An environmental guideline for councils, fire management authorities and landowners

Regulation of

open burningin NSW

June 2003

Published by:

Environment Protection Authority

59–61 Goulburn Street, Sydney

PO Box A290, Sydney South 1232

Phone: (02) 9995 5000 (switchboard)

Phone: 131 555 (NSW only – information & publications requests)

Fax: (02) 9995 5999

TTY: (02) 9211 4723

Email: info@epa.nsw.gov.au

Website: www.epa.nsw.gov.au

NSW Rural Fire Service

Unit 3, 175–179 James Ruse Drive

Rosehill, NSW 2142

Locked Mail Bag 17, Granville NSW 2142

Phone: (02) 9684 4411

Fax: (02) 9638 7956

Website: www.rfs.nsw.gov.au

The EPA and RFS are pleased to allow this material to be reproduced in whole or in part, provided the meaning

is unchanged and its source, publishers and authorship are acknowledged.

ISBN 0 7347 7575 X

EPA 2003/41

Printed on recycled paper

June 2003

iii

CONTENTS

DEFINITIONS v

CHAPTER 1: INTRODUCTION 1

Summary of burning requirements under Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Control of Burning) Regulation 2000 1

Summary of burning requirements under Rural Fires Act 1997 and Rural Fires Regulation 2002 2

CHAPTER 2: REQUIREMENTS UNDER PROTECTION OF THE

ENVIRONMENT OPERATIONS ACT 1997 AND

PROTECTION OF THE ENVIRONMENT OPERATIONS

(CONTROL OF BURNING) REGULATION 2000 3

No-burn orders issued under section 133 of the Protection of the Environment Operations Act 1997 3

Features of a typical no-burn notice 3Summary 4

Directions under section 134 of the Protection of the Environment Operations Act 1997 to extinguish fires 4

Penalties 4Restrictions on burning under the Protection of the Environment Operations

(Control of Burning) Regulation 2000 4Control of burning generally 4Prohibition on burning certain articles 4Control of burning in local government areas 4Ban on use of home unit incinerators 5Exceptions 5Approvals 6Penalties 6Summary 7

CHAPTER 3: BURNING ISSUES – THE NEED FOR

HAZARD REDUCTION BURNING 8

Hazard reduction burning 8What is a bushfire hazard reduction burn? 8Alternatives to hazard reduction burning 8

Ecological/bush regeneration burns 9Summary 9

Hazard reduction and the Rural Fires Act 1997 9Duties of public authorities and owners and occupiers of land to prevent bushfires 9Power of councils to require bushfire hazard reduction work to be done on private properties 10Reduction of bushfire hazards on unoccupied Crown land and managed land 10Preparation of bushfire risk management plans 10

iv

Bushfire hazard reduction by the Commissioner 11Bushfire hazard reduction certificates 11How is a bushfire hazard reduction certificate issued? 11Bushfire hazard complaints 11

What is a bushfire hazard complaint? 11Who do I complain to about a bushfire hazard? 12How is a bushfire hazard complaint dealt with? 12Summary 13

CHAPTER 4: PERMITS AND PROTECTING THE COMMUNITY

FROM BUSHFIRES 14

Requirements under the Rural Fires Act 1997 14General notification requirements for the lighting of fires 14General fire safety requirements 14During the bushfire danger period 15Total fire bans 16Penalties 16Summary 17

APPENDICES 18

Appendix 1: Sections 133 and 134 of the Protection of the Environment Operations Act 1997 18

Appendix 2: Procedure for declaring a no-burn period 19Appendix 3: Example of a no-burn notice 20Appendix 4: Parts 1 to 3 and Schedule 1 of the Protection of the Environment

Operations (Control of Burning) Regulation 2000 21Appendix 5: Open burning activities permitted/prohibited under the Regulation 26Appendix 6: Sections 74A–74H of the Rural Fires Act 1997 27Appendix 7: Sections 86–88 of the Rural Fires Act 1997 29Appendix 8: Sections 100C–100I of the Rural Fires Act 1997 31Appendix 9: Example of an approval for open burning 34Appendix 10: Example of a permit issued under the Rural Fires Act 1997 36Appendix 11: Example of a bushfire hazard reduction certificate 38Appendix 12: EPA and RFS regional offices 40

v

The following definitions are supplied to help interpret the legislation outlined in this guide.They are not necessarily legal definitions.

Burning in the open Means burning where the products of combustion are not directed tothe open air by a stack or chimney. The use of an open fireplace builtinto a house for home heating is not considered ‘burning in the open’and is not covered by the Protection of the Environment Operations(Control of Burning) Regulation 2000.

Burning of vegetation Includes the burning of diseased crops, orchard prunings, crop for agricultural stubble, weeds, pest animal habitat and pasture for regenerative operations purposes, and the clearing of land for commercial agriculture. It does

not include the burning of packaging associated with agriculturaloperations, vegetation accumulated from land clearance forcommercial property development, domestic refuse or private gardengreen waste.

Bushfire hazard Means:reduction work (a) the establishment or maintenance of fire breaks on land

(b) the controlled application of appropriate fire regimes or othermeans for the reduction or modification of available fuels within apredetermined area to mitigate the spread of a bushfire

but does not include construction of a track, trail or road.

Domestic waste Is readily combustible waste (other than vegetation) of a kind andquantity ordinarily generated on domestic premises.

Ecological/bush Are carried out to:regeneration burns • destroy infestations of noxious weeds and plants

• clear land for native species regeneration• allow seeding or germination of native species that need fire• maintain biodiversity through the use of fire where fire thresholds

have been exceeded.

