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Last updated: 6 December 2008
5.3 Clearing vegetation
1 Overview
Key to terms used in this Fact Sheet
DECCW means the NSW Department of Environment, Climate Change and Water
Director-General means the Director-General of DECCW.
EPA Act means the Environmental Planning and Assessment Act 1979 (NSW)
Environment Minister means the NSW Minister for Climate Change and the Environment
EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999
LEC Act means the Land and Environment Court Act 1979
NV Act means the
Native Vegetation Act 2003 (NSW)
PVP means a property vegetation plan made under the Native Vegetation Act 2003
SEPP 19 means State Environmental Planning Policy No 19 – Bushland in Urban Areas
TPO means a tree preservation order
Trees Act means the Trees (Disputes Between Neighbours) Act 2006
TSC Act means the Threatened Species Conservation Act 1995 (NSW)
Clearing vegetation of all types is a highly regulated activity in NSW. Native vegetation in particular plays a vital role in supporting biodiversity and ecosystems. Land clearing is recognised as a key threatening process affecting the survival of threatened species. It is a major factor contributing to soil erosion, salinity and climate change.
This Fact Sheet describes the principal laws governing the clearing of vegetation in NSW.
In particular, this Fact Sheet covers:
Land clearing in rural areas, which is regulated under the Native Vegetation Act 2003 by requiring all clearing to be authorised under either a development consent or a property vegetation plan, and
Land clearing in urban areas, which is regulated under the Environment Planning and Assessment Act 1979, through the use of development consents and tree preservation orders.
Forestry on private and public land is regulated under different legislation, although small scale private forestry can be authorised under the Native Vegetation Act 2003.
For information on forestry, including how landowners can generate carbon credits, see Fact Sheet 5.2.
For information on protecting threatened species and their habitat from land clearing, see below and also Fact Sheet 6.1 on Threatened Species (NSW).
For information about protecting vegetation in national parks, see Fact Sheet 6.3 on Protected Areas.
For information on how to protect vegetation on private land, see Fact Sheet 6.4 on Conservation on Private Land.
The Commonwealth also has legislation regulating clearing if the clearing affects a matter of national environmental significance, such as a nationally listed threatened species or a migratory species, which is the Environment Protection and Biodiversity Conservation Act 1999.
For more information, see below and also Fact Sheet 3.1 on the EPBC Act.
1.1 Useful web links
The Native Vegetation Act 2003 is administered by the NSW Department of Environment, Climate Change and Water.
Click here to go to DECCW's website on native vegetation management
Land clearing which affects a matter of national environmental significance is regulated under the EPBC Act.
Click here to go to the Commonwealth Environment Department's website on the EPBC Act
1.2 Useful legal texts
Environmental and Planning Law in NSW, Lyster, et al (2007)
The Environmental Law Handbook, Farrier & Stein, eds, 4 th ed, Chapter 11 (Biodiversity Conservation), pp 412 – 419.
Environmental Law in Australia, Bates, 6 th ed (2006), Chapter 14 Managing Biodiversity: Habitats & Species
2 Land clearing in rural areas
Land clearing in rural areas in NSW is regulated under Native Vegetation Act 2003 and the Native Vegetation Regulation 2005.
The Act commenced on 1 December 2005 and repealed and replaced the Native Vegetation Conservation Act 1997. One of the main objects of the Act is to end broadscale clearing in NSW.1
The Minister responsible for the Native Vegetation Act 2003 is the Minister for Climate Change and the Environment, and the Act is administered by the Department of Environment, Climate Change and Water.
2009 policy review of the Native Vegetation Act 2003
The effectiveness of the Native Vegetation Act 2003 will be reviewed by the NSW Parliament in 2009 in accordance with the usual practice in NSW under which all legislation is usually reviewed after five years. The review will determine whether the policy objectives of the Act remain valid and whether the means of addressing these objectives are appropriate.
In anticipation of this review, the EDO is gathering information on key issues of concern, problems with implementation and suggestions for improvement for the Native Vegetation Act 2003.
The Act applies to rural land that is privately owned or leased (eg such as land in the Western Division: See Fact Sheet 2.5 Western Division).
