Australia: How not to get singed by the new building bush fire regulations

THE BUSHFIRE AMENDMENT REGULATIONS 2016

The Bushfire Amendment Regulations published in the Government Gazette of Tuesday 5 April 2016 came into effect on 8 April 2016, on which day the Building Regulations 2012 incorporated the changes set out in the Building Amendment Regulations 2016.

These regulations will undoubtedly result in increased cost to people building new homes in bush fire prone areas and in some cases, renovating existing homes in those areas. However, bearing in mind the threat to lives and property which these bush fires pose, it is not surprising that the State Government considered the increased expense to be justified.

The amended Building Regulations are complex and with the associated Planning Regulations pose difficulties of interpretation for local governments. An analysis of the provisions of the Amendment Regulations follow.

DEFINITIONS

Amendment Regulation 4 added to Building Regulation 3 some key definitions. In particular:

Bushfire Attack Level

This is the bushfire attack level (BAL) for the building site for the existing or proposed building or structure, determined in accordance with Australian Standard AS3959.

Bushfire performance requirements

This is identified in relation to the class of the building (Classes 1, 2 and 3 or Class 10) as designated in the Building Code. With exceptions, the relevant Building Code is that in effect at the time the application for the building permit is made.

Amendment Regulation 5 produces a new regulation into the building regulations, Regulation 6A. New Regulation 6A adds to the definition of "building work" in section 3 of the Building Act 2011 the installation of a roof mounted evaporative cooling unit on a building or incidental structure. This is clearly a response to findings that such units are weak spots in the defence of a building, therefore must require building permits in a bushfire prone zone.

CERTIFICATE OF DESIGN COMPLIANCE

Amendment Rule 6 amends Building Regulation 18A so as to require that:

  1. If the certificate of design compliance (CDC) is in respect of a Class 1, Class 2 or Class 3 building or an associated Class 10(a) building or deck which is or is proposed to be less than 6 metres from the Class 1, Class 2 or Class 3 building respectively, it must provide the following details:
    1. a statement about whether the building or deck is or is proposed to be located in a bushfire prone area; and
    2. if so, and if a bushfire performance requirement applies, then
    3. the BAL for the building site or alternative measures to assess compliance with bushfire performance requirement; and
    4. in the case of a Class 1 building, information about alternative solutions to achieve the bushfire performance requirement and details of the assessment method to establish compliance.

EXTENT OF OPERATION

The Bushfire Amendment Regulations 2016 impose no obligations upon local governments to enforce retrospective compliance upon existing buildings or structures even within bushfire prone areas. Unless the local government has received an application for a building permit or occupancy permit, building approval certificate or a request for a change of classification, the local government does not have to worry about the extent to which existing buildings or structures comply with bushfire performance requirements which might apply if the building was not existing but merely proposed.

BUSHFIRE PRONE AREAS

There is no change to the definition of bushfire prone areas, which continue to mean an area of the State designated by an order made under the Fire and Emergency Services Act 1998, Section 18P as bushfire prone areas. A map of such areas was published on 8 December 2015 but additional areas may be so designated at some future time.

ALTERATIONS TO EXISTING BUILDINGS

Building Regulation 31BA was amended by adding subregulation 1A. Relevant buildings for the purposes of this subregulation are Class 1, Class 2 or Class 3 buildings or an associated Class 10a building or deck located less than six metres from the Class 1, Class 2 or Class 3 building which, when constructed, was not required to comply with the Bushfire Performance Requirement. The Class 1, Class 2 and Class 3 buildings are required to be existing buildings and also the associated Class 10A building or deck.

An application for a building permit to carry out renovations, alterations, extensions, improvements or repairs to such a building or deck made before 1 May 2018 will not be subject to compliance with bushfire performance requirements otherwise applicable, provided that the:

  • estimated value of the building work is less than $20,000; or
  • work does not increase the risk of ignition from bushfire attack for that building;
  • renovation, alteration, extension, improvement or repair must not include the installation of a roof mounted evaporative air-conditioning unit on the building.

Such renovations are described as "excluded work".

BUILDING STANDARDS FOR BUILDINGS AND INCIDENTAL STRUCTURES

Except for the alterations referred to in Building Regulation 31BA sub-section 1(a), referred to therein as "excluded building work", the building standards for all kinds of buildings or incidental structures located in the bushfire prone area include the bushfire performance requirements unless the building or incidental structure is located in an area that has been a bushfire prone area for a period of less than 4 months at the time when the application for the building permit was made.

CHANGE OF USE OR CLASSIFICATION

Under Section 49 of the Building Act 2011, an application may be made for an occupancy permit to replace the current occupancy permit for an existing building if the building is to be used on a permanent basis in a way different from the use authorized by the current occupancy permit or that the classification is to be different. If the change of classification is to a Class 2 or Class 3 building, then the certificate of building compliance must contain a statement about whether the building is located in a bushfire prone area and if for a period of 4 months or more at the time the application is made, the BAL for the building site or details of any other measure used to assess compliance with a bushfire requirement.

