Today’s correspondent is, I infer, with the NSW RFS. They say:
Fire trails in our region of NSW go through private, crown, national park and leasehold land. The five fire trails we have are critical to our fire management plan and are very important. Not one of these trails are currently accessible due to erosion and/or fallen timber.
We are a told that if one landholder objects to entry/maintenance during non-emergency conditions then the fire trail cannot be maintained and hence we cannot use it. Therefore because a person might object, it is not worth the effort in identifying all the landholders and asking them.
We understand there is considerable funds available to be spent fixing and maintaining fire trails and we have the trails to be maintained but is seems bureaucracy and perhaps the law is making it impossible.
Could you please explain the legalities of fire trails in NSW for us?
Part 3B of the Rural Fires Act 1997 (NSW) deals with fire trails. The Act (s 62J) distinguishes between ‘public’ and ‘private’ land. Public land is ‘managed land, unoccupied Crown land, or land owned or occupied by a public authority’. Private land is everything else. The Commissioner may make Fire Trail Standards to ‘provide standards for fire trails on land throughout the State, and in particular to provide, as far as practicable, practical networks of fire trails’ (s 62K).
With respect to public land the Commissioner may ‘give a direction in writing that a fire trail be established and maintained’ (s 62L). With respect to private land (s 62M(2)):
The Commissioner may enter into negotiations with the owner of private land for an agreement between the Commissioner and the owner in writing that a fire trail be established on the land …
The Commissioner must not enter into an agreement with the land owner if the owner is not the occupier, for example if the land is leased, unless the occupier (tenant) also agrees (s 62M(9)).
There is to be register of certified fire trails (s 62O), that is fire trails that is a fire trial created due to a direction (public land) or agreement (private land) and that meets the Commissioner’s Fire Trail Standards (s 62N).
Section 62W says:
(1) It is the duty of the owner or occupier of the land on which a designated fire trail or registered fire trail is situated to construct … and to maintain the fire trail in accordance with the Fire Trail Standards …
(3) An owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section.
With respect to private land, the obligations imposed by s 62W(1) and (3) that is the obligation to build and maintain, and to meet the costs of building and maintaining the fire trial, can be modified by the agreement between the land owner and the Commissioner. For example, the Commissioner may agree to maintain the trails or meet the costs of the maintenance (see s 62W(4)).
The Commissioner may carry out fire trail rectification work on unoccupied Crown land or managed land (s 62X). Alternatively, and with respect to private land, where a fire trail does not comply with the Fire Trail standards, a fire trail management officer can serve a notice requiring the owner/occupier to fix the trail (s 62Y(1)). The notice has to give the owner at least 28 days to comply (s 62Y(3)). It is a criminal offence to fail to comply with the notice (s 62Y(5)). ‘If within a reasonable time the person to whom a …notice is given fails to comply with … the notice, the Commissioner may … carry out the required fire trail rectification work’ (s 62ZC(2)). The cost of that work is a debt due to the Commissioner (s 62ZC(3)).
A fire trail is ‘closed’ if (s 62ZG):
(a) the trail is wholly or partly removed or destroyed, or
(b) the trail is obstructed so that the trail is not available for use as a fire trail, or
(c) a sign has been placed indicating that the trail is not available for use as a fire trail, or
(d) the trail is otherwise not available for proper use as a fire trail.
A person must not close a fire trail (s 62ZI). ‘The Commissioner may carry out all work reasonably necessary to remedy the unauthorised closure of a … fire trail …’(s 62ZH(1). The cost of that work is a debt due to the Commissioner (s 62ZH(2)). The reference to ‘unauthorized’ closure and that a person must not ‘close’ a fire trail would, in my view, imply that there has to be a positive action to damage or obstruct the trail. Merely allowing it to fall into disrepair is not an ‘unauthorized closure’.
‘The Commissioner or a member of the Service authorised by the Commissioner may… (a) enter during the daytime any part of land (other than a dwelling-house) that it is necessary to inspect for that purpose, and (b) while on the land, make any reasonable enquiries and do anything else that is reasonably necessary’ for the purpose of deciding:
(a) whether a fire trail is situated on the land or should be established, or
(b) the suitability of a fire trail or proposed fire trail (or a part of it), or
(c) whether a designated fire trail or registered fire trail has been constructed or maintained in accordance with the Fire Trail Standards, or
(d) in particular and without limitation:
(i) whether a registered fire trail does not comply with the Fire Trail Standards in a material respect, as referred to in Division 5, or
(ii) whether a fire trail rectification notice should be served under section 62Y, or
(e) whether fire trail rectification work should be carried out under Division 6, or
(f) whether registration of a fire trail should be terminated.
That is a lot of quoting to set out the position, but it does allow an answer to the question asked. I will limit this answer to private land.
First, it is clearly NOT correct ‘that if one landholder objects to entry/maintenance during non-emergency conditions then the fire trail cannot be maintained and hence we cannot use it’.
An RFS brigade cannot simply enter private land to maintain a registered fire trial. An authorised member of the RFS may enter the land to inspect the trail, but they need the landholder’s permission to actually bring equipment on and conduct work on that land. Absent that permission a fire trail management officer can serve a notice requiring the landholder to fix the trail. If they do not comply with the notice within a reasonable time, then the Commissioner can authorise the rectification work and the cost of the work is a debt due to the Commissioner.
All of this is subject to the terms of any registered agreement between the Commissioner and the landowner; so the first and most important step is to identify if the trails in question are indeed listed on the register and to see what are the terms of any agreement.
If the fire trail has been deliberately closed, then the Commissioner can take any steps necessary to re-open the trial.