Posted on July 24, 2014 by

New Fire Safety Obligations for Certifiers and Councils

New fire safety provisions came into force on 18 July 2014 with the commencement of the Environmental Planning and Assessment Amendment (Fire Safety) Regulation 2014 (Fire Safety Regulation). Amongst other things, the Fire Safety Regulation imposes a new obligation on certifying authorities and principal certifying authorities to notify the relevant council of any ‘significant fire safety issue‘  with an existing building within two days of becoming aware of such an issue.

The new notification requirements apply to certifying authorities who receive an application for a complying development certificate (CDC) or Part 4A certificate under the Environmental Planning& Assessment Act 1979 (EPA Act)  relating to an existing building , and to principal certifying authorities appointed under s109E of the EPA Act in relation to building work effecting an existing building. However, the requirements do not apply to existing buildings which are detached houses or outbuildings.

The new provisions replace the previous requirement for a building fire safety report to be submitted with an application for a complying development certificate under clause 132A of the EPA Reg.

Neither the EPA Act nor the EPA Reg define  ‘significant fire safety issue‘. However the Technical Guideline published by the Department of Planning & Environment states that ‘[f]or any issue to be considered ‘significant’ it would have to be of a nature or scale that would warrant a fire safety order (order No.6 under s121B of the EPA Act) to be issued to ensure adequate “provision for safety”‘.

Some examples of what the Department considers to be significant fire safety issues are set out in the Technical Guidelines.

The certifying authority or principal certifying authority is excused from the requirement to notify council of such an issue if the proposed building works authorised by a development consent (including a CDC) or construction certificate will address the issue, or where the issue is otherwise being addressed by a fire safety order under s121B of the EPA Act.

Council’s responsibility following notification

The Department’s Technical Guideline states:

Upon receiving notice under clauses 129D and 162D, the council should consider the information contained within the notice and determine what action, if any, is required.  Options include:

  • The issue may not warrant action to be taken
  • Issue a fire safety order that specifies how the significant issue must be addressed
  • Issue a fire safety order that directs the owner to determine and specify how the significant issue will be addressed. This will result in a further fire safety order requiring that the agreed remedy be completed within a specified period of time.

Councils would need to carefully consider what action to take upon receipt of a notice, given the potential liability issues if a council  becomes aware of a fire risk and either does nothing, or responds in a manner which does not address the risk.