1. On 26 November 2024 the BAB conducted a hearing. After the hearing the BAB issued directions and orders dated 9 December 2024 (December D&O) to seek additional relevant information.
2. On 28 January 2025, the BAB considered the material filed pursuant to December D&O and issued further directions and orders dated 13 February 2025 (February D&O) to seek additional clarification.
3. On 9 April 2025 the BAB conducted a final hearing 'on the papers'.
4. The BAB has considered all fresh material filed pursuant to both December D&O and February D&O and other material filed with the BAB in the proceedings.

1. The following sections of the Act are relevant to a consideration of this matter:

(2) An application may be made to the Building Appeals Board for a determination that a provision of the building regulations -

(a) does not apply; or

(b) applies with the modifications or variations specified in the application -

to a building or land specified in the application.

162 - Special powers - modification of regulations

(2) The Building Appeals Board must not determine that a provision of the building regulations does not apply to a building or land unless satisfied that, in the particular circumstances, the provision is inappropriate.

(3) The Building Appeals Board must not determine that a provision of the building regulations applies to a building or land in a modified or varied form unless satisfied that to do so is reasonable and not detrimental to the public interest.

1. The following provisions of Specification 43 of the BCA are relevant to a consideration of this matter:

A non-combustible pathway directly adjacent to the building and not less than 1.5 m wide must be provided around the perimeter of the building.

An external area designed to hold people unable to be safely accommodated within the building, that may be exposed to radiant heat flux from a fire front during a bushfire event, must not be exposed to an incident radiant heat flux from the fire front exceeding 1 kW/m2 above background solar radiant heat flux.

To maintain internal tenability throughout the duration of occupancy during a bushfire event, the building must comply with the following:

(a) An air handling system must be provided that is capable of -

1. being adjusted for full recycling of internal air for a period of not less than 4 hours to avoid the introduction of smoke into the building; and
2. maintaining an internal air temperature of not more than 25°C.

(b) The building envelope must be designed such that if an air handling system required by (a) fails, then -

1. internal air temperatures can be maintained below 39°C; and
2. internal surface temperatures can be maintained below 60°C.

(c) If the building is divided into separate compartments then, for the purposes of (a), each compartment must have a separate air handling system.

(d) Each air handling system required by (a) must be designed to account for the activation of smoke detectors from low concentrations of smoke from external sources, so as to ensure that air-conditioning and other essential systems remain operational.

The building envelope must be constructed in accordance with AS 3959 - BAL 19 or greater, except that where the use of combustible materials is permitted by AS 3959, they are not to be used unless permitted by C2D10(4), (5) or (6).

(1) Emergency power must be provided to support, for not less than 4 hours before and 2 hours after the passing of the fire front during a bushfire event, the ongoing operation of -

(a) air handling systems to maintain internal tenability; and

(b) any pumps for fire-fighting; and

(c) any emergency lighting and exit signs; and

(d) any other emergency equipment listed in C3D14(6) and required to be provided.

(2) Manual control for emergency back-up power supply must be provided to facilitate manual intervention where the power supply fails or runs out.

Signage must be provided to warn building occupants against storing combustible materials under or adjacent to the building.

1. The subject site is located within a designated bushfire prone area, with a Bushfire Attack Level (BAL) of BAL 12.5 determined in accordance with AS 3959 - 2018, as documented within BAL Report ref. no. GeelongGrammar-2022-01 BAL_M1-Corio version 1.2 dated 30 July 2024, prepared by Terramatrix (Terramatrix BAL Report).
2. The subject site consists of an existing Middle and Senior School compound, comprising multiple buildings located on multiple allotments. The building subject to these application are located on a combined allotment, consisting of Lots 1, 2, 3, 4 and 5 on Title Plan 231266H, Volume 05590 Folio 903 and Lots 1, 2, 3, 4 and 5 on Title Plan 700772D, Volume 03616 Folio 117.
3. A Class 9b building known as the 'Greenhouse', is proposed as an addition to the subject site to provide for a Primary School, along with a bus shelter in Stage 1. In future the bus shelter is proposed to be extended, alongside additional future 'Field Station' classrooms and a bicycle shed to be constructed. A site plan has been provided, with the location of the Greenhouse building highlighted.

1. The BAB has had regard to and considered all the material and submissions filed by the parties and considers it appropriate to assess each Application separately.

1. The first modification requested was to permit the pathway around the building to be constructed of concrete and cement stabilised gravel instead of a non-combustible pathway as prescribed under cl S43C6 of Spec 43 of the BCA.
2. Concrete is considered non-combustible under the BCA. While cement stabilised gravel may not strictly satisfy the non-combustibility criteria in As1530.1, the proposed material is considered acceptable in this context on the basis that it is not inherently combustible and will be subject to a management plan to ensure it is kept free of grass and vegetation.
3. On this basis the proposed pathway construction is considered reasonable and not detrimental to the public interest subject to a maintenance plan being implemented and enforced to ensure the pathway is kept clear of grass and vegetation. This approach satisfies the relevant performance requirements.

1. The Applicant has sought to withdraw Application 2 from the proceeding.
2. We agree this is appropriate and will make the relevant order to permit the withdrawal of the application.

1. Application 3 as amended is to permit the requirements of cl S43C9 of the BCA to not apply.
2. We note that an external refuge area is available for use in a fire emergency, which serves the purpose of providing a safe temporary holding area outside the building instead of an internal refuge area.
3. We accordingly find that the existence of a suitable outside refuge area satisfies the performance requirements relating to occupant safety and emergency evacuation contingent to the following conditions:

(a) The external refuge is maintained in a state free of non-excludable vegetation and overgrowth of excludable vegetation; and

(b) The external refuge area remains unobstructed and is not built over wholly or in part.

