Note. Part 4 deals with the prevention and minimisation of the spread of bush fires throughout the State. It provides for bush fire hazard reduction work to be done, for limitation of the lighting of fires without a permit during bush fire danger periods and the imposition of total fire bans. It imposes responsibilities on the owners and occupiers of land and public authorities in relation to these and other matters.
Division 1 Duty to prevent bush fires
63 Duties of public authorities and owners and occupiers of land to prevent bush fires
(1) It is the duty of a public authority to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of a bush fire on or from:(a) any land vested in or under its control or management, or(b) any highway, road, street, land or thoroughfare, the maintenance of which is charged on the authority.(2) It is the duty of the owner or occupier of land to take the notified steps (if any) and any other practicable steps to prevent the occurrence of bush fires on, and to minimise the danger of the spread of bush fires on or from, that land.(3) A public authority or owner or occupier is liable for the costs incurred by it in performing the duty imposed by this section.(4) The Bush Fire Co-ordinating Committee may advise a person on whom a duty is imposed by this section of any steps (whether or not included in a bush fire risk management plan) that are necessary for the proper performance of the duty.(5) In this section:notified steps means:
(a) any steps that the Bush Fire Co-ordinating Committee advises a person to take under subsection (4), or(b) any steps that are included in a bush fire risk management plan applying to the land.
64 Occupiers to extinguish fires or notify fire fighting authorities
(1) If a fire (not being a fire or part of a fire lit under the authority of this Act or any other Act) is burning on any land at any time during a bush fire danger period applicable to the land the occupier of the land must:(a) immediately on becoming aware of the fire and whether the occupier has lit or caused the fire to be lit or not, take all possible steps to extinguish the fire, and(b) if the occupier is unable without assistance to extinguish the fire and any practicable means of communication are available, inform or cause to be informed an appropriate officer of the existence and locality of the fire if it is practicable to do so without leaving the fire unattended.(2) In this section, appropriate officer means:(a) if the fire is burning within any fire district constituted under the Fire Brigades Act 1989—the nearest available officer or fire fighter of the fire brigades in the fire district, or(b) if the fire is burning outside any such fire district—the nearest available:(i) officer or member of a rural fire brigade, or(ii) fire control officer or deputy fire control officer, or(iii) member of staff of the Department of Industry and Investment, or(iv) member of staff of the Department of Environment, Climate Change and Water.Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.
Division 2 Bush fire hazard reduction
Note. Bush fire hazard reduction work and bush fire hazard reduction notice are defined in the Dictionary.
65A Hazard management officers
The Commissioner may nominate a member of the Service as a hazard management officer for the purposes of this Division.
65 Reduction of fire hazards on unoccupied Crown land and managed land
(1) In this section:authorised person, in relation to land, means:
(a) a hazard management officer, or(b) any officer of a rural fire brigade for the time being nominated for the purposes of this section by the Commissioner, or(c) any person for the time being nominated for the purposes of this section by the Bush Fire Co-ordinating Committee, or(d) a person exercising functions under a bush fire risk management plan, or(e) an authorised officer of a fire fighting authority.(2) An authorised person may, with the permission of the fire fighting authority or other authority responsible for unoccupied Crown land or managed land or a person nominated by the authority to give such permission, enter the land and carry out bush fire hazard reduction work with the assistance of such other persons as the authorised person considers to be necessary for the purpose.(3) The authority responsible for unoccupied Crown land or managed land is to be taken to have given the permission under this section to the extent necessary to give effect to a bush fire risk management plan.(4) If permission under this section is given subject to conditions, the conditions must be complied with.
66 Bush fire hazard reduction notices
(1) A hazard management officer may, by notice in writing, require the owner or occupier (not being a public authority) of any land to carry out bush fire hazard reduction work specified in the notice on the land.(2) A hazard management officer must serve a notice under this section if required to do so by a bush fire risk management plan applicable to the land that is in force.(3) A hazard management officer must issue a bush fire hazard reduction certificate in respect of any bush fire hazard reduction work required by a notice issued in accordance with subsection (2).(4) A notice under this section may specify:(a) the circumstances in which, conditions under which, places at which and manner and time within which the bush fire hazard reduction work is to be carried out, and(b) any means by which the bush fire hazard reduction work is to be carried out and alternative means other than fire by which the work should, if practicable, be carried out.(5) The time within which bush fire hazard reduction work is to be carried out must not be less than 7 days after the notice is given.(6) The requirements and conditions so specified must include any requirements specified in a bush fire risk management plan that is applicable to the land and is in force and may include a requirement or condition that the burning of fire breaks or of combustible matter or other material:(a) must, in a fire district constituted under the Fire Brigades Act 1989, be carried out by or under the supervision of the fire brigade in the district or the officer or fire fighter in charge of the fire brigade, or(b) must, outside a fire district, be carried out by or under the supervision of the rural fire brigade specified in the notice or an appropriate officer of the rural fire brigade or any hazard management officer.(7) A notice requiring the establishment of a fire break cannot require an occupier or owner to kill or remove any trees that are reasonably necessary:(a) for shade, shelter, windbreak or fodder purposes, or(b) for the protection of threatened species, populations, ecological communities or critical habitats within the meaning of the Threatened Species Conservation Act 1995.Note. See section 54 (2) for other possible limitations.(8) An occupier or owner to whom a bush fire hazard reduction notice is given must, despite the fact that a fire permit has not been granted under Division 5, comply with the requirements specified in the notice.Maximum penalty: 50 penalty units or imprisonment for 12 months.
