The Role of the ACT Government with regards to issuing Occupancy Certificates and Statutory Duties of the Registrar

The Role of the ACT Government with regards to issuing Occupancy Certificates and Statutory Duties of the Registrar

13 Dec 2018

By Kim Lovegrove RML, FAIB, Senior Lawyer, Lovegrove & Cotton – Construction and Planning Lawyers

 

Introduction

The legislation governing the building and construction industry in the Australian Capital Territory has elements to it that are somewhat unique compared to other Australian jurisdictions. This piece particularly focuses on the function of issuing occupancy certificates – the final check, some might say, in the approval process of as-built product. In the ACT, these documents are referred to as the Certificate of Occupancy and Use.

Comparison with Neighbouring Jurisdictions – Victoria & NSW

The ACT Building Act 2004 is interesting in that unlike other jurisdictions such as Victoria, which is governed by the Building Act 1993 (VIC), the Crown, through the auspices and powers of the Construction Occupations Registrar (“the registrar”), issues the occupancy permit. Compare this with Victoria or New South Wales:-

  • In Victoria, the relevant building surveyor issues the occupancy permit, and the relevant building surveyor may be either a building surveyor in the private sector or a natural person in the employ of a council.
  • In New South Wales, under the Environmental Planning & Assessment Act 1979, the “occupation certificate” can be issued by the responsible authority such as the council or an accredited certifier of the private sector persuasion.

Typically in jurisdictions such as Victoria and NSW where building surveyors and certifiers are implicated in legal proceedings for negligence, a typical cause of action revolves around the fact that they are the parties that issue the occupancy permit and in doing so are certifying that the work is fit for occupation.

As noted above however, in the ACT, the Construction Occupations Registrar has to issue an occupancy permit with regards to the erection or alteration of a building in circumstances where the owner has lodged an application and the registrar is satisfied that the building work is completed in accordance with prescribed requirements of the building work and the completed building is fit for occupation and use as a building of the specified class.

Section 69 provides that if part of a building has been built in accordance with the prescribed requirements, the registrar may, on the owner’s application, issue a certificate that part of the building is fit for occupation and/or use.

Noteworthy is the fact that a regulation may prescribe matters that must be considered by the Construction Occupations Registrar in deciding whether the building is fit for occupation.

The words deployed in the relevant sections, such as “considered” and “deciding”, are, one could say, ‘hands on’ in the sense that to ‘decide’ and to ‘consider’ of course involves a cognitive process, and accordingly the exercise of discretion. The decision is nevertheless identical to the type of decision that an Accredited Certifiers and Building Surveyors have to make when issuing like instruments in their own jurisdiction.

In the case of the Construction Occupations Registrar, who is a natural person, any liability that may have ordinarily been assigned to the registrar falls back on the Territory (See Section 149 of the ACT Building Act 2004).

Functions of Responsible Building Surveyors with Respect to Certificates of Occupancy and Use in Victoria

According to Section 76 of the Building Act 1993 (VIC):-

A private building surveyor may be appointed to carry out all or any of the following functions under this Act—

        (a)     the issuing of building permits;

        (b)     the carrying out of inspections of buildings and building work under Part 4;

        (c)     the issuing of occupancy permits and temporary approvals under Part 5.”

Furthermore, Section 44 of the Building Act 1993 (VIC) provides that:-

The relevant building surveyor must not issue an occupancy permit under this Division—

  1. unless the building, or the part of the building, to which the permit applies is suitable for occupation”.

Functions of Accredited Certifiers with Respect to Occupation Certificates in NSW

Similarly, Section 6.5(1c) is the provision under the New South Wales Environmental Planning and Assessment Act 1979 that allows a private certifier to issue an Occupation Certificate.

Moreover, Section 6.10(2) of that Act mandates that:-

  1. An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building (or part of a new building) unless:
    1. a development consent is in force with respect to the building (or part of the building), and
    2. in the case of a building erected pursuant to a development consent (other than a complying development certificate), a construction certificate has been issued with respect to the plans and specifications for the building (or part of the building), and
    3. the completed building (or part of the building) is suitable for occupation or use in accordance with its classification under the Building Code of Australia , and
    4. such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.”

Building Surveyor and Accredited Certifier professionals when implicated in law suits may rely on compliance certificates from prescribed classes of building practitioners, but this does not always absolve them from liability.

Of note is the fact that the regulations regarding the issuing of occupancy permits/certificates of occupation are akin to those regulating the ACT government in its statutory function as an issuer of occupancy certificates in that jurisdiction.

There may well be a higher onus attached to the ACT registrar than attaches to a certifier in NSW or building surveyor in Victoria, because fitness for occupation does not in and of itself connote compliance with all manifestations of the Building Act and the construction code.

The ACT registrar has to be “satisfied” that the work is both fit for occupation and completed in accordance with the prescribed requirements for the building work.

As noted by a leading NSW legal advocate in this area:-

If you look at the wording of s.69, it talks about the Registrar needing to be “satisfied” that the building work has been completed in accordance with the “prescribed requirements”.

The Phrase “prescribed requirements” is defined in s.66 and means the requirements of the Building Act.