EPA NSW Environment Protection Authority

Fire fighting authority The following organisations are fire fighting authorities:(a) NSW Rural Fire Service(b) New South Wales Fire Brigades(c) National Parks and Wildlife Service (d) State Forests of NSW.

Fuel In the context of bushfires, fuel can be defined as any naturallyoccurring vegetative material (native or introduced) which in theevent of a bushfire would contribute to fire intensity.

No-burn day A day on which open burning is prohibited when there is likely to bea build-up of air pollution. A no-burn day is declared by the EPA bymeans of an order issued under section 133 of the Protection of theEnvironment Operations Act 1997.

DEFINITIONS

vi

Recreational purposes Include camping, barbecuing, picnicking, scouting and other similaroutdoor activities.

RFS NSW Rural Fire Service

Rural fire district Under the Rural Fires Act 1997, a rural fire district constitutes thearea of each local authority. Note: A rural fire district does notconstitute, and does not include, any land in an area that is in a firedistrict constituted under the Fire Brigades Act 1989.

Total fire ban A specified period during which lighting, maintaining or using anyfire in the open air is prohibited.

1

This guide gives local councils and firemanagement authorities an outline of burningrequirements under the Protection of theEnvironment Operations Act 1997 (NSW) andthe Rural Fires Act 1997 (NSW). It has beenjointly prepared by the Environment ProtectionAuthority (EPA) and the NSW Rural FireService (RFS).

The uncontrolled burning of waste such ashousehold rubbish and garden clippingscreates an air quality impact that should beavoided. Measures have been introduced overtime to control backyard burning and otheropen burning. These have been successful inbringing down average levels of particlepollution, especially in the GreaterMetropolitan Region.

The Protection of the EnvironmentOperations (Control of Burning) Regulation2000 consolidates and builds on thesemeasures. The Regulation:

• requires anyone who burns anything in theopen or in an incinerator to do so in amanner that prevents or minimises airpollution

• imposes a statewide ban on the burning oftyres, coated wire, paint/solvent containersand residues, and treated timber

• controls the burning of domestic waste andvegetation

• gives powers to councils to control theextent of vegetation burning in their localgovernment area where they have elected tohave this control

• permits agricultural, cooking andrecreational fires

• allows other burning if approved by the EPA

• bans home-unit incinerators.

The Regulation does not affect bushfirehazard reduction work allowed under theRural Fires Act, the destruction of prohibitedplants or drugs, or the burning of diseasedanimal carcasses.

SUMMARY OF BURNING

REQUIREMENTS UNDER

PROTECTION OF THE ENVIRONMENT

OPERATIONS ACT 1997, AND

PROTECTION OF THE ENVIRONMENT

OPERATIONS (CONTROL OF

BURNING) REGULATION 2000

There are five key mechanisms in the Protectionof the Environment Operations Act 1997 and theProtection of the Environment Operations(Control of Burning) Regulation 2000 formanaging inappropriate burning:

• the EPA can issue no-burn orders (section133 of the Act – see Appendix 1)

• authorised officers of a local authority or ofthe EPA can issue directions to extinguishcertain fires (section 134 of the Act – seeAppendix 1)

• blanket bans are placed on burning certainarticles, namely tyres, coated wire, paintcontainers and residues, solvent containersand residues, and timber treated with copperchromium arsenate (CCA) orpentachlorophenol (PCP) (clause 6 of theRegulation – see Appendix 4)

• permanent restrictions are placed onbackyard burning in specified localgovernment areas (clause 7 of the Regulation– see Appendix 4)

• operation of home-unit incinerators had tocease by 1 September 2001 (clause 8 of theRegulation – see Appendix 4).

CHAPTER 1

INTRODUCTION

2

SUMMARY OF BURNING

REQUIREMENTS UNDER RURAL

FIRES ACT 1997 AND RURAL FIRES

REGULATION 2002

The burning of waste material and themanagement of vegetation (fuels) on propertiesare also of concern. Care must be taken toprevent the spread of a bushfire as well as toprotect the community from hazards created bythe lighting of fires.

Open burning is therefore regulated under theRural Fires Act 1997 and the Rural FiresRegulation 2002 by:

• Bush Fire Management Committeespreparing bushfire risk management plansand operations plans (section 52 of the Act)

• landowners or occupiers of land undertakinghazard reduction to prevent the spread of a fireon or from the land (section 63 of the Act)

• councils or the Commissioner of the NSWRural Fire Service issuing notices toimplement hazard reduction where abushfire risk management plan requires thisand the landowner fails to exercise their dutyof care (section 66 of the Act)

• the Commissioner of the NSW Rural FireService implementing hazard reductionwhen public authorities fail to exercise theirduties under the Rural Fires Act 1997

• controls on cooking fires being provided(without the need for a permit)

• certain public authorities providing controlson roadside fire protection

• controls being provided on burning todemolish buildings or old building materialin rural fire districts

• specific control measures on burning todestroy sawmill waste

• specific controls on burning for charcoalproduction, lime burning or distillationof oils

• clearance controls on burning at garbagedepots in bushfire danger periods

• the lighting of fires being controlled close tobuildings in fire districts (section 86 of theAct – see Appendix 7)

• prohibitions on the lighting, use andmaintenance of open fires during bushfiredanger periods without a permit (section 87of the Act – see Appendix 7)

• total fire bans being declared that preventthe lighting of fires, and permits beingsuspended for the duration of the ban(section 99 of the Act).

