This question comes from a volunteer bush fire fighter in the Margaret River region of Western Australia. My correspondent says:
The Community Engagement department of our state fire agency encourages us to promote bush fire awareness to community members; as per “Prepare, Act, Survive”, this starts with “risk is your own responsibility and you shouldn’t rely on fire fighters for help”. This is alien to people from overseas and metro areas whose city landscapes were made fire-resistant generations ago, and who expect professional fire departments to deal with fires.
One obvious issue is that we can only “engage” after people have relocated, and it may then be physically, financially or, perhaps, legally impossible for them to achieve appropriate safety for themselves – we have estates of vulnerable elderly retirees and young fly-in, fly-out families in highly flammable bush blocks. In our land of “a fair go” and in an age where Consumer Protection is fairly advanced, it seems anomalous that no warning is given on advertisements promoting family homes in high-risk bush locations.
Does the U.S.A do any better?
Note: I did try, unsuccessfully, to interest the ACCC in this – quoting Bushfire CRC research,:
“..in many peri-urban places around Australia the growing mix of people and property with bushland creates the potential for disaster..” “..The results demonstrated that people have a heavy reliance on the Rural Fire Brigade to protect people and property during bush fire (93%). Those who may rely more heavily than others include those with an urban background, newcomers (<10 years),….” (FIRE NOTE, Bushfire CRC, Issue 9, November 2006, emphasis added).
The only specific question here is ‘Does the U.S.A do any better?’ and that I can’t answer but I’ll make general comments.
First the ACCC is in effect the ‘guardian’ of the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) (which replaced the Trade Practices Act 1974 (Cth)). As might be inferred by the name of the Act, the ACCC is concerned with competition and anti-competitive practices, and consumer rights and protection. The issues raised by my correspondent do not relate to ‘competition’ but ‘consumer protection’.
For the purposes of the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law (which is Schedule 2 of the Act) a consumer is a person who buys goods and services for less than the prescribed amount (currently $40 000). Land (or a house) is neither a ‘good’ (s 95A, definition of ‘goods’) and is likely to cost more than $40 000 so the sale and otherwise of land is not governed by the Act. It stands to reason that the ACCC are not interested in the matter; it is outside their area of authority or concern.
What then of others and who should issue a warning? In the absence of legislation we’ve all heard of the rule ‘caveat emptor’ – buyer beware. Depending on the jurisdiction a vendor has to make information about the property to the buyer (see http://advice.realestateview.com.au/buying/ultimate-first-home-buyers-guide/13/) but there is no compulsory disclosure in WA (see https://www.commerce.wa.gov.au/sites/default/files/atoms/files/salebyofferandacceptance.pdf).
When buying a house a purchaser should (but doesn’t have to) make inquiries of the local authorities. It is up to the prospective buyer to make their own enquiries when buying land to determine whether or not ‘factors affecting use and enjoyment of land’ have been recorded on the title (Transfer Of Land Act 1893 (WA) s 70A) and whether or not the property is in a designated bushfire prone area. It is also up to them to decide what they do with that information and if they seek advice on what they can do to reduce the risk of being impacted by bushfire. If they fail to do that, that is their own lookout.
There have been calls to increase the level of warning information given to households but equally it has been reported that there is some fear of liability for disclosing risk information. It is my view that fear is unfounded and I discuss that in some detail in a paper I wrote with John Handmer or RMIT – ‘Legal Issues and Information on Natural Hazards’ (2012) 17 Local Government Law Journal, 19-26.
Even if there is no legal liability there are political realities and so councils or state governments may face community backlash if they start giving stark warnings to potential buyers of fire risk or impose an obligation upon vendors to do so. And let us remember that even in fire prone areas, the risk of your home being consumed by bushfires remains small. I recently supervised a student who wrote a paper on why insurers don’t take a more active stance in encouraging people to take steps to prepare their property for bushfire. He found
Preliminary analysis of statistical data on natural disasters shows that from 1967 to 2010, fire has only accounted for approximately 8 per cent of total losses when normalised to 2011-dollar values.
McAneney, Chen and Pitman calculate that:
… the average annual probability of a random home on the urban–bushland interface being destroyed by a bushfire to be of the order of 1 in 6500, a factor 6.5 times lower than the ignition probability of a structural house fire. Thus on average and if this risk was perceived rationally, the incentive for individual homeowners to mitigate and reduce the bushfire danger even further is low. (http://www.bushfirecrc.com/sites/default/files/managed/resource/mcaneney-et-al-2009.pdf)
Governments have an interest in improving public safety but steps to do so, including requiring people or agencies to add a ‘warning … on advertisements promoting family homes in high-risk bush locations’ is not cost free. Governments would have to impose the obligation and then enforce it with no doubt political backlash; and given the real risk is it worth the grief? That is a political and not a legal question.
Conclusion
It’s not for me to say whether such warnings should be required, but I can say that under current law there is no obligation for warnings to be given when advertising a house for sale. Such a warning is not required by the Competition and Consumer Act 2010 (Cth), the common law or the Transfer Of Land Act 1893 (WA).
Australian Emergency Law 
In NSW, and probably other states, Bushfire prone land is shown on the S.149 property certificate which is provided at sale. This is a hazard map only not a risk rating, but like the notation on being flood prone it points out the issue. Like pest and building inspections it is your responsibility to research a property. Government can’t be expected to do everything for you – but the NSDR does focus a lot on the need to better communicate risk.
David, I’m not a conveyancer and certainly not a WA Conveyancer, so with that limitation as far as I can see there is no equivalent to the s 149 Certificate in the Planning and Development Act 2005 (WA). The Transfer of Lands Act details what is in to be a certificate of title. Section 70A says that where a local authority or public authority thinks a prospective purchaser should ‘be made aware of a factor affecting the use or enjoyment of the land’ they can apply to have notice put on the CT.
It’s up to local authorities to identify bushfire prone areas, develop maps and put in building controls. As I noted there is no mandatory vendor disclosure in WA so the Certificate of Title doesn’t have to be provided with the contract, so a purchaser should get that themselves at least to ensure that the vendor is the owner, but that will also notify them of anything recorded under s 70A; they should also make inquiries of the local authority regarding bushfire hazard but as I say, that’s up to them and not an obligation upon the vendor to tell them. Whether they make those inquiries and what they do with the information is a matter for the purchaser.
NSW leading again?
NSW certainly does have s.149, so to that extent it may be “leading” WA, however s.149 is still not a very satisfactory solution. The “bushfire-prone” maps produced in my council area in NSW are very simplistic – all houses within two properties of bushland are judged to be “bushfire-prone”. This has the unfortunate effect of reducing bushfire risk down solely to proximity to bushland. Obviously, however, many factors other than sheer distance are important in a bushfire. For example, wind direction. In my area winds on bushfire days come from the south west, like many areas in Australia. Thus, a house with bush to the south west may be in serious danger from a bushfire even though it is not in the “bushfire-prone” zone, while another property with bush only to the northeast may be in little danger even on a day of serious bushfire risk. The result is that many properties classified by Council as “bushfire-prone” have little prospect of ever exerperiencing one, but suffer a fall in house price as a result of the classification, while other houses which aren’t classed as “bushfire-prone”, but have bushland to the south west, albeit more than two properties away, are at much greater risk. Despite Council’s misleading maps of “bushfire-prone” areas, however, local home purchasers are more astute than council – house prices are lower for south west properties, and higher for north east properties, although other factors no doubt also come into play. The use of s.149 to notify bushfire risk to purchasers in NSW is better than nothing, but has serious flaws.