makes to Victoria’s biodiversity. This is determined by:
o The extent and condition of native vegetation.
o The biodiversity value of the native vegetation, including whether the native vegetation is important habitat for rare or threatened species.
[49]By reason of transitional provisions contained in the planning scheme cl 52.17-6.
· Whether the removal of native vegetation is defined as being in the low, moderate or high risk-based pathway, as defined in the Permitted clearing of native vegetation – Biodiversity assessment guidelines (Department of Environment and Primary Industries, September 2013) and apply the decision guidelines accordingly.
...
Other matters
The responsible authority must also consider the following issues, as appropriate:
· The need to remove, destroy or lop native vegetation to create defendable space to reduce the risk of bushfire to life and property, having regard to the other available bushfire risk mitigation measures.
· The role of native vegetation in:
o Protecting water quality and waterway and riparian ecosystems, particularly within 30 metres of a wetland or waterway and in special water supply catchment areas listed in the Catchment and Land Protection Act 1994.
o Preventing land degradation, including soil erosion, salination, acidity, instability, and water logging, particularly:
§ Where ground slopes are more than 20 per cent.
§ On land which is subject to soil erosion or slippage
§ In harsh environments, such as coastal or alpine areas …
Thus even by reference to cl 52.17–5 alone, the Tribunal’s decision was not exclusively governed by the application of the 2013 guidelines. These were adopted by the second dot point under the heading ‘For All Applications’ but not to the exclusion of the matters set out under the first dot point nor those set out under ‘Other Matters’.
This was so even if the proposal met the offset requirements provided for in cl 52.17‑6.
Offset requirements
The biodiversity impacts of the removal of native vegetation are required to be offset, in accordance with the Permitted clearing of native vegetation — Biodiversity assessment guidelines (Department of Environment and Primary Industries, September 2013). The conditions on the permit for the removal of native vegetation must specify this offset requirement. The offset requirements must take account of:
· 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 on those species’ habitat.
In turn, the 2013 guidelines themselves do not purpose to be a code and state under the heading ‘Scope of these Guidelines’:
These guidelines set out the rules and tools for how responsible referral authorities should consider biodiversity when assessing an application for a permit to remove native vegetation.
Compliance with these guidelines alone does not ensure the meeting of all relevant planning scheme requirements regarding removing native vegetation.
When assessing a permit to remove native vegetation, these guidelines must be read by the responsible authority in conjunction with other relevant parts of the planning scheme, including:
· the native vegetation particular provisions
· land use and development policies that relate to native vegetation and biodiversity in the State and Local Planning Policy Framework;
· the purpose of relevant zones, overlays or other local controls for removing native vegetation, and their decision guidelines.
In its decision the Tribunal expressly recognised that the proposal was acceptable in terms of the 2013 guidelines,[50] but went on to address the substance of the evidence called as to biodiversity[51] and to hold that the application of the guidelines needed to be considered in the broader planning policy framework.
Irrespective of the above, consideration of the effects on biodiversity remains relevant under policy in clauses 12.01-1S and 12.01-2S. Despite the transitional provisions under clause 52.17, a consideration of biodiversity impacts still needs to be determined under the broader policy framework. This is necessary because biodiversity assessment can risk becoming a somewhat automated process. Biodiversity policy requires an assessment of vegetation that is more than applying a ‘tick the box’ approach and requires regard to be given to the quality and habitat value of native vegetation proposed to be removed both on the site and in regard to its surrounds.[52]
[50]Reasons [141].
[51]Ibid [142]–[143], [148]–[149].
[52]Ibid [144].
There was no error in this approach.
Moreover, and perhaps most significantly, quite apart from the native vegetation control contained in cl 52.17, the site was also subject to an Environmental Significance Overlay (ESO1) and Environmental Management Overlay (EMO) under which separate permits were required for the removal of native vegetation.
The Tribunal was entitled to consider the State policy contained in cls 12.01–1S and 12.01–2S of the planning scheme and the local policy stated at cl 21.09 and 22.05 in considering each of the native vegetation removal permits required by the applicant together with the basis of ESO and EMO controls where relevant.[53]
[53]Ibid [146]–[159].
