As Christmas approaches, there is no reprieve in sight for the thousands of trees, including threatened species, destined to be destroyed under the NSW Government’s bushfire vegetation clearing legislation known as Code 10/50.
Two sets of changes to the code have been announced in as little as four months and there have been more than 1800 submissions to the review of the code, raising significant concerns about its rationale and widespread misuse across NSW.
However, despite growing community anger, the government has declined to stop the carnage while the review of the code is underway, giving the green light for the removal of thousands more trees, with little understanding of how such activity might actually improve property owners’ overall preparedness for bushfire.
What is Code 10/50?
The legislation enabling Code 10/50 was rushed through Parliament with no community consultation in July 2014 and came into effect on 1 August 2014.
The alleged intention of the code is to help landowners protect their property from bushfire by enabling them to remove vegetation on their land (including trees) within 10 metres of habitable residences and other vegetation (excluding trees) within 50 metres of such residences (it does not have to be their own).
Vegetation removal under the code is fully self-assessed, and residents living within an “entitlement” area as identified by the Rural Fire Service online tool can remove vegetation on their land without approval or neighbourly consultation.
Although there are some restrictions on vegetation removal under the code, no mechanism is in place to monitor that these are being adhered to, or to record who is removing what, why they are doing so, and whether their action will indeed reduce the risk of property loss due to bushfire.
The code overrides all local council tree preservation orders, as well as NSW threatened species legislation, but does not override Commonwealth legislation.
The rationale behind Code 10/50
Documentation recently obtained by the NSW Greens under freedom of information legislation has revealed that Code 10/50 is at least partly based on research exploring the factors associated with property loss during extreme fire events, such as those in Victoria, Tasmania and the ACT.
This research has found that 85 per cent of houses burnt during these events were located within 100 metres of bushland. It also suggests that removing vegetation within 40m of properties is an important way of minimising property loss in the event of bushfire.
However, it is also important to recognise that while vegetation clearing around properties is important within a defined distance of bushland, it does not eliminate the risk of bushfire and there is still significant residual risk to property and individuals.
Moreover, vegetation removal under Code 10/50 is only one of many factors responsible for property loss in the event of bushfire. Studies have shown that housing density is also an important factor in limiting the transmission of fire, as is the weather, overall building placement, design and construction.
From a bushfire perspective, a problematic result of Code 10/50 is the message it sends to residents that by removing vegetation from their
property, they are now safe from bushfire. In doing so, the code overrides the previous system in NSW whereby property owners concerned about bushfire could elect to have an RFS officer assess their property and design a site-specific plan of management that may or may not have involved vegetation removal.
Not only is the self-assessable nature of the code inherently flawed in terms of bushfire risk management, it is continuing to lead to gross misuse across the state.
Code 10/50 impacts to date
Since there is no formal system in place to monitor the impacts (positive or negative) associated with the code, we must rely on information collected by local councils and concerned community members.
This is what has been recorded or observed to date:
- The self-assessable nature of the code means that it is being widely misused by landowners across NSW for reasons that have nothing to do with bushfire protection. In the Lane Cove municipality, for example, the council has recorded a total of 216 trees removed, only four of which residents said had anything to do with bushfire. Views, house extensions, development, property damage and leaves in swimming pools are given as key reasons for tree removal under the code.
- Threatened species protected under Commonwealth legislation are being destroyed through the use of the code since there is no monitoring in place of to record what is being removed.
- Excess mulch from tree removal is routinely being spread over gardens or dumped illegally near bushland. This in itself is increasing the risk of bushfire.
- Unscrupulous operators have entered the industry as a result of excess demand for tree removal and have been seen operating with scant regard for their own or others’ safety.
- Vegetation removal under the code has created tensions, and sometimes lasting divisions between neighbours, as mature trees are removed without consultation or warning.
- The code has not been integrated into the planning system, with the Land and Environment Court recently refusing a development application because it had the potential to lead to removal under the code of endangered Blue Gum High Forest.
- Opportunist property developers are manipulating the system in order to facilitate the removal of trees from development sites by using the code and then demolishing existing dwellings before submitting a development application.
Interestingly, freedom of information documentation obtained by the NSW Greens has revealed that the Office of Environment and Heritage did not make a submission to the code when it was originally proposed, suggesting that threatened species should not inhibit clearing around homes.
In doing so, OEH failed to assess the impacts of the code not only on threatened species, but also on heritage-listed trees, our environment and community wellbeing as a whole.
Research shows that a five per cent reduction in tree cover can result in a 1-2 degrees increase in ambient air temperature, increasing the risk of our most vulnerable community members to extreme heat events and putting additional strain on already stretched electricity resources during hot days.
This is particularly pertinent given the significant increased densification projected for urban NSW, which threatens to bring with it a loss of vegetation and a worsening of the associated urban island heat effect now known to occur within areas dominated by hard surfaces.
At the time we most need to maintain tree cover, the code is on track to lead to significant defoliation of urban NSW.
Will recent changes to the code make a difference?
In response to community concerns about misuse of the code, there have been two major changes to the code, redefining the scope of the entitlement area (the distance from the nearest area of bushland within which vegetation removal can occur).
The latest of these changes, announced in November, has reduced the entitlement area from 350m to 100m for Category 1 bushland and from 100m to 30m for Category 2 bushland.
The classification of bushland as Category 1 or 2 reflects its vulnerability to bushfire based on relatively rigid RFS guidelines that do not distinguish between small remnants of wet sclerophyll forest, such as those in Lane Cove and elsewhere, and vast tracks of dry forest such as the Blue Mountains National Park.
Although local councils can request downgrading of bushland reserves from 1 to 2, such requests are subject to assessment by the RFS and may take many months to be finalised, if they are accepted at all.
The reduction of the code’s entitlement area is significant and will save thousands of trees. However, within the remaining entitlement areas, self-assessment and the associated misuse of the code will continue.
There is only one responsible course of action: the government must end the self-assessment component of the code, declare a moratorium pending the outcomes of its review and revert to the previous system of site-by-site assessment by RFS officers.
The government would also be well advised to look closely at the equivalent Victorian system known as Code 10/30, a system infinitely more refined than what has been implemented in NSW.
The code comes under the Police and Emergency Services portfolio held by Minister Stuart Ayes, MP for Penrith. If you are concerned, you may contact Minister Ayres at office@ayres.minister.nsw.gov.au.
Corinne Fisher is co-founder of the Better Planning Network and outgoing President of the Lane Cove Bushland and Conservation Society. She has a Master of Environmental Studies from Macquarie University.