by Jeffrey Winbanks

Abstract

Single occupancy dwellings have been commonly converted to boarding houses to help meet the ever growing demand for accommodation in Victoria. This demand currently exceeds supply and is anticipated to continue as we head toward the year 2050.

Legislation in the form of an updated Building Code of Australia and Design for Access and Mobility Standard were introduced on the 1st of May 2011; which has placed stringent requirements on new class 1b dwellings including those converted from existing dwellings. These access requirements have a marked effect on the viability of future dwelling conversions and the supply of accommodation in the future.

Building Surveyors who develop an understanding of the issues at hand can assist operators to comply with these new requirements and maintain a balance of equity for disabled people and the provision of affordable accommodation for those in most need.

Introduction

Prior to the first of May 2011; Class 1b boarding houses were easily converted from single class 1 dwellings, these small boarding houses have mushroomed in Melbourne over the past 10 years due to the demand for this type of cheap accommodation (Gallagher, Ki and Gove, M, 2007).

There has been a heightened response to these types of occupancies from Local Government bodies due to the increased occupant risks and the loss of life and property that has occurred by unscrupulous operators who have disregarded their obligations under the Victorian Health Regulations 2001, Building Code of Australia and Council Town Planning schemes.

This form of cheap housing is often sought from the disadvantaged in society and those in most need (Gallagher, Ki and Gove, M, 2007).  The operators of these types of buildings take advantage of cheaper older houses, often in poor condition and convert them at minimal cost to class 1b boarding houses, operators of these establishments need at least 7 rooms rented to have a financially prosperous business (Zealot Investments, 2011, per., comm. July),  ( The Truthful Paraclete Pty Ltd, 2011,  per. comm. July).

The future of these conversions is in doubt due to the new disabled access provisions under the Building Code of Australia (BCA.2011) as of the 1st of May 2011.

What is a Boarding House?

The BCA defines a class 1b boarding house as a building with a maximum floor area of 300m2 with a maximum of 12 persons and not located over another dwelling or class of building. Once these limits are exceeded the building needs to be classified as a class 3  building which has much more stringent requirements and are not typical of a dwelling conversion (BCA.2011).

In Victoria the Health (Prescribed Accommodation) Regulations 2001 define a Boarding house as accommodating four or more unrelated people, once this limit is met the applicant needs to obtain registration and approval from the local Council Environmental Health Department, requirements such as minimum room sizes, heights and facilities are required under this legislation.

The need for Boarding Houses

Private boarding houses provide accommodation for a significant portion of the homeless population; the 2006 census revealed that 22% of the homeless population in Victoria were accommodated in boarding houses. This unprecedented homelessness and housing crisis continues today, Australia wide we currently have a population of 22.2 million people of whom 4 million have a disability and about 50% of people over 55 have mobility issues. By 2050 our population is estimated to grow to 35.9 million and over a quarter of the population will be over 65 (Gallagher, Ki and Gove, M, 2007) (Commonwealth population trends, 2010) (Community Housing Federation of Victoria, 2009, Emergency Management Procedures, p8, Melbourne).

Based on these figures the need for boarding house accommodation will continue to far outstrip availability.

Whilst this need for cheap accommodation is apparent, there is a high risk associated with these types of buildings, fire being the prevalent risk. The annual Ombudsman's report of reviewable deaths in 2004 revealed that out of 93 deaths 24 of those lived in boarding houses, the risk factor of these types of occupancies requires constant supervision by the owners to ensure that the safety systems installed are not disarmed by the occupants (Ombudsman's report, 2004 (NSW) reviewable deaths) (Australian human rights commission access to buildings).

History of Class 1b BCA Requirements

Previous versions off the BCA did not refer to AS1428 or any other disabled access requirements for a boarding house conversion. The main BCA issue was the installation of hard wired smoke detectors on the ceilings of each bedroom, in every corridor, in each storey and connected to activate a lighting system located in the egress corridors (BCA volume 2, part 3.7.2).

A dwelling conversion to a boarding house is classified as a change of use under the BCA; this requires all works to comply with all the provisions of the current BCA.  It is important to assess the suitability of the existing building; consideration is required to the structural adequacy, amenity, safety and health of the occupants. The typical outcome of this process would be the installation of insulation to the ceiling, a check of any installed balustrade, stairs, steps, glazing and to a lesser degree the general maintenance of the building. The Building Surveyor may also request the floor loading to be verified by a structural engineer if it was assessed to require the higher 2kPa requirement under AS1170.1.

These requirements enabled the conversion of dwellings to boarding houses with minimal costs (Zealot Investments, 2011, per., comm. July) (The Truthful Paraclete Pty Ltd, 2011, per. comm. July).

The BCA.2010 and the Disability Discrimination Act

Up until the 1st of May 2011 Building works were constructed in compliance with the BCA.2010. However this did not require compliance with the Commonwealth Disability Discrimination Act1992 (DDA).  Building Surveyors and property owners although complying with the BCA were unsure if they were complying with the DDA and consequently may have been subject to a complaint being made against them under the provisions of this DDA legislation.

