As the Australian fire seasons become longer and more intense, everyone in the community must plan and prepare as best as possible. Property owners are reminded that the majority of structures are lost to ember attack, rather than the fire front itself. Ember attack can occur many kilometres and hours ahead of the fire front, especially under high wind conditions.
One of the ways to help reduce the risk of ember attack is to clear around buildings. Permissible clearing around buildings for bushfire protection is different in each state.
The New South Wales 10/50 Code
Jessica Baldwin, Senior Associate, Hunt & Hunt, Sydney
The 10/50 Vegetation Clearing Code of Practice (10/50 Code) was introduced on 1 August 2014 in response to the devastating 2013 bushfires in the Blue Mountains and may be part of your preparations for the fire season.
Can I clear the land around my house?
Under Part 4 Division 9 of the Rural Fires Act 1997 a property within a 10/50 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. Further, any branches within 10 metres of a residence may be pruned, even if the tree trunk is located more than 10 metres from the residence.
The 10/50 Code applies to builings containing habitable rooms, such as residential accommodation including dwellings, tourist and visitor accommodation, caravans installed or placed in caravan parks, and manufactured homes installed in manufactured home estates.
The 10/50 Code also applies to ‘high-risk facilities’ including childcare centres, schools and hospitals, and farm sheds.
Is my property in a 10/50 Clearing Entitlement Area?
To check if your property is located in a 10/50 Clearing Entitlement Area, visit the RFS online tool.
It is advised to check the tool on the day that you intend to remove any vegetation and keep a dated print screen and/or hardcopy of the map for future reference.
What is a tree v vegetation?
A tree is defined as:
a perennial woody plant that is three or more metres in height and that has one or more self-supporting trunks (at least one of which has a circumference at a height of 1.3 metres above ground of more than 0.3 metres) but it does not include a woody plant that is:
- a shrub, which is a small, low growing, woody plant with multiple stems, or
- a vine, which is a woody plant that depends on an erect substrate to grow on.
Who can remove trees and vegetation?
Trees and vegetation can only be cleared pursuant to the 10/50 Code with landowners’ consent. Tenants must obtain written approval from the landowner before clearing any vegetation or trees. Further, neighbouring or adjoining land must not be cleared without consent. If a single tree trunk spans more than one property, all landowners’ consent is required. It is recommended to document consent in writing.
Trees may also be removed if they are located within 10 metres of a building on adjoining property. In this instance written consent from the adjoining property owner must be gained prior to removal of the tree.
Important considerations
The following vegetation and trees cannot be cleared:
- Mangroves, saltmarsh, Coastal Wetlands, Wetlands including Ramsar Wetlands,
- Littoral Rainforest
- Koala habitat
- Land within 100 metres of the coastline or estuaries of NSW
- Lord Howe Island
- Critically Endangered Plants, Critical Habitat, and Critically Endangered Ecological Communities
- National Parks and World Heritage areas
- Local heritage items
- Vegetation of high environmental significance identified as part of the bio-certification of the Sydney Region Growth Centres
- An Aboriginal Place
- Where the clearing would be inconsistent with any order, agreement, management plan, or other instrument that applies in relation to the land.
The latest copy of the 10/50 Vegetation Clearing Code of Practice for NSW, dated 4 September 2015, is available here.
As trees are important aspects of our communities and provide us with many benefits, it is suggested that trees and vegetation cleared could be replaced with more fire-retardant species and planted at a distance from habitable buildings.
The Victorian Bushfire Exemptions
Andrew Gunter, Special Counsel, Hunt & Hunt, Melbourne
Equivalent provisions to the NSW 10/50 Code of Practice were introduced from 18 November 2011 to all planning schemes across Victoria via clause 52.48 of the Victoria Planning Provisions, under the Planning and Environment Act 1987. Following the restructuring of the Victoria Planning Provisions and all planning schemes on 31 July 2018, the provisions (slightly amended) are now located in clause 52.12.
As a result, no planning permission is required (outside twenty specified inner and middle-ring local government areas in Greater Melbourne or within a Bushfire Management Overlay) before undertaking bushfire protection measures such as—
- removal or lopping of vegetation (including trees) within 10 metres of an existing building used for accommodation where the building was constructed or approved before 10 September 2009;
- removal or lopping of vegetation (other than trees) within 30 metres of an existing building used for accommodation where the building was constructed or approved before 10 September 2009;
- removal or lopping of vegetation (including trees) within 4 metres either side (that is, a total width of 4 metres on the two sides of the boundary, considered together) of an existing boundary fence between properties in different ownership constructed before 10 September 2009;
Additionally, no planning permission is required before undertaking removal or lopping of vegetation (other than trees) within 50 metres of an existing building used for accommodation where the building was constructed, lawfully erected or approved before either 10 September 2009 or 18 November 2011 (the relevant date dependent on specific factual circumstances) and that is on land within a Bushfire Management Overlay, regardless of the local government area in which it is located.
Value of trees
As trees are important aspects of our communities and provide us with many benefits, it is suggested that trees and vegetation cleared could be replaced with more fire-retardant species and planted at a distance from habitable buildings.
Clearing Vegetation for bushfire protection: WA
Aiden Nunis, Lawyers, Culshaw Miller Lawyers, Perth
The Environmental Protection Act 1986 (WA)(EPA) provides for the prevention, control and abatement of pollution and environmental harm, for the conservation, preservation, protection, enhancement and management of the environment and for matters incidental to or connected with the foregoing.
Clearing native vegetation is an offence in Western Australia, unless done under clearing permit or for exempt purpose. Exemptions for clearing (that are a requirement of a written law or authorised under certain statutory processes) are listed in Schedule 6 of the EPA. Schedule 6 describes among other things, that any clearing that is done for fire prevention or control purposes or other fire management works on Crown land, within the meaning of the Land Administration Act 1997, by the FES Commissioner as defined in the Fire and Emergency Services Act 1998 section 3 is an exemption.
Further to the above, the Department of Fire and Emergency Services WA recommend a Building Protection Zone (BPZ) as an area for “managing and reducing fuel loads for a minimum of 20 metres around a building [to] increase its likely survival from a bushfire”. Bush fire prevention on private property is primarily the responsibility of local governments under the Bush Fires Act 1954 (WA). The Office of Bushfire Risk Management and local governments participate in and contribute to the implementation and approval of Bushfire Risk Management Plans that incorporate bushfire prevention and mitigation strategies.
We would recommend getting into contact with your Local Council to obtain a permit before clearing vegetation or conducting a controlled burn.
Our partners in Perth can assist you with any requirements under the Western Australian regulations.
Need advice?
Our Environment & Planning teams are able to guide landowners in relation to land clearing activities, whether under the 10/50 Code and other NSW legislation or under the Victoria Planning Provisions and related Victorian legislation, as well as provide assistance in relation to the development of land.
If you require advice, please don’t hesitate to get in touch.
