Manningham News

It seems when privately owned property has a significant environmental value, the environmental controls on it are rigidly enforced. Yet when there is native vegetation on council land, the council barely does it's job.

Consider these two VCAT cases. Both are from 2011 and are a month apart. It is true that the elected Councillors have changed since that time, but most of the permit approval work is done by council staff and they mostly have not changed since 2011.

The first case involves a property in Warrandyte.

A large treed block was bought by a migrant family. They set about planting some fruit trees, they also brought in some soil, dug a trench and put up a retaining wall. All this was done without a permit.

However the real problem was that Council considered the native vegetation on their land to have a 'fairly high habitat value'. And they came down on this family like a ton of bricks.

Basically the council wanted everything done undone. They put several management procedures in place to ensure that all changes done were identified, reversed and the native vegetation replaced.

And they plan to supervise this process for the next ten years. Also they insist that if the property is sold then the new owners are to be bound by and continue the site restoration until the completion of the ten year period.

Look at the VCAT orders. The land owners leave the court like tied-up lobsters. See VCAT case 2044 (27 October 2011). The orders are:

ORDERS

1. The Tribunal finds that between 2009 and August 2011 the land at xx-xx xxxxxx xxxxx, Warrandyte (Land) was developed by the Respondents in contravention of clause 42.01-2, 42.03-2 and 52.17 of the Manningham Planning Scheme (Scheme) in that native vegetation was removed and/or destroyed, trenching works were carried out, fill was imported onto the Land and part of a retaining wall was constructed without planning permission.

2. The Respondents must not carry out any further works on the Land unless specified in this Order or permitted by the Scheme.

3. For the purposes of the requirements set out in the balance of these orders the following shall apply:

A reference to "Area A" means the area as shown on the plan annexed to these orders. A reference to "Area B", "Area C" and "Area D" shall operate on the same basis. The Respondents must within 7 days of the date of this order notify the Responsible Authority of its intended consultant for the purposes of Order 3, and must carry out the following to the satisfaction of the Responsible Authority:

(a) Within 14 days of the date of this Order, identify weeds to be controlled in Area A, Area B, Area C and Area D.

(b) Within 14 days of the date of this Order, commence a program to control the weeds in Areas A, B, C and D, which program must be approved by the Responsible Authority prior to commencement of the program and then maintain the weed control program to the satisfaction of the Responsible Authority until such time as it is superseded by the approved Environmental Management Plan.

(c) Within 14 days of the date of this Order, remove the fill around the trees in Area C to a horizontal distance of at least three metres from the trunk and to a depth to natural ground level. The works are to be undertaken under the supervision of an appropriately qualified expert approved by the Responsible Authority.

(d) Within 14 days of the date of this Order, the Respondents must provide the Responsible Authority with documentation identifying the piles of imported soil/gravel/rubble to be removed and the proposed method for that removal. Within 30 days of the date of this Order, the Respondents must remove the identified piles of imported soil/gravel/rubble.

(e) Within 45 days of the date of this Order the trench on the Land dug by the Respondents must be filled in by the Respondents under the supervision of an appropriately qualified expert approved by the Responsible Authority. Prior to the commencement of the trench re-filling, the chosen and approved expert must consult with the Responsible Authority so as to provide notice of the likely commencement of that task (Hamish Allen shall be the preferred Council contact person. His contact phone number is 9840 9228).

(f) In relation to the re-filling of the trench provided for above, the following requirements shall apply:

In relation to the method for the re-filling of the trench with the spill from the trench, the layers identified in the spill must be replaced in the trench in equivalent layers.

The re-filling of the trench to be carried out by xxxxxxx xxxxx must only occur under the supervision of a suitably qualified expert appointed by the Respondents and approved by the Responsible Authority, or otherwise may be undertaken by an alternative contractor approved by the Responsible Authority.

(g) Within 14 days of the date of this Order, the Respondents must provide the Responsible Authority with documentation identifying the fruit trees to be removed from Area C (those trees located adjacent to the road) and the proposed method for that removal. Within 30 days of the date of this order, the Respondents must remove all the fruit trees from that part of Area C.

