My correspondent is a member of the NSW Rural Fire Service.  They say:

… we have been informed there is a legal requirement for landowners to notify the RFS prior to carrying out burns, both in and out of the statutory bushfire danger period. Claims are made that it’s required under s 86 of the Rural Fires Act and s 34 of the Regulations.

My unqualified opinion is that this applies only for the purpose of land clearing or burning a firebreak, and would not apply to any other burning activity, such as a pile burns.

Could you please advise as to your thoughts on this matter, as I have serious concerns as to being directed to inform people they are breaking the law and requiring personal details if they do not comply.

The Rural Fires Act 1997 (NSW) s 86 says:

(1) A person who lights a fire on land–

(a) for the purpose of land clearance or for burning any fire break, or

(b) in circumstances in which doing so would be likely to be dangerous to any building,

is guilty of an offence unless the person has given notice in accordance with the regulations to the persons prescribed by the regulations.

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

(1A) A person who lights a fire on land for the purpose of land clearance or for burning any fire break is guilty of an offence unless–

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

(b) any approval, consent or other authority required for the land clearance or fire break under the Environmental Planning and Assessment Act 1979 or any other law has been given.

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 to give notice of the lighting of a fire for the purpose of back burning.

Note : An authorised officer is not required to obtain various other approvals or authorities if carrying out an emergency fire fighting act–see Part 6A.

The Rural Fires Regulation 2022 (NSW) r 34(1) says (emphasis added):

The notice required to be given under the Act, section 86(1) must be given to the following persons–

(a) the occupiers of all land contiguous to or separated by a lane, road or waterway, whether fenced or unfenced, from the land on which the fire is to be lit,

(b) if there is no occupier for particular land under paragraph (a)–the owner of the land,

(c) if the land on which the fire is to be lit is in a rural fire district–the fire control officer for the rural fire district,

(d) if the land on which the fire is to be lit is in a fire district–the officer in charge of the fire station that is nearest to the land.

My correspondent is clearly correct, this applies where a fire is to be lit for the purposes of ‘land clearance or for burning any fire break’, but that simply begs the question of ‘what is meant by ‘land clearance’?’

Land clearance is defined in s 85. That section says ‘“land clearance” means clearing land of bush, stubble, scrub, timber, trees, grass or vegetative or other material’.

The RFS says ‘Burning of cut and stacked vegetation is referred to as a pile burn’ (Rural Fire Service, Standards for Pile Burning 2024).  Those standards also say:

The law requires that you must notify all residents who adjoin the site of the pile burn at least 24 hours (unless otherwise specified in your fire permit) prior to the work. Other residents who might be affected by the pile burn should also be notified. The smoke produced from your pile burn has the potential to impact upon other people. Your neighbours may be exposed to smoke and may need to make preparations to avoid any negative impacts.

At least 24 hours (unless otherwise specified in your fire permit) before burning, you must notify your local RFS Fire Control Centre or Fire and Rescue NSW station of your intention to burn. The fire authority will record the information and monitor weather conditions.

If lighting a fire to clear a land of bush, scrub, trees, grass or vegetative material is ‘land clearance’ then it doesn’t matter whether that material is growing or ‘cut and stacked’.  Either way the landowner is clearing the land of the material.

Conclusion

The Rural Fires Act 1986 (NSW) s 86 does require notices of intention to burn are served before setting a fire for the purposes of ‘land clearance or for burning any fire break’.  The definition of ‘land clearance’ would include burning ‘cut and stacked vegetation’, that is, a pile burn.  The advice in the Standards for Pile Burning 2024 is correct.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.