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Review of the native vegetation clearing regulations

Submission

April 2016

MAV submission to the review of the native vegetation clearing regulations

© Copyright Municipal Association of Victoria, 2016

The Municipal Association of Victoria (MAV) is the owner of the copyright in the publication MAV submission to the review of the native vegetation clearing regulations.

No part of this publication may be reproduced, stored or transmitted in any form or by any means without the prior permission in writing from the Municipal Association of Victoria.

All requests to reproduce, store or transmit material contained in the publication should be addressed to Reception on 9667 5555.

The MAV does not guarantee the accuracy of this document's contents if retrieved from sources other than its official websites or directly from a MAV employee.

The MAV can provide this publication in an alternative format upon request, including large print, Braille and audio.

MAV submission to the review of the native vegetation clearing regulations has been prepared by the Municipal Association of Victoria (MAV) and has been endorsed by the MAV Board.

While this paper aims to broadly reflect the views of local government in Victoria, it does not purport to reflect the exact views of individual councils.


Table of contents

1 Introduction..............................................................................................................................4

2 Background..............................................................................................................................4

3.1. The MAV..........................................................................................................................4

3.2. The role of councils in native vegetation management....................................................5

3.3. Scope of the review..........................................................................................................5

3.4. Benefits and concerns with the current system...............................................................6

3 Setting the framework for native vegetation protection...........................................................7

4.1. Core framework components...........................................................................................7

4 Comments on the discussion paper........................................................................................8

5.1. Native vegetation clearing policy......................................................................................8

5.2. Permit processing and decision making..........................................................................9

5.3. Biodiversity information tools used in decision making and offset rules........................10

5.4. Offset delivery................................................................................................................11

5.5. Exemptions....................................................................................................................11

5.6. Compliance and enforcement........................................................................................13

5 Implementation of the review recommendations...................................................................14

6 Conclusion.............................................................................................................................14


1 Introduction

The Municipal Association of Victoria (MAV) welcomes the opportunity to respond to the consultation paper, released by the Department of Environment, Land, Water and Planning (DELWP), as part of the review of the native vegetation clearing regulations.

The MAV, and a number of councils, participated in a working group to explore issues and potential improvement ideas with DELWP.

Local government acts as the primary regulator for the removal of native vegetation in Victoria through the administration of clauses 52.16 Native Vegetation Precinct Plan and 52.17 Native Vegetation contained in all planning schemes.

Councils believe there continues to be significant vegetation loss across Victoria because of:

The extent of exemptions to the controls; including the bushfire exemption Illegal clearing The approach of State agencies and corporations The difficulty in monitoring and enforcing offsets.

The loss of vegetation has been exacerbated by changes made to the native vegetation planning framework in January 2014. The shift in policy emphasis away from ‘avoidance’ was of significant concern to councils. We are pleased that many of the recommendations made in this consultation paper go a long way to restoring the balance required between the protection of our environment and economic development.

However, councils would like to highlight that they have been left to shoulder the burden of regulating the removal of native vegetation alone. There has been little support from the State Government in relation to education, monitoring or illegal clearing. Councils would like to see a shift to a co-regulatory approach where the State Government also bears some of the cost and responsibility. There is significant opportunity to achieve this approach as part of this review and the concurrent review of the Flora and Fauna Guarantee Act.

5 MAV submission to the review of the native vegetation clearing regulations

1.2.

2 Background

3.

3.1. The MAV

The MAV is the peak representative and advocacy body for Victoria's 79 councils. The MAV was formed in 1879 and the Municipal Association Act 1907 appointed the MAV the official voice of local government in Victoria.

Today, the MAV is a driving and influential force behind a strong and strategically positioned local government sector. Our role is to represent and advocate the interests of local government; raise the sector's profile; ensure its long-term security; facilitate effective networks; support councillors; provide policy and strategic advice; capacity building programs; and insurance services to local government.

3.2. The role of councils in native vegetation management

Councils have a number of, sometimes competing, roles in native vegetation management:

As a regulator councils make decisions about the removal of native vegetation on private land in accordance with the planning scheme provisions. For high risk applications they receive advice from DELWP as a recommending authority.