3

NO-BURN ORDERS ISSUED UNDER

SECTION 133 OF THE PROTECTION

OF THE ENVIRONMENT OPERATIONS

ACT 1997

Section 133 of the Act (see Appendix 1)allows the EPA to ban burning in the open,conditionally or unconditionally, on dayswhen weather conditions mean that burningis likely to contribute to significant airpollution. The EPA initiates the no-burnprocedure by notifying the RFS two daysbefore the proposed ban. Following discussionsbetween the RFS and the EPA, the EPAfinalises the no-burn notice on the day beforeit comes into effect. Appendix 2 outlines theprocedure for issuing a no-burn notice.

A no-burn notice is issued when there is likelyto be a build up of air pollution. It is differentfrom a total fire ban which can be issuedunder the Rural Fires Act 1997 because of therisk of bushfires.

On the morning of the ban, a no-burn notice(see Appendix 3) is published in the publicnotices section of The Sydney Morning Herald.A copy can also be found on the EPA’s website(www.epa.nsw.gov.au/airqual/aqupd.asp) whenthe regional pollution index is updated atapproximately 4 p.m. in the afternoon beforethe ban, as well as on the day of the ban. TheEPA may revoke the no-burn notice if it nolonger believes that weather conditions willlead to pollution build-up.

Features of a typical no-burn noticeNo-burn notices will contain conditions thatvary according to the circumstances underwhich they were issued. Each no-burn noticeshould be read carefully to see whichconditions apply. The following summarises

the general practice for the issue of no-burnnotices:

• In general, a no-burn notice will apply onlyto the local council areas listed in the noticerather than to NSW as a whole. The specifiedlocal council areas will usually be those in andaround Sydney, the Illawarra, the CentralCoast and the lower Hunter.

• The notice will apply for the periodspecified, ranging from one to seven days.

• The notice will prohibit all open burns(including hazard reduction and ecologicalburns – see ‘Definitions’ on page v), otherthan those lit for the suppression of bushfiresunder the authority of the Rural Fires Act1997 and those specifically exempted by thenotice.

• Recreational fires not for cooking purposes,such as campfires, will be prohibited duringa no-burn day.

• The notice will not prohibit the use ofincinerators licensed by the EPA. The use ofother incinerators will be prohibited duringa no-burn day.

• The notice will not prohibit the use ofbarbecues and other cooking fires and fires litfor the purpose of home heating.

• Open burns lit before the issuing of thenotice will not need to be extinguished butthey must not be actively maintained, unlessexempt from the notice.

• All other types of burns are prohibited unlessstated otherwise on the notice.

A sample no-burn notice is provided inAppendix 3.

CHAPTER 2

REQUIREMENTS UNDER PROTECTION OF THE ENVIRONMENTOPERATIONS ACT 1997, AND PROTECTION OF THEENVIRONMENT OPERATIONS (CONTROL OF BURNING)REGULATION 2000

4

DIRECTIONS UNDER SECTION 134

OF THE PROTECTION OF THE

ENVIRONMENT OPERATIONS ACT

1997 TO EXTINGUISH FIRES

Section 134 of the Act (see Appendix 1) allowsthe EPA or an authorised local council officerto issue a direction to extinguish a fireimmediately if, in the officer’s opinion, the fire:

• contravenes an order issued by the EPAunder section 133 of the Act, or

• air pollution from the fire is injurious toanyone’s health or is likely to create seriousdiscomfort or inconvenience.

PenaltiesAn authorised EPA or local council officermay issue a penalty notice carrying a penaltyof $200 for an individual or $400 for acorporation for:

• failure to comply with a no-burn orderissued under section 133

• failure to comply with a direction issuedunder section 134 to extinguish a fire.

Where an offence under these sections isprosecuted in court, the maximum penalty is30 penalty units ($3,300).

RESTRICTIONS ON BURNING

UNDER THE PROTECTION OF THE

ENVIRONMENT OPERATIONS

(CONTROL OF BURNING)

REGULATION 2000

Control of burning generallyClause 5 of the Regulation (see Appendix 4)creates a general obligation for anyone whoburns anything in the open or in an incineratorto prevent or minimise air pollution. Thisrequirement applies even in areas where thereare no other specific controls on burning. Inparticular, the person undertaking the burningshould:

• take into account the potential for smokeimpacts on other people due to winddirection and other weather conditions

• take reasonable measures to ensure thematerial being burnt is not wet

• burn only material that is suitable forburning from a human health andenvironmental perspective.

Prohibition on burning certain articlesUnder clause 6 (see Appendix 4) it is anoffence throughout NSW to burn in the openor in an unlicensed incinerator, the followingprohibited articles:

• tyres (except for the purposes of official firefighting instruction)

• coated wire

• paint containers and residues

• solvent containers and residues

• timber treated with copper chromiumarsenate (CCA) or pentachlorophenol(PCP).

Control of burning in local governmentareasClause 7 of the Regulation (see Appendix 4)allows local councils to assess local conditionsand to select the appropriate control of

Summary

No-burn notices:

• are issued only when absolutelyessential. No-burn notices are notintended to to reduce the amountof hazard reduction burning. The aim ofa no-burn notice is to minimise theimpact of smoke on the community.

• ban burning only in areas listed on thenotice

• may be revoked if the forecastedweather conditions change.

5

burning for the area. The level of control onburning will vary.

• For local government areas listed in Part 1 ofSchedule 1 (see Appendix 4), all burning inthe open or in an incinerator is prohibitedexcept with an approval (see ‘Exceptions’ innext column).

• For local government areas listed in Part 2 ofSchedule 1 (see Appendix 4), all burning ofvegetation in the open or in an incinerator isprohibited except with an approval. Councilshave powers to grant approvals for burningdead and dry vegetation on the premises onwhich the vegetation grew. A council mayissue such approval under clause 9(2) (seeAppendix 4) to:

(a) a class of people, such as all peopleliving in a certain locality specified bythe council, through a noticepublished in a local newspapercirculating in the local governmentarea, or

(b) a particular person to undertake a one-off burn, through a written notice (see‘Exceptions’ in next column).

