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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Rural Fires and Environmental
Assessment Legislation Amendment
Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Environmental Planning and Assessment
Act 1979 No 203 2
4 Amendment of Rural Fires Act 1997 No 65 2
5 Amendment of other instruments 2
Schedules
1 Amendment of Environmental Planning and Assessment
Act 1979 3
2 Amendments to Rural Fires Act 1997 relating to
performance audit 7
3 Amendments to Rural Fires Act 1997 relating to bush fire
prone land and bush fire hazard reduction 9
4 Other amendments to Rural Fires Act 1997 29
5 Amendment of other instruments 36
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2002
New South Wales
Rural Fires and Environmental
Assessment Legislation Amendment
Bill 2002
Act No , 2002
An Act to amend the Rural Fires Act 1997 and the Environmental Planning and
Assessment Act 1979 with respect to bush fire prone lands, bush fire hazards and
bush fire emergencies; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Rural Fires and Environmental Assessment Legislation Amendment
Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Rural Fires and Environmental Assessment Legislation
Amendment Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Environmental Planning and Assessment Act 1979
No 203
The Environmental Planning and Assessment Act 1979 is amended as
set out in Schedule 1.
4 Amendment of Rural Fires Act 1997 No 65
The Rural Fires Act 1997 is amended as set out in Schedules 2-4.
5 Amendment of other instruments
The Acts and instruments in Schedule 5 are amended as set out in that
Schedule.
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Rural Fires and Environmental Assessment Legislation Amendment
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
Schedule 1 Amendment of Environmental Planning
and Assessment Act 1979
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
bush fire prone land, in relation to an area, means land
recorded for the time being as bush fire prone land on a bush
fire prone land map for the area.
bush fire prone land map for an area means a map for the area
certified as referred to in section 146 (2).
[2] Section 79BA
Insert after section 79B:
79BA Consultation and development consent--certain bush fire prone
land
(1) Development consent cannot be granted for the carrying out of
development for any purpose (other than a subdivision of land
that could lawfully be used for residential or rural residential
purposes or development for a special fire protection purpose)
on bush fire prone land unless the consent authority:
(a) is satisfied that the development conforms to the
specifications and requirements of Planning for Bushfire
Protection 2001 produced by the NSW Rural Fire
Service (or, if another document is prescribed by the
regulations for the purposes of this paragraph, that
document), that are relevant to the development, or
(b) the consent authority has consulted with the
Commissioner of the NSW Rural Fire Service
concerning measures to be taken with respect to the
development to protect persons, property and the
environment from danger that may arise from a bush
fire.
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Rural Fires and Environmental Assessment Legislation Amendment
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
(2) In this section:
special fire protection purpose has the same meaning as it has
in section 100B of the Rural Fires Act 1997.
[3] Section 91 What is "integrated development"?
Insert in appropriate order in the Table to section 91 (1):
Rural Fires Act 1997 s 100B authorisation under section
100B in respect of bush fire
safety of subdivision of
land that could lawfully be
used for residential or rural
residential purposes or
development of land for
special fire protection
purposes
[4] Section 146
Insert after the heading to Part 8:
146 Bush fire prone land
(1) If a bush fire risk management plan applies to land within the
area of a council, the council must, within 12 months after the
commencement of this section (and before the end of the
period of every 5 years after the commencement):
(a) request the Commissioner of the NSW Rural Fire
Service to designate land (if any) within the area that the
Commissioner considers, having regard to the bush fire
risk management plan, to be bush fire prone land, and
(b) must record any land so designated on a map.
(2) The Commissioner of the NSW Rural Fire Service must, if
satisfied that the land designated by the Commissioner has
been recorded by the council on a map, certify the map as a
bush fire prone land map for the area of the council.
(3) Land recorded for the time being as bush fire prone land on a
bush fire prone land map for an area is bush fire prone land for
the area for the purposes of this or any other Act.
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
(4) The bush fire prone land map for an area is to be available for
public inspection during normal office hours for the council.
(5) In this section:
bush fire risk management plan has the same meaning as it
has in the Rural Fires Act 1997.
Note. Division 8 of Part 4 of the Rural Fires Act 1997 contains provisions
relating to the carrying out of development and bush fire hazard reduction
work on bush fire prone land.
[5] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Rural Fires and Environmental Assessment Legislation
Amendment Act 2002
[6] Schedule 6
Insert the following Part (appropriately numbered) at the end of the
Schedule:
Part Rural Fires and Environmental Assessment
Legislation Amendment Act 2002
Bush fire prone land
(1) The following land within the area of a council is taken to be
bush fire prone land for the area of the council until a bush fire
prone land map for the area has been certified by the
Commissioner of the NSW Rural Fire Service under
section 146:
(a) land that is within, or within 100 metres of, a high or
medium bush fire hazard that is identified on a hazard
map prepared for the purposes of a bush fire risk
management plan applying to the land, and
(b) land within, or within 30 metres of, a low bush fire
hazard that is identified on a hazard map prepared for
the purposes of a bush fire risk management plan
applying to the land.
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
(2) In this clause:
bush fire risk management plan has the same meaning as it
has in the Rural Fires Act 1997.
