Johnson v Hornsby Shire Council [2014] NSWLEC 1215
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 permission.
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.
SUBDIVISION CONDITIONS
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 footprint.3
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
COMMENTARY
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 review stage.
REVIEW
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.
Footnotes
1 Judgment [44].
2 Judgment, [44].
3 Judgment, [41].
4 Judgment, [42].
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