2.1.1 Land excluded from the Act
The NV Act does not apply to:2
Urban land (being land zoned “residential”, “village”, “township”, “industrial” or “business”, or other zones with a similar urban character)
The Sydney Metropolitan Area
State forests
National parks and conservation areas
Lord Howe Island
The Act also does not apply to land which is:
Subject to an interim protection order under Part 6A of the NPW Act
Subject to interim heritage order under the Heritage Act 1977
Listed on the State Heritage Register under the Heritage Act 1977, or
Declared as critical habitat under the Threatened Species Conservation Act 1995.
Schedule 1 of the NV Act contains the detailed list of areas (including a list of local council areas in the Sydney Metropolitan Area) that are excluded from the operation of the Act.
Clearing on land which is excluded from the Act will continue to be subject to clearing controls under local environment plans and tree preservation orders: See below.
2.1.2 What sort of vegetation is caught by the Act?
The NV Act does not only regulate the clearing of native trees. It also regulates the clearing of (native):3
saplings, shrubs and scrub
understorey plants
groundcover, and
plants occurring in wetlands (marshes, billagongs, swamps)
The NV Act does not apply to mangroves, seagrasses or any other types of marine vegetation.4 These are protected instead under s 205 of the Fisheries Management Act 1994: See Fact Sheet 6.2.
2.2 How is clearing controlled under the NV Act?
2.2.1 Offence to clear land
The NV Act makes it an offence to clear native vegetation except in accordance with:5
A development consent granted under the NV Act, or
A property vegetation plan.
Clearing does not just include cutting down trees. It also includes thinning, removing native vegetation (eg with a bulldozer), clearing groundcover (eg by ploughing) poisoning (eg by herbicide spray drift), ring barking, uprooting or burning native vegetation.6
The Act also contains a range of exemptions under which clearing is permitted without consent or a property vegetation plan: See paragraph 2.3 below.
A person who carries out or authorises (eg by engaging a contractor) clearing without development consent or a property vegetation plan is guilty of an offence: Maximum penalty $1.1 million, plus a daily penalty of up to $110,000.7
It is not just the landholder who can commit an offence; the person who actually carries out the clearing (eg the bulldozer driver) can also be charged with an offence.8
Land clearing in NSW is regulated by DECCW.
DECCW regularly assesses satellite images and compares them to previous years in order to identify recent clearing. DECCW investigates clearing which is not accounted for under a property vegetation plan or development consent.
It is a defence if the person can point to an exemption under the Act.9
A landholder who wishes to clear land can either apply for development consent or negotiate a PVP with DECCW: See ‘PVPs' below.
The NV Act adopts the same procedure for applying and issuing a development consent for land clearing under the NV Act as for normal development under Part 4 of the Environmental Planning and Assessment Act 1979, with the following differences:
A land clearing consent is issued by the Environment Minister, rather than a local council or the Planning Minister10
The Environment Minister does not have to consider the standard range of matters set out under s 79C of the EPA Act,11 but must instead consider any relevant catchment action plans of catchment management authorities12
The Environment Minister must not grant consent for broadscale clearing unless the clearing will improve or maintain environmental outcomes.13 Whether there will be an improved outcome or not is determined using an Assessment Methodology which has been adopted under the NV Regulations.14
Development consents and their conditions are legally binding.15 A person who clears land in breach of a consent or its conditions will commit an offence.16 This can include the landholder, the person who authorises the clearing, and the person who does the clearing.17
Applications for development consent to clear vegetation under the NV Act do not need to be accompanied by a species impact statement, even if they are likely to have a significant impact on threatened species, because the Environment Minister has conferred biodiversity certification on the NV Act:18 See ‘Land clearing and threatened species' below.
A person can appeal against a development consent under the NV Act in the same way as for a normal development consent under the EPA Act: See Fact Sheet 2.2, section 8.
A public register of development consents is available under the NV Act.19
If a landholder wishes to clear land, they can either apply for development consent or apply for a property vegetation plan (PVP).
Property vegetation plans are voluntary, but once made they are binding. They allow the landholder to lawfully carry out the clearing which is identified in the plan, and also to take advantage of financial incentives offered by the State Government in return for taking conservation measures on their land.
