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Any information contained in a blog on this website is general in nature only. The content of any blog posted below reflects information which is known to us as at the date of the posting of the blog. Please be aware that the law regularly changes. Please do not rely on the general information contained in the below blogs, instead we recommend that you contact us to obtain legal advice tailored to your own specific situation.

 

Jun24

Total fire bans in NSW: What are they and what can and can’t I do when they apply?

Amanda Quin - Wednesday, December 04, 2019

Blog by Andrew Cannon – Contact email: aac@peacockes.com

In the midst of the early arrival and the destructive widespread bushfire already throughout Eastern Australia, more than ever it is important to know and understand what rules and laws are applicable to you and your district over this festive season before commencing any activities with fire such as BBQ’s and outdoor pizza ovens.

Fire safety in NSW is mainly regulated by the following legislation in NSW:

  • Rural Fires Act (NSW);
  • Rural Fires Regulations 2013 (NSW);
  • Protection of the Environment Operations Act 1997 (NSW);
  • Fire and Rescue NSW Act 1989 (NSW);
  • As well as by public authorities such as Local Council regulations via their Local Environmental Plans (LEPs) and rules, news and updates maintained and monitored regularly by the NSW Rural Fire Service.

What is a total fire ban ?

Section 99 of the Rural Fires Act 1997 (NSW) sets out the definition, requirements of and exemptions in relation to total fire ban orders in NSW.

A total fire ban (pursuant to section 99 (1) (a) and (b) of the Rural Fires Act) prohibits the lighting, maintenance or use of fire in the open air for an affected district. These fire bans are declared in the interests of public safety by the Minister. The ban extends also to any activity in the open air that directly causes, or is likely to cause a fire.

Total fire ban orders are declared according to district and on days where there is likely a culmination of weather conditions that are fore-cast as likely to be very hot and dry (conducive to fire) and very high to catastrophic risks of bushfire (including additional factors such as any surrounding impacting bushfires and volume of dry vegetation present).

Potential penalties

Pursuant to section 99 (11) of the Rural Fires Act and Schedule 2 Part 1 of the Rural Fires Regulations, a person who fails to comply whilst a total fire ban order is active is liable to:

  • $2200 fine issued on the spot;
  • If found guilty in Court, up to a maximum fine of $5,500 and/or 12 months gaol.

Exemptions

Certain exemptions may apply to fire activities during total fire bans.

These exemptions are specified in the Rural Fires Act, Regulations and the NSW Rural Fire Service Schedule of Standard Exemptions to Total Fire Bans, which can be found at www.rfs.nsw.gov.au/fire-information/fdr-and-tobans/schedule-of-standard-exemptions-to-total-fire-bans .

Table of Uses

ACTIVITY IS IT PERMITTED DURING A TOTAL FIREBAN? CONDITIONS

Operating an Electric BBQ’s

 

 

Yes – subject to conditions

 

 

The electric BBQ must be under the direct control of a responsible adult present at all times whilst operating it and no combustible material is to be within two (2) metres of the BBQ at any time whilst it is operating.

 

Operating a Gas BBQ’s

 

 

 

 

Yes – subject to conditions

 

 

 

 

Only if the BBQ is under the direct control of a responsible adult who is present at all times and no combustible material is within two (2) metres of it whilst operational and there is a system of applying an adequate stream of water, such as a hose, to the BBQ and its surrounds and such water is able to be applied for immediate and continuous use. In addition - the BBQ needs to either: (a) be within 20 metres of a permanent private dwelling such as a home; or

(b) If in a Park, National Park or State Forest, must be within a designated picnic area and the appliance must have been approved by Council, National Parks or State Forest – as the case may be.

Operating Wood/ coal fired BBQ’s and pizza ovens

Must not be used if outside or if lit in the open air. Any oven or BBQ using solid fuel must not be used during a total fire ban.

 

 

 

Burning of Garbage, refuse and putrescent material

 

 

Yes – but subject to conditions and subject to any permit requirements.

 

 

 

The fire may only be lit if in an incinerator designed to prevent the escape of sparks and burning material and the incinerator is clear of all combustible matter for a distance of at least 5 metres. A permit may also be required. See clause 26 of the Rural Fire Regulations and rule 7 of the Schedule of Standard Exemptions to Total Fire Bans.

 

General hot works

 

 

 

 

 

 

 

General hot works and activities such as welding, grinding, gas cutting and activity that produces a spark or flame are prohibited and not to be done in the open environment. However exemptions apply to limited activities such as: -Fireworks (but only if part of an organised public display);

-Bitumen roadworks;

-Beehive smokers;

-Mining operations; and

-Building, construction or demolition

(all of the above are subject to individual and respective conditions).

 

Light, use or carry tobacco

 

 

Generally permitted – but – there are certain locations where this is not permitted. It is NOT permitted to light, use or carry any lighted tobacco product, match or other material within 15 metres of any stack of grain, hay, corn or straw or any standing crop, dry grass or stubble field.. Any persons caught in breach risk receiving a $660 fine on the spot (see s99A (1) of the Rural Fires Act and clause 28 of the Rural Fires Regulations.  

 

Bush Fire Danger Period and Fire permits

Even if a total fire ban order has not been made, there are also general restrictions regarding the lighting of fires in the open during the statutory Bush Fire Danger Period (ie from 1 October to 31 March).

If you are planning to light a fire in the open during the statutory bush fire danger period, from 1 October to 31 March, a fire permit is generally required.

If you do obtain a fire permit, then under Part 4 Division 5 of the Rural Fires Act it will be suspended on days declared as a total fire ban. The suspension of the permit will continue until the ban is lifted as notified by the Minister (which can be found on the NSW RFS website and app).

NB Providing it is a non-bush fire danger period, then fire permits are not required for any fires that are lit and maintained for the purposes of land clearance or creating a fire break or for the purpose of cooking food. In the case of cooking food, the fire needs to be in a permanently constructed ground fireplace, at a site surrounded by ground that is cleared of all combustible materials for a distance of at least 2 metres all around and completely extinguished before leaving.

Other considerations

Under section 133 of the Protection of the Environment Operations Act 1997, the EPA also reserves the right to prohibit fires burning in the open air or incinerators where it is of the opinion of the EPA that, because of forecast weather conditions and current fire activity and danger, further burning is likely to contribute to the build up of air pollution.

The Rural Fire Service NSW on www.rfs.nsw.gov.au and app “Fires Near Me” are critical and valuable sources of information for staying up-to-date with changing conditions and fire dangers, as well as local news and radio bulletins and programs for ensuring your safe management and compliance with fire safety this festive holiday season.