Posted on September 28, 2017 by Katie Mortimer and Sue Puckeridge

Fire Safety Reforms effective from 1 October 2017

The Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 (‘Amending Regulation’) will come into force on 1 October 2017 and amend the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’).

The reforms are in response to an independent review of the Building Professionals Act 2005 released in October 2015 that found a ‘number of significant problems with the current building regulation and certification system’. The Department of Planning and Environment has stated the amendments are designed to improve fire safety in buildings, and increase confidence in fire safety systems.

The key reforms are set out below. Significantly, the changes limit the level of deviation permitted from the Deemed-to-Satisfy Solutions of the Building Code of Australia (‘BCA‘), and take fire safety matters away from the ambit of certifiers only, now requiring persons with a specified certification or qualification to be involved in building regulation and increasing the involvement of the Commissioner of Fire and Rescue NSW.

The reforms will not impact single dwellings, attached dwellings separated by a fire-resisting wall, or garages (class 1a and 10 BCA buildings).

Compliance with the BCA

In order to comply with the BCA a solution must comply with Performance Requirements:

  • Deemed-to-Satisfy Solutions (‘DTS‘) are solutions deemed to satisfy Performance Requirements and involve following a ‘set recipe’ of how to achieve compliance,
  • Performance Solutions (‘Alternative Solutions‘) do not follow the DTS set-recipe, they are unique solutions tailored to different situations. An Assessment Method will be used to demonstrate that this solution complies with Performance Requirements.

New procedures for CDCs and CCs

Certifying authorities must not issue:

  • a complying development certificate (‘CDC‘) (cl 130(2A)),
  • a construction certificate (‘CC‘) (cl144A),

for all BCA buildings (other than class 1a or 10) for building work that involves an Alternative Solution in respect of a fire safety requirement, unless the certifying authority:

  • has obtained or been provided with an Alternative Solution report prepared in accordance with clause 130(2A),
  • is satisfied the Alternative Solution Report has correctly identified the Performance Requirements and DTS provisions of the BCA, and
  • the plans show, and the specifications describe, the physical elements of the Alternative Solution.

The Alternative Solution Report must justify the Alternative Solution. Only persons with the qualifications set out in the new clauses 130(4) and 144A(3) may prepare an Alternative Solution Report.

New procedures for OCs

A certifying authority must not issue an occupation certificate (‘OC‘) for a building where Alternative Solution building work was carried out in respect of a fire safety requirement, unless the certifying authority is satisfied of the requirements in new clause 152B.

After receiving an application for an OC for a class 2 or 3 BCA building that had a ‘relevant fire safety system‘ installed, extended or modified, a certifying authority must request the Commissioner of Fire and Rescue NSW furnish a fire safety system report as soon as practicable. The certifying authority must not issue an OC unless it has considered the fire safety system report (cl152A).

Conditions in CDCs for Fire Safety Systems in class 2 – 9 buildings 

Any CDC for building work that involves the installation, extension or modification of a ‘relevant fire safety system‘ (‘Work‘) in a BCA class 2 – 9 building (examples being an office, retail or manufacturing building, or buildings for a public nature such as health care, schools or aged care), must include a condition requiring:

  1. plans and specification for the Work be:
    1. certified by a compliance certificate referred to in s109C(1) of the Environmental Planning and Assessment Act 1979 (‘Act‘) as complying with the relevant BCA provisions, or,
    2. unless subject to an exemption, endorsed by a competent fire safety practitioner, and
  2. the plans and specifications be submitted to the principal certifying authority.

The Amending Regulation makes provision for the plans and specifications to be submitted before or after a CDC is issued.

Competent fire safety practitioners

The Amending Regulation introduces a requirement for a ‘competent fire safety practitioner’ (‘CFS Practitioner’). CFS Practitioners must prepare Alternative Solution Reports and endorse plans and specifications for CDCs. The Secretary of the Department of Finance, Services and Innovation (‘Secretary‘) may publish an order recognising a class of persons who for the purposes of the Amending Regulation are CFS Practitioners.

Such an order may recognise persons with a specified certification under the Building Professionals Act 2005, specified qualifications, or training or assessment carried out by a specified organisation or body.

Until the issue of an order by the Secretary, certifying authorities and relevant building owners are to determine if a person is competent to perform fire safety assessment functions, in which case a person will be taken to be a CFS Practitioner (cl167A(4)).

Other changes

  • critical stage inspections for a class 2 – 4 building,
    • a critical stage inspection required under s109E(3)(d) of the Act must now also occur prior to covering fire protection at service penetrations to building elements required to resist internal fire or smoke spread, the junction of any internal fire-resisting construction bounding a sole-occupancy unit and any other building element required to resist internal fire spread (cl162A(5)(a)(a1)).
  • certain building work on fire safety systems may be exempt from compliance with the BCA standards,
    • under the new cl164B, a person may lodge an objection to complying with the BCA in relation to the operational performance of a relevant fire safety system, if it is considered unreasonable or unnecessary in the particular circumstances of a case

Read the Amendment in full here, and a planning circular on the reforms released by the Department of Planning and Environment here.

Should you wish to discuss this blog, please contact Sue Puckeridge, Partner on 8235 9702 or by email at sue.puckeridge@lindsaytaylorlawyers.com.au

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