I have been asked to comment on a situation described as
“Council, in NSW, is encouraging bush regeneration with the effect that bush growing on 9 hectares of Council managed Crown Land, that is contiguous with a National Park, is encroaching onto a narrow residential two lane roadway that separates 12 properties from the Council land. The bushland canopy is now, in places, extending across the road to within16 meters from homes that are now identified as being within the ‘flame zone’ of any potential bushfire and therefore at a very high risk. A complaint was made to the Rural Fire Service who required a 25 meter asset protection zone but this has not been enforced against council, ie the council has not been required to maintain this gap.”
I am of course unable to comment on the good faith, or otherwise of the parties involved, nor on any of the actual decisions as to whether there is, or is not, a significant Bushfire risk. I can comment on the law in general terms. Although the Environmental Planning and Assessment Act 1979 (NSW) and the Local Government Act 1993 (NSW) appear to have some relevance here, the critical Act is the Rural Fires Act 1997 (NSW).
Under that Act, it is the duty of land owners and any public authority (which would include a council) that manages land to take steps ‘to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire’ from their land. The steps they have to take are any ‘practicable steps’ as well any steps that they have been directed to take by the Bush Fire Co-ordinating Committee (established by s 46) or that are prescribed in ‘a bush fire risk management plan applying to the land’ (Rural Fires Act 1997 (NSW) s 63).
Where the Commissioner of the Rural Fire Service is of the view that a land owner or the responsible public authority:
- has not taken the fire mitigation steps that are required by the relevant bush fire management plan;
- has not taken other reasonable steps to mitigate the bushfire risk as required by s 63; or
- has failed to comply with the Commissioners order under s 74E (discussed below);
then the Commissioner can enter onto the land, perform the bushfire mitigation work and bill the land owner or public authority for that work (Rural Fires Act 1997 (NSW) s 73).
The Rural Fire Service, and others, can do hazard reduction work on ‘unoccupied Crown land and managed land’ (Rural Fires Act 1997 (NSW) s 65) which includes National Parks but not necessarily land owned or managed by a council (Rural Fires Act 1997 (NSW) Dictionary – definition of ‘managed land’).
A member of the Rural Fire Service appointed as a ‘hazard management officer’ (under s 65A) can give directions to a private land owner, but not to a ‘public authority’ (including a council) to require them to ‘carry out bush fire hazard reduction work’ (Rural Fires Act 1997 (NSW) s 66). This makes sense and reflects the fact that local government is indeed part of the elected governance arrangements. It would indeed be ‘odd’ if an appointed public servant, or volunteer, could ‘direct’ an elected and perhaps very substantial local authority on what they had to do with inevitable implications for that authorities budget and other priorities. A hazard management officer is different to the high level, representative Bush Fire Co-ordinating Committee or the Commissioner who can impose binding obligations (Rural Fires Act 1997 (NSW) s 63 and see below).
Finally a person who believes that there is a bush fire risk, caused by a failure of a land owner or public authority to carry out bushfire mitigation work, may complaint to the Commissioner of the Rural FIre Service (Rural Fires Act 1997 (NSW) s 74A). Where the complaint is about land managed by a public authority it is sent directly to the Commissioner; in all other cases the complaint is made to the relevant council (Rural Fires Act 1997 (NSW) s 74C). The Commissioner must investigate the complaint in whatever way he or she sees fit. He or she ‘may decline to deal with a complaint, or dismiss a complaint’ if he or she is of the opinion that the complaint is ‘vexatious, misconceived, frivolous or lacking in substance’ (Rural Fires Act 1997 (NSW) s 74D).
If, after investigation, the Commissioner is satisfied that there is a risk and the risk is due to a failure by a local authority to meet the obligations imposed by s 63, the Commissioner can order the Authority to undertake hazard mitigation work and if the Authority does not, within a reasonable time, do that work then the Commissioner can arrange to do the work and can charge the Authority for the costs (Rural Fires Act 1997 (NSW) ss 73 and 74E).
That may it all look simple; if the councils actions have increased the fire risk, complain to council pointing out their duty to mitigate risk, and if that fails to produce action, complain to the Commissioner who will determine what is to be done and order Council to do it. There is however much room for a difference of opinion on these matters. A property owner may think that the actions of the council have created an ‘unreasonable’ risk, the council may not agree. They may think they have taken all practicable steps, the neighbour may not agree. The complaint may be made to the Commissioner who may also not agree that there is a risk. Or the Commissioner may agree but be persuaded that orders are not appropriate given the relative risk or limits on the council’s resources. Even if orders are made they may not be enforced because, like all law enforcers, the Rural Fire Service has to decide where and when to allocate it’s resources. Just because the Act provides for these processes they will not guarantee that the result will be as the complainant wants it to be.
