Most developments and changes to the way land is used in Victoria will be governed by the requirements contained in a local planning scheme, which may require an application for a planning permit.

There are no direct links between the protection of threatened species and the planning process in Victoria. Other than the general duty of public authorities to have regard to the objectives of the Flora and Fauna Gaurantee Act, there is no requirement that planning schemes under the Planning and Environment Act 1987 (Vic) be consistent with Flora and Fauna Gaurantee Act (Vic) environmental protection measures.

There are however two ways in which biodiversity is protected through Victorian land use planning; these are:

• through an interim conservation order (“ICO”) under the Flora and Fauna Gaurantee Act; and
• by incorporating biodiversity protection into planning schemes.

Provision 52.17 of the Victorian Planning Provisions states that a planning permit is required to remove, destroy or lop native vegetation on a parcel of land of 0.4 hectares or more, except where certain exemptions apply. These exemptions include:

• specified scheduled areas;
• the necessary clearance of native vegetation for:
  • removal of dead vegetation;
  • emergency works, where there is a risk of damage to person or property;
  • some fire prevention and fire-fighting measures;
  • harvesting of planted native vegetation or licensed timber harvesting;
  • licensed or permitted extraction activities;
  • surveying activities;
  • certain rural activities;
  • stock movements on roads;
  • weed and vermin control;
  • the construction, use and maintenance of buildings and ancillary works;
  • utility services; and
  • mineral exploration and mining.

For more information on the restrictions on removal of native vegetation without a permit see When can native vegetation be removed? Planning Scheme Clause 52.17.

In deciding Permit applications, responsible authorities, in addition to the general Decision Guidelines in Provision 65, must consider the specific Decision Guidelines in Provision 52.17.

The specific Guidelines require, amongst other things, consideration of environmental policies contained in the State Planning Policy Framework ("SPPF") (including Provision 15.09 ‘Conservation of Native Flora and Fauna’) and establishment of native vegetation elsewhere on the land. Specific Guidelines in Provision 52.17 also require that Regional Vegetation Plans (where prepared) be considered. These plans are prepared by Catchment Management Authorities (‘CMAs’) across Victoria.

Generally, notice of an application for a permit must be given to owners and occupiers of adjoining land and, where the application relates to land on which there is a building classified by the National Trust, to the National Trust (Provision 67.02). However, these notification requirements do not apply to an application to remove, destroy or lop native vegetation under Provision 52.17. Such an application is instead covered by the notice requirements of Provision 67.03.

Provision 67.03 provides that, in accordance with section 52(1)(c) of the Planning and Environment Act 1987 (Vic), notice of an application to remove, destroy or lop native vegetation under Provision 52.17 must be given to the Secretary of the Department administering the Flora and Fauna Guarantee Act 1988, currently the Secretary to the Department of Sustainability and Environment.

Under the Flora and Fauna Gaurantee Act, an interim conservation order (“ICO”) will suspend the operation of a planning permit issued under the Planning and Environment Act 1987 or the Environment Protection Act 1970 (Vic), if that planning permit is inconsistent with the ICO's also override any inconsistent provisions of a planning schemes under the Planning and Environment Act 1987 (Vic).

In practice, these provisions have had very little impact on the protection of biodiversity. The result is that incorporating biodiversity protection mechanisms into planning schemes remains one of the few means of protecting biodiversity using Victorian law.

The principal instruments for controlling the use and development of land in Victoria are planning schemes. These are made, amended, administered and enforced under the Planning and Environment Act 1987. planning schemes exist for each municipality in Victoria.

The Victorian Planning Provisions (VPP) are State-wide planning provisions that councils use to build the planning scheme.

Under the VPP, each planning scheme must address certain items, including:

• the standard State-wide policies (called the State Planning Policy Framework),
• any local policies, and selected zones and overlays.

A number of these provisions place controls on the clearance of native vegetation. ‘Native Vegetation’ is defined in the VPP as 'plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses'; (see Provision 72 of the VPP). These items provide considerable scope for a local Council to develop, incorporate and enforce flora and fauna protection policies and measures into its planning scheme.

Examples of native vegetation, flora and fauna protection in the VPP include:

• Provision 15.09 which relates to the ‘Conservation of Native Flora and Fauna’, and
• Provision 52.17 which stipulates that, subject to certain exceptions, a planning permit is required to clear native vegetation on a parcel of land of 0.4 hectares or more

Planning and responsible authorities must take account of, and give effect to, these general and specific policies.

The information below discusses the use of 'overlays' and 'planning permits' to protect biodiversity and habitat.

Victorian planning laws allow local authorities to include one or more overlays within the planning schemes. A range of overlays can be used for environmental purposes, including ‘Environmental Significance’, ‘Vegetation Protection’, ‘Significant Landscape’, ‘Heritage’, ‘Erosion Management’, ‘Salinity Management’, ‘Floodway’, and ‘Environmental Audit’ (for potentially contaminated land).

The VPP enables planning authorities, which include local councils, to develop a ‘Vegetation Protection Overlay’ (‘VPO’) to establish tighter controls over the protection of native vegetation than provided for by Provision 52.17. Each VPO must include a ‘Schedule’ of vegetation to be protected; (see Provision 42.02).

• the ‘Environmental Significance Overlay’ and
• ‘Vegetation Protection Overlay’, whereby a planning permit is required to remove, destroy or handle certain vegetation.

Planning authorities should be lobbied to apply this overlay in areas where the need to protect vegetation is greatest.

Further guidance on how to assess the significance of vegetation in urban areas and how to develop a strategy for vegetation protection through the planning scheme can be found in the Department of Sustainability and Environment - VPP Practice Notes for Vegetation Protection in Urban Areas.

Provision 52.18 of the Victorian Planning Provisions provides that native vegetation on Crown land that is to be used for timber production is exempt from the permit requirements contained in Provision 52.17.

Note that all timber production activities (except agro forestry, windbreaks, and small commercial plantations of 5 ha or less) must comply with the Code of Forest Practices for Timber Production.

In determining permit applications under Provision 52.18, the responsible authority, in addition to the general Decision Guidelines in Provision 65 must consider the specific Decision Guidelines under Provision 52.18.

The matters that the responsible authority must consider include:

• protecting water quality;
• preserving flora and fauna;
• preventing land degradation; and
• preventing adverse affects of groundwater recharge.

• View the Planning and Environment Act 1987 on Austlii

• Victoria Planning Provisions

• Department of Sustainability and Environment Practice Note - Ministerial Powers of Intervention in Planning and Heritage Matters

• Department of Sustainability and Environment Practice Note - Managing Native Vegetation in the Planning System

• Department of Sustainability and Environment Practice Note - Buildings and Native Vegetation removal

• Department of Sustainability and Environment Practice Note - Farming and Native Vegetation removal

• Victorian Government - Department of Planning and Community Development (DPCD)

• Department of Sustainability and Environment - VPP Practice Notes for Vegetation Protection in Urban Areas.

• An introduction to Planning Law in Victoria.