Div 5Fire prevention

Division 5—Fire prevention Subdivision 1—Preliminary 29—Interpretation (1) In this Division, unless the contrary intention appears— aircraft does not include model aircraft (other than fuel powered model aircraft) or hot air balloons; commercial premises means a building or other structure that is fixed to the ground and connected to a reticulated or stored water supply and that is used for retail or manufacturing; domestic premises means a building or other structure that is fixed to the ground and connected to a reticulated or stored water supply and that is occupied as a place of residence but does not include a caravan; flammable gas means liquefied petroleum gas, reticulated gas, compressed natural gas or acetylene; foreshore means the foreshore of the sea along the coastline of the State and includes the area from low water mark to the nearest bush, standing grass or road (as the case may be); gas fire means an appliance that only uses flammable gas as a fuel and includes hot air balloons; land holding means a continuous area of land subject to the same occupation (and for the purposes of this definition, separate parcels of land subject to the same occupation divided by a road or railway will be regarded as being continuous); portable water spray means— (a) a knapsack spray pump that— (i) is fully charged; and (ii) complies with Australian Standard 1687-1991: Knapsack spray pumps for firefighting; or (b) a water fire extinguisher that— (i) is fully charged; and (ii) has a tank capacity of at least 9 L; and (iii) complies with Australian Standard 1841.2-2007: Portable fire extinguishers—Part 2: Specific requirements for water type extinguishers; and (iv) is maintained in accordance with Australian Standard 1851-2012: Routine service of fire protection systems and equipment; properly constructed fire place means a fire place constructed so that the perimeter of a fire within the fire place is contained by nonflammable material such as stone, metal or concrete; spark arrester means a device fitted to a flue or exhaust system that is designed to prevent the escape of burning material. (2) For the purposes of this Division, an engine or vehicle exhaust system complies with this Division if— (a) all engine exhaust emitted by the engine or vehicle exits through the system; and (b) the system, or a device or devices forming part of the system, is designed to prevent the escape of burning material from the system; and (c) the system, or a device or devices forming part of the system, is designed to prevent heated parts of the system from coming into contact with flammable vegetation; and (d) the system is in good working order. (3) For the purposes of subregulation (2)(a), engine exhaust emitted by a turbocharged engine, or a vehicle fitted with a turbocharged engine, by means of a device of a kind commonly known as a waste gate will be taken to exit through the exhaust system of the engine or vehicle. 29A—Certain acts to constitute lighting and maintaining fire (1) Pursuant to section 148(2) of the Act, the following acts will, for the purposes of the Act, be taken to constitute lighting and maintaining a fire: (a) welding, soldering with an exposed flame, metal cutting, metal grinding or metal abrasion; (b) the use of fireworks; (c) the use of an appliance used to generate smoke for the manipulation of bees; (d) the use of a rabbit fumigator; (e) the use of a bird scarer (within the meaning of regulation 42); (f) the use of explosive materials, other than such an act carried out by a member of SACFS or another recognised emergency service in an emergency to protect life or property. (2) Pursuant to section 148(2) of the Act, the operation of a gas fire or electric element for cooking purposes will, for the purposes of this Act, be taken to constitute lighting and maintaining a fire. (3) Nothing in this regulation limits a provision of the Act, or any other provision of these regulations. Subdivision 2—Fires during the fire danger season 30—Fires permitted under section 79(2) of Act (1) For the purposes of section 79(2) of the Act, a fire may be lighted or maintained in the open air in the following circumstances: (a) a fire for cooking or personal comfort may be lighted or maintained provided that— (i) the fire is contained in a properly constructed fire place, a portable cooking appliance or a trench at least 30 cm deep; and (ii) the space immediately around and above the fire is cleared of all flammable vegetation to a distance of at least 4 m; and (iii) the fire does not occupy an area in excess of 1 m2; and (iv) a person who is able to control the fire is present at the site of the fire from the time it is lighted to the time it is completely extinguished; and (v) an appropriate agent adequate to extinguish the fire is at hand; (b) a fire for heating bitumen or charring may be lighted or maintained provided that— (i) a shield or guard of fire‑resistant material is positioned around the fire to prevent the escape of sparks, hot metal or slag; and (ii) the space immediately around and above the fire is cleared of all flammable vegetation to a distance of at least 4 m, or wetted sufficiently to prevent the spread of fire; and (iii) a supply of water adequate to