17 Mar Practice Note #23-2018- Maintenance of Essential Safety Measures
This practice note updates the previous practice note 2016-23 issued February 2016.
An essential safety measure includes an item required to be specified by the Relevant Building Surveyor (RBS) under Regulation 194 and Part 15 that is provided in a building or place of public entertainment for the health and safety of occupants. The term ‘essential safety measure’ is defined in Regulation 214 and provides that an essential safety measure (ESM) includes a safety measure as specified in Schedule 8, together with any other item required by the Act or the Regulations to be provided for the safety of people in the event of firethat the RBS has designated as an ESM. (For example, a requirement of an Emergency or Building Order.)The definition includes those ESMs provided for in the revoked Building Interim Regulations 2017 and all other measures for people safety in the Act or previous Acts before 1 July 1994.
Scope of the maintenance regulations
Where an Occupancy Permitis required, Regulations 194, 195and 196set out the provisions to specify all ESMs with performance, frequency and type of inspection, testing and maintenance for Class 1b, 2, 3, 5, 6, 7, 8 or 9 buildings and a class 4 part of a buildingand a place of public entertainment. The maintenance provisions of Part 15 of the Regulations are divided into two Divisions. Division 1 Sets out the requirements for maintenance of ESMs and Division 2 Sets out the requirements for maintenance of exits and paths of travel relating to buildings or places of public entertainment which applies to all building Classes except Class 1a, 4 (parts) and 10 buildings.
Application and definitions
Subdivision 1– Outlines that the maintenance provisions apply to Class 1b, 2, 3, 5, 6, 7, 8 and 9 buildings and a class 4 part of a building and a place of public entertainment. Division 1 does not apply to smoke alarms installed in sole-occupancy units in a Class 1b, 2, or Class 4 part of a building.
Subdivision 3– Outlines the requirements for the RBS to prepare or update the maintenance schedule for an existing building or place of public entertainment.The regulation applies to a building or place where an ESM is required to be provided or altered by –
(a)a condition on an occupancy permit; or
(b)a maintenance or a maintenance determination.
Note- The Regulations do not apply to Federal Government land such as airports and telephone exchanges.
Subdivision 2 – Maintenance determinations in building and places of public entertainment
Regulation 194 requires the RBS issuing an Occupancy Permit (OP) to include a condition which:
- lists all the essential safety measures pertaining to that building or place of public entertainment; and
- specifies for each essential safety measure listed, the level of performance determined by the RBS to enable the essential safety measure to fulfil its purpose.
In determining the level of performance for each essential safety measure, regulation 194 (2) also requires the RBS to specify the provision of the Regulations with which the installation and operation of the ESM is to comply and the frequency and type of maintenance required.
Regulation 215 states that where an ESM is provided as a result of:
- an emergency order or a building order; or
- the carrying out of building work where an OP is not required to be issued (i.e. when a Certificate of Final Inspection [CFI] is issued);
- the RBS must decide, and provide in writing the level of performance required to enable the ESM to fulfil its purpose and the frequency and type of maintenance required.
This decision by the RBS must be documented and given to the owner of the building or place of public entertainment and is known as a maintenance determination.
Reg 216 requires the owner to comply with maintenance determination.
Regulation 217 allows the option of compliance with AS 1851-2012 in lieu of the specified maintenance standard. The owner may comply with AS 1851—2012 in relation to ESMs that must be maintained in accordance with ‘AS 1851—2005 Maintenance of Fire Protection Systems and Equipment’ or an equivalent standard published before 5 September 2005, instead of the frequency and type of maintenance specified in the relevant OP or maintenance determination.
Note: The specified nature of test or inspection is not to beautomatically substituted with AS 1851–2012 in accordance with regulation 216 where an earlier maintenance standard or unique methodology specified, forms part of a performance solution (or alternative solution) relating to a fire performance requirement as defined in regulation 5 of the Building Regulations 2018.
Capturing requirements of Performance Solutions
Maintenance requirements of essential safety measures
Documentation of the RBS determination
Consolidation of maintenance determination
Updating maintenance schedules
Division 2 –Maintenance of exists and paths of travel for building and places of public entertainment
Inspections and enforcement
- Division 1 regulations;216(2), 218, 223(1) 223(2), 225, 226and 227, and
- Division 2 regulation 228.
To determine whether ESMs are performing and being maintained, and records of maintenance are being kept in accordance with the Act or the Regulations, an inspection may be carried out under section 227E of the Act by the chief officer and MBS either jointly or separately. The chief officer must report to the MBS within 5 business days and the MBS must report to the building owner within 10 business days regarding the inspection.
