Today’s correspondent has a question relating to the issue of fire permits by the NSW Rural Fire Service. They ask:

 If a fire permit officer of the NSW RFS issues a fire permit to a landholder and the permit holder follows the conditions of a fire permit and it escapes their property and causes damage. What is the potential consequences for the RFS fire permit officer if it’s identified that the conditions assigned to the permit are inadequate.

Would the fire permit officer be liable if proven that the conditions were not adequate?

The Rural Fires Act 1997 (NSW) ss 87-89 says:

87 Lighting fires for land clearance or fire breaks in bush fire danger period

(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) …

88 Lighting fires that are dangerous to buildings in fire districts and rural fire districts

(1) A person who lights a fire on land within a fire district or rural fire district in circumstances in which doing so would be likely to be dangerous to any building 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) …

89 Issue of permits

(1) An appropriate authority may issue to any person a fire permit in writing authorising the person to light a fire on land specified in the permit for the purpose specified in the permit.

(2) An appropriate authority may issue a fire permit for a purpose only if–

(a) a bush fire hazard reduction certificate has been issued in respect of the purpose, or

(b) the person confirms the person has obtained all approvals, consents or other authorities required under the Environmental Planning and Assessment Act 1979 or another law, or

(c) lighting a fire for the purpose does not contravene any other Act or law.

There are further circumstances when a permit is required set out in the Rural Fires Regulations (see RFS Fire Permit Guidelines (July 2024) [2.1]).

A permit remains in force for 21 days (s 90) unless cancelled (s 91) and is subject to conditions including ‘any condition imposed by a bush fire hazard reduction certificate or as a condition of any approval, consent or other authority given by or under any other Act that is required to be obtained in relation to the lighting of a fire’ (s 92).   Bush fire hazard reduction certificates are issued by the local council (ss 100E, 100F and the definition of ‘local authority’).  The issue of a bushfire hazard reduction certificate depends on the landowner having a bushfire risk management plan and that the planned burn is consistent with a relevant bushfire code (s 100F(4)).

What ss 87 and 88 make clear is that the permit is there to allow a fire to be lit in dangerous circumstances. Prima facie the person responsible for any fire is the person who lights it – see Michael Eburn and Geoff Cary ‘You own the fuel, but who owns the fire?’ (2017) 26(12) International Journal of Wildland Fire 999-1008.  The person who is going to set the fire always has the last call on whether the circumstances are appropriate and whether particular safeguards are in place to control the fire (see also Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [2012] WASCA 79 (and see the observations of Pullin J, although in dissent, on responsibility of the person who can always chose not to light the fire).

If we’re talking about potential liability, then we’re assuming the fire has escaped. The issue of the permit does not guarantee that the fire will be controlled and safe. It is a process to ensure steps are taken to bring the risk to the attention of the person who intends to set the fire and to draw to their attention the need to manage that risk.  

There are several things to think about:

• The mere fact that a fire escapes does not prove that there has been negligence – see Proving the ignition source does not prove negligence (December 23, 2020).
• The law doesn’t require a guarantee of safety, it requires everyone take ‘reasonable care’.  What is reasonable depends upon all the circumstances.
• The ability of a permit officer to impose conditions is limited. The RFS Fire Permit Guidelines sets out some standard conditions regarding the monitoring for the fire and other possible conditions but says (at [4.3]) ‘There is no longer the ability to include local or non-standard conditions that may have been previously used by your Brigade or District Office.’  The permit officer can only impose the conditions permitted, or refuse to issue a certificate.
• Everyone has to take reasonable care, and that includes the permit officer that means that the permit officer does have to comply with the Act and the Guidelines.  One can imagine there could be liability if a permit officer issued a permit to an inexperienced landholder and when doing so the permit officer paid no regard to the matters that the Act and Guidelines and did not impose any relevant conditions in circumstances where the inexperienced landholder relied on the permit officer to tell him or her what was required.
• Putting malfeasance and dereliction of duty aside, where a permit officer issues a permit, he or she is relying on a plan and a weather prediction. They cannot know, in advance, whether the plan will work or whether the weather will behave as predicted. 
• A permit officer would enjoy the protection of the Rural Fires Act 1997 (NSW) s 128 providing immunity from liability for acts done ‘in good faith’ that is in an honest endeavour to meet the obligations imposed by the Act and the Rural Fire Service.
• That does not mean there may not be difficult questions if a fire escapes and particularly if it causes death or significant property losses. A permit officer may be questioned about how they satisfied themselves that the landholder had ‘fire suppression equipment able to control the fire’, had ‘appropriate personal protective clothing’ and had ‘containment strategy/s and [understood] when to contact 000 for an emergency’ (RFS Fire Permit Guidelines, p. 24 ‘Annexure 3 Fire Permit Officer Checklist’) but that is not the same as ‘liability’. The ultimate responsibility for those things lies on the landholder and the permit officer can only rely on what they are told.

The use of fire permits is intended to authorise the lighting of fires that pose a danger.  The parliament could simply prohibit those fires, but it is recognised that this is impractical, so a process of approval and oversight is provided. The fact that there is provision for fire permits means it is expected that they will be issued and fires lit.  The fire permit officer is not responsible for the final decision to set the fire.

Conclusion

Assuming we’re not talking about deliberate or wilful misconduct or dereliction of duty so that the permit officer has honestly attempt to apply the RFS Guidelines and the legislation then there can be no personal liability that attaches to that permit officer if the fire escapes.

If anyone did want to allege there was negligence in the decision to issue the permit then the relevant defendant would be the Crown in Right of NSW and both the Crown and any individual officer, would rely on s 128.

A person who is worried about potential liability for issuing permits could simply refuse to issue them but that too would be a dereliction of duty because it is expected that permit officers will issue permits when the circumstances permit.  The better option for someone with those concerns would be to refuse to issue take on the role.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.