5.3 Trees and Native Vegetation

5.3.1  Overview

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 most 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 Environmental 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 may 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's Environment Protection and Biodiversity Conservation Act 1999 will regulate clearing if the clearing affects a matter of national environmental significance, such as a nationally listed threatened species or a migratory species. For more information, see below and also Fact Sheet 3.1 on the EPBC Act.

5.3.1.1 Useful web links

The Native Vegetation Act 2003 is administered by the NSW Department of Environment, Climate Change and Water.

Land clearing which affects a matter of national environmental significance is regulated under the EPBC Act.

5.3.1.2. Useful legal texts

• Environmental and Planning Law in NSW, Lyster, et al (2007)
• The Environmental Law Handbook, Farrier & Stein, eds, 4th ed, Chapter 11 (Biodiversity Conservation), pp 412 - 419.
• Rural Landholders Guide to Environmental Law in NSW.
• Environmental Law in Australia, Bates, 6th ed (2006), Chapter 14 Managing Biodiversity: Habitats & Species.

5.3.2 Land clearing in rural areas

Land clearing in rural areas in NSW is regulated under the Native Vegetation Act 2003 and the Native Vegetation Regulation 2005. 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.

5.3.2.1 Where does the Native Vegetation Act apply?

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).

5.3.2.1.1 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 National Parks and Wildlife Act 1974
• 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 lists areas (including 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 environmental plans and tree preservation orders.

5.3.2.1.2 What sort of vegetation is caught by the Act?

The NV Act categorises native vegetation as:

• Regrowth - any native vegetation that has regrown since 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land.
• Protected regrowth - regrowth that is identified as protected regrowth in a property vegetation plan, environmental planning instrument (such as a local environmental plan, natural resource management plan or an interim protection order.4
• Remnant native vegetation - any native vegetation other than regrowth.5

The NV Act regulates not only the clearing of native trees but also the clearing of native:6

• saplings, shrubs and scrub
• understorey plants
• groundcover, and
• plants occurring in wetlands (marshes, billabongs, swamps, sedgelands).

The Act does not apply to mangroves, seagrasses or any other types of marine vegetation.7 These are protected under s. 205 of the Fisheries Management Act 1994 (see Fact Sheet 6.2).

5.3.2.2 How is clearing controlled under the Native Vegetation Act?

5.3.2.2.1 Offence to clear land

The NV Act makes it an offence to clear native vegetation unless:

• The vegetation is regrowth (unless it is protected regrowth);
• The clearing is exempt (see 2.3 below); or
• The clearing is approved under either a development consent or a property vegetation plan.8

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.9

The Act also contains a range of exemptions under which clearing is permitted without consent or a property vegetation plan (see para 2.3 below).

A person who carries out or authorises (eg by engaging a contractor) clearing of remnant native vegetation or protected regrowth without development consent or a property vegetation plan is guilty of an offence. The maximum penalty $1.1 million, plus a daily penalty of up to $110,000.10

It is not just the landholder who may be charged with an offence; the person who actually carries out the clearing (eg the bulldozer driver) may also be charged with an offence.11

It is a defence if the person can point to an exemption under the Act.12 DECCW's website contains information on clearing native vegetation and exemptions.

5.3.2.2.2 Development consent for clearing

A landholder who wishes to clear land may either apply for development consent or negotiate a PVP with the local Catchment Management Authority (see 'PVPs' below).

The NV Act adopts the same procedure for applying and issuing a development consent for land clearing as for 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 Minister for Planning.13
• The Environment Minister does not have to consider the standard range of matters set out under s 79C of the EPA Act,14 but must instead consider any relevant catchment action plans of catchment management authorities15

The Environment Minister has delegated the approval power to Catchment Management Authorities (CMAs) so, in practice, CMAs issue development consents for clearing.16

The CMA must not grant consent for broadscale clearing unless the clearing will improve or maintain environmental outcomes.17 Whether there will be an improved outcome or not is determined using an Assessment Methodology.18

Conditions of a development consent and are legally binding.19 A person who clears land in breach of a development consent will commit an offence.20 This may include the landholder, the person who authorises the clearing, and the person who does the clearing.21

An appeal against a development consent may be made in the same way as an appeal against a development consent under the EPA Act (see Fact Sheet 2.2.8).

A public register of development consents under the NV Act is published on DECCW's website22

5.3.2.2.3 Property Vegetation Plans

If a landholder wishes to clear land they may either apply for development consent or apply for a property vegetation plan.

PVPs are voluntary but once made they are binding. They allow the landholder to lawfully carry out the clearing which is identified in the plan.

