Help save our critically endangered habitat

The petition refers to the illegal clearing of remnant grasslands in the Wyndham shire in May/June 2008. The clearing occured just outside the urban growth boundary to the west of Werribee. This area contains the largest mapped patch of federally listed critically endangered western plains grassland on the Keilor_Werribee plains. The removal involved The ~375 ha with approximately 50% moderate to good quality rocky remnant native grassland. Plants and tussock in remnant grasslands could be in excess of 100 years of age.

A large rolling machine went over it in May, pushing rocks, surface vegetation including grassland, about 5cm into the soil. Bare earth paddock resulted which has been sown to crop which about 1 – 2 cm high on the 14th of September. This activity is illegal pursuant to clearing controls (52.17) part 1 in Section 5 (Particular provisions) of the Planning and Environment Act. The landholder is most likely claiming that an exemption under the clearing control table exemptions (52.17-6) applies and any vegetation under 10 years old previously used for agriculture is exempt of clearing. However this exemption only applies to land previously used for agricultural hence this landholder should face prosecution as 50% of the area bulldozed was remnant grassland that has never been worked and the majority of flora on site would be well in excess of 10 years old.

This type of activity is not new to the area with 3000 hectares lost per year with most removal having no applications to remove applied for under state or federal jurisdiction. This rate of removal was calculated in the mid 90's and has most likely accelerated.

With respect to the clearing control act only the respective Council, the minister of planning and environment (Justin Madden) or his office are authorised officers able to prosecute the land owner pursuant to section 126 of the Planning and Environment act. It applies to owners and occupiers and states that it is an:

Offence to contravene scheme, permit or agreement;
(1) Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, or an agreement under section 173 is guilty of an offence.

This act allows for criminal charges be laid and a rediculously low offence of up to $126,000 paid.

Interstingly, concerned individuals or state bodies such as DSE are able apply for an enforcement order pursuant to section 114 of the Planning and Environment Act. This section states:

“any person may apply to the Tribunal for an enforcement order against any person specified in subsection (3) if a use or development of land contravenes or has contravened, or, unless prevented by the enforcement order, will contravene this Act, a planning scheme, a condition of a permit or an agreement under section 173.

Although no criminal charges can be laid an order of restitution can be made perhaps using Paul Gibson-Roy’s method for restoring grasslands and effectively block any future development on this site as per section 119-b(iv) which states:

“to do specified things within a specified period (A)to restore the land as nearly as practicable to its condition immediately before the use or development started”.

This impost will be far greater felt to the land owner than the maximum offence carried under section 126 of the Planning and Environment Act as no doubt the land owner is speculating over positioning of the UGB in the next few decades and on current market value that would cost him $1,000,000 per hectare in land he can no longer develop.

Hence not only should section 126 be enacted with Council and/or The Minister enforce planning controls but a body such as DSE, charged with protecting such habitat under the Fauna and Flora Guarantee act should also prosecute by enacting Section 114 of The Planning and Environment Act. Unfortunately no resources have been given to DSE to prosecute such cases and as a result DSE will likley not prosecute. This short coming has been highlighted and although aknowledgement has been made no funds have been made available to DSE. The Minister for Planning and Environment needs to rectify this immediately.

Obviously if DSE prosecuted utilising section 114 of the planning and Environment Act then would be speculation would be stopped and irresponsible landowners put on notice.