This is a detailed question from a volunteer controller with NSW SES. My correspondent says:
I would like to have your views on two issues which are concerning Local Controllers and volunteers in NSW SES, and it may affect other States or authorities:
- Entering and performing storm damage control in a property without the owner’s consent: In my early training as a volunteer, we were always educated not to commence any type of storm damage work on a property without the owner’s consent. However, I have been informed that in my appointment as a “Senior Emergency Officer” under the State Emergency Service Act 1989 Sect 22A, I may r. These type of cases come up during storms as there is a large number of rental and holiday properties and often too hard to find the owner. I wish to confirm that SES Controllers may authorize work to commence when an owner has not been informed.
- Referring storm damage to property owners and land manager:
- Example 1: A tree has fallen down in a park, it maybe blocking a footpath but it is not causing any significant disturbance to traffic. The SES Local Controller refers the incident to the Local Council as the managers/owners of the park to deal with. As an SES Controller I am satisfied that the Council will deal with the matter accordingly. Is there any legal need for the NSW SES to follow up to make sure the Council completes the task?
- Example 2: A tree is resting on power lines which are in the street (pole to pole). The SES Unit refers the incident to electricity authority to attend to. As in example 1, the SES unit is satisfied that the electricity authority will deal with the matter. Is the SES obliged to follow up to ensure it is complete?
- Example 3: A tree has fallen next to a main road managed by the NSW RMS. The road is not blocked by the tree may interfere with the break down lane. The SES Unit refers the matter to the RMS to deal with knowing that the RMS will make the incident safe. Is there any requirement for the SES to follow up the RMS to ensure that they have completed the task?
I have been informed ‘informally’ by staff members of SES that the SES Unit must follow up every one of these examples to ensure that the agency or Council has completed the task as the SES is responsible until the task is complete. Some of these tasks may not be completed for over a year as in the example of my own council have stated if it is low priority, then the issue may not be resolved until they can afford to complete the work.
My personal thoughts in these matters that under the State Emergency Service Act 1989 – Section 8 (1)(b) to act as the combat agency for damage control for storms…. , that I as the appointed Controller within the Act, that I am satisfied that they agency or land manager will manage the incident and I have fulfilled my need for damage control.
To compare the example on private property: The SES attend a tree that is on a house, the owner of the house has told the SES that he/she will deal with the tree and no need for any SES action. The SES does not follow up the owner later on to ensure that he/she has completed safe works. I would say this would be the same for damage control in the examples above.
I think there needs to be a clear recognition between say, a fire, and storm damage. If a tree has fallen onto a house, and assuming it has fallen as far as it can fall, then the damage is inconvenient to the home owner, but hardly an ‘emergency’ for anyone else. This is different to a fire, a fire starts in a room and if no-one extinguishes it not only will the home be lost but so may the neighbouring properties or whole communities. For this reason there is no doubt that the fire brigades may enter a property where they have been alerted to the possibility of fire, they may do so with the permission of the property owner, without the permission of the property owner or where the property owner expressly refuses to let them on. They are not there for the property owner but the greater good so the property owner’s consent is really irrelevant (see for example, Fire Brigades Act 1989 (NSW) ss 6, 7, 11, 12, 13 and 16).
I think that distinction will help inform our answers to the questions raised. Question 1 relates to ‘Entering and performing storm damage control in a property without the owner’s consent’. The State Emergency Service Act 1989 (NSW) provides for ‘emergency officers’ and ‘senior emergency officers’. An ‘emergency officer’ is a person appointed to that position by the SES Commissioner (s 15); a senior emergency officer holds that position by virtue of their position in the SES, Fire and Rescue NSW, NSW RFS, NSW Police or because of their appointment as a Regional Emergency Management Officer (s 18A). The Commissioner of the SES has certain powers that he or she can use to help bring an emergency under control and he or she can authorise an emergency officer, or senior emergency officer, to exercise those powers on the Commissioner’s behalf. The Commissioner can authorise an emergency officer to exercise a power to ‘evacuate or to take other steps concerning persons’ (s 22). He or she may authorise a senior emergency officer to ‘to take other safety measures’. In particular a senior emergency officer may direct that the supply of water, gas, electricity or other substance is disconnected and he or she may arrange to take possession of, remove and destroy anything that is ‘dangerous to life or property or that may interfere with the response of emergency’ (s 22A).