A PVP will identify which areas of land may be cleared, which vegetation must be kept as an offset and what sort of farming practices can continue to be carried out.23 PVPs are legally enforceable.24 A landowner who carries out clearing in breach of their PVP will commit an offence.25

PVPs may be made for up to 15 years and bind future owners of the land.26

The process for making a PVP begins by the landholder submitting a draft PVP to the Catchment Mangement Authority who will decide whether or not to approve the PVP.27

The CMA is not to approve a PVP which allows broadscale clearing of native vegetation unless the clearing will improve or maintain environmental outcomes.28 Whether the proposed clearing will improve or maintain an environmental outcome is assessed and determined using an Assessment Methodology.29

A public register of property vegetation plans under the Native Vegetation Act is published on DECCW's website.30

5.3.2.2.4 Private native forestry and PVPs

While broadscale clearing is restricted under the NV Act, it is permitted for the purpose of harvesting timber on private property. The clearing must be approved by the Environment Minister under a private native forestry property vegetation plan, and carried out in accordance with the Private Native Forestry Code of Practice.31

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.32

5.3.2.2.5 No land clearing on vulnerable land

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; and
• Special category land.

"Vulnerable land" is classified as protected regrowth33 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.

5.3.2.3 Exemptions

5.3.2.3.1 Clearing of regrowth and groundcover is permitted

The following types of clearing are permitted without the need for development consent or a property vegetation plan:

• Clearing of regrowth, but not if it is "protected regrowth";34
• Clearing of native vegetation that comprises only groundcover where not less than 10% of the area is covered with vegetation (whether dead or alive), and less than 50% of that vegetation is indigenous species.35

"Protected regrowth" is a type of regrowth that does not fall within the exemption.36 Protected regrowth is regrowth in those areas which are identified in a property vegetation plan, an environmental planning instrument, a natural resource management plan or an interim protection order as "protected regrowth", and includes "vulnerable land". See para 2.2.5 above.

5.3.2.3.1 Routine agricultural management activities are permitted

A landholder is permitted to clear vegetation for routine agricultural management activities without the need for approval.37

"Routine agricultural management activities" include:38

• 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)39
• 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 (except for commercial purposes)
• The harvesting or other clearing of native vegetation planted for commercial purposes
• The lopping of native vegetation for stock fodder
• Traditional Aboriginal cultural activities
• The maintenance of public utilities (such as those associated with the transmission of electricity, the supply of water, gas and electronic communication)
• 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.40

5.3.2.3.2 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, are permitted without development consent or a property vegetation plan, but not if it involves the clearing of:41

• Remnant native vegetation (ie vegetation which has not been cleared since 1 January 1983),42 and
• Vegetation in the Western Division, or vegetation that is river red gum, belah or white cypress pine more than 3 metres high.

5.3.2.3.3 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 development consent or a property vegetation plan.43

5.3.2.3.4 Clearing authorised by other legislation is permitted

The Native Vegetation Act is deemed not to apply to land clearing which is authorised under other legislation.

The permitted types of clearing include:44

• 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. (See Fact Sheet 2.2);
• Clearing carried out by a 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.45

5.3.2.4 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.

5.3.2.4.1 Clearing permitted by a Native Vegetation Act exemption will not breach TSC Act

If a person is carrying out clearing which falls within one of the exemptions under the Native Vegetation 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 Native Vegetation Act, continuing an existing farming activity under section 23, or engaging in sustainable grazing under section 24, will be a defence.46

This defence does not apply if the clearing takes place in an urban area.47

5.3.2.4.2 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.48

5.3.2.4.3 Clearing under property vegetation plans will not breach Threatened Species Conservation 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.

5.3.2.4.4 What is biodiversity certification?

Under the Threatened Species Conservation Act, the Environment Minister may 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 Threatened Species Conservation Act.49

The Threatened Species Conservation Act also allows the Environment Minister to confer biodiversity certification on the Native Vegetation Act and Regulations. The Minister may do this by issuing an order in the Gazette.50 On 22 November 2005, the Environment Minister issued such an order conferring biodiversity certification on the native vegetation reform package (the NV Act and Regulations). The order took effect on and from 1 December 2005.51

5.3.2.5 Enforcement of the Native Vegetation Act

Development consents and PVPs issued under the NV Act are legally enforceable.52

5.3.2.5.1 Powers of entry, inspection, to obtain information

An authorised officer has the 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:53

• 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.54

Once on the land, the officer may conduct investigations, take samples (eg of tree species), take photos and require a landholder to produce records or documents (eg contracts engaging bulldozers).55

It is an offence to obstruct (delay, threaten, hinder) an authorised officer or to refuse to comply with a requirement by an authorised officer. The maximum penalty for doing so is $11,000.56

