This question from a firefighter with the Metropolitan Fire Brigade in Melbourne and it raises an interesting issue that I hadn’t thought of before. Assume you are at home, having a bon fire. It’s all controlled and safe – can the MFB enter and put the fire out? This is how my correspondent put the question:
I am a professional firefighter in the MFB, Victoria. We regularly get called out to extinguish rubbish and other bonfires in people’s backyards. My questions is, what (if any) legal authority does a firefighter have to enter a private residence and extinguish such a fire, assuming the fire is safe and not causing harm to persons or property. This is obviously during a non fire ban period – as we can extinguish all fires during that period.
We understand that we have delegated powers of the Chief Fire Officer, which allow us to enter properties for various purposes – such as to check for fire hazards, use resources to extinguish a fire nearby and the like, but we are unsure of our actual legal footing if someone were to refuse entry, or not allow us to extinguish the fire if it is safe. Is it covered under environmental legislation, due to smoke, or does it come under the local council’s bylaws? If it is one of the latter, how are these powers transferred to the fire officer on the ground? Does it come down to the fire officer’s definition of what a safe fire is?
At present, we generally get by with the assumed authority that the organisation receives from the public – but we are keen to know what legal basis we have to extinguish otherwise safe fires/rubbish burn offs on private land.
The answer will lie in the Metropolitan Fire Brigades Act 1958 (Vic). That Act says in s 32B:
(2) On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.
(3) At the scene of an alarm of fire the senior member of the operational staff—
(a) shall endeavour by all practical means to have any fire suppressed and any person or property in jeopardy saved…
(c) may, for the purposes of dealing with any alarm of fire, cause—
(i) any land building structure vessel or vehicle to be entered upon or into (if necessary by force), taken possession of, shored up, pulled down, otherwise destroyed or removed;
There are things to be observed here. First s 32B(3)(c) give the power to enter to deal with ‘any alarm of fire’ not just ‘any fire’. This makes sense as the brigades have to have the power, having received an alarm of fire, to enter land etc to see if there is actually a fire. Imagine an automatic fire alarm has gone off, if they only had the power to enter to deal with a fire there would be a question of whether there is, or is not, a fire. Section 32B(3)(c) resolves that issue.
Section 32B(3)(a) says that the brigade shall ‘have any fire suppressed and any person or property in jeopardy saved …’ The phrase uses an ‘and’ that is they have to suppress the fire AND save persons and property. On one view that could suggest there is no power to deal with the fire unless persons or property are in jeopardy as they have to do both (hence the ‘and’) but I don’t think that’s a reasonable reading of the section. The section is listing things they can do and it would make no sense to use ‘or’ (that is they can deal with the fire or save the people). Rather the brigade is there to suppress the fire and save people and property that are in danger (if any) but I don’t think there is any reasonable way to read that as they may only to take steps to suppress the fire if there are also people and property in danger. In any event the fire must be burning fuel and the fuel will usually be the property of someone, so it’s almost axiomatic that any fire is posing a danger to property.
That reading would also make sense in that the fire brigades are established for the common, not private, good (Capital and Counties v Hampshire Council  QB 2004). They need to be able to enter property to deal with fire in order to protect neighbouring properties and they need the power to suppress a fire before it becomes a danger. They also need to be able to suppress a fire regardless of the wishes of the person who lit it.
So having been alerted to the fire the MFB must (and do) have the power to force their way onto the property to investigate if there is a fire and what if anything needs to be done to suppress it. They may (not must) take action to suppress the fire. One would hope that the fire they suppress is indeed a fire posing a threat (and not say, the fire burning safely in the fire place) but the Act doesn’t say that. There may be some reason why assistance is needed to extinguish a ‘safe’ fire and the fire brigades, being equipped with the equipment, have the authority to deal with it.
This raises the question why are they ‘regularly … called out to extinguish rubbish and other bonfires in people’s backyards … [even where the] fire is safe and not causing harm to persons or property’? Who calls them? If it’s the neighbours because they don’t like the smoke then the MFB presumably don’t want to get involved in sort of dispute but, to return to an earlier point, the MFB isn’t there for the individual but the common good. If the fire is posing a threat to people or property they can take steps to extinguish it. It may be a threat to people or property if it is being smoky or there are inadequate provisions to contain it.
If fire fighters do use force to enter the property, damage the property and extinguish a camp fire or bar b q fire that’s burning in a proper fireplace because of a complaint by a neighbour, there could not doubt be arguments that they are not acting in good faith to exercise their powers (as required to obtain legal protection under s 54A). Where however the fire officer thinks the fire should be extinguished because it is, or may, pose a danger to life or property, then she or he can take that action regardless of the property owner’s wishes.
In short, yes I do think it comes down to ‘the fire officer’s definition of what a safe fire is.’
For a similar discussion on issues raised in the context of rural fires in NSW see ‘Entering private land to fight a bushfire in NSW‘ (June 16, 2013).