A person may enter premises in order to comply with a direction under s 22A. That means if a senior emergency officer requires that the gas is disconnected, he or she may authorise the technician supplied by the gas company to enter premises in order to disconnect the gas, and the owner’s permission is not required (see ss 22E and 22F) though the owner must be notified of the intention to enter the premises unless ‘entry is required urgently and the case is one in which the Commissioner or senior emergency officer giving the direction has authorised in writing (either generally or in a particular case) entry without notice’ (s 22C).
This is not a general power to enter the premises to deal with the effects of the storm; it is a power to enter to ensure that an order under s 22A is carried out. Section 22A would not allow an IC or a senior emergency officer to ‘authorize a team to commence work without informing the owner’. There is however a common law principle of necessity. Here we are not talking about necessary action to save a life, but action to save property.
This is what I wrote in my book, Emergency Law (4th ed, 2013):
“For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247)… In 2008 the High Court of Australia 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) 236 CLR 1, [40]).
Finally:
In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner. (Proudman v Allan [1954] SASR 336, 338)
So SES members who move onto a property, acting with the honest intention of protecting the property from further damage, will be able to rely on both the doctrine of necessity as well as the ‘good faith’ provision in the SES Act (s 25). But here’s the difference between a tree down and a fire. If the home owner doesn’t want the SES to enter the property then there is no right to do so (except as provided for in s 22A and that only allows entry if it’s needed to disconnect the gas or some other hazard ie if entry is required to ensure the safety of the community or the SES). Where there is a fire, or even a report of a fire, the fire brigades can enter the property and take action to deal with the fire regardless of the property owner’s wishes.
So the answer to question 1, ‘can SES Controllers authorize work to commence when an owner has not been informed?’ is yes but only if it is necessary to do so and the controller (and SES members) are acting ‘from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property’ and their actions are reasonable. What is reasonable would not only refer to SES training (ie it’s reasonable to do what you are trained to do and not what you are not) but also the steps taken to try to contact the owner and the urgency of the situation (could it wait) and the extent of damage that will take place if action is not taken.
The answer to the second questions is more difficult. The analogy with the house holder is a good one, if the property owner doesn’t need your assistance what obligation is there to give it. Part of the problem is that the SES Act makes no effort to define ‘emergency’. The State Emergency and Rescue Management Act 1989 (NSW) (in s 4) defines emergency as:
… an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:
(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or
(b) destroys or damages, or threatens to destroy or damage, property in the State,
being an emergency which requires a significant and co-ordinated response.
The events described in question 2 meet the criteria as they are caused by a storm that has damaged property but they may not need ‘a significant and co-ordinated response’. (On that definition a house fire and a heart attack are not emergencies either so the definition is of pretty limited application). It is true, too, that the SES is ‘to act as the combat agency for damage control for storms’ (State Emergency Service Act 1989 (NSW) s 8(b)) but at what point is the damage controlled?
I can not see that there is any obligation to follow up on the cases described as the SES is no more responsible here than they are to the home owner but that does not meant the SES has no obligations. There is a real risk that the fallen trees, as described, are dangerous. The SES is to ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’ (s 8(aa)) and that’s different, that’s not controlling damage, that’s protecting people. The SES could therefore be expected to make sure the scene is reasonably safe, taking into account, as always, the magnitude of the risk, how likely it is, the cost and inconvenience of taking action and other conflicting responsibilities (Wyong Shire Council v Shirt (1980) 146 CLR 40). In examples (1) and (3), above, the SES may want to rope or tape off the relevant area, on the road put up some emergency lighting to warn oncoming drivers. I would have thought with example (2) you would not want to leave until the electricity authorities attended and rendered the scene safe and in the meantime you would take action to close the footpath and/or road to make sure there was no-one likely to have a tree, or powerline, fall on them.
The other jobs must be assessed in the same way that the Council or the RMS will assess them: What’s the priority? Is it actually safe? Is it reasonable to leave it in the hands of the occupier (the council or RMS) given it’s there tree and their property? What other competing demands are on the SES? If you’ve rendered it reasonably safe I would suggest you have done your duty under s 8(aa) and as for s 8(b) the damage is in effect, controlled, it’s not happening and it’s not getting any worse. On the other hand, if you think the tree on the road is a clear and obvious danger and there’s no way to deal with it other than by removing it you need to impress that on the RMS and again that may mean standing by to direct traffic, calling the police (who will not doubt get council moving) or otherwise persuading them their risk assessment is wrong. But if you think the situation is reasonably safe, there is nothing I can see in the SES Act, or common law, that would require the SES, and in particular volunteers who come on duty during an emergency but then have their private lives to return to, to follow up once you have communicated with the ‘owner’ and are satisfied that they are aware of the issue.
