Sadly, trees still don’t have standing

By Andrew Herington

As a death sentence it lacked eloquence: “there is no tick in the tree control box in the Heritage Overlay”. But to the LMA these words give it a licence to clear whichever parts of Royal Park they want without the need for a permit.

Day six at the public hearings was spent listening to LMA experts on water, biodiversity and heritage. The recurring pattern was clever legal arguments about the exact implications of their reports.

First up was a debate over why the State Environment Protection Policy for waterways had been taken out of  the performance requirements; instead run-off into the creeks only has to be ‘no worse’ than what is already there.

Water from the tunnel is to be discharged into the sewer (if the EPA and Melbourne Water permit) rather than treated and recycled as occurs with the Burnley tunnel. “Shouldn’t we be seeking to improve things?” Chris Wren QC asked as he examined the LMA’s opening slide of oily water in a concrete drain under the CityLink viaduct. At least the creek won’t get worse, seemed to be the answer.

The LMA lawyers fought stoutly all day to argue that Heritage Overlays mean a permit is required to knock something down – but it doesn’t apply to trees.

Similarly, native vegetation clearing rules require permits to cut down trees – except if they are “planted” rather than “original”. If the intention was other than creating a “conservation zone” then the trees are fair game and don’t have to be replaced.

After no fewer than five surveys the LMA experts found 112 stand alone tress that had protection and six  hectares of “environmental communities”. After talking to the Friends of Moonee Ponds Creek they went back and found another ten.

Under new native clearing regulations introduced on 20 December  last year, the value of environmental communities in Royal Park were given a weighting of 0.102  – in other words devalued by 90% in calculating the replacement areas needing to be planted to offset the loss. These offsets could be located anywhere in the Port Phillip and Western Port catchment  although it was later conceded they would be more useful if the new plantings were at least in the same municipality suffering the loss.

In the afternoon it was buildings not trees falling into legal loopholes.

Demolishing a Victorian double storey building in Wellington St would be unacceptable if for a purpose other than a road.

Demolishing half of Bendigo St  did not devalue the other half and could be an improvement with the right treatment of the overpass. However such an action would never be permitted for a developer building units there.

We spent time admiring a modernist bridge built in Venice in 1999  that both the witness and the lawyers had personally visited and liked. Was such good design a replacement for heritage?

Could a worthy purpose such as a hospital justify knocking down a heritage building? Yes! said the heritage expert. Was a freeway a good purpose? No! thought the audience.

In reply, the counsel assisting, Chris Wren QC, and Melbourne City Council’s Ian Pitt hammered away asking sharp questions demanding yes or no answers to unpick the legal thicket of what did and did not need a permit and what the precedents were.

It was lawyers versus experts with facts extracted slowly. Every time the experts got close to conceding a weakness in their case, the LMA’s lawyers jumped in to object and shift the focus of debate.

The closest the lawyers got to consensus was when it was agreed that planning permits and contested hearings did produce better results. The heritage expert conceded it had taken nearly a decade to approve the Venetian Bridge.  From his own experience spending three years on the Barwon Heads bridge saga he agreed that time spent debating produces better designs.

Meanwhile the trees in Royal Park were no closer to being saved.

It is now 40 years since Christopher Stone wrote the ground breaking article “Should trees have standing – the legal rights of natural objects” – creating a field of environmental law.  It may seem we have come a long way, but trees still have no rights.

So, just who was it who forgot to tick that box?

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