KEY POINTS:
Q. I am concerned about the fire risk posed by a paddock of long grass on my neighbour's rural property. I have had discussions with my neighbour but he refuses to mow it. I am worried that in drier months it could be a threat to our house
if it accidentally catches alight. Can anything be done to get my neighbour to take action?
A. Yes, your neighbour can be required to mow the grass or remove any other combustible material that is a fire risk under s183 of the Local Government Act 2002 or s27 of the Forest and Rural Fires Act 1977, if the land is part of a rural fire district.
Your local council has the power under the Local Government Act to issue a notice in writing requiring your neighbour to cut down, eradicate, or remove any growth on land which in the opinion of the CEO of the council, the chief fire officer of the New Zealand Fire Service, or that of a rural fire officer, is likely to become a source of danger from fire.
The definition of "growth" under the Local Government Act includes broom, gorse, scrub, weeds, undergrowth, dry grass as well as other types of growth. The council also has the power to issue notices to remove other accumulated refuse or flammable matter if that material is likely to become a source of danger from fire.
If you think the danger to your property, life or any road is imminent, the council does not have to wait until it has issued your neighbour with a formal notice to take action.
A council officer can tell your neighbour (or if the property is unoccupied, the owner) in person that it considers there is an imminent danger of fire and take steps to have the growth removed at your neighbour's cost.
You can write to the council and request that it issue your neighbour with a notice requiring him to remove the fire hazards. If the council does not issue your neighbour with a notice within one month of receiving your request, you can apply to the district court for an order making the council issue the notice. If your neighbour is served with a notice by the council in the first instance, he or she also has a right to appeal the notice to the district court within 10 days of it being served. If the matter went before the district court (as a result of an application by you, or an appeal by your neighbour) it would be a simple case of the court considering evidence of the risk of fire.
The decision of the court in either scenario would be final (i.e. there is no right of appeal to a higher court).
If your neighbour's land is in a rural fire district and is less than one hectare in size, your local fire authority can issue a notice requiring your neighbour to remove at his own cost any "vegetation" or "other material of whatsoever kind" for the purposes of fire control.
If your neighbour's property is bigger than one hectare, the fire authority does not have the power to require material to be removed, but can require firebreaks to be made (or cleared of vegetation) around activities such as pine plantations to reduce fire risk.
You can contact the fire authority and request they investigate and take action. However, unlike notices to remove fire hazards under the Local Government Act, there is no procedure for you to challenge the fire authority's decision if they decide not to issue a notice.
If the fire authority does issue your neighbour with a notice, your neighbour can have the notice sent to a Rural Fire Mediator for a final decision. Otherwise, if the notice is not challenged, or is upheld by the mediator and your neighbour refuses to comply with the notice, the fire authority can carry out the work itself and recover costs from your neighbour.
If a fire from an adjoining property spreads to your land and does damage, you may be able to bring an action of negligence against the person who started the fire and recover damages.
* The information contained in Prime Assets is intended to provide general information in summary form current at the time of printing. The contents do not constitute legal advice and should not be relied on as such. Specialist advice should be sought.
