Today’s correspondent

…  would like to ask two related bushfire questions.

In 2013, you said, “It is up to the Commissioner of the RFS, not the council, to identify a neighbourhood safer place (s 62C(1)). The Commissioner may only designate a place as a neighbourhood safer place if the owner or occupier consents, but that provision does NOT apply if the premises are owned by a public authority.”

Since then, NSW RFS has also put forward the concept of an Other Safer Location (OSL), defined as, “A place that individuals have personally assessed and decided is a safer option relative to their situation” https://www.rfs.nsw.gov.au/__data/assets/pdf_file/0017/26135/NSP-Guidelines.pdf.

My questions:

(1) Is a community hall that is not council owned but owned by the local Progress Association considered to be owned by “a public authority”? I’m assuming not, but would like confirmation.

(2) What would be the liability issues if our local Progress Association (of which I am the Hon Secretary) were to offer our community hall as an OSL?

The 2013 comment referred to in the question can be found in my post Liability for neighbourhood safer places (May 6, 2013).   Provisions dealing with neighbourhood safer places are found in the Rural Fires Act 1997 (NSW) Part 3A.

As my correspondent has noted, in the document ‘Neighbourhood Safer Places Guidelines for the Identification and Inspection of Neighbourhood Safer  Places in NSW’ the Rural Fire Service defines Other Safer Locations  as ‘A place that individuals have personally assessed and decided is a safer option relative to their situation’ (p. 5).   At p. 4 the Guidelines say:

The concept of personally identified safer places or other Safer Locations form part of NSW RFS’s community engagement and education strategies. It focuses on encouraging all people living in bush fire prone areas to have considered local options for shelter if their primary Bush Fire Survival Plan fails. This might include options such as a neighbour’s house that is better prepared and has greater setbacks from the bush fire hazard.

And at p. 6:

In some instances there may not be a Neighbourhood Safer Place identified in a local area or close to homes. In these circumstances people should ensure they have identified other safer locations or that they have alternative back up options as part of their Bush Fire Survival Plan.

I can now turn to the question asked:

(1) Is a community hall that is not council owned but owned by the local Progress Association considered to be owned by “a public authority”? I’m assuming not, but would like confirmation.

I cannot answer that as I do know the legal status a ‘Progress Association’.  Assuming the Association is incorporated under the Associations Incorporation Act 2009 (NSW) and as my correspondent suggests, the title of the Hall is vested in the Association and not a local or state government entity then it would not be a public authority.  But a definitive answer to that question would require looking at the constituent documents of the Association and doing a title search on the relevant building.  But, for the sake of answering question 2 I will assume that the Progress Association is not a public authority.

(2) What would be the liability issues if our local Progress Association (of which I am the Hon Secretary) were to offer our community hall as an OSL?

It would seem contrary to idea of the Other Safer Place to offer a ‘community hall as an OSL’ because who is making the assessment that it is ‘safer’?  Safer than where?  The best that could be done is to say that during a fire danger period the hall will be open and available if local residents form the view that the hall is safer than their other alternatives.

To make the hall available as an ‘other safer place’ implies that it has been assessed and that it is ‘safer’ but the idea of the Other Safer Place is that individuals have made their own assessment of what is safer, for them, should their ‘Plan A’ fail.

If the Progress Association wants to promote the hall as a safe place they would be better off to offer it to the Rural Fire Service as a Neighbourhood Safer Place which would ensure that it was assessed as suitable and would also provide some liability protection (Rural Fires Act 1997 (NSW) s 62H).

Conclusion

I cannot see liability issues if the Association says: ‘the Hall will be open, and if, in your assessment, it is safer than other options you are welcome to come here’.  Whilst the risk of liability is low there could indeed be liability issues if the Association says: ‘this Hall is a safer option’ because that implies that they have made the sort of assessment required for a ‘neighbourhood safer place’ and people may rely on that assessment, rather than their own assessment of where is safe. If it turns out that it was not in fact safe and had not been properly assessed there could be difficulties for the Association.