A PVP will identify which areas of land can be cleared, which vegetation must be kept as an offset (including which is regrowth), and what sort of farming practices can continue to be carried out.20 PVPs are legally enforceable.21 A landowner who carries out clearing in breach of their PVP will commit an offence.22
PVPs can be made for up to 15 years and bind future owners of the land.23
The process for making a PVP begins by the landholder submitting a draft PVP to the Director-General of DECCW.24 The Environment Minister is then responsible for approving the PVP, although in practice, this function is delegated to catchment management authorities (CMAs).25
As with development consent under the NV Act, the Minister must not approve a PVP which allows broadscale clearing of native vegetation unless the clearing will improve or maintain environmental outcomes.26 Whether there will be an improved outcome or not is determined using an Assessment Methodology which has been adopted under the NV Regulation.27
While broadscale clearing has been very much restricted under the NV Act, since 1 August 2007 it has been permitted for the purpose of harvesting timber for private native forestry. However the clearing must be approved by the Environment Minister under a property vegetation plan, and the clearing must be carried out in accordance with the Private Native Forestry Code of Practice, which was adopted on 8 February 2008.29
A person who clears land under a PVP for private native forestry does not also need to comply with the Threatened Species Conservation Act 1995 (eg by getting a licence to take or kill threatened species or to damage their habitat). This is because the Environment Minister has conferred biodiversity certification on private native forestry, effectively exempting those operations from the TSC Act.30
The NV Act prohibits clearing on vulnerable land, which used to be called “state protected land”. Vulnerable land is land that is especially prone to soil erosion, sedimentation and landslip if appropriate land clearing techniques are not used. Vulnerable land has been mapped and includes:
Steep or highly erodible land
Protected riparian land
Special category land.
“Vulnerable land” has been classified as protected regrowth31 and therefore requires approval to clear (or a PVP), unless it is excluded clearing which is authorised under other legislation: See 2.3.5 below.
Farmer Exit Assistance Program In July 2006, the NSW Government developed a Native Vegetation Assistance Package to help those farmers who experience financial hardship as a result of the
Native Vegetation Act 2003. Click here for more information. The $37 million package, funded by the Environmental Trust, is available to eligible landholders for three years until 30 June 2009 and includes:
Sustainable Farming Grants ($15 million)
Offset Pools ($10 million)
Farmer Exit Assistance ($12 million)
Farmers who can demonstrate loss of commercial viability under the Native Vegetation Act 2003 and have been refused consent to clear, may be eligible for Farmer Exit Assistance. The Farmer Exit Assistance program will be administered by the Nature Conservation Trust of NSW (the Trust) on advice of the relevant Catchment Management Authority and the Rural Assistance Authority.
For more information, visit the Nature Conservation Trust website. The Trust has been assigned responsibility for administering the Farmer Exit Assistance Program.
2.3 Exemptions
2.3.1 Clearing of regrowth and groundcover is permitted
The following types of clearing are permitted under the NV Act without the need for development consent or a property vegetation plan:
Clearing of regrowth (grown since 1 January 1990, or 1 January 1983 if in the Western Division), but not if it is “protected regrowth”: see below32
Clearing of groundcover where only 10% or less of the area is covered with vegetation, and less than 50% of that vegetation is indigenous species.33
“Protected regrowth” is a type of regrowth that does not fall within the exemption.34 Protected regrowth is regrowth in those areas which are identified in a property vegetation plan, a local environment plan or catchment action plan as “protected regrowth”, and includes “vulnerable land”: See paragraph 2.2.5 above.
2.3.2 Routine agricultural activities are permitted
Under the NV Act, a landholder is permitted to clear vegetation for routine agricultural management activities without the need for approval.35 “Routine agricultural management activities” are defined to include:36
The construction, operation and maintenance of rural infrastructure, including farm dams, permanent fences, buildings, windmills, bores, air strips (in the Western Division), stockyards and farm roads
but not if the rural infrastructure is on land zoned rural-residential or on a small holding (less than 10 hectares, or less than 40 hectares in the Western Division)
and only if within the buffer distances set out in the Regulations, eg 20 metres either side of a permanent fence (in some regions)37
The removal of noxious weeds under the Noxious Weeds Act 1993
The control of noxious animals under the Rural Lands Protection Act 1998.
