James Bottomley, Partner
Kathleen Jennings, Solicitor
The Queensland Development Code MP 6.1 came into effect on 1 January 2009. The intention behind the introduction of the code was to reduce the number of fire safety regulations and to streamline reporting procedures. The code is available on the website of the Department of Infrastructure and Planning (Qld) (http://www.dip.qld.gov.au/resources/laws/queensland-development-code/current-parts/mp-6-1-maintenance-fire-safety-installations.pdf).
In spite of this step, the legal obligations which the Fire and Rescue Services Act 1990 Qld and the recently implemented and updated Building Fire Safety Regulations 2008 Qld place on the owners and occupiers of buildings remain numerous and specific, and the penalties for non-compliance are potentially very expensive.
The Department of Emergency Services (Qld) has this year prepared a "Fire Safety Management Tool for Owner/Occupiers" with accompanying "Advisory Notes". These documents are intended to assist compliance, and they are available at the Department's website (http://www.fire.qld.gov.au/buildingsafety/regulation.asp).
But these are only a guide to assist in navigating the numerous obligations cast upon owners and occupiers by the legislation. This is sometimes quite complicated and there are companies specialising in auditing premises for compliance to assist owners and occupiers.
One aspect of concern to Lessors under the Act and Regulations is to understand who is responsible for compliance and the attendant costs. The following is a brief summary of the people who are obliged to comply with the fire safety requirements.
From a leasing point of view, the Act and the Regulations impose obligations on four major groups, being owners, occupiers, managing entities and individuals.
- Owners are defined by the Act as "the person... entitled to receive the rent of the premises or would be so entitled if the premises were let." In general, this will be the registered owner of the property.
- Occupiers are defined by the Act as "the person in actual occupation or, if there is no such person, the owner".
- Managing entities are defined by the Regulations as the entity that occupies or controls the general access areas of a building with 2 or more occupants, eg the owner or a body corporate.
- Individuals are any persons (including members of the general public) to whom a general obligation applies (for example, not to fasten certain doors when there are people inside a building), whatever their other rights or obligations in relation to the property may be. Owners, Occupiers and Managing Entities are equally liable to comply with these requirements.
There are a number of obligations imposed specifically on Owners. These include:
- s13(4) of the Regulations: to ensure a person does not alter ventilation systems or air flow in contravention of s13;
- s48(1) of the Regulations: to display signs in an accommodation unit;
- specific provisions in relation to budget accommodation (eg backpacker accommodation) in both the Regulations and Act; and
- requirements relating to building and development.
The specific responsibilities of Managing Entities include:
- keeping the fire and evacuation plan – s 22 of the Regulations;
- ensuring it takes into account coordination procedures for all parts of the building – s22 of the Regulations; and
- giving notice about changes to the plan to each occupier.
The vast majority of the obligations imposed by the Act and the Regulations, however, are imposed on Occupiers of premises.
Responsibilities of lessors
Owners of leased premises will be responsible for:
- owner-specific obligations;
- managing entity obligations including where there is only one tenant but the tenant does not have a lease of the whole building;
- occupier obligations for premises that are not tenanted or are between tenants or have been vacated by tenants;
- occupier obligations for common areas (although to varying degrees occupiers of a tenancy may be responsible under the legislation for what they do in common areas, the ultimate obligation will rest with the Occupier of those common areas eg the Owner or body corporate); and
- monitoring the compliance of tenants as, in spite of the provisions of the Act, Owners risk liability for subsequent damage or injury where they are or should be aware of their tenant's noncompliance and do not take steps to prevent it.
Tips for lessors
Lessors should consider the following:
- Familiarising themselves with their obligations under all relevant legislation and lease documents.
- Obtaining an audit of their compliance.
- Ensuring lease documents clearly set out who is responsible for:
- compliance with the legislation;
- costs associated with compliance; and
- structural and capital works associated with compliance.
- Inserting appropriate insurances and indemnities in lease documents.
- Being aware of where, under the lease, occupied premises start and end.
- Setting procedures in place to ensure:
- compliance in relation to common areas (eg monitoring and rules of use);
- appropriate behaviour by individuals and members of the general public (eg appropriate signs on doors);
- compliance in relation to vacant or unlet premises;
- records are kept of:
- fire safety installations;
- maintenance of installations; and
- provision of occupier's statements;
both in common or Owner-occupied areas and within tenancies, to simplify compliance by existing tenants and on assignment or termination of tenancies.
- Ensuring the relevant certificate/s of classification are displayed.
Fire safety compliance is a complicated area and one with potential for confusion as to obligations and the attendant risk of expensive non-compliance. Lessors should review the legislation, their lease documents and the publications of the Department of Emergency Services (Qld) and the Department of Infrastructure and Planning (Qld) and obtain specific advice tailored to their circumstances and context.
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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.