1. If the refuge is wholly or partially removed and/or the location altered, then the external refuge needs to be considered in accordance with Specification 43.
2. We consider that the relief sought in Application 3 is reasonable and not detrimental to the public interest given the existence of an external refuge area.

1. Application 4 requests the BAB to permit the building envelope to be built in accordance with AS3959 BAL-19, instead of a building envelope as prescribed under cl S43C10 of Spec 43.
2. The BAB sought additional material from the Applicant in relation to the combustible materials proposed to be used, the location and construction methodology. The Applicant confirmed that the construction of the external walls and roof, including all components incorporated in them including the framing and insulation are designed in accordance with cl C2D10 of the BCA and AS 3959 - BAL 19. The combustible materials are limited to elements that are fixed to the external walls and roof.
3. The RBS provided commentary that:

Additional to what has been provided, the applicant should also nominate the full external wall construction system and roof/ceiling construction system, inclusive of the internal lining elements, for consideration with this application item.

1. The Applicant provided a response enclosing documentation to respond to the issue raised by the RBS.
2. We have reviewed the material provided and note that the nominated construction materials on the roof is considered acceptable. The proposed construction material is low risk. Further, the location of the building in proximity to any fire hazard means that it is acceptable. It would be reasonable and not detrimental to the public interest. Given this, the BAB will grant orders to permit the modification of this clause.

(1) Emergency power must be provided to support, for not less than 4 hours before and 2 hours after the passing of the fire front during a bushfire event, the ongoing operation of -

(a) air handling systems to maintain internal tenability; and

(b) any pumps for fire-fighting; and

(c) any emergency lighting and exit signs; and

(d) any other emergency equipment listed in C3D14(6) and required to be provided.

(2) Manual control for emergency back-up power supply must be provided to facilitate manual intervention where the power supply fails or runs out.

1. Application 5 as amended is to permit an emergency power supply to provide support for 6 hours total, to support the operation of the services under S43C12, instead of 4 hours before and 2 hours after the passing of the fire front during a bushfire event as prescribed under cl G5D4 inter-alia cl S43C12 of Specification 43.
2. Clause G5D4 simply states that a school building in a designated bushfire prone area must comply with Specification 43. It does not provide assistance in calculating the 4 and 2 hour periods described. The Objective of the provision is set out in G501 and is encompasses:

(a) safeguard occupants from injury from the effects of a bushfire; and

(b) protect buildings from the effects of a bushfire; and

(c) facilitate temporary shelter for building occupants who may be unable to readily evacuate the building prior to a bushfire.

Accordingly, we will have regard to this objective in interpreting the clS43C12.

1. The relevant cl S43C12 of Spec 43 lacks explanation or guidance on how the 4 hours prior to the fire front and 2 hours after the fire front are to be calculated.
2. The location of the fire, type of bushfire threat and changeable bushfire conditions can make it difficult to accurately predict the pre-fire front period and when the alternate power should be run. This creates issues in properly complying with the requirement.
3. In relation to this particular building located on this site with its proximity to other buildings on the site, we consider that a reasonable interpretation of this clause is for a total of 6 hours to cover both prior to the fire front approaching the relevant location and after it passes the relevant location. We believe this would also meet the stated objectives in the relevant specification and cl G5D4 of the BCA.
4. In the current matter, the building on this site and location is not being utilised for a refuge as there is an outdoor fire refuge area. Given this, it is reasonable and not detrimental to the public interest to permit a timeframe of 6 hours for the emergency power supply in total noting the unpredictability of fire fronts and calculating the specific period of time before the fire front during a bushfire period.

Signage must be provided to warn building occupants against storing combustible materials under or adjacent to the building.

1. There are no further details provided regarding the type of signage, lettering height or colour as provided in other clauses of the BCA.
2. Application 6 seeks to provide a warning signage as follows:

WARNING - DO NOT STORE COMBUSTIBLE MATERIALS UNDER OR ADJACENT TO BUILDING

1. The application proposes that the signage is to have letters of a height not less than 50mm in a colour contrasting to that of the background, instead of a signage provided to warn building occupants as prescribed under cl G5D4 inter-alia cl S43C12 of Specification 43.
2. The signage will be mechanically fixed at a height of 1200mm above finished floor level to external walls as indicated by the floor plan. Further, the signage will be made of non-combustible material.
3. We note that the modification is being sought because Specification 43 does not provide any guidance on the sizing and contrast requirements of the lettering or other parameters of such signage.
4. We consider that the Applicant's submissions relying on the BCA for guidance has merit. We confirm the BCA does provide direction as to the requirements for other warning signage which is to ensure visibility and legibility of signage.
5. Using the BCA for guidance on comparable signage, we accept that a non-combustible sign which contains capital letters with a minimum height of 50mm in a colour that contrasts with the background as proposed in Application 6 is reasonable and is not detrimental to the public interest. This is because the signage will effectively provide a visible warning against storing combustible materials beneath or adjacent to the building.

1. We have also considered the relevant impact on all of the modifications sought and the impact of each modification on another.
2. We consider the combined effect of these modifications would be reasonable and not detrimental to the public interest.
3. Accordingly, we will make appropriate orders relating to each of the Applications 1-6.

[1] The 26 November 2024 listing was an e-Hearing.