All building owners and property managers must maintain essential fire safety measures in their buildings, as outlined in the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
There is no requirement to submit an annual fire safety statement for single dwelling houses classified as 1a under the Building Code of Australia. Typically, Class 1a refers to single dwelling houses, terraces or villa houses. If in doubt, ask.
Clause 81 of the Regulation requires the owner of a building maintain each essential fire safety measure in that building in accordance with relevant standards of performance. The standards of performance are found in the Fire Safety Schedule for the building. The Fire Safety Schedule for the building forms part of either a change of use development consent, construction certificate, complying development certificate or fire safety order.
This clause places ultimate responsibility for the maintenance of fire safety measures on the building owner.
Apart from legal requirements, other vital reasons for maintaining fire safety measures include:
- ensuring safety of building occupants;
- preserving the function and performance of fire safety systems and equipment;
- maintaining and protect assets – proper preventative maintenance can save money; and
- avoiding business interruption and disruption to activities/operations in the event of fire.
An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that:
a) each essential fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:
i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and
b) the building has been inspected by a properly qualified person and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Part 15 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
Generally, what will happen every year is that you may have several different contractors attending the premises at specific intervals throughout the year to provide a maintenance service for several different fire safety measures.
Each contractor should then give you some type of certification in relation to the assessment they have carried out, listing the specific measure/s they have serviced and referencing a particular Standard of Performance that the installed measure is achieving. Once you have obtained and gathered all this together, you are then required to consolidate all this information and transfer it collectively onto one document known as an annual fire safety statement.
An annual fire safety statement for a building must deal with each essential fire safety measure in the building premises.
It must be submitted within 12 months after the date on which the previous statement or the final fire safety certificate was given, and it must be lodged within 3 months of the date of inspection and assessment. The statement must be submitted to Council and the Commissioner of NSW Fire and Rescue.
What will happen if I do not submit an annual fire safety statement?
Council treats fire safety very seriously. Where required under legislation to provide a statement, the owner is responsible to ensure lodgement, regardless as to whether the property is tenanted or vacant.
Please consider the following:
- Incomplete or late fire safety statements may result in a fine.
- If the fire safety statement is not completed satisfactorily you will be required to submit a corrected statement.
- Failure to provide an annual/supplementary fire safety statement can result in on-the-spot fines ranging from $1,000 to $4,000 per week.
- If a fine is issued, it will not excuse you from the need to submit an annual fire safety statement.
- If you fail to meet your statutory requirements, Council may take legal action against you and/or continue to issue on-the-spot fines. "Failure to maintain essential fire safety measures" (which is a separate offence) can also result in a fine. The penalty in this instance is from $3,000 to $6,000 and Council will impose this as necessary.
- The legislation does not permit Council to issue an extension of time to submit an annual fire safety statement.
Vacant buildings
All fire safety measures listed on the annual fire safety statement and fire safety schedule including egress paths and exits must be maintained at all times even when the building becomes vacant.
Vacant Buildings should also be the subject of regular security checks and ongoing maintenance to prevent the premises falling into disrepair and possible unauthorised access by squatters and vandals. Maintaining the fire safety measures and ongoing maintenance will promote the safety of persons who are nearby the premises or who access vacant buildings (e.g. security, Fire and Rescue NSW, police, building owners, Council staff, real estate agents, etc.).
New buildings
A fire safety schedule will be issued with the construction certificate listing the essential fire safety measures that are to be installed in the building. A fire safety certificate must be submitted prior to the issue of an occupation certificate. This certifies that each of the specified essential fire safety measures are capable of operating to the performance listed in the fire safety schedule. Subsequently, an annual fire safety statement must then be submitted to Council and Fire and Rescue NSW as well as prominently displayed within the building every year.
Old buildings
Old buildings and buildings built before current Building Code of Australia standards are not exempt from fire safety requirements, and it is the obligation of the owner to ensure that sufficient fire safety measures are in place.
It is necessary for owners to work with Council to achieve acceptable fire safety compliance and to undertake voluntary upgrades as needed by engaging the services of private fire safety consultants and engineers. Where current BCA compliance is not achievable without substantial demolition and/or redevelopment, performance solutions may be proposed to Council by accredited professionals who have undertaken a detailed assessment of the building.