As a landowner councils must ensure they comply with the native vegetation regulations when undertaking buildings and works.

As a road management authority councils are responsible for the safe operation of local roads and sometimes State Government roads on behalf of VicRoads.

As a manager of weeds and pests councils are responsible for the removal of weeds along roadsides.

As an emergency management manager councils are responsible for preparing an Emergency Management Plan and the strategic protection of settlements.

As a Committee of Management councils make decisions about the removal of native vegetation on Crown Land which they are managing on behalf of the State Government.

3.3. Scope of the review

Although the scope of the review is understood, it must be recognised that some of the biggest contributors to the removal of native vegetation in Victoria are not tackled as part of this review, including:


The logging of native forests

The exemption for bushfire management that are cumulatively having a significant impact on areas with small lots. The exemption has not yet struck the right balance.

The activities of agencies such as VicRoads, electricity distribution companies and water distribution companies. A lot could be achieved if there was a focus on the government getting its ‘own house’ in order.

The concurrent reviews of the Biodiversity Strategy and the Flora and Fauna Guarantee Act, together with this review, present enormous opportunities to fully explore co-regulation, the framework for monitoring and evaluation and compliance and enforcement activity. The discussion paper does not explore this potential and it seems like a missed opportunity.

3.4. Benefits and concerns with the current system

Before responding to the particular recommendations set out in the consultation paper, we believe it is important to consider the benefits and constraints of the current framework in order to assess the impact of any proposed changes.

Local government believes the key benefits of the current framework are:

The regulation of native vegetation has been in place since 1989 and there is a broad acceptance of the need to limit the removal of native vegetation.

A risk based approach to native vegetation management is appropriate and ensures that both assessment and permit requirements are proportional. This approach avoids unnecessary costs and regulatory burden.

Offset requirements encourage the application of the ‘avoid’ and ‘minimise’ principles as applicants attempt to limit costs.

Identifying the offset strategy early in the process provides greater confidence about future compliance.

Some of the problems with the current framework are:

There is no clear statement of roles and responsibilities for the management of native vegetation for DELWP, Catchment Management Authorities, other agencies, local government or landowners.

There is conflicting advice given by DELWP about the current regulations.

There is a lack of consistency in administration of the controls by departments and agencies which is a frustration to communities - they don't differentiate between players and ultimately councils deal with the fall out.


In some areas the Native Vegetation Information Management (NVIM) tool is unable to be used by applicants due to lack of access to a computer or difficulty in navigating the tool.

There is a need for the State to lead by example. VicRoads, electricity distribution businesses and water businesses have removed significant amounts of vegetation (eg. median clearing on the Princes Highway east of Melbourne) without transparency or consultation.

There is also significant loss of old scattered trees with high biodiversity value from residential development and agricultural practices.

By focusing on impacts to just rare or threatened species, most of Victoria falls within the low risk category. This does not always align with the significance of the vegetation or habitat value, and for low risk applications there is almost an expectation of ‘as-of-right’ clearing. Councils do not believe the current policy framework gives them ability to refuse low risk applications.

The misclassification of land, because of lack of on-site verification and infrequency of mapping updates, can lead to higher costs in assessment and offsets.

The reduction of DELWP’s status from a ‘determining’ referral authority to a ‘recommending’ referral authority has enabled DELWP to step back further from supporting councils in decision making and compliance activity.

3 Setting the framework for native vegetation protection

4.

4.1. Core framework components

The MAV considers the core components of an effective native vegetation framework to include a co-regulatory approach; sound policy with evaluation indicators; proportionate controls; access to good information; expert input; compliance, enforcement and monitoring. An assessment about whether these components are effective in the current framework is contained in this table:

Component Value Assessment

A co-regulatory approach supported by a clear statement of roles and responsibilities

The core elements are laid out simply and there is a clear commitment to co-regulation. Roles and responsibilities are transparent and resources can be negotiated.

There is no description of the full regulatory framework (including the interrelationship between the regulations and the FFG Act) or any statement of roles and responsibilities

Sound policy with evaluation indicators

The policy sets out the key premises and principles to be observed in the

While policy is set, councils would prefer to see greater emphasis on


drafting of planning controls. This enables evaluation of whether the intended outcomes of the policy are being achieved.

avoidance.

