Fire Safety Orders NSW: When You Can (and Can't) Appeal

If a council issues a fire safety order, you generally have 28 days to appeal to the Land and Environment Court. If the order is issued directly by Fire and Rescue NSW, appeal rights are much more limited.

That difference matters because it affects what legal options are available after the order is issued and how quickly the owner needs to act.

Quick check: which order do you have?

• Issued by council after an inspection report → an appeal window generally applies

• Issued directly by Fire and Rescue NSW → generally no right of appeal, with one narrow exception

What a fire safety order can require

A fire safety order sits under Division 9.3 and Schedule 5 of the Environmental Planning and Assessment Act 1979. It can direct a building owner to carry out works, install fire safety measures, or take other action where the existing provision is considered inadequate for preventing or suppressing fire, limiting its spread, or protecting people in the event of a fire.

That is not the same as requiring an existing building to comply with every provision of the current NCC. A 1985 apartment building, for example, is not automatically required to meet 2026 construction standards in full simply because a fire safety order has been issued.

The scope depends on the deficiency identified, the building's use and the wording of the order itself. A fire safety order is also one of the statutory triggers that can make a fire safety upgrade mandatory, alongside other regulatory and development processes.

It is also separate from a Fire Safety Schedule or an Annual Fire Safety Statement.

The Fire Safety Schedule identifies the measures that apply to the building and the standards they must meet. The AFSS is the annual certification process for those measures. A fire safety order is an enforcement instrument requiring identified fire safety deficiencies to be addressed.

How a fire safety order reaches your building

Fire safety issues can come to the attention of an authority in several ways.

Fire and Rescue NSW has its own inspection powers under section 9.32 of the Act. Where FRNSW carries out an inspection and considers the existing fire safety provision inadequate, it can provide a report to the relevant council with recommendations for works or additional equipment.

Council then considers that report and decides whether to exercise its own power to issue an order.

Councils can also carry out their own investigations. A fire safety issue may be identified through a complaint, an inspection or information raised during another regulatory or development process.

Before a final order is issued, an owner will often receive a Notice of Intention to Give an Order. This sets out the proposed terms and compliance period and gives the recipient an opportunity to make representations before the order is finalised.

This stage can be important if the proposed works, technical requirements or compliance period need clarification.

There are circumstances where the usual notice process does not apply, including certain emergency or serious safety situations.

Council order or FRNSW order: different appeal rights

A person given a development control order can generally appeal to the NSW Land and Environment Court within 28 days.

Building Commission NSW also notes the difference between council and FRNSW orders: an owner can obtain legal representation and contest a council order, while an order issued directly by Fire and Rescue NSW generally cannot be appealed, except where it prevents a person from using or entering the premises.

FRNSW's direct order-making powers are more limited in scope. An authorised fire officer can issue certain types of orders, including an Item 1 order, only where the required work does not involve structural work.

Another point to check early is whether an appeal affects the operation of the order. Lodging an appeal does not automatically suspend compliance obligations. If an appeal is being considered, legal advice should be obtained early, including advice on whether a stay is required.

The 28-day period runs quickly, particularly where technical advice, documents and legal review are needed before proceedings can be commenced.

What non-compliance can cost

The cost of the rectification works may only be part of the overall cost.

A relevant authority can issue a Compliance Cost Notice to recover reasonable costs associated with investigating the matter, preparing the order and monitoring compliance.

Failure to comply with an order is also an offence under section 9.37 of the Act.

Corporations may face a Tier 1 maximum penalty of $5 million where the relevant statutory requirements are met, or a Tier 2 maximum of $2 million in other cases. Additional penalties may apply where an offence continues.

These are statutory maximums rather than standard penalties. The amount imposed in any particular case depends on the facts and the enforcement proceedings involved.

Non-compliance may also create broader issues for a building owner or owners corporation, including questions around insurance, governance and general fire safety liability.

If you receive a fire safety order

Start with the document itself.

Confirm:

• who issued it;

• the service date;

• the deficiency identified;

• the works or measures required; and

• every compliance and appeal deadline.

The technical requirements should then be reviewed by someone qualified for the measures involved. Depending on the order, that may be an accredited practitioner (fire safety), a fire safety engineer or a registered certifier.

For strata property, the order should also be raised with the owners corporation and strata manager promptly. Our guide to strata fire safety compliance in NSW explains how responsibilities are typically managed in strata schemes.

If the compliance period is not workable, contact the issuing authority about whether it can be modified. A request should be supported by practical information such as the proposed scope of works, contractor availability, procurement lead times and a realistic delivery program.

If a council order is being considered for appeal, the 28-day deadline should be dealt with early rather than left until the works deadline is approaching.

FAQ

Can a fire safety order be issued without any prior inspection?

Under the ordinary process, fire safety concerns are generally identified through an inspection or investigation by council or Fire and Rescue NSW. Different procedures can apply in emergency or serious safety situations.

Does a fire safety order automatically mean the building fails its next AFSS?

No. A fire safety order and the Annual Fire Safety Statement are separate parts of the compliance framework.

An unresolved order remains a compliance issue in its own right, regardless of the building's AFSS status.

Who is legally responsible for complying, the owner or the strata committee?

The starting point is the person or entity to whom the order is addressed.

For a strata scheme, this will often involve the owners corporation. The strata committee acts on behalf of the owners corporation in managing relevant matters, but responsibility depends on the particular order and the premises or works involved.

Can the compliance deadline be extended?

Sometimes. The issuing authority may be able to modify the compliance period.

Any request should be made early and supported by a defined works program, contractor availability, procurement lead times and other practical reasons affecting completion.

This article provides general information about fire safety orders under the NSW Environmental Planning and Assessment Act 1979 and related legislation, current as at 25 September 2026. It is not legal advice. Requirements vary by building, order and issuing authority. Obtain professional fire safety and legal advice specific to your property.