This is a complex question from NSW

I have a question about when brigades attend a grass or bush fire, they are to deal with that fire to mitigate fire activity. So I pose this scenario as the legalities.

A RFS brigade is responded to a fire and the fire is in a safe assessable area where the brigade can extinguish the fire and the emergency is over. They request permission from the paid duty officer to extend the fire to ‘tidy up the fire’, making it larger and possible environmental damage and do so.

The question is if permission is sought from the duty officer to extend the fire, to take out an area to reduce further future fire activity, would it be

1)         A permissible action by the duty officer to give permission to extend the fire and would it be legal?

2)         Be an illegal hazard reduction, due to the emergency not existing, that brigades are in attendance with no threat to people and property?

3)         Does the brigade officer have authority under the act to complete these extensions to the fire without authority of the duty officer?

4)         Should the Environment Protection Act also be encompassed in some sort of decision making process as to actually increasing the size of the fire?

I pose these questions as paid staff have made comment about extending fire as being illegal hazard reductions.

I’ll rephrase that question to make clear what I understand it is about as that will also make clear what questions I’m answering. What I infer from this is that in some circumstances the RFS will turn out to a bushfire and, rather than extinguish it, they’ll allow it to burn perhaps even adding ignition points, in order to take advantage of the unplanned fire to gain a hazard reduction benefit.  The question is, ‘is that legal?’

It is well understood that conducting a hazard reduction burn takes significant planning to ensure that firefighting resources in place to minimize the risk of escape, that the weather is favourable both to control the burn and to limit the risk to others from smoke and fire, that appropriate notices are served, that consideration is given to potential damage to the environment including important environmental assets such as habitats and water courses.   An unplanned fire, by definition, occurs but even so it can have a hazard reduction benefit by reducing fuel loads.   There is a concern that taking steps to fight every fire does lead to a build-up of fuel and creates a risk for later mega-fires.

Turning then to the questions and assumptions, above. The first thing to note is that the Rural Fires Act 1997 (NSW) does not say that the RFS is required to extinguish every fire it goes to.  One of the functions of the Rural Fire Service is to ‘provide rural fire services’ (s 9(1)). Rural Fire Services include ‘services for the prevention, mitigation and suppression of fires in rural fire districts’ (s 9(4)).   Supressing fires is a function of the RFS but not surprisingly the Act doesn’t say that they have to supress all fires, because if it did it would be setting them up to fail – they simply can’t extinguish all fires.   Services for ‘mitigation’ is also a function of the RFS and this covers hazard mitigation work (see Rural Fires Act 1997 (NSW) Part 4).

For bushfire hazard reduction work there generally needs to be in place a bushfire hazard reduction certificate (s 100D).  Further “Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of managed bush fire hazard reduction work carried out on land other than excluded land if: (a) the work is carried out in accordance with a bush fire risk management plan that applies to the land… (s 100C).   Further:

(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify:

(a) that a bush fire risk management plan applies to the land, and

(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and

(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.

The “certifying authority” for fire hazard reduction work to be carried out by the RFS is the Commissioner of the RFS (s 100E(2)).

It stands to reason that, except in the most bizarre set of circumstances, where there is an unplanned fire it will not be burning in accordance with the terms of any certificate or bushfire risk management plan, nor has the Commissioner of the Rural Fire Service taken into account the terms of any bush fire code applying to that land.

There are provisions that require that a person seeking to conduct a hazard reduction burn must have an appropriate bush fire hazard reduction certificate and must also give notice of the fire (s 86). During a declared bush fire danger period the person must also have a fire permit (s 87).  Neither s 86 nor 87 apply to the Rural Fire Service if it is lighting a fire for the purposes of ‘back burning’ (ss 86(2) and 87(2)).  Back burning “means the application of fire to combustible matter so as to provide a fire break to control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency” (s 4).

Discussion

Hazard reduction burns are dangerous.  Because of that there are extensive provisions in place regarding the development of plans and the issue of notices.  The complexity involved in their planning means that often areas that are the subject of a planned burn cannot be burned for a long time (see for example, the discussion in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 discussed in No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).   Taking advantage of a naturally occurring wildfire to obtain a hazard reduction benefit, without going through all that planning process must be an attractive option but it still carries risks to people, the property and the environment.

