[1994] 1 VR 364
SHIRE OF GISBORNE v KING and Another
SUPREME COURT OF VICTORIA
NATHAN J
8, 10, 11, 15-18, 21, 24-25, 28-30 June 1993;, 29 July 1993
[1994] 1 VR 364
Administrative law — Planning scheme — Alleged inconsistency between State
and local sections — Destruction of native vegetation without permit — Alteration of topography without permit — Meaning of "track" — Planning and
Environment Act 1987 (No 45), s7 — Gisborne Planning Scheme, State Section,
CL3.8, CL5, CL7.2.3, CL7.4; Local Section, CL5D(v)(iii) and CL5D(vi), 38, 50,
90A.
.
The defendant owned property in the Shire of Gisborne. He felled hundreds of
indigenous trees on the property and rearranged the topography of the land
(including making a road and building a large dam) without obtaining planning
permits.
S7(1) of the Planning and Environment Act 1987 provided that a planning
scheme might include, and must specify separately, State, regional and local
sections. In the event of any inconsistency across the sections, s7(2)
provided that the scheme was to be read, so far as practicable, to resolve
the inconsistency; failing that, the State section subordinated the regional
and local to it, and the regional subordinated the local. The Shire of
Gisborne planning section was a local planning section.
Both the Gisborne section and the State section controlled the removal of
native vegetation. The State section required a permit to be obtained for the
removal, destruction or lopping of native vegetation, unless of regrowth less
than 10 years old where the land was being re-established or maintained as
pasture, or for fire prevention, or construction of a dam holding 1200 cubic
metres or less of water or a track: CL7.4.1, CL7.2.3. CL7.4 recited that any
local section controls over the removal, destruction or lopping of native
vegetation must be complied with. CL90A and CL50 of the Gisborne section
prohibited, without the shire's consent, the damaging, injuring, felling or
removal of any tree, defined as a "woody plant, shrub or bush more than four
metres in height". Both sections also required a permit for any alteration to
the natural conditions or topography of the land.
Upon the return of summonses issued by the Shire of Gisborne seeking
injunctions against the defendant and findings of contempt of court, the
defendant argued that there was inconsistency between the State and local
sections and that he complied with the former in felling only regrowth trees
less than 10 years old. He further argued that his rearrangement of the
topography returned it to its natural state before European intervention.
Finally, he argued the felling of the trees was for the purpose of
constructing a track.
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[1994] 1 VR 364
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