The Building Act contains some fairly sweeping requirements. Section 42 of the Act says as follows:

Requirements for carrying out building work

  • Building work must not be carried out except in accordance with the following requirements:
    1. the materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;
    2. the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;
    3. the building work must be carried out in a proper and skilful way;

Note     The considerations to be taken into account to decide when work is carried out in a proper and skilful way may be prescribed under the regulations (see s (2)).

 

  1. building work must be carried out—
    1. in accordance with approved plans; or
    2. if the building work involves handling asbestos or disturbing friable asbestos—in accordance with approved plans that comply with this Act in relation to the asbestos;
  2. for building work required to be done only by a licensed builder—
    1. the building work must be carried out by or under the supervision of the builder mentioned in the building commencement notice; and
    2. the builder’s licence must authorise the doing of the building work;
  3. the building licensee in charge of the building work must take—
    1. all the safety precautions stated in or with the application for the building approval; and
    2. any other safety precaution that a certifier or building inspector may require the building licensee to take under section 46.
  • The regulations may prescribe considerations to be taken into account to decide whether building work is carried out in a proper and skilful way.’

 

Regulations such as BUILDING (GENERAL) REGULATION 2008 (ACT) – REG 31(b) provide that in deciding whether building work has been carried out in a proper and skilful way, the following consideration must be taken into account:

‘(b) Whether the work is in accordance with any relevant rules or guidelines published by Standards Australia.’

 

It follows that if indeed the building work is not fit for occupation, then as is the case with accredited certifiers and building surveyors when issuing occupancy permits, the Construction Occupations Registrar will have to establish whether or not the grounds for that “satisfaction” were sound.

The powers of the registrar are further amplified by virtue of the fact that section 69(2) and section 69(3) provide the registrar with the ability to issue “certificates” in circumstances where the building work is “substantially” in accordance with the requirements, or that the relevant part of the works the subject of the application are substantially in accordance with the requirements.

It is noted that section 69(2) refers to a “certificate” as distinct from the “certificate of occupancy” that is referred to in section 69(1); it follows that the “certificate” is a separate regulatory instrument to a certificate of occupancy.

The above sections make it clear that the Construction Occupations Registrar has the ultimate discretion as regards whether to issue an occupancy certificate or not and is the individual that is exclusively vested with that paramount discretion and obligation i.e. to issue either the certificate of occupancy or the “certificate”. It follows that this power is not able to be delegated as there is no provision in the legislation that states this power is able to be delegated.

 

A Comparison of Statutory Immunities in NSW, Victoria and the ACT

In both Victoria and New South Wales, in circumstances where the building officials are implicated in legal proceedings to do with the building approval process and or the issue of occupancy certificates, a very useful defence can be available to them. That is if they had been able to obtain statutory compliance certificates from prescribed classes of building professionals, that certify that the work complies with the apposite regulations, they can potentially avail themselves of a statutory immunity.

In New South Wales, there is Section 109P of the Environmental Planning and Assessment Act 1979 which outlines a Good Faith Defence:-

“109P Satisfaction as to compliance with conditions precedent to the issue of certificates

  1. A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume:
    1. that the certificate has been duly issued, and
    2. that all conditions precedent to the issuing of the certificate have been duly complied with, and
    3. that all things that are stated in the certificate as existing or having been done do exist or have been done,

and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.”

Similarly, Victoria has Good Faith Defences for the issue of occupancy permits, as per Section 238 of the Building Act 1993 (VIC):

  1. A municipal building surveyor or a private building surveyor, in carrying out a function under this Act or the regulations, may rely on a certificate by a registered building practitioner in a prescribed category or class of practitioners—
    1. that proposed building work of a prescribed class complies with any provision of this Act or the regulations; or
    2. that building work of a prescribed class complies with any provision of this Act or the regulations.
  2. A registered building practitioner must not give a certificate under subsection (1) in respect of building work unless the certificate states that the registered building practitioner has inspected that building work.”

And there is Section 128 of the Building Act 1993 (VIC) which states:

Immunity for building surveyor relying on certificate

A municipal building surveyor or a private building surveyor appointed under Part 6 is not liable for anything done or omitted to be done in good faith in reliance on a certificate given by a registered building practitioner under section 238.”

There is no equivalent provision in the ACT legislation for the functions of the Construction Occupations Registrar. There is no section in the ACT legislation that states the registrar is absolved from liability if they rely upon a compliance certificate from a private certifier. Section 67 of the Building Act 2004 (ACT) simply states that the registrar may “have regard to certificates and other documents given” in working out whether building work has been completed in accordance with the prescribed requirements.

Conclusion

The position of the ACT Registrar is very much equivalent to that of the principal certifying authority (NSW) or the relevant building surveyor (Victoria) in that every one of those regulatory operatives is ‘encumbered’ with the responsibility of issuing occupancy permits that certify the fitness for occupation and viability of the premises in terms of regulatory compliance. What is fascinating about the ACT is that it is the Crown that assumes this mantle rather than a relevant building surveyor either in the employ of the private sector or local government.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Justin Cotton is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Committee, for HIA Victorian Chapter. Likewise, Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy. If you wish to engage the firm, feel free to contact us via our website or by emailing enquiries@lclawyers.com.au.