Rough Theory

Last year we conducted a number of site visits related to planning issues arising from Victoria’s Net Gain policy. The Net Gain policy was added to Victorian planning schemes in 2003 as part of Amendment C19, but significant details relating to how the policy would be implemented were still being fleshed out at the time our visits were being conducted in mid-2005.

At base, the policy is intended to provide a strong incentive for developers to preserve native habitat, by requiring native vegetation displaced during development to be replaced by a much larger quantity of equivalent native vegetation, in a similar ecological niche. While everyone understood the strategic intent of the policy clearly enough, there was considerable uncertainty over the details of implementation. It was common for us to witness genuine confusion over what was “equivalent” vegetation, how much additional vegetation was needed to offset the removal of a particular patch of native vegetation, how far from the original site the “offset” vegetation could be located and, especially, how to interpret the apparent permission granted under the policy, on some occasions, to contribute money or other works in lieu of offset plantings.

We observed various disputes and negotiations contesting whether and how Net Gain policy applies to particular patches or pieces of vegetation. One of my favourites was an attempt to decide whether a particular patch of trees were “natural” or not. This dispute arose because the policy (at least as it was understood in the field at that time – I’m happy to be corrected on this) did not attach Net Gain obligations to native habitat that was deliberately planted – only to native habitat that had arisen “naturally” – presumably because there would otherwise be a strong disincentive to plant any new native vegetation. This policy exception then led to a series of quite intriguing debates over whether, for example, specific trees had arisen spontaneously from fallen seeds, or had been planted actively by farmers in the distant past.

On one site visit, the developer (who was, by and large, quite interested in retaining red gums for the amenity they would ultimately provide to the development) was negotiating the offset implications of a few trees that would need to be removed to clear space for a wetland (itself a product of a requirement for water sensitive urban design). The developer argued that certain red gums had been deliberately planted, and were therefore not sufficiently “natural” for Net Gain to attach. The Council staff asked for proof, and were shown the way in which the red gum trees had been carefully fenced – presumably to protect them from damage by grazing livestock. The Council staff argued that this wasn’t sufficient evidence: that the trees could have arisen naturally, only to have the farmer decide to protect them from livestock at a later point. The developer then responded by walking Council staff further into the proposed wetland area, and showing them this:

The tree actually looks too old, to me, to have been originally planted in this kind of pot, but it was a fantastic moment in the negotiation process.