ESM-23

Occupancy Permits do not Confirm Regulatory Compliance

VIC Hendry advises building owners and propert professionals to be more aware of building work activities occuring on their property. Owners need to ensure building permits are in place and that the closure of any building work is achieved by the issue of either an occupancy permit (OP) or a certificate of final inspection (CFI).
So what do these two documents mean and what are the differences between them? To explain this, we need to start with the building permit.

/ BUILDING PERMITS
A building permit is required for all building works under the Building Act 1993 and Building Regulations 2006 unless it is specifically exempted by the Regulations. When issuing a building permit, the relevant building surveyor must nominate whether an OP or a CFI is required on completion. All work needs to be closed out by either a CFI or an OP. The primary difference between these two documents are;

  • an OP is required for the whole of a building or construction of a new floor area to an existing building or a building undergoing a change of occupancy
  • a CFI is required for a final mandatory stage of building work of the existing floor area, where a change of occupancy is not occurring and alterations have taken place that do not impact on the original occupancy and use.

It should be noted that an OP is not applicable to an alteration to a Class 1a building or within a Class 2 or 3 unit or any Class 10 building.

/ OCCUPANCY PERMIT
An OP is a document that signifies a building surveyor is satisfied that a building is suitable for occupation pursuant to Section 46 of the Act. Specifically, this states;
“Occupancy Permit –

  1. An occupancy permit under this division is evidence that the building or part of a building to which it applies is suitable for occupation.
  2. An occupancy permit under this division is not evidence that the building or part of a building to which it applies complies with this Act or the building regulations”.

Building surveyors are responsible for ensuring a building is safe, occupiable and fit for purpose and this is the purpose of the OP. It is an offence to occupy a building following building work that needs an OP unless an OP is in place.

Owners need to note that an OP is issued when a building is ‘suitable to occupy’ from an occupant safety point of view and it is not a statement that all the building work under the building permit is necessarily complete nor is it a certificate stating that all building work complies with the relevant
legislation.

An application for an OP is a separate permit process and is made to the building surveyor who issued the building permit. In deciding whether to issue an occupancy permit, the building surveyor may request certificates or statements from various practitioners involved in the building’s construction to confirm that the work complies with relevant building legislation and to check on the mandatory inspections performed. An OP can only be issued when the building surveyor deems every item that can affect safety, health and amenity and the safe use of the building inclusive of all plumbing works is in place and fully operational.

/ CERTIFICATE OF FINAL INSPECTION
A CFI is a statutory document issued under the Building Act and the Building Regulations. A CFI is issued by a building surveyor for alterations,
refurbishments, fit outs, or other building works to existing buildings (including houses) that do not require the issuing of an occupancy permit.
“Section 38 of the Act requires –
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.
2. A certificate of final inspection is not evidence that the building or building work concerned complies with this Act or the building regulations.”

It is important to appreciate the meaning of item 2 above in that the building surveyor will issue a CFI when he or she is satisfied that a building after completion of the building work is suitable for occupation relative to health and safety concerns, in exactly the same manner as an OP. There is no specific separate application process when a CFI is to be issued.

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