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Rural Fires and Environmental Assessment Legislation Amendment
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Amendments to Rural Fires Act 1997 relating to performance audit Schedule 2
Schedule 2 Amendments to Rural Fires Act 1997
relating to performance audit
(Section 4)
[1] Section 48 Functions of Bush Fire Co-ordinating Committee
Insert after section 48 (2):
(2A) The Bush Fire Co-ordinating Committee may request the
Commissioner to conduct a performance audit under
section 62A with respect to implementation of bush fire risk
management plans generally or for a specified rural fire district
or other part of the State.
[2] Section 51 Functions of Bush Fire Management Committees
Insert after section 51 (1):
(1A) A Bush Fire Management Committee must, within 2 months
after the end of each financial year, report to the Bush Fire
Co-ordinating Committee on implementation of each bush fire
risk management plan in force for the rural fire district or other
part of the State for which the Bush Fire Management
Committee is constituted.
[3] Part 3, Division 6
Insert after Division 5:
Division 6 General
62A Performance audit of implementation of bush fire risk
management plans
(1) The Commissioner may conduct a performance audit of the
implementation of bush fire risk management plans generally
in the State or for a specified rural fire district or other part of
the State.
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Schedule 2 Amendments to Rural Fires Act 1997 relating to performance audit
(2) The Commissioner may conduct a performance audit on the
Commissioner's own initiative or at the request of the Bush
Fire Co-ordinating Committee under section 48 (2A).
(3) Without limiting the powers the Commissioner may exercise
under subsection (1), the Commissioner may make such
enquiries as the Commissioner considers fit to determine
whether or not bush fire hazard reduction work has been
carried out in accordance with any bush fire risk management
plan that applies to the land.
(4) The annual report of the Service prepared under the Annual
Reports (Departments) Act 1985 must include details of the
number, and results, of performance audits carried out under
this section in the year to which the report relates.
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Amendments to Rural Fires Act 1997 relating to bush fire prone land and Schedule 3
bush fire hazard reduction
Schedule 3 Amendments to Rural Fires Act 1997
relating to bush fire prone land and bush
fire hazard reduction
(Section 4)
[1] Section 14 Delegation by Commissioner
Insert at the end of the section:
(2) The Commissioner may delegate to the Commissioner of New
South Wales Fire Brigades any of the Commissioner's
functions under the following provisions, but only to the extent
that the functions are exercisable in respect of land within a fire
district:
(a) section 73 (Bush fire hazard reduction by
Commissioner),
(b) section 100B (Bush fire safety authorities),
(c) section 79BA (Consultation and development
consent--certain bush fire prone land) of the
Environmental Planning and Assessment Act 1979,
(d) section 146 (Bush fire prone land) of the Environmental
Planning and Assessment Act 1979.
[2] Section 66 Bush fire hazard reduction work required by local authorities
Insert after section 66 (2):
(2A) The local authority must issue a bush fire hazard reduction
certificate in respect of any bush fire hazard reduction work
required by a notice issued in accordance with subsection (2).
[3] Section 73
Omit the section. Insert instead:
73 Bush fire hazard reduction by Commissioner
(1) The Commissioner may carry out bush fire hazard reduction
work on land:
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(a) if the work has not been carried out on land by a public
authority or owner or occupier of land when, or in the
manner, required by a bush fire risk management plan,
or
(b) if, in the opinion of the Commissioner, a public
authority or owner or occupier of land has not properly
performed a duty under section 63 to take notified steps,
or any other practicable steps, that is imposed on the
public authority or owner or occupier, or
(c) if the work has not been carried out by a public
authority when, or in the manner, required by the
Commissioner under section 74F.
(2) Any costs incurred by the Commissioner in carrying out such
work (including costs incurred in obtaining the approval of any
local or public authority under any other law to carry out the
work) may be recovered from the responsible person or
authority as a debt due to the Crown in a court of competent
jurisdiction.
(3) Before carrying out any bush fire hazard reduction work under
this section, the Commissioner must certify a bush fire hazard
reduction certificate in respect of the work in accordance with
section 100G.
(4) In this section:
responsible person or authority means a public authority or
owner or occupier of land referred to in subsection (1).
[4] Section 74
Omit the section. Insert instead:
74 Bush fire hazard reduction reports
(1) Each local authority must report to the Commissioner not later
than 3 months after the end of the financial year on its
activities in respect of bush fire hazard reduction work during
the preceding year on land (other than managed land) in its
area.
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(2) The report must include the following information:
(a) details of the extent of implementation of any scheme
for the reduction of bush fire hazards on land in its area
(other than managed land and unoccupied Crown land)
set out in a bush fire risk management plan that applies
to the land,
(b) the number of inspections relating to bush fire hazards
carried out on the land,
(c) the number of bush fire hazard reduction notices issued
by the local authority in respect of the land,
(d) details of any objections lodged against such notices and
of whether they were confirmed, varied or withdrawn,
(e) the number of bush fire hazard reduction works carried
out by the local authority under section 70,
(f) details of bush fire hazard reduction certificates issued
by the local authority,
(g) information about such other matters (if any) as are
prescribed by the regulations.
(3) Each public authority that is responsible for managed land must
report to the Commissioner not later than 3 months after the
end of the financial year on its activities to reduce bush fire
hazards on the managed land during the preceding financial
year.
(4) The report is to include details of the extent of implementation
of any scheme for the reduction of bush fire hazards on
managed land for which the public authority is responsible set
out in a bush fire risk management plan that applies to the land.
(5) The annual report of the Service prepared under the Annual
Reports (Departments) Act 1985 must include details of
information contained in reports under this section for the year
to which the annual report relates.
