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NSW reforms: Frequently Asked Questions

 

Q1: What are the new reforms?

 

A: In July the New South Wales Government announced a series of reforms to fire safety regulation and certification, developed following recommendations made by the independent Lambert Review. The Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 represents the first stage of reforms. You can read more about the reforms and obtain the new regulations here.

 

 

Q2: When do the new Regulations come into force?

 

A: The new Regulations came into force on 1 October 2017.

 

 

Q3: What is this new term 'competent fire safety practitioner' (CFSP)?

 

A: 'Competent fire safety practitioner' (CFSP) is a new term in the Environmental Planning and Assessment Amendment (Fire Safety and Building Certification) Regulation 2017 (the Regulation). In this first stage of reform, in some instances, it replaces the term 'properly qualified person' previously referred to in the Environmental Planning and Assessment Regulation 2000, and is also referenced in relation to fire safety design work.

 

The previous term 'properly qualified person' was not defined, but implied that an individual must hold a qualification to conduct an associated task. A key aspect of the reforms is to recognise that only competent individuals should perform certain tasks regarding fire safety, and that a qualification alone is not the only acceptable method of demonstrating competency.

 

 

Q4: What tasks require a 'competent fire safety practitioner' (CFSP) under the amended Regulation?

 

A: The table below provides an indication of the tasks required to be performed by a CFSP under the amended Regulation.

 

Task

CFSP Required by New Regulation?

Develop a performance solution under the Building Code of Australia.

YES
(Including the need to be a fire safety engineer in some instances - see clause 130(5)).

Preparation of plans and specifications for installation (system design), extension or modification of a 'relevant fire safety system' (see Q5 below).

YES
Unless the plans and specifications have been certified by a compliance certificate referred to in section 109C(1)(a) of the Act as complying with the relevant provisions of the Building Code of Australia.

Application to exempt compliance of a relevant fire safety system (see Q5 below).

YES
A CFSP who did not prepare the plans or specifications must endorse the proposed non-compliance before a certifying authority can provide exemption.

Assessment of essential fire safety measure performance for the purpose of an Annual Fire Safety Statement (fire safety assessment).

YES
(Note: Clause 176(3) of the Regulation requires an assessment to inspect and verify the performance of each fire safety measure being assessed. This is separate to inspection for the purpose of routine service).

Assessment of essential fire safety measure performance for the purpose of a supplementary fire safety statement (fire safety assessment).

Preparation of a final fire safety certificate (system certification).

NO
(Requirement to use a 'properly qualified person' remains).

Preparation of an interim fire safety certificate (system certification).

NO
(Requirement to use a 'properly qualified person' remains).

Undertaking routine service (inspect, test and preventative maintenance).

NO
(No current provisions).

 

FPA Australia anticipates that future stages of the reform will require a 'competent fire safety practitioner' (CFSP) to be engaged to perform system certification and routine servicing tasks. However this is subject to further regulatory change.

 

 

Q5: The amended Regulation refers to a 'relevant fire safety system'; what is this?

 

A: A 'relevant fire safety system' is defined under the amended Regulation as meaning any of the following:

 

(a) A hydraulic fire safety system within the meaning of clause 165. Clause 165 defines a hydraulic fire safety system as;

 

(i) A fire hydrant system;
(ii) A fire hose reel system;
(iii) A sprinkler system (including wall-wetting sprinkler or drencher system); or
(iv) Any type of automatic fire suppression system of a hydraulic nature installed in accordance with a requirement of, or under, the Act or any other Act or law (including an order or a condition of an approval or some other sort of authorisation).

 

(b) A fire detection and alarm system; or

 

(c) A mechanical ducted smoke control system.

 

This term 'relevant fire safety system' is only referenced in relation to planning and specification design activities, not annual or supplementary fire safety statements, or final or interim fire safety certificates.

 

 

Q6: Is 'competent fire safety practitioner' (CFSP) defined?

 

A: Yes.