extinguish the fire is at hand; and (iv) if any equipment is removed from the fire, the equipment is immediately placed in a fire‑proof receptacle; and (v) a person who is able to control the fire is present at the site of the fire from the time it is lighted to the time it is completely extinguished; (c) a fire may be lighted and maintained in accordance with the conditions of a permit; (d) a fire may be lighted and maintained if specifically authorised for the purposes of section 79(2) of the Act under another regulation. (2) The Chief Officer may, by notice in the Gazette, prohibit or restrict the lighting and maintaining of fires under subregulation (1)(a) or (b) in the whole or a specified part of the State. (3) The Chief Officer may, by further notice in the Gazette, vary or revoke a notice under subregulation (2). (4) The Chief Officer must consult with any council for an area that would be affected by a notice under this regulation before the notice is made. 31—Permits (1) In this regulation— designated area means an area of the State in relation to which a fire control officer has been appointed under section 103 of the Act; relevant land means land to be burnt off under a permit. (2) A permit authorising a person to light or maintain a fire in the open air during the fire danger season (but not contrary to the terms of a total fire ban) will be in the form set out in Schedule 9. (3) A permit authorising a person to light or maintain a fire in the open air— (a) contrary to the terms of a total fire ban; or (b) during the fire danger season and contrary to the terms of a total fire ban, will be in the form set out in Schedule 10. (4) A permit issued under the Act for burning off land will include the following conditions: (a) that the land immediately around the relevant land must be cleared of all flammable vegetation to a distance of at least 4 m; (b) that at least 2 persons who are able to control the fire, or such greater number of persons as may be specified in the permit, must be present at the site of the fire from the time it is lighted to the time it is completely extinguished; (c) that the fire must first be lighted from the leeward side of the relevant land to establish a protective break, and then may be lighted from the windward side of the land; (d) that at least 400 L of water, or such greater amount of water as may be specified in the permit, must be kept at hand to extinguish the fire; (e) a water pump and hoses must be kept at hand in case water must be used to control or extinguish the fire; (f) that the holder of the permit must, not more than 7 days, and not less than 2 hours, before the fire is lighted, give notice of their intention to light the fire— (i) to any person who owns, occupies or is in charge of land adjoining the land holding where the relevant land is situated; and (ii) if the relevant land is inside (or partially inside) a council area and the permit was issued by a person other than an officer of the council for that area—to an officer of the council for that area; and (iii) if the relevant land is within 2 km of a government reserve—to the person in charge of the reserve. (5) A permit issued under the Act other than for burning off land will include the following conditions: (a) that the space immediately around and above the fire must be cleared of all flammable vegetation to a distance of at least 4 m; (b) that an appropriate agent adequate to extinguish the fire must be kept at hand; (c) that at least 1 person who is able to control the fire, or such greater number of persons as may be specified in the permit, must be present at the site of the fire from the time it is lighted to the time it is completely extinguished. (6) A notice under subregulation (4)(f)— (a) may be given— (i) in person; or (ii) in writing; or (iii) by telephone or facsimile transmission; or (iv) by email (to a specified electronic address); or (v) by radio; and (b) must include details of the place, date and time at which the fire will be lighted. (7) An authorised officer may, at the officer's discretion, by endorsement on the permit, exempt the holder of a permit from the requirement to comply with a condition under subregulation (4) or (5). (8) An application for a permit may be made— (a) in person; or (b) in writing; or (c) by telephone or facsimile transmission; or (d) by email (to a specified electronic address); or (e) by radio. (9) An application for a permit must specify the location of the proposed fire with reasonable particularity and comply with any other requirement determined by the Chief Officer. (10) If an authorised officer issues a permit— (a) preliminary notice of the issue of the permit may be given to the permit holder by contacting the permit holder by telephone, facsimile transmission, email or radio and informing the permit holder of the permit number and the conditions included in the permit (and the permit holder may proceed to act under the permit on the basis of that notification); and (b) the authorised officer must send a copy of the permit to the permit holder in such manner as is determined by the Chief Officer; and (c) if the permit authorises the permit holder to light or maintain a fire contrary to the terms of a total fire ban, the authorised officer must give notice of the issue of the permit to the regional officer in whose region the fire will be lighted, and send a copy of the permit to that regional officer, in such manner as is determined by the Chief Officer. (11) A person whose permit is revoked may appeal to the Commission against that revocation. (12) An appeal must be instituted by written notice of appeal setting out in detail the grounds of appeal. (13) On an appeal, the Commission may— (a) confirm the revocation; (b) direct that a new permit be issued. 