This question came to me by post, and it was really nice to receive a letter! To the question:
We own and manage a broad acre grazing property … in Victoria. We have concerns about fire laws regarding the use of privately owned fire fighting vehicles on land where the vehicle owner does not have a pecuniary interest (eg on a neighbour’s property).
In the state of Victoria the Country Fire Authority (CFA) has jurisdiction over a fire scene when the CFA has been called to attend and extinguish a fire. As such the CFA controls all traffic on the fire ground (except those with a pecuniary interest that are already ‘on scene’). The concern is that some reports form the last fire season indicate that he CFA has asked privately owned fire fighting appliance to leave the fire ground; I do not know the circumstances eg where the private units there after being asked for assistance from the property owners and/or where the privately owned appliances in a roadworthy state and were the operators wearing adequate personal protection equipment.
The question is, can a roadworthy and serviceable privately owned and operated fire unit (responding to a request for assistance) be forced to leave the fire ground upon arrival by the CFA or the Victoria Police acting on behalf of the CFA, against the wishes of the property owner.
Whilst the is question may see quite obscure, the potential eviction of privately owned fire fighting resources from the fire ground, may leave some that are in a position to offer assistance hesitant to attend. This well leave property owners more reliant upon the CFA that may or may not be able to respond to the incident.
As a follow up question I am also asked
What satisfied the pecuniary interest test? Eg would the following comply, renting or leasing property, agisting livestock or growing a crop on the property? What percentage of equity in a property would satisfy the law?
Leaving the fire ground
The main question is reminiscent of a question asked earlier about developing cooperative schemes to allow landowners to notify each other of fires in the area and to respond to assist their neighbours (see ‘Self help firefighting in Victoria’ (August 30, 2014)). As noted there the Chief Officer of the CFA may:
If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire … —
(i) order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route; and
(ii) in the event that the person fails or refuses to withdraw—remove the person or direct a member of a fire brigade or a police officer present at the fire to remove the person… (Country Fire Authority Act 1958 (Vic) s 30(1)(g)).
That is a general power of evacuation as it may be exercised if:
- the person is interfering with the operations of any brigade or group of brigades; or
- the person is in or on any land, building or premises that is burning or threatened by fire.
Section 31 is the section that requires the police to assist the Chief Officer but it says, at s 31(4) (emphasis added):
Nothing in this section or section 30 shall authorize the removal from any land building or premises of any person having any pecuniary interest therein or in any goods or valuables whatsoever thereon.
Presumably if a person is ‘interfering with the operations of any brigade or group of brigades’ they may be ordered to withdraw to a place where they are no longer an interference, but if they have a pecuniary interest in the property affected they can’t be ordered to withdraw to a place that is off the property.
Calling on the fire brigade is unlike calling the other emergency services. The State Emergency Service may be the lead agency in responding to damage caused by floods and storms, but if flood waters have run through, or a tree has fallen on my home I can chose to call the SES, or not. If I want to call on neighbours and between us we fix the problem so be it. Equally, if a friend or loved one has had an accident or sudden illness, I can choose to call for an ambulance, or drive them to hospital. Equally I can refuse offers of assistance from the ambulance service but not so the fire service.
Fire services are there to fight fires because they pose a threat to assets and values beyond those of the property owner. I can be left to deal with my own tree but if there is a fire burning on my property, it may spread and harm others and it is for that reason fire brigades may take action to extinguish a fire and can do so without consent. This obligation to act for the common good, not just personal interest, is reflected in the obligation on land holders, at least during a fire danger period, to notify the CFA if there is a fire that they are not able to extinguish (Country Fire Authority Act 1958 (Vic) s 34). Whilst the wishes of the land owner are something that should be considered and taken into account (see Entering private land to extinguish a fire in Melbourne (July 2, 2014)) they do not determine the nature of the fire brigade’s response so the fact that an direction to leave is ‘against the wishes of the property owner’ is, ultimately, irrelevant.
That does not mean the CFA will, or should direct people to leave. The whole focus of the National Strategy for Disaster Resilience is that we need resilient communities and if local land owners can respond to a fire on their property that can free up CFA resources to attend to other matters and protect other assets such as public assets or focus on saving lives under more direct or immediate or severe threat.
Further the Country Fire Authority Act anticipates that people will assist their brigades and anyone ‘who without remuneration or reward voluntarily engages in fire-fighting at any fire in … Victoria with a Victorian brigade’ and at the request of, or with the express or implied approval of the CFA’s Officer in Charge, is entitled to compensation if they are injured or killed in the course of their fire fighting (s 62). Such approval would be implied if the CFA officer in charge attends the property, observes the work of the local operators and everyone then works cooperatively.
The question was:
… can a roadworthy and serviceable privately owned and operated fire unit (responding to a request for assistance) be forced to leave the fire ground upon arrival by the CFA or the Victoria Police acting on behalf of the CFA, against the wishes of the property owner?
The answer is ‘Yes’; but that does not meant that such a direction must, or should, be given whenever there is fire burning on private land that is being fought by local a land holder with the assistance of friends and neighbours.
