Outdoor Walking Access Report to the Minister for Rural Affairs

15 Fire risk

15.1 Background

Landholders are concerned that fire risk may increase as a result of easier access. The Panel is aware that perceptions of the risk of fire and liability for fire suppression costs can be a disincentive for landholders to allow walking access.

There are several key matters for landholders in respect to fire risk:

  • the possibility that more people on or near their land might mean more risk of fire;
  • if access was allowed without landholder permission, landholders would no longer be able to refuse access at times of heightened fire risk;
  • responsibility for costs associated with fire.

15.2 Access and fire risk

The National Rural Fire Authority has only fairly basic data on the cause of fires. The data do not include fires caused by the public, and cause is often difficult to establish.

The Authority’s information shows that land clearances by landholders are a significant cause of fire. Land clearances were responsible for 54 percent of the total area burnt in 2002/03. Although access can pose a fire risk (usually from related activities, such as campfires, hunting or smoking), the public is not the source of most human-caused rural fires.

While not wishing to downplay this concern, the Panel concludes that it is not possible to accurately determine the degree of any causal link between access and rural fires. The risk posed by walkers could be lowered further by educating the public about fire safety through a code of responsible conduct.

15.3 Managing access to minimise fire risk

There are extensive powers under the Forest and Rural Fires Act 1977 (FRFA) to regulate not only the lighting of fires in forests (and other areas of risk), but also restricting access to areas of risk. Under section 21 of the FRFA, designated Rural Fire Officers may restrict all access in times of extreme fire risk.

The Panel notes that a negotiated access could include a provision for landholders to close access ways in times of high fire risk. There appears, therefore, to be ample provision in the law to regulate access to forests to manage fire risk.

15.4 Liability for costs

15.4.1 Liability under the Forest and Rural Fires Act 1977

Suppressing rural fires can be very costly. Costs include any damage to property, including damage to a neighbour’s property. However, the Panel considers some concerns expressed by landholders to be based on a misunderstanding of the FRFA.

Some landholders consider that if a visitor is on their property (in particular, if they are on a rural property without the landholder’s knowledge) and start a fire, and then cannot be found, the liability for costs would rest with the landholder.

The Panel notes that, in respect of at least one aspect of fire costs, this is not the case. If person(s) cannot be identified as responsible for the fire, suppression costs can be recovered from the Rural Fire Fighting Fund. The FRFA allows for the recovery of fire suppression costs from the person responsible for starting the fire. Financial liability requires a direct admission of responsibility, or proof of causation. For most land holdings, liability for suppression costs does not transfer to the landholder if a fire is started on their land by someone else, including cases where the responsible person cannot be located.

Where, however, a fire occurs in a commercial or semi-commercial forest, or defence area, a claim on the Rural Fire Fighting Fund cannot be made. Forest owners are, therefore, directly liable for suppression costs if a fire is started by a member of the public who cannot then be found. Most owners of commercial forests carry, at a minimum, fire suppression insurance to cover such costs on their, or neighbouring, properties.

15.4.2 Other costs

Suppression costs are only part of the potential losses that a rural fire can impose. There is also the possibility of loss of property, crops or even human life. These costs can be significant, particularly to owners of commercial forests. A fire can be potentially devastating to a commercial forest, representing the loss of a slow-growing investment. The risk of fire associated with walkers is still likely to be a concern in the minds of some landholders, given that the risk, however small, could have severe consequences.

15.4.3 Indemnity

Of greater concern to forest owners than the cost of suppressing forest fires is the potential asset loss from a major fire. The Panel considered an option where the Government would provide an indemnity to cover this risk. It is, however, difficult to identify the source of a forest fire, much less attribute it specifically to any new walking access. Such an indemnity would leave the Crown at risk of covering the costs of all fires that could not be attributed to a specific non-access cause.

In light of the fact that many insurance companies deem potential costs to be too high to cover asset loss attributed to forest fires, it is unlikely that the Government will be willing to indemnify landholders against loss possibly caused by the public.

The Panel understands the Government is generally very cautious about entering into indemnity agreements, but there are instances, such as DOC-administered tracks and walkways that cross certain private land, where such an indemnity can be provided. Rather than settle on a generic position, the Panel accepts that the possibility of indemnities for negotiated access must depend on the costs involved for the Government compared to the public benefit, and would need to be decided on a case-by-case basis.

15.4.4 Fire damage fund

The possible need for an additional fund to cover property damage costs was raised during consultation. Some landholders are concerned that insurance for this kind of risk was either unobtainable or prohibitively expensive. The Panel considers that the extent of the link between walking access and the risk of property damage by fire has not been clearly established, and that the investigation of the need for such a fund is outside the scope of the Panel’s terms of reference. It is possible that increased walking access is one factor that could increase the risk of fire damage, but there are other probably more significant causes, such as deliberate burn-offs that get out of control.

The Panel notes that, while there appears to be some merit in establishing such a fund, it does not see the potential risks of walking access as the primary reason for doing so.

15.5 Department of Internal Affairs fire legislation review

The Panel is aware that the Department of Internal Affairs commenced a review of fire management legislation in late 2003. The purpose of the review is to acknowledge the evolving rescue role of the Fire Service and resolve inconsistencies between urban and rural fire systems. For example, people who cause fires in rural fire districts are liable for the costs of fighting those fires, while those who cause fires in urban areas are not penalised (Department of Internal Affairs, undated). There are also inequities in fire suppression cost recovery between different types of landholders (for example, between forest owners and orchardists). Addressing these inconsistencies may alleviate some of the concerns of rural landholders, particularly forest owners, which may make them more comfortable about allowing walking access.

The Panel’s analysis indicates that current policy settings strike a reasonable balance in respect of fire risk. Moving too far towards covering fire-related costs could create an unacceptably high fiscal risk for the Government. The management of risk is a specialised area and interested stakeholders should participate in the review of fire legislation.

Recommendation on fire risk

  1. The Panel recommends that a code of responsible conduct contain provisions to help reduce fire risk.