Posted on August 24, 2014 by Carlo Zoppo

Vegetation clearing laws cut some of the red tape but may place owners at risk

On 1 August 2014 the Rural Fires Amendment (Vegetation Clearing) Act 2014 (the Amendment Act) commenced operation in NSW. According to the NSW Government the changes have been made so that “people can more easily take common sense measures to protect their lives, their homes, hospitals, schools and childcare centres where occupants may be more vulnerable to the devastating effects of bushfire.”  While the sentiment behind the changes is sound, the changes introduced by the Amendment Act are broad in scope allowing people to clear vegetation for other reasons and  subject to a range conditions that must be understood before owners undertake clearing.

The changes in a nutshell:

The changes provide owners of land situated within a ‘10/50 Entitlement Area’ with the power to carry out certain vegetation clearing works on that land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003, the Environmental Planning and Assessment Act 1979 or any other Act or instrument made under an Act.

The 10/50 Vegetation Clearing Entitlement Area is an area marked in a map that is to be published by the Rural Fires Service and the works must be carried out in accordance with a Code of Practice prepared by the Rural Fires Service (accessible here).

The following vegetation clearing works are allowed within the 10/50 Vegetation Clearing Entitlement area:

  1. the removal, destruction (by means other than by fire) or pruning of any vegetation (including trees or parts of trees) within 10 metres; or
  2. the removal, destruction (by means other than by fire) or pruning of any vegetation, except for trees or parts of trees, within 50 metres;

of an external wall of a building containing habitable rooms that comprises or is part of residential accommodation or a high-risk facility.

The National Parks and Wildlife Act 1974 is amended to provide a defence to any charge of harming or picking of threatened species, endangered populations and endangered ecological communities or the habitat of such species, populations or communities.

The Amendment Act effectively allows clearing of vegetation within the 10/50 Entitlement Areas regardless of the reasons or motivation behind the clearing; for example it  would allow clearing of vegetation within the 10/50 Entitlement Area (that satisfied the prerequisites for clearing under the Amendment Act and the Code of Practice) to improve a view.

Entitlement subject to conditions

The ‘entitlement’ to clearing of vegetation is subject to a range of conditions including:

  • the entitlement only applies where the building containing the habitable rooms is authorised by development consent or other lawful authority for the use of the rooms as ‘habitable’ rooms.
  • the entitlement must be undertaken in accordance with the Code of Practice which limits how the clearing works can be done, for example:
    • there must be no disturbance to the soil and the use of graders, ploughs and dozers to clear the land is not permitted
    • clearing is not allowed within 10 metres of a prescribed stream;
    • clearing must not be carried out within areas identified by the Office of Environment and Heritage as containing Aboriginal and other cultural heritage.  This does not mean that the other requirements for the protection of aboriginal objects found in the National Parks and Wildlife Act 1974 do not apply;
    • Clearing must be consistent with land management agreements such as conservation agreements, Trust Agreements, property management plans, property vegetation plans and Biobanking Agreements.

The EPBC Act

While the language used in the Rural Fires Act 1997 speaks of ‘Vegetation Clearing Entitlement areas’ and the Amendment Act specifically addresses NSW environment protection laws, there is very little provided to owners of land to remind them that Commonwealth environment protection laws in particular the Environment Protection Biodiversity Conservation Act 1999 (EPBC Act) [which protects listed threatened species and listed threatened ecological communities] are not effected by the changes.

Concerns have been raised that the on-line tool created by the Rural Fires Service [to help owners identify whether  property falls within an 10/50 Entitlement Area] does not identify the location of species and communities protected by the EPBC Act.

An owner of land that contains threatened species or threatened ecological communities must consider the operation of the EPBC Act before it undertakes vegetation clearing works that may affect the listed threatened species or listed threatened communities.

A failure to understand what is allowed and what is required before vegetation clearing is undertaken will result in owners undertaking clearing works outside the authority of the Amendment Act and expose owners of land to legal liability for clearing works that contravene environment and planning laws.

The broad nature of the clearing entitlements allows instances of opportunistic clearing of vegetation that is motivated by reasons other than reducing bush fire risks.

In such circumstances the Amendment Act provides local government with an enforcement challenge both in terms of how it communicates the changes to the community (and any limitations and conditions)  and how it investigates opportunistic clearing and non-compliance with the provisions imposed by the Amendment Act.