Technical Questions

What is the Annual Fire Safety Statement (AFSS)?

The Annual Fire Safety Statement known as AFSS for short, is an annual document that is required to be submitted to your local council in NSW as well as Fire Rescue NSW. 

The AFSS is filled out by the owners or owner’s agent as well as the Accredited Fire Safety Practitioner to ensure that the building has been assessed and is compliant with the regulations and legislation.

What are my obligations and responsibilities as the owner?

The owner’s obligation is to ensure that a competent person with the right accreditation has assessed your property to ensure that it is compliant.

Under Clause 89 of the Environmental Planning and Assessment (Dev Cert & Fire Safety) Regs 2021, it is the obligation of the owner to submit an AFSS on an annual basis. 

Within the legislation, ultimately, it is the owner’s responsibility to ensure that your building is fire protected. As your partners in fire safety we ensure that you are kept informed on the legislations and your obligations. 

88   Annual fire safety statement

(1)  An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that—

(a)  each essential fire safety measure specified in the statement has been assessed by an accredited practitioner (fire safety) as capable of performing—

(i)  for an essential fire safety measure specified in the fire safety schedule—to a standard no less than that specified in the schedule, or

(ii)  for an original measure within the meaning of section 81—to a standard no less than that to which the measure was originally designed and implemented, and

(b)  the building has been inspected by an accredited practitioner (fire safety) and was found, when it was inspected, to be in a condition that did not disclose grounds for a prosecution under Part 15.

(2)  A person must not issue an annual fire safety statement unless the assessment and inspection have been carried out within the previous 3 months.

(3)  The owner of the building may choose a person to carry out the assessment or inspection.

(4)  The person who carries out the assessment referred to in subsection (1)(a) must inspect and verify the performance of each essential fire safety measure being assessed.

Maximum penalty (subsection (4))—

(a)  for a corporation—300 penalty units, or

(b)  for an individual—150 penalty units.

How do I know if my building needs an AFSS?

87   Application of Part

This Part applies to all buildings, other than—

(a)  a class 1a or 10 building, or

(b)  a temporary structure.

Here’s a guideline on how to determine whether a building needs an Annual Fire Safety Statement:

Under Clause 87 of the Environmental Planning and Assessment (Dev Cert & Fire Safety) Regs 2021, buildings class 1a and 10 are exempted from the AFSS.

Class 1a: 

• Residential houses and separate dwellings
• Townhouses with walls on the site

Class 1b: 

• Unrelated people living in the same houses and sleeping overnight
• Boarding houses, group homes or refuges 

Class 2: 

• Units on top of each other as in a unit block or even if a granny flat is ontop of a main building

How do I know what classification my building is? 

To identify the building classification of your property, you can refer to the National Construction Code under Part A6

