Today’s correspondent is unhappy with the response of the NSW RFS during recent fires, in particular:
… a fire break line constructed on our property by RFS, without being consulted, asked or told of even after it was constructed…
This so-called fire break, after construction, was marked on RFS mapping as too steep so effectively operationally useless, the helicopter landing area was dry dirt with much dust and small stones so operationally useless for helicopter landing and takeoff. There also exists an alternative line to construct a fire break in that location that could have been built with minimal disturbance along much less steep terrain contour, but myself as property owner was never asked for my local knowledge.
Regarding this and other RFS issues the first thing I did was to download and print and read the Rural Fires Act. Division 3 Rural fire brigades #28 (1) (2) appears to say that any property and environment damage is considered fire damage and claimable form one’s insurance. However, my insurance company claims that only those items listed on the insurance policy can be claimed for, hence they deny my claim. Is there any documentation or case law to support the view that one can claim property and environment damage from one’s insurance as appears to be indicated by #28 (1) (2)?
#30 Care to be taken. Alternatively can one claim that RFS has a duty of care to do as little damage as possible and by not consulting with myself as the property owner with local knowledge, RFS has liability to remediate the area damaged by the construction of the fire break they built?
Rural Fires Act 1997 (NSW) s 28
This section says:
(1) Any damage to property that is caused by any person exercising any function conferred by or under this Division in good faith and any remedial work necessary to rectify damage to the environment is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the property so damaged.
(2) Any provision, stipulation, covenant or condition in any agreement that negates, limits or modifies or purports to negate, limit or modify the operation of this section is void and of no effect.
In response to my correspondent’s question ‘Is there any documentation or case law to support the view that one can claim property and environment damage from one’s insurance as appears to be indicated by #28 (1) (2)’ the documentation is s 28. It means what it says.
The issue (which I suspect is what the insurer meant if someone said ‘only those items listed on the insurance policy can be claimed for’) is whether the property in question was insured for damage by fire. If it was the damage done by the RFS was damage done by fire. If the insurance did not cover damage by fire, then it won’t cover damage done by the RFS. One can understand that buildings, crops, fences etc may all be insured for loss by fire, but other parts of the property may not be in part because it would be impossible to quantify the value of any loss. But that is mere speculation on my part.
The answer here is ‘what did the insurance policy cover?’ If it would have paid out if the land in question had been damaged by fire, then it should pay out where it was damaged by the RFS during the course of firefighting operations. If the insurance company don’t agree then it’s time to go to the Australian Financial Complaints Authority.
Rural Fires Act 1997 (NSW) Division 3
Section 23 says ‘An officer of a rural fire brigade or group of rural fire brigades may enter any premises for the purpose of exercising any function conferred or imposed on the officer by or under this Act.’
For the purpose of the Act ‘”premises” includes any building of any description or any part of a building and any land whether built on or not but does not include any building on, or land forming part of, managed lands.’ A landowners private land is ‘premises’ so entering the land to cut a fire break is entering premises.
Section 25 provides that
An officer of a rural fire brigade or group of rural fire brigades may, if persons are, or property is, endangered or likely to be endangered by a fire, incident or other emergency, do any of the following things:
(a) pull down, cut and remove or cause to be pulled down, cut and removed, fences on any land,
(b) destroy, pull down, shore up or remove, or cause to be destroyed, pulled down, shored up or removed, any buildings or structures or parts of buildings or structures on any land,
(c) destroy or remove or cause to be destroyed or removed any living or dead vegetation on any land,
(d) establish fire breaks on any land or cause fire breaks to be established on any land.
Before entering the ‘premises’ the owner must be notified (s 29) but not if ‘entry is required urgently and the case is one in which the Commissioner has authorised in writing (either generally or in a particular case) entry without notice.’ I will assume that in this case the requirements in s 29 have been met and entry was authorised without notice.
Section 30 says ‘In the exercise of a function under this Division [ie Division 3 Rural Fire Brigades], a person authorised to enter premises must do as little damage as possible.’
