Do Crown Developments require an AFSS?

Disclaimer: This article refers only to (Class 1b & 2-9 buildings). Excluding Class 1a building, Class 10 building, or a temporary structure.

Definitions:

Crown development application means a development application made by or on behalf of the Crown.

fire safety measure means a measure, including an item of equipment, form of construction or fire safety strategy, that is, or is proposed to be, implemented in a building to ensure the safety of persons using the building if there is a fire.

AFSS means Annual Fire Safety Statement means it is a statement issued by the owner of a building stating that the essential fir safety measures that are installed in the building have been maintained to the standard of performance that is specified in the schedule or the standard of performance to which the measure was originally designed and installed. AFSS is defined by legislations. See below.

https://legislation.nsw.gov.au/view/html/inforce/current/sl-2021-0689#sec.88

essential fire safety measure in relation to a building is as defined by legislation. See below. 

https://legislation.nsw.gov.au/view/html/inforce/current/sl-2021-0689#sch.2

Hi,

I wish to get your thoughts on this matter. I came across the NSW Department of Communities and Justice. which appeared to believe that AFSS are NOT required for Crown Developments!, unless they are modified. See screen shot below:

Short Answer:

Yes, I believe Crown Buildings (referred to above) are required to submit AFSS. 

The NSW Department of Communities and Justice Policy seem to believe that AFSS are NOT required, unless these crown buildings have been subject to any of the following:

• modification application

• construction certificate

• complying development certificate

• change of use development consent

• fire safety order.

Discussion:

While the source of this policy (from legislation) is unknown and not referenced, NSW Department of Planning and Environment Frequently asked questions, Fire safety statements Document confirms that the requirements apply to the owners of buildings that –

• Contain essential fire safety measures; and

• Are required by the Regulation to issue an annual fire safety statement.

Evidence to support the argument:

The reasons that why AFSS are required for Crown Building are briefly as follows:

1. Section 81 (1) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 requires building owners to maintain each essential fire safety measures.

2. Section 87 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 states that Part 12 Fire safety statements “applies to all buildings, other than— a class 1a or 10 building, or a temporary structure.

3. Although Crown Development may not be required to be issued with fire safety schedules; Section 88 (1) (a) (ii) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 declares that in the event that a fire safety schedule was not issued for the building, then the owners must maintain their fire safety measures to the standard of which it was originally installed.

4. Section 89 (1) of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 outlines certain duties on “the owner of a building to which an essential fire safety measure applies (See point 1 above) must give the council an annual fire safety statement for the building.”

5. Additionally, Section 6.28 (2) of the Environmental Planning and Assessment Act 1979, requires that “Crown building work cannot be commenced unless the Crown building work is certified by or on behalf of the Crown to comply with the Building Code of Australia in force”.

6. One of the BCA requirements is that Fire safety system has to be installed to comply.

7. Fire safety system is defined in Schedule 1 of the Building Code of Australia (BCA) as follows:

8. Fire safety system: One or any combination of the methods used in a building to—

(a) warn people of an emergency; or

(b) provide for safe evacuation; or

(b) restrict the spread of fire; or extinguish a fire,

and includes both active and passive systems.

Despite the above, Councils as a building regulator, it’s within their jurisdiction to require that buildings comply with the BCA and the EP&A act and Regulation. Generally, Councils require buildings to submit AFSS to comply with the above regulations.  

Conclusion:

Based on the above legislative requitements/ argument, I believe it is reasonable to conclude that Crown Developments are required to maintain the installed essential fire safety measures in the buildings and submit their annual fire safety statements (AFSS) to Local Council and Fire & Rescue NSW, as required by legislation. 

Further Reading:

To find out more about the difference between a fire safety schedule, fire safety certificate, and a fire safety statement, read my other article below titeld as:

What is the difference between fire safety schedule, fire safety certificate and fire safety statement? (linkedin.com)

Please share your thoughts and interpretations with us. Do you agree or disagree? We value constructive feedback to improve.

Disclaimer

This article is not to be taken out of context. It is general in nature and does not relate to any particular site. You are strongly advised to seek your independent town planning or a legal advice for your site and not to rely on the opinion of this article or any comments within.

Regards

Firas Naji

26 April 2024