Local Government Legal

Local Government Legal prepares a regular email newsletter with legal updates on relevant court judgements and a summary and analysis of legislative changes.

July 2014 – New Fire Safety requirements for Complying Development Certificates

The Environmental Planning and Assessment Amendment (Fire Safety) Regulation 2014 (Fire Safety Regulation) which amends the Environmental Planning & Assessment Regulation 2000 (EP&A Regulation)was published on 18 July 2014.

The Fire Safety Regulation includes new notification requirements for certifying authorities who receive an application for a complying development certificate (CDC) or a Part 4A certificate under the Environmental Planning & Assessment Act 1979 (EP&A Act) relating to an existing building, and to principal certifying authorities in relation to building work effecting an existing building.

Certifying authorities are now required to give written notice to the council within 2 days of becoming aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building (clause 129D).

Principal certifying authorities appointed under s109E EP&A Act in relation to building work affecting an existing building are similarly required to give notice before issuing an occupation certificate (clause 162D).

If the certifying authority is the council, the council certifying must report the matter to the council.

The provisions do not apply to class 1a (ie a single dwelling being a detached house or one or more attached dwellings) and class 10 buildings (non-habitable buildings or structures).

Exemptions from the notice requirements are provided for where the fire safety issue is being addressed by a fire safety order (item 6 of the table to s121B of the EP&A Act), a proposed development or a development consent. Unlike the repealed clause 132A it applies regardless of the building’s age or development area.

Providing a notice is given, becoming aware of a significant fire safety issue does not prevent a CDC or Part 4A certificate being issued.

The Fire Safety Regulation also:

  • specifies the minimum areas which must be inspected when proposed development affects and existing building; and
  • introduces new development standards for CDCs that involve a change of building use or an internal alteration to an existing building that reconfigures a building space that is occupied or will be occupied in the future.

Previously a building fire safety report was required to be submitted with an application for a CDC under clause 132A (now repealed) of the EP&A Regulation.

The technical guidelines which support the Fire Safety Regulation address what is a significant fire safety issue.

The technical guidelines also address that a council is to consider a fire safety notification under the new provisions and state as follows:

Council to consider fire safety notifications

Upon receiving written notice from a certifying authority or principal certifying authority under clauses 129D and 162D of the Regulation, the council should consider the information contained within the notice and determine what action, if any, is required. Options include:

  • The issue may not warrant action to be taken
  • Issue a fire safety order that specifies how the significant issue must be addressed
  • Issue a fire safety order that directs the owner to determine and specify how the significant issue will be addressed. This will result in a further fire safety order requiring that the agreed remedy be completed within a specified period of time.

Note: This information is not to be relied upon as legal advice.

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