That’s the heading of a story on news.com.au (see http://www.news.com.au/national/breaking-news/nsw-bushfires-spark-a-range-of-new-laws/story-e6frfku9-1226758830919) (and thank you to my colleague Ruth Townsend for bringing this to my attention).
According to this article:
PEOPLE living in bushfire-prone areas in NSW will be given more power to clear land around their homes under new rules to be introduced to state parliament.
Under the proposed changes, people in designated bushfire-prone areas will not need to get permission to clear trees, shrubs and other vegetation within prescribed distances of homes on their land.
“Our changes will ensure the rules regarding hazard reduction are based on protecting lives and property, and not satisfying a narrow Green agenda that seeks to put trees before people,” Premier Barry O’Farrell said on Wednesday.
As noted in my earlier post (see Damned if you do, damned if you don’t – what to do about personal hazard reduction) rules like this may be good for hazard reduction, but they may also lead to unintended consequences, such as denuding areas around homes that people actually enjoy. The balance to be struck is not always clear.
Following the 2009 Victorian Black Saturday fires, new land clearing rules were made. The rules provided, at clause 52.43, that:
Any requirement of a planning permit … does not apply to the following measures for bushfire protection:
• The removal, destruction or lopping of any vegetation within 10 metres of a building used for accommodation…
• The removal, destruction or lopping of any vegetation, except for trees, within 30 metres of a building used for accommodation…
In Nillumbik Shire Council v Potter [2010] VCAT 669 the Council sought direction from the Victorian Civil And Administrative Tribunal on whether or not there had to be evidence that the purpose of the land clearing was for bushfire protection. In that case Council were concerned that
… it is witnessing a growing number of situations where tree removal is occurring on land in urban areas of the municipality with the justification that clause 52.43 allows for such actions without a planning permit, even though most of the landowners in question have confirmed that the primary purpose for removing the vegetation is not for fire protection or prevention, but instead for a development advantage, whilst admitting that the risk of a bushfire to their property is exceedingly unlikely. An extreme example given by council is the potential of removal of a large old oak tree, which is protected under the Heritage Overlay and requires a permit for removal under clause 43.01-1 of the planning scheme. The risk of its removal arises because the tree is located within 4 metres of a boundary and there is nothing in clause 52.43 that distinguishes a permit requirement to remove a tree under the Heritage Overlay from a permit for vegetation removal under any other provision of the planning scheme.
The Tribunal found that even though the objective of the rule was to provide bushfire protection, there was no need for a landowner to prove that was in fact their purpose. If the landowner had to somehow prove their motive, eg by applying to council, that would defeat the very purpose of the amended rule, that is to allow clearing without a permit. Deputy President Gibson said, at [23]-[24]:
On one view, it may be perceived that the balance has tipped too far and that landowners are exploiting the exemptions in clause 52.43 for purposes unrelated to bushfire protection. This may well be to the detriment of the environment and may well be compromising the integrity of the Significant Landscape Overlay and other policies and provisions in the Nillumbik Planning Scheme, as submitted by the council…
However, notwithstanding there are situations where trees are being removed to gain a development advantage and not for bushfire protection, I do not consider the provisions of clause 52.43 can be interpreted to require proof of subjective intent by landowners who remove vegetation under the exemptions in the clause…
We don’t yet know what the laws proposed for NSW will say, but it is likely that similar unintended consequences will follow.
The news.com.au article goes on to say
The government will also introduce laws this week to give the Rural Fire Service (RFS) the power to carry out hazard reduction without the consent of landowners when attempts to contact them have failed.
Under the Rural Fires Act a hazard management officer can enter land and conduct hazard reduction work where the landowner has failed to comply with a hazard reduction notice that has been served (see ss 69 and 70). The problem is that the notice must be given notice (s 69) so the problem will arise if they are not able to locate the owner to deliver the notice. Presumably the new law will have some alternative mode of service (eg posting to the address, or putting the notice on the door) and then allow action even if there is no proof the notice has been received.
