This question comes from a volunteer bush fire fighter in the Margaret River region of Western Australia. My correspondent says:
The Community Engagement department of our state fire agency encourages us to promote bush fire awareness to community members; as per “Prepare, Act, Survive”, this starts with “risk is your own responsibility and you shouldn’t rely on fire fighters for help”. This is alien to people from overseas and metro areas whose city landscapes were made fire-resistant generations ago, and who expect professional fire departments to deal with fires.
One obvious issue is that we can only “engage” after people have relocated, and it may then be physically, financially or, perhaps, legally impossible for them to achieve appropriate safety for themselves – we have estates of vulnerable elderly retirees and young fly-in, fly-out families in highly flammable bush blocks. In our land of “a fair go” and in an age where Consumer Protection is fairly advanced, it seems anomalous that no warning is given on advertisements promoting family homes in high-risk bush locations.
Does the U.S.A do any better?
Note: I did try, unsuccessfully, to interest the ACCC in this – quoting Bushfire CRC research,:
“..in many peri-urban places around Australia the growing mix of people and property with bushland creates the potential for disaster..” “..The results demonstrated that people have a heavy reliance on the Rural Fire Brigade to protect people and property during bush fire (93%). Those who may rely more heavily than others include those with an urban background, newcomers (<10 years),….” (FIRE NOTE, Bushfire CRC, Issue 9, November 2006, emphasis added).
The only specific question here is ‘Does the U.S.A do any better?’ and that I can’t answer but I’ll make general comments.
First the ACCC is in effect the ‘guardian’ of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) (which replaced the Trade Practices Act 1974 (Cth)). As might be inferred by the name of the Act, the ACCC is concerned with competition and anti-competitive practices, and consumer rights and protection. The issues raised by my correspondent do not relate to ‘competition’ but ‘consumer protection’.
For the purposes of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (which is Schedule 2 of the Act) a consumer is a person who buys goods and services for less than the prescribed amount (currently $40 000). Land (or a house) is neither a ‘good’ (s 95A, definition of ‘goods’) and is likely to cost more than $40 000 so the sale and otherwise of land is not governed by the Act. It stands to reason that the ACCC are not interested in the matter; it is outside their area of authority or concern.
What then of others and who should issue a warning? In the absence of legislation we’ve all heard of the rule ‘caveat emptor’ – buyer beware. Depending on the jurisdiction a vendor has to make information about the property to the buyer (see http://advice.realestateview.com.au/buying/ultimate-first-home-buyers-guide/13/) but there is no compulsory disclosure in WA (see https://www.commerce.wa.gov.au/sites/default/files/atoms/files/salebyofferandacceptance.pdf).
When buying a house a purchaser should (but doesn’t have to) make inquiries of the local authorities. It is up to the prospective buyer to make their own enquiries when buying land to determine whether or not ‘factors affecting use and enjoyment of land’ have been recorded on the title (Transfer Of Land Act 1893 (WA) s 70A) and whether or not the property is in a designated bushfire prone area. It is also up to them to decide what they do with that information and if they seek advice on what they can do to reduce the risk of being impacted by bushfire. If they fail to do that, that is their own lookout.
There have been calls to increase the level of warning information given to households but equally it has been reported that there is some fear of liability for disclosing risk information. It is my view that fear is unfounded and I discuss that in some detail in a paper I wrote with John Handmer or RMIT – ‘Legal Issues and Information on Natural Hazards’ (2012) 17 Local Government Law Journal, 19-26.
Even if there is no legal liability there are political realities and so councils or state governments may face community backlash if they start giving stark warnings to potential buyers of fire risk or impose an obligation upon vendors to do so. And let us remember that even in fire prone areas, the risk of your home being consumed by bushfires remains small. I recently supervised a student who wrote a paper on why insurers don’t take a more active stance in encouraging people to take steps to prepare their property for bushfire. He found
Preliminary analysis of statistical data on natural disasters shows that from 1967 to 2010, fire has only accounted for approximately 8 per cent of total losses when normalised to 2011-dollar values.
McAneney, Chen and Pitman calculate that:
… the average annual probability of a random home on the urban–bushland interface being destroyed by a bushfire to be of the order of 1 in 6500, a factor 6.5 times lower than the ignition probability of a structural house fire. Thus on average and if this risk was perceived rationally, the incentive for individual homeowners to mitigate and reduce the bushfire danger even further is low. (http://www.bushfirecrc.com/sites/default/files/managed/resource/mcaneney-et-al-2009.pdf)
Governments have an interest in improving public safety but steps to do so, including requiring people or agencies to add a ‘warning … on advertisements promoting family homes in high-risk bush locations’ is not cost free. Governments would have to impose the obligation and then enforce it with no doubt political backlash; and given the real risk is it worth the grief? That is a political and not a legal question.
It’s not for me to say whether such warnings should be required, but I can say that under current law there is no obligation for warnings to be given when advertising a house for sale. Such a warning is not required by the Competition and Consumer Act 2010 (Cth), the common law or the Transfer Of Land Act 1893 (WA).