Evaluation indicators are not built into the policy and it is difficult to make a statewide or regional assessment about whether the policy objectives are being achieved.

Proportionate controls The regulatory standards/requirements to be complied with should be risk based to ensure the commensurate skills and efforts are applied.

The three pathways are an attempt to direct skills and resources to the highest impact activities. It seems from DELWP’s assessment that:

Many low and moderate impact matters are referred to DELWP although this is not the intention

There is little difference in impact between moderate and high pathways.

Additional referrals appear to be made under overlays. There is no alignment of overlays with the native vegetation requirements.

Access to good information

It should be possible for an applicant to easily understand whether a planning permit is required and what the relevant policy is that guides decisions.

Councils, as decision makers, should understand:

The ecological significance of the vegetation

The likelihood of rare or threatened species

The habitat value of the vegetation

Both an applicant and councils understand the likelihood of rare or threatened species because of the pathways.

Ecological significance and habitat value appear to have reduced in importance in the assessment of applications.

Expert input Independent expert evidence and advice should be readily available to councils where ecological significance is high or there is a high likelihood of rare or threatened species.

DELWP are currently a ‘recommending’ referral authority for applications in the ‘high’ pathway. However, the limited inputs to the mapping mean that some vegetation is being misclassified. There can be significant impacts from applications classified as ‘moderate’ that DELWP do not have input into.

Commitment to compliance and enforcement

The general community understands the benefits of the retention of native vegetation and the native vegetation controls to a level that they know when

The general community has a poor understanding of the controls and this is complicated by the additional


to seek advice about permit requirements.

The consequences for illegal clearing or lack of compliance with permits issued must be a significant deterrent.

overlays that exist.

The fines are not acting as a deterrent.

There is no statewide and regional wide awareness campaign to improve the understanding of the regulations by the wider community.

A consistent and transparent approach to monitoring

An essential component to any framework is the ability to measure whether the policy goals are being achieved or not. Indicators established during policy setting part of the framework will assist with this.

The monitoring of policy objectives is difficult to undertake, particularly in relation to vegetation loss from exemptions.

4 Comments on the discussion paper

5.

5.1. Native vegetation clearing policy

Councils support the primary focus of the native vegetation regulations being the ‘avoidance’ of clearing. However, guidance is required about what might be acceptable removal of native vegetation. What are good reasons? What evidence is required to prove that avoidance has been attempted? Addressing these questions in guidance material will result in a more consistent administration of the policy.

Some councils believe there could be a greater aspiration in the regulations toward net gain of native vegetation. Although others recognised that there would be a significant regulatory cost to this and that councils, as applicants, would struggle to meet the additional burden.

Monitoring is a critical component to good policy and it must be possible to establish whether the objectives are being achieved. Investment by the State is necessary to ensure there are measurable indicators and an administratively simple means of collecting evidence. At present there is no way of capturing what vegetation loss may be occurring through the exemptions of clause 52.17 Native Vegetation, including that from Memorandums of Understanding and Agreements. It is unclear what role is envisaged for councils in monitoring but consideration should be given to time and cost implications. A consistent approach is also required, which suggests that a statewide approach would be more effective.

Transparency is also important and reporting of the monitoring outcomes should form part of the regulatory framework.

In relation to the specific recommendations, the following comments are made:


Proposed improvement Comment

1. Clarify that the primary focus of the regulations is to ensure avoidance of native vegetation removal where possible

Supported, this is best outcome environmentally but also will have benefit for landowners (when offsets are considered) and reduces permit workload.

The particular wording of the policy may need to be tested with actual applications to understand the implications and avoid unintended consequences. The MAV can assist with coordinating this.

It should be noted that there is currently a conflict between avoid and minimize, and the bushfire management controls. The balance has not been achieved.

2. Consolidate comprehensive policy guidance for native vegetation removal

Supported.

3. Develop guidance to support strategic planning relating to native vegetation protection and management

While the intent of this recommendation is supported, the roles and responsibilities for strategic planning are unclear.

