I have been approached by a number of New South Wales councils regarding the establishment of Neighbourhood Safer Places to provide places of last resort for people seeking to survive a bush fire. The gist of the problem is that they fear the NSW Rural Fire Service is nominating council buildings as a neighbourhood safer place, even though the councils are advising that they cannot guarantee that, in the event of a fire, they will be able to ensure access to that building.

Council is happy to support the RFS NSP program, as is demonstrated by Council making eight open spaces available, but we do have significant concerns about the use of buildings because of our highly limited capacity to open them at short notice and during emergency conditions. What is not clear at this point in time is who has the final responsibility for ensuring that an NSP building is open when it is required, and does Council accept any liability if it consents to the use of a building as an NSP but fails to make it available in the intended way (i.e. open so people can get in).

To start with the law, the relevant provisions are contained in the Rural Fires Act 1997 (NSW) (ss 62B to 62H). It is up to the Commissioner of the RFS, not the council, to identify a neighbourhood safer place (s 62C(1)). The Commissioner may only designate a place as a neighbourhood safer place if the owner or occupier consents, but that provision does NOT apply if the premises are owned by a public authority. A public authority includes “(a) any public or local authority constituted by or under an Act other than this Act” which I infer would include a Local Government. The effect is that the Commissioner can nominate land or premises owned by a Local Government as a neighbourhood safer place, without gaining the consent of the council.

There is no provision to require the owner of a neighbourhood safer place to maintain it. The Commissioner is to inspect the place on an annual basis and if there is a bushfire hazard on or near the safer place, the Commissioner can require action is taken to reduce that risk (s 62D).

The owner of a neighbourhood safer place is not liable for the death or injury to any person from the use of the neighbourhood safer place (s 62H(1)). If, but for s 62H(1) the owner would be liable, then any liability falls to the Crown (ie the State).

It could be argued that if the Commissioner nominates a place as a safer place, and people are trapped outside the building, that at the time it was not being used as a safer place so s 62(H)(1) does not apply. I don’t think, however, that would be the conclusion. If the fire service nominate a building and people go there in the face of a fire, they are using the building as a neighbourhood safer place. Given it is the RFS that nominates and designates a place as a neighbourhood safer place, and can do so without the consent of a local authority, it would be my view that responsibility for ensuring the place is safer rests with the RFS and therefore, ultimately the Crown. In those circumstances the people are going to a place the RFS has told them is safer, it is safer only if they can access it, they are attempting to access it but can’t, then they are using it as a neighbourhood safer place so the liability for failing to actually nominate a safe place falls to the Crown. There could be a different argument if the private owner agreed to allow his or her property to be used but then locks it contrary to the agreement, but where it’s a public building and consent of the owner is not required then it’s the RFS that have designated the building and have done so to advance government policy. I would suggest a court would welcome s 62H(1) that would allow the judge to place responsibility squarely on the State.

My advice is that if a council building is put forward as a neighbourhood safer place it must be because the RFS think it is actually safer. There should be negotiation on how access will be arranged: give a key to the local RFS, discuss with the community how access can be arranged; a neighbouring shop to hold a key, establish a place to store a key, use a press-button combination lock, ‘break glass’ emergency access or an electronic lock that can be opened remotely by council, the RFS or by remote sensing. If a place is nominated then there must be at least a moral obligation upon the Council to seriously consider how access will be guaranteed before its standing as a neighbourhood safer place is confirmed. If the safety depends on people being allowed inside in order to shelter from flame and radiant heat, and access cannot be arranged, then by definition it’s not a safer place.

If it is not safer because access cannot be guaranteed the RFS need to be told that, loudly, clearly and repeatedly.

Here however, is a non-legal prediction; if the RFS nominate a place and council tell the RFS that they can’t guarantee access and the matter is left at that, and people die at the door then neither the RFS nor the council nor the government are going to look good at the inevitable coronial inquest into those deaths. Regardless of the law, I predict that neither the council, the RFS nor the government would come out of the coronial inquest looking good, rather they would be subject to severe public and electoral criticism. I would predict anyone involved in that decision making; councillors and council staff who do not either take steps to allow access or do not constantly and if necessary publically make it clear that it is not in fact a safer place, as well as the minister for both Departments and the RFS Commissioner, would have serious trouble keeping their employment if that inevitable and foreseeable tragedy occurred.

The point of nominating a neighbourhood safer place is to tell people who live in the neighbourhood where the safer places are. There is no point nominating a place as a neighbourhood safer place if it is not in fact safe. Nominating an overgrown paddock as a safer place would be silly; as is nominating a building that people cannot access. The concern should not be that there may be ‘liability’ but that people may die.

Michael Eburn
6 May 2013