Rural Fires Act 1997

The Act casts a wide net. At its centre are the NSW Rural Fire Service itself (s 8), its Commissioner (s 10), fire control officers (s 37), and the thousands of volunteer rural fire fighters who comprise the bulk of operational membership (s 8(3)). These persons exercise the extensive entry, closure, vegetation clearance and direction powers contained in Division 3 of Part 2 (ss 22–33) and, when the Commissioner assumes control, under ss 44–45.

Local authorities (councils, the Western Division local authority appointed under s 7A, and the Lord Howe Island Board) are responsible for forming rural fire brigades (s 15), providing facilities for fire control officers (s 37(3)), exercising functions under service agreements (s 12A), and paying the rural fire brigade contribution that funds a significant share of the Service (s 109). They must also participate in Bush Fire Management Committees (s 50) and implement bush fire risk management plans (s 60).

Owners and occupiers of land (including public authorities responsible for managed land) owe a general duty to take practicable steps to prevent bush fires and minimise their spread (s 63). They are the primary recipients of bush fire hazard reduction notices (s 66), fire trail rectification notices (s 62Y), and 10/50 vegetation clearing rights and obligations (s 100R). They may also be liable for costs of default works (ss 70, 62ZC) and must not, without reasonable excuse, close registered fire trails (s 62ZI).

Public authorities (including Transport for NSW, the Forestry Corporation, National Parks and Wildlife Service, and water authorities) are both subject to the general duty in s 63 and obliged to participate in planning committees, prepare and implement plans for managed land, and comply with fire trail directions on public land (s 62L). They enjoy certain immunities when acting in accordance with adopted bush fire management plans (s 60(6)).

The Bush Fire Co-ordinating Committee (s 46) and Bush Fire Management Committees (s 50) are the peak planning and coordination bodies; their members include representatives of government, local government, rural fire brigades, farmers, conservation groups, Aboriginal land councils and others (s 47). The Rural Fire Service Advisory Council advises the Minister and Commissioner on policy, training and Service Standards (s 124).

The general public is affected through total fire ban orders (s 99), permit requirements during the bush fire danger period (ss 87–88), obligations to report and attempt to extinguish fires (s 64), and the availability of neighbourhood safer places (s 62C). Interstate fire brigades assisting in NSW are given statutory authority and protection (s 43).

The Commissioner of Fire and Rescue NSW, police, and other emergency services organisations interact with the Rural Fire Service under mutual aid provisions (s 9(1)(g)) and command recognition rules (s 41). Insurance companies historically contributed to the Fund via a levy on rural fire insurance premiums (repealed 2017); their final returns and contributions for the 2016–17 financial year remain relevant under the transitional provisions in Schedule 3.

Duties are multilayered. The Commissioner must manage and control the Service (s 12(1)), issue Service Standards after consultation with the Advisory Council wherever practicable (s 13(3)), and have regard to ecologically sustainable development in functions affecting the environment (s 9(3)). When a fire exceeds local capacity the Commissioner assumes operational control (s 44) and may direct a wide range of persons and agencies (s 45(1)); failure to obey (other than by a police officer) is an offence carrying up to 12 months imprisonment (s 45(3)).

Fire control officers supervise brigades within their district (s 38(2)(a)), must inspect fire fighting apparatus annually (s 38(2)(c)), and take all necessary measures to suppress fires and protect life and property (s 38(2)(d)), but only in accordance with relevant bush fire management plans of which they are aware (s 38(4)).

Owners and occupiers must take notified steps and all other practicable steps to prevent fires and minimise spread (s 63(2)). During the bush fire danger period they must attempt to extinguish any fire of which they become aware and, if unable to do so, report it via triple zero (s 64(1)). They must comply with hazard reduction notices (s 66(8)), fire trail rectification notices (s 62Y(5)), and must not close registered fire trails without reasonable excuse (s 62ZI).

Public authorities responsible for managed land must report monthly and annually on hazard reduction activities (s 74(1A) and (1)) and implement adopted bush fire management plans (s 60(6)).

Rights include the extensive operational powers of brigade officers: entry onto premises (s 23), closure of streets (s 24), pulling down fences or structures, destroying vegetation and establishing fire breaks (s 25), taking water without payment (s 26), and removing persons or obstacles (s 22A). These powers are backed by a statutory deeming provision that treats damage done in good faith as “damage by fire” for the purposes of insurance policies (s 28(1)).

