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Amendment VC262 – Implications for Planning Enforcement Officers
Introduction
Amendment VC262 commences on 16 August 2024 and amends all planning schemes in relation to the following:
· Clause 42.01 (Environmental Significance Overlay)
· 42.02 (Vegetation Protection Overlay)
· 42.03 (Significant Landscape Overlay)
· 44.01 (Erosion Management Overlay)
· 44.02 (Salinity Management Overlay)
· 52.16 (Native Vegetation Precinct Plan)
· 52.17 (Native Vegetation)
What is the purpose of the amendment?
The purpose of the amendment is to exempt vegetation that is to be removed, destroyed or lopped to the minimum extent necessary to comply with a fire prevention notice issued under the Fire Rescue Victoria Act 1958. There is currently an exemption in relation to a fire prevention notice issued under the Country Fire Authority Act 1958 and the Forests Act 1958.
What is the wording of the clause?
In relation to clause 52.17, the clause now reads:
Native vegetation that is to be removed, destroyed or lopped to the minimum extent necessary to carry out any of the following fire protection activities:
· In accordance with a fire prevention notice issued under either:
o Section 87 of the Fire Rescue Victoria Act 1958;
o …
o Section 41 of the Country Fire Authority Act 1958.
What can be seen from the wording of the clause is that there is an internal inconsistency in the wording of the clause. The opening phrase permits a person to remove, destroy or lop native vegetation to ‘the minimum extent necessary' for the carrying out of any of the following activities. In relation to a fire prevention notice, the activity must be in accordance with the fire prevention notice.
What follows from the above is that, on one reading, a person may remove, destroy or lop to the minimum extent necessary native vegetation to comply with a fire prevention notice. Importantly, the wording of the clause provides an area on the spectrum of what is ‘the minimum extent necessary' which is up for debate.
What does this mean for Council?
Council fire prevention officers should be alive to the requirement to be clear in the fire prevention notice as to what is required to be done by the land owner. Ambiguous notices may result in the loss of important vegetation on the back of ‘compliance with a fire prevention notice'.