32—Special provisions relating to gas and electric cooking appliances (1) For the purposes of section 79(2) of the Act, a person may operate a gas fire or electric element for cooking purposes in the open air during the fire danger season, provided that— (a) the space immediately around and above the gas fire or electric element is cleared of all flammable vegetation to a distance of at least 4 m; and (b) a person who is able to control the gas fire or electric element is present at all times while it is lighted or charged; and (c) an appropriate agent adequate to extinguish a fire is at hand. (2) For the purposes of section 80(4)(a) of the Act, a person may operate a gas fire or electric element for cooking purposes in the open air contrary to the terms of a total fire ban, provided that— (a) the gas fire or electric element— (i) is used within 15 m of domestic premises, commercial premises or on the foreshore; or (ii) has been installed as a fixture to be used as a cooking facility in— (A) a park or reserve (each within the meaning of the Local Government Act 1999) under the control and management of a council; or (B) a caravan park or a residential park (within the meaning of the Residential Parks Act 2007; or (C) a park or reserve (within the meaning of the National Parks and Wildlife Act 1972); and (b) the space immediately around and above the gas fire or electric element is cleared of all flammable vegetation to a distance of at least 4 m; and (c) a person who is able to control the gas fire or electric element is present at all times while it is lighted or charged; and (d) an appropriate agent adequate to extinguish a fire is at hand. (3) In addition to subregulations (1) and (2)— (a) a council may in relation to a part of its area; and (b) the Chief Officer may in relation to a part of the State outside the area of a council, by notice in the Gazette declare an area of the State to be an area where a person may, in accordance with the terms of the notice, operate a gas fire or electric element for cooking purposes in the open air contrary to the terms of a total fire ban. (4) A notice under subregulation (3)— (a) must be in the form set out in Schedule 5; and (b) may be limited in its operation to particular times of the day, and to particular days of the year; and (c) will operate subject to the following conditions: (i) that the space immediately around and above the gas fire or electric element must be clear of all flammable vegetation to a distance of at least 4 m; (ii) that a person who is able to control the gas fire or electric element must be present at all times while it is lighted or charged; (iii) that an appropriate agent adequate to extinguish a fire must be at hand; and (d) will operate subject to such other conditions (if any) as may be specified by the council or the Chief Officer (as the case may be); and (e) may be varied or revoked by further notice in the Gazette. (5) If a council publishes a notice in the Gazette under this regulation, the council must immediately send a copy of the notice to the Chief Officer. 33—Fires during fire danger season—orchards and vineyards For the purposes of section 79(2) of the Act, a fire may be lighted or maintained in the open air during the fire danger season in an orchard or vineyard for the purpose of smudging for insect pests, or preventing damage by frost, provided that the space immediately around and above the fire is cleared of all flammable vegetation, other than growing fruit trees or vines, to a distance of at least 4 m. 34—Fires in the open air on a total fire ban day For the purposes of sections 79(2) and 80(4)(a) of the Act, a fire may be lighted or maintained in the open air during the fire danger season and contrary to the terms of a total fire ban— (a) by an Aboriginal person, provided that— (i) the fire is lighted on land set aside for Aboriginal purposes; and (ii) the fire is used for domestic or cultural purposes of Aboriginal origin; or (b) to charge explosive materials as part of mining operations under or pursuant to the Mines and Works Inspection Act 1920, provided that— (i) at least 400 L of water are at hand along with a water pump and hoses capable of being used to extinguish a fire; and (ii) a sufficient number of persons who would be able to control the escape and spread of fire are present at all times during the mining operations involving the use of those explosive materials and for a reasonable time after the use of explosive materials is complete; or (c) to light a flare containing flammable material in connection with a mercy flight or in a situation where an aircraft cannot use an electrically lit runway, provided that— (i) each flare is in a metal tray