AUST –  HENDRY building surveyors advise building owners and managers that they run a high risk strategy if a tenant’s lease does not adequately protect the building owner when the tenant performs building works / “alterations” to their building, especially if the Municipal Building Surveyor becomes involved and enforces the Building Regulations with a Building Notice or Building Order.

Costly Tenants

Building owners who allow tenants to perform minor building works in their buildings are bewildered when a council building notice materialises under the Building Regulations, forcing the building to undergo a fire safety upgrade of the life safety systems installed in the building.

Most problems arise due to the lack of expertise and knowledge of the Building Regulations offered by “consultants” commissioned to look after a stakeholder’s interests.  Building owners should also be aware that most consultants when commissioned by a tenant will look after the tenant’s interests first and foremost under the Building Regulations, and will only work to a brief provided by them.

Legislation Building Regulations

Australia’s eight State and Territories have differing Building Regulations controlling the construction of and alterations to buildings.  Legislation is home-spun in Building Acts and Building Regulations, while the technical provisions of the Building Regulations are mostly uniform through the adoption of the Building Code of Australia (BCA) and Australian Standards.

General terms are used in this article to describe specific terminology under the various Building Acts and Building Regulations.  Most jurisdictions have similar provisions governing building work and building usage in their Building Regulations.  The following examples can be used to garnish an understanding of Victoria’s terminology.

Alterations to Buildings under the Building Regulations

Tenants of buildings want to change their tenancies by performing building works such as altering partitioning layout.  Depending on house rules (lease requirements pertinent to building/ planning control) tenants must obtain the building owner’s/ manager’s permission before applying for permits with a building surveyor as required by the Building Regulations or commencing work.  This is where the building owner/ manager’s troubles might begin.  Some managers and their representatives do not pay sufficient attention to the house rules, even when they exist.  A lack of a quality control system basically means the occupier has a free hand to communicate with consultants, controlling authorities and contractors as they see fit, with no representation to the buildings owner’s agents and may even ignore the Building Regulations.

A tenant has the potential to cause significant financial grief for the building owner by not appreciating the statutory requirements applicable under the Building Regulations to a building when initiating an application for a building permit, or they commence building works or change the use of a building.  Sometimes a tenant gains an advantage by ignoring the Building Regulations requirements and not seeking advice from a building surveyor.

One area of major concern contained in the building regulations for the building owner is when proposed alterations exceed more than 50 percent by volume of the building or where the building has fire safety deficiencies, such issues can trigger a requirement for the whole building to comply with all the current building regulations (the whole BCA).  The Victorian building regulations stipulate a three year period for the 50 percent calculation, other states have no time limits applicable.  Some building surveyors include simple partition changes in the volume calculations, while others only calculate the volume associated with a refurbishment which includes significant modification to the building services.

If a tenant is authorised to apply for a building permit / construction approval and the “combined” alterations (other tenant’s alterations are aggregated) exceed 50 percent by volume (in the last three years), then the building surveyor may require the whole building to comply with today’s building regulations.

Upgrading an existing building which has inadequate fire life safety measures under the Building Regulations can be very costly, especially when lease restraints and other tenants are involved.  The proposed building works may even have to be abandoned.

This generally leads to two significant problems for the building owner.  Firstly the tenant is obviously very unhappy (may be a new tenant trying to perform building works to move in) and secondly the municipal building surveyor is made aware of the situation if the application for a building permit is withdrawn under the Building Regulations.

If the original application was made directly to the council then the municipal building surveyor will already be aware that the building lacks significant life safety measures, but if the application is made to a private building surveyor then legislation requires the building surveyor to refer “dangerous buildings” to the council for their adjudication or at least require the building surveyor to determine the adequacy of the building’s fire safety measures under the Building Regulations in assessing the application.

