The post answers the last two questions from my RFS correspondent (see ‘Response’ driving with NSW RFS’ (February 2, 2015)). These two questions relate to hazard reduction burns. My correspondent asks:

  1. Hazard reduction planning is a big part of the work undertaken within the RFS for both salaried and volunteer members. I understand the Service is required to develop Bush Fire Risk Management Plans that set out how the BFMC plans to reduce bushfire hazard.  Is there a requirement for the RFS, who is not a landowner of any substance, to actually perform hazard reduction burns, especially on private lands? As a minimalist approach could this be a mere letter advising the resident the hazard exists and to mitigate it, rather than the full production resources required to plan and execute broad-acre burning?

  2. On a similar theme, planning for hazard reductions are generally done conceptually utilising available topographic and aerial maps.  The general area to be burnt, including cut offs are identified in this process. In the course of detailed planning a resident in the proposed burn area proves “uncooperative”, making the hazard reduction process more difficult (additional resources required for preparation and execution to cater to resident requests/demands). As a result, the burn is “shelved” (too hard basket) and a different area with more supportive residents is selected for treatment.  In leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area, are we still acting “in good faith” per s.128 Rural Fires Act?

Some theory

Australian government is, at least in theory, divided between the executive, the legislature and the judiciary. The legislature, that is the Parliament, can make laws that the executive, all the government departments, must implement. The judiciary determine issues where there is a dispute over what the law requires.

In the United States the division between the legislature and the executive is very clear. The President is the Chief Executive Officer and he or she appoints the departmental heads (the Secretary’s) to run the business of government. The legislature (the Congress) may pass legislation that directs the executive and can compel the executive government to do, or not do, certain things.

In Australia the distinction is much less clear. In Australia the executive power of government is vested in the Queen, to be exercised by her representatives in Australia who are the Australian Governor-General and the state Governors. The Governors and Governor-General are appointed by the Queen on the advice of the relevant Premier or the Prime Minister. By convention, the Governors and Governor-General act on the advice of their Ministers so even though an Act needs Royal Assent, which implies a power of veto, no Governor or Governor-General will ever veto an Act passed by Parliament.

Further, in Australia, the Ministers who head up the government Departments are all members of Parliament and more so, members of the party with the majority in Parliament. One can imagine why a Republican dominated Congress may want to give directions to a Democrat Administration, but those issues do not arise in Australia.   If the Ministers, in their capacity as legislators, pass legislation that says their department must do something, they are in effect making a rod for their own back. If they must do something the government has to make sure they are adequately resourced and it ties their hand when it comes to priorities. If they must spend resources on one thing, they can’t be sent to deal with some other more pressing problem.

Further, and less cynically, the legislature doesn’t actually want to tell those that have to perform the functions of government how to do their job. In this context it’s the Commissioner who has to decide how the RFS will do the various tasks assigned to it, of which hazard reduction burns is only one.   If the law said the RFS must do them then they may have to divert resources from fire fighting. The aim of the legislation is therefore not to tell the RFS what it must do but to empower the Commissioner and to give him or her all the tools necessary to allow them to do the job.

We can now turn to the Act and see what it says.

Rural Fires Act 1997 (NSW)

Each local government area is to have a Bush Fire Management Committee (s 50). The Committee is to prepare a Bush Fire Risk Management Plan (s 52) that deals with the reduction of bush fire hazards (s 54). The Commissioner of the RFS may conduct an audit to determine how plans are being implemented (s 62A). There is little detail of what must be in a plan. Taking the Gosford District Bush Fire Risk Management plan as an example. it identifies various areas where hazard reduction burns are part of the management plan but responsibility for those is given to DECC (formerly the Department of Environment and Conservation, now Environment and Heritage), not the RFS. It is possible however that there would be some plans that impose an obligation upon the RFS and in that case there may be an obligation to perform the agreed tasks.    Without a particular plan to comment on it’s not possible to reach any conclusion in that regard.

We can look at hazard reduction burns more generally. The RFS has the power to do them. An ‘authorised person’ may enter unoccupied Crown land to carry out bush fire hazard reduction work in accordance with the requirements of the relevant bush fire management plan (s 65).   A hazard management officer may give a notice to a land owner requiring that owner to undertake hazard reduction work (s 66) and if the owner does not comply with the notice ‘the Commissioner may … enter on the land and carry out the bush fire hazard reduction work …’ (s 70).   The Commissioner may also carry out hazard reduction work on both public and private land, if the owner has not done the work required by a bushfire management plan, has not complied with their duty to reduce bushfire risk or in the case of public land, the authority has not complied with a direction by the Commissioner (s 73).

All of those provisions say that the Commissioner ‘may’ do those things, not ‘must’.   Again it makes sense; if the law said the Commissioner ‘must’ do those things then the Commissioner would have to act on every hazard, but the RFS does not have the resources to do that. They have to prioritise risk and taking action on one hazard means another has to go untreated. The Commissioner also has to consider the most effective remedy, in one case it may be to enter the land and conduct a burn, in another, a visit by the local brigade to explain to the land owner the problem may be sufficient. The legislature does not want to tie the Commissioner’s hand so the power is given, but not the obligation.

