Fire and Rescue Service Wildfire Operational Guidance

Section 4 Relevant Legislation and Guidance

Introduction

4.1 Fire and Rescue Authorities (FRAs) need to be aware of the following legislation and guidance. It is relevant to the planning, response and command and control of wildfire incidents whether in the preparedness and pre-planning, operational response or training and exercising environment.

4.2 It should be noted that this section does not contain detailed legal advice about the legislation. The chapter has been produced to provide an overview and summary of the relevant legislation which may be applicable in Scotland, England, Wales and Northern Ireland as applied to FRAs, and land managers.

4.3 It is recommended that each individual FRA satisfies themselves that they are in compliance with all necessary legislation applicable to the area of the United Kingdom within which they reside.

4.4 When considering this framework it is essential to recognise that any definitive interpretation of the legal roles and responsibilities imposed by legislation can only be given by a court of law.

4.5 The adoption of the principles set out in this guidance will assist Fire and Rescue Authorities in achieving suitable and sufficient risk assessments and appropriate corresponding risk control measures such as those referred to in this and other similar documents.

General FRA Legislation and Applicable Guidance

4.6 Fire (Scotland) Act 2005 (Fire and Rescue Services Act 2004): this is the main Act which affects FRAs. Amongst other things, it obliges FRAs (in Chapter 2 Section 9 of the F(S)A 2005 and Part 2 Section 7 of FRSA 2004) to (a) extinguishing fires in its area; and, (b) protect life and property in the event of fires in its area by securing the provision of the personnel, services and equipment that are necessary to meet efficiently all normal requirements and also to secure the provision of training for such personnel.

4.7 Civil Contingencies Act 2004: Section 2(1) states, among other things, that FRAs shall maintain plans for the purpose of ensuring that if an emergency occurs or is likely to occur the FRA is able to perform its functions so far as necessary or desirable for the purpose of preventing the emergency, reducing controlling or mitigating its effects or taking other action in connection with it.

4.8 The Civil Contingencies Act 2004 (Contingency Planning) (Scotland) Regulations 2005: FRAs as Category 1 responders under the regulations, must co-operate with each other in connection with the performance of their duties under Section 2(1) of the Civil Contingencies Act 2004. In addition, the Regulations state that FRAs must co-operate as part of the appropriate Strategic Co-ordinating Group (regulation 3) and may perform duties under Section 2(1) jointly with one another and make arrangements with one another for the performance of those duties (regulations 4-8).

The Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 set out clear responsibilities for category 1 and category 2 responders and their need to participate in local resilience forums.

4.9 Department for Communities and Local Government - IRMP Steering Group Integrated Risk Management Planning: Policy Guidance: Wildfire (August 2006). This document is intended to guide FRAs in the preparation of an IRMP strategy for combating wildfires. The purpose is to assist the Fire and Rescue Service (FRS) in understanding the scope of wildfire considerations in the IRMP process to undertake risk analysis, develop response and prevention strategies, develop delivery mechanisms and to monitor and review and evaluate such activity.

4.10 Fire and Rescue Service Operational Guidance - GRA 3.4 - Fighting Fires in Open Rural Areas (June 2011) examines the hazards, risks and controls that relate to Fire and Rescue Service personnel, the personnel of other agencies and members of the public when fighting fires in open rural locations including grass, moor land crop and forest fires.

4.11 Emergency Workers (Scotland) Act 2005 (Emergency Workers (Obstruction) Act 2006). The Act makes it an offence to obstruct or hinder an emergency worker or someone assisting an emergency worker who is responding to emergency circumstances. A person found guilty of an offence under the Emergency Workers (Scotland) Act, is liable on summary conviction to a period of imprisonment not exceeding 12 months and/or a fine not exceeding £10,000. There is no custodial penalty under the Emergency Workers (Obstruction) Act.

4.12 Department for Communities and Local Government - Departmental Adaption Plan (May 2011). Emphasises that the primary focus of central Government's relationship with the fire and rescue service is now securing national resilience and ensuring public safety against identified national risks.

The Action Plan recognises that local fire and rescue services are already considering the long term risks of climate change and the emergency response to floods and wildfires.

Health and Safety Legislation

4.13 Corporate Manslaughter and Corporate Homicide Act 2007: FRAs will be criminally liable for the death of a person if the way in which they manage or organise their activities (for example in relation to the command and control of breathing apparatus):

• amounts to a gross breach of the duty of care owed to the person, and,
• the gross breach causes a person's death (Section 1).

Any alleged breaches of this act will be investigated by the police. Prosecution decisions will be made by the Crown Prosecution Service (England and Wales), the Crown Office and Procurator Fiscal Service (Scotland) and the Director of Public Prosecutions (Northern Ireland).

4.14 Health and Safety at Work etc Act 1974: this Act applies to all employers in relation to health and safety. It is a wide ranging piece of legislation but in very general terms, imposes the general duty on FRAs to ensure, so far as is reasonably practical, the health, safety and welfare at work of all of their employees (Section 2(1)) and to persons not in their employment who may be affected by the FRAs undertaking (Section 3(1)).