A complaint could be made that a building (including a boarding house) was not accessible for a disabled person under section 25(2) of the DDA. This section makes it unlawful to discriminate on the grounds of a person's disability by limiting access to accommodation which is available for another person. (Cooper v Human Rights & Equal Opportunity Commission 1999] FCA 180).

The BCA.2011 and AS1429.2009 are designed to comply with the Premises Standard and the DDA. Compliance with these documents protects property owners and Building Surveyors from complaints based upon unlawful actions under the DDA (ABCB 2011).

Disability Rights

"Almost 20% of Australians have a long term disability, these people need housing to support their needs and enhance their lifestyle" (Building Commission, 2011).

It is important to realise that a person who has a disability has the same needs to access buildings and use facilities as any other person.  While it has always been unlawful under the DDA to discriminate building access based upon a person's disability, it is only now with the introduction of the BCA.2011 that the regulatory building codes and standards are on parity with disabled people's rights.

Partial compliance and alternative solutions

Section 10 of the Victorian Building Act 1993 contains transitional provisions where a Building Surveyor can assess Building permit applications under the BCA.2010 providing they have been designed prior to the 1st of May and therefore avoid the access provisions. Although Building Surveyors can still take this approach they would be acting unlawfully under the DDA.

Furthermore when assessing a change of use (typical for a conversion to a 1b) regulations 502, 503, and 1101 of the Building Regulations 2006 permit the Building Surveyor to apply discretion and allow partial compliance. Again the Building Surveyor can permit this application but would be acting unlawfully under the DDA. The avenue available to permit a reduced level of access provisions is through an application to the Building Appeals Board. The applicant would need to prove that the access provisions would impose an unjustifiable hardship; this would be difficult to achieve for a boarding house conversion as this avenue is for exceptional cases only (Victorian Building Commission 2011).

If a Building Surveyor wishes to apply a performance based approach, then the alternative solution must meet the access provisions to ensure the DDA is complied with. The Building Commission have strongly recommended that Alternative solutions be referred to the Building Appeals Board for determinations on these types of alternative solutions (Victorian Building Commission 2011).

These legislative requirements and practice notes from the Building Commission clearly indicate that the access provisions are set in concrete and require exceptional circumstances to vary away from the deemed to satisfy provisions of the BCA. Therefore it can be presumed that boarding house conversions have little option other than to upgrade the building to comply with the new requirements.

Class 1b and BCA.2011 Requirements

The new access provisions applicable to a class 1b building are detailed in table D3.1 of the BCA.2011 volume 1; access is required to and within 1 bedroom, associated sanitary facilities and every common area inside the building.

An access way is also required from the allotment boundary to the main pedestrian entrance of the boarding house (BCA.2011, part D3.2).

Class 1b and AS1428.2009 Requirements

These following items outline the requirements of AS1428.2009:

• The accessway from the front boundary to the building must be at least 1m wide and not incorporate a step or stairway or other impediment (AS1428.1, clause 6.1).
• The accessway must be obtained by either walkways, or ramps.  A walkway must have a maximum 1:20 gradient and must be suitable for use by people in a wheel chair and abutted by different material for 600mm each side of the walkway which must also be firm, or alternatively a kerb is required to each side of the walkway. Once the walkway gradient exceeds 1:33 landings are required, and increase in interval as the walkway increases in gradient. Once the gradient exceeds 1:20 the accessway is determined as a ramp and is subject to more stringent requirements such as handrails and kerbs on each side of the ramp and turning bays for wheelchairs.
• The surface of the accessway must be slip resistant; this also applies to the circulation spaces and internal floor surfaces. Where the floor surface is carpet the carpet must be a maximum11mm thick with a maximum4mm thick underlay.
• Circulation spaces are required on both sides of all access doors and accessible rooms.
• Tactile indicators are required in accordance to AS/NZS 1428.4.1 to the top and bottom of all ramps.
• Braille and tactile signage is required to the sanitary facility with left and right hand signage as detailed in specification D3.6
• Doorways and circulation spaces must have a 50mm wide area of luminance contrast between the door and jamb/architrave/adjacent wall.
• Door hardware is specific and applies to the doors in the accessible areas of the building. These are required to be D type or lever type handles with locks that can be operated by a single hand, there are further requirements on the Newton force permitted to open and close the door as well as permissible location heights.
• There are requirements on the location heights for power outlets and light switches in all accessible areas, these must also be rocker or toggle type switches.
• The normal disabled sanitary facilities apply such toilet room size, circulation spaces, pan mounting heights and location, washbasin location and circulation space, provision of a backrest on the toilet, locations of flushing controls, paper dispenser, handrails and grab rails to pan and shower, seat, soap dispensers, clothes hanging devices, mirror provision and locations.
• The shower must be a zero entry shower with a graded floor, seat, portable shower head, soap holders, tap types and locations

These points are a brief summary of the main applicable clauses of AS1428, 2009, this standard is a 112 page document which must be fully complied with and applied by a Building Surveyor in their assessment of a Building Permit application

A typical dwelling conversion - Before and after

The following sketch indicates the basic requirements to convert a typical dwelling to a boarding house before the 1st of May 2011. The same dwelling has been amended in the second sketch to reflect the access provisions after the 1st of May 2011.

