Today’s correspondent tells me that:

An employee of Transport for NSW [TfNSW] has questioned the powers that the NSW RFS has when operating on TfNSW-controlled land. Reviewing the RF Act 1997, Clause 23 Gives us powers to close a road to deal with a fire or other incident.

23 Closure of streets and public places

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

However, the TfNSW employee has raised concerns at incidents we have attended that Clause 27 Prevents us from taking these actions on highways as that are under the control of TfNSW.

27 Permission of certain rail and transport authorities required

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

Are you able to shed any light on this matter?

The Rural Fires Act 1997 (NSW) Dictionary says ‘’function” includes a power, authority or duty’ so where s 27 refers to a function it also refers to the power to close roads (s 23).

I had understood this section applies to rail authorities (noting that the Rail Corporation of NSW is, and I think the Transport Infrastructure Development Corporation and the Rail Infrastructure Corporation are now, the Transport Asset Holding Entity of New South Wales (or TAHE) (Transport Administration Act 1988 (NSW) s 4). The TAHE website says “TAHE is the owner of an extensive portfolio of railway networks across NSW, including tracks, trains, stations, significant land holdings around stations including retail spaces.”

It may make sense to restrict the power to close train lines. Diverting or stopping a train is not the same as parking an appliance across the road and setting up diversions on other roads and controlling traffic with a ‘stop/slow’ bat.  But the section does refer to Transport For NSW.

Some history

When it was passed, the Rural Fires Act 1997 (NSW) s 27 said:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority or Rail Access Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

There was no mention of s 27 in the Minister’s second reading speech. The explanatory memoranda filed with the Bill (that became the Act) said:

Clauses 22-27 give some particular examples of actions that officers of rural fire brigades and groups of rural fire brigades may take in exercising functions under the proposed Act. The powers include the power to enter premises, close roads, pull down fences, establish fire breaks and use water.

There was no specific explanation as to why s 27 was required.

The Transport Administration Amendment (Rail Management) Act 2000 (NSW) amended the section, so it then said (additions shown in bold):

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

The Transport Administration Amendment (Rail Agencies) Act 2003 further amended the section, so it now said (additions in bold):

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, the State Rail Authority, Rail Corporation New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

A further amendment, this time by the State Revenue and Other Legislation Amendment (Budget) Act 2007 removed the words ‘State Rail Authority’ so the section then read:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

In 2017 it was further amended by the Transport Administration Amendment (Transport Entities) Act 2017 and now made reference to Transport for NSW. The section then said:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

The final amendment made by the Transport Administration Amendment (Sydney Metro) Act 2018 added the words ‘Sydney Metro’ after Rail Corporation New South Wales to give the section as it appears today:

The functions conferred by this Division may not be exercised in relation to land or property vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Transport for NSW, Sydney Trains, NSW Trains, Residual Transport Corporation of New South Wales, Transport Infrastructure Development Corporation or Rail Infrastructure Corporation without the permission of the Authority or Corporation or of a person authorised by the Authority or Corporation to give the permission.

Critically we can see that until the reference to Transport for NSW in 2017 the section had been limited to rail authorities and the rail network.  On 29 March 2017, when introducing the Transport Administration Amendment (Transport Entities) Act 2017, Dominic Perrottet (Member for Hawkesbury and then Treasurer, and Minister for Industrial Relations) said:

The Berejiklian-Barilaro Government is currently delivering more than $40 billion of transport projects for the people of New South Wales. It is a long overdue investment to ensure an efficient, safe and technologically advanced transport future. In the 2015-16 budget the Government committed to the introduction of a Transport Asset Holding Entity [TAHE] to manage the State’s portfolio of transport assets better and more commercially. This bill delivers on that previous commitment through the introduction of amendments to the Transport Administration Act. As part of the November 2011 public transport reforms a new operating model was established for the provision of government transport services within New South Wales. These reforms established Transport for NSW [TFNSW] to be responsible for the delivery of transport services.

In addition, in 2012 RailCorp was reformed and Sydney Trains and NSW Trains were established as government-owned operators to deliver services under contract to Transport for NSW and drive customer service improvements…

The entire second reading speech was about the changes to the rail network. There was no specific mention of the changes to the Rural Fires Act. The explanatory note filed with the legislation also makes no mention of the changes to the Rural Fires Act other than to note that there are ‘consequential amendments to other Acts and regulations.

Roads and streets

Some websites (eg https://www.rd.com/article/difference-between-streets-roads-avenues) say that road’ ‘generally describes any throughway that connects two points’ but a ‘street’ is a public road that has  ‘buildings on both sides’.  That distinction is not supported by any NSW law thought it may be an historical rule and may reflect how roads are named. “Street” is not a particular classification under the Roads Act 1993 (NSW) ss 46-52A and the Roads Act does not use the term ‘street’.  It would be absurd xto think that the Rural Fire Service could close a street with buildings on both sides but not a road with say farmland on both sides. I infer for the rest of this discussion that the terms ‘road’ and ‘street’ are synonymous.

Today

Today, as noted, the act refers to ‘land or property vested in, or under the control of …Transport for NSW’.  Transport for NSW (TfNSW) is established by the Transport Administration Act 1988 (NSW) s 3C. On its website it is described as ‘the lead agency of the NSW Transport cluster’.  It is the public service unit that assists the various Ministers in their administration of the transport legislation.   

