Today’s correspondent has noted that there are 999 posts on this blog, so this becomes post 1000! The question relates to the term “open air” when used in South Australia’s bush fire regulations. My correspondent says:
I have a question about fire bans and ‘open air’.
When I read the legislation on fire ban’s in South Australia (https://www.legislation.sa.gov.au/LZ/C/R/COUNTRY%20FIRES%20REGULATIONS%202004/2005.09.30/2004.189.UN.PDF) it has a section “34—Fires in the open air on a total fire ban day” however does not define ‘open air’.
Dictionary definitions I’ve found:
- Cambridge English (https://dictionary.cambridge.org/dictionary/english/open-air) – used to describe a place that does not have a roof, or an event that takes place outside
- The Free Dictionary (https://www.thefreedictionary.com/open+air) – the place or space where the air is unenclosed; the outdoors
- Collins (https://www.collinsdictionary.com/dictionary/english/open-air) – An open-air place or event is outside rather than in a building
- Google search – a free or unenclosed space outdoors.
As an example, a large entertaining area which has a solid roof, on three sides is enclosed by buildings, and the forth is enclosed by a brick wall and shade cloth to me is not ‘open air’.
The regulations referred to, the Country Fires Regulations 2004 (SA) were revoked on 30 September 2005. The current relevant rules are found in the Fire and Emergency Services Act 2005 (SA). Section 79(1) says:
… a person must not light or maintain a fire in the open air during the fire danger season.
- for a first offence—$5 000 or imprisonment for 1 year;
- for a second or subsequent offence—$10 000 or imprisonment for 2 years.
There are other rules relating to fires in the open air in ss 80, 81 and 89. Further rules, and exemptions are in the Fire and Emergency Services Regulations 2005 (SA) rr 32A, 33, 34, 35, 36, 37, 41, 45 and 47. Even so, it is still the case that ‘open air’ is not defined.
The term ‘open air’ has been used for some time. In Opie v Mount  SASR 35 the defendant was charged with lighting a fire in the open air with “a space of ground immediately around such fire of the width of 12 feet at least in all parts not having been previously cleared of all stubble, scrub, and other inflammable material”. This was an offence contrary to the Bush Fires Act 1939 (SA). The justices of the peace found (or it was admitted) that the fire was
… lit by an employee of the defendant in a square iron tank, open on one side, which side was partially shielded by an old oval iron tub… tank had a small hole 3 inches in diameter on the south side, and was partly open on top, and the fire was lit in the tank in a paddock… the fire was lit in the slaughter yard of the defendant’s premises for the purpose of boiling offal for the pigs…
The question of whether this was a fire ‘in the open air’ was referred to the Supreme Court. Angas Parsons J said:
I have no doubt that a fire in a tank, in a paddock, is a fire used in the open air. The air in a paddock is obviously open, and the words ” open air” are used in the Act in contradistinction to the air in a place where it is confined, such as in a house, or any closed-in structure.
Mr. Litchfield [one of the barristers]… contended that wherever a fire was protected, not necessarily absolutely or perfectly, it was not a fire entirely in the open air. Alternatively, he said the matter should be resolved according to the degree of protection. I am indebted to Mr. Litchfield for his assistance notwithstanding that I feel bound to reject his contentions. ” Open air” means what it says, and it is opposed to what would be described as air which is not open, but is confined. It would defeat the manifest intention of Parliament to say that a dangerous fire used in the circumstances described in the case, was not a fire in the open air. A fire is no less, a fire in the open air whether it flings its sparks from the ground, or has some slight protection, such as from surrounding bricks, or is in a tin or tank. The Act does not deal with the vessel in which the fire is lit, but strikes at its being lit outside, i.e. out-of-doors, or, in the open.
The matter was referred back to the lower court to decide guilt and penalty on the basis that the fire was indeed a fire ‘in the open air’.
The modern legislation, in particular various provisions of the regulations listed above, also contain requirements for clearing around fires. For example, the Fire and Emergency Services Regulations 2005 (NSW) r 34(1) says:
For the purposes of section 79(2) of the Act, a person may operate a gas fire or electric element for cooking purposes in the open air during the fire danger season, provided that—
(a) the space immediately around and above the gas fire or electric element is cleared of all flammable material to a distance of at least 4 metres; and…
If we consider the problem of bushfire and the decision of Angas Parsons J one might infer that a fire is lit in the open air if there is the potential for it to ‘fling’ its sparks onto the ground around the fire. One might, however, infer that the fire in Opie v Mount was in a tank, something like a 44 gallon drum or other structure containing the fire but still outside. That sounds quite different to my correspondent’s scenario of ‘a large entertaining area which has a solid roof, on three sides is enclosed by buildings, and the forth is enclosed by a brick wall and shade cloth’. If the area has 4 walls even if one is a combination of brick and shade cloth it is hard to imagine that this is ‘open air’.
The answer to the question of whether a fire has been lit in the ‘open air’ will depend on all the facts. The more the place of where the fire is burning (rather than the article in which the fire is burning) is ‘confined’ then the less likely it will be held to be ‘in the open air’ A fire in a 44g drum in a paddock is in the open air; a fire in an installed wood burning heater within a house is not in the open air even though, presumably, there is a chimney leading from the house and through the roof. With modern architecture one can imagine varying degrees of home and building designs that allow the ‘outdoors in’ that at some point will mean the fire goes from being confined to ‘the open air’. By avoiding specific definitions the legislature leaves it to the courts to determine on a case by case basis.