Clearing code must be based on actual bushfire risk

By EDO NSW Policy and Law Reform Director Rachel Walmsley

14 November 2014

The 10/50 Vegetation Clearing Code is currently being reviewed, providing an opportunity for the NSW Rural Fire Service (RFS) to amend the code in response to community concern and evidence of unintended consequences of the code’s application.

EDO NSW, in its submission to the review, says the 10/50 code allows extensive clearing based purely on proximity to homes instead of the likely bushfire risk and does not require any assessment of environmental factors designed to protect threatened species, prevent erosion, maintain water quality and retain fire retardant vegetation such as rainforest. This undermines the current system of risk-based management involving expert input from the RFS.

 The 10/50 code was introduced in August after the devastating bushfires in the Blue Mountains in October 2013 destroyed 200 homes. The code allows property owners living within 350 metres of Category 1 Bushfire Prone Land and 150 metres of Category 2 Bush Fire Prone Land to remove trees on their own land that are within 10 metres of their home, as well as underlying vegetation (but not trees) within 50 metres of their home, without State or local approval. 

 Since the code commenced, EDO NSW’s legal advice line has received a large number of calls from residents and local councils concerned about the level of clearing being undertaken in reliance on the code. Callers have come from a range of local government areas, including, for example: Pittwater, Tweed Shire, Ku-ring-gai, Lake Macquarie, Sutherland Shire, Hornsby, Penrith, Blacktown, Blue Mountains and Great Lakes. There is already a significant body of evidence showing that the 10/50 code is resulting in excessive clearing of important habitat, for little discernable safety benefit. There is a genuine concern that the code is being used to improve views and increase property values, rather than for its intended hazard reduction purpose.

 As it stands, the 10/50 code overrides threatened species and native vegetation laws and thereby allows the clearing of high conservation value native vegetation, threatened flora species and endangered ecological communities. This has led to some unintended consequences. For example, the code has exposed development applications on sensitive lands to the possibility of being rejected on the grounds that the operation of the code would allow the clearing of important native vegetation. The NSW Land and Environment Court recently rejected a proposal for a two-storey home at Beecroft, in Sydney's north, in part because the 10/50 code would allow the owner to clear more than half of a critically endangered blue gum forest on the property which was required to be protected as a condition of development consent of the subdivision application.

The 10/50 code also ignores the fact that not all trees provide the same level of fire risk. Clearing fire resistant species may encourage the growth of more fire enhancing species. For example, where rainforest is cleared and converted to open schlerophyll forests of eucalypt, banksia and wattle trees. Tweed Shire Council has reportedly blamed the code for the clearing of rare littoral rainforest, which is fire resistant, by a landholder at Fingal Head in August.

 The 10/50 code halves the 20 metre buffer zone for clearing along waterways which is designed to protect important native vegetation and maintain water quality. It also allows clearing on slopes as steep as 18 degrees which significantly increases the risk of erosion and land instability. Gosford City Council recently rejected plans to subdivide about five hectares of land at Avoca Beach for residential development because important ridge-top vegetation could be cleared under the code.

The review of the current code must see the reinstatement of the requirement that clearing around homes be based on the actual bushfire risk and expert assessment rather than allowing indiscriminate clearing of rare forests and plant species for a better view or development opportunity.