VIC – HENDRY building surveyors provide in this article the basics behind the issuing of an occupancy permit (certificate of occupancy) for a building: The Building Act 1993, Building Regulations 2006 and the Building Code of Australia all have a hand in determining what goes into an occupancy permit issued by the building surveyor. What is an Occupancy Permit? An occupancy permit (Certificate of Occupancy) is a statutory document issued under the Building Act 1993 and the Building Regulations 2006.

When it is issued it is not a legal document that states your building complies with all the provisions of the Building Act 1993, Building Regulations 2006, Building Code of Australia or even the relevant Australian Standards. It is a permit to allow occupation of a building or part of a building to a specific classification(s), where the building surveyor is satisfied that the building is suitable for occupation relative to health and safety concerns.

When must an occupancy permit/Certificate of Occupancy be issued under the building regulations?

The Building Regulations 2006 states:

1001 Application of Part

(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 2 or 3 building.

Basically except for Class 10 buildings (non-habitable structures) and alterations within a single dwelling or flat/ apartment, an occupancy permit is required for all other classifications under Clause A3.1 Principals of Classifications under the Building Code of Australia.

PART A3

CLASSIFICATION OF BUILDINGS AND STRUCTURES

A3.1 Principles of classification

The classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used.

A3.2 Classifications

Buildings are classified as follows:

Class 1: One or more buildings which in association constitute—

(a) Class 1a — a single dwelling being—

(i) a detached house; or
(ii) one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or

(b) Class 1b — a boarding house, guest house, hostel or the like-

(i) with a total area of all floors not exceeding 300 m2 measured over the enclosing walls of the Class 1b; and
(ii) in which not more than 12 persons would ordinarily be resident, which is not located above or below another dwelling or another Class of building other than a private garage.

Class 2: A building containing 2 or more sole-occupancy units each being a separate dwelling.

Class 3: A residential building, other than a building of Class 1 or 2, which is a common place of long term or transient living for a number of unrelated persons, including—

(a) a boarding-house, guest house, hostel, lodging-house or backpackers accommodation; or
(b) a residential part of a hotel or motel; or
(c) a residential part of a school; or
(d) accommodation for the aged, children or people with disabilities; or
(e) a residential part of a health-care building which accommodates members of staff; or
(f) a residential part of a detention centre.

Class 4: A dwelling in a building that is Class 5, 6, 7, 8 or 9 if it is the only dwelling in the building.

Class 5: An office building used for professional or commercial purposes, excluding buildings of Class 6, 7, 8 or 9.

NSW Class 6

Class 6: A shop or other building for the sale of goods by retail or the supply of services direct to the public, including—

(a) an eating room, cafe, restaurant, milk or soft-drink bar; or
(b) a dining room, bar area that is not an assembly building, shop or kiosk part of a hotel or motel; or
(c) a hairdresser’s or barber’s shop, public laundry, or undertaker’s establishment; or
(d) market or sale room, showroom, or service station.

Class 7: A building which is—

(a) Class 7a — a carpark; or
(b) Class 7b — for storage, or display of goods or produce for sale by wholesale.

Class 8: A laboratory, or a building in which a handicraft or process for the production, assembling, altering, repairing, packing, finishing, or cleaning of goods or produce is carried on for trade, sale, or gain.

Class 9: A building of a public nature—

(a) Class 9a — a health-care building, including those parts of the building set aside as a laboratory; or
(b) Class 9b — an assembly building, including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another Class; or
(c) Class 9c — an aged care building.

Class 10: A non-habitable building or structure—

(a) Class 10a — a non-habitable building being a private garage, carport, shed, or the like; or
(b) Class 10b — a structure being a fence, mast, antenna, retaining or free-standing wall, swimming pool, or the like.

A3.3 Multiple classification

Each part of a building must be classified separately, and—

(a)
(i) where parts have different purposes — if not more than 10% of the floor area of a storey, being the minor use, is used for a purpose which is a different classification, the classification applying to the major use may apply to the whole storey; and
(ii) the provisions of (i) do not apply when the minor use is a laboratory or Class 2, 3 or 4 part; and
(b) Classes 1a, 1b, 7a, 7b, 9a, 9b, 9c, 10a and 10b are separate classifications; and
(c) a reference to—
(i) Class 1 — is to Class 1a and 1b; and
(ii) Class 7 — is to Class 7a and 7b; and
(iii) Class 9 — is to Class 9a, 9b and 9c; and
(iv) Class 10 — is to Class 10a and 10b; and
(d) A plant room, machinery room, lift motor room, boiler room or the like must have the same classification as the part of the building in which it is situated.

