A member of the NSW SES asks:

As someone who acts as a Duty officer for the NSW State Emergency Service i have had to handle incidents where a tree is reported down on a road. The standard practice for many SES units across NSW involves referring the tree down to the local council or RMS depending who maintains the road. Based on my experience in most cases the NSW SES will not attend the scene to assess the situation and simply close the job as “referred”.

My questions are,

  1. As per the SES act, it would seem that the SES are only responsible for any trees down during a Storm, Flood or Tsunami?

Following this,

  1. If during a Storm or Flood there are reports that a tree has fallen and it poses a risk to traffic/the public, is the NSW SES neglecting its duty of care and responsibilities under the SES Act by referring such trees to non-emergency services such as local councils and RMS who in most cases cannot guarantee a prompt response to ensure the safety of the public.

As you have discussed previously the definition of a “Storm” leaves a lot to be desired when it comes to deciding if reports of a Tree down is the responsibility of the SES or one of the other agencies.

With respect to question 1, see NSW SES responding to a non-emergency (October 16, 2015).

The answer to question 2 needs some more detail.   As noted the question of whether or not there is a “storm” is unclear – see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015).    Let us assume for the sake of the argument that there is indeed, a ‘storm’.   According to the State Emergency Service Act 1989 (NSW) s 8 some of the functions of the SES are

(aa) to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis, [and]…

(b) to act as the combat agency for damage control for storms and to co-ordinate the evacuation and welfare of affected communities,

So a tree has fallen down in a storm. Let us assume the tree is a private tree on private property and has fallen onto the private home of the landowner who lives there. The tree has damaged the roof and water is now getting into the house, the longer it is left, the worse the damage will be.

The only person for whom this is an emergency is the landowner.   They can call the SES or they can chose not to. This is unlike a fire. If a fire breaks out in a house the emergency is not only for the landowner whose property it is on fire but also the neighbours whose properties are under threat and the broader community. Anyone can call the fire brigade and the fire brigade can enter the property to fight the fire whether or not the landowner wants them to – see:

Further the fire brigade could chose to ignore the fire and divert resources to protecting neighbouring properties (see Liability for fire – a review of earlier posts (January 8, 2016) and the links to earlier posts that are set out there).

In our scenario the landowner can call the SES (and putting aside philosophical questions, such as why does the State Government fund a response, and compel insurers and local governments to fund a response to protect what is, inherently, a private interest?) he or she would expect a response. The property is suffering damage, the damage is caused by a storm and the SES is the ‘the combat agency for damage control’ where damage is caused by storms.     The SES must ‘triage’ its response that is determine which calls are more urgent than others but it could not refuse to go on irrelevant grounds such as that the landowner is a fit young man who should be able to manage the response or for some reason he is the author of his own misfortune.

Now let’s change the story. This time the tree falls onto a public street. It is no longer just the landowner’s problem. The street is blocked and there is a hazard to pedestrians and vehicle traffic. Whilst there’s no obligation to call the SES (again compare that to a fire where there is an obligation to report at least a bushfire – see Rural Fires Act 1997 (NSW) s 64) once the SES are aware of the danger they need to step in to resolve it. They are the combat agency for responding to storm damage and are to protect persons from danger (though arguably a fallen tree is a hazard from a tree, not a storm).

Now we move closer to the story as put by my correspondent. If the tree is owned by the RMS or council then it’s on their property (the road) that sounds like the first scenario. Like the landowner they could chose to deal with it themselves. They don’t need to call the SES any more than a landowner does.  However, unlike a private landowner, the roads authority  will have a duty to make the road safe.  The roads authority owns the road (Roads Act 1993 (NSW) s 145) that everyone has a right to access (s 5).   Like any landowner if you know people are going to come onto your land you have a duty to ensure that it is reasonable safe and hazards are dealt with. For that purpose and the roads authority has specific powers to regulate the traffic on the road for, amongst other reasons, to protect the public from dangers on the road (s 115). The roads authority therefore owns a road, is required to keep it open and has specific powers to control access should it be dangerous.  An analogy may be that the roads authority is the combat agency for hazards on the road.

Even so, the roads authority, like a private landowner could call on the SES for assistance. If they know of the problem but also know they can’t get to it they can call the SES as much as anyone else, and the SES can’t refuse to go on grounds such as ‘the roads authority should be able to handle this matter itself’.

So both the SES and the roads authority have obligations to deal with the hazard. The duty in each case is to do what is reasonable. What is reasonable will depend on all the circumstances. What’s to be done? Clearly this is the classic situation where what is required is preplanning – and that is what has happened. The NSW Storm Plan, a sub-plan of the NSW Emergency Plan sets out roles for RMS and councils. The plan says that local councils are:

Subject to the availability of council resources [to] assist the NSW SES with storm damage operations including:…

d. Remove tree and other debris from council managed roads and council managed public land during storm damage cleanup operations in consultation with the NSW SES (NSW Storm Emergency Sub Plan (September 2013), [2.12.6]

The Roads and Maritime Services is to ‘Clear trees and debris from RMS managed roads in consultation with the NSW SES’ ([2.17.1]). The key issue in both cases is that the decision is made ‘in consultation’ with the SES.

So ‘is the NSW SES neglecting its duty of care and responsibilities under the SES act by referring such trees to non-emergency services such as local councils and RMS who in most cases cannot guarantee a prompt response to ensure the safety of the public?’ Only if it is not ‘reasonable’ to do so. How do you know if it’s reasonable? The agencies need to consult and consider the threat level – is it a remote side street or a busy main road; what’s the visibility – is it daytime or nighttime? What other demands are there – this tree may be posing a risk but some other event may be more pressing? What can be done to minimise the risk? Can someone be called upon to at least set up traffic warnings if it’s not possible to remove the tree?   What resources does the SES have? What does the roads authority have (the local roads authority may be much better equipped than the local SES)? What does the Local Emergency Management plan say?

Conclusion

If my analogy is correct, that the roads authority are the ‘combat agency’ for hazards on the road, then in an ‘all hazards, all agency’ response they can call on the SES as much as the SES can call on the roads authority to help with the response.   Whether it is reasonable for the SES to refer a job to the roads authority will depend on all the circumstances. In some circumstances it will be reasonable, in others it will be reasonable for the roads authority to ask the SES to deal with the matter.   There can be no definitive answer.