NSW: Changes in Legislation to Annual Fire Safety Statements (AFSS)

This article discusses an overview fire regulations for NSW strata and the changes to the NSW Annual Fire Safety Statements (AFSS).

Table of Contents:

• QUESTION: We’ve just discovered our dampers have not been checked for compliance for the past 8 years. We’re now up for $570,000 to repair the dampers. Shouldn’t this have been part of the annual fire inspection?
• QUESTION: We don’t have a fire schedule and without a schedule, our contractor will not be issuing an AFSS. Is this correct?
• QUESTION: Is quarterly maintenance of the garage ventilation system a requirement for a fire certificate?
• QUESTION: What happens if your fire safety contractor is unable to inspect every unit during your fire inspection for your annual fire safety statement?
• QUESTION: Are Strata Plans registered before 1974 exempt from fire safety upgrades?
• QUESTION: A definition of Annual Fire Safety Statements (AFSS)
• ARTICLE: Changes in Legislation to Annual Fire Safety Statements (AFSS)
• QUESTION: Can NSW providers rescind an Annual Fire Safety Statements for non payment of invoices? If so, how is it legally done?

Question: We’ve just discovered our dampers have not been checked for compliance for the past 8 years. We’re now up for $570,000 to repair the dampers. Shouldn’t this have been part of the annual fire inspection?

Our Annual Fire Safety Statement for the last 8 years has been completed by one approved service provider. Recently our air conditioning service providers advised the dampers were not being checked. Our strata manager said it was not listed on the foundation Fire Safety Schedule (from 1993) and therefore not subject to annual assessment.

We are now facing a charge of $570,000 to repair 190 dampers.

I believe the fire pathway should have been checked as part of the annual fire inspection.

Is this “negligence” and can it be claimed under our insurance policies for

• Tradesmen negligence; or
• Strata Committee negligence ; or
• Strata Manager negligence?

Answer: This is a very common issue cropping up due to the tightening of building compliance rules.

Pretty specific, but key observations are:

Maintenance of the dampers is wholly the owners responsibility and if they knew about the dampers, they should have been maintaining them as per clause 81 of the Environmental Planning & Assessment Act & Regulation (excerpt below):

81 Essential fire safety measures to be maintained

1. The owner of a building must maintain each essential fire safety measure for the building—
   
   1. for an essential fire safety measure specified in a fire safety schedule—to a standard no less than that specified in the schedule, or
   2. for an essential fire safety measure applicable to the building but not specified in the fire safety schedule (an original measure)—to a standard no less than that to which the measure was originally designed and implemented.

The above shows there’s no doubt that Dampers should have been maintained……. But…….. if no-one knew they existed &/or they were not listed on the schedule it’s pretty arguable if anyone is negligent or liable. If no-one was engaged by the owners to maintain them, it’s even less clear how one of the below could be considered negligent.

This is a very common issue cropping up due to the tightening of building compliance rules across NSW and Australia thanks to the Building Confidence Report.

Gaining legal advice on this would be the next step.

Rob Broadhead
2020 Fire Protection
E: [email protected]
P: 1300 340 210

This post appears in Strata News #568.

Question: We don’t have a fire schedule and without a schedule, our contractor will not be issuing an AFSS. Is this correct?

I am seeking information on “fire schedules”. We are a small, well maintained, original 1920s Art Deco building and none of us know of any fire schedule requirements.

We don’t have a fire schedule and without a schedule, our contractor will not be issuing an AFSS. Is this correct?

We’ve had the same fire safety company attending to our inspections for several years so shouldn’t they have known we have no schedule? Or is a fire schedule a recent legislative requirement?

Answer: Contact council to request a schedule; or alternatively, engage a fire engineer and certifier to start creating a schedule.

A contractor, no matter how long they have been maintaining the property, cannot simply create a schedule.

The accreditation program in NSW – enforced since July 2021 requires the practitioner to show proof as to where they obtained the schedule. Hence – it can’t simply be created.

The responsibility for providing a schedule to assess-against lies with council – being the regulatory authority.

We recommend you contact council to request a schedule (if you believe one exists due to upgrade works); or alternatively, engage a fire engineer and certifier to start creating a schedule.

Please note; however, that either option may trigger a council fire upgrade order on the building – which while difficult, is both beneficial to your safety and inevitable thanks to the legislation governing councils and AFSS alike.

Rob Broadhead
2020 Fire Protection
E: [email protected]
P: 1300 340 210

This post appears in the May 2022 edition of The NSW Strata Magazine.

Question: Is quarterly maintenance of the garage ventilation system a requirement for a fire certificate?

Can a fire certification can only be given if quarterly maintenance of the garage ventilation system is paid? As an owner and a member of the OC, we have not previously encountered this.

We have met all the other fire requirements. Our block of 24 units was built in Sept 2005 and has very good compliance.

Answer: The current Australian Standard for maintenance of Fire Protection requires that ventilation systems be maintained (tested) quarterly, but this standard is not directly legislated.

