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Land clearing rules are aimed at bushfire prevention, but now their misuse is leaving preservationists feeling burnt. By Isabel McIntosh.

The problem with 10/50 land clearing codes

Fingal Head is across the Tweed River from the Gold Coast and the antithesis of its glitz and adrenalin. The only soaring in Fingal Head is from migratory birds that use the natural habitat to nest and breed. Couches frequent front lawns. Locals walk barefoot along the rainforest tracks that run adjacent to the beach, meeting up at the single cafe-cum-bar to sit outside and listen to live music. The town’s population peaks at 600.

Sandmining in the 1950s and 1960s took its toll on the area but over the past decade the Fingal Head Coastcare group has been regenerating what was once an extensive corridor of littoral rainforest along the Tweed coast. In 2013 the group won a New South Wales government award, sponsored by the Environment Protection Authority (EPA), for “their impressive all-round work” that included regenerating the degraded littoral rainforest environment and rehabilitating biodiversity habitats. Members work four days a week, carefully using original seeds to propagate new growth.

In recent years, Fingal Head’s property prices have increased as Brisbane’s affluent classes buy weekend retreats. To develop these large blocks, though, any plans had to first get approval from Tweed Shire Council. In 2006, Robert Nankivell bought an original unrenovated home on a 1000-square-metre block for $1.35 million. A development application (DA) to subdivide by the former owner had previously been knocked back. Nankivell put in two more DAs in 2012 and 2013 for a two-lot subdivision. Both were rejected by the council on the grounds they would require the removal of a protected “endangered ecological community”, in this case the littoral rainforest.

Nankivell’s second DA rejection was decided at a Tweed Shire Council meeting on August 7 last year. One week earlier, the NSW government, in co-operation with the NSW Rural Fire Service (RFS), had introduced a 10/50 Vegetation Clearing Code of Practice. No longer did NSW residents require council approval to chop down trees. Now anyone who lived within 350 metres of a designated bushfire-prone area could clear trees within 10 metres of their home, and shrubs and other vegetation if they fell within 50 metres of their dwelling. Hence the name, 10/50. This new blanket code didn’t differentiate between suburb and bush, or between inflammable blue gum forest and fire-retardant rainforest. There was no requirement to inform the council or any other body of the work undertaken.

Before the introduction of this new 10/50 code, the clearing of any vegetation used scientifically assessed bushfire risk. The new code also rescinded all other NSW vegetation legislation to allow tree and undergrowth clearing based purely on proximity to a residential structure. Principal solicitor at the NSW Environmental Defenders Office (EDO)Sue Higginson says that in effect the new code removed all the nuanced and layered environmental protection instruments and laws that before had worked together to address both environmental and economic objectives. “A blanket approach tends to not have the capacity to look at some of the environmental nuances that are fundamental to, often, the survival of certain species … and the loser is some of those incredibly sensitive ecological communities,” she says. It took just 11 days to prove this correct.

Police stopped the work

At 7am on an almost-spring Monday last year, residents in Fingal Head were woken by the sound of chainsaws. It didn’t take long to find the origin of the noise. On Robert Nankivell’s property, the same one where his own ecological assessment had identified 27 different rainforest species, five men were hard at work clearing protected littoral rainforest. A resident rang the police. Council was called. The federal environment minister’s office was phoned. The 10/50 code rescinds every NSW law and can only be overridden by the federal Environment Protection and Biodiversity Conservation (EPBC) Act.

Police stopped the work, waiting to hear if the EPBC Act had been breached. In a previous clearing incident, prior to the 10/50 code, Fingal Head Coastcare had successfully stopped unapproved clearing on the same property, arguing that heavy penalties could be imposed for destroying local protected vegetation. This time it was different. Greg Hunt’s office phoned back saying that the 340-square-metre area wasn’t large enough to be of concern and the clearing could continue. By 7pm that day another remnant of littoral rainforest was gone. Trees were left uprooted and dying on the block. Eventually the lot, the seed source for the last remnants of littoral rainforest on the north coast, was mulched.

