Articles

Co-authored by Justin Cotton & Jordan Davies, Lovegrove & Cotton – Construction and Planning Lawyers

Introduction

Property owners and those charged with the responsibilities via agency agreements or owners corporation management must, at all times, maintain a constant vigilance with respect to essential safety measures management.

After a building is complete and occupied, the building owner must facilitate its upkeep and ensure that its safety features are functioning and compliant with relevant regulations.[1] There are statutory requirements on point in the Building Regulations 2018 that pertain to the ‘Maintenance of buildings and places of public entertainment’.[2] This Part is divided into two Divisions: Division 1 pertains to the ‘maintenance of essential safety measures’, and Division 2 pertains to the ‘maintenance of exits and paths of travel by occupiers of buildings or places of public entertainment.’

What is an ‘essential safety measure’?

An ‘essential safety measure’ is a safety measure specified in column 2 of each table in schedule 8, or ‘any other item that is required by or under the Act or these Regulations to be provided in relation to a building or place of public entertainment for the safety of persons in the event of fire and that is designated by the relevant building surveyor as an essential safety measure’.[3]

Essential safety measures protect occupants from the likes of fires and occurrences potentially adverse to health that can arise in circumstances of high-density and urban living, such as Legionnaire’s Disease.[4] The table in schedule 8 of the Regulations is extensive and covers a number of ‘measures’, including:-

• Wall-wetting sprinklers;
• Fire doors;
• Fire windows;
• Solid core doors and associated self-closing, automatic closing and latching mechanisms;
• Fire protection associated with construction joints, spaces and the like in and between building elements required to be fire-resisting with respect to integrity and insulation;
• Paths of travel to exits;
• Exits (including fire-isolated stairways and ramps, non-fire-isolated stairways and ramps, stair treads, balustrades and handrails associated with exits, and fire-isolated passageways);
• Signs (Exit signs; Signs warning against the use of lifts in the event of fire; etc);
• Emergency lighting;
• Fire hydrant systems;
• Sprinkler systems;
• Smoke hazard management systems;
• Smoke and heat alarm systems; and
• Building occupant warning systems.

This list is derived from Schedule 8 – Essential Safety Measures, and is not a verbatim and exhaustive copy of the measures listed in that schedule. It is also noteworthy that neither is the table in Schedule 8 exhaustive, and particular regard ought to be had to umbrella measures such as Item 1: “building elements required to satisfy prescribed fire-resistance levels”, Item 2: “materials and assemblies required to have fire hazard properties”, and Item 3: “elements required to be non-combustible, provide fire protection, compartmentation or separation”. It follows that these items leave open a range of measures that fit within their ambit.

Requirements of Occupancy Permits

When an occupancy permit is issued by the relevant building surveyor, pursuant to regulation 125 of the Building Regulations 2018, it must specify the building’s essential safety measures, including the performance required, the frequency and type of inspection, testing and maintenance required.[5] It is also a condition of an occupancy permit that the essential safety features specified in an occupancy permit are inspected, tested and maintained as specified in the occupancy permit.[6]

A building surveyor can make determinations as regards the maintenance regime for essential safety measures and these determinations are binding upon the owner. It goes without saying that maintenance needs to occur with a level of rigour and frequency that is conducive to the continuing reliability of operation of the safety measures. The purpose being to ensure faults are remedied, general wear and tear is accounted for, and the reliability of relevant measures is regularly checked.[7]

Pursuant to Section 40 of the Building Act 1993, a building must not be occupied in circumstances where the conditions of an occupancy permit are not satisfied. It follows that where an essential safety measure/feature is not maintained, inspected or tested as specified in an occupancy permit, an owner is prima facie in breach of section 40. A contravention of section 40 will culminate in a penalty of 120 penalty units for a natural person and 600 penalty units for a body corporate.[8] It follows that there is a great onus on building owners and owners corporations alike to ensure compliance with essential safety measure requirements outlined in an occupancy permit.

The writers fear that there will be many building owners and owners corporation managers that might not sufficiently appreciate the gravitas that is associated with the Essential Safety Measures maintenance regime.  This regime is highly regulated and attended by very significant penalty powers that can be deployed by regulators in circumstances where the law is not followed.