Class	Description	NCC Vol
1a	One or more buildings, which together form a single dwelling including the following:  (i) A detached house  (ii) One of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit	Volume 1 A6G2 (a)
1b	Class 1b is one or more buildings which together constitute –  (i) A boarding house, guest house, hostel or the like that –  (A) Would ordinarily accommodate not more than 12 people and (B) Have a total area of all floors not more than 300m2 (measured over the enclosing walls of the building or buildings) or  (ii) Four or more single dwellings located on one allotment and used for short-term holiday accommodation.	Volume 1 A6G2 (b)
2	(1) A class 2 building is a building containing two or more sole occupancy units. (2) Each sole occupancy unit in a class 2 building must be a separate dwelling.	Volume 1 A6G3
3	(1) A Class 3 building is a residential building providing long term or transient accommodation for a number of unrelated persons. (2) Class 3 buildings include the following:  (a) A boarding house, guest house, hostel, lodging house or backpacker accommodation. (b) A residential part of a hotel or motel. (c) A residential part of a school. (d) Accommodation for the aged, children or people with a disability. (e) A residential part of a health-care building which accommodates members of staff.  (f) A residential part of a detention centre. (g) A residential care building.	Volume 1 A6G4
4	A class 4 building is a dwelling in a class 5, 6, 7, 8 or 9 building if it is the only dwelling in the building.	Volume 1 A6G5
5	A class 5 building is an office building used for professional or commercial purposes.	Volume 1 A6G6
6	(1) A class 6 building is a shop or other building used for the sale of goods by retail or the supply of services direct to the public. (2) Class 6 buildings include the following: (a) An eating room, café, restaurant, milk or soft drink bar. (b) A dining room, bar area that is not an assembly building, shop or kiosk part of a hotel or motel. (c) A hairdresser’s or barber’s shop, public laundry or undertaker’s establishment. (d) A supermarket, sale room, showroom or service station.	Volume 1 A6G7
7a	(1) A class 7 building is a storage type building. (2) Class 7 includes the following sub-classifications:  (a) Class 7a – a carpark	Volume 1 A6G8
7b	(1) A class 7 building is a storage type building. (2) Class 7 includes the following sub-classifications:  (b) Class 7b – a building that is used for storage, or display of goods or produce for sale by wholesale.	Volume 1 A6G8
8	(1) A class 8 building is a process type building. (2) Class 8 buildings include the following:  (a) A laboratory (b) A building in which the production, assembling, altering, repairing, packing, finishing or cleaning of goods or produce for sale takes place.	Volume 1 A6G9
9a	(1) A class 9 building is a building of a public nature. (2) Class 9 includes the following sub-classifications:  (a) Class 9a – a healthcare building including any parts of the building set aside as laboratories, and includes a healthcare building used as a residential care building.	Volume 1 A6G10
9b	(b) Class 9b – an assembly building including a trade workshop or laboratory in a primary or secondary school.	Volume 1 A6G10
9c	(c) Class 9c – a residential care building.	Volume 1 A6G10
10a	(1) A class 10 building is a non-habitable building or structure.  (2) Class 10 includes the following sub-classifications: (a) Class 10a is a non-habitable building including a private garage, carport, shed or the like.	Volume 1 A6G11
10b	(b) Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like.	Volume 1 A6G11
10c	(c) Class 10c is a private bushfire shelter.	Volume 1 A6G11

What is the difference between Building Classification and Type of Construction?

Type of construction required 

Rise in storeys	Class of building 2, 3, 9	Class of building 5, 6, 7, 8
4 or more	A	A
3	A	B
2	B	C
1	C	C

Can I use a performance solution, if my building does not comply with the NCC?

A performance-based building solution may be used in lieu of Deemed-to-Satisfy provisions where the design of the building is not compatible with the Deemed-to-Satisfy provisions of the Building Code of Australia. As per the National Construction Code, under the increased and competent use of performance by the Australian Building Codes Board, “Practitioners can develop performance-based solutions to meet the performance requirements of the code” (ABCB, 2022).

Performance Solutions can be used for a number of reasons including:

Economic reasons: Using a more cost-effective alternative. For example, a building owner may want to avoid installing additional exit doors, as such they may choose to extend exit travel distances if they exceed the DTS provisions of D2D5 rather than installing additional doors and depending on the nature of the use of the buildings and occupants, this could be permitted (ABCB, 2022). 

Architectural design preferences: Producing a building with a unique or aesthetically pleasing façade. For example, a building owner could request a different and more modern design such as connecting multiple vertical floors of a high rise building which exceed the maximum atrium size, therefore a performance solution would be required with other fire safety measures.

Change of use: Where the owner wants to change the use of the building and the new use would not comply with the Deemed-to-Satisfy Provisions of the BCA. For example, if the owner wants to convert a commercial premesis to a childcare center. Rather than demolishing, the owner may implement a performance solution to achieve compliance due to the change of use and nature of occupants. (ABCB, 2022).

Performance issues: Where the building was already built years ago and does not comply with the Deemed-to-Satisfy Provisions. The building will need to undergo a Development Application. Instead of attempting to meet the current BCA Deemed-to-Satisfy provisions which may not meet the current requirements, a performance solution can be used. For example, an old building has hydrant system in accordance with Ordinance 70 standard, but this will not meet the current requirements for flow readings, therefore, a performance solution would need to be implemented. 

In NSW the following legislation applies to building compliance: 

• Home Building Act 1989
• Environmental Planning and Assessment Act 1979
• Environmental Planning and Assessment Regulations 2021
• Environmental planning and Assessment (Development Certification and Fire Safety) Regulations 2021

What is the National Construction Code and how is it given legal effect? 

