Posted on November 21, 2014 by Carlo Zoppo

10/50 vegetation clearing considered by the Land and Environment Court for the first time

The decision of Johnson v Hornsby Shire Council [2014 NSWLEC 1215] is the first case where the Land and Environment Court has considered the impacts arising from the 10/50 vegetation clearing entitlement in the context of a development appeal.

Since August 2014 s100R of the Rural Fires Act has allowed the clearing of vegetation within 10/50 vegetation clearing entitlement areas despite the protection afforded to the vegetation under another Act or instrument. We have discussed s100R in earlier blogs [Link to earlier blogs].

While s100R is clear in terms of what it authorises, s100R is silent on whether the 10/50 vegetation clearing entitlement should be considered by a consent authority in the determination of a development application.

Johnson v Hornsby Shire Council involves an appeal under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal of an application for development consent to allow the construction of a two storey dwelling in Beecroft.

The proposed dwelling was to be constructed on land that contains Blue Gum High Forest, which is listed as a critically endangered community pursuant to the Threatened Species Conservation Act 1995 and the Environment Protection and Biodiversity Conservation Act 1999 (Cth)(EPBC Act).

On 6 October 2010 Council granted consent to subdivide one allotment into two. The consent authorised the removal of a number of identified trees and required the applicant to enter into a voluntary planning agreement (VPA). The VPA required, amongst other things, a restriction on the use of land pursuant to s88B of the Conveyancing Act 1919 requiring the retention of significant Blue Gum Forest trees numbered 18, 34 and 35 within the ‘Restricted Development Area’.

On 9 January 2014 Council approved a modification of the subdivision consent allowing the removal of tree number 18.

The subject property is situated within a 10/50 vegetation clearing entitlement area and the owner removed significant Blue Gum trees numbered 34 and 35 in accordance with the 10/50 Code of Practice. These trees were to be retained under the terms of the subdivision consent and the VPA.

During the hearing, Council contended that the proposed development would result in the removal of any remaining tree within 10 metres of the building envelope (which extended beyond the indicative building envelope considered in the approval of the subdivision consent) pursuant to s100R of the Rural Fires Act 1997.

Commissioner O’Neil accepted that it was desirable that trees numbered 37 and 38 be retained and the only way that the trees could be retained was by moving the indicative building footprint so that the trunk of the trees was more than 10 metres from the building footprint (and outside the area within which s100R allows the clearing of the tree).

The Commissioner found that moving the footprint in such a manner would provide a 26 metre setback that the Commissioner believed imposed too great a constraint on the future development of the site and that in the circumstances that it would not be reasonable to require the retention of trees numbered 37 and 39 should the development proceed.

The Commissioner, in refusing the development application, concluded that granting of consent to the development would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area, to be lawfully removed under s100R. [Link to judgment]

Comment
S100R of the Rural Fires Act 1997 does not affect the obligation of a consent authority to the take into consideration the likely impacts arising from the proposed development on the environment in accordance with section 79C the EPA Act, nor does it affect how a consent authority will determine a development application.

The impacts arising from the development will include the likely impacts to the environment arising from the 10/50 vegetation clearing entitlement that operated when development consent is granted for a building containing habitable rooms.

One matter that was not discussed in the Court’s judgement was the protection afforded to the Blue Gum High Forest by the EPBC Act.  While s100R allows the removal of vegetation notwithstanding any protection afforded by an (state) Act or Instrument in it does not affect the operation of the Commonwealth EPBC Act.

The Minister is currently reviewing the 10/50 vegetation clearing rule. The review is to determine whether the policy objectives of the Division remain valid and whether the terms of the Division remain appropriate for securing those objectives. Time will tell whether the changes made following the review will provide Councils and developers some clarity as to how s100R interacts with obligations under the EPA Act in terms of for example whether existing conditions of consent imposed to protect vegetation can be enforced.