DFES preamble

Under current emergency services legislation the FES Commissioner has powers to support the prevention of unplanned fire and protect life and property from fire [1].

Through its Built Environment Branch the Department of Fire and Emergency Services (DFES) provides advice to building surveyors and other fire safety practitioners to make sure plans for new buildings meet the fire safety requirements set out in the Building Code of Australia (BCA) and other relevant standards and legislation. In addition, DFES’s staff have the power to undertake inspections of specified buildings in respect to potential danger to life or property from fire or hazardous materials [2].

A number of issues have been identified with regard to the current legislation and the provisions around building safety in relation to fire and other hazards as well as the safety of firefighters.

 


 

6.1 FES COMMISSIONER’S POWERS AT THE BUILDING PERMIT APPLICATION STAGE

Currently, as part of the approval process for certain building permits, under the Building Regulations 2012 (Building Regulations) plans and specifications must be submitted to DFES. DFES uses the detailed plans to offer advice and provide an assessment of compliance with DFES operational requirements. There is no legislative imperative for this advice to be followed and concerns have been raised where local government, owners and surveyors depart from this advice.

Under r 15A of the Building Regulations, the registered building surveyor signing the Certificate of Design Compliance must provide DFES with a notification in writing of any part of the advice that is not incorporated within the plans and specifications. The reasons for not incorporating the advice must also be provided.  Stakeholders noted that there is no penalty for failing to comply with r 15A of the Building Regulations.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

6.1.1 DFES continues to have an advisory only role

AVBFB comments:

The Association acknowledges the high value of a FES Commissioner maintaining an advisory role in the approval of building permits, particularly in the area of prevention, and therefore supports this option.

Also, it is noted that none of the three options proposed addresses the observation in the preamble that there is no penalty for failure to comply with r15A of the Building Regulations.

OTHER OPTIONS NOT SUPPORTED

6.1.2 The FES Commissioner’s approval is required prior to a permit being issued for certain prescribed types of premises

6.1.3 DFES does not have any direct role in the Permit Application

 


 

6.2 REQUIREMENT FOR FES COMMISSIONER APPROVAL PRIOR TO THE ISSUE OF AN OCCUPANCY CERTIFICATE

There are no provisions within the emergency services legislation or the building legislation which allow the FES Commissioner to prevent the issue of an occupancy certificate.

Stakeholders raised concern in relation to the different types of buildings and their use that may pose a higher risk to users or occupants, in particular, very large public use facilities and residential facilities housing vulnerable people. There have been suggestions that the FES Commissioner should be able to prevent occupation of certain types of buildings if they pose a fire safety risk, or do not meet the approved building plans or DFES operational requirements.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

6.2.1 The FES Commissioner is not able to prevent the issue of an occupancy certificate

AVBFB comments:

The Association supports the DFES preference to not unnecessarily increase the workload of the Department.

OTHER OPTIONS NOT SUPPORTED

6.2.2 The FES Commissioner is empowered to prevent the issue of an occupancy certificate for prescribed types of premises if the premises do not meet the requirements of the approved building plan and building permit in respect of fire safety

6.2.3 The FES Commissioner is empowered to prevent the issue of an occupancy certificate if any premises do not meet the requirements of the approved building plan and building permit in respect of fire safety

 


 

6.3 THE FES COMMISSIONER’S POWERS OF INSPECTION

Section 33(1)(e) of the Fire Brigades Act provides that the FES Commissioner and authorised staff:

‘shall at all reasonable times have free access to any premises, and if in his opinion there exists in or on any premises any potential danger to life or property from fire or hazardous materials, he may direct or order the owner or occupier of such premises to abate such danger within reasonable time, as named in the requisition’.

‘Premises’ is defined in s 4 of the Fire Brigades Act as ‘includes any building, structure, erection, vessel, wharf, jetty, land or other premises’. Unless otherwise stated, premises will have this meaning.

Any reference to Classes of buildings means the Classes as set out in the Building Code of Australia. Class 1a is defined as follows:

‘Class 1: one or more buildings which in association constitute-

(a) Class 1a – a single dwelling being-

(i) a detached house; or

(ii) one 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’

Whilst it is not intended that DFES will have a general power to inspect Class 1a dwellings, it will still be necessary for DFES to enter any premises, including Class 1a dwellings if it is informed of a potential danger to life or property within that building.

DFES PREFERRED OPTION

6.3.1 The FES Commissioner may inspect premises and take certain action if there is potential danger to life or property from a hazard that DFES is responsible for or due to a failure to meet DFES operational requirements

AVBFB PREFERRED OPTION

6.3.2 The FES Commissioner’s powers of inspection remain unchanged

AVBFB comments:

The Association is wary of vague, non-specific language with regard to potential future legislation. The AVBFB therefore cannot endorse the DFES preferred option due to the lack of precision inherent in the phrase “or due to a failure to meet DFES operational requirements”.