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[5] Part 4, Division 2A
Insert after section 74:
Division 2A Bush fire hazard complaints
74A Bush fire hazard complaints
(1) A complaint may be made under this Division that a bush fire
hazard exists on land because of the failure of a public
authority or owner or occupier of the land to carry out bush fire
hazard reduction work on the land (a bush fire hazard
complaint).
(2) A bush fire hazard complaint may be made whether or not the
public authority or owner or occupier concerned has a duty
under section 63 to carry out the work.
74B Who may make a bush fire hazard complaint
A bush fire hazard complaint may be made by any owner or
occupier of land adjacent to or in the vicinity of the land to
which the complaint relates.
74C How and to whom are complaints to be made
(1) A bush fire hazard complaint is to be made by giving it, or
sending it by post:
(a) if the complaint relates to unoccupied Crown land or
managed land for which a public authority is
responsible--to the Commissioner, or
(b) in the case of any other land--to the local authority of
the local government area in which the land is located.
(2) A bush fire hazard complaint must be made in writing, must
identify the complainant and must state the grounds for the
complaint.
(3) A local authority must notify the Commissioner of any
complaint made to it under this Division.
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(4) Written notice of the making of the complaint and the grounds
of the complaint are to be given to the owner or occupier or
public authority responsible for the land to which the
complaint relates as soon as practicable after receipt of the
complaint.
74D Investigation of complaint
(1) The Commissioner or local authority must investigate the bush
fire hazard complaint as soon as practicable after it is received.
(2) The Commissioner or local authority may investigate the
complaint as the Commissioner or local authority thinks fit.
(3) Without limiting subsection (2), the Commissioner or a local
authority (or a person authorised by the Commissioner or local
authority) may, for the purpose of forming an opinion as to
whether a bush fire hazard exists on the land to which the
complaint relates, enter during the daytime any part of the land
(other than a dwelling-house) that it is necessary to inspect in
order to form that opinion.
(4) The Commissioner or local authority may decline to deal with
a complaint, or dismiss a complaint, that the Commissioner or
local authority considers to be vexatious, misconceived,
frivolous or lacking in substance.
(5) The Commissioner or local authority is to notify the
complainant if the Commissioner or local authority declines to
deal with, or dismisses, the complaint.
74E Action that may be taken by local authority if bush fire hazard
exists
A local authority that finds that a bush fire hazard exists on
land to which a bush fire hazard complaint relates:
(a) may serve a notice under section 66 on the owner or
occupier of the land if no bush fire hazard reduction
notice has been served on the owner or occupier of the
land, or
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(b) must, subject to sections 67 and 68, exercise its powers
under section 70 in respect of the land if a bush fire
hazard reduction notice has been served on the owner or
occupier of the land.
74F Action that may be taken by Commissioner if bush fire hazard
exists
(1) If the Commissioner finds that a bush fire hazard exists on land
to which a complaint made to the Commissioner relates
because a public authority has failed to take notified steps, or
otherwise perform a duty imposed on it as referred to in
section 63, the Commissioner may, by notice in writing served
on the public authority require it to carry out such bush fire
hazard reduction work as is specified by the Commissioner.
(2) If the public authority fails to carry out the specified work
within a reasonable time after service of the notice, the
Commissioner may carry out bush fire hazard reduction work
on the land under section 73.
74G Complainant to be notified of action taken
(1) The Commissioner or local authority must advise the
complainant of action taken by the Commissioner or authority
in respect of the complaint as soon as practicable after it is
taken.
(2) The local authority must advise the Commissioner of action
taken by it in respect of the complaint as soon as practicable
after it is taken.
74H Failure of local authority to take action
(1) A complainant may, by notice in writing given or sent by post
to the Commissioner, request the Commissioner to take action
under this section if the complainant considers that the local
authority has failed to exercise its powers under this Division
in respect of the complaint.
(2) If the Commissioner is satisfied that a local authority has failed
to deal with a bush fire hazard complaint, the Commissioner
may investigate the complaint.
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(3) The Commissioner may deal with a complaint whether or not
a notice has been served under subsection (1).
(4) If the Commissioner finds that a bush fire hazard exists on land
to which the complaint relates, the Commissioner may, by
notice in writing served on the local authority, require it:
(a) to serve a notice under section 66 on the owner or
occupier of the land if no bush fire hazard reduction
notice has been served on the owner or occupier of the
land, or
(b) subject to sections 67 and 68, to exercise its powers
under section 70 in respect of the land if a bush fire
hazard reduction notice has been served on the owner or
occupier of the land.
(5) A local authority served with a notice under this section must
comply with the requirements of the notice.
[6] Section 76 Notices to repair or restore dividing fences
Omit section 76 (6).
[7] Section 80 Entry to certain land to establish fire breaks
Omit the section.
[8] Section 86 Notice and certain authorities required before certain fires lit
Insert after section 86 (1):
(1A) A person who lights a fire on land for the purpose of land
clearance or for burning any fire break is guilty of an offence
unless:
(a) a bush fire hazard reduction certificate has been issued
in respect of the land clearance or fire break, or
(b) any approval, consent or other authority required for the
land clearance or fire break under the Environmental
Planning Assessment Act 1979 or any other law has
been given.
Maximum penalty: 50 penalty units or imprisonment for
12 months, or both.