The collection of firewood (but not for commercial purposes)
The harvesting of native vegetation planted for commercial purposes
The lopping of native vegetation for stock fodder
Traditional Aboriginal cultural activities Any activity necessary to remove or reduce an imminent risk of serious personal injury or damage to property, and
Clearing vegetation planted as part of a garden.38
Click here to view the buffer distances within which clearing is permitted under clause 20 of the Native Vegetation Regulation 2005 (see first bullet point above)
More detailed provisions on what does, and does not, constitute an exemption as a routine agricultural management activity, including maximum buffer distances for farm infrastructure are set out in the Native Vegetation Regulation 2005, Part 5, clauses 13 – 23B.
2.3.3 Continuation of existing farming activities is permitted
Farming activities such as cultivation, grazing or rotational farming practices, which were being carried out as at 1 December 2005 (the date that the NV Act came into force), are permitted without development consent or a property vegetation plan, but not if it involves the clearing of:39
Remnant vegetation (ie vegetation which has not been cleared since 1 January 1983),40 and
If the vegetation is in the Western Division, or is river red gum, belah or white cypress pine more than 3 metres high.
2.3.4 Sustainable grazing is permitted
Sustainable grazing that is not likely to result in the substantial long-term decline in the structure and composition of native vegetation is permitted without approval or a property vegetation plan.41
2.3.5 Clearing authorised by other legislation is permitted
The NV Act is deemed not to apply to land clearing which is authorised under other legislation. The permitted types of clearing include:42
Clearing authorised under the State Emergency and Rescue Management Act 1989
Clearing authorised under the Rural Fires Act 1997
Clearing carried out under a property management plan or licence under the Threatened Species Conservation Act 1995
Clearing authorised by a development consent under the EPA Act, if the development is designated development (ie required an EIS: See Fact Sheet 2.2)
Clearing carried out by a determining authority (government authority) or under an approval granted under Part 5 of the EPA Act: see Fact Sheet 2.2
Clearing authorised under the Mining Act 1992 Clearing for plantations operations under the Plantations and Reafforestation Act 1999
Clearing under the Water Act 1912 or the Water Management Act 2000.
Clearing for single dwellings which have already been granted development consent under the EPA Act do not also need development consent under the NV Act.43
2.4 Land clearing and threatened species
Land clearing which is carried out in accordance with a development consent issued under the NV Act or under a property vegetation plan will not breach the Threatened Species Conservation Act 1995.
2.4.1 Clearing permitted by a NV Act exemption will not breach TSC Act
If a person is carrying out clearing which is permitted by one of the exemptions under the NV Act (see para 2.3 above), then this will be a defence to any threatened species offence, such as damaging the habitat of a threatened species or picking a threatened plant.
For example, clearing non-protected regrowth under section 19 of the NV Act, continuing an existing farming activity under section 23, or engaging in sustainable grazing under section 24, will be a defence.44
This defence does not apply if the clearing takes place in an urban area.45
2.4.2 Development consents do not need a species impact statement
The usual process in NSW is that development applications for developments which are likely to have a significant effect on a threatened species need to be accompanied by a species impact statement: See Fact Sheet 2.2 for more information.
However, development applications for clearing under the NV Act do not need to have a species impact statement. This is because the Environment Minister has granted biodiversity certification on the NV Act, the effect of which is to deem all development applications under the NV Act not to have a significant impact on threatened species.46
2.4.3 Clearing under property vegetation plans will not breach TSC Act
Similarly, a person who clears native vegetation in accordance with a property vegetation plan does not need a licence to take or pick threatened species and will not commit an offence under the Threatened Species Conservation Act 1995, because of the effect of biodiversity certification on the NV Act.
