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: What are our legislated requirements for fire safety compliance? We feel over-serviced and overcharged.
• QUESTION: As a committee member in a medium-sized building in Sydney, what does my committee need to know about the upcoming reforms in 2023 to the fire safety legislation for apartments? What has changed and when do the changes begin?
• QUESTION: Once a FPAS Accredited Practitioner has completed the Annual Fire Certificate, can section 8 and 9 be signed by the chairperson / lot owner?
• QUESTION: We’ve been using the same fire company for years. They always issued our AFSS with a few minimal repairs however this year we have a long list of actions – some substantial. Should they have been warning us of these upcoming expenses? Have they been negligent?
• QUESTION: What exactly is a block diagram and are they mandatory in all strata buildings?
• 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: What are our legislated requirements for fire safety compliance? We feel over-serviced and overcharged.

We are a 47 lot NSW strata scheme built in the 1980s with a community centre.

What are our legislated requirements for fire safety compliance? We currently have:

• Monthly inspections of the sprinkler and pump
• Annual smoke detector checks (each unit plus the community centre)
• Annual fire hydrant flow test
• Annual fire safety inspection and statement
• Five yearly service schedule for the fire hydrant system
• Each inspection/visit is invoiced separately and done at different times.

We feel over-serviced and therefore overcharged but need confirmation whether this aligns with legal requirements.

Answer: In NSW, AS1851-2012 is not enforced in legislation until February 2025, but that should be irrelevant as the owners are and always have been required by law to maintain all essential services on site.

Regarding the below, Australian Standard AS1851-2012 outlines exactly what the owners should do. It includes all the dot points you mention and likely more.

In NSW, AS1851-2012 is not enforced in legislation until February 2025, but that should be irrelevant as the owners are required and always have been by law (both Strata Act and EP&A Reg) to maintain all essential services (fire equipment) on site. AS1851-2012 is the current and only code for maintaining fire services, so it would be hard to argue a case for not using it.

Separate invoicing is not the norm in strata. Most often, it’s a fixed fee for all testing on an annual basis and often includes the fee for the Annual Fire Safety Statement assessment. The only separate items should be the 5 yearlies and any repairs. That said, it comes down to the contract terms the owners have agreed to.

Separate invoicing for each service is common in facility management and government contracts.

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

This post appears in the November 2023 edition of The NSW Strata Magazine.

Question: As a committee member in a medium-sized building in Sydney, what does my committee need to know about the upcoming reforms in 2023 to the fire safety legislation for apartments? What has changed and when do the changes begin?

Answer: Reforms have been introduced to fire safety regulations to improve compliance with requirements for the design, certification and maintenance of installed fire safety measures in buildings.

Reforms have been introduced to fire safety regulations to improve compliance with requirements for the design, certification and maintenance of installed fire safety measures in buildings through:

• Increasing the involvement of Fire and Rescue NSW (FRNSW) in reviewing non-standard fire safety design proposals.
• Creating an independent checker role to assess newly installed fire safety measures before buildings are occupied.
• Improving documentation of fire safety measures by standardising documentation and simplifying amendment processes; and
• Mandating the procedures for the maintenance of fire safety measures.

The key changes affect building owners from 13 February 2023

For class 2 building work (multi story residential buildings), owners must provide a copy of the fire safety certificate to the building practitioner issuing a building compliance declaration under the Design and Building Practitioners Act 2020.

Building owners will now be able to request corrections of minor errors in fire safety schedules or a replacement if the schedule is lost or destroyed.

From 1 August 2023

Owners must ensure that a person who develops a non-standard fire safety design proposal in all types of buildings except single dwellings and certain types of boarding houses, guest houses or similar, consults with FRNSW if a construction certificate is required for the building work.

• From 13 February 2025 (or 18 months after an accreditation scheme is approved, whichever occurs first),
• Owners must use an accredited technician to certify newly installed fire safety measures before issuing a fire safety certificate.

This must include relevant information about that accredited person in the fire safety certificate.

• Owners must maintain essential fire safety measures in all types of buildings except single dwellings in accordance with procedures in the Australian Standard 1851-2012 Routine service of fire protection systems and equipment, where the maintenance activity is addressed by the standard.

You can find out more about the changes and how they affect you and your owners corporation here: Reforms to fire safety regulation 2022

Heath Newell
Chief Mechanical Services
E: [email protected]
P: 0405 932 458

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: Once a FPAS Accredited Practitioner has completed the Annual Fire Certificate, can section 8 and 9 be signed by the chairperson / lot owner?

