Fire safety upgrade order NSW: existing building fire upgrades

What triggers a council fire safety upgrade order on an existing NSW building, the notice process, and your appeal window.

A fire safety upgrade order is a council power, used against an existing building, to compel the owner to install or improve specific fire safety measures by a set deadline. It is a different instrument to the annual fire safety statement. The AFSS certifies that measures already on the building's fire safety schedule still perform. An upgrade order can put a measure onto that schedule for the first time, or require an existing one to be improved to a higher standard, and it can do this even if every AFSS the building has ever lodged was on time.

Where the power comes from

Councils, acting as the relevant enforcement authority, have the power to issue orders to the owner of a building requiring them to do such things as are necessary to promote adequate fire safety in the building, under sections 9.34, 9.35 and 9.36 and Schedule 5, Parts 1 to 3 of the Environmental Planning and Assessment Act 1979 (NSW). Orders made under this power can require that work be completed to bring the building into compliance with the Building Code of Australia, and that the property not be occupied until that work is done. The person issuing the order also sets the compliance timeframe.

What actually triggers one

There is no general legal requirement for an existing building to upgrade every time a fire safety standard changes. Building codes get updated over the years, but older buildings are not automatically forced to keep pace. The practical effect is that many buildings in NSW do not meet current standards, and orders are commonly given by council to enforce the requirement for those specific items to be upgraded. That is the single most common trigger: a council inspection, or a complaint, that turns up a measure the building never had or one that has fallen behind current expectations for that class of building.

The second common trigger is dilapidation. Where fire safety measures or the structures around them have been poorly maintained, to the point they can no longer be relied on to perform, a council can order the owner to fix them. This overlaps with, but is separate from, an AFSS assessment finding a measure has failed. A council-issued order carries its own legal weight and its own deadline, on top of whatever an accredited practitioner's report says.

An upgrade order can also follow a development step. A council can connect a fire safety order to a construction certificate, a complying development certificate, or a development consent, for example where a building's use changes. If your building is going through a DA or CDC process, ask early whether the fire safety schedule is expected to change as a condition of that approval, rather than finding out only once the order arrives.

The notice of intention: your first, and best, chance to respond

Before an order is issued, the council must send a notice of intention to the owner, including details of what the order will require and the proposed time for compliance. This is not the final order. It is the point where the owner can make representations to the council about the proposed content or the timeframe, before anything is locked in.

City of Sydney's published practice gives the owner 14 days from the date the notice of intention was issued to indicate they want to make representations, in writing, and the owner can be represented by a solicitor or an agent at that stage. Other NSW councils commonly run a similar notice period, often described as around two weeks for a submission either opposing the order or seeking changes to its terms. Get advice as soon as the notice arrives, not after the final order is issued: this window is where the scope and deadline are still negotiable.

What the order can actually require you to do

The work named in an upgrade order ranges from small to major. Common examples include installing emergency lighting or a smoke detection system, through to bigger jobs such as a hydrant system or a new fire stair. Council sets what is required and by when, and in more serious cases the order can specify that the building must not be occupied until the work is finished. The council can also require the owner to pay the cost of monitoring compliance with the order, on top of the cost of the work itself.

Once the required work is finished, council and Fire and Rescue NSW require a Final Fire Safety Certificate confirming every fire safety measure named in the order now performs, reflecting the fire safety schedule the order was issued against. From that point, the measure joins the building's ordinary annual certification cycle: the next AFSS has to address it like every other measure on the schedule.

If you don't act: appeal rights and what happens next

Once a fire safety upgrade order is made, the owner can challenge all or part of it in the Land and Environment Court of NSW within 28 days of receiving the order. That right applies to the whole order or to a specific part of it, for example a disputed deadline rather than the requirement itself. Outside that window, the order stands. No further room to negotiate the terms, only the choice to comply or face the council's next enforcement step, which in the more serious cases means court proceedings.

An order that has been issued and not resolved does not sit quietly. Some councils and lenders treat an active fire safety order as material to a building's risk profile, which is one more reason to deal with the scope and timeframe through the notice-of-intention stage rather than waiting to see how strictly it gets enforced.

How this differs from your annual fire safety statement

The AFSS is a routine, once-a-year certification that every measure already on the schedule still performs to standard. It runs on its own fixed anniversary and does not, by itself, add new measures to the schedule. An upgrade order works the other way. It is a council-initiated action that can add a measure to the schedule or lift the required standard for one already there, on the council's own timeframe, not the building's AFSS anniversary. A building can be fully up to date on every AFSS it has ever lodged and still receive an upgrade order, because the two processes answer different questions: the AFSS asks whether existing measures still work, the order asks whether the building's fire safety measures are still adequate at all.

Frequently asked questions

Is a fire safety upgrade order the same thing as a fire safety order?

They come from the same power. A fire safety upgrade order is the version of a fire safety order aimed at bringing an existing building's measures up to a current standard, issued under sections 9.34 to 9.36 and Schedule 5 of the Environmental Planning and Assessment Act 1979. Councils and industry sources use both terms for the same instrument.

How long do I have to respond before an upgrade order is finalised?

The notice of intention is your window. City of Sydney's published practice allows 14 days from the notice date to indicate you want to make representations, and other councils commonly run a similar period, often described as around two weeks. Once the final order issues, that negotiation window has closed.

Can I appeal a fire safety upgrade order once it's issued?

Yes. An owner can challenge all or part of the order in the Land and Environment Court of NSW within 28 days of receiving it. That includes challenging a specific term, such as the deadline, without disputing the whole order.

Does an upgrade order mean my building failed its annual fire safety statement?

Not necessarily. An upgrade order can be issued through a council inspection, a complaint, or a development approval condition, entirely separate from the AFSS cycle. A building can have a clean AFSS history and still receive an order requiring a new or improved measure.

Sources

• City of Sydney, register your annual fire safety statement (late-lodgement penalty schedule and Land and Environment Court maximum penalty).
• Bannermans Lawyers, fire safety upgrade orders (bannermans.com.au).
• Inner West Council, fire safety (innerwest.nsw.gov.au).
• Fire Safety Practitioners, fire orders NSW (firesafetypractitioners.com.au).

This is general information, not legal or compliance advice. Check requirements and figures with your council and the FPAA register.

More guides

• AFSS compliance checklistThe steps to keep a NSW building's annual fire safety statement on time and valid, in order.
• AFSS cost guide: what drives the priceWhat Sydney providers publish for AFSS certification fees, what drives the price up or down, and why a quote without your schedule is a guess.
• New to owning a building? Your first AFSSIf you have just taken on an existing building, here is what the annual fire safety obligation means for you.
• NSW fire safety compliance statisticsOfficial figures on automatic fire alarm responses and building fire incidents in NSW, drawn from Fire and Rescue NSW published data and open data statistics.
• Accredited practitioner vs competent fire safety practitioner in NSWBoth terms refer to the same specialist role in NSW. The name changed on 1 July 2020. Here is what each means and which one you need for your annual fire safety statement today.
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