In order to determine whether the NV Act is being or has been breached, the Director-General of DECCW may 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).57

It is an offence not to comply with a notice without reasonable excuse. The maximum penalty is $11,000.58 A person is not excused from giving information, answering questions or producing documents on the grounds that they may tend to incriminate themselves.59

5.3.2.5.2 Stop work orders

The Director-General of DECCW may issue a stop work order if they think that a person is breaching, or is about to breach, the NV Act.60 A stop work order takes effect immediately and may last for up to 2 years.61

The Director-General is not required to notify anybody before making an order.62 A person who is unhappy with a stop work order may appeal to the Land and Environment Court within 30 days of the order being served.63 An appeal does not suspend the order.64

It is an offence not to comply with a stop work order. The maximum penalty for a corporation is $220,000, plus a $22,000 daily penalty; for an individual the maximum penalty is $110,000, plus an $11,000 daily penalty.65

5.3.2.5.3 Directions for remedial work

The Director-General may direct a landholder to carry out remedial work by issuing a written notice to the landholder.66 This might involve things such as undertaking work to repair any damage caused by the clearing, rehabilitating and regenerating any land affected by the clearing, and working to ensure that specified land, rivers or lakes will not be damaged or detrimentally affected by the clearing.67

If clearing of native vegetation on any land has caused, or is likely to cause, soil erosion (including offsite soil erosion), land degradation, or siltation of any river or lake, or any adverse effect on the environment the Director-General may direct the landholder or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.68

The Director-General is not required to notify anybody before giving a direction.69 A person who is unhappy with a remediation direction may appeal to the Land and Environment Court within 30 days of the direction being served.70 An appeal does not suspend the direction.71

It is an offence not to comply with a remediation direction. The maximum penalty for a corporation is $220,000, plus a daily penalty of $22,000. For an individual, it is $110,000, plus a daily penalty of $11,000.72

If a landholder fails to comply with a remediation direction, the Director-General may authorise someone else to do the work and charge the cost to the landholder.73

5.3.2.5.4 Civil proceedings

Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a contravention of the NV Act.74

In civil proceedings, the Court may make such orders as it thinks fit to remedy or restrain the contravention. An order may take the form of an injunction (eg to stop work), a declaration (eg that a development consent is invalid), or a remediation order.75 See Fact Sheet 2.4, section 3.3.

"Any person" includes DECCW or any member of the public.

5.3.2.5.5 Criminal proceedings

Any person may bring criminal proceedings for an offence under the NV Act, although in practice this will usually be done by DECCW.76 Criminal matters are heard in a Local Court or in the Land and Environment Court.77

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.78

5.3.2.5.6 Penalty notices

Minor breaches of the NV Act79 can be enforced by an authorised officer issuing an offender with a penalty notice.80

5.3.3 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 may specify when development consent is required for clearing;
• Tree preservation orders;
• Development control plans; and
• State Environmental Planning Policy No 19 - Bushland in Urban Areas.

The NV Act 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).81 If the area is not one of these types of urban areas, then the NV Act will apply.

5.3.3.1 Development consent and local environmental plans

A local environmental plan may contain provisions which control the clearing of vegetation in urban areas by requiring a person to obtain development consent before they may lawfully clear land, or even individual trees. Each local environmental 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 may be prosecuted for a criminal offence in a Local Court or in the Land and Environment Court. See Fact Sheet 2.4.

5.3.3.2 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.

Local councils may make orders for the protection of trees in their local government area. TPOs may prohibit the ring barking, cutting down, lopping, removing, injuring or willful destruction of any tree or trees specified in the TPO without council consent. The council may impose any conditions it thinks fit on giving that consent.

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, such as 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).

5.3.3.2.1 Enforcement of TPOs

A tree preservation order may be legally enforceable, depending on its specific provisions. Local councils may prosecute a person for breaching a TPO in a Local Court or in the Land and Environment Court:82 The maximum penalty in a Local Court is $110,000. The maximum penalty in the Land and Environment Court is $1.1 million.

Any person may 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.83

Existing tree preservation orders are likely to be progressively replaced by tree preservation provisions in Development Control Plans (DCPs). 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.

5.3.3.3 New standard instrument for tree preservation in DCPs

The NSW Government has introduced a new Standard Instrument LEP which is a template LEP that all councils must adopt by 2011. The purpose of the Standard Instrument is to encourage the standardisation of LEPs across local council areas.

The Standard Instrument- Principal Local Environmental Plancontains an optional standard provision on the preservation of trees or vegetation (5.9). Where it is adopted, the standard clause will replace TPOs in the local government area. The standard clause allows a council to include the trees that are covered by the clause in a development control plan (DCP).

