Introduction
Ensuring fire safety compliance is a fundamental legal responsibility for the owners corporation of any new residential stratum in NSW. This duty is not merely about regulatory adherence; it is a critical measure to protect residents and property, particularly as fire safety issues have been identified as one of the primary areas where defects are found in new apartment buildings.
For strata owners and developers, understanding the complexities of fire protection compliance can be challenging, especially when defects are discovered post-construction. This guide provides essential information on the legal remedies and protections available, outlining how to navigate new fire safety regulations and leverage legislation like the Design and Building Practitioners Act 2020 (NSW) to ensure safety and accountability.
Understanding the Legal Framework for Fire Safety in a New Stratum
The Role of the Initial Fire Safety Certificate
Upon the completion of new construction work, the building owner or their representative must provide an initial Fire Safety Certificate. This certificate serves as a formal attestation that all specified fire safety measures have been correctly installed and inspected by a qualified professional, ensuring they meet the required minimum performance standard.
This initial certificate is a critical step in fire protection compliance for any new stratum and is typically issued in response to:
- Building Approval
- Construction Certificate
- Complying Development Certificate
- Development Consent
The certificate covers a range of essential fire safety measures that are foundational to the building’s safety, including:
- Automatic fire detection and alarm systems
- Sprinkler systems
- Emergency lighting
- Fire hose reels
- Fire doors
Establishing the Fire Safety Schedule for Your Building
A Fire Safety Schedule (FSS) is a crucial document that underpins all ongoing fire safety in strata. It is issued by a council or registered certifier and lists every fire safety measure required for the building, along with the specific standard of performance each measure must meet.
This schedule forms the basis for all future inspections and the annual certification process. The FSS must detail the relevant Building Codes of Australia, Australian Standards, or other requirements with which each fire safety measure must comply.
For new buildings, an FSS is issued when a construction certificate is granted. As of last 1 August 2023, all new Fire Safety Schedules must be issued using a standardised template form provided by the NSW Government to ensure consistency.
Identifying Fire Safety Non-Compliance in Your New Building
Common Defects & Passive Fire Protection Failures
The NSW Building Commissioner has identified fire safety as one of the primary areas where strata building defects are found in new residential strata buildings. A significant concern is the failure of passive fire protection systems, which are integral to a building’s design and rely on structural materials to contain and slow the spread of fire.
Passive fire protection works on the principle of compartmentalisation, dividing a building into smaller, contained sections using fire-resistant materials. This crucial safety measure prevents flames and smoke from moving rapidly between areas, providing occupants with more time to evacuate safely.
Common components of passive fire protection include:
| Component | Description |
|---|---|
| Fire-resistant walls, floors, & ceilings | Structures built with materials like gypsum and mineral wool to resist high temperatures and delay heat transfer. |
| Fire doors | Specially designed doors rated to withstand fire for a specific period, preventing it from spreading through corridors and stairwells. |
| Intumescent coatings | Applied to structural elements like steel beams, these coatings expand when heated, creating an insulating barrier that helps prevent structural collapse. |
Failures in these systems can compromise the entire building’s safety strategy, potentially turning a manageable incident into a catastrophic one.
Differentiating Between Mandatory Upgrades & Routine Maintenance
It is important for strata owners to understand the distinction between ongoing maintenance and legally required system upgrades. Routine fire safety inspections or maintenance activities do not, by themselves, create an obligation to upgrade existing fire protection systems to newer standards.
An upgrade is typically only required under specific circumstances:
- When the system fails to meet the minimum performance standard outlined in the building’s FSS – a critical document that specifies each fire safety measure and the standard it must achieve
- When a formal fire safety order is issued by the local council or Fire and Rescue NSW (FRNSW)
In these cases, the owners corporation is legally required to rectify or improve inadequate fire safety systems to ensure the building complies with the Building Code of Australia.
Legal Remedies & Protections for an Owners Corporation
Leveraging the Design & Building Practitioners Act
For certain new residential strata buildings, the Design and Building Practitioners Act 2020 (NSW) provides a significant legal protection for strata owners. This legislation creates a direct link between the building’s fire safety certificate and the builder’s compliance declaration, ensuring that fire protection compliance is a key part of the builder’s legal responsibilities.
Under these fire safety regulations:
- A building practitioner must be provided with a copy of the fire safety certificate before they can issue a building compliance declaration
- This process provides a clear mechanism for an owners corporation to hold builders accountable for any fire safety defects discovered after construction
- These measures ultimately strengthen the protections for strata owners
The Power of Fire Safety Orders
A fire safety order is a mandatory directive that can be issued to compel an owners corporation to rectify non-compliant or inadequate fire safety systems. These legal instruments are a powerful tool for ensuring safety in a strata building and are typically issued by the local council or FRNSW.
