Bushfire permits and implications for members

Risk Matters - Spring 2022

Bushfire incidents in Western Australia have increased in number and severity. In the last two years we’ve seen devastating fires throughout the outer metropolitan area, South West, Wheatbelt and Great Southern. Burning permits for vegetation and to reduce fuel loads on public and private lands have come under increased scrutiny.

Provision of local burning permits is a responsibility of local government, and with requests for burn off permits coming in spring, it is timely for LGIS members to review their responsibilities and exposures.

Simplifying The Bush Fires Act 1954 (WA)

The Bush Fires Act 1954 (WA) (“BF Act”) provides for the declaration of periods of time during which burning of vegetation is either prohibited or restricted. It basically comes under two categories.

Prohibited burning periods

The State (Fire and Emergency Services Commissioner) may declare prohibited burning periods during which it is unlawful to set fire to ‘bush’.
Both the State and the local government authority (LGA) have the power to alter (with restrictions) already-declared prohibited burning times by ways such as shortening, extending, suspending or re-imposing the restricted period where they consider that seasonal conditions warrant it.
Even during a prohibited burning period, permits may be issued to land owners to burn ‘bush’ on their property but only in extremely limited circumstances (for the purpose of protecting property).

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The State (Fire and Emergency Services Commissioner) may declare restricted burning periods during which it is unlawful to set fire to ‘bush’.
During the restricted burning time period, an owner of the land may burn ‘bush’ on their property but must first obtain a permit in writing from the Bushfire Control Officer (BCO) (or CEO if BCO not available) of the relevant local government authority.
The permit may stipulate conditions under which the burning is to take place and there are duties imposed upon people who have been granted a permit to burn.
The reasonableness of a decision to issue a permit will be judged on a case-by-case basis.
The BCO is not compelled to inspect an area to be burnt before issuing a permit to burn; the onus lies on the property owner.
It is the State that has the power to declare periods of time within which it is unlawful to burn the bush within a local government district.

Local government risks

1. The first risk may arise if an LGA fails to consider implementing directions (effectively a binding policy) to its BCOs with respect to the manner in which, and the conditions under which, permits to burn are to be issued that might expose it to a potential exposure of liability. Relevantly, the exposure to liability will turn on the following:

Whether the LGA had complied with any policy it had in place.
What knowledge the LGA had as to the property owner’s ability to comply with any conditions of the permit and their duties.
What knowledge the LGA had to any risks, such as weather conditions, abnormal fuel loads, specific vulnerabilities of the property owner and/or their neighbours, etc.
The magnitude of those risks.
The means of knowledge the LGA had with respect to those matters.

2. The second risk can come up where the LGA revokes, or should revoke, its permit. In this scenario, the LGA may owe a duty to revoke a permit (it has the power under the BF Act to do so) based on the following considerations:

The LGA’s knowledge of the weather conditions on the date the burn(s) are to be carried out.
The LGA’s knowledge of any vulnerabilities on the part of the permit holder (and their neighbours).
Knowledge of any other matter which may increase the likelihood of the escape of fire from a permitted burn.

What does it imply for LGIS members?

Owing to the nature of the job and high risk involved, LGIS members have to be extremely careful while issuing or revoking burning permits.

You should take a note of these aspects before taking key decisions.

As per the Fire and Emergency Services Act 1998 (WA) (which includes the BF Act), the local government is exempted from civil liability of a person who might have been involved in an act ‘done in good faith’ leading to a mishap. LGIS members may be protected where they have made a genuine effort in exercising their duties and functions.
However, the protection may not be available where the liability arises by a failure to put in place policies or directions with respect to issuing of permits and when LGAs ignore matters that is was, or ought to have been, aware that presented a genuine risk.
Issuance of a permit is judged on a case-by-case basis. Therefore, the local government should keep in mind information obtained from third parties such as Bureau of Meteorology.
The approval process involved in issuing a permit involves a lot of risk if not done in accordance with the required checks and balances. It is recommended that members stay abreast of bushfire regulations to avoid legal implications.
Members should also be aware of varied risks that may give rise to a duty to consider. These include weather conditions, lack of appropriate fire breaks, the lack of resources on the part of property owners to manage a burn, presence of fuel loads up to the base of standing trees and knowledge that adjoining land owners are not aware of the proposed burn (i.e. not present).

What this means for LGIS members

In short this means that all local governments should develop and implement their own polices for the provision (and revocation) of burning permits.

Your policy should not be taken directly from the Act, but rather, given the technical nature of issuing such permits, should be done in consultation with appropriately qualified persons, such as DFES officers and senior Fire Control Officers (FCO). It is important to note that any burning permit policy should be crafted in a manner which recognises that local governments have different requirements due to their situations and preserves the discretion of FCOs in dealing with these matters.

It would be prudent for local governments to implement policies which at least cover the following matters:

That the issuing of Burning Permits is to be within the discretion of the FCOs, and any other person to whom the LGA has delegated authority (as the case may be).
That permits should not be issued where adverse fire conditions are forecast by BOM on the day of the burn or within two days after the proposed burn.
That FCOs document their decision making in issuing a Burning Permit, however, we understand the risks associated with hazard reduction burning, and hence the factors to be considered, are not, and cannot, be reducible to an exhaustive list.
That in circumstances of elevated risk (which would need to be carefully crafted), FCOs should consider monitoring burns.

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