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 (RFS) to 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).
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.