2.4.4 What is biodiversity certification?
Under the TSC Act, the Environment Minister can confer biodiversity certification on a local environment plan or state environmental planning policy. The effect of certification is to exempt developments covered by those plans from the need to comply with the TSC Act.47
The TSC Act allows the Environment Minister to confer biodiversity certification on the native vegetation reform package (the NV Act and Regulations). The Minister can do this by issuing an order in the Gazette.48 On 22 November 2005, the Environment Minister issued such an order conferring biodiversity certification on the native vegetation reform package. The order took effect on and from 1 December 2005.49
2.5 Enforcement of the NV Act
Development consents and PVPs issued under the NV Act are legally enforceable.50
2.5.1 Powers of entry, inspection, to obtain information
Under the NV Act, an authorised officer has power to enter somebody's land for the purpose of determining whether there is, or has been, a breach of the Act, but only if:51
The landholder consents, or
The Director-General of DECCW has authorised the entry.
The authorised officer must produce his or her identification card, if requested.52 Once on the land, the officer can conduct investigations, take samples (eg of tree species), take photos and require a landholder to produce records or documents (eg contracts engaging bulldozers).53
It is an offence to obstruct (delay, threaten, hinder) an authorised officer or to refuse to comply with a requirement by an authorised officer: Maximum penalty $11,000.54
In order to determine whether the NV Act is being or has been breached, the Director-General of DECCW can direct a notice to be served on a person requiring them to give information about a land clearing incident to an authorised officer (either orally, or by giving them documents).55
It is an offence not to comply with a notice without reasonable excuse: Maximum penalty $11,000.56
A person is not excused from giving information, answering questions or producing documents on the ground that they may tend to incriminate themselves.57
2.5.2 Stop work orders
The Director-General of DECCW can issue a stop work order if they think that a person is breaching, or is about to breach, the NV Act.58 A stop work order can take effect immediately and can last for up to 2 years.59
The Director-General is not required to notify anybody before making an order.60 A person who is unhappy with a stop work order can appeal to the Land and Environment Court (Class 1) within 30 days of the order being served.61 An appeal does not suspend the order.62
It is an offence not to comply with a stop work order: Maximum penalty for a corporation $220,000, plus $22,000 daily penalty; for an individual $110,000, plus $11,000 daily penalty.63
2.5.3 Directions for remedial work
The Director-General of DECCW can direct a landholder to carry out remedial work by issuing a written notice to the landholder.64 This might involve things such as undoing any earthworks which have caused damage, replanting trees and stabilizing river banks.65
Remedial work can be directed even if there hasn't been a breach of the NV Act. If land clearing is causing damage, such as soil erosion or siltation of a river or lake, then the Director-General can issue a remedial direction to stop the ongoing damage, even where there is no breach.66
The Director-General is not required to notify anybody before giving a direction.67 A person who is unhappy with a remediation direction can appeal to the Land and Environment Court (Class 1) within 30 days of the direction being served.68 An appeal does not suspend the direction.69
It is an offence not to comply with a remediation direction: Maximum penalty for a corporation $220,000, plus a daily penalty of $22,000; for an individual $110,000, plus a daily penalty of $11,000.70
If a landholder fails to comply with a remediation direction, the Director-General can authorise someone else to do the work and charge the cost to the landholder.71
2.5.4 Civil proceedings
Any person can bring proceedings in the Land and Environment Court to stop the NV Act from being breached, to remedy a past breach, or to stop an imminent breach.72
Civil proceedings are where a person asks the Court to order a civil remedy, such as an injunction (eg to stop work), a declaration (eg that a development consent is invalid), or even a remediation order directing someone to fix the damage to the land:73 see Fact Sheet 2.4, section 3.3. “Any person” includes DECCW or any member of the public.
2.5.5 Criminal proceedings
Any person can bring criminal proceedings for an offence under the NV Act, although in practice this will usually be done by DECCW.74 Criminal matters are heard in a Local Court or in the Land and Environment Court (Class 5).75
Criminal proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed, or from the date that the alleged offence first came to the attention of an authorised officer.76
Case Study: Illegal land clearing – offender fined $400,000
Director-General of the Department of Environment, Climate Change and Water v Hudson [2009] NSWLEC 4
The Director-General of the NSW Department of Environment, Climate Change and Water brought proceedings against the defendant, John Ross Hudson, in the Land and Environment Court for breaches of the Native Vegetation Act 2003 (the Act). Mr Hudson had cleared 486 hectares of Eucalyptus coolabah,Casuarina cristata and Acacia stenophylla in the Gwydir wetlands.
