Building Amendment Regulations 2009 (WA)

No judgment structure available for this case.

31 July 2009 GOVERNMENT GAZETTE, WA 3017
— PART 1 —
CONSUMER AND EMPLOYMENT PROTECTION
CE301*
Local Government (Miscellaneous Provisions) Act 1960
Building Amendment Regulations 2009

Made by the Governor in Executive Council under the Local Government
(Miscellaneous Provisions) Act 1960 section 248 and the Local
Government Act 1995 section 9.60.
1.             Citation

These regulations are the Building Amendment Regulations
2009.
2.             Commencement
These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette (gazettal day);
(b) the rest of the regulations —
(i)      if gazettal day is before 1 October 2009 — on 1 October 2009; or
(ii)      if gazettal day is, or is after, 1 October 2009 — on the day after gazettal day.

3. Regulations amended
These regulations amend the Building Regulations 1989.
4. Regulation 38H amended

In regulation 38H(1) delete “section 9.16(1) of the Act.” and
insert —
the Local Government Act 1995 section 9.16(1).

3018

GOVERNMENT GAZETTE, WA

31 July 2009

5. Part 10A inserted
After regulation 38H insert:
Part 10A — Smoke alarms in certain buildings

38I. Terms used

(1) In this Part, unless the contrary intention appears —
approved alternative building solution means a
building solution that was approved in accordance with
the Building Code by the local government of the
district in which the dwelling is located on the basis
that the solution met the performance requirement in
the Building Code relating to fire detection and early
warning (other than the requirements relating to
evacuation lighting);
dwelling means —

(a) a class 1 building; or
(b) a unit in a class 2 building; or
(c) a class 4 dwelling;
electrician has the meaning given in the Electricity
(Licensing) Regulations 1991 regulation 3(1);
owner, of a dwelling, means a person who holds an
interest in land that entitles the person to the ownership
of the dwelling;
residential tenancy agreement means a residential
tenancy agreement to which the Residential Tenancies
Act 1987 applies;
unit, in the definition of dwelling, means a room or
suite of rooms, and any associated parts of the building,
constituting a single dwelling for the exclusive
occupation of the occupant;
10 year life battery means a battery that is capable of powering a smoke alarm for at least 10 years without the alarm indicating the battery power is low.

(2) For the purposes of this Part, a smoke alarm —

(a)

is connected to the mains power supply if it is electrically connected to a permanent supply of electricity to the dwelling; and

(b)

is permanently connected if an electrician would ordinarily be required to connect or disconnect the alarm.

(3) For the purposes of this Part, an owner of a dwelling
transfers the ownership of it if —

(a)

the owner executes an instrument of transfer or conveyance of the interest in land that entitles the owner to the ownership of the dwelling; and

31 July 2009 GOVERNMENT GAZETTE, WA 3019

(b)

the person to whom the interest is to be transferred or conveyed obtains possession of the dwelling under or in anticipation of the transfer or conveyance.

(4) For the purposes of the definition of dwelling, the class
of a building or a part of a building is its class
according to —

(a)

its certificate of classification under regulation 20; or

(b)

if there is no certificate of classification for the building or part — the Building Code.

38J. Requirement to have smoke alarms or similar prior
to transfer of a dwelling

If an owner of a dwelling transfers the ownership of it, the owner must, to the extent practicable, ensure that at the time of the transfer —

(a)

the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(1); or

(b)

if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.
Penalty: a fine of $5 000.

38K. New owner must install smoke alarms or similar,
and right to recover costs

(1) If an owner of a dwelling (the prior owner) transfers
the ownership of it and fails to comply with
regulation 38J, the person to whom the ownership is
transferred (the new owner) must, within 12 months of
the ownership being transferred, ensure that —

(a)

the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(1); or

(b)

if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.
Penalty: a fine of $5 000.

(2) The new owner may recover, in a court of competent
jurisdiction, the reasonable costs of complying with
subregulation (1) as a debt due from the prior owner.

38L. Requirement to have smoke alarms or similar prior
to tenancy

(1) If an owner of a dwelling lets the dwelling under a
residential tenancy agreement, the owner must, to the

3020

GOVERNMENT GAZETTE, WA

31 July 2009

extent practicable, ensure that, within 14 days after the
day on which a person is entitled to enter into
occupation of the dwelling under the agreement —

(a)

the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(1); or

(b)

if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.
Penalty: a fine of $5 000.

(2) Subregulation (1) does not apply in relation to
residential tenancy agreements entered into with
at least one person who was already in occupation of
the dwelling as a tenant.
(3) The owner of a dwelling rented under a residential
tenancy agreement, or made available for such rent,
must, to the extent practicable, ensure that —

(a)

the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(3); or

(b)

if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.
Penalty: a fine of $5 000.

