This question comes from NSW
Does the [NSW] RFS have authority to enter private property for a planned hazard reduction burn on another property without the permission of the landowner? Also are RFS able to plan and conduct a planned hazard reduction burn on a property without the permission of the landowner? This is would be because they are doing a burn on the neighbour’s property and want to extend the burn.
The answer has to be ‘no’.
Let us consider the authority of an RFS officer (I’m not going to go through the steps about how officers receive delegated authority from the Commissioner, I’ll assume that in this discussion we’re talking about duly authorised officers). First s 22 says (emphasis added):
An officer of a rural fire brigade … may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:
(a) exercise any function conferred on the officer by or under this Act, or
(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.
The Rural Fires Act 1997 (NSW) the gives members of the RFS specific power to enter private land in a number of circumstances. For example:
- “An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act” (s 23);
- “An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things…
(c) destroy or remove or cause to be destroyed or removed any living or dead vegetation on any land,
(d) establish fire breaks on any land or cause fire breaks to be established on any land (s 25);
- “The Commissioner may enter and inspect any land for the purposes of investigating the cause or origin of any fire that has occurred on that land or any adjacent land, but only for a period of up to 24 hours after the fire has been put out” (s 33B).
- Bushfire prevention is dealt with in Part 4 of the Act. That part provides that a landowner can be served with a notice requiring them to reduce the fire hazard on their property (s 66). In order to decide whether or not to issue a notice or to see if a notice has been complied with:
A hazard management officer may … enter during the daytime any part of the land (other than a dwelling-house) that it is necessary to inspect in order to form that opinion (s 69).
- If “the owner or occupier … fails to comply with any requirement of the notice, the Commissioner may … enter on the land and carry out the bush fire hazard reduction work the owner or occupier was required to do under the notice” (s 70(2)).
- “It is the duty of the owner or occupier of land to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land” (s 63). If a landowner fails to do that then the Commissioner may carry out that bush fire hazard reduction work (s 73) on land.
We can rule some of these out as clearly not relevant eg s 33B relating to investigating the cause of the fire. The other provisions fall into one of two categories – responding to fire (firefighting) and hazard reduction.
The first category is ss 23 and 25. One could argue that as it is a function of the RFS to take steps for the ‘prevention, mitigation and suppression of fires in rural fire districts’ (s 9) then undertaking hazard mitigation work is performing a function ‘conferred on the officer by or under this Act’ (s 22) which, in turn, allows entry to land. The problem with that argument is the general power (s 22) is limited to ‘suppressing a fire’ or ‘an existing or imminent danger arising out of a fire’. One could then argue that a build-up of vegetation gives rise to ‘an existing or imminent danger’ but that arguments been tried, and lost.
In Lobsey v Care (1983) 1 M.V.R. 1 private landowners were conducting a hazard reduction burn along the side of the road. They were burning off vegetation that was on land owned by council but that was between the road and their private land. A driver came around a corner and drove into the flames from the burn off. The driver ran into a car travelling in the opposite direction. One person was killed and two were injured. One of the landowners was also a landowners was also the captain of the local bushfire brigade. He relied on ss 22 and 48 of the Bushfires Act 1949 (NSW). Like the current Rural Fires Act, these sections granted various powers to brigade captain to take action to protect life and property against ‘any existing or imminent bushfire danger’. The NSW Supreme Court held that the phrase ‘existing or imminent’ qualified the term ‘bushfire’ rather than ‘danger’; that is it had to be the bushfire that was existing or imminent, not the danger. In the same way the current Act refers to ‘an existing or imminent danger arising out of a fire’ it has to be a fire that is posing the danger, not the mere potential of fire.
President Moffit (ie President or Chief Judge of the Court of Appeal) held that the wide powers granted had to be narrowly interpreted and brigade captains couldn’t exercise powers to enter and build fire breaks or destroy property because of a real danger that a fire may occur; there had to be a risk from a fire actually occurring. He said the powers granted to captains were limited to case of extreme emergency ‘where the bushfire brigades will have to make decisions in the agony of an immediate peril to people and homes, so that bona fides is the sole restraining force in decisions which may result in the destruction of the property of others without compensation or other redress.” Hazard reduction burns, were outside the terms of both s 22 and s 48.
Justice Priestly (with whom Justice Samuels) agreed, referred to the evidence of that there was no urgency or imminent danger at the time they chose to light the fire that is they could have had their pick of days in which to burn. They were taking action against a possible future, not imminent, threat.
Whilst that is a different Act it is my view the interpretation would be the same. Sections 22, 23 and 25 are related to firefighting when a fire is actually burning and threatening lives or property. They do not apply to hazard reduction burns. That argument is further supported by the fact that there are specific provisions relating to hazard reduction burns. If the general powers in ss 22 and 23 were intended to apply to hazard reduction, Part 4 would not be necessary. Part 4 sets up quite a difference scheme. These are not matters of urgency, notices have to be served, time given to allow people to comply and then further notice of an intention to enter the premises and then, and only then, can the RFS enter the premises to conduct the hazard reduction work.
Let me go back to the question. And I’ll break it down a bit.
Q: Can the RFS enter private property for a planned hazard reduction burn?
Yes, but only if the landowner has been given a notice (s 66) requiring him or her to undertake hazard reduction activity and they haven’t complied with that notice.
Q: Can the RFS enter private property for a planned hazard reduction burn on another property without the permission of the landowner?
No, there is no power to do that. Private property is private property. I don’t have to allow the RFS access to my property in order to do something for the benefit of my neighbour. Lord Denning (an English law lord) said in Southam v Smout  1 QB 308 at 320.
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.” So be it—unless he has justification by law.
That’s a great quote, and not quite on point as it’s about entering the house rather than the land around it, but the principle is the same. The RFS can’t enter private property without lawful justification any more than the King of England can – so without lawful authority you can’t enter one person’s property because it makes it easier to perform a function on another person’s property.
Q: Is the RFS able to plan and conduct a planned hazard reduction burn on a property without the permission of the landowner? This is would be because they are doing a burn on the neighbour’s property and want to extend the burn.
Again, no. The RFS could, if for example, it was thought necessary to do a burn on one property and that the hazard cross the border onto the neighbour’s property. In that case the RFS would have to ask the neighbour if they could do the burn, but if permission was refused they would have to comply with the provisions in the Act. That is the landowner would have to be given notice of steps that they are required to take ‘to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land’ (ss 63 and 66), they would have to be given time to comply with those directions or notice, there would have to be notice of an intention to enter the land to complete the hazard reduction work (ss 70 and 73). It’s certainly not permissible to decide that the burn being done on one property would be more effective it if was extended to a neighbouring property and so enter that neighbouring property to conduct that burn.