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[9] Section 89 Issue of permits
Insert at the end of the section:
(2) An appropriate authority must not issue a fire permit for a
purpose unless:
(a) a bush fire hazard reduction certificate has been issued
in respect of the purpose, or
(b) any approval, consent or other authority required for the
purpose under the Environmental Planning Assessment
Act 1979 or any other law has been given.
[10] Section 92 Conditions of permit
Insert after section 92 (1) (a):
(a1) any condition imposed by a bush fire hazard reduction
certificate or as a condition of any approval, consent or
other authority given by or under any other Act that is
required to be obtained in relation to the lighting of a
fire, and
[11] Part 4, Division 8
Insert after Division 7 of Part 4:
Division 8 Development of bush fire prone land and for
bush fire hazard reduction
Subdivision 1 Definitions
100A Definitions
(1) In this Division:
bush fire code means a bush fire environmental assessment
code in force under this Division.
bush fire safety authority means an authority given by the
Commissioner under section 100B and that is in force.
certifying authority means a certifying authority described in
section 100E.
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excluded land means the following:
(a) land to which State Environmental Planning Policy
No 14--Coastal Wetlands applies,
(b) land to which State Environmental Planning Policy
No 26--Littoral Rainforests applies,
(c) any other land prescribed by the regulations.
issuing authority means the issuing authority described in
section 100E.
managed land means land:
(a) that is dedicated or reserved, or acquired for the purpose
of dedication or reservation, under the Forestry
Act 1916, or in respect of which the Forestry
Commission has obtained the benefit of a forestry right
as referred to in section 11 (1) (m) (iia) of that Act, or
(b) that is dedicated or reserved, or acquired for the purpose
of dedication or reservation, under the National Parks
and Wildlife Act 1974, or
(c) that is vested in, or under the control of, the State Rail
Authority, Rail Infrastructure Corporation or the Roads
and Traffic Authority, or
(d) that is within the catchment area of a water authority.
private land means land other than managed land and
unoccupied Crown land.
(2) Expressions used in this Division that are used in the
Environmental Planning and Assessment Act 1979 have the
meanings set out in that Act.
Subdivision 2 Bush fire prone land
100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for:
(a) a subdivision of bush fire prone land that could lawfully
be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire
protection purpose.
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(2) A bush fire safety authority authorises development for a
purpose referred to in subsection (1) to the extent that it
complies with standards regarding setbacks, provision of water
supply and other matters considered by the Commissioner to be
necessary to protect persons, property or the environment from
danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before
developing bush fire prone land for a purpose referred to in
subsection (1).
(4) Application for a bush fire safety authority is to be made to the
Commissioner in accordance with the regulations.
(5) Development to which subsection (1) applies:
(a) does not include the carrying out of internal alterations
to any building, and
(b) is not complying development for the purposes of the
Environmental Planning and Assessment Act 1979,
despite any environmental planning instrument.
(6) In this section:
special fire protection purpose means the purpose of the
following:
(a) a school,
(b) a child care centre,
(c) a hospital (including a hospital for the mentally ill or
mentally disordered),
(d) a hotel, motel or other tourist accommodation,
(e) a building wholly or principally used as a home or other
establishment for mentally incapacitated persons,
(f) housing for older people or people with disabilities
within the meaning of State Environmental Planning
Policy No 5--Housing for Older People or People with
a Disability,
(g) a group home within the meaning of State
Environmental Planning Policy No 9--Group Homes,
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(h) a retirement village,
(i) any other purpose prescribed by the regulations.
Subdivision 3 Bush fire hazard reduction
100C Carrying out of bush fire hazard reduction work
(1) An environmental planning instrument under the
Environmental Planning and Assessment Act 1979 cannot
prohibit, require development consent for or otherwise restrict
the doing of:
(a) emergency bush fire hazard reduction work on any land,
or
(b) managed bush fire hazard reduction work on land other
than excluded land.
(2) Part 5 of the Environmental Planning and Assessment Act 1979
does not apply to or in respect of emergency bush fire hazard
reduction work carried out on any land.
(3) Part 5 of the Environmental Planning and Assessment Act 1979
does not apply to or in respect of managed bush fire hazard
reduction work carried out on land other than excluded land if:
(a) the work is carried out in accordance with a bush fire
risk management plan that applies to the land, and
(b) there is a bush fire hazard reduction certificate in force
in respect of the work and the work is carried out in
accordance with any conditions specified in the
certificate, and
(c) the work is carried out in accordance with the
provisions of a bush fire code applying to the land
specified in the certificate.
Note. If work to which Part 5 of the Environmental Planning and
Assessment Act 1979 would apply but for this subsection is not carried out
in accordance with this subsection, the person carrying out the work will
be in breach of that Act.
(4) Bush fire hazard reduction work may be carried out on land
despite any requirement for an approval, consent or other
authorisation for the work made by the Native Vegetation
Conservation Act 1997, the Threatened Species Conservation
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Act 1995, the National Parks and Wildlife Act 1974 or any
other Act or instrument made under an Act if:
(a) the work is carried out in accordance with a bush fire
risk management plan that applies to the land, and
(b) there is a bush fire hazard reduction certificate in force
in respect of the work and the work is carried out in
accordance with any conditions specified in the
certificate, and
(c) the work is carried out in accordance with the
provisions of any bush fire code applying to the land
specified in the certificate.
(5) Subsection (4) does not apply to an integrated forestry
operations approval within the meaning of the Forestry and
National Park Estate Act 1998.