The news story then says “Anyone caught impersonating an emergency worker will also face tougher penalties …” It is already an offence to impersonate an emergency services organisation officer, punishable by a maximum fine of $5500 (State Emergency and Rescue Management Act 1989 (NSW) s 63B). An emergency services organisation officer is “an employee, member, volunteer or any other person who exercises functions on behalf of … Fire and Rescue NSW, Rural Fire Brigades, Ambulance Service of NSW, State Emergency Service, Volunteer Rescue Association or any other agency which manages or controls an accredited rescue unit” (s 63B(4) (definition of ’emergency services organisation officer’) and s 3 (definition of ’emergency services organisation’)).
Finally we’re told that the Mayor of the Blue Mountains’ major concern is
… that the clean-up is taking too long…
“In Tasmania, within eight days of their fires … the government sent in the contractors and started clearing those blocks.
It’s not clear, in these days of ‘resilient communities’ and ‘shared responsibility’ why it’s the government’s job to send in contractors to clear housing blocks – it would seem that is the responsibility of the owners and if they are insured, their insurers. And if it is a government function, why is not a local government function given that it is the Blue Mountains City Council that runs the relevant waste management facility (see http://www.bmcc.nsw.gov.au/yourcommunity/wastemanagement). In which case, one would ask the Mayor, “what government is meant to send in the contractors, and if it’s up to government, why isn’t your government doing it?”
Australian Emergency Law 
Micheal
A couple of matters:
“Presumably the new law will have some alternative mode of service (eg posting to the address, or putting the notice on the door) and then allow action even if there is no proof the notice has been received.”
There is no need to provide an alternative mode of service. Most Acts it is sufficient to serve the document to the owner at “the last known address”. As the property owner pays rates, the address on file for the rates notice will be sufficient.
On this matter:
“It’s not clear, in these days of ‘resilient communities’ and ‘shared responsibility’ why it’s the government’s job to send in contractors to clear housing blocks – it would seem that is the responsibility of the owners and if they are insured, their insurers.”
In WA under the Bushfire Act 1954 a local government can send a contractor on to a property for the purpose of clearing during gazetted bush fire season in non compliance with the Notice and recover the costs from the property owner, without permission of the owner.
An inner council where I was appointed as Fire Control Officer sent out notices with the rates notice and had the conditions printed on the back of the notice. After I inspected the property and it was non compliant, I would issue a modified penalty notice then give the particulars to the authorized contractor to perform the work. After receiving the account from the authorized contractor forward on the account to the property owner. There was a zero tolerance policy which was effective but unpopular.
It should be noted that the Council placed public notices in the major daily paper and the local paper as well as the council website in relation to the gazetted period. The town also commenced the period a month early to ensure adequate time for clearing and maintenance.
On the issue of a heritage listed tree or property, i inspected a vacant property on complaint which was non compliant. Upon investigation the property required clearing and the wooden house was empty and in an unsafe manner due to various reasons including criminal damage and theft. The floor boards were all removed, windows damaged, rubbish strewn and evidence of drug usage was found.
I contacted my senior as the manager was unavailable and informed him that the premises were unsafe and was fire prone plus there were reports of anti social behaviour (a side issue). I sought to have a demolition order raised for the property.
My request was met with strong opposition as the CEO was active in keeping so called “heritage” style buildings within the community. For the record this LGA was an inner city district, not a regional rural area. However, the law was applied to ensure the council’s compliance with the Act.
What I am saying, is that there is no excuse to be non compliant with an order due to ignorance (as the defence of not being notified) and local government has the authority to make the property compliant and pursue the owner for costs and prosecution for refusal to or non compliance by other means.
After every catastrophic fires the community expects the government of any tier to not only respond to the emergency, but to make stronger laws to prevent another situation of similar magnitude. We should be grateful only 3 lives were lost this time.