In terms of legal liability should a fire occur, that may be established if it can be shown for example that a council failed to take action required by the Commissioner but you could not sue the Commissioner for not taking action, nor the Council for not taking action, unless you could show that their decision was so unreasonable that no prudent or reasonable authority would believe that the Commissioner or Council was trying perform their obligations under the Act (Civil Liability Act 2002 (NSW) s 43). There are other ways to force a council or the Commissioner to perform their functions under the Act, this is by way of a Supreme Court action to review their decision making processes and to obtain an order to require them to perform their duty under the Act. This necessarily requires proof of a failure to consider their duty not merely an assertion that the decision made is the wrong decision. The courts understand that legislation imposes obligations, and discretion, on agencies such as councils and the Commissioner so just because it is arguable that they should have made another decision, it does not follow that they have not honestly attempted to perform their duties under an Act.
In terms of ‘good faith’ one should remember the wisdom that if a poor decision can be explained by malicious bad faith and conspiracy, or sheer incompetence, it’s nearly always incompetence. If there really are suggestions of ‘bad faith’ then the appropriate remedy is to complain to the ombudsman, the Independent Commission Against Corruption or the Department of Local Government. A complaint cannot just be ‘no one in their right mind would have made the same decision so it must be bad faith’ but would need to give at least some evidence of ‘bad faith’.
Michael Eburn.
Australian Emergency Law 
Hi Michael,
This post has been of great interest to me as I am a council employee in charge of Bushfire management of council land.
I totally agree with your interpretation of the act but the RFS don’t follow the same procedures in the way you have described them above.
The Rural fires Act does under Sec 14, allow the Commissioner may delegate to any member of the Service any of the Commissioner’s functions under this Act
Therefore if a member of the public has a complaint about council land the complaint automatically gets inspected generally by a mitigation officer who may or may not make requirements for council to complete works, even though a mitigation officer is specifically not permitted to. The RFS can simply get around this by sending out the mitigation officer and having the Zone Manager send the request to council to complete works on behalf of the commissioner.
You will find this is how most if not all fire districts and council’s work.
Would you agree that Sec 14 does allow an officer within the RFS to instruct council to do works?
Section 14(1) says “The Commissioner may delegate to any member of the Service any of the Commissioner’s functions under this Act, other than this power of delegation.”
Section 66(1) allows a hazard management officer to “… require the owner or occupier (not being a public authority) of any land to carry out bush fire hazard reduction work specified in the notice on the land.” A public authority includes “any public or local authority constituted by or under an Act other than this Act” which must include a local council constituted under the Local Government Act 1993 (NSW). So a hazard management officer cannot require a local council to perform the relevant work.
The Commissioner however, can. The Commissioner’s powers are subject to more detailed procedural requirements. First it appears that a complaint must be made under Division 2A (ss 74A-74F). The complaint must be investigated (s 74D). If the Commissioner is satisfied that, either
a) a public authority has failed to take notified steps, or
b) otherwise perform a duty imposed on by s 63
Then the Commissioner may require the authority to carry out bush fire hazard reduction work specified by the Commissioner and may, if the work is not carried out in the specified time, enter the land to conduct the hazard reduction work (s 74E).
So does s 14 ‘allow an officer within the RFS to instruct council to do works?’ In my view it does.
A hazard management officer acting under s 66(1) can act on their own initiative to give effect to a bush fire risk management plan or to reduce hazards that he or she has observed. He or she cannot direct a Council.
The Commissioner can delegate his or her powers under Division 2 to another officer (s 14). If that officer is exercising the Commissioner’s powers he or she must also comply with the procedural requirements set out in that Division. So when a complaint is made the Commissioner’s delegate would have to arrange to have that investigated and then be satisfied that the criteria in s 74E are met and then he or she can issue the relevant notice.
Assume for the sake of the argument, that the Commissioner delegates his or her power to someone who is already appointed as a hazard management officer (s 65A). That does not allow the hazard management officer to simply ignore the provision in s 66(1) that would stop him or her serving a notice on a council. Rather if he or she wants to issue a notice to a council he or she has to follow the procedures in Division 2; but if that is done then the notice can be served exercising the Commissioner’s powers.