When an owners corporation receives a fire safety order, it is legally obligated to carry out the specified upgrades or repairs. The process varies depending on who issues the order:
| Issuing Authority | Process & Rights of the Owners Corporation |
|---|---|
| Local Council | Procedural fairness is required. The owners corporation must be notified of the intent to issue an order. The owners corporation has the right to appeal. Negotiation on the timing and scope of works is often possible to prioritise critical safety improvements. |
| Fire and Rescue NSW (FRNSW) | There is generally no right of appeal. The only exception is if the order restricts access to or use of the property. |
The Recent NSW Fire Safety Reforms & Regulations
Mandatory Compliance with Australian Standard 1851
New fire safety regulations are set to introduce more stringent maintenance requirements for strata owners. From 13 February 2026, owners corporations must ensure that essential fire safety measures are maintained in accordance with the procedures outlined in Australian Standard 1851-2012 (AS 1851). This standard mandates a more rigorous and systematic approach to fire protection compliance, aiming to reduce defects and enhance safety in every residential strata building.
The introduction of AS 1851 will bring several key changes that strata owners need to know to ensure compliance:
| Area of Change | Key Requirements for Owners Corporations |
|---|---|
| Increased Inspections & Testing | The standard mandates a staged approach to servicing, including more frequent routine inspections, monthly checks for some measures, and detailed guidelines for services every 5, 10, and 25 years. |
| Detailed Record-Keeping | Owners corporations must maintain comprehensive documentation of all inspections, tests, and maintenance. These records must be kept on-site for at least seven years and be available for inspection, with significant penalties for non-compliance. |
| Onus on Owners | The regulations place direct responsibility on the building owner to ensure all maintenance is performed according to the standard, including performing routine services, documenting any missed services, and taking accountability for compliance. |
Stricter Rules for Accredited Practitioners & Certification
To further improve accountability in fire protection, upcoming changes will tighten the rules around the certification of new fire safety measures. From 13 February 2027, strata owners must engage an accredited practitioner to assess and certify any newly installed fire safety measures. This must be done before a fire safety certificate can be issued for the building.
This reform ensures that a qualified and recognised professional verifies the installation and performance of critical safety systems. The fire safety certificate itself will also need to include the details of the accredited person who provided the certification. This creates a clear line of accountability and strengthens the integrity of the fire protection compliance process for any new stratum.
The Consequences of Fire Protection Non-Compliance
Legal Penalties & Financial Risks
Failing to meet fire safety obligations can expose an owners corporation to significant legal and financial penalties. NSW councils have the authority to enforce fire safety regulations and can issue substantial fines for non-compliance.
The potential penalties include:
| Non-Compliance Issue | Potential Penalty |
|---|---|
| Late submission of Annual Fire Safety Statement (AFSS) | Fines of up to $4,000 per week. |
| Failure to maintain essential fire safety measures (per AS 1851) | Penalties as high as $66,000 for a corporation. |
| Improper record-keeping | Fines of up to $33,000. |
In addition to these fines, councils can issue fire safety orders that compel owners to undertake urgent and often costly rectification works to address unsafe conditions.
Your Strata Building’s Insurance & Property Value
Fire protection compliance is a critical factor for securing and maintaining insurance for your residential strata building. Insurance providers assess a building’s risk profile, and a history of non-compliance can lead to serious consequences, including:
- Increased insurance premiums
- Refusal to renew a policy
- Outright cancellation of coverage
- Declined claims if a fire-related incident occurs while the building is non-compliant
Beyond insurance implications, non-compliance can negatively affect property values and the desirability of the stratum. A building with a poor fire safety record may experience reduced resale values, as potential buyers often conduct due diligence on compliance history.
Furthermore, it can lead to tenant dissatisfaction and difficulty attracting new residents, ultimately impacting the financial stability and reputation of the entire strata community.
Conclusion
Ensuring fire safety compliance in a new residential stratum involves navigating a complex legal framework, from initial certification to leveraging protections like the Design and Building Practitioners Act 2020 (NSW) when defects are found. Upcoming fire safety regulations, including mandatory adherence to AS 1851, reinforce these duties, with significant penalties and insurance risks for non-compliance.
Managing these intricate fire protection compliance obligations requires specialised legal knowledge and proactive management. For trusted expertise in strata law, contact our strata lawyers at PBL Law Group to ensure your residential strata building is safe and compliant.
Frequently Asked Questions