(4) Subregulation (3) does not have effect before
1 October 2011, and subregulations (1) and (2) cease to
have effect on that day.

38M. Requirement to have smoke alarms or similar prior
to hire of a dwelling

(1) The owner of a dwelling must not make the dwelling
available for hire unless —

(a)

the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(3); or

(b)

if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.
Penalty: a fine of $5 000.

(2) Subregulation (1) does not have effect before
1 October 2011.

38N. Requirements for smoke alarms

(1) The requirements for the purposes of regulation 38J(a),
38K(1)(a) and 38L(1)(a) are that —

(a)

the dwelling meets the requirements of the deemed-to-satisfy provisions about smoke alarms or smoke hazard management (other

31 July 2009 GOVERNMENT GAZETTE, WA 3021
than the provisions about evacuation lighting) of the Building Code applicable at the time of installation of the alarms; and

(b) each smoke alarm necessary to meet those requirements was installed less than 10 years before the transfer day; and
(c) each smoke alarm referred to in paragraph (b) is in working order; and
(d) if a smoke alarm referred to in paragraph (b) was, at the time of its installation, required to be connected to the mains power supply to
meet those requirements —
(i)      the alarm is permanently connected to the mains power supply; or
(ii)      if the alarm is to be installed at a location in the dwelling where there is no hidden space in which to run the necessary electrical wiring and there is no appropriate alternative location — the alarm has a 10 year life battery that cannot be removed; or
(iii)      if, in relation to the alarm, the use of a battery powered smoke alarm has been approved under regulation 38O — the alarm has a 10 year life battery that
cannot be removed.

(2)

For the purposes of subregulation (1)(a), if the dwelling has 2 or more smoke alarms installed and they were not all installed at the same time, the provisions of the

Building Code applicable to the dwelling and the alarms are the provisions applicable at the time that the last alarm necessary to meet the requirements referred to in subregulation (1)(a) and (b) was installed.
(3) The requirements for the purposes of
regulation 38L(3)(a) and 38M(1)(a) are that —

(a) the dwelling meets the requirements of the deemed-to-satisfy provisions about smoke alarms or smoke hazard management (other
than the provisions about evacuation lighting) of the Building Code applicable at the time of installation of the alarms; and

(b) each smoke alarm referred to in paragraph (a) is in working order; and
(c) if a smoke alarm referred to in paragraph (a) was, at the time of its installation, required to be connected to the mains power supply to
meet those requirements —
(i) the alarm is permanently connected to the mains power supply; or

3022

GOVERNMENT GAZETTE, WA

31 July 2009

(ii) if the alarm is to be installed at a location in the dwelling where there is no hidden space in which to run the necessary electrical wiring and there is no appropriate alternative location — the alarm has a 10 year life battery that cannot be removed; or
(iii) if, in relation to the alarm, the use of a battery powered smoke alarm has been approved under regulation 38O — the alarm has a 10 year life battery that
cannot be removed.

(4) For the purposes of subregulation (3), if the dwelling
has 2 or more smoke alarms installed and they were not
all installed at the same time, the provisions of the
Building Code applicable to the dwelling and the
alarms are the provisions applicable at the time that the
last alarm necessary to meet the requirements referred
to in subregulation (3)(a) was installed.
(5) In subregulation (1)(b) —
transfer day means the day on which —

(a)

the owner transfers the ownership of the dwelling; or

(b)

a person is entitled to enter into occupation of the dwelling under a residential tenancy agreement.

38O. Local government approval of battery powered
smoke alarms

(1) The local government of the district in which a
dwelling is located may approve of the use, in the
dwelling or a part of the dwelling, of a battery powered
smoke alarm (rather than one that is connected to the
mains power supply) if satisfied that, at the time of
giving the approval, installing a smoke alarm
connected to the mains power supply would involve —

(a) a sufficient problem of a structural nature; or

(b)

a sufficient problem of any other nature, the cause of which is not within the control of the owner.

(2)

The local government may give its approval in relation to an alarm that was installed before the approval is to be given.
(3) An application for approval must be made in the
manner and form approved by the local government,
and must include or be accompanied by —

(a)

the plans and information required by the local government; and

31 July 2009 GOVERNMENT GAZETTE, WA 3023

(b)

the fee set by the local government, which cannot exceed $170.

(4) The local government is to be taken to have refused
approval if it has not made a decision whether to give
approval within 35 days after the later of —

(a)

the day on which the person made the application for approval; or

(b)

the day on which the person complied with a, or the latest, request by the local government for further plans or information.