Councils believe government should have a greater role in mapping and protecting vegetation of high state wide significance. If this is then reflected in planning schemes, sufficient resources should be provided at a State level to run planning scheme amendment processes, provide ongoing referral responses, lead VCAT appeals and be involved in monitoring and compliance.

The State also has a role in strategic planning where there are other state wide objectives to be achieved such as in growth areas of Melbourne.

4. Improve monitoring to determine if the regulations are achieving their objective and make this information publically available.

Supported. However, councils are very concerned that they will be left with the burden of monitoring and reporting without sufficient resources. Councils also point out that information gaps exist because of the exemptions.

5.2. Permit processing and decision making

There is strong support from councils for many of the proposals in this chapter of the discussion paper. There is view that significant clearing is being permitted because of the exemption threshold for land size and also large, old scattered trees that have biodiversity value.

The location risk map is also seen to be a blunt tool that could be improved greatly. There is a concern that DELWP might expect councils to be responsible for mapping of highly localised habitats. This is outside the expertise and resources of many councils.

Councils are very concerned about the reduction in resources that DELWP is allocating to native vegetation management. For example, in the Colac State Government Office there was


previously three full-time staff available to provide support for applications involving the removal of native vegetation. Over the past four years these positions have been made redundant and council must now contact Geelong. Site visits and meetings with applicants no longer occur leading to longer processing times and poorer environmental and planning outcomes.

Councils report that the current permit system does not provide them with the ability to manage hollow trees. The options are either to issue or refuse a permit with no real means of providing ongoing protection for the trees.



5. Reduce the low risk-based pathway threshold Strongly supported. The current land size threshold is considered too large and councils are concerned that the habitat value of large, old trees is not being protected. It may still be possible to include scattered trees as low risk if additional criteria are included.

6. Replace the native vegetation location risk map with an updated map of highly localised habitats

Supported. However, it is unclear about what work might be required to do this and who would be doing the work.

7. Require an avoid and minimisation statement for all applications and consider this in decision making

Supported. This will be necessary if greater emphasis is to be given to ‘avoidance’ and to enable applications to be refused.

8. Require an offset strategy for all applications and consider this in decision making

Supported. ‘Low’ risk applications can result in a big impact if the vegetation is not offset. The proposal should result in applicants having a better understanding of what the requirements will be at the time of application, assist councils to ensure offsets are secured and reduce the burden of enforcement. It is unclear whether the offset strategy requirement will also apply to Native Vegetation Precinct Plans.

Training of councils is requested so that the requirements are understood for roadworks, road maintenance, drainage works and parks and gardens.

9. Change to two pathways, a ‘lower assessment pathway’ and a ‘higher assessment pathway’

Strongly supported. There has not been much experience with ‘moderate’ risk applications but given there can be significant impact resulting from applications in this category it seems sensible to combine the moderate and high risk categories.

10. Provide clearer guidance on when to refuse an application to remove native vegetation

Strongly supported. This should be connected to recommendation 1.

11. Include a decision guideline that allows councils to consider locally important biodiversity when assessing applications

Supported. Although this recommendation could have significant resource impacts for councils through the need/expectation for planning scheme overlays.

It is critical that this review consider how overlays should be used in decision making and what



information should be collected and presented at a statewide level. A statement of roles and responsibilities is important to achieve clarity.

5.3. Biodiversity information tools used in decision making and offset rules

Councils are supportive of ongoing improvements to the mapping available to make decisions. However, care must be taken that changes to the maps do not create defacto regulation changes. Mapping must be available at a property level and be easily understood.

Transparency in decision making is always supported and as such it should be possible for both decision makers and applicants to understand the basis of the mapping. If the mapping basis changes then both opportunity to comment and training must follow. Training is required for councils but also the general community and landholder groups.



12. Allow habitat characteristic information collected at the site to be used to supplement the maps of a species habitat in the permit application process and for offset sites

Supported. It is recognised that site information may, at times, provide for a fairer outcome. It is critical that clarity is provided around:

The appropriate qualification of consultants Who will fund the work How this element will be included in the

regulatory framework.

13. Increase the information available about the maps used in the regulations and improve their accessibility

Supported.

