WA – HENDRY building surveyors advise that there are many myths and misunderstandings that arise from the “possession” of the Certificates of Classification document by architects, property owners, property managers and tenants under the Building Regulations 1989. This article endeavours to state the facts from the issuing of a building licence to the Certificate of Classification

Local government has a legal obligation to ensure that no harm to people or damage to property results from their actions. Liability for negligence therefore extends to the issue of Certificates of Classification for building works carried out in accordance with a building licence under the Building Regulations 1989.

Failure to attend to these matters in the building licence prior to the issue of a Certificate of Classification can expose the local government and/or its building surveyor to investigation regarding conduct and ability to practice, leading to possible de-registration, litigation and criminal prosecution in the event that damage occurs to a building or a person is injured or even killed.

Local government jurisdiction
It is the builder’s obligation to comply with the building licence and to ensure that all items of non compliance are rectified prior to the issue of a Certificate of Classification. Failing this the municipal building surveyor is empowered under the Local Government (Miscellaneous Provisions) Act 1960 to enforce full compliance with the Building Regulations 1989. The proceeds from fines in these cases are retained by the municipality.

Suitable for Occupation
The effect of issuing Certificates of Classification in accordance under the Act is evidence that the building is suitable for occupation only for a particular class and does not necessarily mean that the building complies with all the provisions of the Act, Building Regulations 1989, Building Code of Australia (BCA) and/or Australian Standards.

For a Certificate of Classification to be issued, the building surveyor must be satisfied that the building is suitable for occupation. The building must therefore be safe under the building licence and habitable and any required item that can affect people’s safety and habitability must be in place and fully operational. 

Such items in commercial buildings may include:
• Exits.
• Sprinkler systems.
• Mechanical exhaust systems.
• Fire dampers.
• Fire rating of penetrations in walls and floors.
• Fire doors.

Note that Regulation 23 of the Building regulations 1989 provides that it is an offence to occupy a building or permit the occupation of a building without a Certificate of Classification having been issued.

It also states within the Building Regulations 1989 that the use of a building shall not be changed from one class to another without the approval of the local government.  It is therefore incumbent on the building owner to ensure that a new Certificate of Classification be obtained in these circumstances. This will generally be achieved by obtaining a building licence for any alterations to the existing building.

Where there is an existing building which is not undergoing any building works and does not need a building licence but its use is being changed a Certificate of Classification is issued for the new use. However full compliance with the Building Regulations 1989 applicable to the new use is required, unless the building surveyor exempts the building from compliance in certain circumstances (in which case a building licence will need to be issued).

Worth noting
It should be noted that, currently, there is no requirement for a local governments to issues these certificates for detached residential Class 1 buildings, i.e. the family home. This is likely to change when a new Building Act is implemented.

It is also worth noting that WA currently has no statutory requirement to compel local governments to conduct building inspections once a building has been completed under the Building Regulations 1989. This is also likely to change once new legislation is in place.

Many local governments do, however, conduct building inspections both during construction and prior to the occupation of the building so as to ensure that the building works has been carried out in compliance with the building licence.