Protecting our trees – changes to deter illegal tree and vegetation clearing

Changes are proposed to:

• Chapter 2 (Vegetation in non-rural areas) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP, Chapter 2)
• The development control orders in Schedule 5 of the Environmental Planning and Assessment Act 1979
• The penalty amounts and planning certificate requirements in Schedules 2 and 5 of the Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
• Housekeeping amendments to update referencing in other state environmental planning policies.

It is proposed that the final policy amendments would be made in late 2025.

We will publish a response to submissions after the exhibition period ends.

Our trees and vegetation provide many benefits to people and the environment including enhancing biodiversity, mitigating urban heat, providing local amenity, reducing air pollution and improving community health and wellbeing.

We are proposing higher fines for illegal tree and vegetation clearing on public and private land. We are also proposing to clarify the rules around enforcement and penalties related to illegal tree clearing, in response to stakeholder feedback that the rules are complicated and hard to understand. 

The proposed changes will also deter illegal clearing by outlining the other compliance measures councils can take, and by closing potential loopholes to make sure the rules are not being misused. 

The changes will:

• Introduce higher on-the-spot fines to deter and punish offences
• Expand the range of tools councils have to respond to clearing, including making sure councils can order somebody to stop clearing or to replant the vegetation 
• Make the rules clearer with less room for misinterpretation so councils can be confident in applying them.

These changes apply to clearing that is regulated by Chapter 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. Chapter 2 applies to non-rural areas of NSW, meaning:

• all zones in local government areas in Greater Sydney and Newcastle. 
• land in the rest of NSW within non-rural zones. 

The lists of local government areas and zones can be found in section 2.3 of the SEPP and on the department’s webpage under ‘Where the policy applies’.

Within these non-rural areas, these provisions regulate clearing that is not associated with development applications and that is:

• clearing vegetation that the council has identified in its development control plan as needing a vegetation clearing permit, or
• clearing that is above the biodiversity offsets scheme threshold.

Yes, the changes apply to any clearing that is regulated by Chapter 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021, regardless of whether that clearing is on public or private land.

Some changes are not relevant to clearing on public land, such as clarifications to complying development rules, closing loopholes allowing the removal of dead, dying and dangerous vegetation and the list of factors a council must consider before granting a tree clearing permit on private land. 

No. These changes only apply to clearing that is regulated by Chapter 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

Clearing on rural land is regulated under the Local Land Services Act 2013.

The department will publish guidance and templates to help councils manage their tree clearing permit system, including when taking compliance action or educating the community. These resources will support councils to manage tree and vegetation clearing, and will help the community better understand the rules. 

The department is also considering training and support we can provide to councils to increase their capacity to respond to clearing events.

The department is proposing a simple tiered system, with higher on-the-spot fines for more significant clearing incidents and for repeat offenders. 

The proposed changes to the fines are:

Under this proposal, the fines for corporations will be triple the fines for individuals, rather than double. This change recognises the greater responsibility of corporations, such as developers, certifiers, tree lopping businesses, and arborists, to understand and follow the rules and to ensure they or their clients have obtained the necessary approvals before clearing any trees or vegetation.

If an individual or corporation clears multiple trees, these can be treated as separate offences with each tree vandalised or removed generating a separate fine.

The higher fine amount will apply to more serious clearing offences, which include:

• Repeat offences, where a person or company has previously undertaken illegal tree and vegetation clearing
• Clearing large trees
• Clearing large areas of vegetation other than trees
• Clearing trees listed on a council significant tree register
• Clearing trees or vegetation in a significant environmental, heritage or scenic area. 

Councils have a range of options to respond to illegal clearing, including:

• using education campaigns to inform the community and industry
• issuing warnings 
• issuing orders to stop clearing or to replace trees or vegetation illegally vandalised or removed
• erecting signs or billboards to block views gained or improved as a result of illegal clearing or vandalism
• prosecuting serious offences through the court system, where there is a penalty of up to $1 million for individuals and $5 million for corporations. 

Once the proposed changes are made, the department will publish guidance to detail options of how to respond to incidents of illegal clearing.

