This question from a firefighter with the Metropolitan Fire Brigade in Melbourne and it raises an interesting issue that I hadn’t thought of before. Assume you are at home, having a bon fire. It’s all controlled and safe – can the MFB enter and put the fire out? This is how my correspondent put the question:
I am a professional firefighter in the MFB, Victoria. We regularly get called out to extinguish rubbish and other bonfires in people’s backyards. My questions is, what (if any) legal authority does a firefighter have to enter a private residence and extinguish such a fire, assuming the fire is safe and not causing harm to persons or property. This is obviously during a non fire ban period – as we can extinguish all fires during that period.
We understand that we have delegated powers of the Chief Fire Officer, which allow us to enter properties for various purposes – such as to check for fire hazards, use resources to extinguish a fire nearby and the like, but we are unsure of our actual legal footing if someone were to refuse entry, or not allow us to extinguish the fire if it is safe. Is it covered under environmental legislation, due to smoke, or does it come under the local council’s bylaws? If it is one of the latter, how are these powers transferred to the fire officer on the ground? Does it come down to the fire officer’s definition of what a safe fire is?
At present, we generally get by with the assumed authority that the organisation receives from the public – but we are keen to know what legal basis we have to extinguish otherwise safe fires/rubbish burn offs on private land.
The answer will lie in the Metropolitan Fire Brigades Act 1958 (Vic). That Act says in s 32B:
(2) On an alarm of fire being received by a unit, those members of the unit specified by the Chief Officer must, with the appliances and equipment specified by the Chief Officer, proceed with all practical speed to the scene of the alarm of fire.
(3) At the scene of an alarm of fire the senior member of the operational staff—
(a) shall endeavour by all practical means to have any fire suppressed and any person or property in jeopardy saved…
(c) may, for the purposes of dealing with any alarm of fire, cause—
(i) any land building structure vessel or vehicle to be entered upon or into (if necessary by force), taken possession of, shored up, pulled down, otherwise destroyed or removed;
There are things to be observed here. First s 32B(3)(c) give the power to enter to deal with ‘any alarm of fire’ not just ‘any fire’. This makes sense as the brigades have to have the power, having received an alarm of fire, to enter land etc to see if there is actually a fire. Imagine an automatic fire alarm has gone off, if they only had the power to enter to deal with a fire there would be a question of whether there is, or is not, a fire. Section 32B(3)(c) resolves that issue.
Section 32B(3)(a) says that the brigade shall ‘have any fire suppressed and any person or property in jeopardy saved …’ The phrase uses an ‘and’ that is they have to suppress the fire AND save persons and property. On one view that could suggest there is no power to deal with the fire unless persons or property are in jeopardy as they have to do both (hence the ‘and’) but I don’t think that’s a reasonable reading of the section. The section is listing things they can do and it would make no sense to use ‘or’ (that is they can deal with the fire or save the people). Rather the brigade is there to suppress the fire and save people and property that are in danger (if any) but I don’t think there is any reasonable way to read that as they may only to take steps to suppress the fire if there are also people and property in danger. In any event the fire must be burning fuel and the fuel will usually be the property of someone, so it’s almost axiomatic that any fire is posing a danger to property.
That reading would also make sense in that the fire brigades are established for the common, not private, good (Capital and Counties v Hampshire Council  QB 2004). They need to be able to enter property to deal with fire in order to protect neighbouring properties and they need the power to suppress a fire before it becomes a danger. They also need to be able to suppress a fire regardless of the wishes of the person who lit it.
So having been alerted to the fire the MFB must (and do) have the power to force their way onto the property to investigate if there is a fire and what if anything needs to be done to suppress it. They may (not must) take action to suppress the fire. One would hope that the fire they suppress is indeed a fire posing a threat (and not say, the fire burning safely in the fire place) but the Act doesn’t say that. There may be some reason why assistance is needed to extinguish a ‘safe’ fire and the fire brigades, being equipped with the equipment, have the authority to deal with it.