It follows that the 2013 guidelines which the applicant seeks to rely on do not ‘cover the field’ in respect of the Tribunal’s discretion relating to the removal of native vegetation. The proposed ground of appeal fails otherwise to engage with the Tribunal’s reasoning.[54] But I should add for completeness that not only did the Tribunal specifically consider the guidelines[55] but its ultimate conclusions concerning native vegetation removal turned first upon consideration of relevant policy[56] and secondly upon the application of ESO1:
[54]Ibid [139]–[160].
[55]Ibid [140]–[181].
[56]Ibid [144]–[154].
The site is affected by the ESO1, which identifies the site to be within:
•Site of Botanical Significance B17 – Lowes Road. The ESO1 mapping for B17 includes land either side of Lowes Road including across to Myers Creek Road and which includes the site. It is identified in the Regional Strategy Plan as Site 77 and described as ‘extensive intact stands of a distinctive floristic variant of Sclerophyll Woodland’.
•Site of Zoological Significance Z16 - New Chum Creek, Blue Mount and Myers Creek. The ESO1 mapping for Z16 includes the section of Myers Creek adjacent to the site and is identified in the Regional Strategy Plan as Site 10 having Regional Significance.
In addition to the limited policy assessment of biodiversity impacts, we find there is a similar attitude also reflected by the dismissive response of the permit applicant to the ESO1. Mr Gray submitted the ESO1 is an anomaly given Schedule 1 to the ESO refers to two sites of botanical and zoological significance that he regards as having no locational relationship with the site. Accordingly, he considers the ESO1 has little or no relevance to the consideration of environmental impacts of the proposal.
We do not agree. Reference to the Yarra Ranges Planning Scheme maps for the ESO clearly demonstrates that the site falls within a limited area mapped under B17 and Z16. This mapping relates to the nature of the vegetated forest within which the site and its surrounds are located and its relationship with the Myers Creek waterway. The ESO1 drills down to the environmental significance at a local level.
We also note that the Statement of environmental significance in ESO1 refers to these various sites of botanical and zoological significance in the following terms:
The Shire contains extensive areas of remnant bushland which are an intrinsic part of the Shire’s unique landscape and environmental character.
Sites of botanical and zoological significance also play an important role in contributing to the ecological processes and biodiversity of the region by forming core habitat areas within a complex network of wildlife corridors along roadsides and watercourses. Development within and around these sites needs to be appropriately managed to ensure the long term protection and sustainability of these ecological processes.
Clearly ESO1 has a relationship to not only the respective named sites of botanical and zoological significance, but also to adjoining areas, particularly if they are connected by vegetation coverage. This is the situation with respect to the site and its location along the Myers Creek valley. The reference to core habitat areas is reinforced in the objectives of Schedule 1 and the decision guidelines note the need to avoid clearing on steep slopes (greater than 20%) or within 30 metres of a watercourse.
We consider the proposal to clear the extent of native vegetation (and potentially more given our concerns regarding the land slope) will have unacceptable environmental impacts. These include the loss of large canopy trees and associated understorey vegetation (nearly half a hectare); clearing of vegetation on land slopes well in excess of 20% (potentially greater than half a hectare); fragmentation of part of the landscape within close proximity (less than 30 metres from the Myers Creek tributary and Myers Creek itself with the works that have occurred on the access track); and detrimental impacts on the riparian environment of the waterways.
We say the clearing and development works are too close (within 30 metres) to a tributary of Myers Creek, together with construction works on steeply sloping land that exceeds 20% and the works that have occurred to the access track which runs adjacent to Myers Creek. These factors combine to create an impact that is not consistent with the policy directions for biodiversity and the ESO1, and in turn the Regional Strategy Plan, which seeks to ensure the long term protection and conservation of all remaining areas of remnant native vegetation and wildlife habitat, including that on land designated as a Site of Botanical and Zoological Significance.[57]
[57]Ibid [155]–[161].