If proceedings are brought to the Land and Environment Court, the maximum penalty the court can impose is $1 million for an individual or $5 million for a corporation. The proposed changes do not affect these maximum penalties.

Councils can issue development control orders to stop someone from doing illegal works and make them restore a place to how it was before the illegal works have taken place. The changes will make sure that councils can use development control orders to both stop illegal clearing underway and to make somebody replace illegally cleared trees and vegetation.

The current framework does not require a permit for clearing vegetation that is dead or dying and not needed as habitat of native species. We have heard this exemption is being misused, for example when someone poisons a tree and then removes it under the exemption. Two possible changes are proposed in the EIE:

• requiring certification from a qualified arborist that the tree is dead or dying and is not required for habitat or other significant ecosystem benefits, prior to removal under an exemption, or 
• removing the exemption and requiring a permit or approval to remove the tree. 

Both changes would let councils consider whether removal is the best way of managing the dead or dying tree and assess if there is any sign of poisoning.

Similarly, a permit is not currently needed to clear vegetation that is a risk to human life or property. The changes will narrow this exemption so that it only applies to vegetation that is an imminent risk. This means that where there isn’t an imminent risk, the council can use the permit process to consider whether clearing is the best approach to reduce the risk level. Vegetation that council is satisfied is an imminent risk to human life or property can still be removed without a permit.

Different rules apply if someone wishes to clear native vegetation on land within the Cumberland Plain Conservation Plan (CPCP) area. For example, development consent is needed for native vegetation clearing on land mapped as ‘avoided land’ or ‘strategic conservation area’ under the CPCP. If there is an inconsistency between the CPCP rules and the rules under Chapter 2 of the Biodiversity and Conservation SEPP, the CPCP rules prevail.

See the CPCP webpage for more information about the rules for the CPCP area.

Different rules apply if someone wishes to clear vegetation on land that is mapped as a coastal wetland or littoral rainforest under the Resilience and Hazards SEPP. This clearing requires development consent and is generally designated development. If there is an inconsistency between the rules for coastal wetland and littoral rainforest areas and the rules under Chapter 2 of the Biodiversity and Conservation SEPP, the coastal wetland and littoral rainforest area rules prevail.

Generally, the proposed changes do not affect when a council permit or Native Vegetation Panel approval is needed. There are two exceptions: vegetation that is dead or dying (a permit or approval may now be required) and vegetation that is a risk to human life or property (a permit or approval will now be required, unless the risk is imminent).

The NSW Government is also considering how to make it easier for councils to prosecute tree clearing offences, possibly by introducing a new civil penalty which would be easier to prove than current criminal penalties, or by increasing the onus on landowners to prove they weren’t responsible for clearing on their own land. Consideration is also being given to introducing a jail term. This would complement the Biodiversity Conservation Act 2016, which already has a term of 2 years’ jail for serious offences.

These options would require an amendment to the Environmental Planning and Assessment Act 1979, and possibly other legislation. This will form part of our future work program and will progress separately to the SEPP changes outlined in the explanation of intended effect.

The Department will introduce a new aim to Chapter 2 of the Biodiversity and Conservation SEPP that reflects the need to maintain and enhance canopy cover. This will be accompanied by a list of factors that councils must consider when assessing an application for a vegetation clearing permit, including the contribution of the tree to the environment and whether alternatives to clearing have been considered. 

These changes would ensure that the impacts of clearing on canopy cover are assessed appropriately before issuing a permit.

Under the proposed changes, landholders would also generally be required to replant trees as a condition of a vegetation clearing permit. 

More broadly, the Department has several initiatives to enhance tree canopy and green cover. You can find more information about these initiatives at the Department’s Urban Greening webpage.

Under existing complying development rules, complying development that involves the removal or pruning of a tree or other vegetation that requires a permit or approval must have that permit or approval before the tree or other vegetation can be cleared. If those approvals are not in place, then the clearing may be illegal. 
It is a common misunderstanding that current provisions in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) provide some exemptions to the requirement to obtain a council permit under Chapter 2 of the Biodiversity and Conservation SEPP before clearing a tree. This is not the case. The Department is not changing the existing rules but will clarify them to avoid misinterpretation.