The National Construction Code (NCC) is a performance-based code issued by the Australian Building Codes Board (ABCB), and is divided into 3 volumes, comprising of the following: 

1. Volume 1 referring to commercial and multi-residential buildings classified as 2 to 9
2. Volume 2 pertaining to sole occupancy residential buildings classed as 1 and 10

Collectively, Volume 1 and 2 form the Building Code of Australia. 

The Building Code of Australia is legislated under Clause 6.33 Regulations: Part 6 the Environmental Planning and Assessment Act 1979, where the requirements to comply with the provisions of the Building Code of Australia are highlighted. 

3. Volume 3 of the National Construction Code refers to the plumbing code of Australia and is legislated under the Plumbing and Drainage Act 2011, under Division 1, part 7. 

Can a building have multiple classifications?

A building can be multi-classed if it contains different portions with different uses and occupancies in accordance with the Building Code of Australia. 

For example, top shop housing has commercial shopping tenancies at the bottom and residential sole occupancy units situated on the upper levels. 

Where a portion of the building exceeds 10% of the total floor area, or where the use is not ancillary to the main purpose, it should have a different classification. 

In some instances, such as in a factory unit classed as a class 8 building with an office space classified as class 5 the building could be considered of a single classification depending on the use and the respective floor areas. 

Where the floor area of the office does not exceed 10%, it can be considered a part of the class 8 if it is used ancillary to the purpose of the factory, such as where the administrative staff may work. 

However, where the portion of the building is not ancillary to the use of the main building, it is important for each part to have different classifications so that each relevant part of the building is built adequately and in accordance with the use of that part as per the Building Code of Australia. 

Each building has different needs depending on the type of building, and the occupants using it. 

For example, residential buildings with sleeping occupants are at a higher risk during a fire event in comparison to office workers at work. 

Therefore, there may be additional fire safety measures required for the residential part of the building. 

Additionally, if there is a class 4 portion of the building where there are sleeping occupants, despite the 10% rule, this part should be classified independently. 

Do I need approval for building work? 

The way to determine if you need approval for building work is by reviewing the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. This is the legislation that outlines whether you require approval or if you are exempt in NSW. A registered building certifier can guide you through the process, analyse the proposed work and let you know the most cost effective and fastest pathway to start your building work! 

What is the difference between a DA and CDC? 

When you are looking to build a new home or undertake a major renovation, you are generally presented with two options for getting your plans approved: Development Application (DA) or Complying Development Certificate (CDC). While each option presents its own pros and cons, the two main differences between these are: 

1.      Speed of approval, and 

2.      Level of plan flexibility.

Either way, a DA or CDC must be lodged and have approval granted before any building work can commence on your project. 

Development Application

This process consists of two stages: 

The planning stage: 

A Development Application (DA) is submitted through your local council. The specific controls for a DA may vary, depending on the local council your block resides in, and will be outlined council’s Development Control Plan (DCP) and Local Environmental Plan (LEP). 

At the application lodgement stage, council’s team will ensure you’ve supplied the correct documentation, request any additional required information, notify neighbours (and the community, where applicable), and engage internal or external expert referrals. You will also be allocated an assessment officer as a main point of contact for your DA.     

The assessment stage will directly follow, where council will review all documentation within your application and assess each element against their DCP and LEP. There is typically a margin of leniency incorporated into council’s development controls, and any specific elements of your design that fall outside of these parameters will be assessed on merit. This level of flexibility is the key advantage of taking the DA approval pathway versus CDC.  

At the determination (or decision) stage, there can be three outcomes:

Development Consent – granted (as is, or with conditions)

DA Refusal – with reasons outlined, or

Deferred Commencement Consent – that is, a consent not operating until one or more important matters are resolved. This is not a common outcome. 

Building Assessment: 

After consent has been granted, the final stage is gaining a Construction Certificate, which must be received before any building commences. 

The Construction Certificate is issued by your Private Certifier (PCA). The PCA assesses your building against the Building Code of Australia and ensures that Council’s list of DA Conditions are complied with throughout the construction process. 

The entire DA process takes anywhere from 3 months on average. In general, the clearer and more detailed your initial documentation, the faster the process may be. If council needs to “stop the clock” to request and await further information, or if changes need to be made to your plans, additional time will be added to the approval process.