Challenging to answer without full context.

NSW Regulations require Owners of Strata Buildings to maintain the building and assets, but it doesn’t specify details on how or what standard to use.

The current Australian Standard for maintenance of Fire Protection is AS1851-2012 and it requires in Section 13 that ventilation systems be maintained (tested) quarterly, but this standard is not directly legislated.

The Annual Fire Safety Statement – AFSS (which we assume the owner is referring to by ‘certification’) is not directly related to maintenance, but is based on whether the system performs or does not perform when assessed by an Accredited Practitioner (Fire Safety) – APFS.

There may not be direct legislative connections between maintenance, the Australian Standard and the AFSS (it’s coming soon though!), but for a system to be assessed as performing for the AFSS, an APFS will use the testing records as part of their evidence underpinning the assessment.

The conclusion (as an APFS myself) supported is:

• The owners are obligated to maintain the building & services;
• The only standard they could realistically choose for maintenance is AS1851-2012;
• AS1851-2012 requires quarterly testing.
• The APFS must assess performance in-person and using the evidence available – including testing results.
• The APFS is within their rights to request this as part of their assessment because they may be risking their accreditation by endorsing a measure knowing it is not being maintained throughout the year in accordance with AS1851-2012.

It may realistically be argued the other way if the system can perform at the annual assessment, but this would be against the legal intent of the requirement to maintain and therefore I would hope it would not be supported by the majority of practitioners.

Rob Broadhead
2020 Fire Protection
E: [email protected]
P: 1300 340 210

This post appears in Strata News #555.

Question: What happens if your fire safety contractor is unable to inspect every unit during your fire inspection for your annual fire safety statement?

Answer: We have to go back and reinspect. If the accredited practitioner cannot prove that they have inspected and verified all of the essential fire safety measures, they can’t sign it off.

We have to go back and inspected. Under the current legislation, if the accredited practitioner cannot prove that they have inspected and verified all of the essential fire safety measures, they cannot endorse that measure, they can’t sign it off every year. Realistically, we have to go back and reinspect. That’s what we do. Does it make us popular? No. But is it important? Yes.

You have a 50% greater chance of surviving a fire in your home if you had a working smoke alarm. The very thing we are inspecting in that unit is the smoke alarm to make sure it will perform in fire situations. So I think it’s really important, however unpopular it may be, but the legislation says we must do it, therefore we do it. As a result of the last year or so of enforcing that, we’ve seen a substantial improvement in the number of people who actually will be there at their annual test, which is really great. People are realising the importance of it now it is being enforced.

Rob Broadhead
2020 Fire Protection
E: [email protected]
P: 1300 340 210

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: Are Strata Plans registered before 1974 exempt from fire safety upgrades?

We have been told due to our Strata Plan lodgement date (prior to July 1974), we do not have to upgrade our fire safety, and we do not have to have:

• a sprinkler system in our garage
• scheduled regular window lock checks for child safety
• fire-rated individual entry doors in common stairwells
• doors to the basement don’t require a key to enter or exit
• no extinguishers in stairwells
• etc

Is this correct?

Answer: Owners are under no obligation to proactively upgrade fire safety systems unless required by the Regulatory Authority.

It is very hard to answer a question of this complexity without context, but here’s the best attempt:

Window Locks

Window locks – I am not knowledgeable on this subject, but a quick search seems to indicate that ALL strata buildings require them: Window safety device requirements

“Grandfather” Legislation

The only “grandfather” legislation in relation to fire protection is the requirement for working smoke alarms in all rented or sold residential apartments. This is irrespective of building age and required by the Smoke Alarm Legislation 2006 and the Residential Tenancies Act update last year. More general info can be found here: NSW Smoke Alarms – It’s the Law

In regards to the other items, the owners are under no obligation to proactively upgrade fire safety systems unless required by the Regulatory Authority (e.g. Council or Fire Brigade). Council are required under the Environmental Planning & Assessment Regulation to “bring all buildings up to a current level of fire safety”. Hence, at some stage the upgrades noted WILL be required by Council and it is our recommendation that the owners start scoping and budgeting for this.

Council Upgrade Orders

Council Upgrade orders tend to be triggered by one of the following:

• Development Application (DA) Submission.
• Complaints
• Fire Brigade attendance for a fire or callout
• Random visit by council officers.

Being that the question is quite specific and if the word “upgrade” is used loosely, the answer could be different. For example; if the site is required to issue an Annual Fire Safety Statement (AFSS) to council and the items specified are not performing as per the code they were installed to, they must be returned to a condition where they do perform. If an AFSS is required to be issued, things like doors that are locked would have to be rectified if they restrict the paths of travel from the building.

Happy to discuss and gather further context with the writer if the above does not answer all questions.

Rob Broadhead
2020 Fire Protection
E: [email protected]
P: 1300 340 210

This post appears in the December 2021 edition of The NSW Strata Magazine.