Figure 1
Typical dwelling conversion to a 1b boarding house pre May 1 2011.

The existing meals study and lounge rooms have been converted to bedrooms, the existing 3 bedroom house now has 6 rooms with a communal bathroom, laundry and kitchen.

Works required to convert dwelling:

• Install smoke detectors (S)
• Install lighting connected to activate by operation of smoke detectors (L)
• Fire extinguisher in kitchen recommended, but not mandatory.

As indicated on this example the work required is minimal with low costs associated to convert the dwelling to a 6 room boarding house. These rooms rent out for around $120.00 per week and provide a lucrative income (Zealot Investments, 2011, per., comm. July) (The Truthful Paraclete Pty Ltd, 2011, per. comm. July).

Figure 2
Alterations required complying with the disability access provisions post 1st of May 2011

These requirements entail major alterations to the structure and finishes in the building; the internal wall to the passage needs to be relocated as the rear kitchen. The bathroom needs a total renovation and the laundry must be relocated.

The accessway from the dwelling to the street requires complying ramps and walkways; these increase in difficulty and cost as the slope of the land increases.

It can be seen by this example that the new access requirements have a marked effect on the work and cost required to convert a dwelling to a boarding house. The companies who specialise in this industry have commented that these new requirements have a marked affect on the feasibility of future dwelling conversions (Zealot Investments, 2011, per. comm. July) (The Truthful Paraclete Pty Ltd, 2011, per. comm. July).

Non- compliance

Local Councils are responsible to enforce boarding houses within their municipality; this is undertaken in conjunction with the building, environmental health and town planning enforcement officers. Boarding houses are either existing registered premises or illegal businesses operating illegally and the latter are usually brought to the attention of the council though a complaint. In these cases the additional requirements of the BCA and AS1428.2009 are likely to have a significant effect on bringing these boarding houses into compliance without investing a large amount of capital into the existing dwelling.

Councils are required to prosecute non-complying works; advertising these cases in the media may help to reduce the incidence of illegal operations.

Future feasibility of boarding house conversions

Boarding house operators have indicated that they have become aware of the new disabled requirements only through the refusal items on their current building applications for dwelling conversions to class 1b boarding houses (Zealot Investments, 2011, per., comm. July) (The Truthful Paraclete Pty Ltd, 2011,  per. comm. July).

They have limited understanding of the requirements or the need for disabled access, one operator stated "I don't have disabled boarders", another stated  "I have never had a person in a wheelchair in one of my houses" with no understanding that this was discriminatory to prevent access for a person with a disability. These operators stated they have cancelled their current boarding house applications as "it would cost too much to make the dwelling comply" (Zealot Investments, 2011, per., comm. July) (The Truthful Paraclete Pty Ltd, 2011, per. comm. July).

Boarding house operators felt they may contemplate future dwelling conversions, although a lot of research was required to see if it was cost effective. They stated at least 8 rooms is required currently to make the purchase, conversion and management feasible.  Adding around 20k on top and requiring major alterations with the likelihood of a reduced number of rooms made it difficult to be cost effective. They also stated that there is a large underground system of illegal boarding houses. These illegal boarding houses are charging rates which legal operators cannot match; once the added cost of disabled access and facilities are added the business becomes much more difficult to sustain (Zealot Investments, 2011, per., comm. July) (The Truthful Paraclete Pty Ltd, 2011, per. comm. July).

It is apparent that the operators are affected by the access provisions required for class 1b buildings, it is a serious issue that threatens the future of this accommodation stream which has helped to cope with the demand up to date.

The role of the Building Surveyor regarding Class 1b conversions

Building Surveyors can assist their clients by imparting an understanding of the issues disabled people face in daily life. This understanding may help their clients accept that these new access provisions are the right of any person who may wish to gain accommodation in a boarding house.

Building Surveyors can help to alleviate the extent of work required to comply with this new legislation by providing advice up front to the owners/companies who contemplate these types of conversions. The following criteria would assist clients to reduce the extent of work required and thereby reduce the conversion costs:

• Choosing dwellings with relatively flat blocks to minimise the requirements of ramps and the work required to make complying access ways from the boundary to the dwelling.
• Choosing dwellings with a large width hallways or open plan living to achieve the passage widths and circulation spaces required to one bedroom and all common areas.
• Choosing dwellings with large bathrooms of at least 2.6m x 2.8m to enable a disabled toilet, shower and basin installation.

