I have previously reported on the new 10/50 clearing rule in NSW.  This rule allows a property owner in a designated bushfire risk area to clear any vegetation within 10m of their home and any vegetation other than trees within 50m of their home (see ‘New laws to protect property from bushfires or to invite people into harm’s way? A tale of two cities’ May 30, 2014; ‘Changes to NSW Hazard Reduction rules’ November 15, 2013; “NSW bushfires spark a range of new laws” November 13, 2013 and ‘Damned if you do, damned if you don’t – what to do about personal hazard reduction‘ October 22, 2013).

As I noted in those posts there can be unintended consequences of these laws and as Victoria discovered it does allow people to use the laws to clear the land for reasons other than bushfire mitigation, eg to open up their view in a way that would not otherwise be allowed because of the competing priority to preserve vegetation (see Nillumbik Shire Council v Potter [2010] VCAT 669 discussed in the posts, above).

Another surprising result has now come out of NSW and I thank David, a regular reader of this blog for bringing this to my attention.  In Johnson v Hornsby Shire Council [2014] NSWLEC 1215 the applicant wanted to build a two story home on a block of land that contained valuable remnant Blue Gum Forest.   When the land had been subdivided (to create two building blocks where there had only been one) there was a restriction imposed on the use of the land ‘to preserve the remnant Blue Gum High Forest’ (see [7]).

The proposed development would have brought trees in that Forest within 10 metres of the home and the landowner would then have been able to rely on the 10/50 rule to clear those trees.   Hornsby Council refused the application to build the proposed home and the owner appealed to the Land and Environment Court.

The Court concluded that:

Granting consent to this proposal would allow more than half of the remnant Blue Gum High Forest in the Restricted Development Area, identified as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995, to be lawfully removed. I am not satisfied that this represents a reasonable balance between the development of the newly created and approved allotment and the preservation of the remnant Blue Gum High Forest. For this reason, the proposal is refused.

The effect of the 10/50 rule is that a homeowner can clear trees up to 10 metres from the home regardless of their ecological value.  That they don’t need permission and that the rule overrides other consideration is the very essence of the rule (see Rural Fires Act 1997 (NSW) s 100R and Nillumbik Shire Council v Potter [2010] VCAT 669).  If the building had been approved that rule would have applied so now the rule was considered in a way that owners may not have anticipated, that is its application was a reason to refuse the development application.

People who object to being told what they can do on their own land in order to save themselves from themselves may have welcomed the 10/50 rule to allow them to take action without having to gain approval from the ‘nanny state’ but that rule would appear to have come back to bite these developers in a way that may not have been foreseen. Even so this is a victory for maintaining ecological values and demonstrates that fire prevention is not the only interest at stake when it comes to building in fire prone areas.