This question comes from a firefighter in Western Australia. I am asked

If you’re not an FCO and you are turned out to a report of smoke do you have to ask for permission before entering the property to investigate from the land owner if present? Section 44 states that you have to consult with the occupier, if he/she be present, but what does this mean in the real world? In the context does consulting mean asking for permission? The general consensus was that you do have to get permission, but I’m not so sure and I wonder whether there’s any legal basis from which to form this view. Any help would be very much appreciated.

An FCO is a Fire Control Officer appointed by a Local Government (Bush Fires Act 1954 (WA) s 38).

Section 44(1) says:

Subject to this Act … for the purpose of controlling and extinguishing or preventing the occurrence or spread or extension of a bush fire, or for any other prescribed purpose, the captain, or, in his absence, the next senior officer of a bush fire brigade, or in the absence of the captain and all other officers, any other member of the bush fire brigade, after consulting with the occupier of the land if he be present, has and may exercise all or any of the following powers and authorities, he may —

(a)         …

(b)         either alone or with others under his command or direction, enter on land or into premises which may be on fire or in the neighbourhood of a fire for the purpose of taking such steps as he deems necessary for the control or extinguishment or for the prevention of the spread or extension of the fire, or take or give directions for taking such apparatus required to be used at a fire into, through, or upon land or premises as he considers convenient for the purpose;

(c)         …

(d)         enter or give directions for entering land or premises, and take or cause to be taken water from any source whatsoever, other than that for use at a school or the domestic supply of an occupier contained in a tank at his dwelling-house, whether the water is upon private land or other land, and in all other respects, when and as often as in his opinion he deems it necessary or expedient to do so, exercise all the powers and authorities of a bush fire control officer under this Act;

(e)         either alone or with others under his command or direction enter a building which he believes to be on fire and take such steps as he considers necessary to extinguish such fire or prevent it from spreading.

‘Consult’ cannot mean ‘get permission’.  If it did that is what the legislature would have said and secondly, it would defeat the broad powers that are intended to be given.   According to the online Oxford dictionary defines ‘consult’ as, inter alia, ‘Have discussions with (someone), typically before undertaking a course of action’.

In Yallingup Residents Association (Inc) v State Administrative Tribunal & Ors [2006] WASC 162, Johnson J of the WA Supreme Court had to consider what ‘consult’ meant in the Town Planning and Development Act 1928 (WA).   He said (at [89] and [90]):

In Darling Casino Ltd v Minister for Planning (at 12), Pearlman J, in considering the meaning of the term “consultation” in the context of an environmental planning policy, referred to the following conclusion of Bucknill J in Rollo & Anor v Minister of Town and Country Planning [1948] 1 All ER 13 (at 17):

“A certain amount has been said as to what consultation means … it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice.”

It can be seen that this interpretation requires, as counsel for the Association noted, a two step process:

(a)          the provision of sufficient information; and

(b)          a sufficient opportunity to respond.

In TVW Enterprises Ltd v Duffy & Ors (No 2) (1985) 7 FCR 172 Toohey J (at 178 – 179) observed that, irrespective of the statutory context, the obligation to  consult  carries a responsibility to give those consulted an opportunity to be heard and express their views so they may be taken into account.

It seems axiomatic that an obligation to ‘consult’ with the occupier of the land would be to let the occupier know what the fire brigade want to do and ask the landowner for his or her advice or comments.   That makes sense.  First it invites the occupier to agree and may therefore reduce the need or threat of force or damage.  It may well reveal to the fire brigades things they don’t know such as ‘be careful of the bull in that paddock’.  It would allow the occupier to ask the brigade to consider the occupier’s interests eg the occupier may point out their prize rose garden and ask the brigade to minimise the impact of their operations there if that is possible.

Consulting with the occupier reflects that emergency management is not the sole responsibility of the fire service but involves cooperation with those involved, and people have rights and interests in land that need to be respected to the extent that they can be.  Consulting, however, does not equate to gaining consent and it may be that after consultation, the brigade has to act contrary to the person’s wishes.

As Johnson J noted (at [93]) ‘The extent of the obligation “to make reasonable endeavours to  consult ” must be construed by reference to the language of the Act viewed as a whole, including the regulations made under that Act’.  The obligation to consult under the Bush Fires Act where immediate action is required, will not be the same as the obligation under the Town Planning and Development Act 1928 (WA), as it was.  In a town planning decision a local government may be able to send out notices to affected landowners inviting them to comment on the plan and allowing a period for comments to be made.  A bush fire brigade does not have that luxury so consultation may be quite abridged.  Even so ‘the requirement of consultation is never to be treated perfunctorily or as a mere formality” ([91]).

Conclusion

In my view the duty to consult referred to in s 44 would mean that, to the extent possible taking into account the nature of the call out, a bush fire brigade would need to try to let the occupier know what they, the brigade, want to do and then take the occupier’s advice, concerns, requests or objections into account when formulating their incident action plan.