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12 June 2015

10/50 Vegetation Clearing Code of Practice for NSW - It's not a free-for-all

In late 2014, we saw the introduction of the 10/50 Vegetation Clearing Code of Practice for New South Wales (10/50 Code) following the bushfires in the Blue Mountains area in 2013.  Since then, there has been a flurry of clearing activity across metropolitan Sydney, as well as other areas of New South Wales.

However, as with many new regulatory measures, the 10/50 Code is not well-understood, with the effect that many landowners clearing vegetation under the 10/50 Code may be in breach of the Rural Fires Act 1997, the Environmental Planning and Assessment Act 1979 and your local environmental plan.

The 10/50 Code

Section 100Q of the Rural Fires Act 1997 commenced following the passage and gazetting of the Rural Fires (Amendment) Vegetation Clearing Bill 2014.  The intention of the 10/50 Code is to enable the clearing of vegetation to reduce the risk of bushfires without the need for approval, consent or authorisation.

Application to land

The 10/50 Code applies strictly to land mapped as clearing entitlement land.  To determine whether your land falls within the purview of the 10/50 Code, click here.

The 10/50 Code applies to vegetation adjacent to external walls of the following buildings:

  • For residential accommodation – where there is one or more rooms designated and approved as a bedroom for sleeping.  Most people looking to remove trees under the 10/50 Code would satisfy this, as the relevant building is a house or apartment;

  • For childcare centre – where there is one or more rooms designated and approved for the purpose of the supervision and care of children;

  • For schools – where there is one or more rooms designated and approved for the purpose of accommodating children; and

  • For hospitals – where there is one or more rooms designated and approved for the purpose of accommodating patients, or providing sleeping facilities for hospital staff.

The 10/50 Code only applies to buildings already completed and applies regardless of any tree preservation orders (TPO) or conditions of consent issued by a council or other authority.

Requirements if you fall within the 10/50 Code

Authorised clearing under the 10/50 Code includes:

  • the removal, destruction (except by fire) or pruning of any vegetation (including trees) within ten metres of the external wall of a building to which the 10/50 Code applies; and

  • the removal, destruction (except by fire) or pruning of any vegetation (not including trees, ie undergrowth, shrubbery etc) within 50 metres of the external wall of a building to which the 10/50 Code applies.

For the purposes of clearing trees, the ten metre radius is taken from the location of the trunk of the tree.

Owners should also be wary when clearing vegetation on land where there has been soil erosion or evidence of landslip risks.

Issues also arise in relation to heritage and environment:

  • It is important that you do not clear vegetation within ten metres of a Prescribed Stream identified by the New South Wales Office of Environment and Heritage (OEH); and

  • If your area is identified by the OEH as containing Aboriginal or other cultural heritage, then the OEH may impose conditions.  Clearing may only be done in accordance with those conditions.

Clearing under the 10/50 Code cannot be inconsistent with agreements owners may have with a public body, including:

  • Conservation agreements under the National Parks and Wildlife Act 1974;

  • Trust agreements under the Nature Conservation Trust Act 2001;

  • Property management plans approved by the Director-General of the New South Wales National Parks and Wildlife Service under the Threatened Species Conservation Act 1995;

  • Property vegetation plan agreements under the Native Vegetation Act 2003; and

  • Biobanking agreements under the Threatened Species Conservation (Biodiversity Banking) Regulation 2008.

Compliance and Enforcement

The 10/50 Code requires that in order to avoid penalties, owners must:

  • Have approval, consent or authorisation to clear, and do so in accordance with those requirements, or

  • Clear the vegetation in full compliance with the 10/50 Code.

Warnings

Separate legal advice should be sought if you have any concern that your property does not fall under the 10/50 Code.  Serious penalties and the risk of proceedings may apply if you clear vegetation without the protection of the 10/50 Code.

While the 10/50 Code does not require you to consider the impact to threatened species or endangered ecological communities, there may obligations applicable under Commonwealth law.  It is important to seek legal advice in relation to any vegetation clearing to avoid penalties.

If the 10/50 Code does not apply to your land, removal of trees may be subject to TPOs issued under the Environmental Planning and Assessment Act 1979.  Landowners should seek legal advice and clarification with their council as to the requirements for removal of trees.

Authors: Dennis Loether and Ben Hardy

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