A correspondent writes:

I am with the NSWRFS. We recently attended a pile burn during the fire danger period. The resident had a constant water supply and was burning naturally fallen materials. The fire was under constant supervision all within accordance with legislation. The resident however did not notify the RFS or his neighbours as required. I made the decision, along with another ranking officer in attendance that the fire itself was safe, we obtained details of the landholder as we are instructed to do and then left.

As we were leaving we were instructed by the FCO to return and extinguish the fire due to it being an illegal fire within the statutory bushfire danger period.

My questions are:

1)        What are our legislative requirements around this? Do we have to extinguish if we (the officers) made the determination that the fire was safe; and

2)        Do we have the power to demand the details of the landholder if we (the people in attendance at said fire) do not intend on issuing a penalty notice for the ‘illegal fire’.

For a related discussion, see Entering private land to extinguish a fire in Melbourne (July 2, 2014).

Any person:

… who lights a fire on land:

(a) for the purpose of land clearance or for burning any fire break, or

(b) in circumstances in which doing so would be likely to be dangerous to any building,

is guilty of an offence unless the person has given notice in accordance with the regulations to the persons prescribed by the regulations (Rural Fires Act 1997 (NSW) s 86(1)).

The notice required to comply with s 86 must include

… particulars of:

(a) the name of the person proposing to light the fire, and

(b) the location, purpose, period and time of the fire proposed to be lit.

The notice must be given to the occupiers of neighbouring land and the officer in charge of the relevant rural or urban fire brigade (Rural Fires Regulation 2013 (NSW) r 33).

Further, if the fire is to be lit during a bush fire danger period the fire must be authorised by a fire permit and the person lighting the fire must comply with the conditions of that permit (s 87).

My correspondent says that the fire in question complied with requirements other than the requirement to give notice under s 86.

Let me now turn to the questions: Do we have to extinguish if we (the officers) made the determination that the fire was safe?

It is the function of the NSW Rural Fire Service ‘to provide rural fire services for New South Wales’ (s9(1)(a)).   Rural fire services include:

(a) services for the … suppression of fires in rural fire districts,

(b) the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts,

(b1) the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from destruction or damage arising from fires in rural fire districts,

But it can’t be the function of the RFS to suppress all fires.   Where a fire is not posing a threat to ‘persons’, ‘property’, ‘infrastructure’ or ‘economic, cultural, agricultural and community assets’ then there is no need for ‘protection’.   Not all fires need however to be suppressed. If a fire brigade is called to a fire that is being properly monitored, has appropriate permits etc then it would be quite wrong to extinguish it.

Fires that have been lit contrary to law, even if the breach is about notice, then there may be good reason to extinguish it. First the legislature has intended that the law as written will be complied with. The obligation to give notice to neighbours is to allow them to prepare their property, whether it is making decisions not to put clothing on the line or to make sure they monitor the neighbour’s fire and have in place fire fighting resources. To allow the fire to burn even though notice has not been given is to fail to recognise the rights of the neighbours and the obligations of the land owner.   I don’t think we can say that this gives rise to a legal ‘obligation’ to extinguish the fire but it must certainly give rise to a good reason to do so even if the fire is ‘safe’.

Do we have the power to demand the details of the landholder if we (the people in attendance at said fire) do not intend on issuing a penalty notice for the ‘illegal fire’?

Section 131A of the Rural Fires Act says (emphasis added):

An authorised officer who intends to serve a penalty notice on a person under section 131, or a police officer who has reason to suspect that a person is committing an offence against this Act or the regulations, may direct the person to state the person’s full name and residential address.

If the people in attendance at the fire do not intend to serve a penalty notice then there is no power to direct the person to give those details.   That does not mean the fire officers can’t ask, anyone can ask anyone else whatever they want, but it does mean they cannot ‘demand’ those details and a person would not commit an offence if they refused to provide them.   So, if we imagine a conversation, a person could be asked to give their name and address and they might ask ‘do you intend to issue a penalty notice?’ and if the ‘authorised officer’ says ‘no’ then the person would be within their rights to say ‘then I’m not going to provide those details’.

On the other hand, if the officer said ‘yes I do’ and the officer then explains it is an offence to fail to provide the details then the person who refuses to [provide those details commits an offence (s 131(2)). That would not stop the authorised officer later changing his or her mind and deciding not to issue the notice.