TfNSW’s functions appear to be more at the level of policy and supervision but there is more to it than that. TfNSW is responsible for driver licensing and vehicle registration (Road Transport Act 2013 (NSW)).  TfNSW is also responsible for many roads.

The Roads Act 1993 (NSW) s 7 says:

(1) TfNSW is the roads authority for all freeways.

(2) The Minister administering the Crown Land Management Act 2016 is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area, other than–

(a) any freeway or Crown road, and

(b) any public road for which some other public authority is declared by the regulations to be the roads authority.

Pursuant to s 7(3), the Roads Regulation 2018 (NSW) Sch 1 provides that TfNSW is the roads authority for the M5 East Motorway; the Cross City Tunnel; the Lane Cove Tunnel; Southern Cross Drive; a temporary public road in Randwick that is part of the Sydney Light Rail; Alpine Way and Kosciuszko Road and the Lake Hume Village;  

Section 145 says:

145 ROADS AUTHORITIES OWN PUBLIC ROADS

(1) All freeways are vested in fee simple in TfNSW.

(2) All Crown roads are vested in fee simple in the Crown as Crown land.

(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land.

What we can say is that a freeway (Roads Act 1983 (NSW) s 48) (but not a highway – Roads Act 1983 (NSW) s 47) is property vested in TfNSW (s 145(1)) as are the roads where TfNSW has been made the roads authority (s 145(3)). Roads might also be ‘under the control’ of TfNSW where it is ‘acting’ as the roads authority even if it is not the roads authority (Roads Act 1993 (NSW) ss 64 ‘TfNSW may exercise functions of roads authority with respect to certain roads’ and 66 ‘TfNSW may exercise the functions of a roads authority in the unincorporated area’). If that is correct it is not only the case that many roads are ‘property vested in’ of TfNSW but that it would be almost impossible for a brigade captain to know whether he or she is on a road that is ‘under the control of’ of TfNSW.  If that is correct it makes s 23 of the Rural Fires Act problematic.

It is however consistent with one of the functions of TfNSW. The Transport Administration Act 1988 (NSW) Sch 1 cl 1(g) says that one of the functions of TfNSW is

The management of incidents affecting the efficiency of road and public transport networks, including the co-ordination of communications with and responses by relevant agencies.

TfNSW can presumably only fulfil that function if it is aware of emergencies.

It is interesting to note there is no provision equivalent to s 27 in the Fire and Rescue NSW Act 1989 (NSW). Fire and Rescue NSW can all close a street (Fire and Rescue NSW Act 1989 (NSW) s 14) including a TfNSW road, but it appears that the Rural Fire Service cannot.

Closing a road or warning of danger

I have argued earlier that I think there is a difference between closing a road, and telling drivers that the road is impassable – see Self Help Road Closures (October 14, 2018). For example if there is a tree across the road, it’s the tree and not the SES that have closed the road even if the SES have a truck set up and officers telling drivers they cannot get through. It may be that the RFS telling people they cannot proceed because of smoke and fire appliances blocking the road is not ‘closing the road’ but simply letting people know the reality. That would be different if the road was passable but may be at risk of being threatened by fire or had reduced (but not zero) visibility due to smoke.

Shedding light on the matter?

I was asked ‘Are you able to shed any light on this matter?’ and the answer is ‘not really’.  The best I can infer is that I think it was probably a mistake. TfNSW were added to the list of ‘certain rail and transport authorities’ because of its role in the management and delivery of rail services, and I suspect no-one thought about its role as a roads authority and what that might mean in an emergency.

The Interpretation Act 1987 (NSW) s 35 says that a heading to a section is not considered part of the Act but may be used to help:

… determine the meaning of the provision–

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

If the heading to the section 27 said ‘Permission of certain rail authorities required’ that would go some way to suggesting that the interpretation is meant to apply to TfNSW only to the extent that it is a rail authority and not a roads authority.  But the heading in fact says (emphasis added) ‘Permission of certain rail and transport authorities required’. And TfNSW is a ‘transport authority’ established by the Transport Administration Act 1988 so one might say the section is not ‘ambiguous or obscure’.

It may however be that the section when read literally ‘leads to a result that is manifestly absurd or is unreasonable’ given that s 23 says that the RFS can ‘cause any street … to be closed to traffic’ but that is immediately contradicted by s 27 that rules out many roads and given that the history of the section has been about rail authorities.

How a court would interpret the section remains to be seen but of course it is unlikely to ever get to court. If the interplay of ss 23 and 27 of the Rural Fires Act ever became a problem, and if TfNSW began to assert that the RFS must not close a freeway or other road where TfNSW is a roads authority, even when the road and road users are threatened by fire, then I would expect the relevant ministers would get the relevant department heads to sort it out and come to an understanding, rather than ever let it get before a court.

Conclusion

When read literally, it does appear that the RFS cannot close a freeway or those roads where TfNSW is the nominated roads authority under the Roads Regulation 2018 (NSW) Sch 1 without first getting permission from TfNSW.  Arguably that also extends to roads where TfNSW is exercising the powers of a roads authority even if it is not a roads authority- and how anyone would know what roads they are is beyond me.

That does appear to be an absurd result and inconsistent with the history of s 27 but that is what it says today.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.