Victoria: Occupancy Permit - Is yours correct?

This might be my most controversial blog yet, but if it can help start to improve the standard and quality of the Occupancy Permits issued and that I witness then it may be worth the criticism!

My contention is that many occupancy permits are poorly written and incorrectly identify items of equipment, features and measures that are not essential safety measures as prescribed in the Regulations. The results could be risking safety and costing building owners thousands of dollars.

If you are a building surveyor or building owner or manager then you should read this article.

In Victoria, an Occupancy Permit (OP) is a document (Form 6), specified in Part 10 of the Building Regulations 2006 (Vic) (the Regulations) as part of the building process.

The Relevant Building Surveyor is required to issue either an Occupancy Permit or Certificate of Final Inspection after the mandatory final inspection at the completion of building works.

The Building Commission (the statutory body responsible for the administration of the Regulations) describe the Occupancy Permit as;

Occupancy permits are documents that signify that a building surveyor is satisfied and has approved your building as being suitable for occupation. The Building Act 1993 requires the issue of an occupancy permit prior to occupation of a new building.

An occupancy permit is not a statement that all the building work is necessarily complete. Nor is it a certificate that states that all building work complies with the relevant legislation or contract. An occupancy permit is issued when your building is "suitable to occupy" from a health and safety point of view.

An occupancy permit will only be issued to you when items affecting health and safety are in place and capable of being operational. These include things such as the water supply, sanitary and cooking facilities, smoke alarms, safety glass, handrails and balustrades. It does not mean that all the painting is done or that the carpet is laid, for example

In this article I am going to write about our observations regarding the Occupancy Permits, conditions for occupation comprising Part 1 - Essential Safety Measures and Part 2 Other Conditions Occupancy Permit or a document prepared by a Building Surveyor.

Background

Firewize is a company that provides a service to building owners for the maintenance of essential safety measures in buildings.

Unfortunately many building owners are unfamiliar with their obligations defined under Part 12 of the Regulations. As a result, we find ourselves as educators in the fire protection industry, helping owners understand the legal requirements and nuances of the legislation.

In summary, Part 12 (Division 1) of the Regulations requires that each building owner ensure the following for each essential safety measure;

  1. maintenance of essential safety measures is operating at the required level of performance has been maintained in accordance with the relevant occupancy permit or maintenance schedule; and
  2. since the last annual essential safety measures report, there have been no penetrations to required fire-resisting construction, smoke curtains and the like in the building or place, other than those for which a building permit has been issued; and
  3. since the last annual essential safety measures report, there have been no changes to materials or assemblies that must comply with particular fire hazard properties, other than those for which a building permit has been issued; and

The owner of a building is then required (on the anniversary of the Occupancy Permit) to produce an Annual Essential Safety Measures Report, also described in the Regulations1.

In addition, Section 227E the Act also details the powers of the Chief Officer or Municipal Building Surveyor to inspect the following;

  1. any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are performing and being maintained in accordance with the building regulations or any relevant occupancy permit; or
  2. any records or reports relating to the operation and maintenance of any safety or emergency installations, equipment or services in a building or place of public entertainment to determine whether they are being kept or displayed in accordance with the building regulations or any relevant occupancy permit.

Legislation also provide for a range of statutory penalties that apply to Building Owners where the conditions of occupancy cannot be satisfied.

The Regulations

Structure of Part 12 of the Regulations

The structure of Part 12 of the Regulations are divided into divisions and subdivisions as follows;

  • Division 1 - Maintenance of Essential Safety Measures
    • Subdivision 1 - Maintenance of essential safety measures in buildings and places of public entertainment
    • Subdivision 2 - Maintenance of essential safety measures in buildings and places of public entertainment constructed before 1 July 1994.
    • Subdivision 3 - Maintenance of exits and paths of travel relating to buildings or places of public entertainment
  • Division 2 - Swimming pool and spa maintenance and operation
  • Division 3 - Private bushfire shelter maintenance and operation

For the purposes of this article, we are only concerned with Division 1 (in particular subdivisions 1 and 2). This is important as the definition and identification process for an essential safety measure is slightly different between each subdivision.

Subdivision 1 - Maintenance of essential safety measures in buildings and places of public entertainment

In the context Subdivision 1, an Occupancy Permit including the conditions for occupation listed on the permit are important aspect for defining the essential safety measures in a building and help detail the following;

  1. each required Essential Safety Measure; and
  2. the standard of performance for the installation; and
  3. the required standard of performance and frequency of maintenance.

Regulation 1202 provides the relevant building surveyor with three criteria for defining essential safety measures on the Occupancy Permit as follows;

In this Subdivision- essential safety measure means-

  1. any of the following items required by or under the Act or these Regulations to be provided in relation to a building or a place of public entertainment-
    1. an item listed in Tables I1.1 to I1.11 of the BCA Volume One, except the item in Table I1.4 relating to artificial lighting;
    2. an item listed in clause I1.2 of the BCA Volume One; or
  2. any other item that is required by or under the Act or these Regulations to be provided in relation to a building or place of public entertainment for the safety of persons in the event of fire and that is designated by the relevant building surveyor as an essential safety measure; or
  3. any other item that is an essential safety measure within the meaning of Division 1 of Part 12 of the Building (Interim) Regulations 2005 as in force before their revocation;

Now we have established the definition of what an essential safety measure is, we can now 'dig into' the criteria listed in the regulation, (a), (b) and (c).

