Under the Rural Fires Act 1997(NSW) a property within a 10/50 vegetation entitlement clearing area, may remove, destruct (by any means other than by fire) or prune trees within 10 metres of a building containing habitable rooms and other vegetation within 50 metres of a building containing habitable rooms.1
All vegetation (other than mangroves and salt marsh on public land) may be removed without permission despite any requirement for consent under the Native Vegetation Act 2003 (NSW) or the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Vegetation clearing in accordance with the 10/50 Code is considered to be authorised clearing under NSW Legislation.
10/50 vegetation entitlement clearing areas were located within 350 metres of Category 1 and Category 2 Bush Fire Prone Land. On the 30 September 2014 this was amended to 350 metres for Category 1 Bush Fire Prone Land, and 150 metres for Category 2 Bush Fire Prone Land.
1. 10/50 VEGETATION CLEARING ENTITLEMENT AREA MAPPING
Whether a property is located in a 10/50 vegetation entitlement clearing area can be assessed using the NSW Rural Fire Service online tool. Separate maps are unavailable and it is advised to check this tool immediately before clearing vegetation. The tool has been updated to reflect the 30 September 2014 amendments.
It is advised to keep a dated print screen and/or hardcopy of the map for further reference.
The tool is available on the NSW Rural Fire Service website at: http://www.rfs.nsw.gov.au/plan-and-prepare/1050-vegetation-clearing/tool
2. APPLICATION OF 10/50 CODE
A tree is defined as:
A perennial woody plant having a single stem or trunk and which is 3 or more metres in height and the trunk of which has a circumference at a height of 1.3 metres above the ground of more than 0.3 metre. A tree does not include a shrub, which is a small, low growing, woody plant with multiple stems, nor a vine, which is a woody plant that depends on an erect substrate to grow on2
For a tree to be cleared under the 10/50 Code the trunk must be located within 10 metres of an external wall of a building containing a habitable room. All other vegetation within 50 metres of a building containing habitable rooms may also be cleared under the 10/50 Code. The 10/50 Code does not apply to buildings on residential blocks that do not contain habitable rooms, ie garages.
External walls include permanent fixed structures such as decks and garages that are attached to the building with habitable rooms. Habitable rooms in 'high risk facilities' include rooms for the supervision or care of children and rooms accommodating patients or sleeping facilities for staff.
The 10/50 Code does not apply to buildings that contain habitable rooms where there is no development consent or other lawful authority under the EP&A Act for the use of those rooms as habitable rooms.
Residential accommodation includes tourist and visitor accommodation, caravans installed or placed in caravan parks and manufactured homes installed in manufactured home estates.
3. LANDOWNERS' CONSENT
Vegetation can only be cleared under the 10/50 Code with the landowners' consent. Tenants must obtain approval from the landowner before clearing any vegetation. Further, landowners must not clear adjoining land without the approval of the landowner. If a single tree trunk spans more than one property, all landowners' consents are necessary. It is recommended to document consent in writing.
The NSW Rural Fire Service commenced a planned review of the 10/50 Code on 1 October 2014. Submissions can be made via email to email@example.com. Submissions close 14 November 2014.
5. CURRENT ISSUES WITH THE 10/50 CODE
Self-assessment: The current 10/50 Code is based on self-assessment. All that is required is for a property owner to locate their property on the online tool and confirm the property is located within a 10/50 vegetation entitlement clearing area. They can then proceed to remove, destruct (by any means other than by fire) vegetation in line with the 10/50 Code.
Protected Species: The current 10/50 Code allows for the removal of all vegetation (other than mangroves and salt marsh on public land) including protected species. Protected species under the Threatened Species Conservation Act 1995 (NSW) (TSC Act) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) are not protected under the 10/50 Code. Even if a Development Application is refused or amended due to the occurrence of a protected flora species on site, once a habitable building is constructed the protected species may be removed under the 10/50 Code if it is a tree within 10 metres or vegetation within 50 metres of the building. The 10/50 Code as it stands undermines the objectives of the TSC Act and the EPBC Act.
For further information please see the Frequently Asked Questions page on the Rural Fire Service website: http://www.rfs.nsw.gov.au/plan-and-prepare/1050-vegetation-clearing
1 Rural Fires Act 1997, Division 9.
2 Rural Fires Act 1997 s. 100P.
Disclaimer: The information contained in this e-alert/update is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.