VIC – HENDRY building surveyors advise that building owners must understand the implications of an occupancy permit when performing a building audit. A building surveyor 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 a certificate of occupancy permit for building work in accordance with Division 1 of Part 5 of the Building Act 1993 and Building Regulations 2006. Failure to attend to these matters prior to the issue of an occupancy permit can expose the 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 killed.

It is the relevant independent building surveyors obligation to therefore ensure that all items on non-compliance are rectified prior to the issue of the occupancy permit. Failing this the municipal building surveyor, regardless of whether or not he/she is the relevant building surveyor, is empowered under the Building Act 1993 to ensure full compliance with the Building Regulations. The proceeds from fines in these cases are retained by the municipality.

Effect of Occupancy Permit Section 46

The existence of mandatory notification stages for inspections has no bearing on the building surveyor’s responsibilities that apply under the occupancy permit process. The effect of issuing occupancy permits in accordance with section 46 is evidence that the building is suitable for occupation bearing in mind one of the main objectives of the Building Act 1993 being “to protect the safety and health of people who use those buildings and to enhance the amenity of buildings”.

The building must therefore be safe and habitable and any required item that can affect people’s safety and habitability must be in place and fully operational, the following are building surveying considerations.

A) Class 1 buildings

  • Roof drainage to be connected to an approved point of discharge
  • Required safety systems such as handrails and balustrades to be in place
  • The provision of sanitary and other facilities for residential buildings as per Building Code of Australia requirements
  • The building as constructed to prevent the penetration of water and dampness to the inner parts
  • Water-proofing of wet areas to be completed to the satisfaction of the relevant building surveyor
  • Smoke detection and alarm systems to be installed and fully operational
  • Power to be connected to the satisfaction of the Electricity Supply Authority where electricity is required for the purpose of mechanical ventilation, artificial lighting or hard-wired smoke alarms*
  • If gas cooking is to be provided, the pipe-work to connected to the unit and completed to a stage ready for connection to the gas supply
  • Water supply to be connected to the building

B) All other classes – (in addition to Class 1 buildings as above)

  • Exit path
  • Sprinkler systems
  • Mechanical exhaust systems*
  • Fire dampers
  • Fire-rating of penetrations of walls and floors
  • Fire doors and door sets
  • Emergency lighting and exit signs*
  • Structural stability
  • Swimming pool fencing
  • Disabled access and facilities

*Prior to the issue of an occupancy permit by the building surveyor under the Building Act 1993, power for a required system should be connected and completed to a stage ready for connection to the supply authority. In practice the majority of building surveyors do issue occupancy permits with the power completed to a stage ready for connection, however the occupancy permit may be issued concurrently with the connection of the power or, subject to the imposition of a condition stating “subject to the power being connected”.

Building Legislation Table

Refer to our Building Legislation table for further information on the building control process including building orders, building appeals and the AESMR.