It’s true that most provisions do provide for alternative service, but the Rural Fires Act does not say that service by post is sufficient. There are probably applicable provisions in the Local Government Act or somewhere but I haven’t been able to track that down. I do recall acting for a council seeking to prosecute a property owner for failing to comply with a notice to clean up their property. The Court was not satisfied that the notice had been brought to the attention to the owner even though my client had served it by registered post. The officer from the Post Office confirmed that anyone resident at the house could sign for the letter, not just the addressee – and we lost that one! I’m sure that the government, with these reforms (having not yet seen the Bill) will be seeking to add some relevant alternative service provisions in the Rural Fires Act.
There’s a difference between sending people in to clear hazards during a bushfire season and sending contractors to clear up after a house has been destroyed. As I’ve noted a hazard management officer can take action to reduce a hazard if the owner has not complied with a notice that has been ‘given’ to the owner/occupier. The reference to the government sending bulldozers to clear the blocks was not however a reference to hazard reduction but clearing the blocks were homes have been lost – and that is quite a different issue.
As far as the heritage tree goes, and being compliant, the issue there is that ‘to be compliant’ requires that the tree be not removed; but the hazard reduction rules allowed it to be cleared without getting permission or any assessment of the risk it may have posed with the value of the tree. Keeping heritage buildings is also an important consideration.
It appears to be true that “After every catastrophic fires the community expects the government of any tier to not only respond to the emergency, but to make stronger laws to prevent another situation of similar magnitude” but what that means is that other important considerations are swept away but the pendulum swings over time. But there has to be a limit, we cannot simply let everyone do whatever they think is necessary for hazard reduction (imagine someone deciding that they need to do a hazard reduction burn and setting fire to a community, or taking out truly unique assets) and the logical extreme is for example to concrete the blue mountains – they’d never burn but it would be a tragedy. Protecting a community from fires is but one of competing priorities.
In relation to you losing the matter with a local government authority, I find that Australia Post would be held responsible as well.
The LGA when sending any mail registered should request that the “registered letter” be what is known as “carded”. This means for an additional fee a receipt or “card” is obtained and returned to the sender. This then is added to the file as evidence of service.
I had a similar issue a couple of years back for service of a “request to provide documentation” where the person of interest was taking evasive tactics to avoid my contact over a dog attack complaint. This was in a regional town.
I wrote to the POI and requested that the Shire Customer Service Officer (who was responsible for the outwards correspondence) send the letter “registered and carded” She took it on her own initiative to send the by normal mail citing that “the cost isn’t necessary and it would get there tomorrow anyway” (Words to that effect)
She was informed in no uncertain terms and quite bluntly that she had jeopardized my investigation and I needed proof of service by mail. I had to resend the letter and took it myself to the post office and relayed my request in person to the PO manager with the instructions to notify me directly if delivery was refused (which at first it was).
Recently in another shire there was a Health Act Local Laws issue over dead animals that the POI also was subject to a police matter. No one wanted to go near the person due to his unstable behaviour.
The Community and Regulatory Services Manager (who has never dealt with this issue before) did not know how to approach the matter. I drafted a letter outlining the offence under the local laws and had the letter send “registered and carded” . It letter was signed for and the proof of service was returned to the Shire. The POI did comply with the request. We did not need to enter the property and remove the carcasses by forcible means.
In communities where a notice needs to be served on an indigenous person on a community where no mail delivery can be made directly to an individual, i would serve the notice in person or by local police. If no one was home or the identity of the person who was willing to take the notice was not proven (in many cases) being a family member or only a minor was home, I would post the notice on the front door of the residence securely and photograph the notice on the door, then make a statement to that effect.
I could prove on all occasions that every conceivable effort was made to in the service of such notice. i know it appears time consuming and overkill, but it does negate any defence in not receiving the notice other than Australia Post’s well known incompetence.
On the comment in relation to the “concrete the Blue Mountains” matters do need to have a balance I agree, but more stringent building practices and fire prevention measures can be legislated that will balance the swing of the pendulum rather than the scythe by the next fire. it is only a matter of time