(9) A notice under this section that is the subject of an objection or appeal under section 67 or 68 does not have effect until the objection or appeal is finally determined.
(1) The owner or occupier of land on whom a notice has been served under section 66 may, within 7 days of the service of the notice, lodge an objection with the hazard management officer who served the notice stating the grounds of objection, or, if that officer is not available, any other hazard management officer.(2) If a person lodges an objection, the hazard management officer and the person must genuinely attempt to resolve the matter by consultation having regard to:(a) the provisions of any bush fire risk management plan applicable to the land that is in force, and(b) the matters referred to in section 66 (7), and(c) the proper needs for conservation, and(d) such other matters as may be prescribed by the regulations.(3) Within 14 days of the lodging of an objection, the hazard management officer must:(a) confirm the notice, or(b) vary the notice, if the hazard management officer is satisfied that the variation will appropriately address the threat of fire, or(c) withdraw the notice, if the hazard management officer is satisfied that there is no longer any need for the notice to be served.(4) If the hazard management officer confirms or varies the notice, the officer must give the person who lodged the objection notice of the decision and must specify a time after the notice is given within which the person must comply with the notice as confirmed or varied.
(1) If a person has lodged an objection under section 67 and:(a) the hazard management officer has failed to confirm, vary or withdraw the notice within 14 days, or(b) the person is not satisfied with the confirmation or variation of the notice,the person may appeal in writing to the Commissioner within 7 days of the end of the 14 day period or the date of the confirmation or variation, whichever is earlier, stating the grounds of appeal.(2) The Commissioner must:(a) consider the appeal within a reasonable time, and(b) take into account all relevant circumstances, including the matters referred to in section 67 (2).(3) After considering the appeal, the Commissioner must:(a) confirm the notice, or(b) vary the notice in any way the Commissioner thinks fit, or(c) cancel the notice.(4) If the Commissioner confirms or varies the notice, the Commissioner must give the person who lodged the appeal notice of his or her decision and must specify a time after the notice is given within which the person must comply with the notice as confirmed or varied.
69 Powers and duties of hazard management officer
(1) A hazard management officer may, for the purpose of forming an opinion as to:(a) whether a notice under section 66 should be served on the occupier or owner of any land, or(b) whether or not such a notice has been complied with,enter during the daytime any part of the land (other than a dwelling-house) that it is necessary to inspect in order to form that opinion.(2) A hazard management officer who requires an occupier or owner of land to take action under a bush fire hazard reduction notice must give notice in the approved form to such persons or bodies as may be prescribed by the regulations.(3) It is a duty of a hazard management officer to keep a record of whether or not bush fire hazard reduction work has been carried out in accordance with a bush fire hazard reduction notice.Note. The Land and Environment Court has jurisdiction to hear and dispose of proceedings under this Act. See section 20 of the Land and Environment Court Act 1979.
70 Bush fire hazard reduction work in default of compliance with notice
(1) In this section:relevant notice means:
(a) a bush fire hazard reduction notice, or(b) if a bush fire hazard reduction notice is the subject of an objection or appeal, a notice under section 67 (4) or 68 (4), respectively.(2) If within the time specified in the relevant notice the owner or occupier to whom it is given fails to comply with any requirement of the notice, the Commissioner may, without prejudice to the liability of the owner or occupier, enter on the land and carry out the bush fire hazard reduction work the owner or occupier was required to do under the notice.(3) Any costs incurred by the Commissioner in carrying out such work (including costs incurred in obtaining the approval of any local or public authority under any other law to carry out the work) may be recovered from the owner or occupier of the land as a debt due to the Crown in a court of competent jurisdiction.
71 Defence to court proceedings
If:(a) the occupier and the owner of the land in respect of which a bush fire hazard reduction notice is given are not the same person, and(b) the owner of that land has been prosecuted under section 66 or an action for recovery of costs has been taken against the owner under section 70,it is a defence to that prosecution or action if the court is satisfied that that owner had no legal right, as between the owner and the occupier of that land, to enter that land and comply with the requirements of the notice.
