Johnson v Hornsby Shire Council  NSWLEC
On 21 October 2014, Commissioner O'Neill, refused
Development Application 199/2014 for a new dwelling at Beecroft,
due to the ability for a significant amount of remnant Blue Gum
High Forest to be removed under the 10/50 Code if the development
was approved in its current state.1
The view was, that once the dwelling was built the protected
Blue Gum High Forest could potentially be removed without
permission due to the dwelling's placement by the forest.
As addressed in our e-alert Rural Fire Service 10/50
Vegetation Clearing Code of Practice in NSW on 13 October
2014, the 10/50 Vegetation Clearing Code of Practice
(10/50 Code) allows tress within 10 metres of a house and
vegetation within 50 metres of a house to be removed without
This includes protected species listed under the Threatened
Species Conservation Act 1995 (NSW) such as the Blue Gum High
Forest that is listed as a critically endangered ecological
community under the Act.
In 2010 Council granted a subdivision consent. In order to
ensure the Blue Gum High Forest was protected two section 88B
instruments were created to protect:
Blue Gum High Forest in the 'Restricted Development
Area' at the rear of the site
Three trees within the Tree Protection Zone, located near the
driveway on the eastern side of the site.
Despite the second s88B instrument, the three trees within the
Tree Protection Zone were removed lawfully, one through a modified
consent, and the other two under the 10/50 Code.
CURRENT DEVELOPMENT APPLICATION
The site has been cleared, excluding the Restricted Development
Area and a number of other trees. The driveway has also been
constructed. All planning concerns raised by Council, including
height and bulk, were overcome, however it was agreed a privacy
screen would be necessary.
The main issue was the Blue Gum High Forest. The development
application's footprint differed from that proposed under the
subdivision application. While this is acceptable the new footprint
was closer to the rear boundary and 'would allow more than half
of the remnant Blue Gum High Forest in the Restricted Development
Area... to be lawfully removed'.2 The Commissioner
refused to approve the development application in its current form
due to this potential ecological impact.
Commissioner O'Neill found that a more skilful design could
reduce the impact on the remnant Blue Gum High Forest, for example
utilising the Tree Protection Area that was no longer protecting
the three main trees that were removed, to reduce the rear
Commissioner O'Neill clarified that an amended footprint
would not necessarily need to be 10 metres from the Restricted
Development Area, but rather a balance would need to be achieved
between the development and the conservation of the remnant Blue
Gum High Forest.4
Commissioner O'Neill's decision highlights the ability
for the 10/50 Code to result in the loss of protected and remnant
communities and species. The 10/50 Code undermines the objectives
of the Threatened Species Conservation Act 1995 (NSW) as
it requires no assessment outside of the use of the Rural Fire
Service online tool to determine if the site is located within a
vegetation clearing zone. However, it is welcoming that future
impact of the 10/50 Code may be taken into account at the merits
The Rural Fire Service is currently seeking submissions on the
10/50 Code as it undergoes a review of the policy. Submissions
close 14 November 2014.
The results of the review are expected to be interesting, as
while it important that protected species are conserved, it is also
important to protect lives and property from bushfires. The balance
between these two competing issues is expected to be the main
discussion of the review.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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