100D What is a bush fire hazard reduction certificate?
A bush fire hazard reduction certificate is a certificate that
authorises the carrying out of bush fire hazard reduction work
on land in accordance with:
(a) a bush fire risk management plan that applies to the
land, and
(b) the provisions of any bush fire code applying to the land
specified in the certificate, and
(c) any conditions specified in the certificate.
100E Issuing and certifying authorities
(1) The issuing authority for a bush fire hazard reduction
certificate in respect of bush fire hazard reduction work to be
carried out on private land by a person other than the
Commissioner or a local authority is the local authority of the
area in which the land is situated.
(2) The certifying authority for a bush fire hazard reduction
certificate in respect of bush fire hazard reduction work to be
carried out:
(a) on any land by the Commissioner--is the
Commissioner,
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(b) on any land by a local authority--is the local authority
for the area in which the land is situated,
(c) on managed land or unoccupied Crown land by a public
authority--is the public authority responsible for the
land.
100F Issue by local authorities of bush fire hazard reduction
certificates
(1) An application for a bush fire hazard reduction certificate in
respect of work to be carried out on private land by a person
other than a local authority or the Commissioner is to be made
to the issuing authority in writing in accordance with the
regulations (if any).
(2) An application may be made:
(a) by any owner or occupier of the private land, or
(b) if the work is to be carried out on the private land by a
public authority responsible for managed or unoccupied
Crown land in the vicinity of the private land--by the
public authority.
(3) A single application may, with the consent of all owners or
occupiers of the land concerned:
(a) be made for land owned or occupied by more than one
person, or
(b) be made by a public authority on behalf of those owners
or occupiers.
(4) A bush fire hazard reduction certificate must not be issued
unless:
(a) a bush fire risk management plan applies to the land,
and
(b) the issuing authority has taken into consideration the
provisions of any bush fire code applying to the land
and determined which of them should be complied with
in carrying out the work and whether any conditions
should be imposed having regard to the code.
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(5) The issuing authority may determine an application:
(a) by issuing a bush fire hazard reduction certificate, or
(b) by refusing to issue a bush fire hazard reduction
certificate.
(6) A bush fire hazard reduction certificate must:
(a) specify the provisions of any bush fire code applying to
the land that the issuing authority has determined
should be complied with in carrying out the work, and
(b) specify any other conditions that have been imposed by
the issuing authority having regard to that bush fire
code, and
(c) specify as a condition of the issue that notice be given
to the fire control officer for the district in which the
land is situated before the work is carried out and to any
other person prescribed by the regulations.
(7) The determination of an application must be completed within
7 days (or such longer period as may be agreed to by the
applicant) after lodgment of the application.
(8) There is no right of appeal against the determination of, or a
failure or refusal to determine, an application for a bush fire
hazard reduction certificate.
Note. If a bush fire hazard reduction certificate is not obtained, bush fire
hazard reduction work may still be carried out but only if any approvals,
consents or other authorisations that would have been required to be
obtained but for section 100C are obtained.
(9) A local authority or public authority must not charge any fee in
respect of an application for, or the issue of, a bush fire hazard
reduction certificate.
100G Bush fire hazard reduction certificates of certifying authorities
(1) Before a certifying authority carries out any bush fire hazard
reduction work on land, the certifying authority must certify:
(a) that a bush fire risk management plan applies to the
land, and
(b) that the certifying authority has taken into consideration
the provisions of any bush fire code applying to the land
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and determined which of them should be complied with
in carrying out the work and whether any conditions
should be imposed having regard to any provisions of
that code, and
(c) if the certifying authority is a local authority or a public
authority, that the notice will be given to the fire control
officer for the district in which the land is situated
before the work is carried out and to any other person
prescribed by the regulations.
(2) A bush fire hazard reduction certificate certified by a certifying
authority must:
(a) specify the provisions of any bush fire code applying to
the land that the certifying authority has determined
should be complied with in carrying out the work, and
(b) specify any conditions that have been imposed by the
certifying authority having regard to that bush fire code.
100H Remedy and restraint for breaches of sections 100F and 100G
(1) Any person may bring proceedings in the Land and
Environment Court for an order to remedy or restrain a breach
of section 100F or 100G, whether or not any right of that
person has been or may be infringed by or as a consequence of
that breach.
(2) Proceedings under this section may be brought by a person on
his or her own behalf or on behalf of himself or herself and on
behalf of other persons (with their consent), or a body
corporate or unincorporated (with the consent of its committee
or other controlling or governing body), having like or
common interests in those proceedings.
(3) Any person on whose behalf proceedings are brought is
entitled to contribute to or provide for the payment of the legal
costs and expenses incurred by the person bringing the
proceedings.
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100I Duration of bush fire hazard reduction certificate
A bush fire hazard reduction certificate becomes effective and
operates for a period of 12 months commencing on the date
endorsed on the certificate.
Subdivision 4 Bush fire environmental assessment codes
100J Commissioner may prepare draft codes
(1) The Minister may cause to be prepared by the Commissioner
for submission to the Minister a draft bush fire environmental
assessment code in relation to land (other than excluded land).
(2) A draft bush fire environmental assessment code may refer to,
or incorporate with or without modification, a document
prepared or published by a body specified in the code, as in
force at a particular time or from time to time.
