REG-01
March 2017

Tenants and Building Permits under the Building Regulations

AUST  Hendry advises tenants of buildings typically want to change their tenancies by either altering the building or their partitioning layout, without first obtaining a building permit/approval under the building regulations. Depending on lease requirements pertinent to building regulations and planning control, occupiers must obtain the owner’s or manager’s approval before applying for building approvals, commencing work or altering an essential safety measure under the building regulations.

/ TENANTS CAUSE FIRE SAFETY UPGRADES
This is where the owner’s or occupier’s troubles commence. A lot of building owners and their representatives cause a fire safety upgrade from an authority to occur because they do not pay sufficient attention to ensuring house rules are adhered to, even when they exist.

This basically means the occupier has a free hand to communicate with consultants, controlling authorities and contractors as they see fit, and sometimes ignoring the building regulations in obtaining the necessary building permit which can cause a building notice to be issued by the Council.

An occupier has the potential to cause significant financial grief for other tenants and the building owner of a property by not appreciating the building regulation requirements applicable 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 regulation requirements.

/ EXTENT OF ALTERATION AND COMPLIANCE
One area of major concern in the building regulations for the owner and the occupier is when proposed alterations exceed more than 50 percent by volume 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 before a building permit can be issued.

The Victorian building regulations stipulate the volume of alterations within a three year period must be added together, other states have no time limits applicable. Some building surveyors include simple partition changes in the volume calculations, while other building surveyors only calculate the volume associated with a refurbishment which includes significant modifications to services when assessing an application for a building permit/approval.

If an occupier is authorised to approach a building surveyor/certifier for a building permit under the building regulations and the “combined” alterations (other occupiers alterations are aggregated) exceed 50 percent by volume, then the building surveyor may require the whole building to comply with today’s building regulations.

/ FORCED BUILDING UPGRADES DUE TO ALTERATIONS
If a building under a building permit application is required to undergo a building upgrade to an existing building which has inadequate fire life safety measures, then this can be very costly, especially when lease restraints and other occupiers are involved.  The proposed works may even have to be abandoned.

This generally leads to two significant problems for the building owner. Firstly the occupier is obviously very unhappy (maybe a new occupier trying to renovate to move in) and secondly the municipal building surveyor is now aware of the situation if the application for a building permit is withdrawn. (Private certifiers have a statutory obligation to advise the municipal council of their appointment for proposed building works/permits)

If the original building permit application was made directly to the council then the municipal building surveyor will already be aware that the building lacks significant life safety measures, and may become subject to a building notice, but if the application is made to a private building surveyor (certifier) then legislation requires the certifier 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 in assessing the building permit application.

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