This came to me via a Facebook friend in NSW. She asked:
If there is a bush fire on a property and the adjoining National Park and the Authorities cut Dividing Fences and internal fences, are those Authorities bound to replace and/or repair those fences and if so, is there a statutory time limit for the land owner to give notice of repair to the Authority?
The National Parks and Wildlife Service is responsible for managing fire in National Parks. An authorised NPWS officer may enter neighbouring land, up to 8kms from land from the National Park, in an attempt to stop the fire spreading from the private land to the national park (but not the other way). The Act does not specifically say they may use force or cut fences but it does say that the authorised officer may ‘do all such things as are reasonably necessary to suppress, or prevent the spread of’ the bush fire and that could well include cutting fences. In exercising a power under this section, the authorised officer must comply with ‘any bush fire management plan applying to the land or agreed with the authority responsible for the land’ (ie the owner). Which does not mean that the owners agreement is required or that there must be a bushfire plan in place, but if there is an agreement or plan, they must be honoured; (Rural Fires Act 1997 (NSW) s 133). The Act does not say who is to pay for the damage.
The Rural Fires Act also says:
(1) An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things:
(a) pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land,
Finally s 28 says:
Any damage to property that is caused by any person exercising any function conferred by or under this Division [ie Division 3 – Rural Fire Brigades] in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.
So it follows that if the relevant authority is the Rural Fire Service then there is no obligation upon the service to replace or repair the fences. The damage done by the RFS when fighting a fire is deemed to be damage done by fire. If the landowner has insurance against loss by fire it must also cover this loss. If they uninsured they carry the risk just as they carry the risk of loss by fire.
The situation is not so clear if the damage is done by NPWS as s 28 clearly does not apply to them (s 28 relates to action taken under Division 3, ss 15-33) and the NPWS authority is in s 133. However it is intended that a statutory authority will use the powers that it has been given and absent an obligation to pay damages the only obligation to rectify the fences would arise if the decision was negligent that is, unreasonable in the circumstances. There is therefore no clear obligation upon them to repair or replace the fence if their actions were reasonable (judged objectively, not by the property owner who may think it was quite unreasonable).