(3) In preparing a draft bush fire environmental assessment code in
relation to land, the Commissioner must have regard to:
(a) the principles of ecologically sustainable development
(as described by section 6 (2) of the Protection of the
Environment Administration Act 1991), and
(b) any matter likely to affect the environment by reason of
the carrying out of bush fire hazard reduction works on
the land that a determining authority would be required
to consider under section 111 of the Environmental
Planning and Assessment Act 1979 (but for this
Division) if Part 5 of that Act were applicable to the
work and the carrying out of the works were an activity
within the meaning of that Part.
100K Consultation on draft codes
(1) The Commissioner must, in preparing a draft bush fire
environmental assessment code, consult with, and take into
account any recommendations made by or on behalf of the
following:
(a) the Director-General of the Department of Planning,
(b) the Director-General of National Parks and Wildlife,
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(c) the Managing Director of State Forests,
(d) the Nature Conservation Council of New South Wales,
(e) the NSW Farmers Association,
(f) the Local Government Association of New South
Wales,
(g) the Shires Association of New South Wales,
(h) the Director of NSW Fisheries,
(i) the Commissioner of NSW Fire Brigades,
(j) the Director-General of the Department of Land and
Water Conservation.
(2) The Commissioner may consult with such other persons or
bodies as the Commissioner considers appropriate or as the
Minister directs.
100L Public participation in preparation of codes
(1) The Commissioner must give public notice of and exhibit, for
the purpose of receiving submissions from any interested
persons, any draft bush fire environmental assessment code
prepared by the Commissioner.
(2) A draft bush fire environmental assessment code must be
exhibited for at least 42 days. The Commissioner must exhibit
with it any other matter that the Commissioner considers
appropriate or necessary to better enable the draft code and its
implications to be understood.
(3) After considering all submissions received concerning the draft
bush fire environmental assessment code, the Commissioner
may amend the draft code or submit it without amendment to
the Minister for approval.
100M Approval of code
The Minister may, after consultation with the Minister for the
Environment, the Minister for Planning and such other
Ministers as the Minister considers appropriate, approve a draft
bush fire environmental assessment code as a bush fire code for
the purposes of this Part.
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100N Publication, commencement and availability of codes
(1) A draft bush fire environmental assessment code:
(a) is to be published in the Gazette, and
(b) takes effect as a bush fire environmental assessment
code on the day on which it is published or, if a later
day is specified in the code for that purpose, on the later
day so specified.
(2) The following are to be made available without charge for
public inspection during normal office hours for the council of
the area to which a bush fire code relates:
(a) a copy of the code,
(b) if the code has been amended, a copy of the code as so
amended,
(c) if the code refers to or incorporates any other document
prepared or published by a specified body, a copy of
each such document.
100O Amendment or revocation of codes
A bush fire code may be amended or revoked by an instrument
prepared, approved, publicly exhibited and published in
accordance with the relevant procedures of this Part with
respect to codes.
[12] Schedule 3, Part 5
Insert after clause 19:
Part 5 Provisions consequent on enactment of Rural
Fires and Environmental Assessment
Legislation Amendment Act 2002
20 Definition
In this Part:
amending Act means the Rural Fires and Environmental
Assessment Legislation Amendment Act 2002.
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21 Savings in respect of planning matters
(1) The amendment made by Schedule 3 [11] to the amending Act
does not affect:
(a) any development consent granted under the
Environmental Planning and Assessment Act 1979
before the commencement of that amendment or any
development carried out in accordance with such a
consent, or
(b) any activity to which Part 5 of that Act applies (or any
approval for the carrying out of such activity) if the
provisions of that Part were complied with for that
activity before the commencement of that amendment.
(2) If an application for development consent has been made but
not been finally determined on the commencement of Schedule
3 [11] to the amending Act, the amendment made by Schedule
3 [11] does not apply to the determination of the application or
to any development carried out in accordance with a
development consent granted on the determination of the
application.
(3) Despite subclause (2), the Minister for Planning may, by notice
served on the consent authority, direct that all or any provisions
inserted by the amendment apply to the determination of the
application.
(4) Despite subclause (2), if an appeal relating to an application
referred to in that subclause has been made to the Land and
Environment Court, the Court may, by order, direct that all or
any provisions inserted by the amendment apply to the
determination of the application.
22 Agreements about review of incidence of bush fire hazards
Any agreement entered into by the Commissioner under
section 12A in relation to the functions of a local authority
under section 74 (1), as in force before the commencement of
Schedule 3 [4] to the amending Act, ceases to have effect on
that commencement.
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[13] Dictionary
Insert in alphabetical order:
bush fire hazard complaint means a complaint under
section 74A.
bush fire hazard reduction certificate means a certificate
referred to in section 100D.
bush fire prone land has the same meaning as it has in the
Environmental Planning and Assessment Act 1979.
managed bush fire hazard reduction work means bush fire
hazard reduction work that is carried out in accordance with a
bush fire risk management plan.
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Other amendments to Rural Fires Act 1997 Schedule 4
Schedule 4 Other amendments to Rural Fires Act 1997
(Section 4)
[1] Section 22 General powers of rural fire brigade officers and others
Omit "persons or property" from section 22 (1).
Insert instead "persons, property or the environment".
[2] Section 28 Damage to property and the environment
Insert "and any remedial work necessary to rectify damage to the
environment" after "good faith" in section 28 (1).
[3] Section 69 Duties of local authority
Omit "The fire control officer for a local authority"from section 69 (1).
Insert instead "A fire control officer".