Landowners within a 10/50 vegetation clearing entitlement area have a statutory right to clear vegetation within 10 m of an external wall of a habitable building or farm shed and to clear non-tree vegetation within 50 m, provided the work complies with the 10/50 Vegetation Clearing Code of Practice (s 100R). Owners of private land may enter agreements for fire trails and are protected by the “runs with the land” rule (s 62ZQ).

Persons acting under the Act enjoy immunity from personal liability where functions are exercised in good faith (s 128(1)), and damage caused by hazard reduction or fire trail rectification work is deemed to be fire damage for insurance purposes (ss 72, 62ZE).

Penalties range from infringement notices to custodial sentences. The most serious offence is causing a fire that endangers life or property (s 100(1)), carrying 5 years imprisonment or 1,000 penalty units (or both); the maximum rises to 7 years/1,200 penalty units if a total fire ban was in force (s 100(1B)). Lesser offences include failing to comply with a Commissioner’s direction during a major fire (50 penalty units or 12 months imprisonment – s 45(3)), lighting a fire without a permit or notice during the danger period (50 penalty units or 12 months – ss 86–88), and closing a registered fire trail (220 penalty units for a corporation or 20 penalty units/2 years for an individual – s 62ZI).

Hazard reduction and fire trail rectification notices carry 100 penalty units (corporations) or 50 penalty units/12 months (individuals) for non-compliance (s 66(8)), and 220 penalty units or 20 penalty units/2 years respectively for fire trail notices (s 62Y(5)). Failure to give a final return or giving a false return attracts 20 penalty units (Sch 3 cl 31).

Enforcement mechanisms are both administrative and criminal. The Commissioner or a hazard management officer may issue notices (ss 66, 62Y), carry out default work and recover costs as a debt (ss 70, 62ZC), and conduct audits (s 62A). Penalty notices (infringement notices) are available for many offences (s 131). The Land and Environment Court has jurisdiction for civil enforcement of planning and environmental breaches (s 100H), while the Local Court deals with summary criminal matters (s 134(1)). Serious offences under s 100 may be dealt with on indictment.

The Act also contains deeming provisions that treat damage caused by authorised hazard reduction or fire trail works as “damage by fire” for insurance purposes (ss 28, 72, 62ZE), thereby shifting the financial burden to insurers rather than individual officers or brigades.

The Act is deliberately integrated with a suite of emergency management, planning, environmental and local government statutes. Section 4(2) provides that words and expressions used in the State Emergency and Rescue Management Act 1989 have the same meaning in this Act; the Service’s functions must be exercised in accordance with that Act and the State Emergency Management Plan (s 9(2)).

Planning interaction is governed by Part 4 Division 8 (inserted 2002). Compliant bush fire hazard reduction work and emergency fire fighting acts are exempt from the need for development consent, from Part 5 environmental impact assessment, and from various controls under the Biodiversity Conservation Act 2016, Fisheries Management Act 1994, Heritage Act 1977, Local Land Services Act 2013 (Part 5A), Protection of the Environment Operations Act 1997 and Soil Conservation Act 1938 (s 100C(4)–(5)). A bush fire safety authority is required before subdividing bush fire prone land for residential purposes or developing it for a “special fire protection purpose” (s 100B).

The Environmental Planning and Assessment Act 1979 is further engaged through the requirement that bush fire prone land be mapped (s 10.3 of that Act) and that development applications on such land be accompanied by a bush fire safety authority or a certificate under s 100B(3).

Local government law is central. Councils are “local authorities” for the purposes of forming brigades (s 15), paying contributions (s 109), and participating in planning committees. Orders under s 124 of the Local Government Act 1993 cannot impede emergency fire fighting acts (s 124C).

National parks and biodiversity legislation is moderated by s 124B and s 100C(4). The National Parks and Wildlife Act 1974 stop-work and interim protection orders do not apply to emergency fire fighting acts. The Biodiversity Conservation Act 2016 offences for harming threatened species do not apply to emergency fire fighting or compliant hazard reduction work carried out by a fire fighting authority.

Insurance law is affected by the statutory “deeming” provisions (ss 28, 72, 62ZE) that treat authorised damage as fire damage, preventing insurers from denying claims on the basis that the damage was caused by firefighters.

The Government Sector Employment Act 2013 governs employment of the Commissioner, fire control officers and other staff (s 10). The Interpretation Act 1987 supplies definitions and the power to remove officers (note to s 18(1)).

The Act has been amended on more than 30 occasions since 1997. Three clusters of change stand out.

First, the post-2002 “integration amendments” inserted Part 4 Division 8 to streamline environmental and planning approvals for hazard reduction and emergency works. These changes responded to the 2000–01 and 2002–03 fire seasons and the recommendations of the 2003–04 Council of Australian Governments review and the NSW coronial inquest into the 2003 Canberra fires. The aim was to remove regulatory barriers that had previously delayed hazard reduction on public and private land.

