A colleague has asked me this question:

I’ve just arrived at the in-laws’ place in Victoria (just up the road from the recent fires) and the father-in-law has hit me with a legal question. His next door neighbour has refused to cut the grass on his property, meaning there is waist high grass across 3 acres directly adjoining the in-laws’ place. The in-laws’ house is about 7 metres from the fence. As you can imagine, they are a little concerned about the fire risk, as is the Council (the Council has served him with three notices telling him to cut the grass or else but he’s still refused and the Council’s ‘or else’ turns out to be ‘oh dear’).

Question for my learned friend – if a fire started and swept across the land, burning down the in-laws‘ place or one of the other adjoining houses, would the landholder be liable, even if he was not responsible for the fire starting?

The answer to that is ‘probably not’ and the better defendant would be the council.  To justify that answer will require some detail and history.

If we go back to the rule in Rylands v Fletcher (1868) LR 3 HL 330 it said that a landowner is liable for anything dangerous that they ‘collect and keep’ on their property and that escapes and damages their neighbours’ property.   Rylands v Fletcher was about water (a dam leaked) but it could have applied to fire, but one had to ‘bring and keep’ the fire.  A fire that starts naturally is not the landowners’ fire that is not a fire that they brought onto the land, so the rule did not apply.

More importantly in Sparke v Osborne (1908) 7 CLR 51 it was held that the rule did not apply to prickly pear so that the defendant was not liable for the spread of the weed from his property to another.  According to Griffith CJ (at p 57) the trial judge (that is the judge that heard the case at first instance, and whose decision was the subject of the appeal):

… was of opinion that, in any case in which a man allows plants growing on his land to overhang his neighbour’s land, that is a nuisance, and that the neighbour may either abate the nuisance or bring an action, if damage is caused to him, and he thought that it made no difference whether the vegetation in question was a natural growth or had been planted, whether it was valuable property or a noxious weed. The· mere allowing it to overhang was in his opinion wrongful, and actionable if followed by damage.

If that opinion was correct one can see the analogy, that is the neighbour has allowed the grass to grow and although that grass may not ‘overhang’ it will create a nuisance and poses a risk to the property of my colleague’s in-laws, and would be ‘actionable if followed by damage’ such as allowing fire to spread.

Griffith CJ found that the trial judge was wrong.  The Chief Justice said (at p 59)

It seems to me that the only principle applicable to such cases is … that if a man by the active use of his land injures his neighbour’s land and so deprives him of the natural advantages that he would have derived from his land but for the conduct of the defendant, the defendant is liable, but that he is not liable for mere non-feasance.

Non-feasance is simply not doing anything.  Allowing the grass to grow is non-feasance, it is an omission to clear the land rather than ‘active use’ of the land.

Barton J said that the defendant:

… had not interfered with the growth. It was nature and not his act which was responsible for what happened. That, it seems to me, is a very difficult case for the plaintiff to get over.

Higgins J said:

I know of no duty imposed by the British common law-apart from such statutory duty as Parliament may impose on a landowner to do anything with his land, or with what naturally grows on his land, in the interests of either his neighbour or himself. If he use the land, he must so use it as not thereby to injure his neighbours… But if he leave it unused, and if thereby his neighbours suffer, he is not responsible. So long as he does nothing with it, he is safe. It is not he who injures the neighbour. It is Nature; and he is not responsible for Nature’s doings.

O’Conner and Isaacs JJ all agree that there was no duty to prevent, or liability for, the spread of the weed to the neighbouring property.

In the facts I have been given, the neighbour has declined to mow the grass and it has been allowed to grow naturally.  There would appear to be no common law duty to mitigate the risk to the neighbour.  Here readers may refer to the issue that arises in tort law about ‘reasonable foreseeability’ that is people are told that there is a duty to avoid harm that is ‘reasonably foreseeable’ but the courts have long moved away from such a simple test as that would impose duties on all people to do all manner of things as any damage that can be imagined is foreseeable provided it is not ‘far fetched or fanciful’ (Wyong Shire Council v Shirt (1980) 146 CLR 40, [13]).  As has been noted in this blog, cases against the fire services, doctors, police, neighbours etc all require more than mere foreseeability.   What more has been described by various terms such as ‘proximity’ or whether it is ‘fair, just and reasonable to impose a duty.  Over time all those concepts have lost favour and today the courts look at all the ‘salient features’ of the relationship between the parties.  Without going through those features (they are discussed in the post ‘Distributing warnings via Facebook and potential legal liability’ (November 16, 2014) and other posts in this blog) it is unlikely that any duty would be found today.

One might object that Sparke v Osborne was decided in 1908 and times and expectations have changed, but in Stannard v Gore [2014] 1 QB 1 the English Court of Appeal again affirmed no such duty. In that case it was alleged that fire spread from one shop to another due to the untidy condition of the shop where the fire started.

Rylands v Fletcher is no longer part of the law in Australia (Burnie Port Authority v General Jones (1994) 179 CLR 520) but in my view that doesn’t change the relevance of the cases discussed, above, when it comes to the question of whether there is a duty to take action to ameliorate the risk caused by growing grass.

