Trees in Sydney and NSW

The state policy

In the planning department’s words: “Chapter 2 (Vegetation in Non-Rural Areas), of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 sets the rules for the clearing of vegetation in NSW on land zoned for urban and environmental purposes (that is not linked to a development application).”

“The aims of this policy are:”

• “to protect the biodiversity values of trees and other vegetation in non-rural areas of the state”
• “to preserve the amenity of non-rural areas of the state through the preservation of trees and other vegetation.”

The department’s page lists the Greater Sydney and Newcastle council areas where Chapter 2 covers every zone, and the zones it covers elsewhere.

Council permits

Within that policy, councils decide which vegetation needs a permit. “Councils can specify vegetation needing a permit to clear by declaring it in their development control plan as vegetation to which Part 2.3 of the SEPP applies.” The plan can describe that vegetation in any way, such as by species, size or location, or because it is part of an ecological community or a threatened species’ habitat.

An applicant whose permit is refused can appeal to the Land and Environment Court.

One council’s rules: the City of Sydney

Some tree work needs no permission from the City, depending on its urgency, the species, or how much work is involved.

City of Sydney exemptions, summarised

Exemption	What the City requires
Dead, dying or immediately dangerous trees	A record of the tree’s condition with photographs, the high and imminent risk it posed, and a statement that the work was the least needed to manage that risk. Also a report from an arborist qualified to at least AQF level 3 in arboriculture, before work starts, or straight after for work outside business hours.
Exempt species	Trees exempt under the Sydney Development Control Plan 2012 need no permit or development consent. The City lists species that may be removed unless the tree is on its register of significant trees or heritage trees list, and a second group that may be pruned or removed when under 10 m tall unless on the significant trees register. The owner is responsible for the species being listed.
Pruning on private property	No permit or consent is needed when the pruning stays within the clearances and branch sizes in the City’s pruning guidelines, takes no more than 5% of the canopy, does not harm the tree’s health or structural stability, and follows the Australian Standard for pruning amenity trees, done by an arborist qualified to at least AQF level 2.

The arborist is the one who decides whether a tree is a high and imminent risk to life or substantial property, and whether action is needed within 48 hours. If the City is not satisfied the tree met that test, it may issue fines or take legal action.

Bushfire land: the 10/50 Code

The 10/50 Code applies only on land in a designated 10/50 vegetation clearing entitlement area. Among what it allows, people in such an area may clear shrubs and other underlying vegetation, but not trees, within 50 metres of a home without approval. The home must already be built, approved by a development consent or other lawful authority, and have a lawful authority for its occupancy; an interim occupation certificate does not count as one. Clearing under the Code is not a Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The RFS adds that its online tool gives no advice on those matters, because State laws cannot override Commonwealth laws. Under the Code, a tree is a perennial woody plant 3 metres or taller with one or more self-supporting trunks, at least one of them more than 30 cm around at 1.3 metres above the ground; a shrub is not a tree. A tree may go only if part of a trunk more than 30 cm around, measured 1.3 m above the ground, is within 10 metres of the building’s external wall.

The RFS says you may clear only under the rules in the 10/50 Code of Practice, and that you must read the Code and apply its conditions to your land.

The NSW RFS sets these limits, among others:

• Only your own land; a tenant needs the landowner’s approval first, and no one may clear neighbouring land.
• Check the RFS online tool on the day of clearing; it also shows whether environmental or cultural exclusions apply to your land, and the RFS advises keeping a copy of its result as evidence.
• Nothing against the conditions of a development consent.
• Nothing against covenants or other restrictions created under section 88B of the Conveyancing Act 1919.
• With no building’s external wall on your own land, relying on one on adjoining land needs the written consent of each adjoining owner whose building has an external wall that could be used to authorise the clearing; the owner who counts is whoever owns that land when the tree or vegetation is removed.
• No trees on slopes steeper than 18 degrees, unless a geotechnical engineer’s report sets conditions for it.
• No clearing method that disturbs the soil, such as graders, ploughs, dozers or excavators; nothing removed below the soil surface, and the ground cover and topsoil left in place.
• No clearing within 10 metres of a lake or river at least 2 metres wide between its highest banks.
• An Aboriginal scarred tree may not be cleared.

Clearing under the Code may include trees a Tree Preservation Order would otherwise protect, with no need to tell the council.

The RFS also notes that tree removal does not need a trade licence, and suggests sighting the operator’s qualifications and checking their workers compensation and liability insurance.

A tree beside a pool fence is also a pool question: see pool barriers in NSW. Walls and paving around a tree are covered by the structural landscaping licence, and the backyard plan shows the rest.