It is not compulsory for a local council to adopt the standard clause within their local environment plans. Some councils may therefore continue to use TPOs to manage trees in the local government area.

5.3.3.4 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

5.3.3.4.1 Local environmental 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

5.3.3.4.2 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

5.3.4 Trees (Disputes Between Neighbours) Act 2006

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 only applies to disputes involving.89

5.3.4.1 Where does the Trees Act apply?

The Trees Act only applies to urban land, which is land zoned "residential", "rural-residential", "village", "township", "industrial" or "business".90

The Act applies to all trees, both native and non-native, and also to bamboo and vines.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

5.3.4.2 Owner of land affected by tree may 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 landowner's 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 may waive this requirement.94

5.3.4.3 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.95

The Court may make orders to:96

• 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.97

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.98

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.99

5.3.4.4 Local council officers may enforce orders

If requested to do so, a local council officer may enter land for the purpose of checking whether a person has complied with an order, and if not, may carry out the work themselves and recover the costs from the tree owner.100 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.101

It is an offence not to comply with a tree order made by the Court. The maximum penalty is $110,000.102

5.3.4.5 Hedges

The Land and Environment Court also has power to decide disputes in relation to high hedges that obstruct sunlight or views.103

The Act only relates to two or more trees that are planted to form a hedge that reaches a height of at least 2.5 metres104 .

The Court has broad powers to make whatever orders it thinks are needed to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land or any view from a dwelling situated on the applicant's land caused by hedges. 

5.3.5 Access to Neighbouring Land Act 2000

A person whose property might be affected by a dangerous tree, hedge or shrub may 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 may 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; or
• Removing, felling, cutting back or treating any hedge, tree or shrub.

5.3.6 Clearing vegetation under Commonwealth law

The main Commonwealth environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) contains provisions which control the clearing of native vegetation.

For example, clearing which is likely to have a significant effect on the following matters of national environmental significance will require assessment and approval under the EPBC Act:

• nationally listed threatened species or its habitat;
• migratory species (eg migratory birds) and their habitat; or
• 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.