The answer will be different if the Commissioner has directed that there is to be follow up. The Commissioner is ‘responsible for managing and controlling the activities of the State Emergency Service’ and ‘is to have overall control of operations in response to an emergency’ caused by flood, storm or tsunami (State Emergency Service Act 1989 (NSW) ss 11, 19 and 20). If the Commissioner decides that he or she requires the SES to follow up on such tasks, as an exercise of his or her control over the service or to satisfy him or herself that the emergency operations are complete, then he or she can require that and a local controller would be required to give effect to that direction (s 17(3)). Here, however, I was told that this requirement was communicated ‘‘informally’ by staff members’ rather than as a direction from the Commissioner or his or her delegate (eg a Region Controller). Absent a formal direction my answer is as above. If there is a formal direction then yes, follow up is required, not because the law requires it but because the Commissioner requires it and the law requires that the Commissioner’s directions are given effect.
Australian Emergency Law 
In my time with VICSES, we were always told that to enter a property to affect repairs (ie: tree on a roof), in the absence of the owner, the only person who could authorise us was a member of VICPOL. Not sure of the legal requirements, but that’s what we’ve had indoctrinated into us…
I’ve explained the legal requirements (at least in NSW). The real reason people are told the police can authorise such action is really to protect oneself, if the police say it’s OK they’re not going to arrest you and you hope it will carry weight if there’s some suggestion of impropriety, but at least in NSW the police have no particular authority in this context and if they did it would defeat the notion that the SES are the relevant combat agency. Police believe and act as if they are in charge because people act as if they are, police are used to making a decision and having people act in compliance with what they say so they have power and authority as people behave as if they do. What really needs to happen is the members of the SES need to back themselves, they represent the combat agency so they should be prepared to make a decision. The authority to ‘enter a property to affect repairs (ie: tree on a roof)’ lies with the SES, its up to them to authorise the police, not the other way ’round (though I appreciate that’s easy to say, and police are unlikely to feel they need authority from anyone else).
As a former member of the NSW SES performing field response roles, call taker roles, as well as incident control centre (ICC) roles, I have had this question raised more times than I care to recall.
When it comes to a storm response if the tree is completely down and poses no further hazard and the tree being down in and of itself does not pose an imminent hazard then it is at the discretion of the crew leader as delegated by the appointed local controller as to if the tree will be dealt with by the SES crew or referred appropriately, whether it be to an alternate agency or in the case of a tree down on private property referred back to the tenant to arrange their own contractor or have the land owner arrange a contractor. Attendance by a suitable qualified SES member is still required to make an assessment of the job though. As for handing the job off to an alternate agency such as a utility company or local council when acting in my Incident Controller or Operations Officer capacity I would often add to the job details a request to be notified of the estimated time of attendance and upon completion so that the job could be marked off as completed by an alternate agency.
As for entering a property one of the questions call takers are meant to ask a caller when the tree is on private property is if the tenant and/or owner consents to SES members going on site to respond to the job if there is no one present at the property. Frequently the answer was yes and that would be noted on the RFA (Request For Assistance) job form. ON occasions where the tenant specifically declined that option then the call taker would refer it on to the appropriate control centre officer to make contact back with the tenant or owner to arrange a mutually suitable day and time to attend the job. If the tenant or owner did not decline permission then the position held by many units for which I performed offer roles for as well as the various paid staff who supported us was that unless the tenant specifically stated that they did not want members to attend on site without someone being present then they had provided implied consent to perform the job without them being there as they have contacted an emergency services organisation and requested that the job be attended to. It was never something which we had challenged in court and so the exact legal position was never tested in court and it may have changes in recent years as I am now with the Victoria SES but as of the time I was in NSW that was the position held by many.
Thanks Chris, one should understand these matters are never, or at least have never, been tested in court. Thinking about the law is much more than the court and the reality is, despite constant reports to the contrary, the emergency services are rarely if ever sued over their actions. I can think of no legal action against the SES for their response to any emergency event so these questions, although interesting, have never been tested in court.