This reasoning was open to the Tribunal. The proposed ground of appeal has no real prospect of success.
Bushfire management
Paragraph [17] of the proposed notice of appeal states:
VCAT erred in law in failing to conclude the permit application met all the Bushfire Management Overlay requirements in the Yarra Ranges Planning Scheme and there was no evidence or basis for a contrary finding.
In a similar way to the previous ground, this ground fails to confront the Tribunal’s reasoning. The Tribunal was entitled to have regard to the State Planning Policy Framework including in particular the Bushfire Planning Policy set out in cl 13.02 and the Municipal Planning Strategy.[58] Further, cl 71.02-3 of the planning scheme stated in part:
Planning and responsible authorities should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. However, in bushfire affected areas, planning and responsible authorities must prioritise the protection of human life over all other policy considerations.
[58]Planning scheme cls 44.06 and 65.01.
Mr Gray’s case focussed upon the adequacy of the access track for emergency access. As the Tribunal noted however the evidence established broader risks:[59]
However, that was not the view of his own witness, Mr Allan, who said in cross-examination that access factors are not the key factors when assessing risk in an extreme risk landscape. Over and above access are the landscape scale and factors that will drive fire behaviour. In Mr Allen’s view, landscape factors were more important than site factors. When pressed, he would not say he was comfortable to endorse this site for development. He would not say that this was a development that ‘appropriately’ protects human life. He noted that he had recommended features and measures that should be implemented and there was not much more that could be thrown at the site to mitigate risk or make it safer unless one was to take out all the trees and alter landscape factors. It is because of the extreme risk location that the sole focus was on development within the site. He agreed that without access to Myers Creek Road (as a public road), he would not support the proposal.
…
The CFA also recognised the site is in an area that has the potential for extreme landscape bushfire behaviour. Bushfire risk is possible from all directions of the site. The CFA recognise that the site has limited access and egress options and a bushfire could present as a rapid onset fire event. The CFA’s view was informed by the following matters:
•The long run landscape fires in the area have the potential to develop powerful convection columns and highly damaging winds, well beyond the design fire parameters of AS 3959-2009 – Construction in Bushfire Prone Areas (Standards Australia, 2009).
•The revised BMS submitted acknowledges that landscape fire risks accord with Landscape Type 4 set out under Technical Guide – Planning Permit Applications Bushfire Management Overlay, September 2017. Under this landscape type the broader landscape presents an extreme risk. Fires have hours or days to grow and develop before impacting and evacuation options are limited or not available.[60]
[59]Reasons [184], [187].
[60]BMS refers to Bushfire Management Strategy.
The Tribunal went on to conclude in part:
The permit applicant and the BMS propose siting and design elements that are claimed to be in excess of the requirements set out under clause 53.02. However, they all relate to the site and what the permit applicant can control or influence. The broader landscape response with regards to bushfire behaviour is something the permit applicant cannot influence. Yet it is risk from the broader landscape that is referred to (in part) in clause 53.02-4.1 – Landscape, siting and design objectives where, amongst other objectives, it requires development to be appropriate having regard to the nature of the bushfire risk arising from the surrounding landscape. Approved Measure 2.1 (AM 2.1) includes the following requirement;
The bushfire risk to the development from the landscape beyond the site can be mitigated to an acceptable level.
In this case, the ability to mitigate the bushfire risk to an acceptable level from the landscape beyond the site is largely ineffectual and limited to what can be provided on the site as part of the proposed development. The additional elements that are proposed do not, in our view, address the broader landscape bushfire risk. The site and surrounding area is heavily vegetated. Management of fuels in the surrounding forested areas is not comprehensive and no evidence was provided to describe how surrounding bushland areas can or could be managed to reduce fire fuels.
The Tribunal then went on to address the guidance given by cl 13.02 of the planning scheme (forming part of the Planning Policy Framework) with respect to evaluating broader landscape bushfire risk.
There was no error in considering this policy. Further, for the detailed reasons which the Tribunal gave, the Tribunal was correct to conclude that the policy directed development to low risk locations.[61]
[61]Reasons [200]–[216].
