Today’s correspondent asks for my

…  thoughts  on this hypothetical bushfire:

It is a day of a total fire ban, or it is the Bushfire Danger Period, when permits are required. A bushfire is about to reach a landowner’s property. Is it against the law for the landowner to light a back burn to protect his/her property/life?

Elsewhere at the bushfire, RFS resources are stretched. The RFS Captain asks a landowner to conduct a back burn (on his own land) to assist the firefighting effort, then goes to work somewhere else on the fireground. The landowner carries out the back burn, but his adult daughter, wearing appropriate PPC, suffers burns when the wind changes. How does the RFS Captain stand in this situation?

Given the reference to RFS, I assume this question relates to New South Wales.

It is a day of a total fire ban, or it is the Bushfire Danger Period, when permits are required. A bushfire is about to reach a landowner’s property. Is it against the law for the landowner to light a back burn to protect his/her property/life?

With respect to the need for permits during the proclaimed bush fire danger period, the Rural Fires Act 1997 (NSW) s 87 says (emphasis added):

(1) A person who lights a fire on land for the purpose of land clearance or for burning any fire break during a bush fire danger period that applies to the land is guilty of an offence unless the person:

(a) is authorised to do so by a fire permit issued by the appropriate authority and the person complies with any conditions set out in the fire permit, and

(b) has given notice in accordance with section 86.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

(2) Nothing in this section requires an authorised officer of a fire fighting authority who lights a fire for the purpose of back burning to be authorised to do so by a fire permit or to give any notice before lighting such a fire.

‘Fire break’ is not defined. Back burning is defined to mean ‘the application of fire to combustible matter so as to provide a fire break to control or suppress a fire or protect persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency.’  It follows that ‘to light a back burn to protect his/her property/life’ is to light ‘a fire on land for the purpose of … burning any fire break’ and therefore, prima facie illegal in the absence of a permit.

One can understand why the RFS would not want people lighting fires, even backburning to protect property. The RFS (hopefully) has the ‘big picture’ on the fire ground and the strategies to manage the fire. If people are adding further fire to the landscape that will impact upon their strategies and priorities and expose fire fighters and others to risk. This was demonstrated by the coronial inquiry into the Sir Ivan fire (Coroner’s inquiry into the 2017 NSW ‘Sir Ivan’ fire (November 10, 2019)) and

… the evidence of Mr Fergusson, where he said that at the time when he was asking for a back burn to be lit on his property he was unaware, for instance, of the location of fire crews on the ground. Mr Fergusson said “I was doing my own little patch. I wasn’t in charge of the fire. I didn’t want to know what everyone else was doing.”

When asked whether, in making a decision about introducing a back burn, it would be important to understand where the crews were Mr Fergusson said “not from my perspective.”

This illustrates the importance of having someone other than local landholders making decisions about when to introduce a back burn on a fire of this scale. That decision maker needs to be impartial to the extent he or she makes decisions without looking to minimise, for example, loss of country belonging to family or friends. That person needs to have situational awareness across the fire in terms of where crews are located and how terrain might hamper or assist efforts. That person needs information about predicted weather and feedback from the fire ground as to actual conditions.

On a day of a total fire ban (s 99) the Minister may ‘prohibit the lighting, maintenance or use of any fire or class of fire in the open air for the period or periods specified in the order’. ‘A person who fails to comply with a total fire ban order is guilty of an offence.’

Notwithstanding these provisions a landholder, if prosecuted for lighting a back-burn during a total fire ban and/or permit period but in the face of imminent danger, may be able to rely on the common law doctrine of necessity to say that the prevention of the imminent harm was less than the risk caused by setting the fire and their response was a reasonably proportionate response to the risk. That will be particularly true if the motivation is to save a life rather than property. (For the doctrine of necessity, see The doctrine of necessity – Explained (January 31, 2017). See Lobsey v Care (1983) 1 MVR 1, discussed in the post Authority to enter private property for a hazard reduction burn (July 9, 2016), for a discussion on what ‘imminent danger’ might mean).

However, to answer the question and putting aside the possibility of a defence based on the common law doctrine of ‘necessity’, then on ‘a day of a total fire ban, or it is the Bushfire Danger Period, when permits are required … it is against the law for the landowner to light a back burn to protect his/her property/life’.

Elsewhere at the bushfire, RFS resources are stretched. The RFS Captain asks a landowner to conduct a back burn (on his own land) to assist the firefighting effort, then goes to work somewhere else on the fireground. The landowner carries out the back burn, but his adult daughter, wearing appropriate PPC, suffers burns when the wind changes. How does the RFS Captain stand in this situation?

I’m sure the RFS captain will feel troubled but there is no legal issue. It can be reasonable to ask landowners to monitor a fire situation (Gardner v Northern Territory [2004] NTCA 14) and it can also be reasonable to ask them to take part in firefighting. Any person who makes themselves available to the RFS and places themselves under their command becomes part of the RFS (Rural Fires Act 1997 (NSW) s 8 definition of ‘volunteer rural fire fighters’ which includes:

any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade’.

The landowner and the adult daughter would be entitled to compensation under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) (See Compensation of spontaneous volunteers assisting the NSW RFS (January 15, 2020)). If the brigade captain was somehow negligent in asking the person to light that fire and otherwise follow his or her directions, then that liability would fall to the state of New South Wales (see Vicarious liability for volunteers (April 23, 2018)).

I’m not sure what my correspondent has in mind when he asks ‘How does the RFS Captain stand in this situation’ but the only answer that I can see is that the Captain will no doubt be sorry that someone was hurt. That is, or course, not a legal answer.