• For local government areas listed in Part 3of Schedule 1 (see Appendix 4), burninganything other than vegetation in the openor in an incinerator is prohibited except withan approval (see ‘Approvals’ on next page).However, clause 8(4) (see Appendix 4)permits the burning of domestic waste ifdomestic waste collection services are notavailable (see ‘Exceptions’ in next column).

A summary of open burning activitiespermitted or prohibited in local governmentareas listed in Schedule 1 is provided inAppendix 5.

Councils who wish to change their listing onthe Schedule or who wish to have their localgovernment area added to the Schedule shouldwrite to the EPA to amend the Regulation.

Ban on use of home unit incineratorsThe use of domestic waste incinerators inhome unit/apartment buildings is no longerpermitted (from 1 September 2001) (clause8(2) of the Regulation – see Appendix 4). Thecontinued use of these types of incineratorscannot be justified because their emissionshave adverse impacts on health and amenity,and domestic waste collection services arereadily available in the areas where remainingincinerators were located.

ExceptionsThe prohibitions in the Protection of theEnvironment Operations (Control ofBurning) Regulation 2000 set out above donot apply to:

• burning to give official instruction in firefighting methods (clause 8(1) – seeAppendix 4)

• cooking or barbecuing in the open

• fires for recreational purposes such ascamping, picnicking, scouting or similaroutdoor activities

• burning vegetation while carrying outagricultural operations.

The Regulation does not limit or affect anyright or obligation to carry out bushfire hazardreduction work under the Rural Fires Act 1997that is reasonably necessary for the protectionof life, property or the environment (in theopinion of the fire fighting authorityconducting the work or the local authorityrequesting it).

The Regulation does not apply to burning thatmight be required to dispose of prohibitedplants or drugs under the Drug Misuse andTrafficking Act 1985, or the burning of animalcarcasses with diseases specified under the StockDiseases Act 1923 or the Exotic Diseases ofAnimals Act 1991 – see clause 4 of theProtection of the Environment Operations(Control of Burning) Regulation 2000 inAppendix 4.

6

ApprovalsUnder clause 9(1) of the Regulation, the EPAmay issue an approval for burning as anexception to the prohibitions in place for localgovernment areas listed in Parts 1, 2 or 3 ofSchedule 1. Councils have similar powers forapproval under clause 9(2) but only in relationto the burning of vegetation on-site. SeeAppendix 4.

Examples of open fires that may warrant EPAapproval include:

• ecological or bush regeneration burns (see‘Ecological/bush regeneration burns’ inChapter 3) – note that EPA approval is notneeded where such burns are included in abushfire risk management plan

• special effects for film-making which requireopen burning or the production of smoke

• destruction of noxious weeds from bushcareoperations where alternative disposal is notpracticable.

In granting approvals, the EPA and councilsmust consider:

• the impacts of an approval on regional andlocal air quality and amenity

• the feasibility of re-use, recycling oralternative means of disposal

• the opinions of people likely to be affectedby the proposed approval.

A sample EPA approval is set out in Appendix 9.

A council must seek the EPA’s opinion if itintends to grant an approval to a class ofpeople. Councils, organisations or individualswho seek approval from the EPA for burningin the open should contact the appropriateRegional Manager. For contact details seeAppendix 10.

A key condition of any approval granted bythe EPA is that the applicant comply withrequirements set by the relevant fire authority.In particular, applicants need to check if anybans, such as a no-burn notice or a total fireban, are in force on the day they intend toburn. When a no-burn notice is in force,burning may only be undertaken in areas thathave been specifically exempted in the notice.During a total fire ban, no burns may takeplace.

PenaltiesAuthorised officers from local councils, thepolice, EPA or the National Parks andWildlife Service may issue a penalty notice forany of the following offences under theRegulation (see Appendix 4):

• clause 5 (1) – not preventing or minimisingair pollution while burning

• clause 6 (1) – burn prohibited article

• clause 7 – prohibited burning in a scheduledlocal government area.

Penalties for each offence are $500 for anindividual or $1,000 for a corporation.

If a breach is considered more serious, thematter may be prosecuted in court, where themaximum penalties are 50 penalty units($5,500) for an individual and 100 penaltyunits ($11,000) for a corporation (1 penaltyunit is equivalent to $110 at the date ofpublication).

7

Summary

Sections 133–134 of the Protection of theEnvironment Operations Act 1997 (seeAppendix 1) and the Protection of theEnvironment Operations (Control of Burning)Regulation 2000 (see Appendix 4) bothregulate burning in the open in NSW. Thepowers in the Act to prohibit burning willoverride any provision of the Regulation orany approval granted in the Regulation whichpermits burning. In summary, their effect is to:

• allow the EPA to issue a no-burn orderthat overrides any approval grantedunder the Regulation

• allow an authorised officer of the EPA orof a local council to issue a direction toextinguish a fire, which will override anapproval granted under the Regulation

• place an obligation on anyone whoburns anything in the open or in anincinerator to prevent or minimise airpollution

• ban the burning throughout NSW oftyres, coated wire, paint/solventcontainers and residues and treatedtimber

• give powers to councils to elect to belisted in the Schedules to the Regulation,as a means of controlling the extent ofbackyard burning in their localgovernment area

• permit agricultural, cooking andrecreational fires

• not affect bushfire hazard reductionwork allowed under the Rural Fires Act1997, the destruction of prohibitedplants or drugs, or the burning ofdiseased animal carcasses

• allow other burns if approved by theEPA.