Common law

The common law may impose an obligation. Here a person may sue because they are affected by the decision. The obvious example is a landowner whose property is burned out when fire spreads from their neighbour’s property, where there was a known risk and no-one did anything about it even the RFS is given powers specifically to reduce risk.

This is reminiscent of the decision in Pyrenees Shire Council v Day (1998) 192 CLR 33. In that case the defendant council was liable for damage done to a property. The 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.

Where the risk is overgrown vegetation the vulnerability isn’t quite the same as the risk may be obvious so there may be things the neighbour can do to reduce their own risk, but I think the principle would be the same. Where the RFS is aware of the risk, particularly if they have served a notice requiring hazard reduction work, and then fail to follow up and fail to take ‘reasonable action’ to ensure compliance, there could be liability. (For a related post see ‘Liability for failing to reduce a fire hazard in Victoria’ (January 7, 2015)).

What action is reasonable must take into account a myriad of factors including an assessment of the likelihood of the danger and how bad it will be and other competing risks. In RTA v Dederer (2007) 234 CLR 330 the NSW Roads and Traffic Authority were not liable when a rock was thrown from a bridge and killed a passing truck driver. Although the RTA was aware of the risk of things being thrown from bridges they had done a risk assessment and although this bridge was due to have remedial work done, it was not at the top of the list. Just because something is assessed as having a low probability of occurring does not mean it won’t occur, and a high probability event may still never happen. The fact that it was this bridge that was used to drop rocks did not mean their risk assessment, and therefor their treatment priorities were wrong. Equally the RFS has to decide what hazards to attack, in what order. If the hazard occurs that is not proof of negligence. Even, taking into account all the circumstances, it might be possible to establish negligence by the RFS if they fail to exercise their statutory powers, even though they are phrased as ‘may’, not ‘must’.

To answer question 4:

Is there a requirement for the RFS, who is not a landowner of any substance, to actually perform hazard reduction burns, especially on private lands?

There may not be a statutory obligation to do so, but if the RFS is aware of the risk a common law duty could arise in the right circumstances. There has to be more than mere knowledge of the risk and has to take into account all the circumstances including the size and nature of the risk, the vulnerability of others and competing demands.

As a minimalist approach could this be a mere letter advising the resident the hazard exists and to mitigate it, rather than the full production resources required to plan and execute broad-acre burning? 

The legislation actually anticipates that. The power to do a burn on private land is dependent on a notice being served (s 66) and a failure to comply with that notice. Further if more gentle persuasion is going to ensure compliance by a land owner there’s nothing to stop the RFS trying that option first.

Question 5 is related and is based on an example where objections by landowners make the burn more difficult than it would be with their cooperation. My correspondent asks:

In leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area, are we still acting “in good faith” per s.128 Rural Fires Act?

The answer is it may or it may not be. Good faith requires an honesty of purpose, a conscious effort to fulfil one’s obligations (see Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701; Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45; Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408).

The RFS has may competing demands. If it has to assess how best to allocate its resources then the attitude of the “uncooperative” resident may be relevant. If their response means that the burn will not be as effective that would be relevant. If their objection is that the burn will cause them damage that may also be relevant.  Another question would be who is the burn meant to protect? If it’s the “uncooperative” resident then that’s a factor to be taken inot account but if its others then the resident’s attitude is of less significance (see “No liability for damage to grapes caused by WA hazard reduction burn” (25 April 2012)).

If the decision to focus on the alternative risk is made with a genuine consideration of the size of the risk, who is at risk, their level of vulnerability, how effective would be the work etc then the attitude of residents may well be relevant. If for example the RFS is going to do the work on Crown land but to be effective it also needs private landowners to take action on their land, and the resident has indicated that he or she won’t do so, then the RFS would have to consider serving the appropriate notice, allowing the appropriate time, dealing with appeals etc before they could do the work on that private land. In those circumstances it would be ‘good faith’ to say ‘we’ll defer that burn until that process has worked through and, in the meantime, we’ll go and deal with another hazard’.

If, on the other hand, the decision is motivated by a personal concern of ‘if I do that this person is going to make my life hell and I don’t need it, and bugger them, I’ll let their property burn because they are being difficult’ then that would not be an example of acting ‘in good faith’.

Answer to question 5

Leaving a known bushfire risk, to concentrate on another known (possibly lesser) risk area does not establish whether or not that decision was made in good faith or not. The real question was what was going through the mind of the decision maker. If they were honestly weighing up all the relevant factors including size of the risk, probability of occurrence, who was vulnerable, what other competing demands were there etc and came to a conclusion that it would be a more effective use of resources to focus on the other risk, that’s good faith.

If the decision is based on ‘what’s easier for me’ then it wouldn’t be.

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