4.15 Management of Health and Safety at Work Regulations 1999: obliges FRAs, amongst other things, to make suitable and sufficient assessment of the risks to the health and safety of firefighters and others not in their employment who may be affected by the FRAs undertaking, to which they are exposed whilst on duty (regulation 3(1)(a)&(b)); to implement any preventive and protective measures on the basis of the principles specified in the Regulations (regulation 4); to make arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures (regulation 5) and to provide such health surveillance as is appropriate having regard to the risks to health and safety which are identified by the risk assessment (regulation 6).

4.16 Provision and Use of Work Equipment Regulations 1998: obliges FRAs to ensure that work equipment is constructed or adapted as to be suitable for the purpose for which it is used or provided (regulation 4(1)). FRAs must have regard to the working conditions and to the risks to the health and safety of firefighters which exist in the premises or undertaking in which the equipment (including breathing apparatus) is to be used and any additional risk posed by the use of that equipment (regulation 4(2)). The Regulations also contain provisions about maintenance, inspection, specific risks, information and instructions and training regarding work equipment.

4.17 Personal Protective Equipment at Work Regulations 1992: obliges FRAs to ensure that suitable PPE (including breathing apparatus) is provided to firefighters (regulation 4(1)). The Regulations contain provisions as to the suitability of PPE, compatibility of PPE, assessment of PPE, maintenance and replacement of PPE, storage for PPE, information, instruction and training regarding the PPE and the use of PPE.

Any PPE purchased by an FRA must comply with the Personal Protective Equipment Regulations 2002 and be 'CE' marked by the manufacturer to show that it satisfies certain essential safety requirements and, in some cases, has been tested and certified by an approved body.

Legislation Regarding Land Management and the Countryside

4.18 Hill Farming Act 1946 (as amended); The Muirburn Code, The Heather and Grass etc Burning (England) Regulations 2007: the Heather and Grass etc Burning (Wales) Regulations 2008 apply to the burning of heather, grass, bracken, gorse and vaccinium (a range of shrub species including bilberry/blueberry).

The relevant provisions provide that:

• Burning may only take place in the burning season (unless under licence, for defined purposes, from Scottish Natural Heritage or Natural England). In Scotland, the burning season is 1 October to 15 April at all altitudes. Burning is permitted during the extended burning season, 16 April to 30 April, where authorised by the landowner. In England, the burning season for upland areas is 1 October to 15 April inclusive. On all other land it is 1 November to 31 March inclusive. "Upland areas" means land in the "Severely Disadvantaged Areas". In Wales, the burning seasons are 1 October to 31 March for upland areas; 1 November to 15 March on all other land.
• Burning must be conducted safely. Burns must be controlled for their entire duration. All reasonable precautions must be taken to prevent injury to people or damage to adjacent land and property. Burning must not start between sunset and sunrise.
• In Scotland, notification of the intention to burn must be given in writing to the land owners and occupier of the land within 1 kilometre of the proposed burn site no later than seven days before burning.

Further details on the location and timing of burns must be provided on request. These regulations and associated best practice codes (the Muirburn Code in Scotland and the Heather and Grass Burning Codes in England and Wales) outline where burning can be undertaken and where it should not. There should be a strong presumption against burning sensitive areas. Doing so may permanently damage the environmental interest of the land and may be unlawful. In special circumstances, the advantages of burning on sensitive areas may outweigh the disadvantages. Those who feel a sensitive area on their land falls into this category may wish to contact Scottish Natural Heritage, Natural England or the Countryside Commission for Wales for advice.

4.19 Wildlife & Countryside Act 1981 (as amended) The scope of the Act provides protection for wildlife (birds, and some animals and plants), the countryside, National Parks, and the designation and protection of Sites of Special Scientific Interest (SSSIs) in England and Wales, and public rights of way.

Scottish Natural Heritage currently defines SSSI as "those areas of land and water… that Scottish Natural Heritage (SNH) considers to best represent our natural heritage - its diversity of plants, animals and habitats, rocks and landforms, or a combinations of such natural features."

In addition to sensitive habitats in the wider countryside, SSSIs therefore represent clearly definable areas which may be susceptible to damage from fire directly or indirectly. It is an offence to intentionally or recklessly damage special natural feature on SSSIs.

Caution is needed when burning during the spring as it is an offence to intentionally or recklessly disturb or destroy the nests, eggs or young of breeding birds.

4.20 The Nature Conservation (Scotland) Act 2004: imposes a wide-ranging duty on Scotland's public sector to conserve biodiversity and protect the nation's precious natural heritage.

The Act reformed the law relating to Sites of Special Scientific Interest entirely replacing the provisions of the Wildfire and Countryside Act relating to SSSIs in Scotland. In doing so, it strengthened protection for SSSIs with maximum fines for intentional and reckless damage to any natural feature specified on a SSSI notification raised from £5,000 to £40,000.

