In brief - Private building certifiers rightly concerned about amendments introduced in July 2014
The Environmental Planning and Assessment Regulation 2000 now requires building certifiers formally to notify the relevant local council within two days of becoming aware of a "significant fire safety issue". With this comes greater potential liability, with certifiers risking becoming embroiled in strata scheme disputes involving fire safety defects in the years ahead.
Steadily increasing obligations of building certifiers in NSW
The obligations of building certifiers in NSW have steadily increased over recent years in a range of areas, including the introduction of further mandatory critical stage inspections, reporting obligations associated with non-complying development and contractual disclosure requirements.
The latest raft of amendments introduced by the EPA Regulation in July 2014 are set to increase those obligations dramatically, specifically in relation to the reporting of "significant fire safety issues" encountered in "existing development".
The amendments target development applications (DAs) and Complying Development Certificate (CDC) applications carried out within or forming part of existing development, with the object being to use the certification process to upgrade old and substandard buildings in terms of their fire safety.
The amendments are not likely to have any material application for developments that do not retain any building elements of the former development.
Obligations of building certifiers under former reporting regime
Under the former regime, building certifiers were required as part of a CDC application process to procure a report - prepared by a separate independent certifier - addressing, amongst other things, an assessment of whether it was appropriate to require the existing development to be brought into total or partial compliance with the current version of the Building Code of Australia (BCA).
These reporting obligations did not extend to development applications.
Significant fire safety issues in any part of the building
The EPA Regulation now requires a building certifier to notify the relevant council formally, at any time prior to issuing a complying development certificate, a construction certificate or an occupation certificate (OC), if the building certifier "becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building" (clause 129D and clause 162D of the EPA Regulation).
The EPA Regulation does not provide a definition of "significant fire safety issue". However, the associated Technical Guideline published by the NSW Department of Planning and Environment provides some guidance as to what, from the Department’s perspective, constitutes a reportable "significant fire safety issue". The Technical Guideline provides that:
What is the difference between a "minor fire safety issue" and "significant fire safety issue"?
There is, however, a vast chasm between matters that might properly be characterised as "minor" on the one hand and matters that would warrant the issuing of a fire safety order on the other hand; therein lies the challenge for building certifiers.
The reality remains that the burden of determining what constitutes a significant fire safety issue in any particular set of circumstances will fall to the experience and discretion of the building certifier.
What parts of an existing building need to be inspected?
Clause 143B of the EPA Regulation mandates which parts of an existing building "must" be inspected for the purposes of satisfying the inspection obligations. These comprise:
- the parts of the building affected by the development, and
- the egress routes from those parts of the building.
It is not entirely clear from the regulations whether and to what extent other parts of an existing building might also need to be inspected for the purposes of satisfying the duty to inspect, including those parts of a building not directly "affected by the development" or which do not form part of an "egress route".
Many fire safety issues not obvious upon routine inspection
For example, the Technical Guideline states that "escape routes will not need to be inspected if the proposed development involves only external changes". However, the reference to "any part of the building" in clause 143B of the EPA Regulation would appear to raise the inference that other parts of a building should, in certain circumstances, be inspected.
Certainly, where an issue is "obvious" on any view in terms of fire safety, then that would almost certainly trigger the obligation to report.
Conversely, many fire safety issues are not immediately obvious upon routine inspection. For example, inadequate fire separation issues and unsealed penetrations between building elements typically only become obvious when inspections are carried out in ceiling voids and cavities. Suffice to say, the regulations do not elaborate on the term "obvious" or the extent of inspections required.
What if building certifier fails to notify council of significant fire safety issues?
With significantly expanded reporting obligations for certifiers comes potentially greater liability. For example, liability may potentially arise in circumstances where the certifier:
- failed to identify a significant fire safety issue during his or her inspections of the building and consequently failed to notify
- identified a fire safety issue during his or her inspections of the building but incorrectly characterised the issue as "minor" and consequently failed to notify
- identified a significant fire safety issue during his or her inspections of the building but incorrectly assumed that the DA (or CDC) would rectify the issue, otherwise failed to check compliance before issuing the OC and failed to notify
A failure correctly to characterise a fire safety issue as "significant" will not necessarily result in a finding of negligence on the part of the certifier, but that is unlikely to prevent building certifiers from becoming embroiled in strata scheme disputes involving fire safety defects in the years ahead, whether as defendants or cross-defendants.
Building certifiers advised to be vigilant and err on the side of caution
Given the new obligations imposed on building certifiers, in effect, to identify and report on significant fire safety issues in existing development, coupled with the very general language of the obligations, certifiers would be well advised to adopt a vigilant approach to the new inspection protocols and, in every instance, err on the side of caution.
In short, if in doubt about whether a fire safety issue is or may be significant, the preferred course in most instances would be to report that issue to the relevant local council.
Councils will need to assess all notifications of significant fire safety issues carefully
The challenges faced by building certifiers will, in due course, become the challenge of local councils. Councils will be required to assess each and every notification received under clauses 129D or 162D of a significant fire safety issue and thereafter do one of the following:
- Decide that no action should 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.
Building certifiers understandably reluctant to accept increased potential liability
The public policy grounds underpinning the new amendments are well founded, insofar as there are limited options and limited resources available to local councils and the NSW Fire Brigade to identify physically and potentially remedy significant fire safety defects in existing development throughout NSW.
Being at the coal face of development, building certifiers are well placed to identify fire safety issues. However, what rightly concerns the certification community, particularly private certifiers, is the associated and potentially onerous liability that could flow from any failure to identify significant fire safety issues correctly.
The NSW Association of Accredited Certifiers has called on the Minister for Planning to repeal or amend these reforms to the EPA Regulation. Thus far, there is no indication from the Minister regarding whether the reforms will be revisited.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.