Finally s 128(1) says:
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
Discussion
There may be what appears to be an obvious conflict between s 25 and s 30. Section 25 allows the RFS to do damage to property including building fire breaks, but s 30 says there must be ‘as little damage as possible’. If the RFS are going to cut fences, pull down buildings and cut fire breaks they are going to do damage. And if they have decided to cut ‘that’ fire trail the damage done to cut that trail is not avoidable.
The question from my correspondent’s point of view is ‘but what if there was an alternative that would have caused less damage?’
That is where s 128 comes into play. When faced with a situation like a dynamic fire an incident controller has a number of options, no doubt each with ‘pros and cons’. He or she has to make a decision in circumstances where, no doubt, other decisions could be made and which may end up being ‘better’ decisions. To allow IC’s to operate the standard of care is reduced, it is not ‘did they act reasonably in the circumstances?’ but ‘did they act in good faith’ that is with a genuine attempt to perform their functions?’
In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 (the decision of the ACT Court of Appeal in the litigation arising from the 2003 Canberra fires and discussed in my post ACT Court of Appeal upholds verdict in favour of NSW over Canberra 2003 bushfires (November 3, 2014)) Jagot J accept (at [509]) that ‘The requirement of good faith requires a real attempt to discharge the required function and more than “honest ineptitude”’.
Katzmann J found that mere negligence does not prove an absence of good faith; if it did the section would have nothing to do ([634]). She said (at [635]):
In my opinion, for the purposes of s 128 a thing may be done (or omitted to be done) negligently but in good faith. Good faith may be made out where the relevant person does or fails to do something honestly, in good conscience, and for no improper or ulterior purpose, even if he or she acted or omitted to act negligently.
It would be my view that provided the IC was acting in good faith when he or she authorised the cutting of the fire trail, there can be no liability on the RFS even if it can be shown that another option may have caused less damage to the property. The questions would be ‘did they do as little damage as possible when cutting that fire break’ not could they have adopted a different strategy that would have caused less damage.
If one could show that the decision of the IC or whoever authorised the cutting of the fire break was ‘so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power’ (Civil Liability Act 2002 (NSW) s 43A) then one may be able to sue the RFS for the cost of remediation. Short of that I would suggest given the outcome of decisions against fire brigades to date, the chance of success in any legal action would be next to nothing.
Conclusion
Incident controllers when facing a dynamic fire have to make decisions. Landowners may want decisions that best protect, or do the least damage to their property but that is not the duty of the RFS. As noted, the RFS has the power to do extensive damage to property. It is to ensure that they can do that without looking over their shoulder at the law of negligence that ss 28 and 128 are there, along with express statutory authority to inflict damage on private property.
Having said that it should again be noted that this blog cannot give legal advice on particular cases and any person who does feel aggrieved should see a solicitor of their choice who can investigate the matter and how and why decisions were made to determine the legal position in the particular case.
Australian Emergency Law 
Could you please advise how an application can be made to seek costs for remediation of private land after a fire trail/ service road has been put in via S38. It is unlikely to be a permanent trail but was required during a fire incident and runs through a few neighbouring prioperties as well.
Who do we send an application to?
Is there a standard form?
Many thanks
This post was discussing the Rural Fires Act 1997 (NSW). The reference in the comment from Dianne, above, to ‘S38’ is a reference to the State Emergency and Rescue Management Act 1989 (NSW) s 38. That section says:
(1) In a state of emergency, the Minister may, for the purposes of responding to the emergency, take possession and make use of any person’s property.
(2) If the property of a person is taken or used under this section that person is to receive such compensation as may be determined by the Minister, but is not entitled to receive compensation.
(3) Any such person may apply to the Premier for a review of any determination as to compensation made by the Minister under this section.