72 Certain damage to property caused by bush fire hazard reduction work covered by fire insurance
(1) Any damage to property caused by a person in the exercise in good faith of a power conferred by or under this Division is to be taken to be damage by fire within the meaning of any policy of insurance against fire covering the damaged property.(2) This section does not apply in relation to an entry on land that is authorised by section 70 (which relates to entry on land after failure to comply with a bush fire hazard reduction notice).
73 Bush fire hazard reduction by Commissioner
(1) The Commissioner may carry out bush fire hazard reduction work on land:(a) if the work has not been carried out on land by a public authority or owner or occupier of land when, or in the manner, required by a bush fire risk management plan, or(b) if, in the opinion of the Commissioner, a public authority or owner or occupier of land has not properly performed a duty under section 63 to take notified steps, or any other practicable steps, that is imposed on the public authority or owner or occupier, or(c) if the work has not been carried out by a public authority when, or in the manner, required by the Commissioner under section 74E (2).(2) Any costs incurred by the Commissioner in carrying out such work (including costs incurred in obtaining the approval of any local or public authority under any other law to carry out the work) may be recovered from the responsible person or authority as a debt due to the Crown in a court of competent jurisdiction.(3) Before carrying out any bush fire hazard reduction work under this section, the Commissioner must certify a bush fire hazard reduction certificate in respect of the work in accordance with section 100G.(4) In this section:responsible person or authority means a public authority or owner or occupier of land referred to in subsection (1).
74 Bush fire hazard reduction reports
(1) Each public authority that is responsible for managed land must report to the Commissioner not later than 3 months after the end of the financial year on its activities to reduce bush fire hazards on the managed land during the preceding financial year.(2) The report must include:(a) details of the extent of implementation of any scheme for the reduction of bush fire hazards set out in a bush fire risk management plan that applies to the land, and(b) information about such other matters (if any) as are prescribed by the regulations.(3) The annual report of the Service prepared under the Annual Reports (Departments) Act 1985 must include details of information contained in a report under this section for the year to which the annual report relates.
Division 2A Bush fire hazard complaints
74A Bush fire hazard complaints
(1) A complaint may be made under this Division that a bush fire hazard exists on land because of the failure of a public authority or owner or occupier of the land to carry out bush fire hazard reduction work on the land (a bush fire hazard complaint).(2) A bush fire hazard complaint may be made whether or not the public authority or owner or occupier concerned has a duty under section 63 to carry out the work.
74B Who may make a bush fire hazard complaint
A bush fire hazard complaint may be made by any owner or occupier of land adjacent to or in the vicinity of the land to which the complaint relates.
74C How and to whom are complaints to be made
(1) A bush fire hazard complaint is to be made by giving it, or sending it by post:(a) if the complaint relates to unoccupied Crown land or managed land for which a public authority is responsible—to the Commissioner, or(b) in the case of any other land—to the local authority of the local government area in which the land is located.(2) A bush fire hazard complaint must be made in writing, must identify the complainant and must state the grounds for the complaint.(3) A local authority must refer any complaint made to it under this Division to the Commissioner within 14 days of receipt of the complaint.(4) Written notice of the making of the complaint and the grounds of the complaint are to be given to the owner or occupier or public authority responsible for the land to which the complaint relates as soon as practicable after receipt of the complaint.
74D Investigation of complaint
(1) The Commissioner must investigate the bush fire hazard complaint as soon as practicable after it is received.(2) The Commissioner may investigate the complaint as the Commissioner thinks fit.(3) Without limiting subsection (2), the Commissioner (or a person authorised by the Commissioner) may, for the purpose of forming an opinion as to whether a bush fire hazard exists on the land to which the complaint relates, enter during the daytime any part of the land (other than a dwelling-house) that it is necessary to inspect in order to form that opinion.(4) The Commissioner may decline to deal with a complaint, or dismiss a complaint, that the Commissioner considers to be vexatious, misconceived, frivolous or lacking in substance.(5) The Commissioner is to notify the complainant if the Commissioner declines to deal with, or dismisses, the complaint.
74E Action that may be taken by Commissioner if bush fire hazard exists
(1) If the Commissioner finds that a bush fire hazard exists on land (other than land for which a public authority is responsible) to which a bush fire hazard complaint relates, the Commissioner:(a) may direct a hazard management officer to serve a notice under section 66 on the owner or occupier of the land if no bush fire hazard reduction notice has been served on the owner or occupier of the land, or(b) may, subject to sections 67 and 68, exercise his or her powers under section 70 in respect of the land if a bush fire hazard reduction notice has been served on the owner or occupier of the land.(2) If the Commissioner finds that a bush fire hazard exists on land to which a complaint made to the Commissioner relates because a public authority has failed to take notified steps, or otherwise perform a duty imposed on it as referred to in section 63, the Commissioner may, by notice in writing served on the public authority, require it to carry out such bush fire hazard reduction work as is specified by the Commissioner.(3) If the public authority fails to carry out the specified work within a reasonable time after service of the notice, the Commissioner may carry out bush fire hazard reduction work on the land under section 73.
