NSW – Essential Property Services advises that clients need to understand the system around essential fire safety measures under the Environment Planning and Assessment Regulation 2000 (the Regulations).

Current Situation

The Regulations place obligations on the owner and agent of a building to ensure that “fire safety measures” are performing to no less standard than that specified or if not specified to no less standard than that to which the measure was originally designed and implemented.  Fire safety measures are any measures that are, or are proposed to be implemented in a building to ensure the safety of persons using the building in the event of fire.  Measures include items of equipment such as sprinklers, forms of construction or fire safety strategies.  Fire safety measures are further defined by the Regulations as being:

  • “Critical” a fire safety measure identified in a fire safety schedule requiring periodic assessment and certification at intervals of less than 12 months;
  • “Essential” a fire safety measure identified in a fire safety schedule or identified as an essential safety measure under previous legislation;
  • “Statutory” any one of the 29 categories of fire safety measures identified by the table of Clause 166 of the Regulations.

“Part 9 – Fire Safety and matters concerning the Building Code of Australiaof the Regulations is where the above and following fire safety provisions are to be found.

When approvals to change the use of an existing building involving no building work are issued via a development consent, complying development certificates are issued for building works or a change of use, construction certificates or a fire safety order are issued, the person doing so must issue a “fire safety schedule” specifying the “fire safety measures” (both current and proposed) that must be implemented in the building. 

Fire safety schedules must deal with the whole of the building, not merely the part of the building where the works are occurring or the change of use is occurring (works exempted from this requirement are new fire alarm communication links to replace former NSW F&R monitoring).  Fire safety schedules must also identify each measure that is a critical fire safety measure, if supplementary fire safety statements must be given to Council and the minimum standard of performance of each fire safety measure. 

A “final fire safety certificate” is issued upon completion of the building works or change of use by the owner of the building specifying that the “fire safety measures” have been properly implemented and are capable of performing to a standard not less than that required by the “fire safety schedule”.  The assessment of the fire safety measures must have been carried out within 3 months prior to the date on which the final fire safety certificate is issued.  A copy of the “final fire safety certificate” must be forwarded to the Fire Commissioner of NSW Fire & Rescue, and the owner must cause a copy of the certificate, together with a current copy of the “fire safety schedule” to be prominently displayed for the occupiers in the building.  Fire safety certificates must include the following information:

  • The name and address of the owner;
  • A description of the building or part including its address;
  • A list identifying each fire safety measure;
  • The date or dates on which the fire safety measures were assessed;
  • The type of certificate being issued, interim or final;
  • A statement as specified by Clause 170 or 173 of the Regulations;
  • The date on which the certificate is issued; and
  • Must be accompanied by a Fire Safety Schedule for the building or part

When works or a change of use has not occurred, the building owner is still obliged to issue an Annual Fire Safety Statement which identifies all fire safety measures in the form of a fire safety schedule.  Annual fire safety statements are subject to the same criteria and requirements as that for fire safety certificates as discussed previously. 

A building owner’s failure to issue an annual fire safety statement to the Council within twelve (12) months of the issue of the previous annual fire safety statement or final fire safety certificate is an offence under Clause 177 of the Regulations.  Such an offence can attract a fine from the Local Council of $500.00 each week that the annual fire safety statement is late, with the fine escalating to $2,000.00 per week after three weeks.

Application

Applicable to all Class 1b, 2, 3, 4, 5, 6, 7, 8 and 9 buildings.  Only single and attached terrace style residential dwelling buildings along with ancillary buildings such as private garages, sheds and the like are exempt from the fire safety provisions of Part 9 of the Regulations.  In leased premises, the owner is always ultimately responsible for compliance.

Recommendations

  1. Obtain copies of all previous statutory approvals listing “fire safety measures” and their conditions or standard of performance, fire safety schedules, final fire safety certificates, annual fire safety statements and ensure all fire safety measures are implemented as required.
  2. Ensure statutory requirements of the Regulations are met to allow the issuing of the annual fire safety statements. Develop and implement a logbook that reflects these requirements and record all pertinent information leading to the issue of the annual fire safety statements.
  3. Annual fire safety statements are signed by the owner/ agent and prominently displayed in the building with the final fire safety certificate and fire safety schedule.
  4. Forward to the Council and the NSW Fire Brigades all statutory documents under the Regulations on the designated dates to avoid fines and/ or prosecution under the Regulations.