This raises the question why are they ‘regularly … called out to extinguish rubbish and other bonfires in people’s backyards … [even where the] fire is safe and not causing harm to persons or property’? Who calls them? If it’s the neighbours because they don’t like the smoke then the MFB presumably don’t want to get involved in sort of dispute but, to return to an earlier point, the MFB isn’t there for the individual but the common good. If the fire is posing a threat to people or property they can take steps to extinguish it. It may be a threat to people or property if it is being smoky or there are inadequate provisions to contain it.
If fire fighters do use force to enter the property, damage the property and extinguish a camp fire or bar b q fire that’s burning in a proper fireplace because of a complaint by a neighbour, there could not doubt be arguments that they are not acting in good faith to exercise their powers (as required to obtain legal protection under s 54A). Where however the fire officer thinks the fire should be extinguished because it is, or may, pose a danger to life or property, then she or he can take that action regardless of the property owner’s wishes.
In short, yes I do think it comes down to ‘the fire officer’s definition of what a safe fire is.’
For a similar discussion on issues raised in the context of rural fires in NSW see ‘Entering private land to fight a bushfire in NSW‘ (June 16, 2013).
Michael, I think that this is an interesting question that presents a real, practical problem to firefighters in Victoria (and no doubt beyond).
As your correspondent notes, fire calls to bonfires and burnoffs in people’s yards are a common occurrence. If a fire is assessed by the officer present to pose a danger to life or property, then it is common sense (and, as your analysis demonstrates, good law) that the fire service can extinguish it. However, outside a period of total fire ban, what should the brigade do if a fire is burning with the intent and under the control of the occupier of the land?
Neighbours may summon the fire brigade not because they really think a fire is a threat, but because they don’t like the fact that there is a party, because they don’t like the person whose fire it is, or perhaps because they are being inconvenienced by smoke.
I would argue that the proper construction of the Metropolitan Fire Brigades Act 1958 can’t be that the fire brigade simply has carte blanche to extinguish any fire on the land (I think btw there is a typo in your blog post – the brigade ‘shall’, which implies they must, endeavour to have any fire suppressed. Which suggests to me that ‘fire’ must have some sort of restricted meaning in that context). What about a wood burning stove? What about a gas fire? They are both fires.
If I am legally allowed to have a burnoff or other fire in my back yard, why should the fire brigade be able to come in and put it out just because my neighbour doesn’t like it? What if my neighbour doesn’t like my (legal) wood burning stove and calls it in as a ‘smell of smoke’? Can the brigade enter my house and extinguish that as well?
I suggest that applying the rules of statutory interpretation here, the courts would be likely to find that ‘fire’ in the MFB Act 1958 does not extent to a lawful, controlled fire that the legal occupier of the land wishes to keep burning. Which brings us back to your questioner’s point: is it enough that a fire is contravening local laws for the brigade to be allowed to put it out against the occupier’s wishes? In that case, do fire officers need to know what their local laws say about burnoffs? Or is this more a matter for local laws officers to deal with than for the fire brigade to determine?
And what if a fire is completely legal under local laws but the brigade extinguishes it anyway? How can it be reasonable for an officer to believe within the meaning of s54A that he is discharging a duty under the MFB Act, if he hasn’t taken the trouble to find out what local laws say?
In practice (and assuming that there isn’t a danger to life or property) perhaps a way round this for a fire officer who wants a fire out (and there’s always the option of leaving it once safety has been assured) would be to ask the occupier to extinguish the fire. If they co-operate, great. If they refuse, a call for police to attend and deal with the legal niceties might be a safer course than getting the hosereel off the truck.
These are great arguments and quite persuasive and I don’t think different to what I said, but it’s probably correct that fire has to have some limited meaning but trying to work out what that is, is problematic. True enough that even using my gas cook top is using a ‘fire’ and I don’t really think the MFB (or any fire brigade) can come in and turn it off. I’ll go through some of these points in order to see if that helps come to a conclusion.
