Legal case

The VCAT case for to protect endangered trees in a farming landscape 

The ongoing clearing of native vegetation for farming activities is a significant issue in Victoria. Vast swathes of native vegetatian have been cleared. Where clearing continues today in Victoria it can impact on endangered species or ecological communities. Farming must strike a balance with the environment and make sure biodiversity – so vital to sustaining life – is protected.

In 2017, our team at EJA was involved in calling for changes to all Victorian planning schemes that aimed to better protect Victoria’s unique biodiversity. We had an opportunity to test the strength of those laws in a this VCAT case challenging permission to remove scattered paddock trees in a farming landscape.

In May 2018, the West Wimmera Shire Council granted a permit to remove 23 scattered trees on farming land at Serviceton, between the township of Kaniva and the South Australian border. Pressure had been growing in the region to remove scattered paddock trees in order to facilitate large cropping machinery.

The proposal was for the removal of 23 large Grey Box trees on around 250 hectares on zoned farming land used for crop growing, from among around 80 scattered paddock trees. An offset for the removal was proposed on adjacent land, comprising a patch of trees of a different vegetation type.

On behalf of three individual community members, we lodged a case with VCAT to review the decision of the Council to grant the permit.

Our clients were concerned about the incremental loss of large trees, and the natural and biodiversity values they provide, in the farming landscape. These are heavily cleared and over-developed landscapes, a fact long acknowledged in the Shire’s local planning policies.

The large paddock trees in question were associated with an endangered vegetation community – Low Rises Woodland – of which approximately only 10 percent remains regionally.

This was the first time VCAT considered the native vegetation clearing controls that were introduced into all Victorian planning schemes in the 2017 amendments to protect biodiversity.

This case was an important test of those new protections to see if they could do their job protecting native vegetation important to Victoria’s biodiversity from overdevelopment – particularly scattered paddock trees in farming landscapes.

To protect biodiversity, it’s critical that environmental connectivity is restored across these landscapes and significant trees like these are protected. There is extensive scientific evidence of the disproportionate importance and value of large, old trees in these landscapes to a healthy balance between agricultural production and biodiversity protection.

 

On 16 January the Victorian Civil and Administrative Tribunal (VCAT) remade the decision by West Wimmera Shire Council to grant the permit for the removal of the 23 Grey Box trees, and decided not to grant the permit.

The Tribunal found that the area at issue was not critical in terms of economic outcomes (thereby not undermining the land use and the proponent’s enterprise) and needed to be weighed against the strengthening of native vegetation protections.

The Tribunal accepted evidence that the native vegetation at issue was associated with an endangered vegetation type and, importantly, that scattered trees represent a ‘keystone structure’, hence with defining ecological function, in the farming landscape. The decision in this matter is a guideline (‘red dot’) decision of the Tribunal. That means it is a leading decision for the Tribunal and councils in dealing with issues (native vegetation clearing) raised in the case.

“Farming industries can and should thrive but within a balance with the environment and make sure biodiversity – so vital to sustaining life – is protected. The planning system has a major role in ensuring ecological values are retained and guide good land use decision-making.”

– Bruce Lindsay, Senior Lawyer, EJA

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