Annual Fire Safety Statements: What Are They Good For? Sometimes, Absolutely Nothing!

Building owners will be familiar with the legal requirement to lodge a fire safety statement with the local council and fire brigade every year. This requirement is set out in the Environmental Planning & Assessment Regulation 2000 (Regulation).

The process usually involves a fire services contractor attending the building, inspecting and testing fire safety measures and certifying they are compliant or recommending work to make them compliant, and once that work is complete, certifying compliance, and then the owner sends the statement to the local council and fire brigade.

Problems with annual fire safety statements

Our experience based on cases we have seen is that owners cannot rely on this process if they want to make sure that their building fully complies with the Building Code of Australia and any applicable Australian Standard.

The problems we see with the current process are numerous and include:

  • There is no requirement in the Regulation for the fire services contractor to have any qualification or be licensed or insured. All the Regulation requires is that a building be assessed by a “properly qualified person” but there is no guidance in the Regulation about who a “properly qualified person” is.
  • The annual fire safety statement is certified by or on behalf of the building owner (for strata buildings, it’s usually the strata manager). The contractor is not the person certifying the statement to the local council or the fire brigade.
  • Often, the fire services contractor is the same contractor used by the original developer of the building to install the fire safety measures and provide a certificate of self-certification for the occupation certificate. One can hardly expect such a contractor to find non-compliance in a subsequent year having initially certified the building as compliant.
  • If the initial fire safety schedule issued at the time a new building is completed contains an error and the building is non-compliant, then unless the fire services contractor carries out a thorough inspection, the error may go un-noticed.
  • The fire services contractor when doing the annual inspection usually does not have the construction certificate drawings and plans on fire safety measures that show the location and number of measures in the building. The contractor usually simply relies on the fire safety schedule which doesn’t indicate the location or number of fire safety measures such as dampers in the building.
  • While there is an Australian Standard on how to test and maintain fire safety measures, the Regulation does not make it binding on the contractor or the owner.
  • For buildings subject to Alternative Solutions and subsequent requirements of Alternative Solutions to be permanently listed on the fire safety schedule, they are often overlooked and misplaced soon after an occupation certificate is issued. This has the effect that requirements of Alternative Solutions are forgotten, leading to shortcomings in fire safety in the building.
  • For a new building, if there is a fire safety defect for which the owner could sue the builder or developer for breaches of the statutory warranties in the Home Building Act 1989, but such defect is not revealed during the annual fire safety inspection (it should be), then the owner will miss out on being able to sue the builder or the developer for the defect. The owner could consider suing the fire services contractor but that is a harder legal case to prove.

Owners should bear in mind that the local council can issue a fire order against a building’s owner for non-compliance even though the reason for the non compliance is due to a building defect or an omission by the fire services contractor.

What owners and strata managers can do to protect themselves?

Building owners and strata managers can take a few easy steps to protect themselves including:

  • Conducting a thorough fire safety audit of new buildings within two years of completion so that if the audit reveals defects, a building defect claim can be made against the builder and the developer before the two year statutory warranty period expires.
  • Not using the contractor originally used by the developer.
  • Only using contractors who are qualified and insured.
  • Only using contractors who comply with the Australian Standards.
  • Providing to the contractor the construction certificate plans and drawings on fire safety measures.
  • Have the contractor sign the annual fire safety statement.
  • Ensure the fire safety measures and standards of performance are identical to those in the fire safety schedule attached to the occupation certificate or any subsequent development approval or fire order.

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

 

Prepared by Bannermans Lawyers

11 February 2015

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For more information on this topic or any legal enquiries please contact your Strata Team.

 

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