NSW Rural Fire Service

Clearing vegetation for bushfire protection

January 13, 2020 by Marianne Nash

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

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.

Potential 10/50 (Removal of Bush Land Without Council’s Consent) Impact Treated as Reason to Refuse Development

November 12, 2014 by Dev

On 21 October 2014, Commissioner O’Neill refused Development Application 199/2014 (Johnson v Hornsby Shire Council [2014] NSWLEC 1215) for a new dwelling at Beecroft, due to the ability for a significant amount of remnant Blue Gum High Forest to be removed under the 10/50 Code if the development was approved in its current state.¹

The view was, that once the dwelling was built the protected Blue Gum High Forest could potentially be removed without permission due to the dwelling’s placement by the forest.

As addressed in our e-alert Rural Fire Service 10/50 Vegetation Clearing Code of Practice in NSW on 13 October 2014, the 10/50 Vegetation Clearing Code of Practice (10/50 Code) allows tress within 10 metres of a house and vegetation within 50 metres of a house to be removed without permission.

This includes protected species listed under the Threatened Species Conservation Act 1995 (NSW) such as the Blue Gum High Forest that is listed as a critically endangered ecological community under the Act.

Subdivision conditions

In 2010 Council granted a subdivision consent. In order to ensure the Blue Gum High Forest was protected two section 88B instruments were created to protect:

Blue Gum High Forest in the ‘Restricted Development Area’ at the rear of the site
Three trees within the Tree Protection Zone, located near the driveway on the eastern side of the site.

Despite the second s88B instrument, the three trees within the Tree Protection Zone were removed lawfully, one through a modified consent, and the other two under the 10/50 Code.

Current development application

The site has been cleared, excluding the Restricted Development Area and a number of other trees. The driveway has also been constructed. All planning concerns raised by Council, including height and bulk, were overcome, however, it was agreed a privacy screen would be necessary.

The main issue was the Blue Gum High Forest. The development application’s footprint differed from that proposed under the subdivision application. While this is acceptable the new footprint was closer to the rear boundary and ‘would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area… to be lawfully removed’.² The Commissioner refused to approve the development application in its current form due to this potential ecological impact.

Commissioner O’Neill found that a more skilful design could reduce the impact on the remnant Blue Gum High Forest, for example utilising the Tree Protection Area that was no longer protecting the three main trees that were removed, to reduce the rear footprint.³

Commissioner O’Neill clarified that an amended footprint would not necessarily need to be 10 metres from the Restricted Development Area, but rather a balance would need to be achieved between the development and the conservation of the remnant Blue Gum High Forest.⁴

Commentary

Commissioner O’Neill’s decision highlights the ability for the 10/50 Code to result in the loss of protected and remnant communities and species. The 10/50 Code undermines the objectives of the Threatened Species Conservation Act 1995 (NSW) as it requires no assessment outside of the use of the Rural Fire Service online tool to determine if the site is located within a vegetation clearing zone. However, it is welcoming that future impact of the 10/50 Code may be taken into account at the merits review stage.

Review

The Rural Fire Service is currently seeking submissions on the 10/50 Code as it undergoes a review of the policy. Submissions close 14 November 2014.

The results of the review are expected to be interesting, as while it important that protected species are conserved, it is also important to protect lives and property from bushfires. The balance between these two competing issues is expected to be the main discussion of the review.

¹ Judgment [44]

² Judgment, [44]

³ Judgment, [41]

⁴ Judgment, [42]

Rural Fire Service 10/50 Vegetation Clearing Code of Practice in NSW

October 13, 2014 by Dev

The 10/50 Vegetation Clearing Code of Practice (10/50 Code) was introduced on 1 August 2014, in response to the 2013 bushfires. The 10/50 Code relates to residential properties, and high-risk facilities’ including childcare centres, schools and hospitals.

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 (Rural Fires Act 1997, Division 9).

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). 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 hard copy of the map for further reference.

The tool is available from the NSW Rural Fire Service.

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 on (Rural Fires Act 1997 s. 100P).

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.

4. Review

The NSW Rural Fire Service commenced a planned review of the 10/50 Code on 1 October 2014. Submissions can be made via email by 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) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) 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 Rural Fire Service’s Frequently Asked Questions page.