8

HAZARD REDUCTION BURNING

Hazard reduction burning is needed to reducethe amount of fuel that could causedangerous, high intensity bushfires. Currentlyit is viewed as the most economically viableand effective method of reducing bushfirehazards. However, a major environmentaldisadvantage of this method is that it canproduce large quantities of smoke and ash.

The Protection of the EnvironmentOperations (Control of Burning) Regulation2000 allows hazard reduction burning aspermitted by the Rural Fires Act 1997 (seeclause 4 of the Regulation in Appendix 4).Although section 133 of the Protection of theEnvironment Operations Act 1997 allows theEPA to ban hazard reduction burning oncertain days, the legislation is intended not toreduce the amount of hazard reductionburning, but to make sure it coincides withmeteorological conditions favouring pollutantdispersion rather than accumulation. The EPAacknowledges that hazard reduction burning isan essential bushfire prevention measure.Consequently, it bans burning only whenabsolutely essential and only when smokecould affect major metropolitan areas.

What is a bushfire hazard reduction burn?Most hazard reduction burning is done byland management agencies in accordance withan approved bushfire risk management planprepared under section 52 of the Rural FiresAct 1997.

The following burns are generally notregarded as appropriate hazard reductionburns:

• burning where other means of disposal areavailable

• burning domestic or garden waste collectedon a suburban block

• burning materials from land clearance forcommercial development

• burning leaf litter on golf courses.

For further guidance on determining whethera bushfire hazard exists, see Planning forbushfire protection published by the RFS andPlanningNSW, 2001.

Alternatives to hazard reduction burningWherever practicable, non-burning methodsof hazard reduction should be used to avoidthe following adverse environmental andhealth effects of burning:

• the emission of large quantities of fineparticles, such as smoke and ash, into theatmosphere: optimum fire control oftenrequires low intensity burns, which can leadto incomplete combustion – the resultingparticles can impair visibility and becomedeposited in people’s lungs

• the discharge of chemical compounds intothe atmosphere – these are often absorbed bysmoke particles and can enter people’s lungs

• the accumulation of emitted particles in theatmosphere – the meteorological conditionssuitable for hazard reduction burning tendto be cool with low winds, and can lead topoor dispersion.

Non-burning options for reducing bushfirehazards include composting and mulching. TheEPA considers it desirable that where it ispossible to physically remove bushfire fuel, it isrecovered and reprocessed into compost orother organic products.

The government has established ResourceNSW to help councils and industry developwaste management strategies, includingcollecting and reprocessing infrastructure forgreen waste. This will ensure that far moregreen waste is recovered and used for compost,

CHAPTER 3

BURNING ISSUES – THE NEED FOR HAZARD REDUCTION BURNING

9

mulches and other soil enhancement products.For information on composting, contactResource NSW on (02) 8837 6000, your locallibrary or council, or the EPA’s Pollution Lineon 131 555.

ECOLOGICAL/BUSH REGENERATION

BURNS

Ecological/bush regeneration burns are carriedout to:

• destroy infestations of noxious weeds andplants

• clear land for native species regeneration

• allow seeding or germination of nativespecies that need fire

• maintain biodiversity through the use of firewhere fire thresholds have been exceeded.

Ecological burns that are not included in abushfire risk management plan under theRural Fires Act 1997 are not expresslypermitted by the Protection of theEnvironment Operations (Control ofBurning) Regulation 2000. To prevent theburning of garden waste under the guise of‘ecological burning’, the Regulation did notinclude ecological/bush regeneration burnsas permitted burns.

Individuals and organisations that wish tocarry out these burns in areas covered by Part1 and Part 2 of Schedule 1 of the Regulationshould apply to the relevant Regional Managerof the EPA (see Appendix 10) for specificapproval under clause 9 of the Regulation (seeAppendix 4).

Approvals can be granted for individual burnsor burns by organisations over a specified timeperiod. Approvals can be short- or long-termand can be subject to several conditions. Bothpile burning and in-situ burning might beapproved on ecological grounds. See Appendix9 for an example of an approval notice.

HAZARD REDUCTION AND THE

RURAL FIRES ACT 1997

The Rural Fires Act 1997 and the Rural FiresRegulation 2002 place several requirements onopen burning. These requirements,particularly those relating to bushfire hazardreduction burning, are outlined below.

Duties of public authorities and ownersand occupiers of land to prevent bushfires Section 63 of the Rural Fires Act 1997 imposesa duty on all public authorities, and owners oroccupiers of private property, to take allpracticable steps to:

• prevent fires starting on their land

• minimise the danger of bushfires spreadingon or from their land.

This section places a responsibility on councils,land management agencies and private propertyowners or occupiers to carry out bushfirehazard reduction activities. A local bushfire riskmanagement plan might set out the steps to betaken in managing the bushfire hazard on theproperty.

Summary

• Hazard reduction burning is permittedin accordance with the Rural Fires Act1997.

• Alternative methods of hazardreduction are recommended wherepossible.

• Ecological burns (other than those in abushfire risk management plan) requireEPA approval if they are to be done inlocal government areas listed in Part 1or Part 2 of Schedule 1 of the Protectionof the Environment Operations (Controlof Burning) Regulation 2000.

10

Power of councils to require bushfirehazard reduction work to be done onprivate properties Under section 66 of the Rural Fires Act 1997,the local council, or the Commissioner of theNSW Rural Fire Service if this function hasbeen conferred, may issue a written noticerequiring the owner or occupier of a propertyto do bushfire hazard reduction work, asdefined in the Act.

