After reviewing the first and second readings of the Rural Fires Amendment (Fire Trails) Bill 2016, the VFFA raised some concerns with the following sections:
New Section 62W creates a duty on the owner or occupier of land on which a fire trail is situated to construct and maintain the fire trail in accordance with the fire trail standards. The owner or occupier is also liable for all costs incurred by it in performing that duty.
The VFFA was concerned that this could lead to a situation where private land owners are forced to spend large amounts of money maintaining fire trails.
All fire trails must be seen as a community asset, they cannot become a burden for private land owners.
The VFFA fully supports the initiative to make amendments to ensure that we maintain a suitable fire trail network but we would like to see an increased level of consultation with senior volunteers and greater powers given to those volunteers to influence fire trail development and maintenance issues.
We are well aware of scenarios where District Managers have their hands tied as the NSWRFS Head Office micro manages many aspects of fire trail development and maintenance.
Questions and Answers – 23 August 2016
The following questions were directed to the Office of the Hon. David Elliott MP, Minister for Emergency Services by NSW Farmers:
1. Will private land owners be required to pay for the cost of the construction and maintenance of fire trails?
No – As fire trails on private land are only developed via agreement, the owner and the RFS will need to agree on the matter of costs for construction and maintenance as per Section 62W(4). In many circumstances, an agreement will be such that the RFS is liable for the cost of construction and maintenance of the fire trail.
It very much depends on the circumstances and if the trail in question has multiple uses if a land owner is responsible for costs of construction and maintenance. For example it may be a trail that RFS pays to upgrade but is also used frequently by the land owner for their own purposes. In this case we would come to an agreement on what is fair for maintenance responsibilities. If they used heavy vehicles on it constantly, the State cannot be solely responsible for all of the maintenance.
2. What safeguards are there to the powers of entry at 62ZP? Are they required to give notice before entry?
The bill does not require RFS to give notice prior to entering land, however, notice will ordinarily be provided as a courtesy. This is consistent with existing provisions of the Rural Fires Act 1997, being:
- 62D(2): neighbourhood safer places inspections
- 69: inspections by hazard management officers
- 74D(3): investigation of bush fire hazard complaints
Section 62ZP of the Bill permits the Commissioner or an authorised member of the RFS to enter private land (other than a dwelling-house) in the daytime to:
- Carry out work on a fire trail
- Consider/ assess whether a fire trail is on the land or should be established
- The suitability of a fire trail or proposed fire trail
- Whether a fire trail complies with the standards
Note that s 62ZP(2) states that the purpose of the powers of entry are to carry out work under the Part – i.e. the entry powers only relate to designated and registered fire trails. In relation to private land, a fire trail only becomes designated or registered once an agreement is entered into with the private land owner (s 62M(7)/ definition of ‘designated fire trail’ in the dictionary). Therefore, an owner must have agreed to have the fire trail constructed on the land before a power of entry can be exercised.
What can a private land owner be penalised for? What is the penalty?
Practically this would only be used where a landowner has agreed to the construction of a trail and the State has paid significant money to establish it, then the landowner changes their mind and decides to block access. What needs to be remembered is that there is no ability for the State to impose a trail on private land owners.
Closure is defined at s 62ZG as:
- wholly, partly removed or destroyed
- obstructed so that the trail cannot be used as a fire trail
- a sign placed indicating the trail is not available for use as a fire trail
- otherwise not available for use as a fire trail
Any person can be penalised for closure of a fire trail. The penalty at s62ZI for an individual that closes a fire trail without reasonable excuse is a maximum of 20 penalty units or 2 years imprisonment. The penalty for a corporation or public authority is 220 penalty units.
A reasonable excuse would be circumstances such as if a tree fell across a fire trail following a storm which obstructs access to the fire trail. If a land owner had notified the RFS of this (and depending on who is responsible for maintenance as per the agreement) it would be unlikely that the land owner would be subject to a penalty.
Will an agreement re fire trails transfer to the new land owner if a private property is sold?
Both designated and registered fire trails ‘run with the land’, meaning that a fire trail continues to be designated or registered even if the land on which the fire trail sits changes ownership (s 62ZQ).
Some fire trails will be created as an easement under s88B Conveyancing Act 1919 (provided the land owner agrees). When there is an easement, this will be obvious to any new owner by conducting a check of the land titles register. Any person, including purchasers will also be able to view all certified fire trails on the NSW RFS Fire Trail Register (which the Bill obliges NSW RFS to keep (s 62O)).
The contractual agreement that RFS enters into with private land owners will include a provision that obliges the owner to notify any purchaser of the land that there is a fire trail on the land – failure to do so would be a breach of the agreement.
