NSW: Annual Fire Safety Statements Demystified

This NSW article is about demystifying annual fire safety statements.

Many Owners Corporations (OCs) have only a limited understanding of what an Annual Fire Safety Statement (AFSS) is and what is involved in obtaining one, and often rely on the advice of fire safety practitioners and strata managers to ensure that all fire safety items in their buildings are compliant with the relevant laws and standards. This can result in OCs incurring unnecessary costs. For example, in upgrading essential fire safety measures where it is not legally required.

This article aims to clearly explain what an AFFS is, why almost all buildings need to obtain one and the standards essential fire safety measures must be evaluated against for the purpose of obtaining an AFSS.

What is an AFSS?

Subregulation 177(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (hereafter “EPAR”) requires that each year, an OC must send to the relevant council an AFSS with respect to the essential fire safety measures of a building.

AFSS is a statement issued by or on behalf of an OC which shows that each essential fire safety measure has been assessed by an accredited practitioner and was found to be capable of performing to a specific standard (the standards), and it provides the date the assessment was undertaken (see regulation 175 EPAR).

Essential fire safety measures are evaluated against the standards prescribed by a building’s Fire Safety Schedule (FSS). Where a building does not have an FSS, the standards applicable at the date(s) of installation of the essential fire safety measures are the standards these measures are evaluated against. This is explained in more detail below.

What is an FSS and why do some buildings have one and others don’t?

A FSS is a document which lists all fire safety measures of a building and their minimum standard of performance, and the fire safety measures which are exempt from complying with the Building Code of Australia Standards.

The requirement for buildings to have an FSS commenced on 1 July 1988 pursuant to part 59 of Ordinance 70 (entitled Maintenance of Fire and Other Safety Measures), and only applied to buildings built on or after 1 July 1988.

As a result, buildings built on or after 1 July 1988 were always provided with an FSS upon completion of their construction.

A common exception to this is where a building built prior to 1 July 1988 was nevertheless after 1 July 1988 provided with an FSS pursuant to a fire safety order or a construction certificate for proposed building work (see subregulation 168(1)) EPAR).

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What are essential fire safety measures?

An owner of a building is required, pursuant to regulation 182 EPAR, to maintain the essential fire safety measures in the building premises. An essential fire safety measure for the purposes of the regulation is a defined term, and which can be found at regulation 165 EPAR, and means any measure “implemented in a building to ensure the safety of persons using the building in the event of fire” that is:

found in an FSS; or

classified as an essential service required from time-to-time under various historical regulations or ordinances (i.e. Ordinance No 70 under the Local Government Act 1919, the Local Government (Approvals) Regulation 1993, and the Local Government (Orders) Regulation 1993).

With respect to essential services, the historical regulations, and ordinances each provide an identical list as to what is an essential service. This list includes and is not limited to automatic sprinkler systems, emergency lifts, fire and smoke alarms, fire dampers, fire hydrants, etc. The full list of essential services can be found in the sixth schedule of Ordinance No 70, paragraph 4(1)(a) of the Local Government (Approvals) Regulation 1993, and paragraph 6(2)(a) of the Local Government (Orders) Regulation 1993.

We note that equipment or systems for fire safety are deemed essential services only if they were installed whilst the aforementioned historical regulations or ordinances were in force.

Accordingly, in many buildings where the construction approval was issued before 1 July 1988, there may be equipment or systems for fire safety that are not essential fire safety measures for the purposes of an FSS.

What standards are essential fire safety measures evaluated against for the purposes of obtaining an AFSS?

Where a building has an FSS, the AFSS needs to state that the essential fire safety measures are capable of performing at a standard no less than that specified in the FSS (see paragraph (i) of subregulation 175 EPAR).

Where a building does not have an FSS, the essential fire safety measures must be capable of performing at a standard no less than that to which the measure was originally designed and implemented (see paragraph (ii) of subregulation 175 EPAR). This means that the standard the fire safety measure will be evaluated against is the standard applicable at the time of installation, and not as against the present applicable standard.

For example, an original fire door in a building constructed in the 1982 which does not have a FSS must be evaluated against the standards applicable at the time which is Part 21 of Ordinance No 70 (made under the Local Government Act 1919).

When is a building not required to obtain an AFSS?

If a building was built prior to 1 July 1988, was not subject to an order/approval (pursuant to subregulation 168(1) of the EPAR), and the building does not have essential fire safety measures (as defined in regulation 175 of the EPAR) then the building would not be required to comply with Part 9 of the EPAR – this means that the building would not need to obtain an AFSS.

Conclusion

Overall, AFSSs take into account multiple considerations.

Where a building has an FSS, a Fire Safety Practitioner must rely on the FSS to evaluate the essential fire safety measures against the prescribed standards.

Where a building does not have an FSS, a Fire Safety Practitioner must first determine when the essential fire safety measures were installed in order to establish what the applicable standards of the day were. Then the essential fire safety measures must be evaluated against these standards.

Very rarely are buildings not required to submit an AFSS to the relevant council given the likelihood of fire safety measures being installed after 1 July 1988.

Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060

This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.

This post appears in Strata News #683.

This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyer website.

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