With the demise of Rylands v Fletcher, there remains a duty to take care to protect a neighbour from fire or other dangerous hazard that a landowner brings onto the land (Burnie Port Authority v General Jones (1994) 179 CLR 520) but in this scenario we’re talking about a situation where the landowner is ‘not responsible for the fire starting’.  In the opinion of Windeyer J, there is a person has ‘… a duty to exercise reasonable care when there is a fire upon his land (although not started or continued by him or for him), of which he knows or ought to know, if by the exercise of reasonable care it can be rendered harmless or its danger to his neighbours diminished’ (Hargrave v Goldman (1963) 110 CLR 40).  That duty only applies when a fire has started and is not referring to some duty to mitigate the hazard before the event: ‘… the oft quoted phrase ‘if you own the fuel, you own the fire’ … is not reflected in the law’. (For a detailed discussion, see ‘Landholders duty of care for fire and other hazards’ (March 22, 2014)).

It is my view that there is no common law duty that would see the neighbour liable in the event that fire spread; but what about statute?  This story is in Victoria so we look at the Country Fire Authority Act 1958 (Vic).  That does not impose any general obligation on property owners to reduce grass or hazards (compare that to the Rural Fires Act 1997 (NSW) s 63, which imposes a duty on a landowner to take ‘any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire’).

In Victoria a landowner must comply with a fire prevention notice that has been served by, amongst others, ‘the fire prevention officer of a municipal council’ (ss 41 and 41D).    We are told that ‘the Council has served him with three notices telling him to cut the grass’ and without knowing the details, and without studying the Local Government Act 1989 (Vic), the Environment Protection Act 1970 (Vic) or any other Act to find other notices that these could be, I will infer that the notices were fire prevention notices under the CFA Act.   Failure to comply with a fire prevention notice is a criminal offence punishable by a fine of 120 penalty units or imprisonment for 12 months, or both (s 41D).   A penalty unit is $147.61 (see http://www.legalaid.vic.gov.au/find-legal-answers/fines-and-infringements/penalty-units) so the maximum fine is $17 713.20.

Just because a person has been served with a notice and has not complied with it, it does not follow that they will be liable for any damage that would have been avoided had they complied with the notice.  This would be an action for a breach of a statutory, rather than common law, duty.  To succeed the plaintiff would have to show that it was the parliament’s intention that the statute was to give a private right of action.  Imposing a criminal penalty suggests that was not intended, the Parliament has provided how this rule is to be enforced, by criminal sanction, not civil liability.

It is my view therefore that not only would the landowner be under no common law duty, there is not statutory duty (at least not under the CFA Act) that would allow an action for damages should a fire spread from one property to the next due to the uncut grass.

The Council, however, is in a different position.  In Pyrenees Shire Council v Day (1998) 192 CLR 33 the defendant council was aware of a defect in a chimney.  They served a notice on the owner requiring that the defect be rectified but took no further action.  The property was destroyed when new owners, unaware of the defect, used the chimney and caused a fire in the roof.

The council was liable as it had begun to take action, in this case under the Local Government Act 1958 (Vic), to deal with the issue.  It had served a notice so was well aware of the problem.  The Council had statutory powers to resolve the issue, given noncompliance the council could have arranged rectification work and billed the owner.  No-one else had the power to deal with the issue.  The new owner was vulnerable in that no amount of inspection would have revealed the defect and the council did not advise that the property was the subject of a notice when they made the normal enquiries that a prudent purchaser makes before buying a property.  In effect after serving the notice the council did nothing more.

To come to the current facts, where a fire prevention notice has been served and not complied with the council may request the CFA to conduct the necessary ‘fire prevention work’ (s 42(1)).  The work is to be paid for by the owner (s 42(2)).

If there was an action against the council alleging negligence, a court has to consider all of competing demands on the council’s resource and all of the other things that the council has to do, when deciding whether or not the council’s actions were reasonable in the circumstances (Wrongs Act 1958 (Vic) s 83).  Council may argue that there were other properties that were posing a greater risk so they were getting attention first, or there were other risks from other hazards in the council area.  That’s all fine but the only thing the council has to do here is ask the CFA to do the work, the council doesn’t have to do it, and bill the landowner so the council doesn’t have to pay for it.   Either way it’s not a major drain on council’s time or assets.  The power to issue notices and to enforce them is not some general power that can be applied to fire and other risks, it is a power specifically allowing councils to address this very risk, just as it was in Pyrenees Shire Council v Day.

Time is also not on council’s side.  If one served a notice and two days later a fire occurred, there would have been no opportunity to comply or to enforce compliance.  Here the council has served three notices – so they’ve had time to consider the problem, identify non-compliance but have still failed to escalate the issue.  They could have served an infringement notice (in effect an on the spot fine; s 41E) to try to drive home the need for compliance but I would infer they have not done that either.

Conclusion

The question was:

… if a fire started and swept across the land, burning down the in-laws‘ place or one of the other adjoining houses, would the landholder be liable, even if he was not responsible for the fire starting?

A legal action always depends on the particular facts so one can never say ‘never’ but such a case would be difficult and I would suggest against the weight of authority.

On the other hand, given the council has served three notices, has the statutory power and authority to take action, and the council’s ‘or else’ has turned out to be no more than ‘oh dear’ I would suggest an action against the council, should a fire sweep ‘across the land, burning down the in-laws‘ place or one of the other adjoining houses’ would have much better prospects.