that is large enough to hold all the flammable material; and (ii) the space immediately around the flare is cleared of all flammable vegetation to a distance of at least 4 m; and (iii) fire‑fighting equipment adequate to extinguish the flare and control the escape and spread of fire is at hand; and (iv) a sufficient number of persons to control the escape and spread of fire are present at the site of the flares from the time they are lighted to the time they are completely extinguished; or (d) by a member of SACFS or another recognised emergency service if the fire is connected with the use of equipment required in an emergency to protect life or property, provided that such steps as are reasonably practicable in the circumstances are taken to control the escape and spread of fire. Subdivision 3—Restrictions on the use of certain appliances etc 35—Stationary engines (1) Pursuant to section 89 of the Act, a stationary engine is prescribed. (2) A person must not, during the fire danger season, operate a stationary engine not enclosed by non‑flammable material in the open air unless— (a) the space immediately around and above the engine is cleared of all flammable vegetation to a distance of at least 4 m, or a person who is able to control the engine is present at all times while the engine is in use; and (b) a shovel or rake, and an appropriate agent adequate to extinguish a fire, are at hand; and (c) the engine is fitted with an exhaust system that complies with this Division. (3) A person must not, during the fire danger season, operate a stationary engine enclosed by non‑flammable material in the open air unless the engine is fitted with an exhaust system that complies with this Division. (4) In this regulation— stationary engine means a steam engine, an internal combustion engine or a turbine engine that is operated in a stationary position. 36—Internal combustion engines (1) Pursuant to section 89 of the Act, an internal combustion engine is prescribed. (2) A person must not, during the fire danger season, operate an internal combustion engine in connection with— (a) harvesting a flammable crop; or (b) moving a flammable crop on the land holding where it has been harvested; or (c) spreading lime or fertiliser, unless— (d) a shovel or rake, and an appropriate agent to extinguish a fire, are at hand; and (e) the engine is fitted with an exhaust system that complies with this Division. (3) A person must not, during the fire danger season, operate an internal combustion engine, other than in connection with an activity referred to in subregulation (2), in circumstances where the internal combustion engine comes into contact with, or is operated in the vicinity of, any flammable bush, grass, pasture or stubble, unless— (a) a person who is able to control the engine is present at all times while the engine is in use; and (b) a shovel or rake, and an appropriate agent to extinguish a fire are at hand; and (c) the engine is fitted with an exhaust system that complies with this division. 37—Vehicles (1) Pursuant to section 89 of the Act, a vehicle driven by an internal combustion engine (other than an aircraft) is prescribed. (2) A person must not, during the fire danger season, drive a vehicle referred to in subregulation (1) within 2 m of flammable bush or grass unless the vehicle is fitted with an exhaust system that complies with this Division. 38—Aircraft (1) Pursuant to section 89 of the Act, an aircraft is prescribed. (2) A person must not, during the fire danger season, land an aircraft on, or take off from, land in the country unless reasonable steps have been taken (on account of the use of the land by the aircraft)— (a) to prevent the outbreak of fire on the land; and (b) to be able to control and suppress a fire that might break out on the land (whether by the provision of fire‑fighting equipment, the clearing of a firebreak, or otherwise). (3) This regulation does not apply in relation to— (a) an aircraft that is landing on, or taking off from, a government or licensed airfield; or (b) an aircraft that is on a mercy flight; or (c) an aircraft that is landing or taking off in any other emergency; or (d) an aircraft that is engaged in a fire‑fighting operation under the direction of an SACFS officer; or (e) an aircraft that is exempted from the operation of this regulation by the Chief Officer. 39—Welding, soldering, metal cutting, grinding and abrasion (1) Pursuant to section 89 of the Act, appliances used to carry out the following activities are prescribed: (a) welding or soldering with an exposed flame; (b) metal cutting; (c) metal grinding; (d) metal abrasion. (2) A person must not, during the fire danger season, operate an appliance referred to in subregulation (1) in the open air unless— (a) the space immediately around and above the appliance is cleared of all flammable vegetation to a distance of at least 10 m; and (b) an appropriate agent to extinguish a fire is at hand; and (c) a person who is able to control the appliance is present at all times while the appliance is in use or alight. (2a) Subregulation (2) does not apply to a person who operates an appliance referred to in subregulation (1) in the open air in accordance with a permit issued under section 81 of the Act. (3) Despite subregulations (1) and (2), a person must not operate an appliance referred to in subregulation (1) in the open air for any purpose on a day in relation to which a total fire ban under section 80 of the Act has been imposed in any part of the State to which the total fire ban applies. (4) This regulation does not apply to a member of SACFS or another recognised emergency service who must use an appliance in an emergency to protect life or property. (5) For the purposes of section 79(2) of the Act, a fire may be lighted or maintained in the open air as part of the operation of an appliance in accordance with subregulation (2). 