74F Complainant to be notified of action taken
If any action is taken by the Commissioner in relation to a bush fire hazard complaint, the Commissioner must, as soon as practicable after it is taken, advise the complainant of the action taken.
Division 3 Damage by fire to dividing fences and other matters
In this Division:adjoining owners means the owners or occupiers of land (other than excluded land) on either side of a dividing fence.
dividing fence means a fence separating land owned or occupied by different persons.
excluded land means land that a bush fire management plan specifies to be excluded for the purposes of this Division.
fence means a structure, ditch or embankment, or a hedge or similar vegetation barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land from other land and includes:
(a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and(b) any foundation or support necessary for the support and maintenance of the fence.
76 Notices to repair or restore dividing fences
(1) An adjoining owner who has cleared land on the adjoining owner’s side of a dividing fence of all combustible matter for a distance of 6 metres from the fence may, by notice in writing, require the adjoining owner on the other side of the fence to repair or restore the dividing fence if it is damaged or destroyed by a bush fire caused by the failure of the other adjoining owner to clear the adjoining owner’s side of the fence of all combustible matter for the same distance.(2) The adjoining owner to whom a notice is given must repair or restore the dividing fence at that adjoining owner’s expense:(a) within one month of being given the notice, or(b) within such longer period as the Local Court may allow on application by the adjoining owner to the Local Court.(3) The dividing fence is to be restored to a reasonable standard, having regard to its state before damage or destruction.(4) The adjoining owner may apply to the Local Court for an order authorising the adjoining owner to repair or restore the fence if:(a) the adjoining owner to whom a notice is given fails to repair or restore the fence in the required time, or(b) the adjoining owner has not, after making reasonable inquiries, been able to ascertain the whereabouts of the adjoining owner for the purposes of serving the notice.(5) An adjoining owner who repairs or restores a fence under this section (including the owner’s employees or agents) may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work.(6) (Repealed)
(1) An adjoining owner who repairs or restores a fence in accordance with an order under section 76 (4) is entitled to recover from the other adjoining owner the cost of carrying out the work.(2) Any money that an adjoining owner is required or liable to pay under this section may be recovered as a debt in a court of competent jurisdiction.(3) In any proceedings for the recovery of money the certificate of the Local Court as to the making and content of an order made by it under section 76 is evidence of the matters set out in the certificate.
78 Jurisdiction of Local Court
The Local Court has jurisdiction to hear and determine any matter arising under this Division.
79 Entry to land to extinguish fire
An adjoining owner who has cleared land in the manner referred to in section 76 may enter the land of an adjoining owner who has failed to so clear that adjoining owner’s land and take all necessary steps to extinguish any unattended fire that at its closest point has approached a distance that unreasonably endangers or threatens the adjoining owner’s land and any fence or property on it.
Division 4 Bush fire danger period
81 General bush fire danger period
For the purposes of this Act, the bush fire danger period in respect of land in the State is, except as provided by section 82, the period commencing on 1 October and ending on 31 March in the following year.
82 Local bush fire danger period
(1) The Commissioner may, by notice published in a newspaper circulating generally in a local government area:(a) declare that there is no bush fire danger period in the area or part of the area, or(b) specify a different period to that set out in section 81 as the bush fire danger period for the area or part of the area.(2) A declaration may be made on the Commissioner’s own initiative or on the recommendation of a Bush Fire Management Committee for the area.(3) As soon as practicable after publishing a notice under subsection (1), the Commissioner is to publish a copy of the notice in the Gazette.(4) Despite section 81, if a declaration is made in accordance with this section specifying a different bush fire danger period in relation to any area or part of an area, the bush fire danger period in that area or part is the period specified in the declaration.(5) A declaration remains in force:(a) until it is revoked, or(b) for such period as is specified in the declaration (unless it is sooner revoked).
83 Consultation required before local bush fire danger period declaration made
(1) The Commissioner must, before making a declaration under section 82 that is to have effect only for the bush fire danger period occurring when the declaration is made, consult with and take into account any recommendations made:(a) by the local authority for any area to which the declaration relates, and(b) by any fire fighting authority exercising functions in the rural fire district or fire district constituted for the area.(2) The Commissioner must, before making a declaration under section 82 on the Commissioner’s own initiative that is to have effect for a period or periods subsequent to the bush fire danger period occurring when the declaration is made, consult with and take into account any recommendations made by the Bush Fire Management Committee for the area.
