Tree Removal Exemptions Clarified - Clause 1 Planning Clause 1 Planning

Regular permit applicants will be aware that Clause 52.48 of the Victorian Planning Provisions provides powerful exemptions from permit triggers for tree and other vegetation removal under the heading of ‘Bushfire Protection: Exemptions”.

In a recent VCAT matter, Rescom Aqueduct Langwarrin Pty Ltd v Frankston CC [2016] 1573, Clause 1 Planning was provided an opportunity to seek clarification relating to the precise nature of these exemptions.

What are the exemptions

Exemptions around buildings used for accommodation

Clause 52.48-1 specifies that:

Any requirement of a planning permit, including any condition, which has the effect of prohibiting the removal, destruction or lopping of vegetation, or any requirement of this planning scheme to obtain a planning permit, or any provision of this planning scheme that prohibits the removal, destruction or lopping of vegetation or requires the removal, destruction or lopping of vegetation to be carried out in a particular manner, does not apply to:

The removal, destruction or lopping of any vegetation within 10 metres of an existing building used for accommodation…;

The removal, destruction or lopping of any vegetation, except trees, within 30 metres of an existing building used for accommodation…;

The removal, destruction or lopping of any vegetation, except trees, within 50 metres of an existing building used for accommodation where land is within the Bushfire Management Overlay…

Generally, the building used for accommodation must have been constructed or approved prior to September 10, 2009.

These exemptions apply to all land throughout Victoria except for the inner and middle metropolitan municipalities. Specifically, the exemptions do not apply:

… to land covered by the Banyule, Bayside, Boroondara, Brimbank, Darebin, Glen Eira, Greater Dandenong, Hobsons Bay, Kingston, Knox, Maribyrnong, Maroondah, Melbourne, Monash, Moonee Valley, Moreland, Port of Melbourne, Port Phillip, Stonnington, Whitehorse and Yarra planning schemes unless the land is included in a Bushfire Management Overlay or is specified in a schedule to this clause.

Exemptions along fence lines

Clause 52.48-2 provides that:

The removal, destruction or lopping of any vegetation for a combined maximum width of 4 metres either side of an existing fence on a boundary between properties in different ownership that was constructed before 10 September 2009

This exemption applies also to all land throughout Victoria except for the inner and middle metropolitan municipalities. Specifically, the exemptions do not apply:

Other exemptions

Clauses 52.48-3 through to 52.48-5 detail exemptions:

For buildings and works associated with a community fire refuge;
For buildings and works associated with a private bushfire shelter;
To create defendable space for a dwelling …;

Interpreting the exemptions

In Rescom Aqueduct Langwarrin Pty Ltd v Frankston CC our development proposal included the removal of a large number of trees that we said where exempt from any requirement for a planning permit under the above exemptions. During our VCAT hearing several issues were raised with regards to how the exemptions should be interpreted and applied.

Following is a summary of those questions and the answer provided by the presiding legal member:

Question 1: Do clauses 52.48-1 & 52.48-2 apply to the removal, destruction or lopping of vegetation only for a bushfire protection purpose?

Council argued that a developer should not be allowed to remove vegetation under the exemptions unless it could be shown that the removal was required for bushfire protection purposes.

However, VCAT did not agree with Council’s position and upheld an earlier ruling in Nillumbik SC v Potter [2010] VCAT 669 in which the Tribunal:

… acknowledged there would be circumstances in which vegetation may be removed, destroyed or lopped for a ‘development advantage’ and not for ‘bushfire protection’, but that clause 52.43 cannot be interpreted ‘ … to require proof of subjective intent by landowners who remove vegetation under the exemption …’.

Question 2: Does clause 52.48-1 apply to vegetation within 10 metres of a building used for accommodation located on adjoining land?

In determining whether the exemption applies to trees on the subject site that are located within 10m of a dwelling (or outbuilding) sited on a neighournig property the Tribunal concluded:

Having regard to natural meaning, there is nothing in the buildings exemption that expressly excludes land within 10 metres of a dwelling located on adjoining land. The purpose of the provision is to create defendable space around buildings used for accommodation. It would promote the purpose of the buildings exemption to allow it to operate to create defendable space around buildings if parts of the defendable space are on adjoining lots.

51 …

52 The answer to this question is ‘yes’.

Question 3 was in three parts:

(a) Does clause 52.48-2 apply to vegetation located on a boundary fenceline?

The Tribunal’s answer was yes.

(b) In clause 52.48-2, does a boundary fence include a front boundary fence or a fence along a road or other reserve?

The Tribunal’s answer was yes.

(c) Does clause 52.48-2 apply to vegetation located within four metres of both sides of a boundary fence?

The Tribunal concluded that clause 52.48-2 does not allow the removal of vegetation within 4 metres of both sides of the fence. The presiding Member stated:

… I find the exemption does not apply to clearing of vegetation on one side of a boundary fence if vegetation has been cleared on other side of the boundary fence to a width of four metres or more.

I agree that the exemption would be clear and simple for owners and Councils if clearing was exempt for a four metres distance on either side of a relevant fence…

The tribunal also reiterated previous calls for a planning scheme amendment to address the confusion caused by the wording of Clause 52.48-2.

The above should help applicants better understand the permit exemptions provided by Clause 52.48. Used as they are were intended they can save significant time and effort when dealing with Council.

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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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