Australia: The Western Australian Review Into Environmental Impact Assessment Processes

New Native Vegetation Provisions

Amendments to the Victoria Planning Provisions in September 2008 introduced a series of changes to all planning schemes in Victoria, including the provision of new exemptions under clause 52.17 (Native Vegetation). The changes aim to clarify the circumstances in which a permit will not be required to remove native vegetation in Victoria. Under clause 52.17, a permit is required to remove, destroy or lop native vegetation, including dead vegetation, unless an exemption set out in clause 52.17-6 applies.

However, the exemptions do not provide for unlimited native vegetation removal. Clause 52.17-6 allows for the removal, destruction or lopping of native vegetation only to the minimum extent necessary, requiring the extent of native vegetation removal to be taken into consideration when relying on an exemption.

Exemptions are provided for a wide variety of land management activities, including the removal of weeds, the mowing of native grasses, the eradication of pest animal burrows or the collection of firewood.

A number of exemptions also relate to maintenance or emergency works, such as the removal of native vegetation to maintain an existing public road or railway, the removal of vegetation for utility installations and the removal of vegetation for fire protection measures or the lopping or pruning of trees and shrubs.

The Amendments also altered certain exemptions provided by various overlay provisions, such as the Environmental Significance or Vegetation Protection Overlays, to bring these exemptions in line with the equivalent exemptions provided in clause 52.17-6.

Whilst a permit may not be required due to an exemption provided by clause 52.17 or an overlay, certain planning schemes may still include additional permit triggers for vegetation removal. For example, the Yarra Ranges Planning Scheme contains clause 53.01 which requires a permit to remove, destroy or lop any vegetation, despite the existence of another exemption.

Clause 52.17 was recently reviewed by the Victorian Civil and Administrative Tribunal in Reeves v Hume CC & Ors [2009] VCAT 65, a decision handed down in January 2009 that has significant implications for land development in Victoria which requires native vegetation removal.

In Reeves, the Tribunal displaced the expectation that, in relation to residentially zoned land, the focus of the three step approach under the Native Vegetation Management Framework should be on the last two steps of minimising native vegetation loss and offsetting that loss.

Instead, the Tribunal found that the recent amendments to clause 52.17 have shifted the focus to the first two steps of avoidance and minimisation and that the starting point for considering the appropriateness of the development of land containing native vegetation of very high conservation significance is not the zoning of the land but rather a consideration of why such vegetation should be lost at all.

Standing And Grounds Of Review For EPA Approvals And Licences

In late February 2009, the Supreme Court of Victoria in Thirteenth Beach Coast Watch Inc v the Environment Protection Authority and Anor [2009] VSC53, delivered a decision interpreting the 'application for review by third parties' provisions of the Environment Protection Act 1970 (Vic) (EP Act). These provisions enable third parties to apply to VCAT for review of an EPA decision to:

  • Issue a works approval.
  • Issue or amend a licence (where a works approval was required but was not obtained).
  • Remove the suspension of a licence under section 33B of the EP Act.

Section 33B(1) allows an application for review to be made by 'a person whose interests are affected by the decision'. Section 33B(2) then specifies the environmental consequences of the implementation of the works that must 'unreasonably and adversely affect the interests' of the applicant as grounds for review. In Thirteenth Beach Coast Watch the application in issue concerned a works approval for a biosolids facility in Coonewarre. It was brought by a community organisation, Thirteenth Beach Coast Watch Inc, whose mission statement was to stop the construction of that facility.

It was not necessary for Justice Cavanough to determine the breadth of the terminology under section 33B(1) because the right of the Thirteenth Beach Coast Watch Inc was not disputed by the Victorian Environment Protection Authority (EPA) in any or the proceedings, including the Supreme Court Appeal. However, Justice Cavanough was called upon to interpret what the organisation was required to prove in order to sustain their grounds of appeal – that their interests would be 'unreasonably and adversely affected' by the completion of the facility in accordance with the works approval.

Justice Cavanough restrictively interpreted the phrase in the context of section 33B(2) and also relied on the case of Australian Conservation Foundation v Environment Protection Appeal Board [1983] 1 VR 385 which had earlier interpreted the term 'person aggrieved'. That term has subsequently been replaced in the EP Act by the current terminology under section 33B.

His Honour stated that intellectual, philosophical or emotional concerns about the protection of the environment would not be 'interests' that, if adversely affected, would form grounds for review.

This decision affirms the limited capacity of third parties to successfully apply for review of EPA decisions under section 33B of the EP Act. Unless a third party has concrete physical or financial interests adversely affected by an EPA action, applications must establish that an approval is inconsistent with standards in a relevant State Environment Protection Policy, Industrial Waste Management Policies or would clearly cause pollution or an environmental hazard as required by section 33B.

Victoria's Climate Change Green Paper

In May 2009, the Victorian Government published its Climate Change Green Paper (Green Paper). It outlines the climate change issues facing Victoria, identifies the role of government in dealing with these issues and proposes climate change goals and priorities for Victoria.

The framework for Victoria's action on climate change is set out in the Green Paper in three distinct areas:

  • Complementing the CPRS to drive emissions abatement in areas of market failure or those sectors not covered by the CPRS.
  • Positioning Victoria to take advantage of the opportunities created by the transition to a carbon constrained economy.
  • Adapting to the impacts of climate change.

Within this framework, the Victorian Government has developed five priorities for action:

  • Driving innovation to position Victoria to capitalise on new jobs and skills, new technologies and new markets and accelerate the transition to a low carbon economy.
  • Supporting private action to adapt to a changing climate, and undertake adaptation actions on behalf of the Victorian community to protect the environment, key public assets and manage major public risks.
  • Helping vulnerable regions, businesses and communities adjust to a carbon price, particularly the Latrobe Valley.
  • Promoting low emissions energy technologies as the key to Victoria's energy future.
  • Establishing future-focused transport, planning and building systems to support a low emissions future and accommodate a changed climate.

The Victorian Government has indicated in the Green Paper that it is particularly interested in receiving suggestions for policies and projects that fall within these five priorities. The Victorian Government is currently receiving submission on the Green Paper. Submissions close on 30 September 2009.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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