Under the Rural Fires Act 1997, the following agencies are fire fighting authorities-

(a) the [Rural Fire] Service,
(b) Fire and Rescue NSW,
(c) the Department of Environment, Climate Change and Water [ie National Parks and Wildlife Service],
(d) the Forestry Corporation,
(e) any other body prescribed by the regulations for the purposes of this definition.

This question comes from a member from one of these authorities

I am told one of our crews responded to a fire on [Crown land]… land leased out to a person. I’m not sure on the purpose of the lease but I would presume grazing or similar. When the crew arrived they were met by the lessee and promptly told to get off the land. The fire was left to burn….it went out and was not a real problem but…

I know RFS and FRNSW have powers under their acts to enter property for the purpose of extinguishing fires but are those same powers available to land management agencies/fire authorities. I also know there is a clause in the Rural Fires act or regulations or definitions where land management agencies can fight fires within 8 kilometres of their land tenure [Rural Fires Act 1997 (NSW) s 133]. Also the BFCC Policy No 2/2006 states that any fire fighting authority may make first response to a bushfire….but they must inform the responsible agency ASAP.

Where do we stand with entering property to suppress fire…both leased out and private lands?

This is a very interesting question. Let’s start with the Rural Fires Act 1997 (NSW). Division 3 deals with Rural fire brigades that is a rural fire brigade formed under Part 2 (Rural Fires Act 1997 (NSW) Dictionary). Part 2 is headed NSW Rural Fire Service. It follows that the provisions in Division 3 are directed to the officers and brigades of the Rural Fire Service, not other fire fighting authorities.

Within Division 3, s 23 says ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act’. Further, at s 31:

(1) Reasonable force may be used for the purpose of gaining entry to premises but only if the Commissioner:
(a) has authorised in writing the use of force in the particular case, or
(b) has specified in writing the circumstances that are required to exist before force may be used and the particular case falls within those circumstances.

Bushfire Coordinating Committee Policy No 2/2006 is headed Management of Bushfire Operations (http://www.rfs.nsw.gov.au/file_system/attachments/State08/Attachment_20070816_6C212EA2.pdf). This policy is really guidance for Bushfire Management Committees that are required to prepare various plans so it doesn’t give any actual authority. In the relevant section it says:

• Any fire fighting authority may make the first response to a bush fire. This responding fire fighting authority will take immediate steps to advise the land manager and relevant fire fighting authority in whose area the fire is burning, or will advise in accordance with any Memorandum of Understanding or Mutual Aid Agreement, of action being taken.
• Any fire suppression techniques or activities for which prior authority from the land owner, occupier or land management agency is required must be specified in the plan.

We don’t know what the relevant ‘plan of operations’ said but it cannot override the legislation.

Where a fire has taken on significant proportions, the Commissioner of the Rural Fire Service may take control of all fire fighting operations (Rural Fires Act (NSW) s 44). Where the Commissioner has taken control under s 44 he or she may give directions to other agencies including the fire fighting authorities (s 45).

In the absence of a s 44 declaration, and authority from the Commissioner under ss 31 and 45, there seems to be no statutory authority to enter the premises against the will of the occupier. There may however be powers outside of statute law. First, if the authority is also the landlord ie if the land is leased from the Department of Environment, Climate Change and Water or the Forestry Corporation, then the lessor they would have rights to enter the property to protect their own asset. Those rights would depend on the terms of the lease and cannot be explored here.

There is also the common law of necessity that has allowed interference with private property to act in the public interest since the 1500s. If the fire was posing a risk to community assets, a town or infrastructure, the common law could be relied upon to justify entering the land to act in the public interest. In 2008 Chief Justice Gleeson, along with Justices Gummow, Kirby and Hayne said:

The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. (Kuru v State of New South Wales [2008] HCA 26, [40]).

Necessity is a defence to both crimes and torts.

Law and its consequences
What really needs to be considered here is that the law is self-executing; people break the law and commit torts but it does not mean that legal consequences follow. There are too many variables. Let us then look at this scenario with a risk management perspective, ie considering the likelihood of adverse outcomes, and how bad will they be.

Start with the fire. We’re told ‘the fire was left to burn….it went out and was not a real problem’. If that was the assessment at the time, that is when faced with the landowner the fire crew assess that it is a fire that will go out and not be a real problem, there would be no need to insist on gaining entry.

Let us assume, on the other hand, that the fire is something larger and of greater concern, that there is a real fear or risk that the fire will grow and threaten either private or public property. In that case the issue the risk of gaining entry.

What’s the occupier going to do? The first thing he may do is a ‘self help’ remedy, ie actually try to stop the fire authority gaining entry. Will he do that and can he? If he’s armed and there’s a real threat of physical violence, then the prudent thing would be to retreat and call the police. At the same time you would also call the Rural Fire Service or NSW Fire and Rescue and let them come and exercise their statutory authority to enter the premises.

Let us assume he’s not going to do and is not physically capable of actually resisting the authority. The next thing he may do is call the police. Well and good, one can’t imagine the police would actually insist on a fire authority withdrawing because an occupier insists where there is an actual fire burning. The police don’t have the authority to authorise the fire authority to enter the premises (as they may in Queensland, see Public Safety Preservation Act 1986 (Qld)) but they are likely to negotiate to ensure you do get access.

Putting aside actual force, the occupier may chose, at some future time, to bring a legal action but what’s that going to achieve? Trespass (entering on to land without permission) does not require proof of damage, but even so if all the fire authority did was put a fire out it’s hard to see how there could be any remedy, and as noted above, the doctrine of necessity has been justifying the entry onto premises to fight fires since the 1500s.

I cannot locate any statutory authority that would allow fire fighters from a land management agency to force entry to land to fight a fire but where there is a real concern that the fire may pose a risk to other property or assets, the risk of adverse legal consequences would seem to be slight. If time allows the prudent thing to do would be to summon the police and the RFS but if time does not allow, and you can actually get access without physical violence directed either to, or from the occupier, it may be prudent to fight the fire and deal with the consequences later.

Michael Eburn
16 June 2013