The notice may specify how this work must bedone. Burning is one bushfire hazard reductionmethod that councils might specify. If a noticeissued under section 66 allows for hazardreduction burning, there is no need for thelandowner/occupier of land to obtain a permitto burn before doing the work. However, thelandowner/occupier of land will require abushfire hazard reduction certificate (anexample of a certificate is provided inAppendix 11).

A person who has been issued a notice undersection 66 of the Rural Fires Act 1997 has theright of objection to the notice (section 67).The grounds for objection are that thevegetation to be reduced is required foragricultural or environmental purposes such as:

• shelter, shade, windbreak or fodder

• protection of threatened species, populations,communities or critical habitat under theThreatened Species Conservation Act

• for other conservation purposes.

A person can also object if the proposedhazard reduction work is not required by abushfire risk management plan and does notconstitute a risk.

The person objecting may refer the matter forfurther consideration to the RFS if the land isin a rural fire district, or to the NSW FireBrigades if it is in a fire district. If the personobjecting is still concerned after thisreconsideration, they may appeal to theCommissioner of the NSW Rural Fire Service.

Reduction of bushfire hazards onunoccupied Crown land and managed landUnder section 65 of the Rural Fires Act 1997,an authorised representative of a fire fightingauthority may, with appropriate permission,enter unoccupied Crown land and managedland and do bushfire hazard reduction work (asdefined under section 52 of the Act – see‘What is a bushfire hazard reduction burn?’ onpage 7). ‘Managed land’ is defined in thedictionary in the Act and by clause 38 of theRural Fires Regulation 2000. Authorisedrepresentatives include officers of the Rural FireService and anyone exercising their functionsunder a bushfire risk management plan.

Preparation of bushfire risk managementplansSection 52 of the Rural Fires Act 1997 requiresBush Fire Management Committees (BFMCs)to prepare both operational plans and bushfirerisk management plans.

Operational plans detail the arrangements thatwill be used in a local council area tocoordinate the suppression of large bushfires.

Bushfire risk management plans identify areasthat constitute a threat to communities andassets, and provide the measures to be taken toameliorate the threat.

Risk management strategies include:

• hazard reduction including burning wherenecessary

• ignition management

• community education

• building and development controls.

Plans might also contain strategies such asburning to maintain biodiversity (ecologicalburning) and managing bushfire smoke.

Bushfire hazard reduction works may berequired:

• to protect life and property (Asset ProtectionZones)

11

• to assist in managing bushfires in strategicareas (Strategic Fire Management Zones)

• as part of a land management activity (e.g.ecological burns in conservation areas).

A BFMC must be assembled for each localcouncil area (or combination of areas) thatincludes lands under the control of the NSWRural Fire Service. Members of the committeesinclude the local Fire Control Officer; councilrepresentatives; land management agencyrepresentatives from the National Parks andWildlife Service and State Forests of NSW;members of the NSW Fire Brigades and RuralFire Service; and representatives from the StateRail Authority and the Nature ConservationCouncil.

BUSHFIRE HAZARD REDUCTION

BY THE COMMISSIONER

Section 73 of the Rural Fires Act 1997 allowsthe Commissioner of the NSW Rural FireService to carry out hazard reduction workrequired by a bushfire risk management plan ifthis work has not been undertaken by therelevant landowner, public authority or council.

BUSHFIRE HAZARD REDUCTION

CERTIFICATES

Sections 100D–100G of the Rural Fires Act1997 (see Appendix 8) detail the process ofobtaining a bushfire hazard reductioncertificate. An example of such a certificate isin Appendix 11.

A land-holder/occupier of land needs acertificate from the local authority to authorisethe carrying out of bushfire hazard reductionwork in accordance with:

• a bushfire risk management plan that appliesto the land

• the provisions of any bushfire code applyingto the land specified in the certificate

• any conditions specified in the certificate.

The certifying authority is the person orauthority carrying out the work if the hazardreduction work will be carried out:

• on any land by the Commissioner of theNSW Rural Fire Service or the localauthority

• by a public authority on managed land orunoccupied Crown land.

HOW IS A BUSHFIRE HAZARD

REDUCTION CERTIFICATE ISSUED?

An application is made in writing to theissuing authority (in most cases this functionhas been conferred on the NSW Rural FireService) by:

• the landowner/occupier of private land

• a public authority for managed orunoccupied Crown land in the vicinity ofprivate land.

The certificate must specify any conditionsimposed. Determination of the applicationmust be made within 7 days (or longer, butonly with agreement of the applicant). Thecertificate operates for 12 monthscommencing on the date endorsed on thecertificate. There is no right of appeal.

BUSHFIRE HAZARD COMPLAINTS

What is a bushfire hazard complaint?A bushfire hazard complaint may be madeunder section 74A of the Rural Fires Act 1997(see Appendix 6), asserting that there is abushfire hazard because a public authority,landowner or occupier of land has failed tocarry out bushfire hazard reduction work.

These complaints may be made by any owneror occupier of land adjacent to, or in thevicinity of, the land to which the complaintrelates.

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Who do I complain to about a bushfirehazard?A bushfire hazard complaint must be made inwriting, identifying the complainant andstating the grounds for complaint, and sent to:

• the Commissioner of the NSW Rural FireService if the complaint relates tounoccupied Crown land or managed landfor which a public authority is responsible,or

• the local council of the local governmentarea in which the land is located.

How is a bushfire hazard complaint dealtwith?Written notice of the complaint and itsgrounds must be given to the owner of,occupier of or public authority responsible forthe land as soon as practicable.

The complaint will be investigated byCommissioner of the NSW Rural Fire Serviceor the local council as soon as practicable.

