Issuing an Occupancy Permit with Conditions
By Blaise Alexander, Solicitor, Property, Construction and Planning Law, Lovegrove Smith & Cotton
There has been some confusion in the industry over whether a building surveyor can issue an occupancy permit with conditions. This firm recently represented a Registered Building Surveyor in a Building Practitioners Board (“the BPB”) Inquiry Hearing. The particulars to one of the allegations touched on the question of issuing an occupancy permit with conditions. The BPB confirmed that pursuant to section 43 of the Building Act 1993 (“the Act”) a building surveyor must decide an application by:
issuing the permit; or
issuing the permit with conditions; or
refusing the permit.
A building surveyor must not issue an occupancy permit where the part of the building to which it relates is not suitable for occupation (and if required, a plumbing compliance certificate has been issued) (section 44 of the Act).
An occupancy permit is not evidence that the building or part of a building complies with the Act or building regulations (section 46(2) of the Act). Therefore, an occupancy permit may include conditions which require further works in order to bring the building into compliance with the Act/Regulations.
So a building surveyor may issue an occupancy permit with conditions. However, they should be mindful of the obligations and responsibilities flowing from a decision to include conditions on an occupancy permit. Someone will need to follow up on the conditions to ensure compliance, and that someone is the relevant building surveyor.
In order to avoid problems the building surveyor should include conditions which at least specify the following:
- the building works or actions required to bring the building works to a state where they would satisfy the requirements for issue of an occupancy permit without conditions;
- the date by which the conditions must be met or satisfied; and
- the course of action to be taken in the case of non-compliance.
Failure by either the owner or the building surveyor to take appropriate and timely action regarding the conditions on the permit could lead to investigations and disciplinary proceedings at the Building Practitioners Board (“the BPB”).
Therefore, the building surveyor should take care to keep a record of matters to be followed up with the occupancy permit, including key dates for compliance and scheduled site inspections or meetings to finalise the status of the conditions as having been met.
Unfortunately, the reality is that many owners may (for various reasons) push for an occupancy permit to be issued, and once it is they become lackadaisical about complying with any conditions on the permit. After all, where is the motivation to attend to outstanding building works or other regulatory matters when the occupancy permit has already been obtained.
The motivation must come from the building surveyor exercising vigilance in order to ensure compliance. They must make sure that steps are being taken in accordance with the conditions imposed on the permit. This could include written directions at the very least, or if necessary a building notice or building order.
This is where the importance of specific timeframes and deadlines becomes clear. If an owner does not meet the deadlines, the building surveyor must issue a building notice (and if necessary, a building order), in accordance with their statutory obligations.
In order to protect themselves from potential allegations of unprofessional conduct, the building surveyor must be mindful that they are still responsible and accountable for ensuring that the building works, plans and permits are all consistent and compliant with the Act/Regulations.
Ultimately, the building surveyor should consider that the conditions in an occupancy permit are imposed not only on the owner but on themselves as well. The conditions are for the owner to satisfy, but the responsibility for enforcement lies with the building surveyor.
It may be prudent to consult a property and construction lawyer for legal advice in drafting an appropriate occupancy permit where it involves conditions in order to avoid compliance issues later on.
By Blaise Alexander, Solicitor, Lovegrove Smith & Cotton
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© Lovegrove Smith & Cotton 2014