The Tribunal summed up its conclusions as follows:[62]
In this case, we find that the policy under clause 13.02-1S is unequivocal when it includes the strategy under Protection of human life, to direct development to low risk locations. The site is not a low risk location given the evidence and the commentary from the CFA regarding extreme bushfire risk. We consider attempts to offset the extreme risk of the site by providing a bushfire shelter and evacuating the site on Code Red days are not enough to reduce the extreme risk of bushfire that may occur and that did occur on Black Saturday, in an environment such as this.
Similarly, the same strategy also requires ensuring the availability of, and safe access to, areas where human life can be better protected from the effects of bushfire. The uncertainty about the access track over unreserved Crown land compounds a failure to satisfy this policy strategy.
[62]Ibid [215]–[216].
This ground of appeal has no prospect of success.
Impact on streams
Paragraph [18] of the proposed notice of appeal states:
VCAT erred in law in failing to conclude the waterways related restriction required only that any building be sited over 30 metres from the edge of a waterway, not that a driveway to a building be so located.
This ground is misconceived. The relevant strategy stated:[63]
[63]Planning scheme cl 14.02–15.
Retain natural drainage corridors with vegetated buffer zones at least 30 metres wide along each side of a waterway to:
•Maintain the natural drainage function, stream habitat and wildlife corridors and landscape values,
• Minimise erosion of stream banks and verges, and
• Reduce polluted surface runoff from adjacent land uses.
Moreover, the relevant factual findings were not confined to the proposed driveway.
We do not accept this evidence. Although the area for effluent irrigation appears adequate, the establishment of terraced areas to accommodate the irrigation fields would result in significant ground disturbance on land slopes that exceed 20%. We find that the extent of works required for the combination of dwelling construction, terracing of ground for the effluent disposal fields and for the construction of the internal driveway, including retaining walls and gabion walls, create concerns for us that the proposal is simply asking too much from this site.[64]
[64]Reasons [172].
This ground has no prospect of success.
Conclusion
For the above reasons, none of the proposed grounds of appeal have a real prospect of success.
Further, it would be necessary to impugn each of the discrete bases on which the Tribunal rejected the proposal in order to establish vitiating error in its decision.
In this regard, I note that not only does this mean that Mr Gray must succeed in each of his attacks on the Tribunal’s decision with respect to particular development controls. He must also overcome the Tribunal’s decision as to the acceptability of the proposed use. The proposed grounds do not impugn the following conclusion:
The proposal for a dwelling relates to use and development. To use land for the purposes of a dwelling is a change of use that has permanent ramifications. We consider the RCZ is a zone that does not support the use of land for a dwelling unless the impacts from an environmental perspective are minimal and the use is subservient to the zone’s purpose, which is to protect and enhance environmental values. In this case, we consider the proposed use of the site for residential use is not sufficiently subservient to the environmental values of the site. In other words, the proposal requires too much from the site in terms of change to its environmental condition to accommodate a dwelling and associated infrastructure and fails to protect or enhance the environmental values.
Our view in this regard is reinforced by the changes to policy that have occurred with both environmental issues under clause 12.01-1S – Protection of biodiversity and clause 12.03-1 – River corridors, waterways, lakes and wetlands and with respect to bushfire risk under clause 13.02-1S – Bushfire planning. The changes to these policies have, if anything, heightened the need for the proposal to address, to an acceptable level, their outcomes. We consider this has not been satisfactorily achieved in this instance.[65]
[65]Ibid [123]–[124] (citation omitted).
These conclusions were fatal to the proposed use in themselves.
Accordingly, leave to appeal will be refused.
SCHEDULE OF PARTIES
| BETWEEN: | |
| JAMES GRAY | Applicant |
| - and - | |
| MINISTER FOR ENERGY, ENVIRONMENT AND CLIMATE CHANGE | First Respondent |
| YARRA RANGES SHIRE COUNCIL | Second Respondent |
| MELBOURNE WATER | Third Respondent |
| COUNTRY FIRE AUTHORITY | Fourth Respondent |
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