 

A new clause 167A confirms that government can recognise a class of persons as 'competent fire safety practitioners' for the purposes of one or more provisions of the Regulation. The classes of persons are not limited, so government can recognise any demonstration of competency that it chooses. However, the Regulation identifies that these classes may include:

 

(a) A class of person holding a specified category of certificate of accreditation under the Building Professionals Act 2005;

 

(b) A class of persons holding a specified category of certificate of accreditation under the Building Professionals Act 2005 and having some other characteristic or qualification; or

 

(c) A class of persons who have undergone particular training or assessment carried out by a specified professional organisation or body or an industry organisation or body.

 

FPA Australia's Fire Protection Accreditation Scheme (FPAS) is intended to satisfy the requirements of (c).

 

Recognition of a class of persons as 'competent fire safety practitioners' will be via publication in the government Gazette by the Secretary of the Department of Finance.

 

 

Q7: What needs to be recognised? An industry scheme, or an individual?

 

A: Both.

 

The new regulatory provisions for 'competent fire safety practitioner' (CFSP) allow the NSW Government to recognise existing government accreditations, but also appropriate industry schemes that accredit individuals as CFSPs. This mechanism is referred to as a co-regulatory accreditation framework and will be administered by the NSW Department of Finance, Services and Innovation (DFSI).

 

Once the industry schemes are developed and recognised by government, individuals will have to be accredited by such schemes to act as CFSPs unless they have a relevant existing government accreditation as referenced in clause 167A for the task they perform.

 

 

Q8: Have any industry schemes been recognised yet?

 

A: No.

 

DFSI has prepared a document outlining the NSW Government's expectations of the rigour that industry bodies must demonstrate regarding their scheme and their ability to administer it, in order to be considered for recognition under clause 167A. It is expected that FPAS will be recognised, following government assessment of the scheme.

 

 

Q9: How do I demonstrate I'm a CFSP prior to recognition of an industry accreditation scheme for:

 

(a)      Design work?

 

A: Between 1 October and recognition of an accreditation scheme, the NSW Government has advised the relevant certifying authority or principal certifying authority to satisfy themselves that the fire protection practitioners from whom they accept designs of relevant fire safety systems are competent.

 

The NSW government has published a fact sheet about the changes (available here) and a guideline about how to select a CFSP during this transitional period, which includes a template form for fire protection practitioners to submit to certifying authorities to demonstrate competence. The guideline is available here.

 

FPA Australia contends that the FPAS Fire Systems Design class of accreditation, which is currently available, is an appropriate recognition of competency despite it not yet being formally recognised by the NSW Government.

 

(b)     The assessment of essential fire safety measures?

 

A: Between 1 October and recognition of an accreditation scheme, the NSW Government has advised building owners to satisfy themselves that the fire protection practitioners they select are competent.

 

As mentioned above, the requirements before the reforms required fire safety statements to be prepared by a 'properly qualified person', without guidance on how this was determined. Diligent practitioners may not therefore have to make any changes prior to an accreditation scheme being recognised, if they can satisfy their customers that they are competent.

 

FPA Australia has launched the Interim Fire Safety Assessor Register, which connects building owners and industry looking for assistance in preparing Annual or Supplementary Fire Safety Statements with FPA Australia Corporate members who currently do this work in NSW.

 

Companies and individual practitioners listed on the Register have demonstrated/declared to FPA Australia that:

 

  1. The individual listed is employed by an FPA Australia Corporate member and has a minimum of three years' experience in undertaking inspections/assessments for the purpose of completing Annual and Supplementary Fire Safety Statements in NSW;
  2. The individual listed is covered by Public and Product Liability Insurance ($10m minimum) and Professional Indemnity Insurance ($2m minimum);
  3. They have read and agreed to abide by the FPA Australia Code of Practice for companies, and Code of Professional Conduct for individuals;
  4. They have committed to undertake all assessment of essential fire safety measures in accordance with the relevant regulations, Codes and Australian Standards;
  5. They hold or have access to current and historical Standards and Codes for the essential fire safety measures that they assess; and
  6. That they are committed to applying for accreditation in the FPAS Fire Safety Assessor class within 90 days of it becoming available.