Hudson was charged with two offences:
1. The clearing of 486 hectares of native vegetation without having development consent or a property vegetation plan authorising the clearing, and;
2. Failing to comply with a notice issued under the Act, requiring Mr Hudson to provide specified information/documents relating to the first offence to the Special Investigations Unit.
Hudson was found guilty of both charges. The judge held that this case was in the ‘upper range of seriousness' and after consideration of the maximum of $1.1 million, he issued a fine of $400,000 for the first offence.
After providing no excuse for failing to provide the information asked for in the notice, Mr Hudson was fined an additional $8,000.
Mr Hudson was ordered to pay the total sum of $408 000 plus the prosecutor's costs.
Minor breaches of the NV Act listed in Schedule 1 of the NV Regulation 2005 can be enforced by an authorised officer issuing an offender with a penalty notice.77
3 Clearing in urban areas
The clearing of bushland and vegetation in urban areas (including the lopping of individual trees) is regulated under:
Local environment plans, which can specify when development consent is required for clearing
Tree preservation orders
Development control plans (new standard provisions)
State Environmental Planning Policy No 19 - Bushland in Urban Areas.
The Native Vegetation Act 2003 does not apply in urban areas, namely, the Sydney Metropolitan Area or areas zoned “residential”, “village”, “township”, “industrial” or “business” (or other zones with a similar urban character).78 If the area is not one of these types of urban areas, then the NV Act will apply: See above.
3.1 Development consent and local environment plans
A local environment plan may contain provisions which control the clearing of vegetation in urban areas by requiring a person to obtain development consent before they can lawfully clear land, or even individual trees. Each local environment plan, and each zone within it, is different and should be checked carefully before any clearing is carried out.
In some cases, the developer is required to retain certain tree species, or even individual trees, as a condition of development consent. If the protected trees are cleared, the developer can be prosecuted for a criminal offence in a Local Court or in the Land and Environment Court: See Fact Sheet 2.4.
3.2 Tree preservation orders
Tree preservation orders (TPOs) are used regularly to control clearing in urban areas. They can apply to both native and non-native species.
Tree preservation orders are usually a separate document to a local environment plan, although it is a local environment plan which gives the local council the power to make a tree preservation order.79 TPOs usually make it an offence to ring bark, prune, cut down or remove a tree without written consent from the council.
Although TPOs vary from council to council, a typical tree preservation order might require permission before lopping any tree of a certain type or size, eg trees more than 3 metres high, or with a crown of more than 2 metres. The TPO will often contain a list of exemptions for species which are considered a nuisance, such as camphor laurel, and for emergencies (eg danger or bushfire).
3.2.1 Enforcement of TPOs
A tree preservation order can be legally enforceable, depending on its specific provisions. Local councils can prosecute a person for breaching a TPO in a Local Court or in the Land and Environment Court:80
Maximum penalty in a Local Court $110,000;
Maximum penalty in the Land and Environment Court $1.1 million.
Any person can bring civil proceedings in the Land and Environment Court to prevent the breach of a TPO, for example, to obtain an order to prevent someone from cutting down a tree.81
Existing tree preservation orders are likely to be progressively replaced by tree preservation provisions in Development Control Plans (DCPs): See below.
Tree preservation orders vary from council to council. Some councils may not have one at all. For more information on tree preservation orders and tree control provisions in DCPs, contact your local council. The TPO may be on their website.
3.3 New standard instrument for tree preservation in DCPs
Amendments to the EPA Act in 200582 allow the Planning Minister to make a Standard Instrument for local councils to follow when making local environment plans (LEPs).83 The purpose of the Standard Instrument is to encourage the standardization of LEPs across local council areas.
The Standard Instrument (Local Environment Plans) Order 2006 contains a standard provision on the preservation of trees or vegetation (Clause 32). The standard clause allows a council to include tree preservation provisions in its DCP. The DCP can require a person to obtain development consent or permission from the local council before they lop or cut down trees, and can specify the location, size and type of trees to which the provision applies.
It is not compulsory for a local council to adopt the standard clause within their local environment plans.
