Legal Insights

The new Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 in NSW

By Blake Dyer & Susanne Rakoczy

• 23 March 2022 • 5 min read
  • Share

Following a review in 2021, the (now) NSW Department of Planning and Environment committed to simplifying the Environmental Planning and Assessment Regulation 2000 (NSW). As part of this, the provisions for fire safety, building regulation and certification that were previously contained in the Environmental Planning and Assessment Regulation 2000 (NSW), have now been included in the new Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 which commenced on 1 March 2022.

The New Regulation covers building and subdivision certification namely:

(a) certification of development for the purposes of the Environmental Planning and Assessment Act 1979 including compliance certificates, construction certificates, subdivision works certificates, occupation certificates and subdivision certificates

(b) fire safety of buildings and obligations on persons relating to fire and building safety

(c) other minor related matters.

The provisions moved from the Environmental Planning and Assessment Regulation 2000 (NSW) to the New Regulation are largely unchanged, however some changes of interest are:

Regulation

Change

1

Clause 146B

Deals with the compliance with fire safety plans on a construction certificate for building work. This provisions has been moved to section 22 of the New Regulations. Although some private certifiers had requested that the existing clause 146B be amended to remove the option to submit fire services plans and endorsements after a Construction Certificate had been issued, new section 22 still allows this to occur.

2

Clauses 152 and 152A

These provisions relate to the Fire Commissioner reports and have been moved to sections 50 and 51 in the New Regulations.

3

Clauses 152B (performance solution reports) and 153 (fire safety certificates)

Have been moved to sections 40 and 41 in the New Regulations respectively. The required scope of the final fire safety certificate is still unclear when the scope of works relates to part of a building or an alteration to part of an existing building.

4

Clause 164B

Details the exemption to the Building Code of Australia standards for fire safety building work and has been moved to section 74 of the New Regulations. Interestingly, the langue former clause 164B(2) has been entirely retained in despite claims by private certifiers that the provision may have been misused by consultants to seek the adoption of all existing major fire safety systems in existing buildings that do not meet current Building Code of Australia adopted standards, rather than for a specific noncompliant “component” of one fire safety system.

5

Clause 166

This provision is now found in section 79(4) and section 175 for the New Regulation that deals with the annual fire safety statement and former clause 176 dealing with the issue of annual fire safety statements has been combined into section 88 of the New Regulation.

6

Clauses 178 and 179

These provisions detail supplementary fire safety statements and the issue of supplementary fire safety statements, and have been combined into section 90 of the New Regulation.

7.

Clause 182

This provision which requires essential fire safety measures to be maintained, is now in section 81 of the New Regulation and carries a fine of 600 penalty units for a corporation or 300 for an individual, with the former Division 7 offences now listed in Division 3, Part 15, sections 108 and 109 of the New Regulation.

Omissions from the Environmental Planning and Assessment Regulation 2000 (NSW) that were not carried through to the New Regulation are:

  • Former clause 167, which deals with fire safety provisions for part applications, was not replicated in the New Regulation as they now identify the application of that provision to certain building types in each applicable section, making it easier to understand the compliance for certain building types.
  • The requirement for fire sprinklers in certain residential aged care facilities, former Division 7B of Part 9, was not replicated in the New Regulation as the date for installation has passed and the program is complete.
  • Former clause 190 which dealt with offences relating to certain Crown property has not been included in the New Regulation. This is because s 9.35 of the Environmental Planning and Assessment Act 1979 (NSW) limits the issuing of development control orders to certain property of the Crown. The technical provisions of the State’s building laws for development by the Crown (clause 227) has also been omitted, because s 6.28 of the Environmental Planning and Assessment Act 1979 (NSW) now refers to the Building Code of Australia.

The table produced by the NSW Department of Planning and Environment contains helpful and relevant details.

The New Regulation commenced on 1 March 2022.

It is important that councils and Developers are across the changes and to ensure compliance with the New Regulation.

Want to ensure you are complying with the New Regulations or have questions?

Get in touch with our NSW Planning & Environment team

By Blake Dyer & Susanne Rakoczy

  • Share

Related articles

Online Access