Without more detailed explanation or actual draft legislation being made available, the proposal to increase the opportunity for a Commissioner (or any government officer for that matter) to enter and inspect premises must always be embraced with caution. While the AVBFB has confidence that this proposal is totally void of malice, any perception that greater powers than absolutely necessary are being sought has the potential to damage the well-earned support WA’s emergency service personnel continue to enjoy.

6.3.3 There is a separate power to inspect certain premises for specific purposes prior to an occupancy certificate being issued

 


 

6.4 REQUIREMENTS FOR OWNER/OCCUPIER TO TAKE CERTAIN STEPS

Section 25A of the Fire Brigades Act provides that the FES Commissioner may provide notice in writing to an owner/occupier requiring the installation and provision of certain firefighting appliances. This section is limiting in that the remedial action required is in relation to equipment, apparatus and appliances only.

The current position as per s 25A(2) of the Fire Brigades Act excludes private dwelling houses, designed for the use and occupation of one family, from the definition of premises in respect of this particular power.

As outlined previously, s 33(1)(e) of the Fire Brigades Act provides the FES Commissioner and authorised staff with certain powers to access any premises.

Stakeholders raised concerns over building owners or occupiers not taking the necessary actions to protect people and property from the outbreak and spread of fire.  Section 3.9 Hazard Management Plans – Private Landholdings and 3.10 The FES Commissioner and Private Landowners consider the measures that the FES Commissioner may take in regards to compelling an owner/occupier to address a risk. The FES Commissioner could use this power in dealing with premises such as derelict buildings or high risk industrial sites.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

6.4.1 The FES Commissioner has the power to require the owner/occupier of premises to take steps to prevent or mitigate the effects, or potential effects, of any incident

AVBFB comments:

The AVBFB supports the general principle of potential future legislation providing adequate provision to ensure that if a genuine risk is identified and there are reasonable steps that can be taken to mitigate those risks, an authorised person (such as a FES Commissioner) has the ability to enforce action. However, as noted in responses to a number of other DFES preferred options, the support of the Association remains only if the level of increased power conferred upon the authorised person is the absolute minimum is required.

OTHER OPTIONS NOT SUPPORTED

6.4.2 The FES Commissioner has the power to require the owner/occupier of prescribed types of premises to take steps to prevent or mitigate the effects, or potential effects, of any incident

6.4.3 The FES Commissioner is not given any further powers to require property owners or occupiers to take certain action

 


 

6.5 POWERS OF EVACUATION, CLOSURE AND USE OF FORCE

Section 33A of the Fire Brigades Act provides certain powers of evacuation and closure in cases of ‘risk from fire or hazardous material’.

Section 33A is in respect of public buildings only, and confirms the FES Commissioner’s power and duty to clear, open and unlock any area of the building if the safety of people in the building is at risk from fire or hazardous material. The FES Commissioner also has the power to evacuate the public building and close the building for up to 48 hours.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

6.5.1 Powers to evacuate, close and use force granted for all premises (except Class 1a) to the FES Commissioner or an authorised officer in the event of a potential danger to life or due to failure to meet DFES operational requirements

AVBFB comments:

The Association once again supports the general principle of this option but urges caution that vague clauses such as “or due to failure to meet DFES operational requirements” do not result in proposed legislation that provides any more power than is absolutely necessary.

OTHER OPTIONS NOT SUPPORTED

6.5.2 The FES Commissioner’s powers of closure and evacuation of premises apply only to public buildings

 


 

6.6 PUBLICATION OF DFES OPERATIONAL REQUIREMENTS

There is currently no publication containing guidance to the wider community or industry in respect of DFES’s operational requirements [1] for new and existing buildings and premises.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

6.6.1 Publish a document of operational requirements (guidelines not set in legislation)

AVBFB comments:

The Association supports all actions designed to better inform and empower the public in respect to meeting regulatory and advisory standards.

Also, it is noted that the use of the phrase “operational requirements” is not consistent with the bracketed suggestion that the document would be “guidelines”. While the point might be seen as trivial or even vexatious by some, the AVBFB holds firm the view that clarity of meaning is critical in any discussion of potential future legislation.

OTHER OPTIONS NOT SUPPORTED

6.6.2 The Minister for Emergency Services is empowered to issue a code of operational requirements in regulations

6.6.3 DFES operational requirements are not published

 


 

NON-LEGISLATIVE ISSUES

AVBFB comments:

The AVBFB commends the author of the concept paper for observing non-legislative issues raised by stakeholders during consultation and notes that all such issues fall outside the scope of the “Concept Paper: Review of Emergency Services Acts”.

The Association considers some of these items to be extremely important and therefore wishes to put on the record that the lack of comment in this submission does not imply support or otherwise for any of the issues published under the heading of “non-legislative issues” in this or other chapters.

Further, the AVBFB respectfully but strongly urges the government to explicitly seek comment from the Association and other stakeholders before seeking to address any of the issues identified as not within the scope of this paper.

 


 

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