14. Place greater emphasis on key areas of habitat for dispersed species in decision making and offset requirements

Supported.

15. Differentiate between the biodiversity value of scattered trees for use in decision making and offset requirement determination

Supported. Currently large, old scattered trees with high habitat value are not being appropriately considered. There must, however, be a simplified process for applicants.

5.4. Offset delivery

Councils largely support the improvements suggested for offsets, and acknowledge that the monitoring and enforcement of section 173 agreements to secure offsets can be problematic. Options to encourage sign up to section 69 Agreements and Trust For Nature Covenants that fund monitoring and compliance, need to be explored encouraged.


While it is important that offsets are secured, councils also recognise the difficulty and cost in achieving this can be onerous and beyond the capacity of some applicants. It is recommended that:

Alternative, simpler registration pathways for ‘low risk’ applications be explored First party offsets continue to be provided for Offsetting on Crown land or council owned land be further developed.



16. Increase the use and functionality of the Credit Register

Supported.

17. Support the development of the market for low availability offsets

Supported. Particularly required if all removal of native vegetation will be required to be offset.

18. Require that all third party offsets are registered on the Credit Register and meet its standards, including standards for securing the offset

Supported as a general principle. It is critical that consideration be given to how the process is administered for low risk applications as registration can be costly and complex.

19. Redesign the revegetation standards to ensure desirable revegetation can occur

Supported. The options for offsets should be more accessible, whether it is planting on council managed land, Crown Land or private land.

20. Create a framework for offsetting on Crown land Supported. Current limitations mean that this is a lost opportunity.

5.5. Exemptions

The current exemptions to the native vegetation controls are an area in significant need of review. There is a lack of transparency about whom the exemptions apply to and why. There is also a range of management mechanisms used to manage the impact but these are administered inconsistently. There is a perception that there is one set of rules for some and another set for others.

Some of the issues raised by councils include:

The need to revisit the blanket application of Clause 52.48 - Bushfire Protection: Exemptions within urban areas in regional Victoria that are not included in the Bushfire Management Overlay or designated as “bushfire prone area”.

The exemptions need to be obviated where the native vegetation removal involves species or habitats captured under the Flora and Fauna Guarantee Act and/or the Environment Protection and Biodiversity Conversation Act.

There is a need to update the list of species (high threat weeds) that are exempt.


The exemption relating to utility installations is supposed to see a management plan incorporated into the relevant planning scheme. This does not seem to occur.

The exemption for planted vegetation is based on the management of street trees that usually have renewal programs. It should not apply more broadly to roadside vegetation.

There is also difficulty in administering the exemption relating to planted vegetation. Proving planting are for aesthetic or amenity purposes and the funding arrangements is problematic.

Old exemptions for State Government departments need to be reviewed as agreements date back to 1980s.

There is a need for exemptions to be consistent with relevant Australian standards. For example the dead vegetation exemption is inconsistent with Australian Standards and needs to stipulate that poisoning and deliberate actions are excluded.

The definition of lopping needs to be consistent across all Codes of Practice and management agreements.

The inclusion of ecological burning as an exemption so that fire might be more easily used as a tool to enhance biodiversity.

In relation enabling councils to fulfill their infrastructure and management responsibilities the exemptions should be reviewed to:

Ensure the current MOU process for councils is included in the table of exemptions and expanded to better cover existing infrastructure needs such as bridges and intersections

Give councils the ability to access the exemption relating to strategic fire breaks. Although charged with specific responsibilities under the CFA Act including Emergency Management Plans that are signed off by fire agencies, the exemption is confined to State Government agencies.

In reviewing exemptions, DELWP should be careful to ensure the exemption process does not become significantly more difficult. The exemptions are critical to effective functioning of State agencies and councils. The right balance must be struck.



21. Formalise a set of exemption purposes and principles Supported. There is currently no framework within which the exemptions can be tested. Consideration should be given to whether exemptions should be detached from tenure.

22. Clarify wording of exemptions Supported. This should include whom the exemptions relate to and when they can be enacted.


23. Provide guidance on the intent and application of exemptions

Supported.