According to Strata Community Association (NSW) the definition of Annual Fire Safety Statements (AFSS) is:

• Annual Fire Safety Statements registered each year with local council confirming the fire safety measures in place. A motion to deal with the status of the AFSS is required on the AGM.

Changes in Legislation to Annual Fire Safety Statements (AFSS)

Annual Fire Safety Statements are required to be submitted to your Local Council and Fire and Rescue NSW (FRNSW) each year outlining all Statutory Fire Safety Measures in the building comply with the relevant standard. This requirement is outlined in Part 9 of the fire regulations for NSW strata: Environmental Planning and Assessment Regulation (EP&A Regs) 2000.

Back in July 2017, the NSW Government announced a series of building regulatory reforms, largely in respect to fire safety, which came into effect on 1 October 2017. These reforms affect the Annual Fire Safety Statement (AFSS) NSW process and some changes may be required.

Changes to the AFSS affecting Building Owners and their Managing Agents

Fire safety is the primary focus of these reforms. The key changes to the fire regulations for NSW strata that will impact Building Owners and the Managing Agents are:

• The introduction to ‘competent fire safety practitioner’ (CFSP) and the eventual requirement for CFSPs to be accredited, and a plan to recognise existing industry and government schemes that can accredit individuals; and
• A new template for Fire Safety Statements.

Competent Fire Safety Practitioners

Previously, the requirements to undertake inspections were by a ‘properly qualified person’, which wasn’t defined, meaning the inspector didn’t need to have any qualification or be licensed. The legislation has now changed and as of the 1st October 2017, assessments and inspections must be undertaken by a ‘competent fire safety practitioner’ in lieu of ‘properly qualified person’.

As with the introduction of new laws, there needs to be some time for the industry to adjust. Currently, there is only one option available for inspectors to become competent until the industry can provide suitable industry schemes (e.g. approved training courses). Until that time, it is the responsibility of the Building Owners to determine the competence of the inspectors.

The NSW Government has prepared a guide to assist Building Owners to determine competence. The steps are:

1. Identify tasks that the fire safety practitioner will need to perform.
2. Consider the fire safety practitioner’s competence to perform those tasks, including knowledge, skills, and experience.
3. Establish and record an opinion of the practitioner’s competence.

Step 1 – Identify Tasks

Before considering the competence of a practitioner, owners should identify which kinds of tasks need to be performed.

• Assess essential fire safety measures;
• Inspect the building for exit system compliance breaches – fire safety notices, obstructed exits or paths of travel, faulty door mechanisms; and
• Assess fire safety alternate solutions – this will likely require specialist expertise to assess whether the fire safety measure can still perform to the standard expected.

Step 2 – Consider Competence

Once the tasks have been identified and described, the next step is for the building owner to consider the practitioner’s competence, including whether they have sufficient knowledge, skills, and experience.

: Fire safety practitioners should provide adequate documentation to building owners, detailing evidence of knowledge, skills, and experience.

Step 3 – Establish and Record Opinion

Based on the assessment of a practitioner’s knowledge, skills, and experience, the final step is to determine whether the person is a competent fire safety practitioner for the tasks required.

There is a new provision in the Regulation requiring that the building owner record in writing that in their opinion the person or persons selected are competent to perform the fire safety assessments and inspection.

New Annual Fire Safety Statements (AFSS) NSW Template

The main changes to fire regulations for NSW strata relating to the new Annual Fire Safety Statements (AFSS) template are Section 6 and Section 9, which require the details of each of the CFSP’s and the requirement for the Building Owner to sign the document, respectfully.

Section 6

The new Annual Fire Safety Statements template now requires the details of all practitioners that inspected the building to be listed.

Section 9

The new AFSS template requires the Building Owner to sign the document. This means that no longer can the Strata Manager rely on the maintenance contractor to sign off on behalf of the Building Owner.

How Can We Help?

Project Guides can assist in the following areas:

• Determining competence of maintenance contractors;
• Inspections and certification of passive works and paths of travel;
• Contract preparation and review;
• Management of Contractors;
• Review condition reports and quotes;
• Inspecting works on site; and
• Signing and issuing the AFSS’s.

For assistance with your Annual Fire Safety Statements NSW and to ensure you follow the statutory requirements and understand the new fire regulations for NSW strata, please contact Project Guides.

Vincent Graham
Project Guides
E: [email protected]
P: 0476 233 109

This post appears in Strata News #192

Question: Can NSW providers rescind an Annual Fire Safety Statements (AFSS) for non payment of invoices? If so, how is it legally done?

Answer: We are not aware of how a document like this can be rescinded.

We are not aware of how a document like this can be rescinded as the Annual Fire Safety Statements (AFSS) is completed as part of a regulatory process, and should have been provided to Council. At that point, the Council, and those using the building are relying upon it. In our view, it becomes an AFSS for the purposes of the Regulations.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #275.

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