Division 5 Permits and notice requirements
In this Division:appropriate authority, in relation to a fire permit in respect of land, means:
(a) in the case of land in a rural fire district—the Commissioner of the NSW Rural Fire Service,(b) (Repealed)(c) in the case of land in a fire district—the Commissioner of NSW Fire Brigades.(d) (Repealed)land clearance means clearing land of bush, stubble, scrub, timber, trees, grass or vegetative or other material.
light a fire includes:
(a) maintain or use a fire, and(b) cause a fire to be lit, maintained or used.
86 Notice and certain authorities required before certain fires lit
(1) A person who lights a fire on land:(a) for the purpose of land clearance or for burning any fire break, or(b) in circumstances in which doing so would be likely to be dangerous to any building,is guilty of an offence unless the person has given notice in accordance with the regulations to the persons prescribed by the regulations.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(1A) A person who lights a fire on land for the purpose of land clearance or for burning any fire break is guilty of an offence unless:(a) a bush fire hazard reduction certificate has been issued in respect of the land clearance or fire break, or(b) any approval, consent or other authority required for the land clearance or fire break under the Environmental Planning and Assessment Act 1979 or any other law has been given.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Nothing in this section requires an authorised officer of a fire fighting authority to give notice of the lighting of a fire for the purpose of back burning.Note. An authorised officer is not required to obtain various other approvals or authorities if carrying out an emergency fire fighting act—see Part 6A.
87 Lighting fires for land clearance or fire breaks in bush fire danger period
(1) A person who lights a fire on land for the purpose of land clearance or for burning any fire break during a bush fire danger period that applies to the land is guilty of an offence unless the person:(a) is authorised to do so by a fire permit issued by the appropriate authority and the person complies with any conditions set out in the fire permit, and(b) has given notice in accordance with section 86.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Nothing in this section requires an authorised officer of a fire fighting authority who lights a fire for the purpose of back burning to be authorised to do so by a fire permit or to give any notice before lighting such a fire.Note. An authorised officer is not required to obtain various other approvals or authorities if carrying out an emergency fire fighting act—see Part 6A.
88 Lighting fires that are dangerous to buildings in fire districts and rural fire districts
(1) A person who lights a fire on land within a fire district or rural fire district in circumstances in which doing so would be likely to be dangerous to any building is guilty of an offence unless the person:(a) is authorised to do so by a fire permit issued by the appropriate authority and the person complies with any conditions set out in the fire permit, and(b) has given notice in accordance with section 86.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Nothing in this section requires an authorised officer of a fire fighting authority who lights a fire for the purpose of back burning on land within a fire district or rural fire district to be authorised to do so by a fire permit or to give any notice before lighting such a fire.Note. An authorised officer is not required to obtain various other approvals or authorities if carrying out an emergency fire fighting act—see Part 6A.
(1) An appropriate authority may issue to any person a fire permit in writing authorising the person to light a fire on land specified in the permit for the purpose specified in the permit.(2) An appropriate authority must not issue a fire permit for a purpose unless:(a) a bush fire hazard reduction certificate has been issued in respect of the purpose, or(b) any approval, consent or other authority required for the purpose under the Environmental Planning and Assessment Act 1979 or any other law has been given.
(1) A fire permit, unless sooner cancelled or suspended, remains in force for the period (not exceeding 21 days) specified in the permit.(2) A fire permit has no force or effect during any period during which a direction prohibiting the lighting of fires under section 99 is in force.
91 Cancellation or suspension of permits
(1) A fire permit may be cancelled or suspended by the appropriate authority at any time by notice given to the permit holder.(2) Notice of cancellation or suspension of a permit must be given in writing unless the appropriate authority is of the opinion that the weather conditions are conducive to the outbreak or spread of bushfires or that conditions conducive to the outbreak or spread of bushfires are imminent.(3) In those circumstances notice may be given orally or in such other manner (including, if no other means are practicable, by broadcast by a television or radio station transmitting to the area in which the land to which the permit relates is situated) as the authority considers appropriate.
(1) A fire permit is subject to:(a) the condition that it be carried by the holder of the fire permit at the time a fire authorised by the permit is lit, and(a1) any condition imposed by a bush fire hazard reduction certificate or as a condition of any approval, consent or other authority given by or under any other Act that is required to be obtained in relation to the lighting of a fire, and(b) such conditions as are prescribed by the regulations or specified in the permit.Note. A fire permit might, for example, include a condition that any fire lit in a rural fire district or fire district be lit under the supervision of the rural fire brigade or fire brigade for the district or an officer of the brigade or a fire control officer.(2) A person who, being the holder of a fire permit, contravenes any condition of the fire permit is guilty of an offence.Maximum penalty: 50 penalty units.
93 Refusal to issue fire permit
An appropriate authority may refuse to issue a permit if:(a) issue of the permit would be inconsistent with any bush fire risk management plan, or(b) the appropriate authority has determined in writing that no permits be issued for fires to be lit in its area (or any part of its area) because of the seriousness of bush fire danger in the area, or(c) the appropriate authority is otherwise authorised or required by the regulations or by or under this or any other Act to refuse to issue the permit.
