Lessons identified from this case
- When issuing a final occupation certificate (OC), don't rely on an old inspection carried out for the issue of an interim OC. Even if the outstanding conditions of consent don't relate to physical construction compliance, things may still have changed on-site since the interim OC was issued. Carry out a fresh inspection, then issue the final OC (if approved) as soon as practicable.
- Don't rely on an old fire safety certificate. Obtain an up-to-date certificate so you can verify each fire safety measure is being inspected and maintained as required.
Setting the scene: relevant legislative provisions
Environmental Planning and Assessment Act 1979
- Section 109H(5)(c) prohibits certifiers from issuing a final OC unless satisfied the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia (BCA).
- Section 109I provides that a final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building.
- Section 109P allows, among other things, a person exercising functions under the EP&A Act to assume that a Part 4A certificate issued under that Act was duly issued with all relevant conditions met.
Environmental Planning and Assessment Regulation 2000
- Clause 153(1) requires a final fire safety certificate to be issued before a final OC can be issued (if a fire safety schedule is required).
- Clause 162A requires a critical stage inspection before any occupation certificate is issued in relation to the building, and requires the last critical stage inspection to be carried out by the principal certifying authority (PCA).
- Clause 171(1) requires essential fire safety measures to have been assessed no more than three months before a final fire safety certificate is issued.
In early 2009, the original PCA issued an interim OC for a new five storey commercial and office building.
At the time, conditions of development consent related to a positive covenant and car parking were not yet met, but the building was already in use.
The original PCA left the certification company soon after the issue of the interim OC and the documentation sat dormant at the company's office.
New PCA issues final OC
Four years later in early 2013, the company received documents from the applicant showing the remaining consent conditions were met.
The same day these were received, the certifier discussed in this case study became the replacement PCA, verified the documents and issued a final OC.
Carry out a fresh inspection before determining an OC
To determine BCA compliance and issue the final OC, the certifier relied upon the interim OC issued four years earlier. He didn't reinspect the site, not deeming this necessary as the outstanding conditions of consent didn't relate to physical construction compliance.
However, the certifier should have inspected the work before issuing a final OC. This was particularly important since:
- he was not the original PCA
- a long time had passed since the previous PCA had issued an interim OC
- the final OC had the effect of revoking the (much earlier) interim OC that was relied on.
It was risky and inappropriate to rely solely on the interim OC without carrying out an inspection and seeking an up-to-date fire safety certificate.
Fire safety concerns
The certifier issued a final OC that didn't reference a final fire safety certificate. Instead, he should have sought an up-to-date fire safety certificate, verifying each fire safety measure had been assessed within the previous three months, and fully reviewed the new installation certificates and other certificates. These steps would have been part of due diligence to satisfy himself that the work was suitable for occupation in accordance with its BCA classification.
The council later raised concerns about fire safety and lodged a complaint against the certifier. The property owner addressed the council's concerns using an alternative solution under the BCA, which was peer reviewed before being put in place. In early 2015, the council inspected the work, found it satisfactory and asked the Board to withdraw its complaint against the certifier.
In issuing a final OC, the certifier made a statement that he was satisfied the building was suitable for occupation or use in accordance with its classification under the BCA. However, by relying on an old interim OC (that would be revoked) and not inspecting the work, it would have been difficult to know this with any real certainty and support a sound decision.
- Environmental Planning and Assessment Act 1979
- Environmental Planning and Assessment Regulation 2000
- Lessons identified from audits (refer to 'lessons identified at the occupation stage')
- Practice advice on the timing of final inspections and OC applications – BPBulletin 11 May 2012