A harder task for Building Surveyors is to stamp out the underground boarding houses. The more boarding houses that are legal and complying, the better off it will be for those companies who are trying to do the right thing. Occupiers will be better off also with a safer regulated accommodation system.

Conclusion

The demand for this type of housing already exceeds availability and will increase as we approach 2050, it is important that we provide this type of housing to those in need of  basic accommodation, this basic level of human dignity  is a right to people who would otherwise be out on the street.

Operators of boarding houses may initially be deterred from future projects due to these added difficulties and cost; careful planning with appropriate advice from Building Surveyors can help to develop an understanding and minimise the conversion costs while still achieving the access provisions, which are the right of every person who suffers from a disability.

Bibliography

Building Commission, 2011, Practice Note 2011-14 access to Buildings for people with a disability, Melbourne.

Legislation (as amended)

Australian Building Codes Board, 2011, National Construction Code, BCA Volume 1 and 2, ABCB, Canberra

Disability Discrimination Act, 1992, Canberra

Health (Prescribed Accommodation) Regulations, 2001, Victoria

Standards Australia, AS1428.2009, Design for Access and Mobility, Homebush NSW

Websites

State Government of Victoria, Planning schemes online
Viewed 10th of July 2011:
http://planningschemes.dpcd.vic.gov.au/index.html

Building Commission of Victoria webpage, Accessibility in the Built Environment
Vviewed 10th July 2011:
http://www.buildingcommission.com.au/www/html/556-what-is-accessibility-in-the-built-environment.asp)

Annual NSW Ombudsman's report reviewable deaths 2004. http://www.ombo.nsw.gov.au/publication/PDF/annualreport/Annual%20Report%20reviewable%20deaths%2004.pdf

Gallagher, Kim, Gove, Mark, July 2007, Tenuous and dangerous ... 'Go to a boarding house? I would rather sleep out!, Melbourne.
Website viewed 12th July 2011:
http://www.chp.org.au/parity/articles/results.chtml?filename_num=00294

Alex Munro, 2011, rogue-landlord-fined-for-death-trap-boarding-house, leader Newspaper, Lilydale.
http://lilydale-yarra-valley-leader.whereilive.com.au/news/story/rogue-landlord-fined-for-death-trap-boarding-house/

ABCB information seminar 2011,
Webpage viewable:
http://www.buildingcommission.com.au/resources/documents/BC_-_BCA_2011_Seminars.pdf

Australian Government Treasury Department, 2010, Intergenerational report, Canberra.
Website viewable:
http://www.treasury.gov.au/igr/igr2010/Overview/html/overview_05.htm

Australian human rights commission, nd, Access to Buildings and services, Guidelines and Information,
Website viewed 15th of July 2011:
http://www.hreoc.gov.au/disability_rights/buildings/guidelines.htm

Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180.
Webpage viewed 21st of July 2011:
http://www.austlii.edu.au/au/cases/cth/federal_ct/1999/180.html

Community Housing Federation of Victoria, 2009, Emergency Management Procedures, p8, Melbourne
http://aibs.businesscatalyst.com/news_uploads/crhpv_emergency_management_procedures.doc

Personal interviews with boarding house operators

Zealot Investments, 2011, phone interview with Viren Sojitra, July

The Truthful Paraclete Pty Ltd, 2011, personal meeting and interview with Ronnie, July

Victorian Accommodation Centre, 2011, site interview with Joe, May

Is a written contract absolutely necessary? BRIC’S Darren Pavic explains why having it all in black and white is vital, no matter what size the project.

PQ1) ‘Without this document to assist your insurer defend a claim, they will be more inclined to seek the most expedient commercial settlement…’

Understanding the contractual liabilities that your business faces has become a critical part of managing the risks of a Building Surveyor. Contracts can be one of your most useful risk management tools, but they can also create some of the most significant exposures. In this article I will endeavour to provide an overview and some examples of how some contractual liabilities may have implications for the cover provided by your professional indemnity insurance policy.

Contractual liability can be defined as liability beyond common law or statute that is imposed by way of an agreement. It is where one party assumes the liability of another under a contract.

Use of a written contract is paramount however small the project. The practice of providing professional services without a written contract is fraught with danger. The principal benefit of having a written agreement is that it allows for you to clearly define the scope and therefore also the limitations on the services to be provided.

An example Building Surveyors often experience is where the building owner is under the false belief that the Building Surveyor is providing a “quality assurance” role checking what the builder is doing on their behalf. This belief often can lead to the building owner claiming against the Building Surveyor for defective workmanship by the builder.

Without these clearly defined scope of services there is increased risk for a divergence of expectations to occur which can lead to disputes. Apart from the above example, we see all too often Building Surveyors being dragged in to scattergun litigation for issues that fall outside the intended scope of their engagement. In the event of a dispute arising, you will be in a much better position to argue your case with a written agreement to fall back on.

The secondary benefit of a written agreement is that you may be able to use it to further manage risk by limiting your liability. Not only can you include within your contract a specific limitation on your liability for certain aspects of the project work, but you are also able to include a dollar amount which represents the extent of your financial liability.

