A Land and Environment Court decision (Johnson v Hornsby Shire Council [2014] NSWLEC 1215) delivered on the 21 October 2014 has found what opponents of the 10/50 clearing code of practice have long held to be true: that it overrides local protections for endangered trees and can result in the removal of significant endangered ecological communities. In this case Hornsby Shire Council refused a Development Application on the grounds that because of the existence of the 10/50 laws, they would be unable to put in place conditions to protect the remnant Blue Gum High Forest on the development site.
Greens MP David Shoebridge said:
“This shows just how ill-thought out this tree-killing law is.
“Because councils are legally unable to put enforceable conditions on development to protect trees, they are having to refuse development that might otherwise be acceptable.
“The brutal inflexibility of 10/50 means that any development that comes within 50 metres of important vegetation is next to unapprovable.
“While previously a council may have approved a development with a condition that the vegetation is to be protected, with 10/50 in force, those conditions now have no legal effect.
“Whatever could have driven the government to have been so ignorant and inflexible in its lawmaking?
“There is a crying need for an immediate moratorium on 10/50 and its replacement with a rational risk-based approach to bushfire management,” Mr Shoebridge said.
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As reported in the Sydney Morning Herald:
A court has rejected the home-building plans of a north shore land owner due to controversial new bushfire laws that allow unfettered tree clearing around properties, in a ruling that has ramifications for development throughout NSW.
Critics say the laws, introduced in August after the Blue Mountains bushfires destroyed more than 200 properties last year, are ill-considered and are being used to clear land for development or improve views. The government says the rules help protect homes.
The so called “10/50″ measures, which are under review, allow home owners near some bushfire-prone areas to clear without approval trees within 10 metres or shrubs within 50 metres of a home.
The NSW Land and Environment Court has rejected a proposal for a two-storey home on a bushy block at Beecroft because the laws would allow the owner to uproot more than half a critically endangered blue gum forest nearby.
Parts of the site had already been cleared and a driveway built. Hornsby Council had previously knocked back the proposal, arguing the forest should be protected.
Last week, Gosford City Council rejected plans to subdivide about five hectares of land at Avoca Beach for residential development because important ridge-top vegetation could be ripped up under the new laws. It said while the proposal had merit, the 10/50 policy had created “uncertainty” and would overrule conditions imposed by the council.
Tweed Shire Council has also warned the laws may limit development that might otherwise be approved.
It blamed the state government policy for an incident at Fingal Head in August when a landowner cleared a swath of rare littoral rainforest. The move, although lawful, was reportedly decried as a “massacre” by outraged neighbours.
Pittwater Council says the laws have forced some development plans back to the drawing board to allow for better environmental protection. A spokeswoman for Blue Mountains City Council said the policy was not integrated into the development application process, describing the situation as “a concern”.
NSW Nature Conservation Council bushfire policy officer Greg Banks said the 10/50 policy was ill-considered and clearing should be halted until a review by the Rural Fire Service was complete. Greens MP David Shoebridge described the government as “ignorant and inflexible” for introducing the laws.
Fairfax Media has previously reported concerns that waterfront home owners have used the powers to chop down trees blocking million-dollar harbour views, much to the chagrin of councils and neighbours.
The regulations initially applied to properties within 350 metres of designated bushland. But in response to concern about overclearing, the RFS reduced that area to 150 metres. Councils were also given the power to reclassify land to reduce the area where the policy applies.
A spokesman for the Planning Department said the changes “address council and community concerns while maintaining an appropriate level of practical protection for properties and the community”.
[NB The government has only reduced the outrageous 350 metre clearing zone in respect of category 2 bushfire prone land - this is only a tiny minority of bushfire prone land in NSW and for the most part the 350 metre entitlement zone remains in place. The ability for local council's to have flexibility is also only a promise at the moment and this has not been confirmed in any change in the 10/50 laws or policy, David]