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Bushland Protection Order

With the Gazettal of the Local Environmental Plan 2005 in October 2005, the Blue Mountains finally had a legally binding Bushland Protection Order. This was after years of intensive debate and conflict.

It started in late 2000 in response to the Society raising the issue of wholesale clearing of a swamp in 5th Avenue North Katoomba. BMCC staff claimed it didn’t have the power to prohibit the clearing but would investigate opportunities to regulate the clearing of sensitive native vegetation.

Vegetation Management Order November 2001 (draft 1)

In November 2001 the first draft of a Vegetation Management Order went to Council and was placed on public exhibition. It was intended to be a broadening of the Tree Preservation Order (TPO) to also cover native vegetation.

Following the exhibition of the draft Vegetation Management Order (VMO) Council received 22 submissions, the majority of which supported it. Then a well-resourced group arose called “Group Against the VMO” (GAVMO). They were primarily concerned that it would restrict the ‘right’ to clear native vegetation to expand exotic gardens. GAVMO funded a number of advertisements in the local paper to generate support. Most of the objections publicised were in fact objections to the existing TPO not to its expansion to cover native shrubs and groundcover.

In May 2002 council resolved to undertake further consultation.

Native Vegetation Management Order January 2003 (Draft 2)

Council redrafted the VMO and retitled it as the Native Vegetation Management Order, clarifying its range to cover native vegetation only. Public meetings and workshops were held and the exhibition period extended to 80 days.

The draft NVMO was limited to large areas and specifically applied to the clearing or damage to:

115 submissions were received with 97 in favour and 22 opposed; and further community workshops were held with key stakeholders.

Bushland Protection Order August 2003 (Draft 3)

Further amendments were made to the 2nd draft and the Order was renamed the Bushland Protection Order (BPO). At a lively meeting with speakers from the community including the Society, the BPO was adopted by Council on the casting vote of the Mayor on August 5 2003.

At an extraordinary meeting the following week (Aug 12) the Council’s decision was rescinded. Then the following meeting of August 26 2003, the rescission motion was rescinded and a motion passed to adopt the Bushland Protection Order.

As the BPO was a component of the Local Environment Plan, it could not be implemented until the LEP was gazetted by the NSW government. The LEP had been held up for 2 years in the NSW government waiting for approval and gazettal. This finally happened in October 2005 when the Local Environmental Plan 2005 was gazetted.

This incorporated native vegetation into the existing simple Tree Preservation Order permit system.

NSW government Policies and Legislation Changes since 2005

1. Transfer to Local Environmental Plan 2015

The NSW government then forced Blue Mountains City Council (along with all other councils) to squeeze its LEP into a standard format. This new format required the proposed controls on native vegetation to be located in a Development Control Plan. As DCPs are considered “guidelines” only, it meant that the legal strength of the standards was greatly reduced.

2. 10/50 Clearing Code of Practice

The ability of the Council to protect native vegetation from clearing was further weakened in 2015 by the introduction of the 10/50 Clearing Code of Practice across NSW ostensibly for the purposes of bushfire protection. This has allowed considerable clearing around assets based on “self assessment” with no agency responsible to regulate the limits prescribed before clearing takes place.Councils can prosecute after the vegetation is cleared “illegally”.

3. Summary

Since 2015 numerous changes to legislation and State Environment Planning Policies have (in most circumstances) weakened bushland protections on both ‘non-rural’ and ‘rural’ land. The system has become extremely complex, with clearing regulated by local governments, Local Land Services, and the Native Vegetation Panel depending on the location of the land, its zoning, the activities proposed to be carried out on the land and the NSW Biodiversity Offset Scheme. As a consequence of this complexity, it is difficult for members of the public (including landholders) to understand, and expensive and difficult to regulate.

In conclusion

The Bushland Protection Order introduced a readily useable mechanism for Council to regulate the clearing of bushland. Whilst the Society did not consider the BPO offered adequate protection, it was a substantial step forward.

This order was the result of many years of effort by the Society, individual residents and other local groups.

Unfortunately legislative changes by the NSW government since 2016 have resulted in NSW bushland being lost at a rapid and increasing rate. In 2021 the NSW Government’s own State of the Environment Report found that tree clearing had tripled from an average of 13,000 hectares a year between 2009 and 2015 to an average of 35,000 hectares a year between 2017 and 2019 (the most recent year of data available). The rate of clearing for non-tree vegetation such as shrubs and grasses is even higher.

The fight to stop the clearing of native vegetation goes on.

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We acknowledge the traditional custodians of this land
– the Darug and Gundungurra people –
and pay respect to their Elders past, present and emerging.
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