 

The Interim Fire Safety Assessor Register is available here.

 

The NSW government has also published a fact sheet about the changes (available here) and a guideline about how to select a CFSP during this transitional period, which includes a template form for fire protection practitioners to submit to building owners/managers/agents to demonstrate competence. The guideline is available here.

 

FPA Australia has recommended to government that an appropriate transition period is provided between when an industry scheme is recognised and when individuals acting as a 'competent fire safety practitioner' (CFSP) must be accredited by such a scheme.

 

 

Q10: Will FPAS be recognised by the reforms?

 

A: Fire protection design work for fire sprinklers, fire hydrants and fire detection and alarm systems is already covered by the FPAS Fire Systems Design class of accreditation. FPA Australia is applying to have this class of FPAS recognised under the amended Regulation.

 

The Association is also developing a new class of accreditation to be known as Fire Safety Assessor, which is tailored to fit the new regulatory requirements for professionals conducting assessments for the purposes of Annual and Supplementary Fire Safety Statements (see Regulation 175).

 

These two classes of accreditation will address the requirements under the Regulation, and we are confident FPAS will meet the co-regulatory accreditation framework requirements for recognition of industry accreditation schemes.

 

We are aware that there is already an increasing demand from building owners and certifying authorities for accreditation of practitioners as a ready means to demonstrate competence for these tasks.

 

 

Q11: When will FPAS accreditation be available?

 

(a)     Fire Systems Design

 

A: The Fire Systems Design class of accreditation is already available. It is yet to be recognised by the NSW Government (see Q10), but FPA Australia has applied for the class to be recognised and is confident it will be.

 

Individuals currently accredited under this class of FPAS should therefore be considered competent.

 

Find out more here.

 

(b)     Fire Safety Assessor

 

A: The Fire Safety Assessor class of accreditation is nearing completion now. To register your interest please fill out this online form, and we will keep you up to date as it develops.

 

In the interim, FPA Australia has launched the Interim Fire Safety Assessor Register to connect building owners and industry looking for assistance in preparing Annual or Supplementary Fire Safety Statements with FPA Australia Corporate members who currently do this work.

 

(c)      Other classes of accreditation

 

A: FPAS accreditation is also currently available for Fire Systems Certification and Inspect and Test roles, which FPA Australia expect to be recognised in future stages of the NSW reforms.

 

 

Q12: Can a building owner demand FPAS accreditation now?

 

As building owners are now required to satisfy themselves that practitioners are competent, they may ask for FPAS accreditation.

 

The Fire Protection Accreditation Scheme (FPAS) is accepted by many in the construction and real estate industries as recognition of competence, and the Association believes that it is the best available option for practitioners, building owners and certifying authorities alike.

 

(a)      Design work

 

A: The FPAS Fire Systems Design class of accreditation is already available. Prior to the NSW Government recognising an industry accreditation scheme, building owners may choose to look for individuals holding the FPAS Fire Systems Design class of accreditation for this work.

 

You can learn more about the class and find a list of accredited individuals here.

 

(b)     The assessment of essential fire safety measures

 

A: As the FPAS accreditation category for Fire Safety Assessor has not yet been launched, it is not possible to support such a request. This is why the government has recognised that interim arrangements are necessary and has advised that they will publish a guideline.

 

FPA Australia has published an interim list of individuals as outlined in response to Q9 above.

 

However, FPA Australia recommends that building owners can request FPAS Inspect and Test accredited practitioners to undertake inspect and test tasks on their building for the purpose of routine service. The results and records of these routine service activities should be considered by an individual undertaking assessments for an Annual or Supplementary Fire Safety Statement.

 

Owners may, as they have been able to in the past, demand evidence of a practitioner's skills, knowledge and experience to undertake Annual or Supplementary Fire Safety Statement assessments.

 

FPA Australia also recommends owners seek appropriate PL and PI insurances, and ask questions regarding the training and accreditation that practitioners have undertaken in order to help demonstrate their competence.

 

 

Q13: Why am I being asked to justify my competence all of a sudden?

