AUST Hendry advises building owners and managers that they run a high risk strategy if a tenant’s lease does not adequately protect the building owner (and other tenants) when a tenant performs building works/alterations to their building without the necessary building permit/approval, especially if the Local Authority becomes involved and enforces the Building Regulations with a Building Notice, Building Order or Emergency Order.
/ COSTLY TENANTS
Building professionals who allow tenants to perform building work in their tenancy without any oversight can be exposed should a building notice or enforcement notice materialise, forcing the building to undergo a fire safety upgrade of the life safety systems installed in the building, if such a notice targets not only the work done but other aspects on the building.
Such problems arise due to the lack of expertise and knowledge of the potential implications of the Building Regulations offered by those commissioned to look after a stakeholder’s interest. Building professionals should also be aware that organisations contracted by a tenant will look after the tenant’s interests first and foremost and will only work to a brief provided by them.
/ BUILDING LEGISLATION
Australian States and Territories have differing Building Control legislation governing the construction of and alterations to buildings. Legislation is in the form of Acts and Regulations, while the technical provisions of the Building Regulations are mostly uniform through the adoption of the Building Code of Australia (BCA) and referenced Australian Standards.
The following examples can be used to gain an understanding of the enforcement document.
Victoria’s building regulatory framework requires a copy of the building permit and approved documents to be provided to the owner of a building, though it is noted that this is not always adhered to.
Upon receipt of a request to obtain a permit or a permit being provided, and where the works are driven by the tenant, it would be an advisable policy procedure for the landlord to conduct or cause an independent verification to be conducted. This could highlight any potential problems before they become too advanced.
/ ALTERATIONS TO BUILDINGS
Tenants of buildings occasionally will want to change their tenancies by performing building works such as altering a partitioning layout. Depending on house rules (lease requirements pertinent to building permit control or planning control) tenants usually must obtain the building owner’s or manager’s permission before making an application for a permit as required by the applicable Regulations.
This is where the building owner or building manager’s troubles begin. Building managers and their representatives tend to not pay sufficient attention to the house rules, even when they exist. A lack of control and oversight basically means the occupier has a free hand to communicate with their own consultants, controlling authorities and contractors as they see fit, with no representation to the buildings owner’s professional.
Many tenants have the potential to cause significant financial grief for the building owner by not appreciating the statutory requirements applicable under the Building Regulations to the whole building when initiating an application for a building permit, or they commence building works or change the use or occupancy of a building. Sometimes a tenant gains an economic advantage by ignoring regulatory requirements and not seeking advice from a building surveyor.
An area of major concern for the building owner is when proposed alterations exceed more than 50 percent by volume of the building or where the building has fire safety deficiencies. These issues can trigger a requirement for the whole building to comply with all the current building regulations. For example, Victoria’s building regulations stipulate that alterations within a three year period for the 50 percent calculation whilst other states may have no time limits applicable. It is feasible that building surveyors will include simple partition changes in the volume calculations, while others only calculate the volume associated with a refurbishment which includes significant modification to the building services.
If a tenant is authorised to apply for a development permit (building works) and the “combined” alterations (other tenant’s alterations are aggregated) exceed 50 percent by volume (in the last three years), then the building surveyor may require the whole building to comply with today’s building regulations.
Upgrading an existing building which has inadequate fire life safety measures can be very costly, especially when leases provide restraints and other tenants are involved. The proposed building works may even have to be abandoned or done over several years by agreement. It may well be advisable to perform a fire safety audit prior to commencing any design to see how it affects the Certificate of Classification.
Generally, this can lead to two significant problems for the building owner. Firstly, the tenant is obviously very unhappy (may be a new tenant trying to perform building works to move in) and secondly, the local authority could become aware of the situation if the application for a building permit is withdrawn.