[4] Section 69 (1)
Omit "by the local". Insert instead "by a local".
[5] Section 82
Omit the section. Insert instead:
82 Local bush fire danger period
(1) The Commissioner may, by notice published in a newspaper
circulating generally in a local government area:
(a) declare that there is no bush fire danger period in the
area or part of the area, or
(b) specify a different period to that set out in section 81 as
the bush fire danger period for the area or part of the
area.
(2) A declaration may be made on the Commissioner's own
initiative or on the recommendation of a Bush Fire
Management Committee for the area.
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(3) As soon as practicable after publishing a notice under
subsection (1), the Commissioner is to publish a copy of the
notice in the Gazette.
(4) Despite section 81, if a declaration is made in accordance with
this section specifying a different bush fire danger period in
relation to any area or part of an area, the bush fire danger
period in that area or part is the period specified in the
declaration.
(5) A declaration remains in force:
(a) until it is revoked, or
(b) for such period as is specified in the declaration (unless
it is sooner revoked).
[6] Section 83
Omit the section. Insert instead:
83 Consultation required before local bush fire danger period
declaration made
(1) The Commissioner must, before making a declaration under
section 82 that is to have effect only for the bush fire danger
period occurring when the declaration is made, consult with
and take into account any recommendations made:
(a) by the local authority for any area to which the
declaration relates, and
(b) by any fire fighting authority exercising functions in the
rural fire district or fire district constituted for the area.
(2) The Commissioner must, before making a declaration under
section 82 on the Commissioner's own initiative that is to have
effect for a period or periods subsequent to the bush fire danger
period occurring when the declaration is made, consult with
and take into account any recommendations made by the Bush
Fire Management Committee for the area.
[7] Section 84
Omit the section.
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[8] Section 85 Definitions
Omit paragraph (a) and the note to the paragraph from the definition of
appropriate authority.
Insert instead:
(a) in the case of land in a rural fire district--the
Commissioner of the NSW Rural Fire Service,
[9] Section 85, definition of "appropriate authority"
Omit paragraphs (b) and (d).
[10] Section 86 Notice required before certain fires lit
Insert after section 86 (2):
Note. An authorised officer is not required to obtain various other
approvals or authorities if carrying out an emergency fire fighting act--see
Part 6A.
[11] Section 87 Lighting fires for land clearance or fire breaks in bush fire
danger period
Insert after section 87 (2):
Note. An authorised officer is not required to obtain various other
approvals or authorities if carrying out an emergency fire fighting act--see
Part 6A.
[12] Section 88 Lighting fires that are dangerous to buildings in fire districts
and rural fire districts
Omit " local government area that is in a fire district" from section 88 (1).
Insert instead "fire district or rural fire district".
[13] Section 88 (1) (a)
Omit "an officer of New South Wales Fire Brigades".
Insert instead "the appropriate authority".
[14] Section 88 (2)
Omit " local government area that is in a fire district" from section 88 (2).
Insert instead "fire district or rural fire district".
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[15] Section 88 (2), note
Insert after section 88 (2):
Note. An authorised officer is not required to obtain various other
approvals or authorities if carrying out an emergency fire fighting act--see
Part 6A.
[16] Section 93 Refusal to issue fire permit
Omit "if the appropriate authority is a local authority--the local authority"
from section 93 (b).
Insert instead "the appropriate authority".
[17] Section 94 Notice to be given of issue of fire permit
Omit section 94 (1).
[18] Section 95 Permit not required for fires lit by public authorities
Omit "a local" from section 95 (2) (a). Insert instead "an".
[19] Section 96 Appropriate authorities not determining authorities
Omit section 96 (2).
[20] Section 97 Reporting requirements
Omit section 97 (1). Insert instead:
(1) Within 2 months (or such other period as the Bush Fire
Co-ordinating Committee specifies) after the end of the
financial year, the Commissioner must report to the Bush Fire
Co-ordinating Committee with respect to fire permits issued by
appropriate authorities during the year.
[21] Section 97 (2) (a)
Omit the paragraph. Insert instead:
(a) details of the circumstances surrounding the lighting of
any bush fires in the area of an appropriate authority that
appear to have been caused by the lighting of a fire
authorised by a fire permit issued by the appropriate
authority, and
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[22] Part 6A
Insert after section 124:
Part 6A Application of other legislation
Division 1 Application of other legislation to emergency
fire fighting acts
124A Application of Environmental Planning and Assessment Act 1979
(1) An environmental planning instrument made under the
Environmental Planning and Assessment Act 1979 cannot
prohibit, require development consent for or otherwise restrict
the doing of any emergency fire fighting act.
(2) Part 5 of the Environmental Planning and Assessment Act 1979
does not apply to or in respect of any emergency fire fighting
act.
(3) An order under Division 2A or 3 of Part 6 of the
Environmental Planning and Assessment Act 1979 does not
have effect to the extent that it prevents or interferes with the
doing of any emergency fire fighting act.
(4) Subsection (1) applies to an environmental planning instrument
made before or after the commencement of this section.
124B Application of National Parks and Wildlife Act 1974 and
Threatened Species Conservation Act 1995
(1) Part 6A (Stop work orders and interim protection orders) of the
National Parks and Wildlife Act 1974 does not apply to or in
respect of the doing of an emergency fire fighting act.
(2) A person does not harm fauna for the purposes of section 45,
70, 98, 99 or 100 of the National Parks and Wildlife Act 1974
if the harm is caused by the doing of any emergency fire
fighting act by the person.