We agree that ‘If a fire is assessed by the officer present to pose a danger to life or property, then it is common sense (and, as your analysis demonstrates, good law) that the fire service can extinguish it.’ There is a problem here in what is meant by ‘property’? If I have a pile of firewood that is ‘property’ (if it wasn’t it would not be an offence to steal it) so if my firewood is burning there is a threat to property but is that enough? One could think that the intention is to protect property that the owner wants protected but it has to be more than that as the brigade must be able to extinguish your farm house, where the fire is posing no threat to anyone’s property other than the owner, and where the fire has been deliberately lit. There is an offence of ‘arson’ (Crimes Act 1958 (Vic) s 197) but it only applies where the property belongs to ‘another or to himself and another’ ie where the person setting the fire doesn’t own the property or owns it with someone else, or where there is a fraudulent intent, ie an intention to claim on an insurance policy. A person who simply wants to get rid of an old farm house where they are the sole owner, doesn’t commit that offence but no doubt commits offences against planning laws and probably some Environment Protection Act. We’ll get back to the issue of law enforcement below.
In short, and without clear authority, I think the Brigade could turn out and extinguish the fire even if the owner did not want them to but perhaps not if they could show they had permission to demolish the house by fire.
As for being inconvenienced by smoke that may well be an example of safety. People can be affected by smoke and fires may have different levels of smoke. You may think in mid-winter a landowner can use fire to burn off a rubbish pile and their neighbours can’t complain about the smoke but what if the rubbish is a pile of tyres and the smoke is thick and toxic. Surely the brigade can put that out?
“What if my neighbour doesn’t like my (legal) wood burning stove and calls it in as a ‘smell of smoke’? Can the brigade enter my house and extinguish that as well?” Clearly the brigade can enter your house to investigate whether there is a fire and that’s essential, they have to be able to enter to explore a fire alarm, but, presumably, if they knock on the door and you get it open before they force the door you can convince them that their services are not required. So they can enter the house, but whether they can extinguish the fire we’re still not sure.
As noted this all brings us back to the question of what if the fire is breaking local laws? I think that’s relevant but it seems too much to expect a fire commander to actually know what those laws are particularly given that Australian fire brigades are all operated by the State, not local governments. If there’s a breach of local laws one would expect that the relevant law enforcement officer (a ranger) would direct that the fire be extinguished and if the person refused they might call upon the fire brigade to assist. If one doesn’t know what the local laws say, or state laws like the environmental protection laws, it’s hard to say that one’s actions were intended to enforce those laws. It’s not absolutely essential that the fire commander know the local law, in any court case the lawyers would find the law where that gives rise to a defence and we are all assumed to know the law (hence no knowledge of the law is no excuse) but it would be difficult to say one was acting in good faith in the performance of one’s duties by giving effect to a law you can’t identify.
As for asking ‘the occupier to extinguish the fire [and] … If they refuse, a call for police to attend and deal with the legal niceties might be a safer course’ the problem is the police have no more and perhaps less authority than the fire brigade. The police may be able to solve the issue using the moral suasion that comes with being a police officer in uniform but that’s not really a legal solution.
So if I come back to first principles, some of which are – the statute has to be interpreted using its natural words and considering the problem it’s meant to solve. Fire Brigade statutes give very broad powers to fire commanders to take actions generally in the community, not individual, interest. Fire officers are given immunity from actions taken in good faith in the performance of their duties – including a belief that what they are doing is required- which is relevant if they think a fire is illegal but it turns out it isn’t.
The purpose of the Metropolitan Fire Brigades Act 1958 (Vic) is to ‘to provide for fire safety, fire suppression and fire prevention services and emergency response services in the metropolitan district’ (s 2). The Metropolitan Fire and Emergency Services Board.is to ‘(a) provide for fire suppression and fire prevention services in the metropolitan district; and (b) to provide for emergency prevention and response services in the metropolitan district …’ (s 7).