It is an offence to carry out burning on a SSSI without consent from Scottish Natural Heritage, if burning has been listed as 'an operation requiring consent' on the site in accordance with the Act. Unauthorised development, the removal of plants or animals and damage caused by motorised vehicles may also constitute an offence.

4.21 The Roads (Scotland) Act 1984 Section 100(c) - Lighting a fire, or allowing a fire to spread to within 30 metres of a road so as to damage the road or endanger traffic on it without lawful authority or reasonable excuse, commits an offence.

4.22 Highways Act (1980) Section 161A - It is unlawful to burn in a way likely to cause injury, interruption or danger to road users.

4.23 Environmental Protection Act (1990) Section 79 - It is unlawful to cause emission of smoke which is prejudicial to health or causes a nuisance.

4.24 The Environmental Damage (Prevention and Remediation) Regulations 2009 - The regulations ensure that the polluter pays for the most serious types of environmental damage, supplementing any existing legislation such as The Water Resources Act 1991.

Environmental damage is identified for three areas:

(a) protected species or natural habitats, or a site of special scientific interest (SSSI), (b) surface water or groundwater and (c) land.

For water and biodiversity, the definition thresholds are high. Incidents attended by Fire and Rescue Services where the regulations apply are therefore likely to be rare. Thresholds for land damage are lower and it can be expected that more incidents attended by FRSs where land damage occurs will be covered by the regulations.

There are exclusions to the regulations:

• acts of terrorism
• exceptional natural phenomena
• activities which have the sole purpose of protecting against natural disasters and activities which have the main purpose of serving national defence or international security.

4.15 Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 and the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999.

These regulations affect four 'forestry' projects. These are:

Afforestation: Planting new woods and forests. This includes direct seeding or natural regeneration, planting Christmas trees or short rotation coppice.

Deforestation: Felling woodland to use the land for a different purpose.

Forest roads: The formation, alteration or maintenance of private ways on land used (or to be used) for forestry purposes. This includes roads within a forest or leading to one.

Forestry quarries: Quarrying to obtain materials required for forest road works on land that is used or will be used for forestry purposes or on land held or occupied with that land.

The regulations give each of these projects an area threshold. Lower thresholds are given for projects that lie within sensitive areas, e.g. National Park, AONB.

During the consultation process to determine the potential environmental impact arising from any of the four projects, Fire and Rescue Services may be contacted to comment upon the potential for there to be a change to the wildfire risk within the relevant area under consultation.

4.26 The Conservation (Natural Habitats etc.) Regulations 1994 transpose the requirements of the EC Habitats Directive (and certain aspects of the Birds Directive). It is an offence to intentionally or recklessly damage European Sites (i.e. Special Areas of Conservation (SACs) and Special Protection Areas (SPAs)) which form the pan-EU network of sites known as Natura 2000. Most, but not all Natura 2000 sites in Scotland are also SSSIs.

4.27 Ancient Monuments and Archaeological Areas Act 1979 makes it an offence to cause damage to a scheduled monument.

Further Reading

Operational guidance on the management of risk in the operational environment has been issued in the past. In particular, refer to:

• Incident Command - 3rd Edition (2008) - Fire and Rescue Manual - Volume 2: Fire Service Operations.
• Environmental Protection, Fire and Rescue Manual - Volume 2: Fire Service Operations (2009)
• Fire and Rescue Operational Assessment Toolkit 2009.
  'A Guide for Fire Service Managers', volume 3 'Dynamic Management of Risk at Operational Incidents').

In addition, the following publications provide further background and understanding of factors which may inform wildfire planning and response.

• Scottish Government - The Muirburn Code and supplementary guidance (Prescribed Burning on Moorland)
• The Common Agricultural Policy Schemes/The Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2011
• Forestry Commission - Operational Guidance Booklet No 17 'Planning for the Unexpected' (Section 6)
• Arboriculture and Forestry Advisory Group - Fire fighting 803 Health and Safety Executive
• Effects of Climate Change on Fire and Rescue Services in the UK (1/2006), Dec 2006 CLG, 06 FRSD 04166
• Farmer, B (2003). Fires on Forestry Commission Estate, Information Note. Forestry Commission
• Fire Management: Voluntary Guidelines: Principles and Strategic Actions (2006) Fire Management Working Paper FM17E, Food and Agriculture Organisation (FAO):
  http://www.fao.org/docrep/009/j9255e/j9255e00.htm
• Vegetation Fire Risk Management: Toolkit for Practitioners and Advisors. http://www.forestry.gov.uk/pdf/Vegetation_Fire_Risk_Management_250112.pdf/$FILE/Vegetation_Fire_Risk_Management_250112.pdf
• Risk Management Control Measure: Toolkit for Practitioners and Advisors http://www.forestry.gov.uk/pdf/Vegetation_Fire_Control_Measures_130212.pdf/$FILE/Vegetation_Fire_Control_Measures_130212.pdf
• Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora
• Biodiversity Action Plan Broad Habitat Classification
• The National Vegetation Classification (NVC)