A building infringement notice may be issued as a consequence of this inspection. A building infringement notice must be issued in accordance with the Infringements Act 2006. Following inspection, the MBS may also determine it is appropriate take further enforcement action under Part 8 of the Act to enforce building standards. Such action may include the serving of an Emergency Order if appropriate or serving a Building Notice and Building Order as necessary.
Enforcement action can be taken by the MBS if they determine there is a danger to life or property, or the use contravenes the Act or Regulations. Enforcement action may be taken against the owner or occupier (exits and path of travel to and from exits) and could include, evacuation and prohibiting the use of the building, or may require certain improvement work to be undertaken to satisfy safety expectations. If the owner fails to carry out work asordered by the MBS, the MBS can cause work to be carried out and recover costs from the owner in court.
Also, the MBS can waive or enforce the requirement to obtain a building permit for works subject to an order. However, whether a building permit is obtained or not a maintenance determination is required under regulation 215to capture ESMs and maintenance requirements.
Offences under Division 1
Failure to maintain an ESM to the required standard is an offence under Section 40 of the Building Act 1993 and or regulation 216as applicable and Part 15 of the Regulations. Failing to complete the required documentation constitutes an offence under regulations 216, 223, 225, 226 and 227. This may include:
- comply with a maintenance determination;
- complete an annual ESM report (in accordance with regulation 224) within 28 days before each anniversary of the OP or RBS’s determination
- ensure that an annual ESM report is prepared for a building or place of public entertainment constructed before 1 July 1994 within 28 days before 13 June 2018
- make all annual ESM reports, maintenance schedules, maintenance determinations and the records of all inspections, testing and maintenance (including repairs) available for inspection within 24 hours after a request from the MBS or Chief Officer;
- maintain any required ESM in a state that allows it to fulfill its purpose;
- it is also an offence to remove any required ESM from its approved location (unless for inspection, testing or maintenance).
These offences relate to the building owner.
Offences under Division 2
Failure to ensure that exits and paths of travel to exits, including paths of travel from the building or place to a road are maintained and kept readily accessible, functional and clear of obstruction so that egress from the building or place is maintained constitutes an offence under Regulation 228. An infringement notice issued under this division is issued to the occupier, however does not prevent infringement notices being issued on the owner for similar issues under division 1.
Part 15 of the regulations places direct responsibility on the owner to ensure that the maintenance of ESMs required for their buildingor place is carried out, and that appropriate records of maintenance, service and repair work are kept. These records provide the necessary information to allow the annual ESM report to be completed, as required by Division 1. Regulation 224 stipulates the content requirements of the annual ESMs report including:
- the approved form of the report;•be signed by the owner
- the address of the building or place of public entertainment it relates to;
- details of any inspection report made under section 227E of the Act in respect of each ESM; and
The owner needs to ensure that:
- there have been no penetrations to required fire-resisting construction, smoke curtains and the like in the building or place, other than those for which a building permit has been issued, and
- that there have been no changes to materials or assemblies that must comply with particular fire hazard properties, other than those for which a building permit has been issued, and
- that the information contained in the report is correct
Refer to pages 2& 6 of this Practice Note for the requirements to adopt AS 1851-2012 in lieu of the standard nominated on the maintenance determination. Some owners engage an agent to organise the carrying out inspections and testing by competent persons or to complete the annual ESM report on the owner’s behalf. Owner agents are typically building or facility managers. However, the owner can appoint an agent. In this case the law dealing with ‘agency’ applies, and it is prudent that the correct written authority is provided by the owner, including any limitations of that authority, when providing documentation.
Regulation 225 requiresthat owners must make the annual report and maintenance records available within 24 hours’ notice from the MBS or the Chief Officer. Note that this does not affect the requirement to display an OP in accordance with regulation 197.
Engaging competent persons
It is important that the owner of the building/place or their appointed agent can demonstrate that the individuals engaged to undertake maintenance activities are competent to perform the functions they have been contracted to complete.
A competent person can be defined as:
“A person who has acquired through training, qualification, experience, or a combination of these, the knowledge and skill enabling them to correctly perform the required task.”
A relevant Building Practitioner VBA registration is valid demonstration of competence for some wet fire protection system maintenance activities.Additionally, evidence of competency can be demonstrated by participation in recognised industry accreditation schemes that have been established to independently assess competence in activities associated with ESMs relating to fire protection.