Updated September 2020 Who’s responsible? Who pays? And what happens if they’re not maintained?
Essential Safety Measures are crucial for protecting the occupants of commercial buildings and residential complexes in case of a fire. An Annual Essential Safety Measures Report is a legal requirement, and failure to have one could void building insurance coverage and attract council penalties. We lay out the legal requirements and the responsibilities when it comes to organising and covering the costs of ESM compliance.
What are Essential Safety Measures?
“Essential Safety Measures” covers all the safety features of a building that have to do with protecting occupants in the event of a fire.
This includes fire detection and alarm systems, fire escape doors and exit lighting, and fire fighting equipment like extinguishers and hydrants. (The full list of features covered under the term “Essential Safety Measure” is defined in Part 15 of the Building Regulations 2018.)
Regulations for Essential Safety Measures apply to all classifications of buildings except for houses and outbuildings. So if you own or manage any commercial properties or residential complexes, you’re responsible for maintaining Essential Safety Measures.
Shockingly, Detector Inspector has found that approximately 40% of properties are non-compliant when we first attend, and 50% have no Annual Essential Safety Measures Report, which is a legal requirement.
To ensure compliance is continuous, we perform six-monthly inspections, bring all items up to standard and issue a new AESMR each year as part of our Essential Fire Safety Service.
Who is responsible for ESMs (and who pays?)
Historically, there has been some confusion as to whether owners or tenants are responsible for paying to maintain Essential Safety Measures. It’s not unusual for landlords to pass on the responsibility and costs of maintaining some Essential Safety Measures to the tenant, if this is agreed in the lease.
In May 2015, VCAT handed down an Advisory Opinion on Essential Safety Measures, taking the view that landlords could not compel tenants to cover the costs of maintaining ESMs. According to the Advisory Opinion, where the tenant maintains some measures by mutual agreement, this should be at the landlord’s expense.
In response to this, the Retail Leases Amendment Act 2020 was passed on September 23, 2020. The Act, which made changes to the Retail Leases Act 2003 and the Building Act 1993 confirms that landlords can now pass on the costs of Essential Safety Measures to tenants under both an existing and a new retail lease.
Regardless, the bottom line is that the building owner bears primary legal responsibility for maintaining compliance with regulations.
That’s why it’s crucial to authorise a properly qualified expert contractor to ensure that ESMs are maintained correctly and an Annual Essential Safety Measures Report is issued each year.
What does the law require?
There are 2 things a building owner is required to maintain: the compliance itself, and the documentation.
- Compliance (ESM):Building owners are responsible for maintaining Essential Safety Measures and ensuring that fire exit routes are clear and accessible. The specific requirements vary depending on the type of building and when it was built. Requirements for which safety measures must be installed, and the standards for maintaining them, are governed by the Building Regulations (2018), the Building Code of Australia, and the Australian Standards.
- Documentation (AESMR):Building owners are legally required to complete an Annual Essential Safety Measures Report (or authorise an appropriate contractor to prepare one). All fire equipment in the building must be serviced and compliant upon the preparation of the AESMR each year.
What happens if an owner doesn’t maintain compliance?
There are potential legal and safety consequences for failing to maintain ESM compliance and obtain an AESMR each year.
In addition to being a legal requirement, an AESMR is likely a condition of building insurance. Failure to have an up-to-date AESMR could jeopardise the ability for owners or managers to claim in the case of an incident.
Furthermore, council infringement notices of $290 and possible prosecutions with fines of up to $17,000 for individuals and $88,000 for businesses can be imposed.
ESMs are in place to protect lives. As commercial and residential precincts become more populated, appropriate safety measures are crucial to mitigate the risk of fire and other disasters. The fallout of non-compliant Essential Safety Measures could be devastating, with serious legal ramifications for the building owner or authorised manager.
In other words, avoiding ESM is not an option!
Do you own or manage commercial properties? Do you manage or are you a part-owner of a residential complex?
Don’t put it off—put ESM in the hands of an expert today.