Local Law DigestA regular publication for those involved in the administration and enforcement of local laws.

Edition 4

Regulating the lighting of fires

Local Law Digest – Edition 4

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Foreword

Welcome to Edition 4 of the Local Law Digest – a periodical produced by the Governance and Capacity Building Division of the Department of Local Government, Planning, Sport and Recreation to keep local law makers and practitioners abreast of all the happenings which impact upon the local law system. On 6 August 2004 the Fire Commissioner published in the Gazette a revised notification authorising the lighting of specific types of fires providing that it conformed to any council local law. The purpose of this edition is to advise councils of their jurisdiction to make local laws regulating fires and the status of existing local laws purporting to regulate fires. For more information about local laws generally, visit http://www.lgp.qld.gov.au/?ID=149. Information available at this site is constantly updated, so be sure to bookmark it for future reference. The Local Law Search facility can be accessed at http://www.lgp.qld.gov.au/Default.aspx?ID=134.

If you have any questions regarding the local law system, or would like to comment on the Local Law Digest, please contact any member of the Local Law Team as detailed below: Cherie Stevens (07) 3225 8661 Cherie.Stevens@dlgp.qld.gov.au Donna Roberts (07) 3225 8658 Donna.Roberts@dlgp.qld.gov.au Kara Salmon (07) 3225 8665 Kara.Salmon@dlgp.qld.gov.au

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Contents

Purpose ..............................................................................................................................Page 3 The legislation ...................................................................................................................Page 3

Notification allowing lighting of fires ....................................................................Page 3

Permits to light fires................................................................................................Page 3 Notice to light fires..................................................................................................Page 3

Local Law Jurisdiction ......................................................................................................Page 4 Validity of existing local laws .........................................................................................Page 4 Role of Queensland Fire and Rescue Service ..................................................................Page 5 Enforcement of local laws................................................................................................Page 5 Appendix 1 ........................................................................................................................Page 6

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Regulating the lighting of fires

Purpose

This edition of the Local Law Digest is designed to advise councils of: • their jurisdiction to make local laws

regulating fires; and

• the status of existing local laws purporting to regulate fires.

The legislation

The Fire and Rescue Service Act 1990 (the FRSA) is the primary State legislation regulating the lighting of fires in Queensland. The FRSA and its subordinate legislation are administered by the Queensland Fire and Rescue Service (the QFRS). Councils can only adopt local laws regulating fires that are consistent with the provisions of the FRSA pursuant to section 31 of the Local Government Act 1993 (the LGA). Under the FRSA, a person may not light a fire unless authorised by: • a notification (issued under section 63 of

the FRSA), or • a permit (issued under section 65 of the

FRSA), or • a notice (issued under section 69 of the

FRSA). *Note: The FRSA is silent on the issue of fires lit indoors for heating, cooking or other purposes associated with the legitimate use of premises or outdoors for cooking purposes.

Notification allowing lighting of fires Pursuant to section 63 of the FRSA, the Commissioner of the QFRS (the Fire Commissioner) may, by notification published in the Gazette, authorise the lighting of fires for purposes and in circumstances specified in the notification.

Permits to light fires A person may apply to the Fire Commissioner (or other delegated officer) for permission to light a fire under section 65 of the FRSA. A permit to light a fire may be subject to conditions imposed by the permitting officer.

Notice to light fires Pursuant to section 69 of the FRSA, the Fire Commissioner (or other delegated officer) may, by issuing a notice, require the occupier of any premises to take action to reduce the risk of fire from flammable material on the land. A notice issued under section 69 of the FRSA can authorise the occupier of premises to light a fire to dispose of flammable material in order to reduce the risk of an uncontrolled fire occurring. Where compliance with a notice under this section is not gained, the Commissioner may take action to remove the hazard and apportion costs incurred to the occupier of the premises.

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Local Law Jurisdiction

A local law may not deal with fires authorised by sections 65 or 69 of the FRSA. That is, a local law may not regulate fires authorised under a permit or notice issued by the Fire Commissioner or appropriately delegated officer. However, where the Fire Commissioner has, by notice in the Gazette, permitted the lighting of particular types of fires, councils may adopt local laws regulating those types of fires if authorised by the notice to do so. Notwithstanding the above, councils may regulate the lighting of fires on land under their control (eg roads, parks etc). In particular, councils may ban the lighting of fires on any land under their control. However, if a local law allows the lighting of fires on the council’s land, the lighting of the fires must also be authorised under one of the three methods in the FRSA. In accordance with the provisions of the FRSA, any action taken by an authorised officer of the QRFS to bring under control a fire on council land or other lands is not subject to any local law or other law.

Validity of existing local laws

On 8 December 1990, the then Fire Commissioner published a notification in the Gazette authorising the lighting of a number of types of fires subject to conditions. The notice did not make the lighting of these fires subject to local laws. Accordingly, any local law purporting to regulate these fires was of no effect pursuant to section 31 of the LGA. In effect, councils had no jurisdiction to regulate the lighting of fires in their areas that were covered by the notification.

