Fire Trails – Whats New?

Under new changes to the Rural Fires Act 1997 local councils and other public authorities will be responsible for the construction and maintenance of fire trails on public land they own or occupy across New South Wales.

The Rural Fires Amendment (Fire Trails) Act 2016 (Amendment Act) received royal assent on 21 September 2016, but has not yet commenced.

A new regime for fire trails
The Amendment Act requires the Commissioner of the NSW Rural Fire Service (RFSto make Fire Trail Standards (Standards) which are to provide criteria for all fire trails on land throughout the State and provide, as far as practicable, practical networks of fire trails (s62K).

Fire Management Committees will also be required to prepare and have approved fire access and fire trail plans for their fire districts. The plans must set out appropriate means of accessing land to prevent, fight, manage or contain bush fires, particularly by identifying suitable existing or proposed fire trails (s54A).

To implement the Standards and these plans, the Commissioner can then direct an owner or occupier of public land to establish and maintain a fire trail on specified public land (s62L(2)). The Commissioner can also enter an agreement with a private landowner for a fire trail to be established and maintained on private land (s62M).

Following a direction by the Commissioner, the fire trail becomes a designated fire trail, even if it is not wholly or partly created. The Commissioner can also certify fire trails if they meet the Fire Trail Standards (Standards). Certified fire trails are to be kept on a register to be published on RFS’s website (s62O), and referred to as registered fire trails.

The designation or registration of the fire trail remains in force regardless of a change in ownership of the land, including if public land later becomes private land (and vice versa) (s62ZQ).

Construction & maintenance requirements

Local councils and other public authorities who own or occupy land where there is a designated or registered fire trail will then fall under a duty to construct and maintain the fire trail in accordance with the Standards and any fire access and fire trail plan applying to the land (62W(1)).

The local council or public authority will be liable for the costs of complying with this duty (s62W). Private landowners can enter into agreements with the RFS in respect of fire trails on their land (s62W(4)). We understand the intention is for RFS to maintain private fire trails at its cost .

If registered fire trails are not maintained in accordance with the Standards, owners or occupiers of land adjacent to or in the vicinity of the land on which the registered fire trail is situated make make a complaint to the Commissioner. The Commissioner can investigate the complaint and issue a fire trail rectification notice to the owner or occupier of the land requiring that certain works be carried out (Division 5).

Rectification notices can also be issued to owners or occupiers of land on which a designated or registered fire trail is located (62Y).

The Amendment Act provides rights of objection and appeal to the Commissioner against the issue of rectification notices.

The Commissioner also has a new power to enter any land for the purpose of considering whether a fire trail is and should be on land, and whether a fire trail has been constructed or maintained in accordance with the Standards.

It will be an offence to remove, damage or obstruct a fire trail without reasonable excuse. Fire trails can only be removed if they are terminated by the Commissioner.

Additional responsibilities for local councils and public authorities

These new responsibilities for fire trails will be in addition to the existing responsibilities of local councils and other public authorities that already exist under the Rural Fires Act, for example to carry out requirements imposed under a bush fire management plan, such as bush fire hazard reduction works (under Part 3).

Timing

The Amendment Act is to commence on a day to be appointed by proclamation, which presumably will be once the Standards have been released.

For further information regarding the new fire trails, please contact Anna Sinclair on 02 8235 9713.

 

About anna sinclair

Anna is a Senior Associate with Lindsay Taylor Lawyers. Anna has a Bachelor of Arts/Law at the University of Western Australia and was admitted to legal practice in 2008. Anna has substantial experience in the field of environment and planning law and has worked in both government and private sectors. Before joining Lindsay Taylor Lawyers, Anna worked as a prosecutor for the NSW Office of Environment and Heritage and Environment Protection Authority and as a solicitor at a national top-tier law firm. Anna has worked in New South Wales, Victoria and Western Australia. Anna has provided assistance to leading corporations and government clients on environmental impact assessment and approval of property development, infrastructure and resource projects, pollution risk management and incident response and managing native title and heritage issues. Anna has also represented clients in a range of litigious matters, including prosecutions and civil matters in the NSW Land and Environment Court and Local Court, planning and environmental approval hearings in the Victorian Civil and Administrative Tribunal and native title proceedings in the Federal Magistrates Court.
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