Cautionary Tale: Invalid Occupancy Permit

With regard to the construction of our new home, the builder engaged a surveyor who was also a civil engineer, to issue the staged Building Permit, conduct four mandatory stage inspections as set out on the Building Permit, and issue the Occupancy Permit. This included an inspection of the pre-slab; inspection of steel for slab; inspection of framework and final inspection for the granting of the Occupancy Permit.

Essentially, an Occupancy Permit is a document that confirms the building is suitable for occupancy from a health and safety point of view. Water, sanitation, and electricity must be connected. There are, however, legal aspects that need to be considered.

My central argument is that the Occupancy Permit represents much more than being able to turn on a light or flush a toilet.

Above all else, the permit is the legitimate signifier that every mandatory stage inspection as set out on the Building Permit has been properly and lawfully carried out. At our site, this did not happen. Evidence shows three unregistered persons respectively conducted two mandatory slab inspections; frame inspection and final inspection for the issuing of the Occupancy Permit that rendered the permit invalid.

The validity of an Occupancy Permit was considered by Justice Pain in Cessnock City Council v Laila Investments Pty Ltd [2012J NSWLEC 206. Whilst the Laila case applied to a planning Occupational Certificate in relation to a subdivision under the Environmental and Planning and Assessment Act (not the Building Act), the guiding principles appear to be the same.

Importantly, the Cessnock v Laila case found there is no discretion for a practitioner to issue an Occupancy Certificate. It is a mandatory requirement that prior to the issuing of the certificate, the preconditions must be met. At our property, preconditions to the issuing of the Occupancy Permit commanded that four mandatory stage inspections as set out on the Building Permit be properly conducted. This obligation was never met. Having been obtained unlawfully, the permit could not by any measure be considered valid.

By way of analogy, imagine you signed a contract to have a light aircraft built and you were excitedly awaiting the joy of taking your family on the first flight. Then you learn that several unregistered, unqualified persons conducted every critical aeronautical

inspection. Would the Airworthiness Certificate then be valid? The considered answer can only be a resounding no!

We have rules for good reason and in the public interest, it is imperative they be properly enforced. Weeding out wrongdoers benefits consumers and ethical practitioners alike. This can only be good for the building industry.

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