In the recent case of Morizzi v Melton CC [2016] VCAT 336, DP Dwyer considered the meaning of ‘works’ in the context of a proposal to plant 90 olive trees from seed in an existing olive grove of 650 trees.
Pursuant to s 124 of the VCAT Act, VCAT declared that:
- the planting of olive trees on the land, through the pressing of the seeds into the soil and with no substantive removal of topsoil, does not constitute ‘works’ for the purpose of the Planning and Environment Act 1987 (P&E Act) or the Melton Planning Scheme
- a planning permit is not required for the proposed activities – planting olive trees, under either the RCZ or the Overlays.
In making the declarations, VCAT endorsed and followed previous decision of Justice Morris (as he was then) in Great Southern Property Managers Pty Ltd v Colac-Otway Shire Council [2005] VCAT 1937.
Of the decision in Great Southern, DP Dwyer said:
9…The decision is not particularly controversial. It holds that, although the definition of ‘works’ in the Planning and Environment Act 1987 includes any change to the natural or existing conditional topography of land, the Parliament intended that the natural meaning of the word ‘works’ to involve some form of architectural or engineering structure or excavation. It did not intend that ‘works’, standing alone, would embrace an activity such as the ploughing of the field, the application of herbicide, or the planting of a tree. In some circumstances, a change to the condition of the land may be so insubstantial to be disregarded. Whether something amounts to ‘works’ must be answered as a question of fact and degree by reference to the Act and the planning scheme – with Justice Morris then adding that this should be done “perhaps after applying a relish of common sense”.
Click here to view the full decision.