The council will act on the complaint by:

• declining to deal with the complaint, ordismissing it, if it is deemed to be vexatious,misconceived, frivolous or lacking insubstance

• issuing a notice under section 66 of theRural Fires Act 1997 if no bushfire hazardreduction notice has been served

• exercising its powers under section 70 of theRural Fires Act 1997 if a bushfire hazardreduction notice has been served

and then advising both the complainant andthe Commissioner of the NSW Rural FireService of the action to be taken as soon aspracticable.

The Commissioner will act on the complaintby:

• serving notice in writing on a publicauthority, requiring it to carry out suchbushfire hazard reduction work as isspecified by the Commissioner (if thecomplaint relates to a public authorityfailing to take notified steps under section63 of the Rural Fires Act 1997)

• carrying out the bushfire hazard reductionwork on the land, under section 73 of theAct, if the public authority fails to carry outthe specified work within a reasonable time

and then advising the complainant of theaction to be taken as soon as practicable.

If the complainant considers the local councilhas failed to exercise its powers regarding thecomplaint, they may request theCommissioner of the NSW Rural Fire Service,in writing, to act on the complaint. This mayinvolve investigating the complaint, servingnotice on the local council to serve a noticeunder section 66 of the Act on a landowner/occupier of land, or exercising their powersunder section 70 of the Act.

The local council served with such a notice bythe Commissioner of the NSW Rural FireService must comply with its requirements.

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Summary

Under the Rural Fires Act 1997:

• public authorities, landowners andoccupiers of land must prevent ormitigate the risk of bushfires (whichmay include hazard reduction burning)

• local councils, or the Commissioner ofthe NSW Rural Fire Service, may directa landowner or occupier of land toundertake bushfire hazard reductionwork on private property in fulfillmentof a bushfire risk management plan orwhere it is considered necessary toprotect public safety

• a person may object to a notice andalso has a right of appeal

• a landowner or occupier of land needsa bushfire hazard reduction certificateto carry out hazard reduction work

• authorised people may enter land to dobushfire hazard reduction work, withthe permission of the land manager,landowner or occupier of land

• Bush Fire Management Committeesmust prepare operational plansand bushfire risk management plans,which identify areas in need of hazardreduction for fire managementpurposes

• the Commissioner may carry outbushfire hazard reduction works

• complaints may be made bylandowners/occupiers of land regardingbushfire hazards on land adjacent to, orin the vicinity of, their land.

CHAPTER 4

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This section provides an outline of howpermits issued under the Rural Fires Act 1997can help the community manage the lightingof fires and prevent unplanned bushfires.

REQUIREMENTS UNDER THE RURAL

FIRES ACT 1997

General notification requirements for thelighting of firesWhether a person lights a fire on private landduring or outside the bushfire danger period(see ‘General fire safety requirements’ below),that person must notify those potentiallyaffected by the lighting of that fire.

As a general requirement, a person lighting afire must give at least 24 hours notice of theintention to burn to the occupants of alladjoining properties.

Adjoining properties include lands separatedby a road, lane, or waterway, whether fencedor not. If the land is not occupied, reasonableattempts must be made to notify thelandowner.

A notice may be either in writing or verbalbut must include the location, purpose andthe time of the fire proposed to be lit.

Neighbours may include public land managerssuch as National Parks and Wildlife Service,State Forests of NSW or the SydneyCatchment Authority as well as privatelandowners.

General fire safety requirementsThe Rural Fires Act 1997 places no generalrequirements on hazard reduction burningoutside the bushfire danger period, unless anyrequirements are specified in a bushfire riskmanagement plan for the area, or anyadditional conditions are specified in therelevant bushfire hazard reduction certificate.

A permit is not required for hazard reductionburning outside the bushfire danger period,unless the burn is in an area under the controlof the NSW Fire Brigades and is likely toendanger a building. However, otherlegislation, such as the National Parks andWildlife Act 1974 and Regulations and theProtection of the Environment Operations Act1997 can impose requirements on hazardreduction operations (for example, no-burnnotices).

Section 86 of the Rural Fires Act (seeAppendix 7) requires landowners or occupiersof land to notify adjoining neighbours and thelocal council not less than 24 hours beforecarrying out a hazard reduction burn outsidethe bushfire danger period.

A sample permit with standard conditions isshown in Appendix 10.

Note: Permits issued under section 87 of theRural Fires Act 1997 are required only when abushfire danger period is in force. Anyoneintending to light a fire during the bushfiredanger period must obtain a permit. However,officers of a public authority such as councils,State Forests, the National Parks and WildlifeService and the State Rail Authority, acting inthe course of their duty, do not require apermit.

Permits are however required all-year-roundwhere a person wishes to light a fire in a ruralfire district for or in connection with:

• the demolition of a building

• the destruction of old building materials, or

• any similar type of activity.

Other safety requirements include:

(a) when destroying sawmill wastes, a personmust:

PERMITS AND PROTECTING THE COMMUNITY FROM BUSHFIRES

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• use an incinerator designed to preventthe escape of sparks and burningmaterial, or

• enclose the area by a galvanised fence (orsimilar) of 1.8 m in height surroundedby ground that is clear of all combustiblematerial for at least 9 m, or

• burn them in a pit surrounded byground that is clear of all combustiblematerial for at least 9 m, or

• burn them in accordance with anyconditions on a permit

(b) using spark arrestors when driving orusing steam powered machines inconnection with agricultural, pastoral,railway or other land

(c) not driving or using motorised machines(including when welding) for agricultural,pastoral or other land use unless heatedareas of the equipment do not contactcombustible matter, and the equipment ismaintained in good condition and hassuitable fire safety equipment installed

(d) where consistent with a bushfire riskmanagement plan, a public authority maylight a fire on a roadside (or verge) andprevent, direct or manage trafficmovements while the fire is burning

(e) a permit is required from the nearestNSW Fire Brigades station or Rural FireService issuing officer where the lightingof a fire is likely to endanger a building.