Another means by which owners and owners corporations may be bound to maintain essential safety features, other than those provided for in an occupancy permit, is if a relevant building surveyor makes a maintenance determination.

What is a ‘maintenance determination’?

A ‘maintenance determination’ is made by a relevant building surveyor under regulation 215 of the Building Regulations 2018. Such a determination is made in circumstances where it is found that:

“an essential safety feature is required to be provided or altered in a building or place of public entertainment by –

1. A building permit that does not require an occupancy permit; or
2. An emergency order or building order under Part 8 of the Act.”[9]

The building surveyor will outline what essential safety feature is the subject of the determination and what standard of performance and frequency and type of inspection is required.[10] The building surveyor will provide the owner of the building with the determination, and a copy of same will be provided to the relevant council.[11]

In circumstances where a building or place of public entertainment has an occupancy permit, it is a condition of that occupancy permit that if a maintenance determination is made pursuant to regulation 215, that the requirements of that determination are complied with.[12]

If an owner does not comply with a maintenance determination, they face a penalty of 20 penalty units.

Maintenance Schedule

If an essential safety measure is required by a building permit or an occupancy permit, an RBS must issue a maintenance schedule on point.[13] Outside of this scenario, an owner of a building may also apply for a maintenance schedule to be fashioned by an MBS or RBS.[14] A maintenance schedule must list all of the essential safety measures required for a building by either an occupancy permit or a maintenance determination in chronological order. The schedule must also detail the maintenance requirements for those measures.[15] The form is prescribed by the VBA.[16]

Pursuant to regulation 218, there is an onus on the building surveyor to prepare and update the maintenance schedule in circumstances where an essential safety measure is required by a maintenance determination under regulation 215 or a condition in an occupancy permit under regulation 195.

The owner must provide all relevant documents relating to the essential safety measures in the building to the building surveyor who is updating the maintenance schedule.

Annual Essential Safety Measures Report

An annual Essential Safety Measures Report must be produced by an owner of a building every year 28 days before the anniversary of either the occupancy permit or the date of the first maintenance determination.[17] The relevant form of the report is prescribed by the VBA and available on its website. The purpose of said report is to confirm that the owner is complying with essential safety measure requirements in accordance with Australian Standard AS 1851 – 2012, and has taken all reasonable steps to ensure these measures are operating, inspected and tested as required for their purpose.[18]

In circumstances where a council building surveyor requests copies of such reports, copies of reports made up to 10 years prior must be made available within 24 hours of that request, along with relevant maintenance schedules, determinations and other records.[19] If an owner does not comply with the relevant provisions on point, they face a penalty of 20 penalty units.

Who is Liable to Maintain Essential Safety Measures?

Pursuant to regulation 226, the owner of a building must ensure that essential safety measures are maintained such that the measures operate to fulfil their purposes. Further an owner must ensure any essential safety measures are not removed from their approved locations.[20]

This would be particularly relevant with respect to portable fire extinguishers and other essential safety measures that are easily tampered with. Finally, it is also incumbent upon an owner of a building to maintain exits and paths such as to ensure no obstruction; this includes paths of travel outside the building itself that provide egress to roads and so forth.

A breach of any of the aforementioned regulations will result in a penalty of 20 penalty units.

Rigour, standards of care and consequences of neglect

When a building is undergoing construction (i.e. the period that exists between the issuance of the building permit and the occupancy permit), the actors that will be implicated in respect of a compromised construction outcome will be primarily those responsible for the design, construction and approval of the building.

Furthermore, if any of those actors fail to build in accordance with the Building Code of Australia, relevant Standards and, in the case of builders, statutory warranties, the designing or construction of same will culminate in liabilities that (depending upon the jurisdiction) will remain live for the length of the statute of limitations. In most Australian jurisdictions, this is 10 years from the date upon which an occupancy permit is issued.

A paradigm shift occurs once the occupancy permit is issued and the owner takes occupation of the building. This is the ‘building in use’ situation, and the proprietor assumes liability and responsibility for ensuring that the building is soundly maintained and vigilant regard is had to essential safety measures and their maintenance.