Kay Bolton from Fingal Head Coastcare says that more than 44 mature trees were lost that day. With them went the hollows that take decades to form in a tree’s trunk and branches and provide a critical habitat to many species listed in the Threatened Species Conservation Act. Two days later a big old barking owl was spotted sitting desolately on a clothesline, says Bolton, its home now sawdust. Bolton argues that land size alone has no scientific basis to determine if an ecological habitat should be protected, and the cumulative impact must be taken into account. “Most of the remnants are very small,” she says. “You can’t just go on size; there’s a whole lot of other criteria that must be used.”

The Environment Protection Authority has written screeds on the importance of these gnarly resting areas as habitat and breeding. Yet the EPA put in no submission to the draft 10/50 vegetation code last July despite its departmental responsibility for the Protection of the Environment Operations Act, overridden by the new laws. Instead, it stated that “threatened flora, fauna and ecological communities” should not inhibit clearing around homes.

The process from the announcement of the draft 10/50 code to its final legal iteration was rapid. Announced on July 1, 2014, the period for responses was less than three weeks, barely time for councils and landcare groups to assess the code, let alone consult expert stakeholders. Only a few submissions were received, but those that were – from EDO NSW, Local Government NSW, the Sydney Coastal Councils Group and the NSW Greens – were highly critical. The director of policy at Local Government NSW, Noel Baum, wrote that the draft code “in its current form suggests a lack of rigour and adequate detail”. He urged the Rural Fire Service to not proceed until they had taken “into account the practical ramifications and technical questions raised by the many individual councils”. This included local planning, development assessment, heritage preservation and the potential loss of bushland. The mayor of Tweed Shire Council, Gary Bagnall, says it is in the public interest to ensure that all the relevant issues are properly considered prior to any clearing. “In many cases there may be other more effective ways to manage the risk of bushfire, such as clearing the fine ground fuel load surrounding the trees, rather than just wholesale clearing of environmentally significant areas.”

Land court hearing

Kay Bolton has spent every one of her 67 Christmas days at Fingal Head. In that time, she says, there has never been a fire in the littoral rainforest. The trees are salt-tolerant and very hard to burn. In 2006 a large fire got close but stopped on the edge of the rainforest. “In the past, every situation was taken on its merit and the RFS helped you with an assessment as to what the problems were and what you needed to do about it to protect your property. To apply [the 10/50 code] to the whole of the state has been the disaster.”

She says littoral rainforest should be taken out of the 10/50 approval as it is category 2, the lowest category of fire risk. Fingal Head Coastcare is currently applying to environment minister Hunt for a restoration order on Nankivell’s property.

The implications for council strategic planning and local environmental plans is significant, says the EDO’s Sue Higginson, particularly in regional areas and coastal areas where “councils through all their planning and strategic planning and their LEPS are earmarking areas that really shouldn’t be developed for urban expansion.

“Now councils are approached with a plan of the land which once was critically endangered ecological community and is now non-existent,” says Higginson. Whereas before a development application could be rejected due to existent vegetation, now a landowner can clear protected species before applying for the DA. The reverse is also true. If a DA is approved to build a dwelling, previously protected trees that now reside within a 10-metre envelope can also be removed, an argument the Land and Environment Court used last October to reject a landowner’s application to build a two-storey house in Beecroft, NSW.

With his land now cleared of littoral rainforest, Robert Nankivell wants Tweed Shire Council to approve his development application and has taken his case to the NSW Land and Environment Court. The hearing date is set for April.

This story was modified on March 25, 2015, to make clear that the EPA is not responsible for the Native Vegetation Act or the Threatened Species Conservation Act, and that the EPA sponsored but did not award the prize won by the Fingal Head Coastcare group.

This article was first published in the print edition of The Saturday Paper on Mar 21, 2015 as "Forest of concerns". Subscribe here.

Isabel McIntosh
is a Sydney-based writer.