Monday 8th April | 10:45am
The role of the arborist in applying the planning scheme exemptions and enforcement
John Rantino is a Special Counsel with Maddocks Lawyers. He has nearly 40 years of experience, primarily acting for state government, statutory authorities and local government . His expertise spans governance, planning, and enforcement matters, having appeared before various judicial bodies, including VCAT, other tribunals, planning panels, and courts.
John has drafted and given advice on many tree protection local laws. He has advised councils on civil liability for damage caused by falling trees and tree roots and has appeared in over a thousand prosecutions, including prosecutions for unlawful vegetation removal.
He has been recognised by Best Lawyers Australia every year since 2013 for Public Law, since 2014 for Planning and Environmental Law and since 2016 for Government Practice. In 2022, he was honoured as 'Lawyer of the Year - Melbourne' for Planning and Environmental Law. Doyle's Guide has listed him as 'preeminent' in Leading Town Planning & Development Lawyers – Victoria in 2022 and 'recommended' in Leading Environment & Climate Change Lawyers – Victoria in 2023
The native vegetation control in the Victorian planning schemes (clause 52.17) and a number of the landscape and vegetation protection overlays exempt the removal, destruction or lopping of protected vegetation where the vegetation “presents an immediate risk of personal injury or damage to property” In each case the scheme stipulates that: “Only that part of the vegetation that presents the immediate risk may be removed, destroyed or lopped under this exemption”. In a similar vein, the planning schemes authorise the removal, destruction or lopping of vegetation to undertake specified activities but only “ to the minimum extent necessary to enable” the activity to occur. The Tribunal is regularly called upon to determine disputes between the council and a land owner as to whether the vegetation the owner seeks to remove, destroy or lop is “an immediate risk of personal injury or damage to property” or “to the minimum extent necessary” to enable an activity to occur. The Panel will look at the role of the council advocate, the Tribunal and the expert arborists where such disputes arise.
The second topic relates to the enforcement of a planning scheme. Where a council becomes aware of the unlawful removal of protected vegetation, it falls on the council to decide whether to issue an infringement notice, prosecute, take enforcement order proceedings or take no action. Where enforcement action is contemplated, the council will need to prove that the vegetation was protected by the planning scheme, and obtain evidence as to who removed, destroyed or lopped the vegetation, when it was removed, destroyed or lopped, the environment and landscape values of the vegetation and how and when the land should be rehabilitated. This can be very difficult where the vegetation is totally removed or destroyed so as to leave no or little remains of the vegetation. The Panel will look at the task of gathering evidence and the role of the council advocate, the Tribunal and expert arborists where enforcement options are considered and/or pursued.