Today’s correspondent says:

I’m not looking for advice [which is good, as I cannot give legal advice]. It’s more that I find the situation I’ll describe below somewhat surprising and not conducive to cross-tenure risk management and good NPWS-neighbour relations. …

I read your website article “Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service” as I was searching for information on S128 of the NSW Rural Fires Act. The reason was that the NPWS sent us a letter requesting that we allow them to conduct a hazard control burn across our land. The plan being that the burn would be conducted across our land, a neighbour’s land, and NPWS land. The goal is to reduce fuel to help protect a predator free enclosure they have built nearby for Brush-Tailed Rock Wallabies.

The letter included citation of S128 and their protection from any liability for damage insofar as the section provides for this. The main risks for us are damage to our house, the water tank that gravity feeds the house, and the off-grid power system. Loss or damage to any of these would be financially significant for us, but insignificant for the NSW government.

We have ultimately granted permission. Nonetheless, we are nonplussed by this and remain concerned about risks to us. NPWS wants to burn across our land for their purposes and to protect their asset. Yet, they are not willing to commit to remedy any damage to our property. Beyond us, this seems to more generally be an impediment to cross tenure and cooperative use of fire for risk management or other goals. Certainly, this situation is a disincentive for private landholders such as ourselves to participate and grant permission for such burns.

I would be interested to hear your view on this and as to whether you have come across this issue more generally or whether it is a more uncommon situation.

No, I have not come across this issue before. I cannot comment on the specifics, but I can comment on s 128. What the Rural Fires Act 1997 (NSW) s 128 says is:

(1) A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.

(1A) A matter or thing done or omitted to be done by the Forestry Corporation or a person acting under the authority of the Forestry Corporation does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this Act, subject the Forestry Corporation, or such person personally, to any action, liability, claim or demand.

(2) In this section–

“protected person or body” means the following–

(a) the Minister,

(b) the Commissioner and any person acting under the authority of the Commissioner,

(c) any member of the Service,

(d) a member of the Advisory Council or Bush Fire Co-ordinating Committee,

(d1) a member of a Bush Fire Management Committee,

(e) the Commissioner of Fire and Rescue NSW, the Chief Executive of the Office of Environment and Heritage, the Forestry Corporation and any person acting under the authority of any such person or body,

(f) an interstate fire brigade acting in pursuance of section 43.

Section 128(1A) is clearly not relevant here. What is relevant is s 128(1) given that National Parks falls under the auspices of the ‘Chief Executive of the Office of Environment and Heritage’ so the Chief Executive and his or her employees as persons acting under their authority are ‘protected persons’ – if s 128 applies.

But s 128 does not apply to everything those officers do.  Section 128 has been limited in its application.  In simplest terms it is limited to give protection to actions that are taken based on the authority of the Rural Fires Act where the person or agency would not be permitted to act but for that authority.  So s 128 (and provisions like it) do not provide legal protection when it comes to driving as driving an appliance, even a fire appliance, is not ‘for the purpose of executing any provision (other than section 33) of this or any other Act’.  In Stephens v Stephens (1970) 72 SR (NSW) 459 the NSW Court of Appeal had to consider s 48 of the Bushfires Act 1949.   In this case there was a collision with a fire appliance that was stopped by the side of the road whilst the crew were fighting a bush fire. A passenger in the vehicle was injured and sued the driver of the firefighting vehicle. The driver relied on s 48 of the Bush Fires Act 1949.  It was held that the Act only ‘confers immunity … only in respect of things done pursuant to an authority which the Act itself confers’.   The acts which the brigade were engaged in, that is fighting a fire, was not covered because ‘… the Act did not confer authority … to perform the acts of which the plaintiff complained, such acts.

Section 128 does refer to a ‘matter or thing … done in good faith for the purpose of executing any provision …  of this or any other Act’ (emphasis added). I would suggest that the reference to ‘any other Act’ cannot be taken too literally, there would have to be some connection to rural fires.  I don’t see how Chief Executive of the Office of Environment and Heritage could rely on s 128 as a defence to an action taken ‘in good faith’ when making decisions about laying poisons to control a pest in a national park or steps to take care and control of an aboriginal area (National Parks and Wildlife Act 1974 (NSW) s 63). There is simply no connection to rural fires or the Rural Fires Act.  The National Parks and Wildlife Act has its own liability provision, s 156C says:

(1) A protected person is not personally subject to liability for anything done–

(a) in good faith, and

(b) for the purpose of exercising a function under the national parks legislation.

(2) The liability instead attaches to the Crown.

That begs the question of ‘if the goal is to reduce fuel to help protect a predator free enclosure they have built nearby for Brush-Tailed Rock Wallabies, what’s that got to do with the Rural Fires Act?  What provision of either the Rural Fires Act or any other Act are they purporting to execute?’  If they cannot point to a particular provision that they say authorises the action and which they would otherwise not be authorised, then s 128 won’t help.  And if there is a section that authorises them to do it, why did they need the land owner’s consent, as opposed to simply providing notice of the burn? To put that into context, are they not like any landowner who wants to set a hazard reduction burn and who is prima facie liable should the fire escape – see Liability for fire – a review of earlier posts (January 8, 2016) see also Verdict against landowners for RFS managed controlled burn set aside (April 9, 2021) (which reports on an appeal from the decision discussed in the earlier post, Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)).  It is worth noting that in Woodhouse’s case (discussed in the last two posts mentioned above) everyone accepted that the RFS could rely on s 128 in the circumstances that arose but that was not actually tested. The RFS was not a party to the litigation so there was no legal argument and no legal decision on s 128.

In Lobsey v Care discussed in the posts Authority to enter private property for a hazard reduction burn (July 9, 2016) and Liability for dangers created by smoke on the road (May 28, 2023), the defendant could not rely on the Rural Fires Act just because he was an RFS captain when setting a private fire. His actions had nothing to do with his role in the RFS.

Conclusion

It is not obvious that in the circumstances described NPWS could rely on s 128 of the Rural Fires Act. They would have to show what provision of the Rural Fires Act they were giving effect to; and I would suggest to the extent that the section refers to ‘any other Act’ they would still have to identify the specific provision that they say they are giving effect to and that it would have to have some link to the Rural Fires Act.  Just because they are setting a fire does not mean that s 128 applies. 

On the other hand, if they set a fire and it does damage, it also does not follow that they would be liable.  Even if s 128 does not apply, there is still only liability if there has been a failure to take reasonable care. Fires can escape and cause damage even with the best endeavours to stop them (again see Landowner’s liability for hazard control burn conducted by the NSW Rural Fire Service (April 28, 2020)).

What follows is that the mere fact that the NPWS said they would not be liable if a fire got away because of s 128, it is not obvious that this is the case. Whether there was any liability would depend on all the facts.  For s 128 to apply, critically, they would have to identify what ‘provision’ they were purporting to execute – what section specifically authorised them to set the fire.

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.