That’s the heading of a story on news.com.au (see http://www.news.com.au/national/breaking-news/nsw-bushfires-spark-a-range-of-new-laws/story-e6frfku9-1226758830919) (and thank you to my colleague Ruth Townsend for bringing this to my attention).
According to this article:
PEOPLE living in bushfire-prone areas in NSW will be given more power to clear land around their homes under new rules to be introduced to state parliament.
Under the proposed changes, people in designated bushfire-prone areas will not need to get permission to clear trees, shrubs and other vegetation within prescribed distances of homes on their land.
“Our changes will ensure the rules regarding hazard reduction are based on protecting lives and property, and not satisfying a narrow Green agenda that seeks to put trees before people,” Premier Barry O’Farrell said on Wednesday.
As noted in my earlier post (see Damned if you do, damned if you don’t – what to do about personal hazard reduction) rules like this may be good for hazard reduction, but they may also lead to unintended consequences, such as denuding areas around homes that people actually enjoy. The balance to be struck is not always clear.
Following the 2009 Victorian Black Saturday fires, new land clearing rules were made. The rules provided, at clause 52.43, that:
Any requirement of a planning permit … does not apply to the following measures for bushfire protection:
• The removal, destruction or lopping of any vegetation within 10 metres of a building used for accommodation…
• The removal, destruction or lopping of any vegetation, except for trees, within 30 metres of a building used for accommodation…
In Nillumbik Shire Council v Potter  VCAT 669 the Council sought direction from the Victorian Civil And Administrative Tribunal on whether or not there had to be evidence that the purpose of the land clearing was for bushfire protection. In that case Council were concerned that
… it is witnessing a growing number of situations where tree removal is occurring on land in urban areas of the municipality with the justification that clause 52.43 allows for such actions without a planning permit, even though most of the landowners in question have confirmed that the primary purpose for removing the vegetation is not for fire protection or prevention, but instead for a development advantage, whilst admitting that the risk of a bushfire to their property is exceedingly unlikely. An extreme example given by council is the potential of removal of a large old oak tree, which is protected under the Heritage Overlay and requires a permit for removal under clause 43.01-1 of the planning scheme. The risk of its removal arises because the tree is located within 4 metres of a boundary and there is nothing in clause 52.43 that distinguishes a permit requirement to remove a tree under the Heritage Overlay from a permit for vegetation removal under any other provision of the planning scheme.
The Tribunal found that even though the objective of the rule was to provide bushfire protection, there was no need for a landowner to prove that was in fact their purpose. If the landowner had to somehow prove their motive, eg by applying to council, that would defeat the very purpose of the amended rule, that is to allow clearing without a permit. Deputy President Gibson said, at -:
On one view, it may be perceived that the balance has tipped too far and that landowners are exploiting the exemptions in clause 52.43 for purposes unrelated to bushfire protection. This may well be to the detriment of the environment and may well be compromising the integrity of the Significant Landscape Overlay and other policies and provisions in the Nillumbik Planning Scheme, as submitted by the council…
However, notwithstanding there are situations where trees are being removed to gain a development advantage and not for bushfire protection, I do not consider the provisions of clause 52.43 can be interpreted to require proof of subjective intent by landowners who remove vegetation under the exemptions in the clause…
We don’t yet know what the laws proposed for NSW will say, but it is likely that similar unintended consequences will follow.
The news.com.au article goes on to say
The government will also introduce laws this week to give the Rural Fire Service (RFS) the power to carry out hazard reduction without the consent of landowners when attempts to contact them have failed.
Under the Rural Fires Act a hazard management officer can enter land and conduct hazard reduction work where the landowner has failed to comply with a hazard reduction notice that has been served (see ss 69 and 70). The problem is that the notice must be given notice (s 69) so the problem will arise if they are not able to locate the owner to deliver the notice. Presumably the new law will have some alternative mode of service (eg posting to the address, or putting the notice on the door) and then allow action even if there is no proof the notice has been received.
The news story then says “Anyone caught impersonating an emergency worker will also face tougher penalties …” It is already an offence to impersonate an emergency services organisation officer, punishable by a maximum fine of $5500 (State Emergency and Rescue Management Act 1989 (NSW) s 63B). An emergency services organisation officer is “an employee, member, volunteer or any other person who exercises functions on behalf of … Fire and Rescue NSW, Rural Fire Brigades, Ambulance Service of NSW, State Emergency Service, Volunteer Rescue Association or any other agency which manages or controls an accredited rescue unit” (s 63B(4) (definition of ’emergency services organisation officer’) and s 3 (definition of ’emergency services organisation’)).
Finally we’re told that the Mayor of the Blue Mountains’ major concern is
… that the clean-up is taking too long…
“In Tasmania, within eight days of their fires … the government sent in the contractors and started clearing those blocks.
It’s not clear, in these days of ‘resilient communities’ and ‘shared responsibility’ why it’s the government’s job to send in contractors to clear housing blocks – it would seem that is the responsibility of the owners and if they are insured, their insurers. And if it is a government function, why is not a local government function given that it is the Blue Mountains City Council that runs the relevant waste management facility (see http://www.bmcc.nsw.gov.au/yourcommunity/wastemanagement). In which case, one would ask the Mayor, “what government is meant to send in the contractors, and if it’s up to government, why isn’t your government doing it?”