‘Emergency’ has the same meaning as in section 3 of the Emergency Management Act 2013; that is
It is obvious that an out of control fire is a threat to people and the environment and that is not the issue. A fire that is contained and in control may be a threat to the environment (via smoke) and endangers the property that is burning. It seems silly to say, that a fire is damaging fire wood is damaging ‘property’ but what of a person who deliberately, but with no fraudulent intent sets fire to their house or car? Thinking about it I think you could safely say that such a fire has a real risk of spreading and a risk to the environment so that may be the key.
Without developing the argument fully it seems to me the critical issue can be summed up by the word ‘safe’; if the fire is ‘safe’ then it’s OK, it’s not safe if there is an unreasonable risk to people, other property or the environment. Focusing on ‘safety’ would be consistent with the purposes of the Brigade where the Acts talk of ‘threat’ and endangering ‘safety’. Focusing on ‘safety’ does not require detailed knowledge of local laws, and a fire may be lit in accordance with local laws and still be dangerous and need to be extinguished.
So I agree that ‘‘fire’ in the MFB Act 1958 does not extent to a lawful, controlled fire that the legal occupier of the land wishes to keep burning’ but the issue is not whether it’s lawful but whether it’s ‘safe’ and that brings us back to the original question – who decides whether it’s safe? Given the broad powers given to the MFB (and all brigades), the immunity for acts done in good faith, and provisions that damage done by a fire brigade are deemed to be damage by fire, then I think the answer is that it’s up to the IC to determine whether a fire is safe. If they honestly act to extinguish the fire because they think it’s unsafe, then they can do what they need to do. If they are not acting for that purpose, so they move to put the fire out as they don’t like the occupier, or they couldn’t be bothered arguing with the neighbour who doesn’t like the part – then they are not performing their functions under the Act which are all directed to ‘safety’ rather than neighbourhood dispute resolution. If the neighbour doesn’t like the smoke that may well be an event that ‘endangers or threatens to endanger the environment’ in which case putting the fire out is reasonable. Again the question will be one of ‘good faith’ is one’s honest purpose to achieve the objectives of the Brigade or some other purpose?
My original correspondent said ‘Does it come down to the fire officer’s definition of what a safe fire is?’ In my original answer I said that yes, I thought it does still come to that; I still think that is the case. If the fire officer honestly believes the fire is unsafe because it is a threat to people, property or the environment, then he or she can act to extinguish it. If it is not unsafe, it’s controlled, burning in a bar b q or fire place etc, with appropriate permits when required then it is hard to see that extinguishing it would be performing one’s duties under the Act. If it appears to be safe but there’s some question as to lawfulness then yes calling the local ranger, Environment Protection Authority or police may assist. .
Michael, thanks for your very comprehensive response. I think that we are in violent agreement as to the basic principle on extinguishing of fires here, which is if the fire isn’t, in the judgement of the fire officer present, safe, then the brigade is perfectly within its rights to put it out.
Where the fire is safe, but in contravention of local laws, then I wonder whether a court would find that it was lawful for the brigade to extinguish it (if the officer in charge so chose). On the one hand, the custodian of the fire couldn’t argue that it was something he had a right to. On the other, when it comes to interpreting statutes that interfere with individual property rights the court might lean in favour of the landowner’s being able to ask the brigade to leave once it was established that the fire was posing no danger (and in passing, I agree with you about the woodsmoke vs thick black smoke thing. It’s going to be a matter of fact and degree).
Quite often though, I think that the very presence of a fire officer asking you to put out a fire that you’re not supposed to have will be enough to get most people to voluntarily comply (which may not be quite the ‘assumed authority’ that your correspondent refers to, but is something similar). If the occupier was to object, though, I can see possible pitfalls for the brigade if they remain on the land and extinguish the fire – and the more so if it turns out that the fire was not forbidden by local laws.