UNAUTHORISED WORK

An application can be made under Section 51 of the Building Act 2011 for an occupancy permit or building approval for unauthorized work. If that application is to be in respect of a Class 1, Class 2 or Class 3 building or an associated Class 10a building or deck located less than 6 metres from the Class 1, Class 2 or Class 3 building, then the certificate of building compliance must contain a statement about whether the building or deck is located in a bushfire prone area and if this has been so for a period of 4 months or more at the time when the application is made, the BAL for the building site or other measure, together with details of any alternative solution used to comply with the building standards.

SECTION 47 NOTICES

If the owner of an existing building or incidental structure Class 1(a) or Classes 2 to 10 proposes to change the classification to Class 1b or Class 1 respectively, at least 10 business days' notice has to be given to the local government, with statements about whether the building or incidental structure is located in a bushfire prone area and, if so for period of 4 months or more at the time the notice is given, the BAL for the building site or any other measure used to assess compliance with the relevant performance requirement.

ROOF MOUNTED EVAPORATIVE COOLING UNITS

Schedule 4 Item 13 contains a number of exceptions to the requirement that a roof mounted evaporative cooling unit requires a building permit to be installed on a building or incidental structure when that structure is located in a bushfire prone area. This is the case if the building is a Class 4 to Class 9 building or BAL is BAL-low or is 12.5 90 or 29 and the installation complies with the requirements for roof penetration under AS3959

PLANNING SCHEMES

Development approvals under Local Government Planning Schemes are affected by State Planning Policy 3.7 and the Planning and Development (Local Planning Schemes) Regulations 2015. The intention is to require planners to take into account the existence of bush fire prone areas and the need to allow for those when considering development approval.

However, steps have been taken to simplify the task for planners under Local Planning Schemes in that single houses and ancillary dwellings on properties of less than 1,100sqm are exempt from the requirement to provide a BAL.

BALS AND BHLS

For planning purposes in bush fire prone areas, a bush fire attack level is always required except in relation to exempt properties. In addition, the State Planning Policy talks about bush fire hazard levels (BHLs) as also being required in all designated bush fire prone areas. BHLs do not appear to be required by any statute or regulation.

The BHL assessment methodology is described in detail in Appendix 2 to the Guidelines of the State Planning Policy. There are quite subjective terms eg "low shrubs" and "some tree cover", showing that the assessment is to some extent a matter of judgment and discretion.

HABITABLE BUILDINGS

The definition of "habitable building" in the Planning and Development (Local Planning Schemes) Regulations 2015 requires a partial enclosure, at least one wall of solid material and a roof of solid material, which must also be used or intended to be used for a purpose which involves the use of the interior of the structure by people for working, living, studying or being entertained. This is somewhat wider than the usual meaning of "habitable building".

The significance of this definition is such habitable buildings included within the scope of the Regulations as being on the same footing as single house or ancillary dwellings on a lot or lots with a total area of 1,100sqm or more. They fall within the scope of the Regulations rather than being exempt properties, regardless of size.

OTHER EXEMPTIONS

Regulation 78D of the Planning and Development (Local Planning Schemes) Regulations 2015 does create an exemption of a requirement to supply a BAL if the development site has not been in a bush fire prone area for a period of at least four months. In most cases that is not likely to be of much significance at the moment, because of the map of bush fire prone areas issued on 8 December 2015, but in theory there could be additional bush fire prone areas designated.

Regulation 78F creates an exemption where there is a transitional building permit in any case where the site was not in a bush fire prone area when the application for the building permit was made or had been in a bush fire prone area for a period of less than four months before the date when the application was made. Some existing building permits would be covered by this provision.

Regulation 78G is a transitional provision applying to applications for development made within four months of the commencement date, said to be the date on which the Planning and Development (Local Planning Schemes) Amendment Regulations 2015 clause 5 came into operation.

In typical statutory circumlocution, one moves from the Planning and Development (Local Planning Schemes) Regulations 2015 to the Planning and Development (Local Planning Schemes) Amendment Regulations 2015, only to find that clause 5 is not said to come into operation on a specific date but upon the date when the Fire and Emergency Services (Bush Fire Prone Areas) Order 2015 came into operation. As that was 8 December 2015, Regulation 78G would have ceased to have any effect at the present time.

CONCLUSION

As can be seen from the above, the new Building Bush Fire Regulations and the amendments to the Planning Regulations are quite involved and complex and require numerous cross references, with lengthy clause designation changes. This paper is not intended to be a definitive opinion on the precise interpretation of those Regulations in all cases where they might be applicable and should not be taken as a substitute for specific legal advice in marginal cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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