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Feature articles brought to you by the Australian Institute of Building Surveyors Victoria Chapter related to building surveying and other related industries.
A Relevant Building Surveyor (RBS) is required to determine whether an Occupancy Permit is required in respect of building work. An RBS also needs to consider when a Certificate of Final Inspection can be issued in lieu of a Occupancy Permit.
In this article, we have set out the relevant statutory provisions contained in the Building Act 1993 (‘the Act’) and the Building Regulations 2006 (‘the Regulations’) to determine the relationship between Occupancy Permits and Certificates of Final Inspections and, in particular, when an RBS is permitted by statute to issue one over the other.
Section 21 of the Act requires the RBS to specify in a Building Permit whether an Occupancy Permit is required and for what portion of the building affected by building work the Occupancy Permit is required. Section 21 provides as follows:
“The relevant building surveyor must specify in a building permit-
(a) Whether an occupancy permit is required under subsection (2) in respect of the building work; and
(b) Whether the occupancy permit is required for the whole or part of the building in respect of which the building work is carried out.”
Section 21(2) provides an RBS with three exceptions to the general rule specified in Section 21(1) of the Act. Section 21(2) provides as follows:
“An occupancy permit is required in respect of all building work except-
(a) Building work which the relevant building surveyor considers to be minor; or
(b) Building work which the relevant building surveyor considers does not compromise the suitability of the building for occupation; or
(c) Prescribed building work.”
Therefore, the RBS will only be excluded from the requirement to specify on a building permit that an Occupancy Permit is required when one of the exceptions to the general rule, listed in section 21(2) of the Act, arise.
Regulation 1001 of the Regulations establishes two exceptions to the requirement to obtain an Occupancy Permit. Regulation 1001 provides as follows:
“(1) This Part applies to all buildings and places of public entertainment.
(2) An occupancy permit is not required for-
(a) A Class 10 building; or
(b) An alteration to a Class 1a building or within a sole occupancy unit in a Class 2 or 3 building.”
In our view, Regulation 1001(2)(b) identifies the prescribed building work as referred to in Section 21(2)(c) of the Act.
Section 21(2) and Regulation 1001 provide examples of when an Occupancy Permit is not required, and by extension, instances where an RBS can specify on a building permit that an Occupancy Permit is not required.
Section 38 of the Act requires a Certificate of Final Inspection to be issued in all cases where an Occupancy Permit is not required. Section 38 provides as follows:
“(1) The relevant building surveyor must issue a certificate of final inspection on completion of the inspection following the final mandatory notification stage of building work if-
(a) an occupancy permit is not required for the building work; and
(b) all directions given under this Part in respect of the building work have been complied with.”
Therefore, based on the wording of section 38(1)(a), the RBS must issue a Certificate of Final Inspection when an Occupancy Permit is not required for the building work. A Certificate of Final Inspection must be issued, instead of an Occupancy Permit, when any of the following situations arise:
1. The RBS considers the building work is minor: section 21(2)(a);
2. The RBS considers the building work doesn’t compromise the suitability of the building for occupation: section 21(2)(b);
3. The building work is prescribed work: section 21(2)(c);
- A class 10 building: Regulation 1001 (2) (a); and
- An alteration to a Class 1a building or within a sole occupancy unit in a Class 2 or 3 building: Regulation 1001 (2) (b).