REASONS FOR DECISION TO EXERCISE POWER OF
INTERVENTION
UNDER SECTION 20(4) OF THE PLANNING AND
ENVIRONMENT ACT 1987
NILLUMBIK PLANNING SCHEME AMENDMENT C62
The Planning and Environment Act 1987, the Heritage Act 1995 and the Victorian Civil
and Administrative Tribunal Act 1998 provide for the intervention of the Minister for
Planning in planning and heritage processes.
In exercising my powers of intervention, in accordance with the Ministerial Powers of
Intervention in Planning and Heritage Matters Practice Note, I have agreed to:


Make publicly available written reasons for each decision; and
Provide a report to Parliament at least every twelve months detailing the nature of
each intervention.
REQUEST FOR INTERVENTION
1.
Nillumbik Shire Council requested that the Minister prepare, adopt and approve
Amendment C62 to the Nillumbik Planning Scheme under section 20(4) of the
Planning and Environment Act 1987.
2.
Amendment C62 will introduce provisions into the Nillumbik Planning Scheme
which remove restrictions regarding the clearing of vegetation to promote the
effective management of residential properties for environmental and wildfire
safety purposes.
WHAT POWER OF INTERVENTION IS BEING USED?
3.
I have decided to exercise my powers to exempt myself from all the requirements
of sections 17, 18 and 19 of the Planning and Environment Act 1987 and the
regulations in respect to Amendment C62 to the Nillumbik Planning Scheme.
4.
Section 20(4) of the Planning and Environment Act 1987 enables the Minister for
Planning to exempt an amendment which the Minister prepares from any of the
requirements of sections 17, 18 and 19 of the Act or the regulations.
5.
In seeking to exercise this power, section 20(4) of the Act requires that the
Minister must consider that compliance with any of those requirements is not
warranted or that the interests of Victoria or any part of Victoria make such an
exemption appropriate.
BACKGROUND
6.
Amendment C62 seeks to make the following changes to the Nillumbik Planning
Scheme:
7.

Replace the existing Incorporated Document ‘Shire of Nillumbik Environmental
Weed List 2004’ with an updated 2009 version that includes an additional 100
weed species.

Modify the Significant Landscape Overlay Schedule 2, the Environmental
Significance Overlays Schedules 1 to 4 and the Special Use Zone Schedule 2
to exempt the removal of species listed in the updated Shire of Nillumbik
Environmental Weed List 2009 from requiring a planning permit.

Modify the Schedule to Clause 52.17 (Native Vegetation) to identify native
species where a permit is not required to remove, destroy or lop the
vegetation.

Modify the Environmental Significance Overlay Schedules 1 to 4 to exempt
the removal of certain types of dead vegetation and vegetation planted for
aesthetic or amenity purposes (including agroforestry, shelter belts, woodlots,
street trees and gardens) from requiring a planning permit.

Modify the Special Use Zone Schedule 2, Schedule 1 to the Design and
Development Overlay, Schedules 1 to 4 to the Environmental Significance
Overlay, and Schedules 2 to 5 to the Significant Landscape Overlay to exempt
the clearing of the native shrub species Kunzea ericoides (commonly known
as ‘Burgan’) for fire prevention purposes.
With the exception of the provisions relating to the removal of Burgan, the
additional permit exemptions proposed under this amendment are consistent with
the permit exemptions for the removal of vegetation that are already provided in
Clause 52.17 (Native Vegetation) of the State Planning Policy Framework. The
proposed exemptions will also make it easier for affected landowners to clear
vegetation for bushfire prevention purposes and as such there is a degree of
urgency in the approval of these changes.
BENEFITS OF EXEMPTION
8.
9.
By providing for further permit exemptions for the removal of certain types of
vegetation and management of weed species the exemption will:

Improve consistency in permit exemptions for the clearing of certain types
of vegetation between Clause 52.17 (Native Vegetation) of the Victoria
Planning Provisions and Council’s Environmental and Landscape Overlays
and Special Use Zone Schedule 2.

Address Section 4 of the Planning and Environment Act 1987 (the
Objectives of Planning in Victoria) by helping contribute to the sustainable
use of land, the protection of natural resources and the maintenance of
ecological processes and genetic diversity.
The exemption is also justified on the grounds of urgency as the Amendment will
enable the clearance of vegetation for bushfire prevention purposes.
EFFECTS OF EXEMPTION ON THIRD PARTIES
10.
If an exemption from notice requirements is granted, interested parties would not
be given formal notice and the opportunity to make a submission about the
amendment.
11.
The views of affected parties are known:

Council has requested the changes to the Nillumbik Planning Scheme.

The Department of Sustainability and Environment (DSE) does not object to
the majority of the changes proposed within the amendment. However, DSE
does not support the removal of permit requirements for the clearing of
Burgan.

Correspondence received on this issue from local environmental and
community groups and Steve Herbert MP, Member for Eltham are critical of
Council’s request to remove permit requirements for the clearing of Burgan.
ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS
ON THIRD PARTIES
12.
Council has requested the amendment and the views of affected parties are
known.
13.
The amendment proposes updates to the existing local provisions within the
planning scheme to provide further permit exemptions for the clearing of
vegetation which will provide for greater consistency between State and Local
provisions and help residents of the Shire prepare their properties for the coming
bushfire season.
14.
Accordingly I consider that the benefits of exempting myself from sections 17, 18
and 19 of the Act outweigh any effects of the exemption on third parties.
DECISION
15.
I have decided to exercise my power to exempt myself from all the requirements of
sections 17, 18 and 19 of the Planning and Environment Act 1987 and the
regulations in respect of Amendment C62 to the Nillumbik Planning Scheme.
REASONS FOR INTERVENTION
16.
In accordance with the Ministerial Powers of Intervention in Planning and Heritage
Matters Practice Note I provide the following reasons for my decision to exercise my
power under section 20(4) of the Planning and Environment Act 1987.
17.
I am satisfied that Compliance with any of the requirements of sections 17, 18 and 19 of the Act and
the regulations is not warranted because:

the amendment will give effect to an outcome where the issues have been
reasonably considered and the views of the affected parties are known.
The interests of Victoria or any part of Victoria make such an exemption appropriate
because:

There is a need for urgency and the public interest would be served by
immediate action so that clearance can be carried out prior to the next
bushfire season.
Signed by the Minister
MATTHEW GUY MLC
Minister for Planning
Date: 24 March 2011