 

A: There has always been a requirement to be competent. However, the new Regulation now requires building owners and relevant or principal certifying authorities to provide details of and sign-off on the 'competent fire safety practitioner' for both Annual and Supplementary Fire Safety Statements and design of relevant fire safety systems. The NSW Government has developed new forms for these statements, which are available here.

 

The Regulation requires owners and certifying authorities to provide a written opinion that the practitioner they have used is competent, prior to recognition of industry schemes. Clearly, with this requirement prudent owners and certifying authorities will request proof of competence.

 

 

Q14: Can I continue to operate now without any form of accreditation?

 

A: Yes, as per clause 167A of the amended regulation:

 

(i) Subject to you satisfying the relevant certifying authority or principal certifying authority of your competence, and them providing a written opinion that you are competent to perform the fire system design and certification functions under relevant regulation clauses (130, 136AA, 144A, 146B and 164B) required to be undertaken by a competent fire safety practitioner; or

 

(ii) Subject to you satisfying the relevant building owner of your competence, and them providing a written opinion that you are competent to perform the Annual or Supplementary Fire Safety Statement assessment functions under Divisions 4 and 5 of Part 9 of the regulations required to be undertaken by a competent fire safety practitioner.

 

 

Q15: I'm a designer of 'relevant fire safety systems'. What does FPA Australia recommend I do?

 

A: FPA Australia recommends you apply for FPAS accreditation in the Fire Systems Design class for your competency to be independently recognised. Click here to learn more.

 

 

Q16: I'm a certifying authority approving a building that requires installation of a 'relevant fire safety system'. What does FPA Australia recommend I do to determine the designer is competent?

 

A: FPA Australia recommends you ask the designer if they are accredited under FPAS in the category of Fire Systems Design for the system they are designing. Click here to learn more.

 

 

Q17: I'm a person who assesses essential fire safety systems. What does FPA Australia recommend I do?

 

A: FPA Australia recommends you submit an application to be listed on the Interim Fire Safety Assessor Register, and submit an expression of interest form for the FPAS Fire Safety Assessor class of accreditation.

 

 

Q18: I'm a building owner looking for someone to assess essential fire safety systems. What does FPA Australia recommend I do?

 

A: We recommend you check the Interim Fire Safety Assessor Register for a registered practitioner near you.

 

From 1 December, you will also need to submit Annual and Supplementary Fire Safety Statements using the new form required by the NSW Government, available here. FPA Australia advises that fire safety practitioners are not required to sign these forms on behalf of owners or as an owner's agent (Section 6 or 7 for Fire Safety Certificates and Section 7 or 8 for Fire Safety Statements). This remains the responsibility of the owner or a managing agent appointed to act on their behalf.

 

 

Q19: I'm an inspect and test technician for the purpose of routine service. What does FPA Australia recommend I do?

 

A: We recommend you apply for the FPAS Inspect and Test class of accreditation.

 

 

Q20: I'm an owner looking for technicians to undertake inspect and test work (routine service) activities on my building. What does FPA Australia recommend I do?

 

A: We recommend you check the FPAS Inspect and Test page to find a recognised business or individual with this class of accreditation.

 

 

Q21: I'm a system certifier for the purpose of Final and Interim Fire Safety Certificates. What does FPA Australia recommend I do?

 

A: We recommend you apply for the FPAS Fire Systems Certification class of accreditation.

 

From 1 December, you will also need to submit Final and Interim Fire Safety Certificates using the new form required by the NSW Government, available here. FPA Australia advises that fire safety practitioners are not required to sign these forms on behalf of owners or as an owner's agent (Section 6 or 7 for Fire Safety Certificates and Section 7 or 8 for Fire Safety Statements). This remains the responsibility of the owner or a managing agent appointed to act on their behalf.

 

 

Q22: I'm a certifying authority approving occupation of a building. Who should I accept Final or Interim Fire Safety Certificates from?

 

A: We recommend you check for the FPAS Fire Systems Certification page to find an individual with this class of accreditation. As in Question 21, ensure Final and Interim Fire Safety Certificates are using the new form.