(h) Within 30 days of the date of this order, the Respondents must provide the Responsible Authority with documentation identifying the rock wall, rocks, building materials and fill to be removed from Areas C and D. Within 90 days of the date of this Order, the Respondents must remove this rock wall, rocks, building materials and fill.

(i) Within 14 days of the date of this order, the Respondents must provide the Responsible Authority with documentation identifying the fruit trees to be removed from the rock wall of Area C and the method of removal and relocation to the area to which they are to be replanted on the western boundary of the Land in Area D.

The Respondents and/or any subsequent owners of the Land must implement the requirements set out above in the timeframes specified, or such other time allowed in writing by the Responsible Authority in writing.

4. The Respondents must within 120 days of the date of this Order submit to the Responsible Authority for its approval three copies of an Environmental Management Plan (EMP) prepared by a suitably qualified ecological consultant. The EMP must (but not limited to) take into account and include the following:

(a) A detailed map of the Land that is fully dimensioned and which shows the prevailing conditions of the Land including buildings (fences) topography, watercourses, drainage lines and vegetated areas. It must also include the 'trenching' on the Land, the location of the fill, the retaining wall and 'pad', areas of soil disturbance and planting of fruit trees all as referred to in this Order;

(b) A detailed description of the existing indigenous vegetation and habitat values of the Land;

(c) Details of the immediate threats to flora and fauna on the Land from works that have been conducted and a program(s) to control those threats;

Trenched area (Area A)

(d) In relation to Area A:

(i) The assessment of Area A by a suitably qualified expert appointed by the Respondents and the Responsible Authority’s appointed expert after 12 months from the date of this Order, to ascertain the number of trees, shrubs, herbs and grasses (to be indigenous) to be planted to restore the trenched area;

(ii) The method of revegetation including location, type, size of vegetation to be replanted and the proposed methods for the maintenance of the replanted vegetation for a period of 10 years;

(iii) The remedial planting of the vegetation in Area A must to be carried out by a registered contractor engaged by the Respondents and approved by the Responsible Authority to the satisfaction of the Responsible Authority and carried out within 30 days of approval of the revegetation plan.

Pad area (Areas C and D)

(e) In relation to Areas C and D, the assessment of these areas by a suitably qualified expert appointed by the Respondents and the Responsible Authority’s appointed expert after 12 months from the date of this Order to ascertain the requirement for remedial works and the extent of those works including the number of trees, shrubs, herbs and grasses (to be indigenous) to be planted to remediate these areas;

(f) The remedial planting of the vegetation in Areas C and D must be carried out by a registered contractor engaged by the Respondents and approved by the Responsible Authority to the satisfaction of the Responsible Authority and carried out within 30 days of approval of the revegetation plan;

Other general requirements

(g) In relation to any remnant imported soil or gravel or rubble which is still located on the Land at the time of the approval of the EMP, the EMP must identify this remnant soil/gravel/rubble and provide a time frame for its removal and any associated weed control and other management measures, to the satisfaction of the Responsible Authority.

(h) The Respondents and any subsequent owners of the subject land must maintain any areas to be revegetated, remediated and/or managed under the approved EMP for a period of 10 years after the date of approval of the EMP, to the satisfaction of the Responsible Authority.

5. Once approved by the Responsible Authority, the Respondents and any subsequent owners of the Land must implement the requirements set out in the EMP in the timeframes specified in the EMP, or such other time allowed by the Responsible Authority in writing.

6. To deal with any future lawful development of the Land or other relevant changing circumstances, the Respondents or subsequent owner of the Land may from time to time apply to the Responsible Authority to amend the EMP. Any proposed variation must be approved by Council in writing. Where the Respondents or any future owner propose during the life of the approved EMP to further develop the land in a manner which would impact on some or all of Areas A, B, C or D, then any such proposed development shall not commence until:

(a) any necessary statutory approvals are obtained; and

(b) a suitably updated version of the approve EMP is provided to and approved in writing by the Responsible Authority.