Another major danger is the absence of a written contract. Without this document to assist your insurer defend a claim, they will be more inclined to seek the most expedient commercial settlement, which can have a significant impact upon your future insurance premiums and potentially your business reputation.

“The golden rule is to always use a written contract, with any written agreement likely to be better than none at all.”

You will experience contractual liability issues from two perspectives:-

1) Those liabilities being imposed upon you by your principal – generally major, clients.
2) Contracts where you have the opportunity to dictate your own terms and conditions

Where liabilities are imposed upon you they are usually imposed by way of hold harmless or indemnity clauses. Under such clauses one party promises to indemnify the other party against loss or claims brought against them by other parties.

An example of an onerous indemnity clause is as follows:

“The Building Surveyor will indemnify the Principal for any Claims or Loss arising from the Project”.

The above clearly extends the Building Surveyor’s liability far beyond that which would exist at common law, with a more equitable version being:

“The Building Surveyor will indemnify the Principal for Claims or Loss arising from a breach of professional duty in the provision of the Professional Services. The liability of the Building Surveyor is reduced to the extent that the Principal or other person(s) caused or contributed to the Loss or occurrence which gave rise to the Claim”.  

The above clause is equitable because it reflects the common law positions of the parties.

Assessing contracts is not as simple as reviewing the clauses of the contract titled “Indemnity” because indemnity or hold harmless clauses are often scattered throughout the contract, therefore contracts must be reviewed in their entirety.

It is therefore essential that you have either your own legal advisor review each agreement to identify these types of clauses and explain their effect for you, or established a pre-approved contractual document that you are able to use in each case.

“Insurers underwrite risks - they consistently refuse to provide opinions on our client’s contracts.”

What are the implications of contractual liabilities upon a Building Surveyor’s professional indemnity insurance (PI)?

Contracts usually contain clauses outlining the requirements for the parties to arrange insurance. Sometimes these requirements are worded quite simply, however they too require detailed review because seemingly simple clauses can contain onerous requirements.

An example is:

“The Building Surveyor must effect and maintain a professional indemnity insurance policy with a limit of indemnity of $1,000,000 for any claim(s) arising out of the provision of the professional services”.

The above clause is onerous in two respects; firstly it requires the limit of indemnity to apply to any claim(s) and therefore does not allow the policy to have an aggregate limit of indemnity. Secondly the use of the word “any” does not allow the policy to contain exclusions and therefore means that a policy containing exclusions of any type would not satisfy this clause.

We have reviewed more than twenty of the standard policy wordings in the Australian PI market. Whilst some policies do hold themselves out as extending cover to include contractual liabilities, all policies reviewed contained similar exclusions which have the effect of excluding liability imposed by contract and excluding liability created by the Insured agreeing to waive subrogation or recovery rights. An example is a policy containing the following extension:

“The Insurer will indemnify the Insured in respect of any Claim(s) made against the Insured for breach or alleged breach of contract for the provision of professional services in the conduct of the Business of the Insured”.

Whilst also containing exclusions as follows:

“The Insurer shall not be liable for any Claim(s) or loss arising from or in respect of or as a result of:

•  any liability assumed by the Insured under any express warranty, guarantee or agreement unless such liability would have attached to the Insured notwithstanding such express warranty, guarantee or agreement and;
• any liability, loss or damage in respect of which the Insured has at any time foregone, waived, excluded or limited a right of recovery”.

The above exclusions take back the cover provided by the extension, therefore the extension only provides benefit to the Insurer from a marketing perspective and offers no real benefit to the Insured.

“Some insurers claim their policy covers Contractual Liability but this is nothing more than a marketing gimmick as the wording excludes such liability”

The approach of Insurers on the issue of contractual liability is relatively consistent and involves the Insurer simply limiting their exposure to that which would have existed in the absence of the contractual liability, therefore leaving the Building Surveyor uninsured for their liability over and above this amount. Ensuring your contracts do not extend liability past what you are insured for is therefore paramount.

Ideally, each firm will have their own standard terms of engagement which have been custom drafted, based upon the relevant Australian Standard or other industry standard contract. The ability to impose your own contract terms upon your client is likely to be dependent upon market forces where clients impose contracts knowing the Building Surveyor is under competitive pressure to accept unreasonable terms and conditions. For most Building Surveyors the best possible outcome will be negotiation of equitable terms and conditions that are acceptable to both parties.

A contract can be as basic as having some standard clauses printed on the reverse side of your letterhead where your fee proposal or acceptance of a project offer simply refers to the terms and conditions on the reverse side.

The increasing complexity of contracts and the liabilities they may impose highlight the importance of obtaining the best possible advice. As a specialist PI broker we offer a contract review service to assist our clients in determining whether their insurance program satisfies their contractual insurance obligations as well as assisting in the identification of potential conflicts between their insurance program and other liabilities assumed under contract.

