Those trees are protected …. aren’t they?

What a sorry tale here from Gary about what you think might happen, or what you assume will happen, or what you believe might happen is not what happens… Likely BE Neters are reminded of a similar more public protected tree? In the comments please tell us what you would like to know from the council and we will put the questions to them.

Those trees are protected …. aren’t they? by Gary Wood

“So, you’ve done your bit and lodged an objection to a planning application and after a lot of back and forth, attending mediation meetings and the like, the council issues a planning permit and requires the developer to sign a Section 173 agreement protecting the vegetation on the site. A good result you think quietly to yourself, expecting that the beautiful mature trees you so admire will now be protected for future generations to enjoy. But could this protection be less than you imagined, could the developer somehow escape from this requirement?

A little background, councils have the power under planning laws to require a developer to enter into an agreement with the council under Section 173 of the Planning and Environment Act. These agreements can be used to enforce all sorts of planning conditions such as vegetation protection, construction of infrastructure or limiting future subdivision of land. The clever part about these agreements is that they can be registered on the title and bind not only the developer but all future owners to comply with them. Many Section 173 agreements remain in force indefinitely and the intention is usually to provide a beneficial covenant on the land, often those that benefit are the surrounding community.

If a council requires the developer to enter into a Section 173 agreement then they must do this in order to get their development signed off, the so called Statement of Compliance. But what if the developer fails to fulfil the agreement and doesn’t even bother to register it on the titles as required? Surely that can’t happen, surely council will pick up on that and make the developer comply, maybe not.

This is the story of exactly such a case, not in Melbourne but right here in Ballarat East. Many long time residents will remember the old Richards Street Primary School in the area between Richards St, Wilson St and Julien Lane, closed down and sold off under a former government rationalisation. The site is home to a large number of mature trees, some native some not. The site is now also home to a 25 lot residential subdivision consisting of two courts, Fossickers Grove and Highvista Grove and of course is where my partner and I live along with an assortment of lizards, frogs and native birds who go about their daily lives, sometimes in very amusing ways.

When we purchased our block a few years ago we were immediately captivated by the eucalypts that surrounded us on three sides. You can imagine our despair when our neighbour cut down all of his trees just months after we moved in.

But the story begins long before we came to this part of the world, see the council actually issued a permit for this subdivision way back in 2001. At the time some neighbouring residents, still here today, objected to aspects of the proposal and in the course of council process the developer was required to make a Section 173 agreement to protect the vegetation on the site. The planners even went so far as to require a professionally prepared landscape review, with recommendations, be made a binding condition on the agreement.

Good intentions yes, but somehow this is where the story goes wrong. The developer, still living in this subdivision and still selling blocks of land to this day, never bothered to register that agreement on the titles when the land was subdivided and never to let on to anyone that such a thing existed.

Forgot maybe, after all being a developer requires lots of paperwork and it could easily be overlooked couldn’t it? That could be true if not for the fact that the developer dutifully included a copy of the agreement each time they submitted another planning application to council.

Perhaps the developer didn’t like the conditions imposed by council? Maybe not but they, like every other person, had a right of appeal to VCAT if they were not happy with the permit issued. To simply choose to ignore the requirements of council shows a level of arrogance that is beyond belief.

So now 12 years have passed, what becomes of the admirable intentions of the planners so long ago? Well, many mature trees remain but many have been lost, not least of which was when our neighbour clear felled 20 mature gums in an afternoon. Can anything be done now to enforce the protection provided by this agreement, council have powers to act, so does VCAT, but will they?

A formal complaint has been submitted to council and we promise to let you know the result, however this story is not to ask for your support but to make you aware that such a thing can happen.

So how do we know all of this, how can we be so sure of the facts? Simple really, the electronic age and the internet gives everyone access to enormous amounts of information, title searches, company records, planning information and so on, and of course Freedom of Information which is not just for the media but for everyone.

To finish up, consider this. If the developer in this case decided not to register this agreement, who would ever know? Certainly no solicitor or conveyancer would ever dig deep enough to uncover the truth and it is unlikely that anyone would ever be the wiser unless they took the time to look a little closer.

Buyer beware, maybe also objector beware as well.”

Thanks for sharing your story Gary. In terms of the big picture its clear that residents are not sure how to protect trees, protected trees, unprotected trees, trees on private property, trees on nature strip. Seems to us that we need answers to a few questions. In your comments please posit questions that we can put to the council to see if we can get some clarity around the issue of trees. If we don’t protect them who will?