If you are about to lease a commercial space and do a few works to make it your own, there is one document you should ask for before you sign anything: the building's current fire safety certificate or annual fire safety statement. Without it, the rules treat almost any work you do as needing approval, even work so minor you would assume it was exempt. We watched this play out alongside a Central Coast bookshop, and it cost months of rent.
The rule most tenants and builders miss
Exempt development is the small stuff that needs no approval at all, so long as it meets the standards in the Exempt and Complying Development Codes 2008. For houses that covers things like fences, garden sheds and reinstating a bathroom. Most people assume the same easy pathway is there for a minor shop or office fitout.
For commercial buildings there is a gate in front of it that catches almost everyone. Clause 1.16(2) of the Codes reads:
(2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2–9 is exempt development for the purposes of this Policy only if— (a) the building has a current fire safety certificate or fire safety statement, or (b) no fire safety measures are currently implemented, required or proposed for the building.
In plain English, class 1b and class 2 to 9 are the buildings the public uses or lives in beyond a single house. A shop, cafe or showroom is class 6. An office is class 5. A childcare centre or community hall sits in class 9. If your space is one of these, then nothing you do to it can be exempt development unless the building already has a current fire safety certificate or statement, or it is a building that needs no fire safety measures at all.
So the certificate is not a detail you sort out later. It is the thing that decides whether the easy approval pathway is even open to you.
"But I'm putting it back exactly as it was"
This is where it stings. The clause does not care how small the work is, whether it is structural, or whether you are simply reinstating something that used to be there. If the building has no current fire safety certificate, every bit of it falls outside exempt development. A single internal partition is enough to be caught.
That feels unfair, and the logic only makes sense once you see what the clause is really for. A commercial building is open to the public, so the law wants a current, signed assurance that its fire safety measures work before it will wave through any change. No current certificate means no assurance, which means no shortcut.
A Central Coast case study: Umina Beach Book Nook
Umina Beach Book Nook, a new independent bookshop, was being fitted out in a commercial space on the Central Coast. The space had once held a coolroom, and at some point a previous occupant had removed an internal wall, before the current tenant ever arrived. Setting up the shop, the walls were rebuilt on their original footprint, using the marks left on the floor to put them back exactly where they had stood. The assumption was entirely reasonable: minor internal partitions, nothing structural, no change to how the building was used, surely exempt development.
The council became aware of the work. Because the building is open to the public and any unapproved work raises a possible fire risk, the council had to look at whether the work could stand as exempt. It could not, and the reason had nothing to do with the walls themselves. The building did not have a current fire safety certificate, so under clause 1.16(2) the exempt pathway was closed no matter how minor or how faithful the reconstruction was. The council moved toward requiring the work be removed, issuing notice of its intention to order a demolition, which is a step before an actual order.
There is a hard lesson buried in the timeline. The original wall had been removed by someone else, before this tenant signed the lease. A compliance problem like this attaches to the building, not only to the person who created it, and a new tenant can inherit it without ever knowing it was there.
Faced with a point that is very difficult to argue, because a certificate either exists or it does not, the tenant chose not to fight it. The rebuilt walls came out and were replaced with freestanding, temporary shelving that is not building work at all. A current fire safety certificate was obtained for the building. And the tenant paid two sets of rent for an extended period while the shop could not open. The shelves went up, the doors opened, but it was a slow and expensive way to get there.
What to check before you sign a commercial lease
The whole saga was avoidable with one question asked early. Before you commit to a commercial space:
- Ask for the building's current fire safety certificate or annual fire safety statement, and the fire safety schedule that lists the measures. A certificate is issued when fire safety measures are first installed; the statement is the yearly renewal that confirms they still work.
- If there is no current certificate or statement, accept that you cannot rely on exempt development for any works, even trivial ones, until that is fixed. Build the time and cost of resolving it into your plans and your lease negotiation.
- Pin down in the lease who is responsible for obtaining and maintaining the fire safety certificate. It is often the owner's job, but make it explicit rather than assumed.
- Confirm the building's Building Code of Australia class so you know which rules apply to you.
- Get advice before you assume any work is exempt. A short conversation at the start is far cheaper than undoing a finished fitout. Our guide to commercial additions and renovations walks through the wider approval process, and our note on exempt, complying and council approval explains the three pathways.
If you are already underway and council has been in touch
If you have already started and the council has raised a concern, do not rush to tear things out before you understand the cause. Where work cannot be exempt, it can often be regularised through a Building Information Certificate or a complying development certificate, supported by the right reports, usually structural and fire. The fire safety certificate question generally needs to be resolved either way. The right first move depends on exactly what notice you have received, so this is worth proper advice early rather than a guess made under pressure.
We help Central Coast owners and tenants find the fastest compliant path for commercial fitouts and alterations. If you are weighing up a space, or you are already underway and worried, talk to us before you commit.