Finally I wish to limit my liability by confirming that this article is intended to provide general information rather than specific advice and BRIC does not accept any liability for loss or damage arising from reliance upon the information provided. If you require advice specific to your circumstances please contact us. 

Darren Pavic is the Broking Manager of Bovill Risk & Insurance Consultants Pty Ltd (BRIC). BRIC is the only specialist professional indemnity Insurance Broker recommended by AIBS. For further information contact Darren at darrenp@bric.com.au or phone 1800 077 933

Hank Van Ravenstein
Unitech Consultants Pty Ltd
&
Stephen Kip
FIEAust, M. Eng
BodyCote WarringtonFire

INTRODUCTION

The Victorian Office of Housing of the Department of Human Services (DHS) is responsible for 44 high-rise apartment buildings throughout the Melbourne metropolitan area in Victoria, Australia.

As part of the Departments ongoing responsibility to ensure these buildings continue to meet acceptable community standards it was decided to establish a voluntary fire safety upgrade program for these buildings, to be implemented progressively across all buildings, as funds and needs dictated.  This paper describes that process and how the project was developed and implemented.

BACKGROUND

Governments have traditionally constructed residential accommodation buildings for a range of building occupants in the community.  In Victoria from the late 1950’s onwards 44 high-rise apartment buildings were constructed to house residents who could otherwise not afford rental housing accommodation.  These buildings utilised the fire safety approach common at the time including substantial passive fire protection between apartments and internal manual fire-fighting equipment.

Since then new technologies and a change in regulatory focus from passive to active fire safety systems (particularly fire sprinklers and smoke detection) has resulted in these buildings varying substantially from what would be required of a similar building constructed to today’s minimum regulatory standards (the Building Code of Australia).

Whilst existing buildings do not necessarily need to meet current standards, Governments have a significant duty of care to continually consider and assess the level of fire safety in premises they own and operate.  Included within this duty of care obligation is an assessment as to whether or not an existing building ought to be upgraded to meet current standards.

The project was developed in two parts as follows:

Part 1:

• Appointment of a Fire Safety Engineer (FSE)1 to develop a generic ‘Fire Safety Strategy’ for the upgrade of typical high-rise housing apartment buildings including a review of the current prescriptive fire safety requirements of the Building Code of Australia (BCA), to determine reasonable levels of fire safety upgrade for existing buildings.
• Appointment of a Relevant Building Surveyor (RBS)2 to review the BCA compliance issues and grant the necessary approvals for any upgrade work.
• Consultation with the relevant fire brigade (MFB)3, FSE and RBS to develop a generic ‘Fire Safety Engineering Design Brief’ in accordance with the Fire Safety Engineering Guidelines4.
• Development of a guideline and template for a typical fire brigade consent processes5 that may be required so that subsequent building specific submissions would be consistently and reliably considered and approved by the fire brigade.
• Approval of the final ‘Fire Safety Strategy’ within the ‘Fire Safety Engineering Brief’ by all relevant stakeholders.

Once this process was complete, the DHS allocated funding as it became available to each individual building.  For each building the following approach was taken.

Part 2:

• A site inspection and review of existing conditions and fire safety systems in each building by the FSE and RBS.
• Preparation of a Fire Safety Engineering Report by the FSE to assess and then confirm compliance with the Fire Safety Strategy, including any recommended upgrade measures necessary.
• Preparation of site specific fire brigade dispensation applications5 for matters such as booster and fire panel locations, available water supply etc, as needed.
• Preparation of an ‘Essential Safety Measures Maintenance Schedule’6 based on the existing and new fire safety systems in the building.
• Final approval and sign-off by the fire brigade, FSE and RBS of the upgrade work.

The assessment of the high-rise buildings was undertaken in conjunction with the MFB, FSE and RBS and the Engineering Services Branch, Asset Improvement of the Department of Human Services Victoria, to implement a consistent program of works.  The aim of the process was to provide a standardised level of fire safety for all the High-rise buildings, over agreed timeframes.  This process is now published by DHS as Capital Development Guideline, 7. 9 Fire risk management for multi-storey housing7.

ISSUES FOR THE BUILDING OWNER

Prior to the commencement of the general high-rise upgrade program and prior to the Fire Safety Engineering Report there had not been a consistent approach to the interpretation of the Fire Safety requirements of the Building Code of Australia.  The issue for the Office of Housing was that Building Surveyors, Municipal Councils and Fire Safety Engineers could arrive at differing interpretations of ‘reasonable’ levels of fire safety8for an existing building and even differing interpretations of how to apply the BCA to any new work required.  This resulted in a multiplicity of different solutions across all the High-rise buildings.

BACKGROUND TO THE FIRE SAFETY STRATEGY

Building regulations are not usually retrospective, i.e. they do not require upgrading of existing buildings to present day requirements except in special circumstances9 such as special retrospective legislation, or where major building work or a change of use is proposed.