40—Bees (1) Pursuant to section 89 of the Act, an appliance used to generate smoke for the manipulation of bees is prescribed. (2) A person must not, during the fire danger season, use an appliance referred to in subregulation (1) unless a portable water spray in good working order is at hand. 41—Rabbit fumigators (1) Pursuant to section 89 of the Act, an appliance used as a rabbit fumigator is prescribed. (2) A person must not, during the fire danger season, use an appliance as a rabbit fumigator unless— (a) the space immediately around and above the appliance is cleared of all flammable vegetation to a distance of at least 4 m; and (b) a portable water spray in good working order is at hand; and (c) a sufficient number of persons who would be able to control the escape and spread of fire are present at all times while the appliance is in use. 42—Bird scarers (1) Pursuant to section 89 of the Act, a bird scarer is prescribed. (2) A person must not, during the fire danger season, use an appliance as a gas bird scarer unless— (a) the space immediately around and above the appliance is cleared of all flammable vegetation to a distance of at least 4 m; and (b) the bird scarer— (i) is constructed so as to prevent the escape of fire or burning material; and (ii) is in good working order and clean so as to avoid a malfunction that could cause a fire; and (c) the person using the bird scarer takes all reasonable precautions to ensure that the bird scarer cannot fall over, or be knocked over or otherwise interfered with by animals. (3) A person must not, during the fire danger season, use an explosive agent bird scarer in the open air except in accordance with a permit issued under section 81 of the Act. (4) In this regulation— bird scarer means— (a) a gas bird scarer; or (b) an explosive agent bird scarer; explosive agent bird scarer means a device that detonates an explosive agent (other than a gas) to create a noise to scare birds; gas bird scarer means a device that detonates a flammable gas to create a noise to scare birds. 43—Fireworks (1) Pursuant to section 89 of the Act, fireworks are prescribed. (2) A person must not, during the fire danger season, use fireworks in the open air except in accordance with a permit issued under section 81 of the Act. 44—Blasting (1) Pursuant to section 89 of the Act, blasting any tree, wood or timber by the use of explosive materials is prescribed. (2) A person must not, during the fire danger season, carry out blasting referred to in subregulation (1) unless— (a) a shovel or rake are at hand; and (b) at least 400 L of water are at hand along with a water pump and hoses capable of being used to extinguish a fire; and (c) a sufficient number of persons who would be able to control a fire are present at all times while the blasting is carried out, and for a reasonable time after the blasting is completed. Subdivision 4—Burning objects and material 45—Burning objects and material (1) A person must not smoke in the open air in the country within 2 m of flammable bush or grass (but this prohibition does not operate within a municipality or township). (2) A person must not, without lawful excuse, drop or throw a burning object or material from a vehicle. (3) A person must not, without lawful excuse, drop or throw a burning object or material in circumstances in which it may come into contact with flammable vegetation and cause a fire in the country. (4) A person must not, without lawful excuse, drop or throw any material capable of causing a fire in circumstances in which it may cause a fire in the country. Subdivision 5—Miscellaneous 46—Fire safety at premises Pursuant to section 86 of the Act, a building outside the area of a council that would, if it were inside the area of a council, be classified as a Class 2, 3, 4, 5, 6, 7, 8 or 9 building under the Building Code (within the meaning of the Planning, Development and Infrastructure Act 2016), is prescribed. 47—Caravans (1) A person must not use a caravan in the country unless an efficient fire extinguisher that complies with subregulation (2) is carried in the caravan. (2) A fire extinguisher required under subregulation (1) must— (a) comply with Australian Standard 1841.5:2007: Portable fire extinguishers—Part 5: Specific requirements for powder type extinguishers; and (b) have a minimum classification and rating of 10B, as defined by Australian Standard 1850:2009: Portable fire extinguishers—Classification, rating and performance testing; and (c) be maintained in accordance with Australian Standard 1851-2012:  Routine service of fire protection systems and equipment.