  1. The Building Code of Australia (BCA) Section I, Safety Measures
  2. Other items in the Act or Regulations
  3. Items defined in Building (interim) Regulations 2005 (Vic)

The Building Code of Australia, Volume 1 - Section I, Safety Measures

Volume 1 of the Building Code of Australia (the BCA) provides a detailed list of its definition of Safety Measures, found in Section I which is summarised below;

  • Table I1.1 - Building Fire Integrity
  • Table I1.2 - Means of Egress
  • Table I1.3 - Signs
  • Table I1.4 - Lighting except the item in Table I1.4 relating to artificial lighting)
  • Table I1.5 - Fire Fighting Services & Equipment
  • Table I1.6 - Air Handling Systems
  • Table I1.7 - Automatic Fire Detection & Alarm Systems
  • Table I1.8 - Occupant Warning Systems
  • Table I1.9 - Lifts
  • Table I1.10 - Standby Power Supply Systems
  • Table I1.11 - Building Clearance & Fire Appliances
Note: the term Safety Measure in the BCA is slightly different to the term used in the definitions found in the Building Regulations 2006 (Vic) for an Essential Safety Measure.

Section I, of the BCA also lists two additional tables of safety measures which are specifically excluded from the definition of "essential safety measures" in Regulation 1202 as follows;

  • Table I1.12 - Other Measures
    Includes: Glazed assemblies, Balconies, Balustrades, Swimming pool safety fencing, Refrigerated chambers, strong rooms and vaults, Bushfire protection measures.
  • Table I1.13 - Building Use & Application
    Includes: Classification and use of building, Occupancy hazard.

Other items in the Act or Regulations

The Act and Regulations provide a framework for items not specifically prescribed. These may include safety measures that form part of an approved alternative solution by the relevant building surveyor or the Chief Officer for fire safety in the event of fire.

Other items from the Building (interim) Regulations 2005 (Vic)

In addition, Regulation 1202 (a)(ii) also states;

ii. an item listed in clause I1.2 of the BCA Volume One; or

BCA2011, Volume One, Section I
Clause I1.2 Mechanical ventilation and hot water, warm water and cooling water systems

  1. NSW I1.2 -
  2. SA I1.2 - Mechanical ventilation and hot water, warm water and cooling water systems in a building other than a system only serving a single sole-occupancy unit in a Class 2 or 3 building or Class 4 part must be maintained in accordance with AS/NZS 3666.2. 2

Subdivision 2 - Definition of an Essential Safety Measure

There are circumstances however where the building owner may not have an Occupancy Permit, most commonly because the building was constructed before 1 July, 1994.

In respect to this subdivision, there is no explicit requirement to prepare a maintenance schedule, nor is it clear who is responsible for defining the safety measures in the building.

1213. Definition of essential safety measure in this Subdivision
In this Subdivision, essential safety measure means any measure (including an item of equipment, form of construction or safety strategy) required for the safety of persons using a building or place of public entertainment.

By precedent however the responsibility for identifying the safety measures in a building may be best identified by a Building Surveyor, consistent with the requirements of Regulation 1206).

The problems

Over the last 12 months, we have routinely asked our customers to provide a copy of their Occupancy Permit, as part of our process for preparing a proposal for the maintenance of essential safety measures.

While the form of the Occupancy Permit has generally followed the statutory layout, we have observed variations from Building Surveyors in their definition of what is an essential safety measure.

There appears to be a few reasons Occupancy Permits often do not reflect the intent of the Regulations. Before I go any further It might be worthwhile to illustrate a few examples of questionable essential safety measures found on Occupancy Permits;

Aged Care (Class 9c Building)

  • split system air-conditioner as an essential safety measure requiring monthly maintenance in accordance with Australian Standard AS1668.6-1997 and AS1851:2005.
  • stretcher facilities in lifts
  • balustrades

or

Laboratory (Class 8 Building)

  • Access for maintenance for all plant, equipment and components as required by BCA Part J

Office Building (Class 5 Building)

  • Glazed assemblies
  • Balconies
  • Balustrades

While I recognise some of these are important safety measures to be periodically inspected, they don't satisfy the definition of an essential safety measure in Regulations 1202 or 1213.

The implication here is that building owners are being asked (by way of their occupancy permit) to carry out maintenance on measures and items of equipment in accordance with a legislative requirement that was not intended to apply.

In the case of the aged care facility, the split-system air-conditioners have been installed for the express purpose of occupant comfort, and have no relationship with safety. (That is they are in no way connected to any form of fire safety system).

The owners representative reported that the cost of the maintenance of these systems was almost $30,000 per annum.

Improving the situation

By now, readers should have an improved understanding of the definition of an essential safety measure. There are two actions that can be taken to improve the situation going forward.

Building Owners & Owners Representatives

Amongst the many things a building owner or their representative should be aware of is the requirements of the building regulations and the definition of an essential safety measure. The practical reality is however that owners engage consultants (building surveyors in this case) to prepare accurately the occupancy permit, including the conditions of occupancy or maintenance schedule competently.

The reality is however, that some Building Surveyors have demonstrated by their actions that they don't have a full grasp on the definition of an essential safety measure.

Building Surveyors

Building Surveyors who issue occupancy permits or maintenance schedules must correctly interpret and apply the requirements and definitions in Part 12 of the Regulation, and this starts with the Occupancy Permit.

Two things building surveyors should learn and apply;

  1. the difference between Subdivision 1 and Subdivision 2 buildings; and
  2. the definition of an essential safety measure for Subdivision 1 and subdivision 2.

If Building Surveyors can get these two definitions clearly locked into their minds, then we have a much better chance of getting things right.

Summary

This article has taken me over a week to draft, I have written some sections 2-3 times, I am sure it can be improved, and I am happy to make changes.

The reality is however not many building surveyors will ever see this article.

To this end, I am seeking advice from industry colleagues to get the principals in this article in front of building surveyors, hopefully in the form of a workshop or seminar.

I have opened comments up below, hopefully the issues in this article strike and accord and I welcome your feedback and comments.

Good luck with your projects!

Russ Porteous

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