Even where existing buildings are recycled or refurbished compliance with present day requirements is not automatically required.  For example, the Guidelines for achieving fire safety when recycling a building published by the Australian Uniform Building Regulations Coordinating Council (now the Australian Building Codes Board who also publish the BCA) states;

"it should not automatically be a cause for concern if a re-cycled building exhibits a level of fire safety somewhat lower or different from that which would arise from a full application of all BCA (DtS) requirements ".

This means the minimum technical standard required of an existing building is usually the building regulations (if any) applicable at the time of original construction of the building, then any retrospective legislation applicable to existing buildings (i.e. smoke alarms, sprinklers, swimming pool fencing etc) then any upgrade safety matters required by the relevant authorities10.  The maximum possible requirement for existing buildings is generally the BCA Performance Requirements, which is the minimum requirement for new buildings).  This process is described graphically in Diagram no. 1.

As the buildings date back more than 40 years, the regulations applicable at that time have not been considered, instead the BCA performance requirements were used as the reference benchmark, in the first instance.

This review also raised the issue of whether existing buildings could be assessed as complying with the BCA Performance Requirements, when compliance with the relevant fire safety provisions of the Deemed-to-Satisfy (DtS) Provisions of the BCA was not achieved.  This has always been a potential outcome of determining compliance with the BCA, but is not commonly used.

Diagram 1: Compliance guide for safety levels in existing building

THE DHS FIRE RISK ASSESSMENT PROCESS

DHS defines the fire risk management process11 as the process of determining by fire safety audits, fire safety re-audits and fire risk assessments whether an appropriate level of fire safety (the agreed fire safety strategy) is achieved in a building.  The objective of a fire risk assessment is to satisfy the relevant performance requirements of the BCA for all buildings, regardless of age and to include any additional supplementary objectives which may apply.  The management of this cyclic process includes these stages:

Stage 1: Undertake a building fire safety audit of the existing building.

Note: For most buildings the audit objectives will be to determine compliance with the relevant fire safety provisions of the Deemed-to-Satisfy (DtS) Provisions of the BCA. The audit criteria will be to satisfy the relevant fire safety Performance Requirements of the BCA and these Guidelines.

Stage 2: Undertake the appropriate fire risk assessment to develop a fire safety strategy and assess the audit findings against the fire safety strategy.  Where the audit findings indicate variations from the relevant fire safety provisions of the Deemed-to-Satisfy (DtS) Provisions of the BCA, the fire risk assessment process, in accordance with the methodology in the IFEG, can be used to determine whether any further measures are necessary.

Note: The fire safety strategy will be to comply with these guidelines (including the relevant performance requirements of the BCA and any supplementary objectives) and the fire risk assessment will include outcomes that may require work to be undertaken or systems to be installed, training to be implemented and recommendations for ongoing maintenance, verification and management of the fire safety systems and staff and occupant profiles. Even if the building completely complies with the Deemed-to-Satisfy (DtS) Provisions of the BCA, a fire risk assessment must be undertaken to address all fire safety matters.

Stage 3: Approval of the fire safety strategy and Fire Engineering Report (FER) outcome.

Stage 4: Preparation of a fire safety handbook for the building. The fire safety handbook is to document the fire safety strategy developed in the fire risk assessment.

Stage 5: Implementation of the program of work, training and maintenance (including annual essential safety measures and Department of Human Services reporting requirements).

Stage 6: Undertake a fire safety re-audit (after no more than 5 years) to confirm the original fire safety strategy is being satisfied.

Note: The audit and re-audit process confirms the fire safety strategy to support life safety, planning and budgeting on a five year rolling basis. The audit criteria will be to satisfy the fire safety strategy documented in the fire safety handbook (that is, the purpose of a re-audit is to confirm the original fire safety strategy is being satisfied). It is not usually the intention or outcome of a re-audit that existing fire safety systems be replaced or updated only because they may have become superseded by amendments to the relevant fire safety provisions of the DtS provisions of the BCA since the original audit. Where those regulatory changes have occurred, they must be considered as part of a fire risk assessment.

Stage 7: Implementation of the program of work, training and maintenance that may have resulted from the fire safety re-audit.

Note: Where a building has not substantially been altered or changed since the original audit, it is not expected that these works (if any) would be significant.

Stage 8: A new fire safety audit for the building, after no more than 10 years.

Note: For most buildings the audit objectives will be to determine compliance with the relevant fire safety provisions of the Deemed-to-Satisfy (DtS) Provisions of the BCA and the audit criteria will be to satisfy the relevant fire safety Performance Requirements of the BCA and these Guidelines, current at that time. Where these have not changed significantly in the previous 10 year period the new fire safety strategy may not be significantly different to the original.

DHS Guideline 7.97 includes the prescriptive outcomes of a generic fire risk assessment and therefore compliance with the Guideline satisfies the requirement for a fire risk assessment.