7. Within 90 days of approval of the EMP, the Respondents must enter into an agreement with the Responsible Authority under section 173 of the Planning and Environment Act 1987 to ensure that any successor in title is aware of the obligations to fulfil the requirements of the EMP and also aware that these obligations are binding on all future owners of the Land during the life of the EMP. A current copy of the approved EMP and of these enforcement orders must be kept available at all times for inspection at the planning office of the Responsible Authority. Each party shall bear their own costs in the preparation of this agreement. This agreement shall include a ‘sunset clause’ to ensure that the agreement has no force or effect once the requirements of the EMP have expired and to facilitate the agreement then being removed from the title.

8. The Responsible Authority and the Respondents must both promptly provide all necessary assistance and cooperation to ensure that the fully executed Section 173 Agreement is as soon as practicable lodged with the Victorian Land Titles Office and registered in due course. Each party shall bear their own costs in the lodging of the Section 173 agreement.

9. In relation to the period between the date of these orders and the date on which the Section 173 Agreement referred to above is registered on the title to the Land, if during this period the Respondents intend to exchange contracts for the sale of the Land, then in these circumstances, the Respondents must ensure that a full copy of these enforcement orders and the most up to date version (if any) of the Section 173Agreement forms part of the Vendor’s Statement provided to any prospective purchaser. This Enforcement Order 9 shall have no further effect once the requisite Section 173 Agreement is registered on the title to the Land.

10. If at any time during the period of operation of the EMP (ie both before and after the registering of the Section 173 Agreement) the Respondents intend to exchange contracts for the sale of the Land, the Respondents must ensure that the Vendor’s Statement forming part of that contract includes a written status report from the Responsible Authority regarding the works required under the EMP. In particular, this status report must confirm whether or not the Responsible Authority accepts (at that point in time) the Respondents are in compliance with implementing the requirements of the EMP. If any such request for a status report is received by the Responsible Authority, then it must provide same to the Respondents within 21 days of the date of the written request.

11. The obligations and requirements of these enforcement orders shall be binding on each of the Respondents on a joint and several basis.

12. Costs reserved.

Did you notice order 3(f) the dirt taken from the trench had to be returned to the trench in the same order and layers as it came out.

There is an environmental mania behind all of this.

Let's look at a different case that occurred just one month after the above. It is VCAT 2098 on 4 November 2011.

Someone wanted to develop a block of land that backed onto Ruffey Lake park. They wanted to put three two story units on the block. The council approved the application but it was challenged by a neighbour. The problems with the development related to both the design and also the retention of vegetation (para 6). The neighbour won the case and VCAT did not grant the permit.

Apparently the council approved the application without having an arborist's report (see para 9) despite the fact the development was near a number of trees in the park and also near trees in the neighbour's property.

An arborists report was provided to the court but this report was prepared early in the peace without any knowledge of what was going to be built on the property. And off course, it could not comment on building design and position, etc. in relation to the vegetation.

Also the council approved the permit without considering the developments impact on existing vegetation (para 11) nor did they seek the views of the council's own parks officer or landscape officer.

It is not what you would call a thorough examination of the issues.

The problems start with the native trees in the park. Some would overhang the development (that is how close the buildings would be to parkland trees). One particular parkland tree would be 1 meter from the proposed development. And as pointed out in court, the AS4970 standard requires that the development should be at least 4.4 meters from this tree.

Also one 7 meter non-native tree on the neighbour's property would have a excavation for a driveway about 0.5 meters from its trunk.

Do you see the difference in approach?

There is an environmental mania infecting our council. If they think land provides a habitat for native animals, there is no stopping them.

But when it comes to the processing of building permit approvals that impact native vegetation (and quite possibly native animal habitat) in Ruffey Lake Park and how a development would effect other people's trees and gardens, our council is unbelievably 'open minded' and barely do their job.

21 Nov 2103.