To Occupy or Not to Occupy


Occupancy Certificates under the Building Act 2011 are important and failure to obtain one can lead to significant fines.

In the case of Wildan Properties Pty Ltd v City of Bunbury 2016 WASC 188 the Supreme Court held that occupancy permits (occupancy certificates) were very important documents and a failure to obtain an occupancy whilst continuing to occupy the building was very serious.

Her Honour Justice Pritchard considered that the point in time at which an occupancy permit must be sought – being at the culmination of the building process – was directed at ensuring that relevant building standards had been met, “in a streamlined, cost effective and expeditious fashion; and that members of the public can have confidence in those standards being observed.”

Her Honour considered that an occupancy permit served three purposes:

  • a public health and safety function, by ensuring that buildings are not used and occupied until the permit authority was satisfied the building had been properly constructed and was fit for use;
  • a means by which a permit authority can ensure that a building is used only for a purpose for which it is suitable prior to occupation; and
  • a public notification function, and maintains public confidence in the safety of buildings

In view of these objectives, a significant penalty applied in respect of a breach.

In this case, Her Honour found Wildan was aware during the offence period that it was required to have an occupancy permit in effect before occupying the building, yet it did not vacate the building while it applied for one and remained in occupation of the building.

Submissions were made on behalf of Wildan that it relied on its builder to obtain the occupancy permit on its behalf.

Her Honour found that s.41 of the Building Act imposed an obligation on the owner and the occupier not to use or occupy a building without an occupancy permit, and Wildan was aware of that obligation from 7 July 2014.

In view of this, no mistaken belief could have survived beyond 7 July 2014, when Wildan became aware of its need to obtain an occupancy permit.

Her Honour considered aggravating factors included:

  • Wildan’s lengthy occupation of the premises (86 days) without a permit; and
  • The commercial expediency in remaining in occupation.

Her Honour found that the penalty to be imposed was a fine of $90,000.00.

Conclusion

Occupancy Permits  are viewed by the Court as being important safety mechanisms and occupancy without an occupancy permit is likely to expose occupiers and owners to criminal convictions and significant penalties.

For advice on Building Act 2011 matters please contact WALGA preferred Local Government lawyers Anne Wood or Carol Hamilton on 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.