1. Native Vegetation Act 2003, s 3(b), 8, 14(3), 29; Native Vegetation Regulation 2005, Part 5.
2. Native Vegetation Act 2003, s 5, Schedule 1.
3. The applicable date for 'regrowth' can also be set out in a property vegetation plan. Where this is the case, it is the earlier date that applies. See Native Vegetation Act 2003,s. 9.
4. Native Vegetation Act 2003, s 10.
5. Native Vegetation Act 2003, s 9.
6. Native Vegetation Act 2003, s 6.
7. Native Vegetation Act 2003, s 6(3).
8. Native Vegetation Act 2003, s 12(1).
9. Native Vegetation Act 2003, s 7.
10. Native Vegetation Act 2003, s 12(2).
11. Native Vegetation Act 2003, s 44.
12. Native Vegetation Act 2003, s 12(3).
13. Native Vegetation Act 2003, s 13.
14. Native Vegetation Regulations 2005, cl 4.
15. Native Vegetation Act 2003, s 14(2).
16. See Native Vegetation Act 2003,s. 48.
17. Native Vegetation Act 2003, s 14(3).
18. Native Vegetation Regulation 2005, cl 24, 26.
19. Native Vegetation Act 2003, s 33.
20. Native Vegetation Act 2003, s 12.
21. Native Vegetation Act 2003, s 44.
22. Native Vegetation Act 2003, s 15(1)(e).
23. Native Vegetation Act 2003, s 28; Native Vegetation Regulation 2005, Part 3, cll 7 - 12B.
24. Native Vegetation Act 2003, s 33.
25. Native Vegetation Act 2003, s 12.
26. Native Vegetation Act 2003, s 30, 31.
27. Native Vegetation Act 2003, s 26; Native Vegetation Regulation 2005, Part 3, cll 7 - 12B.
28. Native Vegetation Act 2003, s 29.
29. Native Vegetation Regulation 2005, cl 24, 26.
30. Native Vegetation Act 2003, s 32 (e).
31. Native Vegetation Regulation 2005, cl 29A, B.
32. 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.
33. Native Vegetation Act 2003, s 10(1)(c).
34. Regrowth is a ny native vegetation that has regrown since 1 January 1983 in the case of land in the Western Division and 1 January 1990 in the case of other land. The relevant date can also be specified in a property vegetation plan. See: Native Vegetation Act 2003,s. 9. Native Vegetation Act 2003, s 19.
35. Native Vegetation Act 2003, s 20; Native Vegetation Regulations 2005, cl 42.
36. Native Vegetation Act 2003, s 10.
37. Native Vegetation Act 2003, s 22.
38. Native Vegetation Act 2003, s 11; Native Vegetation Regulation 2005, cl 32, 33.
39. 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.
40. Native Vegetation Regulation 2005, cl 18.
41. Native Vegetation Act 2003, s 23.
42. Native Vegetation Act 2003, s 9.
43. Native Vegetation Act 2003, s 24.
44. Native Vegetation Act 2003, see s 25 for a full list of legislative exclusions.
45. Native Vegetation Regulation 2005, cl 6.
46. National Parks and Wildlife Act 1974, s 118G(1).
47. National Parks and Wildlife Act 1974, s 118G(4).
48. Native Vegetation Act 2003, s 14(4); Threatened Species Conservation Act, s 126E, 126I.
49. Threatened Species Conservation Act 1995, s 126G-M.
50. Threatened Species Conservation Act 1995, s 126C.
51. See NSW Government Gazette No. 142, 25 November 2005, page 9809.
52. Native Vegetation Act 2003, s33.
53. Native Vegetation Act 2003, s 35.
54. Native Vegetation Act 2003, s 34(4).
55. Native Vegetation Act 2003, s 35(2).
56. Native Vegetation Act 2003, s 35(5).
57. Native Vegetation Act 2003, s 36.
58. Native Vegetation Act 2003, s 36(4).
59. Native Vegetation Act 2003, s 36(5).
60. Native Vegetation Act 2003, s 37.
61. Native Vegetation Act 2003, s 37(2), (4).
62. Native Vegetation Act 2003, s 40.
63. Native Vegetation Act 2003, s 39; LEC Act, s 17(g).
64. Native Vegetation Act 2003, s 39(2).
65. Native Vegetation Act 2003, s 37(5).
66. Native Vegetation Act 2003, s 38.
67. Native Vegetation Act 2003, s 38(2).
68. Native Vegetation Act 2003, s 38(1)(b).
69. Native Vegetation Act 2003, s 40.
70. Native Vegetation Act 2003, s 39; LEC Act, s 17(g)..
71. Native Vegetation Act 2003, s 39(2).
72. Native Vegetation Act 2003, s 38(4).
73. Native Vegetation Act 2003, s 38(5), (6).
74. Native Vegetation Act 2003, s 41; Land and Environment Court Act, s 20(1)(de).
75. Native Vegetation Act 2003, s 41(5).
76. Native Vegetation Act 2003, s 41.
77. Native Vegetation Act 2003, s 42; Land and Environment Court Act 1979, s 21(i).
78. Native Vegetation Act 2003, s 42(3), (4), (5).
79. listed in Schedule 1 of the Native Vegetation Regulation 2005
80. Native Vegetation Act 2003, s 43; Native Vegetation Regulation 2005, cl 43, Sch 1.
81. Native Vegetation Act 2003, s 5(1).
82. Environmental Planning and Assessment Act 1979, s 126(1).
83. Environmental Planning and Assessment Act 1979, s 123.
84. SEPP 19, cl 3(1), Sch 1.
85. SEPP 19, cl 2(1).
86. SEPP 19, cl 10.
87. SEPP 19, cl 6.
88. SEPP 19, cl 9.
89. See also the Trees (Disputes Between Neighbours) Regulation 2007.
90. Trees (Disputes Between Neighbours) Act2006, s 4(1).
91. Trees (Disputes Between Neighbours) Act2006, s 3(1); Trees (Disputes Between Neighbours) Regulation 2007, cl 4.
92. Trees (Disputes Between Neighbours) Act2006, s 4(2).
93. Trees (Disputes Between Neighbours) Act2006, s 5.
94. Trees (Disputes Between Neighbours) Act2006, s 8.
95. Trees (Disputes Between Neighbours) Act2006, s 7, 9.
96. Trees (Disputes Between Neighbours) Act2006, s 9.
97. Trees (Disputes Between Neighbours) Act2006, s 10(1)(a).
98. Trees (Disputes Between Neighbours) Act2006, s 12.
99. Trees (Disputes Between Neighbours) Act2006, s 16.
100. Trees (Disputes Between Neighbours) Act2006, s 17, 17(8).
101. Trees (Disputes Between Neighbours) Act2006, s 17(3), (4), (5).
102. Trees (Disputes Between Neighbours) Act2006, s 15
103. New Part 2A inserted into Trees (Disputes Between Neighbours) Act 2006
104. Trees (Disputes Between Neighbours) Amendment Act 2010 s. 14A

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