Summary

In December 2022, a significant amendment was made to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, known as the Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Fire Safety) Regulation 2022 or Fire Safety Regulation 2022. This amendment aims to address fire safety concerns in Class 1b – 9 buildings and will be implemented in stages from 2023 to 2025. The changes introduced through this amendment have important implications for building owners and regulatory bodies involved in fire safety compliance.

The Details

The implementation of the NSW Fire Safety Regulation will be staggered as per the following key dates to allow the industry to adjust to the new regiment:

• 13 February 2023
• 1 August 2023
• 13 February 2025 or 18 months after the accreditation scheme is approved

The first key date, which already took place on 13 February 2023, marked the introduction of modifications to Fire Safety Schedules and the handling of corrections. Under these changes, owners now have the ability to request replacement or corrections to a lost, destroyed, or erroneous Fire Safety Schedule, provided that the errors are minor in nature (e.g., typos, incorrect building class, missing or inaccurate fire safety measures). This streamlined process allows for updates to Fire Safety Schedules without requiring an approval pathway such as a Development Application, Complying Development Certificate, or Fire Safety Order. However, it is important to note that this method of updating Fire Safety Schedules is limited to rectifying small mistakes and cannot be utilised for works or alterations that have been carried out without proper authorisation. In such cases, an approval pathway is still necessary to update the Fire Safety Schedule.

The second set of changes will take effect on 1 August 2023 and include two significant adjustments. Firstly, there will be a mandatory template for all Fire Safety Schedules in Class 1b to 9 buildings. However, for existing buildings, this requirement will only apply to building works that impact the installed fire safety measures.

The second change, also coming into effect on 1 August 2023, mandates consultation with Fire & Rescue NSW (FRNSW). Previously, the referral of projects to FRNSW was governed by the old Clause 144 of the EP&A Regulation 2000, which specified that buildings with fire compartments exceeding 2,000 m² or total building areas exceeding 6,000 m², and where a Performance Solution for a Category 2 fire safety measure was proposed, should be referred to FRNSW. However, with the introduction of BCA Clause A2.2(4) as part of BCA 2019 Volume 1, all Class 2-9 buildings are now required to be referred to FRNSW. Nonetheless, the legislation lacked a mandate for this referral and did not establish specific timelines for FRNSW's response, potentially leading to prolonged referral times.

Following the legislative change, it will be mandatory for all Class 2-9 buildings with a Performance Solution to be referred to FRNSW during the brief stage through the Fire Engineering Brief Questionnaire (FEBQ). The legislation now defines specific time frames for FRNSW's response: 10 working days after lodgement to FRNSW to indicate if comments will be provided and 20 working days after lodgement to provide comments, as shown in Table 1.

Consequently, if FRNSW chooses not to provide comments or fails to meet the mentioned time frames, the building owner is authorised to proceed with the design works. It is important to note that this requirement also extends to all Class 2-9 buildings, mandating their referral to FRNSW before a Certifier issues a Construction Certificate (CC) or an Occupation Certificate (OC). FRNSW is expected to provide comments within the following time frames at each stage: Construction Certificate – 25 working days from the time of referral and Occupation Certificate – 10 working days from the time of referral, as shown in Table 2. Certifiers are permitted to decline addressing issues or defects raised by FRNSW; however, they must communicate their rationale for not addressing the issue to FRNSW in writing.

The final change, effective as early as 13 February 2025, pertains to the certification of installed fire safety measures within a building. A new accreditation scheme, distinct from the current FPAA scheme for certifying installed fire safety measures, is under development. Under this new scheme, an accredited person must provide sign-off for all installed fire safety measures before a Fire Safety Schedule is issued for the building. From 2025 onwards, the Accredited Person who certifies the fire safety measures must be listed on the certificate of installation. Notably, the person certifying the fire safety measures cannot be the individual who installed them, although they can be from the same company.

Furthermore, starting from 13 February 2025, routine maintenance on fire safety measures must be conducted in accordance with AS 1851:2012. This requirement applies to all Class 1b-9 buildings, both new and existing, where an Annual Fire Safety Statement is required. It is important to mention that this requirement does not encompass fire safety measures not covered by AS 1851:2012 or those subject to a different maintenance process specified in the Fire Safety Schedule. Consequently, owners are expected to maintain records of the maintenance work performed on fire safety measures, which may be subject to inspection by local councils or FRNSW at any time.

In summary, the changes introduced by the Fire Safety Regulation 2022 are being implemented in three stages, as shown in Figure 1:

• Stage 1 (already in effect) – Update to the handling of minor alterations to Fire Safety Schedules.
• Stage 2 (effective from 1 August 2023) – Mandatory referral of all Performance Solutions for Class 2-9 buildings to FRNSW during the brief, CC, and OC stages, along with the use of a new Fire Safety Schedule Template.
• Stage 3 (effective from 13 February 2025) – Introduction of a new accreditation scheme for the certification of fire safety measures and the requirement for all fire safety measures to comply with AS 1851:2012 during routine maintenance.

Closing Notes

The Fire Safety Regulation 2022 brings about crucial changes to fire safety protocols in Class 1b – 9 buildings, with a phased implementation plan spanning from 2023 to 2025. These changes encompass various aspects such as updating Fire Safety Schedules, mandatory templates, consultation requirements with Fire & Rescue NSW (FRNSW), and the certification and maintenance of fire safety measures. The amended regulations aim to enhance fire safety standards and streamline the processes involved in ensuring compliance. Building owners, certifiers, and FRNSW will need to familiarise themselves with these changes and adapt their practices accordingly to ensure the safety and well-being of occupants in these buildings. By implementing these measures, the regulatory authorities seek to create a safer built environment and reduce potential risks associated with fire incidents.

References

Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021