38P. Requirement to maintain certain smoke alarms

(1) This regulation applies to an owner of a dwelling —

(a)

who is also an owner, in relation to the dwelling, within the meaning given in the Residential Tenancies Act 1987 section 3; or
(b) who makes the dwelling available for hire.

(2) The owner must, to the extent practicable —

(a) ensure that each alarm installed in the dwelling is in working order; and
(b) if an alarm was, at the time of its installation, required to be connected to the mains power supply, ensure that the alarm —
(i)      is permanently connected to the mains power supply; or
(ii)      if the alarm is to be installed at a location in the dwelling where there is no hidden space in which to run the necessary electrical wiring and there is no appropriate alternative location — the alarm has a 10 year life battery that cannot be removed; or
(iii)      if, in relation to the alarm, the use of a battery powered smoke alarm has been approved under regulation 38O — has a

10 year life battery that cannot be
removed;

and

(c) ensure that each alarm installed in the dwelling —
(i) has not reached its expiry date if one is provided on the alarm; or
(ii) is not more than 10 years old if no expiry date is provided on the alarm.

3024

GOVERNMENT GAZETTE, WA

31 July 2009

(3)

An authorised person may inspect a dwelling referred to in subregulation (1) to determine whether the owner is complying with subregulation (2).

(4)

If the authorised person is satisfied that the owner has failed to comply with subregulation (2), he or she may give the owner a rectification notice.
(5) A decision to give a rectification notice is a decision to
which the Local Government Act 1995 Part 9
Division 1 applies and the owner is an affected person
for the purposes of that Division.
(6) A rectification notice must —

(a) be in the approved form; and
(b) specify the failure to comply; and

(c)

specify the time within which the failure to comply must be rectified; and
(d) set out the effect of subregulation (5).

(7) A rectification notice may set out what the owner must
do to rectify the failure to comply.
(8) A person given a rectification notice must comply with
it.
Penalty: a fine of $5 000.
(9) A local government may authorise a person with
appropriate experience and qualifications to be an
authorised person for the purposes of this regulation.

38Q. Infringement notices

(1)

The offences of failing to comply with regulation 38J, 38L(1) or (3), 38M(1) or 38P(8) are prescribed for the purposes of the Local Government Act 1995
section 9.16(1).
(2) The modified penalty that is to be specified in an
infringement notice given in relation to an alleged
offence under one of those provisions is —

(a)

for an alleged offence under regulation 38P(8) — $1 000;
(b) in any other case — $750.

By Command of the Governor,
PETER F. CONRAN, Clerk of the Executive Council.

Actions

Download as PDF Download as Word Document

Citations

Building Amendment Regulations 2009 (WA)

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0

(a)	regulations 1 and 2 — on the day on which these regulations are published in the Gazette (*gazettal day*);
(b)	the rest of the regulations —

38I.	Terms used
(1)	In this Part, unless the contrary intention appears —
*approved alternative building solution* means a building solution that was approved in accordance with the Building Code by the local government of the district in which the dwelling is located on the basis that the solution met the performance requirement in the Building Code relating to fire detection and early warning (other than the requirements relating to evacuation lighting);
*dwelling* means —

(a)	a class 1 building; or
(b)	a unit in a class 2 building; or

(a)	is connected to the mains power supply if it is electrically connected to a permanent supply of electricity to the dwelling; and
(b)	is permanently connected if an electrician would ordinarily be required to connect or disconnect the alarm.

(a)	its certificate of classification under regulation 20; or
(b)	if there is no certificate of classification for the building or part — the Building Code.

38J.	Requirement to have smoke alarms or similar prior to transfer of a dwelling
If an owner of a dwelling transfers the ownership of it, the owner must, to the extent practicable, ensure that at the time of the transfer —

(a)	the dwelling has smoke alarms installed so that the dwelling and the alarms comply with the requirements of regulation 38N(1); or
(b)	if an approved alternative building solution applies in relation to the dwelling — the solution is in effect.