A3.4 Parts with more than one classification

(a) Notwithstanding A3.3, a building or part of a building may have more than one classification applying to the whole building or to the whole of that part of the building.
(b) If a building or part of a building has more than one classification applying to the whole building or part in accordance with (a), that building or part must comply with all the relevant provisions of the BCA for each classification.


When the building surveyor issues the building permit (Form 2 Regulation 313 under the building regulations), the building surveyor must determine whether an occupancy permit (Certificate of Occupancy) is required to be issued when sufficient building works have occurred to allow the building to be occupied i.e. suitable for occupation.

The following extract is from the Form 2 Building Permit:

Occupation or use of building:

An occupancy permit/ certificate of final inspection* is required prior to the occupation or use of this building

* Circle whichever is applicable

If an occupancy permit is required, the permit is required for the whole/ part* of the building in respect of which the building work is carried out.

* Circle whichever is applicable

What does an occupancy permit look like?

When the building surveyor issues an occupancy permit (Certificate of Occupancy) under the building regulations it must be in the form of Form 6 Occupancy Permit under the Building Regulations 2006. All brand new homes, flats, apartments, factories, offices etc. will require the issuing of an occupancy permit. Sometimes the building surveyor may require the re-issuing of an occupancy permit for an existing building where building works have occurred, a change of classification or a change of use has occurred within the building.

The following Form 6 is extracted from the Building Regulations 2006:


FORM 6

Regulation 1005

Building Act 1993

Building Regulations 2006

OCCUPANCY PERMIT

Property details

Number Street/Road City/suburb
/town
Postcode
Lot/s LP/PS Volume Folio
Crown Allotment Section Parish County
Municipal District

Building details*

Part of a building Permitted Use BCA Class
Maximum permissible floor live load Maximum number of people to be accommoddated
Part of building Permitted Use BCA Class
Maximum permissible floor live load Maximum number of people to be accommodated

* Complete this portion only if an occupancy permit is required under Division 1 of Part 5 of the Building Act 1993.

Places of Public Entertainment**

Place of Public Entertainment Prescribed class of temporary structure
Public entertainment to be conducted
Period of operation of this permit

** Complete the applicable parts of this portion only if an occupancy permit is required under Division 2 of Part 5 of the Building Act 1993.

Alternative Solution (delete if inapplicable)


Can an occupancy permit be issued with conditions?

A building surveyor can issue an occupancy permit (Certificate of Occupancy) with conditions under the building regulations. The types of conditions depend on the building which can be wide and varied. Section 43 of the Building Act 1993 allows this, an extract follows:

43 Decision on application for occupancy permit

(1) The relevant building surveyor must decide an application for an occupancy permit under this Division by—
(a) issuing the permit; or
(b) issuing the permit with conditions; or
(c) refusing the permit.

(2) The regulations may prescribe a time within which the relevant building surveyor must decide an application for an occupancy permit.

(3) The relevant building surveyor is deemed to have refused an occupancy permit if the application is not decided within the prescribed time.

Maintenance Requirements for Essential Safety Measures

When an occupancy permit (Certificate of Occupancy) is issued for all buildings (other than houses) under the building regulations, the building surveyor most also list in the occupancy permit all the required information for each essential safety measure provided in the building. Regulation 1203 states:

1203 Maintenance requirements for essential safety measures when occupancy permit required

Regulation 1203

(1) An occupancy permit issued in respect of a building or place of public entertainment must include a condition which—
(a) lists all the essential safety measures pertaining to that building or place of public entertainment; and
(b) specifies for each essential safety measure listed, the level of performance determined by the relevant building surveyor to enable the essential safety measure to fulfil its purpose.

(2) In determining the level of performance of an essential safety measure, the relevant building surveyor must specify the provision of the building regulations with which the installation and operation of the essential safety measure is to comply and the frequency and type of maintenance required.

(3) In this regulation provision of the building regulations has the same meaning as in section 160 of the Act.

***

Building Legislation Table

Refer to our Building Legislation table for further information on the building regulations process including building orders.

Fire Safety Compliance: Essential Safety Measures

Refer to our Essential Safety Measures Identification table for further information on individual Essential Safety Measures including fire door inspections.

Further Advice

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