We are a complex of 3 townhouses with minimal fire safety requirements. We employed an FPAS Accredited Practitioner to complete the Annual Fire Certificate and the chairperson owner signed sections 8 and 9 accordingly. However, at our AGM, our Strata Manager said that we are not qualified to sign and that we need to employ a specialist Fire Engineer to check the work was done correctly and sign sections 8 and 9 accordingly.

Apart from the additional cost, it seems illogical to employ an accredited contractor and then employ someone to check their work. Is this correct?

Answer: Sections 8 and 9 are to be signed by the owners or their agent.

Here is the latest version of the Fire Safety Statament. Sections 8 and 9 are to be signed by the owners or their agent. The person can be an engineer and the owners could choose to engage someone to sign it; however, they do not need to be an engineer.

The owners need only check that the practitioner(s) listed in sections 4, 5 and 6 are actually accredited for all measures they are endorsing. You can check the public register here: FPAS Accredited Practitioner Search.

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

This post appears in Strata News #625.

Question: We’ve been using the same fire company for years. They always issued our AFSS with a few minimal repairs however this year we have a long list of actions – some substantial. Should they have been warning us of these upcoming expenses? Have they been negligent?

The building was turned into a Strata complex over 20 years ago. We have been using the same fire company for many years. They have passed off and issued our AFSS every year on our 4-unit building with a few minimal repairs carried out to see our building complies. 

This year they stated that the following items need to be actioned:

1. Wall drencher system and Fire Seals incorporated in the building
2. Test Drain system and flow test need to be carried out,
3. a manhole needs to be fitted to inspect and repair a plumbing plastic drain pipe
4. a fire seal collar installed to prevent fire from spreading from one unit to another.

These assets have been listed as “passed” on the Fire Schedule and on the AFSS for years by this same fire company without any recommendation (either verbally or written) to address these issues. The cost of these items is significant.

Should the fire company have previously warned us of these upcoming issues so we could have budgeted for them? Are the fire company liable or negligent in any way? If yes, what are our options?

Answer: The owners should be very concerned as to the quality of the service they are receiving.

This is an increasingly common issue occurring due to 20 years of under-enforcement being unwound by the accreditation practitioner scheme. Great to see fire safety improving, but feel for owners bearing the cost of what should have been done properly since the AFSS regime was implemented in the early 2000’s.

If a wall drencher system and fire seals have been on the schedule and endorsed on an AFSS in previous years, then the owners should be very concerned as to the quality of the service they are receiving. If those items definitely don’t exist, the contractor should have been reporting this. The other items may have valid explanations, but certainly sound like they speak to the same issue, but I require further context to answer accurately.

I’d suggest the owners speak with a strata lawyer on the negligence piece, but as there is no obvious loss other than the cost of the inadequate fire protection maintenance over those years (and perhaps the install capital cost increase extrapolated across the years), it seems unlikely there would be a case worthy of running.

In regards to the actual works, the owners would be well served in obtaining a second opinion from a reputable contractor or fire consultant.

The writer is happy to assist if the property is within Sydney Metro area.

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

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

Question: What exactly is a block diagram and are they mandatory in all strata buildings?

Answer: They are mandatory where the Australian standard or building code that is applicable to your building requires a block diagram.

Block diagrams are essentially a map showing how that particular fire system works and where the key equipment is located. Generally, you’ll find them on fire detection and alarm systems, hydrant systems, sprinkler systems and sometimes occupant warning. They are there (mostly) for the Fire Brigade. Putting yourself in the fire-fighter’s shoes, they’re running into a building they’ve never been to, getting ready to save people’s lives by putting the fire out & they’re faced with a really complex building they have to learn under very stressful conditions. The Block plan helps them understand that complex system at a quick glance.

Are they mandatory in all strata buildings? No, but they are mandatory where the Australian standard or building code applicable to your building requires a block diagram. Because every building is different, it’s a very contextual answer. If your building’s Annual Fire Safety Statement (AFSS) says it requires a hydrant system compliant to AS2419.1-2017; it definitely requires a block diagram. If it doesn’t specify that code, or requires an earlier version, perhaps it does not. Your fire contractor (if competent) should be able to look up the code listed on the AFSS and provide you with the exact clause referring to block plans. Every building may be different, but reading the specific code is not.

If you’re not sure about your specific property’s requirements, send a copy of your AFSS to the author and we’ll happily help you find out.

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

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

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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Read next:

• NSW: Who Pays the Fire and Rescue Call Out Fee?
• NSW: Q&A Are our fire safety inspections too frequent?

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