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Fail to Comply With Fire Prevention Notice

Published · Updated

– section 41D(1) of the Country Fire Authority Act 1958

A fire prevention notice may be issued to the owner or occupier of land in country Victoria where it is necessary to protect life or property from the threat of fire. Commonly, such notice will contain detail of work to be carried out to address any risk.

Failure to comply with a fire prevention notice is an offence pursuant to section 41D(1) of the Country Fire Authority Act 1958 (‘the Act’), and carries a maximum penalty of 120 penalty units and/or 12 months imprisonment. Although a summary offence, Magistrates are still likely to take this offence seriously, especially if the failure to comply results in harmful consequences.
As a summary offence, this charge will primarily be handled by the Magistrates’ Court.
 
What is the legal definition of Fail to Comply With Fire Prevention Notice?
The legal definition of this offence is failing to comply with a fire prevention notice which has been served on the accused.

Examples of Fail to Comply With Fire Prevention Notice
  • A fire prevention notice is served on you. Because you’re in a rural area, the notice specifies that you have to insert hoses long enough to reach around your house, and you have to keep your lawn maintained and cut back overhanging shrubbery. You forget to install the hoses and maintain your garden because you’re busy at work. A fire starts and spreads rapidly across to your neighbour’s property.
  • A fire prevention notice is served on you. The notice specifies that you have to repair missing tiles on your roof, attach a fire sprinkler system to your gutters and fit seals around your doors and windows. You are on a tight budget and decide that you cannot afford these repairs. The police visit your house and notice the repairs were not undertaken within the specified time frame.
Legislation
The legislation for this offence can be found on section 41(d)(1) of the Country Fire Authority Act 1958.

Elements of the offence
The prosecution must prove the following beyond reasonable doubt:

  • That a fire prevention notice had been served on the accused
According to section 41A(1), a notice may be served on an owner or occupier:

  1. by giving it to or serving it personally on the owner or occupier; or
  2. by sending it by post to the owner or occupier at that person’s usual or last known residential or business address; or
  3. by leaving it at the usual or last known residential or business address of the owner or occupier with a person on the premises who is apparently at least 16 years old and apparently residing or employed there; or
  4. in a manner prescribed by any other Act or law for service on a person or class of persons of the same type as the owner or occupier.
However, if the fire prevention officer (s41A(2)):

  1. does not know who the owner or occupier of any land is; or
  2. does not know the residential or business address of the owner or occupier; or
  3. believes that the owner or occupier is absent from Victoria and has no agent in Victoria known to the officer –
Then the fire prevention notice may be served (s41A(3)):

  1. by displaying it on the land; and
  2. by publishing a notice, in the prescribed form and containing the prescribed particulars, in a newspaper circulating generally in the municipal district.
This means that saying you ‘didn’t know about the notice’ is no excuse. If you’re the owner of the land, and a fire prevention officer displays the notice on your land and publishes it in the local newspaper, this is sufficient service (s41A(4)).

  • That the accused did not comply with the notice
This will be a matter of fact. Looking at the relevant notice, and examining the words carefully, did you fail to comply what the notice asked you to do?
  • That the accused was the owner or occupier of the property subject to the notice
Do you own the property? An owner means a registered proprietor. Do you occupy the property? An occupier would include someone who is renting the property and living there.

Objecting to a notice
Under section 41B of the Act, a person on whom a fire prevention notice has been served may lodge a written objection with the fire prevention officer within 7 days of the service of the notice stating the grounds of objection.

Within 14 days of lodging the objection, the fire prevention office must:

  1. confirm the notice; or
  2. vary the notice, if the fire prevention officer is satisfied that the variation will appropriately address the threat of fire; or
  3. withdraw the notice, if the fire prevention officer is satisfied that there is no longer any case for the notice to be served.
If the fire prevention officer confirms or varies the notice he or she must specify a new time within which the person must comply with the notice (section 41B(4)).
 
Depending on the facts of your case, there are a number of defences which may be applicable. They include honest and reasonable mistake of belief, lack of intent, necessity, sudden or extraordinary emergency, duress, and mental impairment. Other defences are error of fact and absence of proof beyond reasonable doubt.

Questions in cases like this
  • Were you properly served with the notice?
  • Did you breach the notice? Read the notice carefully, as every notice is likely to contain different conditions.
  • Are you the owner or occupier of the property subject to the notice?
  • Do you have time to lodge a written objection?
If you have been charged with this offence, it is important that you see a lawyer as soon as possible. Your lawyer will assess your circumstances and discuss the options available to you. They will give a recommendation as to whether you should make a guilty plea or challenge the charge in court.

Often people do plead guilty to charges and then it is a case of discussing with your lawyer the best way to present your version of events to the Magistrate. Organising your material and presenting your case well in Court will have a substantial impact on the outcome in your case.
 
This offence carries a fine of 120 penalty units (around $19,342) or 12 months imprisonment as the highest possible sentence. The sentence received depends on the circumstances of the case. It should be noted that more significant breaches of this section would see a penalty in the higher end of the sentencing range.
 
Sentencing in the Magistrates’ Courts
There were 490 cases (500 charges) of Fail to Comply With Fire Prevention Notice that were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. Most of these cases resulted in fines (92.0%) and adjourned undertaking/discharge/dismissal (8.0%).

Of those who were sentenced to fines, the majority were in the category “$1,000 < $2,000” (4.6% for aggregate and 73.6% for non-aggregate). The highest category imposed was “$5,000 < $10,000” but this was given to only 0.4% (non-aggregate) of those who were fined.1


[1] SAC Statistics – Country Fire Authority Act 1958 (Vic) : s 41D(1) – fail to comply with fire prevention notice < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6228_41D_1.html >
 
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