Threatened Species Conservation Act 1995 (NSW)

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

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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

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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.