When a building surveyor is assessing a building permit application and believes the building is unsafe or hazardous for the occupiers, regardless of the extent of the alterations, then the building surveyor has a responsibility to advise the council in writing if the application does not include the whole building to be brought into compliance with today’s building regulations.  The building in question might have complied when it was built, but lacks a number of the essential BCA life safety provisions that make a building safe to occupy under today’s building regulations.

Change of Use under the Building Regulations

Dangerous times are ahead for a building owner who is not adequately versed with a tenant’s intention of changing the use of part or the whole of the building under the building regulations.

A tenant may have signed a lease with the owner’s/ manager’s agent for the same “occupational” use as the immediate past tenant.  The problem for the building owner and current tenant is that the previous tenant illegally changed the use of the building under the Building Regulations.  A change of use in a building causes the controlling authority (building surveyor) to determine whether the whole building is to comply with today’s building regulations.  This can cause a significant economic impact for most buildings, especially when the building has multiple tenants.  Building Regulations require approvals to be obtained for a change of use and building works and in most cases a new town planning permit (DA) is also required to be obtained before a building permit can be issued under the Building Regulations.  The new use under the planning scheme may be prohibited, further carparking required or other conditions may be required to be complied with.  These further provisions may not be able to be accommodated by the building or the site.

As well as the circumstances mentioned above, the following activities can also action the upgrade of a building due to a change of use under the Building Regulations, by the Municipal Building Surveyor:

  • Building owner/ tenants consultants making application for minor building works approvals.
  • Councils building/ town planning departments becoming aware of a change of use.
  • Tenant advises the council (wants to opt out of the lease).
  • Fire Brigade inspects the building and advises council.
  • Insurance company advises owner of illegal use after inspection.
  • A subdivision of the building is occurring.

Building Regulations are very specific, so it must be noted that a change of use is not just a “change of occupancy” (change of classification), such as changing a floor area from an office to a factory or a warehouse to a factory.  A change of use under the Building Regulations may also include increasing the hazard within the building but not changing the occupancy.  For example, a dress shop may have been the immediate past tenant (shop is classified as a class 6 under the BCA), whereas the new tenant who has just completed their fit out as a restaurant (a restaurant is also classified as class 6 under the BCA).  The change of use within the classification – class 6 is a material increase in the hazard of the same classification, e.g. a much higher standard of fire protection is required in the kitchen area when a sprinkler system is already installed in the building.

An experienced building surveyor (consultant) can advise building owners of the ramifications they can expect under the Building Act and Building Regulations relative to the existing conditions of a building.  The use and intended use, proposed and previous alterations to a building must all be assessed before advising a client to proceed with even a minor building permit application under the Building Regulations.  If the decision is not to proceed then the building owner must ensure the work is not performed illegally as this will only compound the building owner’s/ manager’s and tenant’s problems when caught out by the building orders under the Building Regulations.

Fire Orders under the Building Regulations

A municipal building surveyor, when made aware that a building is unsafe to occupy can place a fire order (notice) on the building owner to show cause why a building should not be brought up to the standard as stipulated in the fire order, by performing set building works under the Building Regulations.  Now that legal niceties have begun, the reality is the building owner is well and truly caught in the web.  We all hope that building owners upgrade the fire safety installations in their buildings to meet today’s building regulations, but for all sorts of reasons this may not have been done.

Municipal Building Surveyors become aware of buildings being inadequately fire protected through various means, which results in fire orders stemming from the Building Regulations being issued on the property’s building owner.  Council’s awareness is raised by complaints from tenants; disgruntled employees, unhappy guests, neighbours and potential purchasers.  Owners, Services Engineers, tenants and design consultants often have insufficient knowledge of the Building Regulations when confronted with these situations.  Workcover investigations, minor fire incidents, illegal building works investigations and an essential safety measures inspection performed by either the council or the Fire Brigade can also trigger authority actions.

Tenants need firm guidelines relative to altering a building and the building owner should have a very good quality control system to protect everybody’s interests.

Building Legislation Table

Refer to our Building Legislation table for further information on the building control process.