24. Adopt a consistent approach to agreements referenced in the exemptions

Supported. There should be a review of agreements and Codes of Practice as the current approach is very inconsistent. Monitoring should also be built into all agreements and Codes.

Councils would like more information to be available about agreements and any required offsets to be able to provide information to their communities.

5.6. Compliance and enforcement

There is a general lack of awareness about the detailed rules and regulations associated with the removal of native vegetation. Councils report that illegal clearance is common across all municipalities.

A critical component of achieving compliance with regulations is community education. Messages must be simple and compliance easy to achieve. An important part of any compliance and enforcement strategy is the preventative component. It would be useful for councils if material could be prepared, highlighting the value of native vegetation and need for approval, that could be distributed to ratepayers.

Councils have limited resources to devote to compliance and enforcement, and investigative action is prioritised based on risk to human life and complaints. Very few councils have the resources to undertake proactive compliance. An enforcement and compliance strategy must acknowledge this and identify strategies to address stretched resources.

Currently the enforcement framework is complex and expensive, and is not acting as a sufficient deterrent. It is cheaper to pay a Planning Infringement Notice fine than it is to be compliant. The cost and time associated with seeking enforcement orders through VCAT is a huge barrier to further following through with enforcement action. Moving forward councils would like to see more opportunities to prosecute matters rather than use VCAT as for native vegetation matters rectification is not an outcome that can be achieved. Councils consider that fines must also be commensurate with what is cleared.

Councils do not feel adequately supported by the State in relation to either compliance or enforcement. This is considered unfair particularly where vegetation has high or very high state-wide significance. As a starting point it should be possible for:

DELWP staff to be authorised officers under the Planning and Environment Act and responsible for undertaking compliance and enforcement on high value sites of state significance; and/or

The Flora and Fauna Guarantee Act review to empower DELWP to undertake enforcement and compliance on private land with high value sites of state significance.




25. Develop a compliance and enforcement strategy Supported. The strategy must recognise the limited resources available to councils. It should be based on a co-regulatory response and outline responsibilities for DELWP.

26. Provide guidance and support materials for compliance and enforcement activities

Resources will significantly constrain what can be achieved in this area. While support materials may be useful for those able to undertake activities, it will not be enough if the resources are not there.

27. Improve information gathering for compliance and enforcement

Supported. Councils are keen to understand how this improvement will be achieved.

28. Promote co-regulatory support Councils are supportive of co-regulation, but also want to negotiate how this might be achieved. Co-regulatory support could be achieved through DELWP being undertaking enforcement and compliance activity for vegetation with high value. Another way may be by supporting councils at VCAT or the Magistrates Court.

29. Review the overarching compliance and enforcement framework

Supported. There is clearly crossover between the native vegetation regulations and the Flora and Fauna Guarantee Act. The FFG Act has been ineffective to date and attention should be paid to the compliance and enforcement framework and its interrelationships with the Planning and Environment Act.

5 Implementation of the review recommendations

Councils are keen to have further involvement in the redrafting of native vegetation policy and provisions, as they will need to administer them on the ground. It is suggested that a further round of consultation be undertaken once key changes have been agreed and drafted. If a working group or select councils would be useful for testing the controls, the MAV would be pleased to coordinate or assist in any way we can.

The success of any changes to the regulations will directly relate to the resources applied to implementation. A significant amount of work is contemplated by the recommendations and councils would like to ensure that both DELWP is able to commit sufficient resources to implementation and that any resource implications for councils are also factored in.

The MAV believe the starting point sound be negotiating a co-regulatory approach and developing the statement of roles and responsibilities. An implementation plan and timeline for delivering the initiatives should be developed in consultation with councils as co-regulators. The MAV would be happy to discuss this matter further with DELWP.


6 Conclusion

The review of native vegetation regulations is a timely one and, along with the Biodiversity Strategy and review of the Flora and Fauna Guarantee Act, has the potential to redress some framework issues that have inhibited a true co-regulatory approach.

Councils are predominantly pleased with the recommendations that are part of this review and it is clear that councils have been heard in the early consultation processes. Councils do express some trepidation about the detail of some the recommendations, roles and responsibilities and implementation capacity. We would be pleased to work through these matters prior to finalisation of the recommendations.


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