New land Clearing Code and its implications for landowners in NSW

In brief - A Rural Boundary Clearing Code (Clearing Code), expected to take effect in early 2021, will allow rural landowners to clear up to 25 metres of vegetation for hazard reduction without further approvals 

The Clearing Code is in response to the independent NSW Bushfire Inquiry into the 2019-2020 bushfire season. On 7 October 2020, the Minister for Police and Emergency Services David Elliot in partnership with the NSW Rural Fire Service, issued the following media release:

A Code will be developed and will have regard to issues such as clearing in endangered and threatened species habitat as well as clearing for non-bushfire risk mitigation purposes. The new laws are based on the expert operational advice of the NSW RFS and will ensure that rural landowners are able to clear up to 25 metres of vegetation on their property without facing time consuming approvals [emphasis added].

On 25 November 2020, the Bushfires Legislation Amendment Act 2020 (NSW) (Amendment Act) commenced and amended the Rural Fires Act 1997 (NSW) (RFA) and its interaction with other legislation, including the Biodiversity Conservation Act 2016 (NSW), the National Parks and Wildlife Act 1974 (NSW) and the Local Land Services Act 2013 (NSW). 

The newly introduced provisions of 100RA and 100RB under the amended RFA delineate the functions of the Clearing Code and its requirements for carrying out vegetation clearing work. Once released by the NSW RFS, the Clearing Code will take effect and operate alongside the "10/50 Vegetation Clearing Code" (10/50 Code) under section 100Q, which has been in force since 4 September 2015. 

What does the Clearing Code mean for landowners?

The Clearing Code will provide rules on:

• which types of vegetation can be cleared, and which are prohibited;

• specifications on the manner in which vegetation can be cleared; and

• whether consent of an owner, occupier or other person is a precondition prior to clearing.

Additionally, special rules will apply to the clearing of vegetation by owners in particular localities. 

Under section 100RA(5)(d) of the amended RFA, it is likely that the Clearing Code will specify rules to prohibit vegetation clearing on land containing habitats of "threatened species". This would include any critically endangered, endangered or vulnerable species under Schedule 1 of the Biodiversity Conservation Act. Special clearing rules will also apply to riparian corridors and Aboriginal and other cultural heritage sites to ensure the preservation of sensitive localities.

Section 100RB of the amended RFA empowers owners and occupiers to clear vegetation on their property without the need for a licence, approval, consent or other authorisation under the Biodiversity Conservation Act, the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) or any other Act or instrument, subject to the vegetation clearing work occurring:

• within 25 metres of their property boundary; 

• on a land in a "rural zone" which is exhaustively defined under section 100P of the RFA as land use zones involving Primary Production, Rural Landscape, Forestry, Primary Production Small Lots, Village and Transition;

• with the consent of the owner, or carried out by the owner themselves;

• for the purposes of bushfire hazard reduction; and 

• in accordance with the Rural Boundary Clearing Code. 

Section 100RB(3) of the amended RFA states that landholders who carry out vegetation clearing work in accordance with the above conditions and the Clearing Code will not be found guilty of an offence under the EP&A Act, Fisheries Management Act 1994, Heritage Act 1977, Part 5A of the Local Land Services Act 2013, Protection of the Environment Operations Act 1997 or the Soil Conservation Act 1938. 

The amendments to the Biodiversity Conservation Act now also contain a defence to offences under Division 1 of that Act, in relation to vegetation clearing work completed in accordance with the new provisions in the Clearing Code. 

Interaction with existing law - duty to prevent bushfire fuels and obligations to protect vegetation and threatened habitat

Sections 63(1) and 63(2) of the RFA impose a duty on all public authorities, owners and occupiers of land to prevent bushfire fuels on public and private lands. These provisions require landholders to take all practicable steps to prevent the occurrence of bushfires on public and private lands, and to minimise the danger of the spread of bushfires from the land. 

The current framework requires landholders to go through one of two processes before undertaking vegetation clearing work, through either:

1. obtaining a Bush Fire Hazard Reduction Certificate in accordance with the Bush Fire Environmental Assessment Code by submitting an application to the relevant local RFS Fire Control Centre; or

2. using the 10/50 Vegetation Clearing Code of Practice, which is a self-assessment method requiring compliance with the 10/50 Code, whereby landholders do not need to seek approval from an authority. 

It is currently implied from the Second Reading Speech of the Amendment Act that vegetation clearing work under the Clearing Code will involve a self-assessment process much like under the 10/50 Code, which does not require an application to an authority. However, this will be confirmed following the official release of the Clearing Code, which will likely provide a simplified breakdown of the clearance process for landholders. 

Despite the new protections offered by the amendments and the foreshadowed Clearing Code, landholders will not be exempt from existing legal obligations to protect vegetation and threatened habitat. When clearing vegetation under the foreshadowed new 25 metre rule, landholders will still owe a general duty of care not to cause harm and cruelty to protected flora and fauna. Special arrangements such as conservation agreements made under the National Parks and Wildlife Act 1974 or property vegetation plans under the Native Vegetation Act 2003 will still need to be observed.