Following the Port Stephens fires at the start of the current NSW fire crisis, the Mayor was reported to be angry at the attitude of the NSW Rural Fire Service to personal hazard reduction activities; see “NSW mayor slams RFS on backburning” (14 October 2013). That report says:
“The mayor of Port Stephens has hit out at the NSW Rural Fire Service and environmentalists, saying fire-affected residents weren’t allowed to carry out hazard reduction burns.”
(See also “Rural fire service rejects Port Stephens mayor’s hazard reduction claim“, 15 October 2013).
So what are authorities to do? Allow people to take whatever action they believe is necessary to reduce their risk to an acceptable level? Well that doesn’t work either as currently seen in Victoria and reported in the Macedon Ranges Guardian and the Midland Express (“MP Calls for Action”, 22 October 2013):
Member for Macedon, Joanne Duncan, called on the Minister for Environment and Climate Change to investigate the recent vegetation clearing at Macedon Lodge.
Ms Duncan raised the matter in State Parliament on Wednesday, detailing the scene at Macedon Lodge early this month where native vegetation and green trees were bulldozed and cleared without a permit…
The property is in a rural conservation zone and water catchment area, and is covered by a number of environmental overlays.
Ms Duncan said the works have destroyed an area of pristine indigenous forest that had never been logged or grazed.
In Parliament, she countered claims by property co-owner, Nick Williams, that the works were clearing blackberries and dead trees.
“It does not take seven days and up to eight excavators, bobcats, D9 dozers and power harrows to remove weeds,” she said.
(Thank you again to regular correspondent, Luke Dam for brining this article to my attention).
And therein lies the problem. Hazard reduction activities may reduce personal hazard and that is the focus of attention during a crisis like the current NSW fires, but they bring their own risk – risks to the environment (as noted above); risks to neighbours (see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management  WASCA 79, discussed in an earlier post – “No liability for damage to grapes caused by WA hazard reduction” burn 25 April 2012).
These various concerns need to be balanced or else people could bulldoze all the vegetation around their home. This may make it fire safe but would fundamentally change the nature of the environment (can we imagine either the Blue Mountains or Port Stephens reduced to tree less park, or worse, concrete car parking?) So how are these things to be balanced?
The first rule should be that people cannot be judge in their own cause. So the property owners can’t be free to decide what is required to protect their private assets without taking into account the public good; and public interest groups can’t be left to impose costs and risk on private property owners. The usual solution is to find someone else to be the umpire – that is to consider an application and approve it. That may be the council, or an organisation like the Rural Fire Service.
In New South Wales It is an offence to light a fire for the purpose of land clearing or to maintain a fire break during a fire danger period, or in any circumstances where the fire may pose a danger to any building, without a permit issued by an ‘appropriate authority’ (Rural Fires Act 1997 (NSW) ss 87 and 88). An “appropriate authority” is either the Commissioner of the NSW Rural Fire Service or the Commissioner of Fire and Rescue NSW (s 85). Further a bushfire hazard reduction certificate must be obtained or approval under the Environmental Planning and Assessment Act 1979 (NSW) (Rural Fires Act 1997 (NSW) s 86).
A bush fire hazard reduction certificate authorises bush fire hazard reduction work provided the work is done in accordance with the bush fire risk management plan (prepared under ss 52-62) that applies to the land, the provisions of any bush fire code that apply to the land (ss 100J to 100O) and any conditions specified in the certificate (s 100D).
Where bushfire hazard reduction work is being carried out in accordance with a hazard reduction certificate, nothing in Part 5 of the Environmental Planning and Assessment Act 1979, the Native Vegetation Act 2003, the Threatened Species Conservation Act 1995 or the National Parks and Wildlife Act 1974 applies to limit the hazard reduction work.
So a person who wants to do a hazard reduction burn on his or her own property needs:
• a bushfire hazard reduction certificate to demonstrate that their proposed work fits the overall plan; or
• approval under the Environmental Planning and Assessment Act to ensure that they are not going to do excessive damage to the environment so that the community can be sure that important environmental considerations, such as the preservation of “pristine indigenous forest” are taking into account; and
• where the fire is to be lit during a fire danger period or in circumstances that pose a danger to another building, a certificate or permission to light the fire, plus they have to give at least 24 hours notice to their neighbours and the local fire service (Rural Fires Regulations 2013 (NSW) reg 33).
Is that an appropriate balance? It may be, it may not. To return to the Port Stephens Mayor, he’s reported to have said:
‘If the local bushfire brigade wanted to do any hazard reduction, they’ve got to go through all the bureaucratic paperwork, about an inch-and-a-half thick before they can do any hazard reduction. Which has got to stop,’ he told Sky News on Monday. (‘NSW mayor slams RFS on backburning’ 14 October 2013).
We have seen what some of the obligations are (and they apply to the RFS too – see s 87(2), save that a public authority does not need a fire permit (s 95)).
So the question of whether that burden is too much is one of judgement. Getting approval, making sure that hazard reduction activities fit the communities fire management plan and take into account environmental concerns does limit the freedom to reduce hazards, but maintaining a community and environment are also relevant to the question of what is an acceptable risk. The alternative is to allow anyone to do anything which may actually do more damage than good, for example if a fire escapes and destroys neighbouring properties, or fundamentally change the nature of the landscape. The extreme is to allow everyone to concrete their entire block.
The question of what price a community is prepared to pay to reduce risk, and what level of risk is acceptable, is a fundamental debate that communities have to have. During crises like the current bushfire emergency, or after the 2009 fires it appears that any cost should be paid to reduce the risk of fire; but thinking the issues through, and the conflict seen in the reports between Mt Macedon (Victoria) and Port Stephens (NSW) shows that cannot be the solution.
22 October 2013