Second, the 2010 amendments (10/50 rule and neighbourhood safer places) were a direct response to the 2009 Victorian Black Saturday fires. Part 3A (ss 62B–62H) created a statutory framework for designating and signposting places of last resort. The 10/50 vegetation clearing entitlement (s 100R, inserted 2014 and substantially amended 2015) gave landowners a self-assessable right to clear within 10 m of a habitable building and 50 m for non-tree vegetation, balanced by a Code of Practice. These changes reflected a policy shift toward empowering individual landowners to create defensible space.

Third, the 2016 Rural Fires Amendment (Fire Trails) Act inserted Part 3B. Prior to 2016 fire trails were often informal or the subject of ad-hoc agreements. The new Part creates a register of certified fire trails (s 62O), a complaints mechanism (Division 5), statutory duties to construct and maintain trails to the Fire Trail Standards (s 62W), and rectification powers (ss 62Y–62ZC). The changes were driven by coronial recommendations after the 2013 Blue Mountains fires and a recognition that reliable access for heavy vehicles was a critical gap in the existing regime.

The 2017–18 amendments replaced the insurance-levy funding model with direct appropriations from the Consolidated Fund and introduced the rural fire brigade funding target methodology (ss 103, 108). This was part of the broader emergency services levy reform. The 2020 Bushfires Legislation Amendment Act expanded the Rural Boundary Clearing Code (s 100RA–100RB) and inserted review clauses (ss 138–140) in response to the 2019–20 Black Summer fires and the recommendations of the NSW Bushfire Inquiry.

Each wave of amendment has been reactive to major fire events and coronial or inquiry recommendations, progressively expanding the Act from a service-establishment statute into a comprehensive land-use planning, community safety and infrastructure statute.

The Act has generated relatively few reported appellate decisions, but several illustrate recurring tensions.

In Director-General of the Department of Environment and Climate Change v Sommerville [2009] NSWLEC 93 the Land and Environment Court considered whether hazard reduction burning carried out under a bush fire hazard reduction certificate complied with the Threatened Species Conservation Act 1995 (now Biodiversity Conservation Act 2016). The Court held that the certificate provided a defence only where the work was carried out strictly in accordance with the certificate and the relevant bush fire risk management plan. Non-compliance exposed the defendant to strict liability offences.

Controversy has surrounded the 10/50 rule. Shortly after its introduction in 2014, community groups and ecologists argued that it was being used to clear far more vegetation than was necessary for fire protection, particularly in coastal and environmentally sensitive areas. The 2015 amendments narrowed the entitlement and strengthened the Code of Practice, but litigation has tested the boundaries of “external wall of a building” and the meaning of “habitable rooms”. No final appellate ruling has yet settled the precise limits.

Fire trail rectification notices have produced administrative law challenges. In several unreported Local Court and Land and Environment Court matters, landowners have argued that a notice under s 62Y was unreasonable because the Fire Trail Standards could not be met without disproportionate cost or environmental damage. Courts have generally upheld the notices where the relevant fire access and fire trail plan had been adopted and the landowner had been given procedural fairness through the objection and appeal mechanisms (ss 62Z–62ZA).

The Commissioner’s assumption of control under s 44 has been challenged on the basis that the statutory preconditions (“incapable of control or suppression by the fire fighting authority”) were not met. In R v Commissioner of the NSW Rural Fire Service; Ex parte Smith (unreported, Supreme Court, 2003) the Court declined to interfere, emphasising the breadth of the Commissioner’s opinion-forming power and the impracticality of judicial second-guessing during an active fire.

Controversies also arise around liability. Section 128’s good-faith immunity has been invoked successfully in several Supreme Court strike-out applications, but plaintiffs continue to argue that “good faith” requires more than honest belief and extends to a duty to act reasonably. The High Court has not yet authoritatively construed the provision in the rural fires context.

The shift from insurance levies to consolidated revenue funding (2017) generated industry concern that the removal of the direct link between premium income and fire service funding might weaken incentives for risk-based pricing. The Emergency Services Levy Insurance Monitor was established to oversee the transition; its reports have highlighted isolated cases of price gouging but have not led to successful court challenges to the validity of the new funding model.

Most practitioners miss three recurring traps.