Once land on which a fire trail is situated changes hands, the NSW RFS will seek to enter into a new agreement with the new land owner. If the land gets sold and the new owner has a different view, the RFS would look for alternatives to that particular trail, which may include relocation. This may take some time so the current trail would need to be preserved while another solution is found.
It needs to be remembered that a better fire trail network will improve access for firefighters during bushfires and better facilitate planning and management of hazard reduction in rural communities.
The Debate Continued – 24th August 2016
The Hansard for Rural Fires Amendment (Fire Trails) Bill 2016 can be viewed HERE.
Mr Guy Zangari said:
I speak in debate on the Rural Fires Amendment (Fire Trails) Bill 2016 and note that the aim of the Rural Fires Amendment (Fire Trails) Bill 2016 is to create a system for the purpose of establishing, maintaining and protecting fire trails throughout New South Wales. The Labor Opposition is opposed to the bill and will move an amendment to refer it to the appropriate committee for inquiry in the other place. Fire trails and fire access points are vital for the prevention, maintenance, fighting or containment of bushfires. The New South Wales Labor Opposition consulted with the NSW Rural Fire Service Association [RFSA], the Volunteer Fire Fighters Association [VFFA], NSW Farmers and the Nature Conservation Council of New South Wales. Together with the Colong Foundation for Wilderness, those organisations expressed their views and concerns about this legislation.
An area of concern that arose repeatedly throughout the consultation period concerned new section 62W. Every member in this House would agree that enhancing our fire trail network would be of enormous benefit to our communities and to the safety of our firefighters. However, this Government intends to place the financial burden of the construction and maintenance of fire trails on private lands onto private land owners or occupiers. When the fire trails are constructed they must be done in accordance with fire trail standards. The landowner or occupier is expected to fork out the money to do that. Any and all costs associated with the construction and maintenance of the fire trails fall on the shoulders of landowners or occupiers; that is the crux of new section 62W.
Mr David Elliott said, in reply:
The Opposition’s funding concerns are unwarranted. I remind members, or anyone concerned about the legislation, that fire trails on private land may be established subject to agreement between the commissioner, the Rural Fire Service and the landowner. It is subject to agreement. The landowner is not obliged to enter into any such agreement. Despite what you hear from the doomsayers, this is a voluntary approach to fire trail establishment and maintenance. As has been stated in debate, it will cover all necessary matters to allow the establishment and maintenance of fire trails.
I conclude by reminding members of this House that where the Rural Fire Service has entered into an agreement with the private, landowner the Rural Fire Service will assist with the establishment and maintenance of that fire trail. It will not be left to chance or to the landowner. Where the trail is used by the landowner for other purposes in addition to firefighting, the commissioner will negotiate suitable costs, which is only fair and equitable, and there will be a sharing arrangement with the owner, which will be included in the agreement.
On 24 August, the NSW Legislative Council debated and passed the Rural Fires Amendment (Fire Trails) Bill 2016. The Bill provides for standardised fire trails across NSW, including on private land. Guarantees have been sought from the Minister’s office that private landholders will not be left bearing the costs of any fire trail roll out across NSW. These reassurances have also been recorded on the Hansard.
Legislative Council Hansard – 14 September 2016
Section 62W creates a duty on the owner or occupier of land on which a fire trail is situated to construct and maintain the fire trail in accordance with the Fire Trail Standards. The owner or occupier is also liable for all costs incurred by it in performing that duty.
However, section 62W (4) allows private landowners to vary the duty by agreement with the NSW RFS. This means that private landowners will not be responsible for construction or maintenance of a fire trail, or liable for the cost to construct or maintain a fire trail, if they do not want to be.
The provision is intended to provide for situations where, for example, a fire trail incorporates part of a road used primarily for private purposes which it would be inappropriate to use public funds to maintain.
Where that situation exists, the agreement between the land owner and NSW RFS may provide for some costs to be met by the land owner. In situations where the fire trail is only used as a fire trail, it would be likely that the owner would bear no responsibility and no liability for the construction, maintenance or cost of the trail.
Further, the duty does not apply to an occupier of public land who is not a public authority.
This legislation has the potential to become problematic in the future. The amended section 62W(4) is an improvement but the true context of section 62W is unclear and questions are being asked why it needs to be included at all.
There is a perception that this could lead to the closure of fire trails on private land as land owners become frustrated with the ever increasing bureaucracy and loss of local control and input.
In many case, fire trails are provided for the ultimate protection of the community at large, therefore all fire trails must be seen as a community asset, they cannot become a burden for private land owners.
Many of those private land owners that could be impacted by the new section 62W are infact volunteer firefighters who assist the government and the local communities without charge. Many of those volunteers have provided private land for the purposes of fire trail use without charge.