3.4 SEPP No 19 – Bushland in Urban Areas
State Environmental Planning Policy No 19 – Bushland in Urban Areas (SEPP 19) applies to all bushland within the Sydney Metropolitan area which is zoned or reserved as public open space.84 The aim of the Policy is to preserve remnant vegetation within urban areas.85
3.4.1 Local environment plans
When a local council proposes to rezone land which is zoned or reserved as urban bushland (eg for urban subdivision), in its LEP, SEPP 19 requires local councils to give priority to retaining the bushland, unless the council is satisfied that significant environmental, economic or social benefits will outweigh the value of keeping the bushland.86
3.4.2 Development consent and bushland
Under SEPP 19, a person must not disturb bushland which is zoned or reserved as public open space without development consent from the council.87
Where a local council is considering a development application for land which adjoins bushland zoned or reserved for public open space, SEPP 19 also requires the council to consider how to best retain the bushland, and what impact the clearing of it might have on soil erosion, siltation of streams and the spread of exotic weeds and plants.88
The purpose of the Trees (Disputes Between Neighbours) Act 2006(Trees Act) is to allow for the resolution of disputes between neighbours concerning trees by allowing proceedings to be brought in the Land and Environment Court. The Trees Act came into force on 2 February 2007.89
The Attorney General is responsible for administering the Trees Act.
4.1 Where does the Trees Act apply?
The Trees Act only applies to urban land, which is land zoned “residential” (but not rural-residential), “village”, “township”, “industrial” or “business”.90
The Act applies to all trees, both native and non-native, and also to bamboo.91 The Act does not apply to trees situated on land owned or controlled by a local council.92
If the Trees Act applies to a tree, then it prohibits any other action being brought for nuisance as a result of any damage caused by the tree.93
4.2 Owner of land affected by tree can apply for an order
The Trees Act allows a person whose land might be affected by somebody else's tree to apply to the Land and Environment Court for an order. For example, the tree might have roots intruding into the landowners property, or might pose a safety threat to their property.
The person applying for the order must give the owner of the tree, and any relevant authority, at least 21 days' notice before they lodge their application for an order with the Court, although the Court can waive this requirement.94
All applications under the Trees (Disputes Between Neighbours) Act 2006 are made in Class 2 of the LEC.95
4.3 Powers of the Court
The Court has broad powers to make orders as it sees fit to remedy any damage caused to property or to stop further damage, or to prevent injury to any person.96
The Court also has power to:97
Direct somebody to obtain development consent (if they were already required to)
Authorise land to be entered for the purpose of carrying out an order (eg to lop a tree)
Require the owner of the tree to pay the costs of carrying out the work under the order
Require the tree owner to pay compensation, and
Require a person to plant and maintain a new tree to a mature growth.
The Court must not make an order unless the applicant has made a reasonable effort to reach agreement with the owner of the tree about what should be done about it before going to Court.98
The Act sets out a long list of matters which the Court must consider before making an order, such as whether the tree has any historical, cultural, social or scientific value, the tree's value as habitat, and things other than the tree which might be causing the damage.99
Subsequent owners of the land on which a tree affected by an order is situated are also bound by the order, but only if the applicant for the order has given them a copy of the order.100
4.4 Local council officers can enforce orders
If requested to do so, a local council officer can enter land for the purpose of checking whether a person has complied with an order, and if not, can carry out the work themselves and recover the costs from the tree owner.101 Before entering the land, the council officer must notify the landowner of the day on which they intend to enter the land, unless there is a serious risk they wish to address.102
It is an offence not to comply with a tree order made by the Court: Maximum penalty $110,000.103 Proceedings for criminal offences under section 15 of the Trees Act are heard in Class 5 of the LEC.104
5 Access to Neighbouring Land Act 2000
A person whose property might be affected by a dangerous tree, hedge or shrub can also apply to the Local Court for a neighbouring land access order under the Access to Neighbouring Land Act 2000 (NSW).
For example, a person can apply to a Local Court for an order to access adjoining land for the purpose of:
Checking whether any hedge, tree or shrub is dangerous, dead, diseased, damaged or insecurely rooted
Replacing any tree, hedge or shrub
Removing, felling, cutting back or treating any hedge, tree or shrub.