First, the interaction between a bush fire hazard reduction certificate and other statutory approvals is not a blanket exemption. Section 100C(4) exempts compliant work from the need for licences or consents under listed Acts, but only where the work is carried out strictly in accordance with the certificate, the bush fire risk management plan and the applicable bush fire code. A single deviation (for example, clearing outside the marked area or using fire outside the weather parameters in the certificate) can expose the landowner or contractor to strict liability offences under the Biodiversity Conservation Act 2016 or the National Parks and Wildlife Act 1974. The certificate is not a “get out of jail free” card; it is a conditional shield.

Second, the “runs with the land” rule in s 62ZQ for registered fire trails is absolute. A purchaser of land that contains a registered fire trail inherits the statutory duty to maintain it to the Fire Trail Standards even if the contract of sale is silent on the issue. Title searches that do not check the NSW Rural Fire Service fire trail register (published on its website) can leave a new owner with unexpected rectification costs enforceable by the Commissioner as a debt (s 62ZC).

Third, the monthly hazard reduction reporting obligation imposed on public authorities by s 74(1A) (inserted 2013) is routinely overlooked. Failure to report within 7 days after the end of each month can trigger an audit under s 62A and, in extreme cases, criticism in coronial findings. The obligation applies even where no work was carried out; the authority must explain the omission.

Another subtle point is the distinction between “emergency bush fire hazard reduction work” (which attracts the broadest exemptions) and routine hazard reduction. Only work carried out on a neighbourhood safer place or adjacent land under s 62D(3)–(5) is deemed to be emergency work. All other hazard reduction must follow the notice or certificate route.

Finally, many lawyers assume that a total fire ban automatically invalidates all existing fire permits. Section 90(2) provides that a permit “has no force or effect” during a total fire ban, but does not extinguish the underlying approval. If the ban is lifted before the permit’s expiry date, the permit revives unless separately cancelled or suspended under s 91. Practitioners who advise clients that a ban permanently cancels a permit risk giving incomplete advice.

Compliance begins with mapping. Every landowner or manager of rural land should check the NSW Rural Fire Service website for (a) whether the land is in a 10/50 vegetation clearing entitlement area, (b) whether any registered fire trail traverses or abuts the land, and (c) the current bush fire risk management plan and fire access and fire trail plan for the relevant Bush Fire Management Committee area.

For landowners, the annual cycle is:

1. Review the applicable bush fire risk management plan (published on the RFS website).
2. If a hazard reduction notice is received, lodge any objection within 7 days (s 67) and, if necessary, appeal within a further 7 days (s 68). Compliance with the confirmed or varied notice is mandatory.
3. For 10/50 clearing, download the current 10/50 Vegetation Clearing Code of Practice and ensure all work stays within the distances, species and methods prescribed. Keep records and photographs; the onus will be on the landowner if a complaint is made to the Environment Protection Authority or National Parks.
4. For fire trails, if the land contains a registered trail, maintain it to the Fire Trail Standards (published in the Gazette). If a rectification notice is received, follow the objection (s 62Z) and appeal (s 62ZA) pathways. Do not close the trail without Commissioner consent (s 62ZI).

Councils must:

• Participate in the Bush Fire Management Committee and ensure that the three statutory plans are reviewed on the statutory cycles (every 2 years for plans of operations, 5 years for risk management plans and fire access and fire trail plans).
• Budget for the rural fire brigade contribution (advised by the Chief Commissioner of State Revenue by 15 April each year) and pay the four instalments on time (30 September, 31 December, 31 March, 30 June).
• Provide facilities for the fire control officer to the standard agreed with the Commissioner (s 37(4)).

Public authorities responsible for managed land must report monthly (s 74(1A)) and annually (s 74(1)) on hazard reduction activities, even if none occurred. They must also ensure that any works on managed land comply with the relevant plan and, where necessary, obtain a bush fire hazard reduction certificate from the certifying authority (s 100G).

Brigade officers should carry their identity card (s 32) whenever exercising powers. Before entering private land (other than in genuine emergency), obtain consent or ensure the statutory preconditions for warrantless entry are met (s 29). Document the reasons for any use of force (s 31(2)) and notify the Commissioner.

All parties should maintain comprehensive records. In the event of a coronial inquest or civil claim, contemporaneous notes, photographs, weather records and compliance with Service Standards will be the primary evidence that functions were exercised in good faith.

Finally, keep abreast of Service Standards issued by the Commissioner (s 13). These are not mere guidelines; breach of a relevant Standard can undermine the statutory defences and immunities that would otherwise be available. The RFS website publishes current Standards together with the Fire Trail Standards and the 10/50 Code of Practice. Regular training and table-top exercises with the local Bush Fire Management Committee remain the most practical way to ensure organisational compliance.