We know that during the recent fires there was a declared state of emergency and I infer that the Commissioner of the RFS was delegated with the Minister’s powers (see https://emergencylaw.wordpress.com/2019/11/11/emergency-declarations-for-nsw-and-queensland/). There could therefore be debate about whether a fire brigade was acting under the Commissioner’s authority under the RFS Act or the SERM Act particularly where the RFS Act specifically provides for the cutting of fire breaks, and the SERM Act does not. If it was found that the action in question was authorised under the RFS Act then s 38 will be irrelevant.
If we assume for the sake of the argument that the action was authorised under the SERM Act, I would infer that s 38 is about taking private property, eg commandeering a tractor to build the fire break and the tractor is damaged, rather than the land itself. My reason for that is that s 38 refers to ‘property’. Section 37B, for example, refers to the power to enter ‘premises’. Premises, we are told (s 32A) ‘includes land, place, building, vehicle, vessel or aircraft, or any part of premises.’ It is a rule of statutory interpretation that every word means something. Because s 38 refers to property it must mean something different to premises otherwise they would use the word ‘premises’. I would infer that ‘property’ means personal or moveable property rather than land.
As discussed in the above post, damage done by the RFS is deemed to be damage done by fire. Further s 62A of the SERM Act provides that:
Any damage to property caused by the exercise in good faith of functions under section 37A (1) or 61 (1) by:
(a) the Minister or an emergency services officer authorised by the Minister during a state of emergency, or
(b) a directing officer or a police officer authorised by a directing officer at an actual or imminent emergency, or
(c) a person acting on and in accordance with a direction given by:
(i) the Minister or an emergency services officer authorised by the Minister under section 37A (1) during a state of emergency, or
(ii) a directing officer or a police officer authorised by a directing officer under section 61 (1) at an actual or imminent emergency,
is taken to be damage by the happening that constitutes the emergency (being fire, flood, storm, tempest, explosion or other risk, contingency or event) for the purposes of any policy of insurance against the risk, contingency or event concerning an act or omission that covers the property.
If the fire break was cut as part of fire fighting operations or preparations then the damage is deemed to be damage done by fire under both Acts. If the person who owns the property is insured against loss by fire they can claim on their fire insurance. If they are not then they take the risk that their property will be damaged by fire which includes authorised action by the RFS. I’m not the Minister so it’s not my call but I cannot imagine that the Minister is going to start offering compensation for damage done during fire fighting operations.
To answer the specific question, there are no regulations made under the SERM Act so there is no prescribed form. To find out if the Minister has a preferred form of application the question needs to be directed to the Minister’s office.
So, here’s a loaded question for you. In the case of my property, a bush block with caravan and car stored, in open, plain view when you walk up a short drive.
During backburning operations, not a direct emergency, both my car and caravan were burned to the ground by what I can only describe as complete incompetence, whilst both properties beside me, and a power pole ( no more than 5m from either car or van) were protected.
At the time, there was no direct danger from encroaching fire, the rfs were simply doing backburning.
Now, as I understand it, the entire purpose of backburning is to protect assets and property?
So, in this case, where a backburn has been lit and let run without consultation, without care for assets on that property, are the Rfs not liable? Especially when the properties adjacent were carefully managed?
That is indeed a loaded question and of course only represents one analysis of what happened. One doesn’t know what the RFS would say happened or why decisions were made. At common law an agency like the RFS is not liable for damage done when doing things that it is authorised to do provided that it is not done negligently. Good faith is not a defence to negligence (Vaughan v Webb (1902) SR(NSW) 293 (see the discussion in the post at https://emergencylaw.wordpress.com/2018/04/18/statutory-protection-or-not-for-qfes/)). Because of that decision legislatures introduced the ‘good faith’ defence (Rural Fires Act 1997 (NSW) s 128). Provided the decisions were made in a bona fide effort to perform their duties there is no liability.
As for ‘simply doing backburning’ backburning is a fire fighting technique (as opposed to controlled or hazard reduction burns). I’m sure it is never a ‘simple’ task.
In short no the RFS are not liable.