The recent Land and Environment Court decision in the matter of Johnson v Hornsby Shire Council [2014] NSWLEC 1215 (Johnson) demonstrates that the new 10/50 rule under section 100R of the Rural Fires Act 1997 (NSW) needs to be thoroughly considered by applicants for residential (and other) development. The 10/50 rule entitles an owner of land in a 10/50 vegetation clearing entitlement area to carry out various types of vegetation clearing.[1] The rule gets its name from the fact that it operates to permit:

the clearing of trees within 10 metres of a home the clearance of underlying vegetation such as shrubs, but not trees, within 50 metres of a home.

The dispensation to clearing vegetation was held by the Court to be a relevant factor in refusing a development for a new residential dwelling, as the approval of the dwelling would have had a significant impact on the Blue Gum High Forest (BGHF) in the vicinity of the proposal. In this regard, an approval would have resulted in more than half of the remnant BGHF in a restricted area being removed. The Commissioner hearing the case stated that “but for” the ecological impacts, the other issues would not have warranted a refusal.

Development Application subject of the proceedings

The Applicant in the case lodged a development application (DA) which sought approval for the construction of a new dwelling on a property in Beecroft. The property was located in a low density residential zone under the Hornsby Local Environment Plan 2013. Despite the proposed development being permissible with consent, the Council refused the DA.

DA background

The property contained remnant BGHF, being a type of forest listed in the Threatened Species Conservation Act 1995 (NSW) as a critically endangered ecological community. The Council had previously approved a subdivision of one allotment (Lot 9) into two allotments being Lot 1 and Lot 2. Lot 1 contained an existing dwelling house. Lot 2 was the property subject of the Court proceedings.

In granting approval to subdivide Lot 9 into two allotments, the Council had imposed a number of conditions. One of these conditions permitted the removal of certain trees. There was a further condition that required the Applicant to enter into a Voluntary Planning Agreement (VPA) with the Council pursuant to section 93F of the Environmental Planning and Assessment Act 1979 (NSW). The purpose of the VPA was to offset the loss of BGHF as a result of the granting of the consent for subdivision. Finally, there was a restriction on the use of the land created under section 88B of the Conveyancing Act 1919 (NSW), which required the retention of BGHF Trees within a ‘Restricted Development Area’. Both the subdivision and the positive covenant creating the Restricted Development Area had not been registered.

Raising concerns

The new 10/50 rule in section 100R of the Rural Fires Act 1997 (NSW), which came into force on 1 August 2014, meant that the proposed development (if approved) would trigger the 10/50 rule and permit any vegetation , including trees, within 10 metres of the building envelope to be removed.

The decision

The Council refused the DA for the construction of the new dwelling on Lot 2 because, among other reasons, the 10/50 rule would permit the removal of vegetation, including trees, within 10 metres of the building envelope.

What did the Court find?

The Court accepted that the retention of certain trees outside the Restricted Development Area would require the building footprint to be located at least 10 metres away from the trunks of these trees. In the circumstances, the Court considered that imposing such a requirement would unreasonably constrain future development on Lot 2 and would have significant amenity consequences.

Instead the Court refused the DA. The Court was concerned that granting consent to the proposed development would legally permit the owner to chop down more than half of the remnant BGHF in the Restricted Development Area. This was of particular concern to the Court given the special listing of the forest as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995 (NSW). The Court indicated that more of the trees within the Restricted Development Area could be conserved by an improved design and layout. In this regard, the decision does not rule out future residential development per se on this site, but rather represents a refusal of a design that was unsympathetic to the ecological features of the site, particularly in circumstances where the 10/50 rule would enable the removal of trees listed as a critically endangered ecological community.

Implications

New proposed developments on land containing trees, especially protected types of ecological communities, will need to ensure that they are designed in a manner sensitive to the vegetation occurring on the land. Although certain landowners now have a dispensation to clear vegetation under the 10/50 rule, the breadth of vegetation permitted to be cleared under the rule may (consistent with this decision) be used as a relevant factor in assessing a development proposal.

Cautionary note

Since the matter of Johnson, the NSW government has reduced the vegetation clearing entitlement area. The NSW Rural Fire Service and the Department of Planning and Environment are currently reviewing the 10/50 Vegetation Clearing Entitlement policy.[2]