38K.	New owner must install smoke alarms or similar, and right to recover costs
(1)	If an owner of a dwelling (the *prior owner) transfers the ownership of it and fails to comply with regulation 38J, the person to whom the ownership is transferred (the new owner*) must, within 12 months of the ownership being transferred, ensure that —

(2)	The new owner may recover, in a court of competent jurisdiction, the reasonable costs of complying with subregulation (1) as a debt due from the prior owner.
38L.	Requirement to have smoke alarms or similar prior to tenancy
(1)	If an owner of a dwelling lets the dwelling under a residential tenancy agreement, the owner must, to the

(2)	Subregulation (1) does not apply in relation to residential tenancy agreements entered into with at least one person who was already in occupation of the dwelling as a tenant.
(3)	The owner of a dwelling rented under a residential tenancy agreement, or made available for such rent, must, to the extent practicable, ensure that —

(4)	Subregulation (3) does not have effect before 1 October 2011, and subregulations (1) and (2) cease to have effect on that day.
38M.	Requirement to have smoke alarms or similar prior to hire of a dwelling
(1)	The owner of a dwelling must not make the dwelling available for hire unless —

(2)	Subregulation (1) does not have effect before 1 October 2011.
38N.	Requirements for smoke alarms
(1)	The requirements for the purposes of regulation 38J(a), 38K(1)(a) and 38L(1)(a) are that —

(b)	each smoke alarm necessary to meet those requirements was installed less than 10 years before the transfer day; and
(c)	each smoke alarm referred to in paragraph (b) is in working order; and
(d)	if a smoke alarm referred to in paragraph (b) was, at the time of its installation, required to be connected to the mains power supply to

(2)	For the purposes of subregulation (1)(a), if the dwelling has 2 or more smoke alarms installed and they were not all installed at the same time, the provisions of the
Building Code applicable to the dwelling and the alarms are the provisions applicable at the time that the last alarm necessary to meet the requirements referred to in subregulation (1)(a) and (b) was installed.
(3)	The requirements for the purposes of regulation 38L(3)(a) and 38M(1)(a) are that —

(4)	For the purposes of subregulation (3), if the dwelling has 2 or more smoke alarms installed and they were not all installed at the same time, the provisions of the Building Code applicable to the dwelling and the alarms are the provisions applicable at the time that the last alarm necessary to meet the requirements referred to in subregulation (3)(a) was installed.
(5)	In subregulation (1)(b) —
*transfer day* means the day on which —

(a)	the owner transfers the ownership of the dwelling; or
(b)	a person is entitled to enter into occupation of the dwelling under a residential tenancy agreement.

38O.	Local government approval of battery powered smoke alarms
(1)	The local government of the district in which a dwelling is located may approve of the use, in the dwelling or a part of the dwelling, of a battery powered smoke alarm (rather than one that is connected to the mains power supply) if satisfied that, at the time of giving the approval, installing a smoke alarm connected to the mains power supply would involve —

(a)	a sufficient problem of a structural nature; or
(b)	a sufficient problem of any other nature, the cause of which is not within the control of the owner.

(2)	The local government may give its approval in relation to an alarm that was installed before the approval is to be given.
(3)	An application for approval must be made in the manner and form approved by the local government, and must include or be accompanied by —

(a)	the day on which the person made the application for approval; or
(b)	the day on which the person complied with a, or the latest, request by the local government for further plans or information.

38P.	Requirement to maintain certain smoke alarms
(1)	This regulation applies to an owner of a dwelling —

(a)	who is also an owner, in relation to the dwelling, within the meaning given in the Residential Tenancies Act 1987 section 3; or
(b)	who makes the dwelling available for hire.

(a)	ensure that each alarm installed in the dwelling is in working order; and
(b)	if an alarm was, at the time of its installation, required to be connected to the mains power supply, ensure that the alarm —

(3)	An authorised person may inspect a dwelling referred to in subregulation (1) to determine whether the owner is complying with subregulation (2).
(4)	If the authorised person is satisfied that the owner has failed to comply with subregulation (2), he or she may give the owner a rectification notice.
(5)	A decision to give a rectification notice is a decision to which the Local Government Act 1995 Part 9 Division 1 applies and the owner is an affected person for the purposes of that Division.
(6)	A rectification notice must —

(a)	be in the approved form; and
(b)	specify the failure to comply; and
(c)	specify the time within which the failure to comply must be rectified; and
(d)	set out the effect of subregulation (5).

(7)	A rectification notice may set out what the owner must do to rectify the failure to comply.
(8)	A person given a rectification notice must comply with it.
Penalty: a fine of $5 000.
(9)	A local government may authorise a person with appropriate experience and qualifications to be an authorised person for the purposes of this regulation.
38Q.	Infringement notices
(1)	The offences of failing to comply with regulation 38J, 38L(1) or (3), 38M(1) or 38P(8) are prescribed for the purposes of the Local Government Act 1995
section 9.16(1).
(2)	The modified penalty that is to be specified in an infringement notice given in relation to an alleged offence under one of those provisions is —

(a)	for an alleged offence under regulation 38P(8) — $1 000;
(b)	in any other case — $750.