The follow up question – pecuniary interests
According to the Oxford dictionary, ‘pecuniary’ means ‘Relating to or consisting of money’. The use of the term in the Country Fire Authority Act does not appear to have been subject to judicial consideration, but the term ‘any direct or indirect pecuniary interest’ when used in the Local Government Act 1958 (Vic) has been. In Downward v Babbington  VR 872 Gowans J had to decide what ‘pecuniary interest’ meant. He said that a councillor would have a pecuniary interest in a matter ‘if the matter would if dealt with in a particular way, give rise to an expectation which is not too remote of a gain or loss of money by him’.
In Amadio Pty Ltd v Henderson  FCA 823, Northrop, Ryan and Merkel JJ in the Australian Federal Court referred to the decision in Downward v Babbington and also the decision in Attorney-General, ex rel Anka (Contractors) Pty Ltd v Legg (1979) 39 LGRA 399 where McLelland J suggested (at 402), ‘that another way of putting the matter was to say that ‘…there is a pecuniary interest if there is a reasonable likelihood or expectation of appreciable financial loss or gain’.’
Given those definitions I think it could be safely inferred that ‘renting or leasing property, agisting livestock or growing a crop on the property’ would all constitute a pecuniary interest.
Ownership of property is represented by a bundle of rights including the right to possession. That right can be transferred which is what happens in a lease, the owner still owns the land but the lessee has the right to use the land and to exclude all others, including the owner (subject of course to the terms of the lease). A person who is ‘renting or leasing’ the land (terms that I would suggest are synonymous) is paying money for the right to use the land. That is a proprietary right and the lessee will lose money (rent) if the property is not managed. The position is also clear if the purpose of renting it is to run a business, ie a farm (not just a residence) there is an expectation that the use of the land will result in a ‘gain’ in money terms. (But even so, a person who rents a residence in my view also has a pecuniary interest in that residence).
Crop growing is intended to lead to financial gain and expose the person to financial loss if the crops are ‘dealt with in a particular way’, such as being left to burn or not.
Agisting cattle may not be a pecuniary interest in the land, but s 30(4) refers to a pecuniary interest ‘in any goods or valuables whatsoever thereon’. In the law things that can be owned are either goods or land so cattle are ‘goods’. The ownership of cattle that is grazing on land is a pecuniary interest in goods that are on the land and so s 30(4) will apply.
How much is enough? The section refers to ‘any pecuniary interest’ (emphasis added) so as it says, any interest is sufficient.
For further relevant discussion see:
- ‘Self help firefighting in Victoria’ (August 30, 2014).
- Clearing up storm damage and the role of the property owner in NSW(August 18, 2014)).
- Entering private land to extinguish a fire in Melbourne(July 2, 2014);
- Paramedics forcing entry to premises(March 25, 2014);
- Victoria’s CFA and entering private property(October 24, 2013).
- Entering private land to fight a bushfire in NSW(June 16, 2013);
How trivial can pecuniary interest be? I saw your emphasis of “ANY”. For example, if you are in your own private vehicle on a neighbours property (with their implied or explicit permission), is that sufficient pecuniary interest to avoid being forced to leave?
That’s a good question and there is no clear answer; so the approach is to consider how might this arise. The issue will first arise when a CFA or police officer gives a direction to someone to leave and that person says ‘I don’t have to I have a pecuniary interest’ (or words to that effect). I expect most of the time the CFA and the police are unlikely to quibble and demand proof of that interest, the more likely response is ‘fine, stay and die if you want to, but we’re out of here’; or if they’ve been asked to move because they’re interfering with fire fighting it will be ‘I don’t care, get out of here or I’ll arrest you’. Next it ends up in a court if a person is charged with failing to comply with the direction or hindering police or the like or they’re suing on the basis that if they’d been allowed to stay they would have defended the asset that was lost. At that point a court has to consider the issue and this is my guess on how it might be approached (or the argument I would put to the court).
The point of s 31(4) is to allow people to stay and defend their own property. The critical issue is do you have an interest in that property but it has to be pecuniary, not say just sentimental, so the fact that you really like the old cottage on the corner isn’t enough. Now the section says (emphasis added) ‘Nothing in this section … shall authorize the removal … of any person having any pecuniary interest [in the property or land] or in any goods or valuables whatsoever thereon‘.
Now the private fire fighting appliance is a ‘good’ that is on the land and the owner has an interest in that; but the problem is easily solved as that ‘good’ can be easily removed. Compare that to cattle that is on the land, one can’t easily get them off in the face of a fire, so you want to stay and defend. Equally a person who is renting a farm house has an interest in all the property that they’ve put there and they can’t be ordered to evacuate as they should be able to stay and defend. So if I were a judge I think I would hold that the section is referring to items that can’t be easily removed with the person. So the crops in the ground form part of the land so the farmer who is cropping a neighbours land has an interest in the land, the cattle are goods on the land but the owner needs to be able, should they wish, to take steps to protect their assets particularly as we’ve noted before, the fire service isn’t really there for his interest so the CFA may set other priorities or leave for any reason. The property owner’s interests are in his or her property so they should be able to prioritise that interest if they want to. So if you can’t remove the asset, whether it’s cattle, farming equipment, household furniture etc, then I would think that means you can’t be ordered to withdraw. If, on the other hand, the only interest you are claiming is in an asset you can easily take with you, such as the vehicle which you arrived in, then I would hold that was not a sufficient interest to attract s 31(4): you can be told to withdraw and take that asset with you.