Just a final thought on fuel – I agree with what you say about the person who decides to burn their own house or car. I’m fairly sure that a fire officer (especially in the MFB district!) could convincingly argue that such a fire posed an apparent danger to neighbouring properties or the environment (and for the legality of such a course lawyers may wish to refer to the mordant remarks of Light LCJ in the famous English case of R v Haddock). But if it’s some garden waste, or fuel intended for burning in a fireplace, I’m hesitant as to whether it is a natural use of language to say that an intentional fire is ‘jeopardising’ (or endangering or threatening) the fuel.
If a fire was safe but illegal, I’m sure a court (should the issue arise) would be able to use that to justify the action even if the fire officer couldn’t cite chapter and verse of the law at the time of the fire. That’s imaginative lawyering and is part of the reality that judges can look for legal justification to find the result they want. IF they think the fire officer was being officious and unreasonable they could hold that the mere fact there was a technical breach of a by law did not justify an invasion of private property; but if they thought the action was reasonable I’m sure they could find that the fact that there was a breach did justify the outcome.
I’m not familiar with R v Haddock (any citation?) but I agree it’s hard to say that burning of fuel that’s intended to be burned is threatening property but it is property. Perhaps a better view is that burning a car or house, even if the person setting the fire owns it and there is not threat to other people’s property, is a threat to the environment because of the material that is burning and therefore the content of any smoke, and a threat to the environment would be sufficient to justify taking action even in the face of the owner’s objection.
This discussion may be summarised as:
– Fire officers do have the legal ability to extinguish any unsafe fire they come across;
– As long as a Fire officer acts in good faith, that is they honestly believe they are acting to protect life, property or the environment from a threat posed by the fire, they should not be held liable;
– The Fire officer must take into account threats to life, property and the environment in his decision to extinguish or leave the fire burning.
My original correspondent sent these further comments via email:
These are my further thoughts:
What Paul and I have both agreed is that there has to be some context around the word ‘fire’ so you can’t just go and extinguish a safe and lawful fire. It is my view that the key issue is ‘safe’ – is the fire ‘safe’. The MFB Act refers to threats to property and people but it also says, as noted, that the Board is to provide ‘emergency prevention and response services’ and an emergency includes a threat to the environment. So the MFB can attend and extinguish a fire, the Act doesn’t say ‘an unsafe fire’ but I think that has to be read into the Act – what makes a fire unsafe is it’s threatening life or property and I would also say it’s threatening the environment because if its threatening the environment its creating an emergency and if its creating an emergency it can’t be safe. It’s all a bit ‘round about’ but that’s my thinking.
Indeed and that’s why I think ‘safe’ is the critical issue, not ‘lawful’. The fire you’ve just described isn’t ‘unlawful’ but it is unsafe and it’s in the public interest that the Brigade can extinguish the fire whether its in commercial or private premises.
That is true. Alarm of fire ‘means any call for assistance at a fire, accident, explosion or other emergency’ (Metropolitan Fire Brigades Act 1958 (Vic) s 32A). Further, ‘On an alarm of fire being received by a unit… [that unit must] proceed with all practical speed to the scene of the alarm of fire. (Metropolitan Fire Brigades Act 1958 (Vic) s 32B). On arrival the Brigade ‘may, for the purposes of dealing with any alarm of fire’ enter the premises. As I noted in my original post this makes sense to ensure that the Brigade can determine if there is a fire. But it doesn’t mean that having entered and discovered a fire burning, in a properly installed and maintained fire place, that you can just put the fire out. The Act would appear to say that – it says the Brigade ‘shall endeavour by all practical means to have any fire suppressed and any person or property in jeopardy saved’ but can it really mean any fire? It’s our interpretation that there must be some qualifier and the qualifier that I think applies is ‘safe’. If the fire is ‘safe’ you cannot extinguish it, if it is unsafe as it poses a threat to people, property (presumably property other than the firewood) or an environment then you can put it out regardless of the owner’s wishes.
R v Haddock is reported in Misleading Cases in the Common Law, London: Methuen, 1927. I think that the report is reproduced elsewhere on the internet, if you search for it.