During the bushfire danger periodThe statutory bushfire danger period extendsfrom 1 October to 31 March each year. Thebushfire danger period can, however, beextended or shortened in particular localcouncil areas.

Burning off in the open – the following rulesapply during the bushfire danger period:

• a permit is required to burn off on land forthe purposes of hazard reduction, land

clearance or establishing a fire break(including lighting a fire for agriculturalpurposes, such as the removal of stubble andground fuels on agricultural, pastoral andforested lands)

• neighbours and the local fire service need to benotified at least 24 hours before the fire is lit

• someone must be in attendance all the timethe fire is alight

• any conditions of the permit, and ifappropriate the conditions specified on therelated bushfire hazard reduction certificate,must be observed.

Cooking fires – during the bushfire dangerperiod, the fire must be lit:

• in a permanently constructed fireplacesurrounded by ground that is clear of allcombustible material for at least 2 m, or

• at a site surrounded by ground that is clear ofall combustible material for a distance of atleast 2 m.

The fire must be completely extinguishedbefore those responsible for lighting the fireleave the area. Where a fire is used by anotherperson, that other person is then responsiblefor putting out the fire.

Note: Some land management agencies(Sydney Catchment Authority, State Forests ofNSW and the National Parks and WildlifeService) might have requirements specific tocertain areas. Local managers can providedetails.

Issuing of permits – permits to light fires forland clearance or firebreaks may be issued by:

• permit-issuing officers who are normally firecontrol staff or brigade officers of the NSWRural Fire Service in a rural fire district

• the NSW Fire Brigades, in their fire district.

Permits may be issued for a specified period ofup to 21 days. The permit-issuing officer mayalso specify conditions that the permit holdermust meet to ensure the burning is conducted

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safely and responsibly. Fire permits must beissued in writing.

Conditions of a permit – the permit-issuingofficer will impose several conditions to ensurethat the burning is conducted safely andresponsibly during the specified period. Thepermit-issuing officer may also specify thedays or times on which the burn may or maynot take place during the specified period.Any conditions imposed must not contradictthose on any related bushfire hazard reductioncertificate.

The local knowledge and experience of thepermit-issuing officer is important in thedecision making process for granting a permit.

The permit-issuing officer may refuse to issuea permit if:

• conditions so dictate (e.g. adverse fireweather conditions are forecast)

• inadequate control capability of the personlighting the fire is evident

• issuing of the permit would be inconsistentwith any bushfire risk management plan

• the local authority has determined in writingthat no permits be issued for fires to be lit inits area (or any part of its area) because ofthe seriousness of bushfire danger.

Revocation/suspension of permits – permitsare temporarily suspended when a total fireban is declared under the Rural Fires Act 1997,or when the EPA declares a no-burn day. Apermit may be used following the lifting of atotal fire ban or no-burn notice, provided thepermit has not expired. The authority thatissued the permit may cancel or suspend thepermit at any time for other reasons.

Total fire bans Under section 99 of the Rural Fires Act 1997,a total fire ban may be declared on days ofextreme fire danger caused by a combinationof certain weather conditions and dryvegetation. During a total fire ban, no fire

may be lit in the open. This includesincinerators, and barbecues that burn solidfuel such as wood or charcoal. A gas or electricbarbecue may be used only if:

• it is on a residential property within 20 m ofthe house or dwelling or in an area withcouncil approval that specifically allows itsuse (for example, a picnic ground)

• it is under the direct control of an adult

• the ground within 3 m of the barbecue iscleared of all materials that could burn

• a continuous supply of water is available.

A total fire ban usually lasts for 24 hours from12 midnight and is notified throughnewspapers, radio and TV.

Permits issued by a permit-issuing authorityare also suspended during the period of thetotal fire ban.

PenaltiesSection 100 of the Rural Fires Act 1997provides for severe penalties for people whounlawfully light fires.

• Where a person, without lawful authority,lights a fire or causes a fire to be lit onprivate land, unoccupied Crown land orland of a public authority, or lets a fireescape from their land and cause damage orinjury, they are subject to a fine of up to$110,000 (1,000 penalty units) or up to fiveyears’ imprisonment, or both.

• If a person leaves a fire to burn in the openwithout lawful authority before it isextinguished, that person can be fined upto $55,000 (500 penalty units) or be subjectto up to one year’s imprisonment, or both.

In addition to the above, the council or thepolice may also issue an infringement noticeunder specific provisions of the Rural Fires Act1997 or Rural Fires Regulation 2002, chargingfines ranging from $220–$550 (2–5 penaltyunits).

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Summary

Under the Rural Fires Act 1997:

• the bushfire danger period usuallyextends from 1 October to 31 March –the Commissioner of the NSW Rural FireService may declare a different periodfor part or all of a local council area

• a permit is required for hazardreduction burning and land clearingduring the bushfire danger period

• a permit is required year-round if thefire will be lit in an area under thecontrol of NSW Fire Brigades and islikely to endanger a building

• neighbours and the local fire servicemust be notified at least 24 hoursbefore any burn

• total fire bans can be made for areasand will suspend the operation ofpermits for land clearance purposes forthe duration of the time they are ineffect.

The Rural Fires Regulation 2002 placesspecific requirements on the other types ofburning listed below:

• lighting fires during the bushfiredanger period to produce charcoal or todistil eucalyptus or other oils

• burning at garbage depots during thebushfire danger period

• lighting fires for cooking purposesduring the bushfire danger period

• burning to demolish buildings

• roadside fire protection

• burning to destroy sawmill wastematerial.