94 Notice to be given of issue of fire permit
(1) (Repealed)(2) An appropriate authority who issues a fire permit to light a fire on land specified in the regulations must give notice in an approved form to such persons or bodies as are prescribed by the regulations.(3) An appropriate authority who gives a notice under this section must notify the person or body concerned if the appropriate authority cancels or suspends the permit.
95 Permit not required for fires lit by public authorities
(1) Nothing in this Division requires a public authority or a person acting under the direction of a public authority to hold a permit to light a fire.(2) However, a public authority:(a) must not light a fire in any area of an authority (or part of such an area) if it has been notified that a determination referred to in section 93 (b) has been made in respect of the area, and(b) must not light a fire in any rural fire district unless the fire control officer for the district has been advised that it is to be lit, and(c) must not light a fire on land in any fire district unless the officer in charge of the fire station that is nearest to the land has been advised that it is to be lit.
96 Appropriate authorities not determining authorities
(1) An appropriate authority is not, for the purposes of granting a fire permit, a determining authority within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979. In addition, an appropriate authority is not a determining authority within the meaning of that Act merely because the authority can authorise another person to grant a permit.(2) (Repealed)
(1) Within 2 months (or such other period as the Bush Fire Co-ordinating Committee specifies) after the end of the financial year, the Commissioner must report to the Bush Fire Co-ordinating Committee with respect to fire permits issued by appropriate authorities during the year.(2) A report is to include:(a) details of the circumstances surrounding the lighting of any bush fires in the area of an appropriate authority that appear to have been caused by the lighting of a fire authorised by a fire permit issued by the appropriate authority, and(b) details of any action taken with respect to permits that is inconsistent with any bush fire risk management plan applying to the area.
98 Issue of permit does not affect duty to prevent bush fires
The issue of a fire permit to an owner or occupier of land under this Division does not limit or affect the duty to prevent bush fires imposed on the owner or occupier under section 63.
99 Lighting of fires prohibited in certain circumstances
(1) If the Minister is of the opinion that it is necessary or expedient in the interests of public safety to do so, the Minister may, by order in writing, direct that in the part or parts of the State specified in the order:(a) the lighting, maintenance or use of any fire or class of fire in the open air is prohibited for such period or periods as may be specified in the order, and(b) such special conditions as may be specified in the order be observed by persons lighting, maintaining or using any fire or class of fire in the open air and for such period or periods as may be specified in the order, and(c) such action as may be specified in the order be taken by such persons or class of persons as may be specified in the order for preventing the outbreak or the spread of any bush fire or for controlling or suppressing any bush fire.(2) As soon as practicable after making a direction under this section, the Minister is:(a) to cause notice of the direction to be broadcast by a television or radio station transmitting to the part or parts of the State concerned and in a newspaper circulating in those parts, and(b) to cause a copy of the order by which the direction is given to be published in the Gazette.(3) The specification in any notice or order under this section of part of the State by reference to a zone defined by the regulations for the purpose is sufficient specification of a part of the State for the purposes of this section.(4) If part of a local government area is specified in any order under this section the order applies to the whole of the local government area.(5) The Minister may delegate to the Commissioner any of the Minister’s functions under this section, other than this power of delegation.(6) Any person who fails to comply with any direction given by the Minister is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(7) The provisions of this section have effect despite anything contained in this Act or any other Act to the contrary.
Division 7 Lighting fires without authority
(1) A person who, without lawful authority:(a) sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or(b) being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority,is guilty of an offence.Maximum penalty: 1,000 penalty units or imprisonment for 5 years, or both.
(2) A person who, without lawful authority, leaves whether temporarily or otherwise any fire which the person has lit or used in the open air before the fire is thoroughly extinguished is guilty of an offence.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(3) Nothing in subsection (2) requires any person to extinguish a fire in the open air that has been lit or used for the purpose of cooking, heating or preparing meals or boiling water or for any similar purpose in accordance with the regulations if, at the time of the person leaving it, the fire continues to be used by some other person.
Division 8 Development of bush fire prone land and for bush fire hazard reduction
(1) In this Division:bush fire code means a bush fire environmental assessment code in force under this Division.
bush fire safety authority means an authority given by the Commissioner under section 100B and that is in force.
certifying authority means a certifying authority described in section 100E.
excluded land means the following:
(a) land to which State Environmental Planning Policy No 14—Coastal Wetlands applies,(b) land to which State Environmental Planning Policy No 26—Littoral Rainforests applies,(c) any other land prescribed by the regulations.issuing authority means the issuing authority described in section 100E.
managed land means land:
(a) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the Forestry Act 1916, or in respect of which the Forestry Commission has obtained the benefit of a forestry right as referred to in section 11 (1) (m) (iia) of that Act, or(b) that is dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or(c) that is vested in, or under the control of, Rail Corporation New South Wales, Transport Infrastructure Development Corporation, Rail Infrastructure Corporation or the Roads and Traffic Authority, or(d) that is within the catchment area of a water authority.private land means land other than managed land and unoccupied Crown land.