6 Clearing vegetation under Commonwealth law
The main Commonwealth environmental law, the Environment Protection and Biodiversity Conservation Act 1999(EPBC Act) may also contain provisions which control the clearing of native vegetation.
For example, clearing which is likely to have a significant effect on the following things (matters of national environmental significance) will require assessment and approval under the EPBC Act:
A nationally listed threatened species or its habitat
A migratory species (eg migratory birds) and their habitat
A Ramsar wetland (a wetland of international importance).
For more information on when assessment and approval is required under the EPBC Act, see Fact Sheet 3.1 on the EPBC Act.
Native Vegetation Act 2003,
s 14(4);
Threatened Species Conservation Act 1995,
s 126C; Order made on 25 Nov 2005, taking effect on 1 Dec 2005.
Native Vegetation Act 2003,
s 15(1)(e).
Native Vegetation Act 2003,
s 28;
Native Vegetation Regulation 2005,
Part 3, cll 7 – 12B.
Native Vegetation Act 2003,
s 33.
Native Vegetation Act 2003,
s 12.
Native Vegetation Act 2003,
s 30, 31.
Native Vegetation Act 2003,
s 26;
Native Vegetation Regulation 2005,
Part 3, cll 7 – 12B.
Native Vegetation Act 2003,
s 26, 27.
Native Vegetation Act 2003,
s 29.
Native Vegetation Regulation 2005,
cl 24, 26.
Native Vegetation Act 2003,
s 32 (e).
Native Vegetation Regulation 2005,
cl 29A, B.
Threatened Species Conservation Act 1995,
s 126B, C, D; the Order took effect on 1 August 2007, NSW Government Gazette, Special Supplement, No 97, 1 August 2007, p 5338.
Native Vegetation Regulation 2005,
cl 20 sets out the infrastructure buffer distances which vary depending on the type of infrastructure and regional area that the clearing takes place in.
Native Vegetation Regulation 2005,
cl 18.
Native Vegetation Act 2003,
s 23.
Native Vegetation Act 2003,
s 9.
Native Vegetation Act 2003,
s 24.
Native Vegetation Act 2003,
see s 25 for a full list of legislative exclusions.
Native Vegetation Regulation 2005,
cl 6.
National Parks and Wildlife Act 1974,
s 118G(1).
National Parks and Wildlife Act 1974,
s 118G(4).
Native Vegetation Act 2003,
s 14(4); TSC Act, s 126E, 126I.
Threatened Species Conservation Act 1995,
s 126G-M.
Threatened Species Conservation Act 1995,
s 126C.
See NSW Government Gazette No. 142, 25 November 2005, page 9809.
Native Vegetation Act 2003,
s33.
Native Vegetation Act 2003,
s 35.
Native Vegetation Act 2003,
s 34(4).
Native Vegetation Act 2003,
s 35(2).
Native Vegetation Act 2003,
s 35(5).
Native Vegetation Act 2003,
s 36.
Native Vegetation Act 2003,
s 36(4).
Native Vegetation Act 2003,
s 36(5).
Native Vegetation Act 2003,
s 37.
Native Vegetation Act 2003,
s 37(2), (4).
Native Vegetation Act 2003,
s 40.
Native Vegetation Act 2003,
s 39; LEC Act, s 17(g).
Native Vegetation Act 2003,
s 39(2).
Native Vegetation Act 2003,
s 37(5).
Native Vegetation Act 2003,
s 38.
Native Vegetation Act 2003,
s 38(2).
Native Vegetation Act 2003,
s 38(1)(b).
Native Vegetation Act 2003,
s 40.
Native Vegetation Act 2003,
s 39; LEC Act, s 17(g)..
Native Vegetation Act 2003,
s 39(2).
Native Vegetation Act 2003,
s 38(4).
Native Vegetation Act 2003,
s 38(5), (6).
Native Vegetation Act 2003,
s 41; LEC Act, s 20(de).
Native Vegetation Act 2003,
s 41(5).
Native Vegetation Act 2003,
s 41.
Native Vegetation Act 2003,
s 42;
Land and Environment Court Act 1979,
s 21(i).