In addition, many local laws (including the model local laws) purported to allow the adoption of subordinate local laws to ban the lighting of fires in the council’s area (or part thereof). However, the authorising provision to make these subordinate local laws did not allow the regulation or prohibition of fires where the fire was authorised by notice in the Gazette under section 63 of the FRSA. Accordingly, any subordinate local law adopted while the 8 December 1990 Gazette notice was in effect was invalid to the extent it purported to regulate the lighting of fires. On 6 August 2004, the Fire Commissioner published a revised notice in the Gazette authorising the lighting of specific types of fires providing that it conformed to any council local law. See Appendix 1 for a copy of this Gazette notice. As the new Gazette notice authorises the regulation or prohibition of fires covered in the notice, existing local laws are no longer inconsistent with State law and now have effect. It is the case however, that as some subordinate local laws were invalidly made (in addition to being inconsistent with the previous Gazette notice), these subordinate local laws are not revived with the publication of the new Gazette notice. If councils with these subordinate local laws want to regulate or prohibit the lighting of fires covered by the notice in their areas, an amendment subordinate local law must be adopted remaking the invalid provision. The process for making an amendment subordinate local law is set out in Chapter 6 of the Local Law Manual – Edition 3. Councils that have adopted local laws other than the previous model local law should seek legal advice on the validity of their local law.

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Role of Queensland Fire and Rescue Service

A primary role of the QFRS is to protect life and property from the danger of fire. In addition to extinguishing fires that pose a risk to life and property, QFRS is also responsible for minimising risks from potential fire hazards. This responsibility often requires fire wardens to issue permits or notices to allow occupiers of land to take appropriate action to reduce the risk of danger from potential fires. While the present provisions of the FRSA do not specifically require fire wardens to consult with councils before allowing a person to light a fire, the QFRS is prepared to work in partnership with councils to reduce the smoke nuisance impacts from fires authorised by fire wardens. Under the provisions of section 65 of the FRSA it is incumbent upon the person seeking a permit to attempt to obtain the consent of owners of neighbouring properties. It is anticipated that there will also be greater emphasis placed upon the party seeking a permit to light a fire to also ascertain whether the council has any objection to the issuing of a permit to light a fire on the subject land and to provide evidence of same to the fire warden. In addition, QFRS is planning to conduct training for fire wardens to ensure that they are fully aware of local laws and development controls of councils that are relevant to the lighting of fires.

Enforcement of local laws

Council-authorised persons investigating a breach of a local law banning the lighting of fires must determine the following issues: • Is the fire authorised under a permit or

notice issued by QFRS?

• Does the fire require a permit issued by the QFRS?

• Is the fire contrary to the local law? In general, if the fire is enclosed in an incinerator or smaller than 2 metres in height, width, or length then authorised persons can enforce breaches of the local law. However, in most other cases a permit will be needed from QFRS to light the fire. If an authorised person investigating a possible breach of the local law determines that the fire would have required a permit, the authorised person should refer the incident to the QFRS for action. Correspondingly, councils should advise QFRS of the requirements of the local law so that QFRS officers know how to properly refer complaints about illegal fires to the council. Should you require advice regarding necessary amendments to the council’s local law, or assistance in undertaking the local law making process, please contact: Ms Cherie Stevens A/Manager, Local Laws Unit Operations and Development Division Department of Local Government and Planning Telephone: (07) 3225 8661 Email: Cherie.Stevens@dlgp.qld.gov.au

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NOTIFICATION

Fire and Rescue Service Act 1990

Queensland Fire and Rescue Service

Brisbane, 6 August 2004

PURSUANT to section 63 of the Fire and Rescue Service Act 1990 the Commissioner of Fire and Rescue Service notifies as follows:- 1. Provided that adequate precautions are taken

to prevent the spread of fire, and the lighting of the fire conforms with any Local Law defined for a part of the Local Government Area administered by a Local Government in whose jurisdiction it is proposed to light the fire, or the provisions of either the Health Act 1937 or the Environmental Protection Act 1994, the following fires may be lit without a Permit to Light a Fire being issued by a Fire Warden :-

(a) a fire in which neither the height,

width nor length of the material to be consumed exceeds 2 metres;

(b) a fire lit for the purpose of burning the carcass of a beast;

(c) a fire lit at a sawmi ll for the purpose of burning sawdust or other residue resulting from the operation of a sawmill;

(d) a fire lit out-doors, if enclosed in a fireplace so constructed as to prevent the escape of fire or any burning material therefrom.

2. The owner or occupier of land used for

growing Sugar Cane (“cane production land”) that is bordered on every side by cane production land may light on the cane production land a fire for the purpose of burning sugar cane, tops or trash provided that –

(a) no burning is conducted between 10

o’clock in the morning and 2 o’clock in the afternoon; and

(b) adequate precautions are taken to prevent the spread of fire; and

(c) the burning takes place in accordance with recognised practice in the sugar cane industry; and

(d) in the case of a fire lit for the purpose of burning any residual tops or trash, the residual tops or trash are at least

10 metres from any headland and from all other flammable material; and

(e) where an agreement between growers and millers regulates the times when the burning of sugar cane, tops and trash may be carried out on cane production land – subject to paragraph (a) the burning takes place within those times;

(f) where an agreement referred to in paragraph (e) does not apply to the cane production land – subject to paragraph (a), the burning takes place at a time at which, sugar cane, tops or trash is normally burnt in the locality in which the cane production land is situated.

3. (1) This Notification does not authorize

the lighting of a fire in a part of the State during a period in respect of which the Commissioner has notified throughout that part that, by reason of the high fire danger existing in that part, a fire to which this Notification applies must not be lit.

(2) A Notification given for the purpose

of this clause must – (a) identify the part of the State to

which it relates; and (b) specify the period for which it has

effect; and (c) be given in at least one of the

following ways:- a. by newspaper; b. by radio; c. by television.

4. For the purpose of clause (2) (a) of this

Notification, the time referred to therein is, to be determined by reference to standard time for the area concerned.

5. In this Notification:

“Cane Production Land”; refers to those lands designated as cane production areas in the Sugar Industry Act 1999.

Lee A Johnson AFSM MIFire E

The Commissioner of the Queensland Fire and Rescue Service

Appendix 1