(2) Expressions used in this Division that are used in the Environmental Planning and Assessment Act 1979 have the meanings set out in that Act.
Subdivision 2 Bush fire prone land
100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for:(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or(b) development of bush fire prone land for a special fire protection purpose.(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.(5) Development to which subsection (1) applies:(a) does not include the carrying out of internal alterations to any building, and(a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and(b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument.(6) In this section:special fire protection purpose means the purpose of the following:
(a) a school,(b) a child care centre,(c) a hospital (including a hospital for the mentally ill or mentally disordered),(d) a hotel, motel or other tourist accommodation,(e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons,(f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004,(g) a group home within the meaning of State Environmental Planning Policy No 9—Group Homes,(h) a retirement village,(i) any other purpose prescribed by the regulations.
Subdivision 3 Bush fire hazard reduction
100C Carrying out of bush fire hazard reduction work
(1) An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the doing of:(a) emergency bush fire hazard reduction work on any land, or(b) managed bush fire hazard reduction work on land other than excluded land.(2) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of emergency bush fire hazard reduction work carried out on any land.(3) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of managed bush fire hazard reduction work carried out on land other than excluded land if:(a) the work is carried out in accordance with a bush fire risk management plan that applies to the land, and(b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate, and(c) the work is carried out in accordance with the provisions of a bush fire code applying to the land specified in the certificate.Note. If work to which Part 5 of the Environmental Planning and Assessment Act 1979 would apply but for this subsection is not carried out in accordance with this subsection, the person carrying out the work will be in breach of that Act.(4) Bush fire hazard reduction work may be carried out on land despite any requirement for an approval, consent or other authorisation for the work made by the Native Vegetation Act 2003, the Threatened Species Conservation Act 1995, the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act if:(a) the work is carried out in accordance with a bush fire risk management plan that applies to the land, and(b) there is a bush fire hazard reduction certificate in force in respect of the work and the work is carried out in accordance with any conditions specified in the certificate, and(c) the work is carried out in accordance with the provisions of any bush fire code applying to the land specified in the certificate.(5) Subsection (4) does not apply to an integrated forestry operations approval within the meaning of the Forestry and National Park Estate Act 1998.
100D What is a bush fire hazard reduction certificate?
A bush fire hazard reduction certificate is a certificate that authorises the carrying out of bush fire hazard reduction work on land in accordance with:(a) a bush fire risk management plan that applies to the land, and(b) the provisions of any bush fire code applying to the land specified in the certificate, and(c) any conditions specified in the certificate.
100E Issuing and certifying authorities
(1) The issuing authority for a bush fire hazard reduction certificate in respect of bush fire hazard reduction work to be carried out on private land by a person other than the Commissioner or a local authority is:(a) the local authority of the area in which the land is situated, or(b) the Commissioner.(2) The certifying authority for a bush fire hazard reduction certificate in respect of bush fire hazard reduction work to be carried out:(a) on any land by the Commissioner—is the Commissioner,(b) on any land by a local authority—is the local authority for the area in which the land is situated,(c) on managed land or unoccupied Crown land by a public authority—is the public authority responsible for the land.
100F Issue of bush fire hazard reduction certificates
(1) An application for a bush fire hazard reduction certificate in respect of work to be carried out on private land by a person other than a local authority or the Commissioner is to be made to the issuing authority in writing in accordance with the regulations (if any).(2) An application may be made:(a) by any owner or occupier of the private land, or(b) if the work is to be carried out on the private land by a public authority responsible for managed or unoccupied Crown land in the vicinity of the private land—by the public authority.(3) A single application may, with the consent of all owners or occupiers of the land concerned:(a) be made for land owned or occupied by more than one person, or(b) be made by a public authority on behalf of those owners or occupiers.(4) A bush fire hazard reduction certificate must not be issued unless:(a) a bush fire risk management plan applies to the land, and(b) the issuing authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to the code.(5) The issuing authority may determine an application:(a) by issuing a bush fire hazard reduction certificate, or(b) by refusing to issue a bush fire hazard reduction certificate.(6) A bush fire hazard reduction certificate must:(a) specify the provisions of any bush fire code applying to the land that the issuing authority has determined should be complied with in carrying out the work, and(b) specify any other conditions that have been imposed by the issuing authority having regard to that bush fire code, and(c) specify as a condition of the issue that notice be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.(7) The determination of an application must be completed within 7 days (or such longer period as may be agreed to by the applicant) after lodgment of the application.(8) There is no right of appeal against the determination of, or a failure or refusal to determine, an application for a bush fire hazard reduction certificate.Note. If a bush fire hazard reduction certificate is not obtained, bush fire hazard reduction work may still be carried out but only if any approvals, consents or other authorisations that would have been required to be obtained but for section 100C are obtained.(9) A public authority, a local authority or the Commissioner must not charge any fee in respect of an application for, or the issue of, a bush fire hazard reduction certificate.