In my view the legality of the situation will really turn on the difference between ‘action’ and ‘omission’ and what is intended.   If the fire is simply allowed to burn, that can’t be an unlawful action as the RFS didn’t light the fire and they aren’t under an obligation to extinguish every fire.  This is an ‘act of omission’, in this case the RFS are simply doing nothing.    An authority is only liable for an act of omission if there was some legal duty to do something, and as noted the RFS Act doesn’t say that the RFS has to extinguish all fires and the common law has also found no duty to take positive action (see Liability for fire – a review of earlier posts (January 8, 2016)).  Merely allowing the fire to burn without regard to risks to others could well be negligent because of the unique position of the RFS as the control authority, the limited ability of people to step in and fight the fire if the RFS won’t and the RFS knowledge of the risks.  The RFS would have to think about the risk to lives, property, and the environment so there could be negligence if they simply allowed a fire to burn but I can’t see that it would be contrary to the legislation surrounding hazard reduction burns.

If the RFS adds to the fire that is by setting fire to fuel around the fire, that is take positive steps with the effect of ‘actually increasing the size of the fire’ that would seem to be a breach.   If they are setting fires for the purposes of hazard reduction they need to comply with all the relevant provisions, the mere fact that there is already a fire burning there does not change the obligation to plan for a hazard reduction burn.  There may be limited liability for failing to extinguish a fire, but liability for the escape of a fire that is deliberately lit is quite strict (see Burnie Port Authority v General Jones (1994) 179 CLR 520).   It follows that if the intention is to simply by pass the normal planning processes to take advantage of a naturally occurring wildfire by adding to that fire by further ignition, that would be inconsistent with the Rural Fires Act and the need for planning for hazard reduction burns.

If, on the other hand, the intention behind lighting the further fires is to back burn, that is to use fire to ‘control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire’ that is permissible.  The RFS then may set a defensive line at a convenient place and set fires there to stop the fire, and allow the fire to burn to that point with the added bonus that fuel hazards that in less benign conditions may cause a threat, are removed.

The question would really be one of ‘intent’; and that is actual motivation, not just claimed motivation.  Merely saying ‘it’s a back burn’ won’t determine the matter.  Further, ‘pretending’ to set a ‘back burn’ when really intending to take advantage of a hazard reduction opportunity is hardly acting ‘in good faith’ (s 128). To act in good faith is to act honestly.  If one honestly believes that the appropriate response to a fire is a ‘back burn’ and to allow the fire to burn to the area then that’s fine. If one honestly believes that the normal or routine response to the fire would be to take some other action, but if it’s allowed to burn there’s a hazard reduction benefit so a fire will be lit with the real motive of clearing fuel but with the stated motive of a ‘back burn’ that is not honest, and therefore not ‘in good faith’.

Conclusion

Without answering the specific questions asked, it is my view that where a fire is burning, an honest decision to set further ignition as a legitimate back burn, to control the fire, is lawful even if other firefighting options are also available.    Equally allowing the fire to burn rather than putting fire fighters ‘in harm’s way’ can be a legitimate decision.

A decision to set further fires simply to make the fire bigger and take advantage of the fire as a means of unplanned hazard reduction would be contrary to the provisions of the RFS Act.  It is unlawful to conduct hazard reduction burns without complying with the RFS Act and the presence of a naturally occurring fire in the area won’t change that.

A decision to simply let a fire burn, provided due consideration is given to protecting persons and property could well be lawful as it is up to the RFS to determine how it responds to fires.  If the fire did escape and cause damage to private property, a person may well be able to sue the RFS if it can be shown that the decisions were made were not a legitimate decision on how to approach the fire taking into account risk and benefit – that is if the decision to let the fire burn was so unreasonable that no fire authority would think it was a legitimate exercise of the discretion vested in the RFS (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 discussed in A Question on the ACT Emergency Services Authority Volunteer Charter (April 14, 2016)).