DEVELOPING THE DHS CAPITAL DEVELOPMENT GUIDELINE, 7. 9 FIRE RISK MANAGEMENT FOR MULTI-STOREY HOUSING

The Part 1 generic Fire Safety Strategy provided a consistent fire engineering and legislative approach for the upgrade of all the Director of Housing Victoria owned High-rise buildings; enabling appropriately qualified professional advisers such as registered Fire Safety Engineers and Building Surveyors, to audit and assess fire compliance, including assessing and reporting on acceptable standards of fire safety, in specific buildings.

The DHS negotiated with the MFB, FSE and several Relevant Building Surveyors12 with a view to assessing the buildings and arriving at a consistent view to be applied across all the DHS owned High-rise buildings.

Each building was inspected and a report prepared determining and reviewing the existing conditions and fire safety systems, with the assessment encompassing all the applicable elements of the building related to the fire safety components which were set against the objectives and limitations of the BCA, with the aim to increase the level of fire safety to an acceptable statutory standard.

The standard was set out in the Part 1 generic Fire Safety Strategy and this effectively established a mutually agreed position between the stakeholders.

Following the Part 1 generic Fire Safety Strategy, a Fire Engineering Brief (“FEB”) was prepared for each building which outlined the methodology and requirements necessary for the conceptual fire safety strategy to be determined.  After acceptance of the FEB the Fire Engineering Report (FER) was then developed so as to confirm compliance with the Fire Safety Strategy, BCA and Building Regulations (the report followed a similar methodology to that in the Fire Engineering Guidelines, Second Edition, for an Evaluation Extent 2 System Performance Evaluation) for each building that was based on the FEB.

OBJECTIVES

The objectives of the fire safety upgrade were based on increasing the level of fire safety in excess of that already afforded within the building, having regard to their statutory obligations.  It should be noted that the buildings were constructed to the statutory levels at the time of construction and the generic Fire Safety Strategy is in excess of minimum statutory requirements.

The main objectives of the FEB were to:-

• characterise and define the fire safety issues;
• identify the potential fire hazards;
• confirm the conceptual fire safety strategy; and
• define one or more trial concept designs that were considered likely to satisfy the fire safety criteria.

The key elements of the FER process were to:

• secure agreement from all parties as to the design objectives and acceptance criteria;
• agree on a conceptual fire safety strategy; and
• specify the trial concept design and requisite fire scenarios for analysis.

FIRE SAFETY ASSESSMENT

As part of the Part 1 assessment process the following summary table13was determined outlining the various Building Code of Australia requirements as they relate to fire safety and indication of the level of compliance to relevant clauses of the code.

CONCLUSION

The process described herein has developed a consistent fire safety upgrade program for the 44 DHS high-rise buildings to ensure these buildings continue to meet acceptable community standards.  The program is being implemented progressively across all buildings, as funds and needs dictate.

The project highlights that building owners can voluntarily undertake fire safety upgrade programs, in consultation with relevant authorities, by using appropriate engineering methodologies and procedures, without fear of unnecessary, expensive or unexpected outcomes.

FOOTNOTES

Warrington Fire Research (Aust) Pty Ltd now known as BodyCote WaringtonFire (Aust) Pty Ltd, see http://www.wfra.com.au/.

Design Guide Building Surveyors.

The Metropolitan Fire and Emergency Services Board

The Fire Engineering Guidelines Second Edition, now known as the International Fire Engineering Guidelines, Edition 2005, published by the Australian Building Codes Board, Canberra, Australia.

In Victoria, all building work that includes fire safety matters that relate to fire-fighting operations and do not meet the Deemed-to-Satisfy Provisions of the BCA, must obtain the consent of the fire brigade in accordance with Regulation 309 of the Building Regluations 2006.

In the State of Victoria, all buildings, other than Class 1 single dwellings, require essential safety measures to be maintained and verified on at least an annual basis. Examples of essential safety measures are smoke alarms, sprinklers, exits and exit doors and floor and wall linings. Further details, and a copy of the required annual essential safety measures report form, are available here ...

Available here ...

The Building Act 1993 and Building Regulations 2006 allow a Relevant Building Surveyor to dispense from BCA compliance and allow a ‘reasonable’ level of compliance, in certain circumstances (Regulations 502, 503, 608, 609 and 1011 of the Building Regulations 2006).

Under the Building Act 1993 these special circumstances include; installation of smoke detectors in existing domestic buildings (including the DHS high-rise apartments), installation of swimming pool safety barriers to existing pools, and installation of fire sprinklers to certain residential buildings (not required for the DHS high-rise apartments).

The Building Act 1993 only has power to require upgrade work in existing buildings when the use of the building contravenes the Act or the building regulations; the building is unfit for occupation; or the building is a danger to the life, safety or health of any member of the public or of any person using the building, land or place or to any property.

See Section 5 of Guideline 7.1 here ...

Once the Part 1 process was completed, any appropriately qualified and experienced registered building surveyor was able to undertake the project, in a consistent manner.

Extract from the FEB

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