This level of vigilance is heightened in the fire containment paradigm. Hence, it follows that all of the elements and components that are set out in Schedule 8 of the Building Regulations 2018 must be scrutinised and maintained. Sometimes the owner will utilise facilities managers to manage this dynamic, and in other instances not. But regardless, someone has to assume this paramount responsibility.

Furthermore, with regards to the generation of the annual essential safety measures report, it is critical that great care is exercised by the maintenance contractor that assumes responsibility for such maintenance. The property owner will be very motivated to ensure that the maintenance contractor is very capable in the discharge of their maintenance obligations, mindful of the fact that the fines that can be visited upon property owners are severe.

It would follow that the property owner or the facilities manager would have in place robust and comprehensive contracts of engagement for the retaining of maintenance contractors.  Great care would need to be afforded to the drafting and preparation of such contracts to ensure that the contract spells out in no uncertain fashion the set of duties and tasks that the contractor must embrace and undertake.  This is so that all of the components and elements of Part 15 of the Building Regulations 2018 are considered and dealt with in terms of the inspectorial regime.

Mindful of the fact that there is no licensing regime as such for maintenance contractors, unlike registered building practitioners, there is no statutory authority that will preside over the conduct of such contractors – they are unregulated. The fines and penalties that abound in this regulatory environment very much invest themselves with property owners.  So that at first instance, the punitive consequences of breach will be visited upon property owners.

Body corporate managers and facilities manages, therefore, need to engage in very sophisticated due diligence to ensure that they engage the services of ESM contractors that are held in high regard and can discharge their responsibilities. Contract neglect will place the property owner or the body corporate in an invidious position.

It therefore follows that contracts of engagement for maintenance contractors should contain indemnities whereby the contractor has to indemnify the property owner for any financial penalties that are imposed upon the property owner as a result of maintenance service neglect.

It is also paramount to ensure that all forms of apposite insurance, not limited to public liability cover, are in place at all times. If in a worst case scenario, there is a fire incident that destroys property or life or limb, there will be severe consequences that will be brought to bear on property owners in circumstances where there has been essential safety measure neglect.

Prudence dictates that a construction lawyer should prepare such contract of engagement.

Conclusion

For fear of labouring the point, there is a substantial legal onus primarily on building owners and owners corporations to ensure that the essential safety measures of a building are adequately maintained and relevant advice is sought on point. Similarly, the role of building surveyors is integral, whether they be of the private or municipal persuasion, and their ability to carry out their statutory functions under the Building Regulations 2018 will be essential to owners achieving compliance.

Needless to say, the testing, inspecting and maintenance regimes determined by the building surveyor will require due care and diligence in their fashioning to ensure safety is optimised. Most strikingly the regulations highlight the clear role of owners in mitigating fire calamities and other sorts of safety-related accidents.

[1] VBA, ‘Essential Safety Measures’, accessed at https://www.vba.vic.gov.au/consumers/essential-safety-measures

[2] Building Regulations 2018, Part 15.

[3] Building Regulations 2018, reg. 214

[4] VBA, ‘Essential Safety Measures Maintenance Manual’, accessed at https://www.vba.vic.gov.au/__data/assets/pdf_file/0003/18093/Essential-Safety-Measures-Maintenance-Manual-fourth-edition.pdf

[5] Building Regulations 2018, reg. 194 (1).

[6] Building Regulations 2018, reg. 195.

[7] VBA, ‘Essential Safety Measures Maintenance Manual’, accessed at https://www.vba.vic.gov.au/__data/assets/pdf_file/0003/18093/Essential-Safety-Measures-Maintenance-Manual-fourth-edition.pdf

[8] Building Act 1993, s40.

[9] Building Regulations 2018, reg. 215 (1).

[10] Building Regulations 2018, reg. 215 (2).

[11] Building Regulations 2018, reg. 215 (3).

[12] Building Regulations 2018, reg. 195.

[13] Building Regulations 2018, reg. 218.

[14] Building Regulations 2018, reg. 219.

[15] Building Regulations 2018, reg. 222.

[16] Building Regulations 2018, reg. 222 (4).

[17] Building Regulations 2018, reg 223.

[18] Building Regulations 2018, reg 224

[19] Building Regulations 2018, reg. 225

[20] Building Regulations 2018, reg. 227