SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (4 April 2012)

SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (4 April 2012) - WASCA 2012 case summary — Zoe

[351]

The decision to burn DPHB8 on 31 March 2004 was made in the following broad context:

(a) the area was nearby to a significant town, Pemberton, and formed part of an important National Park. The burn had a high strategic value in the prescribed burning programme;

(b) the area had a fuel load of 73 - 93 tonnes per hectare, when the limit at which wildfire in karri forest can generally be controlled in most weather conditions is under 19 tonnes per hectare;

(c) the area also had tactical value within the overall burning programme in that, once burned, it would provide an area of low fuel from which to burn other very high fuel areas to the south;

(d) it was in dense karri forest with predominantly K1 and K2 understorey, which meant that there was a limited opportunity effectively and safely to carry out a burn. Essentially, its location and vegetation meant that it could not be properly burned at any time in the period May to at least mid-December inclusive, it was likely to become unsuitable for burning at some time in April and even in January to March/mid-April there was no assurance of favourable wind and weather conditions;

(e) it was a burn which had been introduced as part of the Master Burn Plan into the six-season burn programme in 1999, and which had remained unburned for several years because of resource limitations and the absence of favourable burning conditions;

(f) the forecast weather conditions for the period 31 March to 3 April 2004 indicated that the burn could be conducted safely and effectively within that period;

(g) the burn would serve important objectives, in accordance with the Forest Management Plan. The objectives, referred to in the burn prescription, were the protection against wildfire damage to nearby private property, and to the mature forest within the Warren National Park, and to park facilities, and also to visitors who used the park for recreational purposes, and the protection and maintenance of the biodiversity processes and ecological values;

(h) if the burn was delayed, there was no guarantee that a combination of propitious conditions and adequate resources would converge to ensure that the burn occurred in the following year, or even in subsequent years;

(i) there had been a backlog of prescribed burning and the State had recently (in 2003) experienced its worst bushfires for many years and there had also been, at a national level, the experience of the terrible bushfires in Canberra, New South Wales and Victoria in 2002/2003;

(j) the south-west forests are fire-prone, and are at real risk of wildfire from both lightning and anthropogenic causes;

(k) wildfire has potentially devastating consequences, including loss of life and destruction of private and public assets and the environment; and

(l) prescribed burning is the cheapest and most ecologically sound way to reduce fuel loads, and thereby to reduce the risk of uncontrollable high-intensity wildfires [406].

[506]

Furthermore, if my conclusions above are erroneous, the decision to burn DPHB8, when it was burnt, was, in essence, a decision based substantially on political or social factors or constraints, and was accordingly a policy decision within the meaning of s 5X of the Civil Liability Act. On either basis upon which the plaintiffs put their case, namely, the deferral of the burn until after harvest or some other unspecified time, or a deferral from 31 March to 1 April, the gravamen of the complaint is that an appreciation of the risk of harm to the plaintiffs' grapes should have led to the burn not being carried out when it was. The question of whether the risk of smoke taint to the grapes, and thus to the economic interests of winegrowers in the region, should be determinative in deciding whether to proceed in accordance with the prescribed burning programme for 2004, was the very matter which the Minister was asked to consider. The plaintiffs' particular request for deferral was also before the Minister. The decision to burn in accordance with the prescribed burning programme irrespective of the risk of damage to grape crops in early 2004, was, in my view, clearly a decision based substantially on political and social factors. This is so having regard both to the nature of the decision, and the circumstances in which it was made. It was made against the broad background of the political history of prescribed burning in this State, and in the context of the particular political sensitivities prevalent at that time, as revealed in the Minister's statements to the House. The operational decision to burn on 31 March 2004 gave effect to the Minister's decision.

Having regard to the matters in [406] - [428], it was not, in my view, a decision so unreasonable that no reasonable public body or officer could have made it. In these circumstances, any fault by the Department in deciding to carry out the burn on 31 March 2004, or in failing to defer the burn, was, in substance, a policy decision in the performance of a public function. Such a policy decision cannot be used to support a finding of fault, by reason of s 5X of the Civil Liability Act. Accordingly, in my view, to make a finding of liability on the basis that the defendants failed to defer the burn, would be contrary to s 5X [510] - [511].

[535]

KING, MR: Your Honour, while Mr Casey is being sworn, can I just rise for a moment to address you in relation to one aspect of my learned friend's opening?

MURPHY J: Yes.

KING, MR: There is the suggestion that nuisance as well as negligence is being relied upon by the plaintiffs. Nuisance has not been pleaded and in order to now rely on it as a fresh cause of action, the plaintiffs would need to amend their statement of claim. This, we say, is just too late. It may well be that there are many similarities between nuisance and negligence and the criteria are very similar but in my understanding of the law, [limited] as it may be in that area of nuisance, there is a difference. Different issues would arise. The defendants would need to consider whether or not to call evidence. They would need to amend the defence to deal with the pleading. In these circumstances it just seems to us that it's just too late.

MURPHY J: Yes. Perhaps I will just ask Mr Viner, do you say nuisance is pleaded, Mr Viner?

VINER, MR: It's not explicitly pleaded but our contention would be that it is at the very least implicit in the allegation of negligence and the pleadings of fact that in the sense that the defendants undertook an act which does create a nuisance, namely, lighting a fire from which smoke and ash can be emitted, which if not undertaken with care, which is the negligence component, leads to liability - but I will, if I may, have a look at that and seek to clarify the position, but fundamentally we rely on the pleading as it is.

MURPHY J: Yes. If you need to amend then, of course, you would have to make an application and show the minutes and you would have to swear an affidavit. You have read the High Court's recent decision about amending cases at trial.

VINER, MR: I understand, your Honour, and in making that remark in opening I was intending that it did not alter the fundamental pleading that is there which is based on negligence.

MURPHY J: Yes. Perhaps certainly think about it and speak to Mr King about it but any application to amend is quite a significant thing, these days at least.

VINER, MR: I understand, your Honour, and I don't wish to widen the trial, nor complicate it unnecessarily. Thank you.

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SOUTHERN PROPERTIES (WA) PTY LTD -v- EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT [2012] WASCA 79 (4 April 2012)

Legislation Cited (5)

Cases Cited (35)