100G Bush fire hazard reduction certificates of certifying authorities
(1) Before a certifying authority carries out any bush fire hazard reduction work on land, the certifying authority must certify:(a) that a bush fire risk management plan applies to the land, and(b) that the certifying authority has taken into consideration the provisions of any bush fire code applying to the land and determined which of them should be complied with in carrying out the work and whether any conditions should be imposed having regard to any provisions of that code, and(c) if the certifying authority is a local authority or a public authority, that the notice will be given to the fire control officer for the district in which the land is situated before the work is carried out and to any other person prescribed by the regulations.(2) A bush fire hazard reduction certificate certified by a certifying authority must:(a) specify the provisions of any bush fire code applying to the land that the certifying authority has determined should be complied with in carrying out the work, and(b) specify any conditions that have been imposed by the certifying authority having regard to that bush fire code.
100H Remedy and restraint for breaches of sections 100F and 100G
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of section 100F or 100G, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
100I Duration of bush fire hazard reduction certificate
A bush fire hazard reduction certificate becomes effective and operates for a period of 12 months commencing on the date endorsed on the certificate.
Subdivision 4 Bush fire environmental assessment codes
100J Commissioner may prepare draft codes
(1) The Minister may cause to be prepared by the Commissioner for submission to the Minister a draft bush fire environmental assessment code in relation to land (other than excluded land).(2) A draft bush fire environmental assessment code may refer to, or incorporate with or without modification, a document prepared or published by a body specified in the code, as in force at a particular time or from time to time.(3) In preparing a draft bush fire environmental assessment code in relation to land, the Commissioner must have regard to:(a) the principles of ecologically sustainable development (as described by section 6 (2) of the Protection of the Environment Administration Act 1991), and(b) any matter likely to affect the environment by reason of the carrying out of bush fire hazard reduction works on the land that a determining authority would be required to consider under section 111 of the Environmental Planning and Assessment Act 1979 (but for this Division) if Part 5 of that Act were applicable to the work and the carrying out of the works were an activity within the meaning of that Part.
100K Consultation on draft codes
(1) The Commissioner must, in preparing a draft bush fire environmental assessment code, consult with, and take into account any recommendations made by or on behalf of the following:(a) the Director-General of the Department of Planning,(b) the Director-General of the Department of Environment, Climate Change and Water,(c) the Nature Conservation Council of New South Wales,(d) the NSW Farmers’ Association,(e) the Local Government Association of New South Wales,(f) the Shires Association of New South Wales,(g) the Director-General of the Department of Industry and Investment,(h) the Commissioner of NSW Fire Brigades,(i) the Chief Executive of the Land and Property Management Authority.(2) The Commissioner may consult with such other persons or bodies as the Commissioner considers appropriate or as the Minister directs.
100L Public participation in preparation of codes
(1) The Commissioner must give public notice of and exhibit, for the purpose of receiving submissions from any interested persons, any draft bush fire environmental assessment code prepared by the Commissioner.(2) A draft bush fire environmental assessment code must be exhibited for at least 42 days. The Commissioner must exhibit with it any other matter that the Commissioner considers appropriate or necessary to better enable the draft code and its implications to be understood.(3) After considering all submissions received concerning the draft bush fire environmental assessment code, the Commissioner may amend the draft code or submit it without amendment to the Minister for approval.
The Minister may, after consultation with the Minister for Climate Change and the Environment, the Minister for Planning and such other Ministers as the Minister considers appropriate, approve a draft bush fire environmental assessment code as a bush fire code for the purposes of this Part.
100N Publication, commencement and availability of codes
(1) A draft bush fire environmental assessment code:(a) is to be published in the Gazette, and(b) takes effect as a bush fire environmental assessment code on the day on which it is published or, if a later day is specified in the code for that purpose, on the later day so specified.(2) The following are to be made available without charge for public inspection during normal office hours for the council of the area to which a bush fire code relates:(a) a copy of the code,(b) if the code has been amended, a copy of the code as so amended,(c) if the code refers to or incorporates any other document prepared or published by a specified body, a copy of each such document.
100O Amendment or revocation of codes
A bush fire code may be amended or revoked by an instrument prepared, approved, publicly exhibited and published in accordance with the relevant procedures of this Part with respect to codes.