Owners of heritage buildings can contact the Heritage Council of NSW for guidance with fire safety compliance.
Aged care facilities
In August 2012, the NSW Government announced it would become mandatory for all residential aged care facilities to have an automatic sprinkler system installed. The new laws include the Environmental Planning and Assessment (Fire Sprinkler Systems) Regulation 2012, the State Environmental Planning Policy (SEPP) Amendment (Fire Sprinkler Systems) 2012 and the Fire Sprinkler Standard.
The NSW Government encouraged all facilities without a sprinkler system to install them as soon as possible to improve the safety of residents. Existing facilities were required to install a sprinkler system within 18 months, however some providers requested three years to complete the installation. For more information see the NSW Planning and Environment website – Fire sprinklers in aged care facilities.
Boarding houses (BH) – Class 1b and Class 3 buildings
Boarding houses either have consent/approval (development application, building application, construction certificates) and/or previously repealed Ordinance 42 Local Government Act 1919 licenses. Please note that BH premises are no longer licensed under Ordinance 42.
The premises must comply with the requirements of the Building Code of Australia, the Environmental Planning and Assessment Act 1979, and the Local Government Act 1993, which refer to such things as the number of boarders/rooms, light and ventilation, kitchen facilities, general cleanliness and hygiene, fittings and fixtures, furniture, consent requirements to ensure compliance with the approval, and – in particular – fire safety.
The building owner is responsible to ensure that all required fire safety measures installed within the boarding house are maintained so they work at the required standard during a fire emergency. Every boarding house is required to have suitable fire safety measures.
Each year boarding house owners are required by regulation to provide an annual fire safety statement (AFSS) to Council and to Fire and Rescue NSW
The implementation of good fire safety management practices which involves the owner, operator, manager, agent and occupants can reduce the likelihood of an outbreak and impact of fire.
Planning/zoning requirements as to where boarding houses can be permitted are regulated by Council's local environmental plans (LEPs). The type of construction and level of fire safety is regulated by the BCA (Building Code of Australia). Council's controls, plans and policies provide an urban planning framework to guide development in the local government area. Planning controls can be in the form of LEPs, development control plans (DCPs), State Environmental Planning Policies (SEPPs) such as the Housing SEPP, as well as Council-specific codes, strategies and policies.
The following provides an overview of the Boarding House Act 2012:
- The Boarding House Act 2012 (BHA) and the Boarding House Regulations 2013 were passed as a whole-of-government response to concerns about the rights and safety of people living in boarding houses.
- The BHA requires operators of two types of boarding houses to register their boarding house with NSW Fair Trading. The 2 types of boarding houses that need to be registered are:
- "general" boarding houses – boarding premises of 5 or more residents, and
- "assisted" boarding houses – boarding premises where 2 or more residents have "additional needs".
Once boarding houses have been registered with Fair Trading, councils must inspect the premises within 12 months. The BHA provides councils with new powers to gain access to boarding houses in order to conduct the initial compliance inspection. The inspection is to ensure the premises comply with the council's own policies and existing laws including the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 (EPAA).
The following links provide information concerning boarding houses:
For additional information please visit:
- NSW Legislation
- Fire and Rescue NSW (smoke alarm information)
- NSW Fair Trading
- Housing NSW
- Department of Communities and Justice
- Tenants NSW
- Newtown Neighbourhood Centre
- Homelessness NSW
Classification of boarding houses – National Construction Code, Building Code of Australia
Class 1b:
i. a boarding house, guest house, hostel or the like:
A. with a total area of all floors not exceeding 300 m² measured over the enclosing walls of the Class 1b; and
B. in which not more than 12 persons would ordinarily be resident; or
ii. 4 or more single dwellings located on one allotment and used for short-term holiday accommodation, which are not located above or below another dwelling or another Class of building other than a private garage.
Class 3:
a residential building, other than a building of Class 1 or 2, which is a common place of long term or transient living for a number of unrelated persons, including:
a. a boarding house, guest house, hostel, lodging house or backpackers accommodation; or
b. a residential part of a hotel or motel; or
c. a residential part of a school; or
d. accommodation for the aged, children or people with disabilities; or
e. a residential part of a health-care building which accommodates members of staff; or
f. a residential part of a detention centre