(3) Division 1 of Part 7 (Stop work orders) of the Threatened
Species Conservation Act 1995 does not apply to or in respect
of the doing of any emergency fire fighting act.
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124C Application of Local Government Act orders
An order under section 124 of the Local Government Act 1993
does not have effect to the extent that it prevents or interferes
with the doing of any emergency fire fighting act.
[23] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Rural Fires and Environmental Assessment Legislation
Amendment Act 2002, to the extent that it amends this Act
[24] Schedule 3
Insert the following clause (appropriately numbered) at the end of the
Schedule:
Fire permits
A fire permit issued by the council of a local government area
and in force immediately before the commencement of the
amendments made to section 88 by the Rural Fires and
Environmental Assessment Legislation Amendment Act 2002 is
taken to be a fire permit issued by the Commissioner.
[25] Dictionary
Omit "persons or property" from the definition of back burning.
Insert instead "persons, property or the environment".
[26] Dictionary
Insert in alphabetical order:
emergency bush fire hazard reduction work means bush fire
hazard reduction work carried out to protect persons, property
or the environment from an existing or imminent danger arising
out of a fire.
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emergency fire fighting act means anything (other than
emergency bush fire hazard reduction work) done or
authorised to be done by a fire fighting authority, during the
course of bush fire fighting operations, by or under this or any
other Act.
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Schedule 5 Amendment of other instruments
Schedule 5 Amendment of other instruments
(Section 5)
5.1 Environmental Planning and Assessment Regulation 2000
Schedule 4 Planning certificates
Insert after clause 10:
11 Bush fire prone land
That land that is bush fire prone land is bush fire prone land.
5.2 Fisheries Management Act 1994 No 38
[1] Section 220ZF Defences
Omit "the Rural Fires Act 1997 or" from section 220ZF (1) (c).
[2] Section 220ZF (5)
Insert after section 220ZF (4):
(5) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
[3] Section 220ZU Notification of, and consultation concerning, proposed
departures from recovery or threat abatement plan
Omit "the Rural Fires Act 1997 or" from section 220ZU (5).
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Amendment of other instruments Schedule 5
[4] Section 220ZU (6)
Insert after section 220ZU (5):
(6) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
5.3 Land and Environment Court Act 1979 No 204
Section 20 Class 4--environmental planning and protection
development contract civil enforcement
Insert after section 20 (1) (cj):
(cja) proceedings under section 100H of the Rural Fires
Act 1997,
5.4 Local Government Act 1993 No 30
Section 22 Other functions
Omit "declaration of bush fire danger periods and" from the matter relating
to the Rural Fires Act 1997 in the note to the section.
5.5 Native Vegetation Conservation Act 1997 No 133
[1] Section 5 Definition of "clearing"
Insert after section 5 (4):
(5) For the purposes of this Act, the clearing of land by burning
during a bush fire within the meaning of the Rural Fires
Act 1997 does not affect any requirement of this Act with
respect to any subsequent clearing of the land (whether by
burning or otherwise).
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[2] Section 12 Clearing excluded from operation of Act
Omit "the Rural Fires Act 1997, or the State Emergency and Rescue
Management Act 1989," from section 12 (a).
Insert instead "the State Emergency and Rescue Management Act 1989".
[3] Section 12 (a)
Omit "the latter". Insert instead "that".
[4] Section 12 (a1)
Insert after section 12 (a):
(a1) any clearing authorised under the Rural Fires Act 1997
in relation to any emergency fire fighting act within the
meaning of that Act,
5.6 National Parks and Wildlife Act 1974 No 80
[1] Section 91AA Director-General may make stop work order
Omit "Part 2 of the Rural Fires Act 1997 or" from section 91AA (3).
[2] Section 91AA (3A)
Insert after section 91AA (3):
(3A) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
[3] Section 118A Harming or picking threatened species, populations or
ecological communities
Omit "Part 2 of the Rural Fires Act 1997," from section 118A (3).
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Amendment of other instruments Schedule 5
[4] Section 118A (3A)
Insert after section 118A (3):
(3A) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
[5] Section 118D Damage habitat of threatened species, populations or
ecological communities
Omit "Part 2 of the Rural Fires Act 1997," from section 118D (2) (c).
[6] Section 118D (2A)
Insert after section 118D (2):
(2A) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
5.7 Rural Fires Regulation 1997
Clause 38 Reduction of fire hazards on managed land
Omit clause 38 (e).
5.8 Threatened Species Conservation Act 1995 No 101
[1] Section 71 Notification of proposed departures from recovery plan
Omit "Part 2 of the Rural Fires Act 1997 or" from section 71 (3).
[2] Section 71 (4)
Insert after section 71 (3):
(4) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
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Schedule 5 Amendment of other instruments
[3] Section 88 Notification of departures from threat abatement plan
Omit "Part 2 of the Rural Fires Act 1997 or" from section 88 (3).
[4] Section 88 (4)
Insert after section 88 (3):
(4) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
[5] Section 114 Director General may make stop work order
Omit "Part 2 of the Rural Fires Act 1997 or" from section 114 (3) (b).
[6] Section 114 (3A)
Insert after section 114 (3):
(3A) This section does not apply in relation to any thing authorised
to be done by or under the Rural Fires Act 1997 in relation to
any emergency fire fighting act within the meaning of that Act.
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