Section 1: Coverage, exemptions and responsibilities

Coverage

The Building Act 2011 (the Building Act) applies to buildings and structures attached to or incidental to a building.

What is a building?

There is no formal definition of a building in the Building Act; it takes its normal meaning, such as in a dictionary or in normal conversation. In the vast majority of cases, there is no doubt when the particular structure under consideration is a building. Guidance can be taken from the classification of buildings in the Building Code of Australia (BCA), being Volumes One and Two of the National Construction Code Series (note that Class 10b is not described as a building). If there is any doubt, always check with the permit authority.

Parts of buildings

The Building Act provides that a building includes part of a building, therefore it applies to work on just part of a building, such as an extension or renovation.

Building components

A distinction must be made between a part of a building and a building component. Buildings are made up of many components, most of which are manufactured elsewhere and brought together to assemble the building on its site. A building component does not form part of a building until it is attached to the building or the land on which the building is sited. Building components range in size from nails or screws to substantial assemblies that may seem like a building in their own right. Manufacture of building components is not regulated by the Building Act, but the finished building that contains the components is.

Transportable building components

Transportable buildings are manufactured off-site and then transported to their desired location and fixed to the land. These are not considered to be buildings
while they are being built in the factory, and can be termed as transportable building components. They become a building when they are first fixed to a site.
Fixing a transportable building component to a site for the first time will create a new building, and this will normally require a building permit. The building thus
created must comply with applicable building standards that apply to a new building, so that each of the transportable building components should comply with those standards.

Relocated buildings

Buildings can be relocated from one site to another. Transportable buildings are designed for this type of use, but it is also possible to move a building constructed normally on a site to another site. An example is to move an old timber-framed house from an inner-city suburb to a farm to provide a farm house and to allow the original site to be redeveloped.

If a relocated building retains its original use and classification the applicable building standards, on relocation, are the current BCA performance requirements for life safety aspects, such as structural provisions and fire safety matters, and the building standards applicable at the time it was originally built for other requirements. However if it is being relocated for an entirely different use or classification it may need to meet the current applicable building standards for its new use and classification.

Planes, trains and automobiles

There are structures and items that are normally not considered to be buildings that can be used for building-like purposes. For example, caravans can be used as residences or railway carriages can be used for overnight accommodation (sleeping cars) or as restaurants (dining cars). Some aeroplanes can now contain bedrooms and bars. While these are being used for their original purpose and regulated as planes, trains or automobiles, they are clearly not buildings and are not covered by the Building Act. However, if they are de-commissioned and converted for residential or commercial use on a site then they will be covered by the Building Act. The process of fixing them to the site and connecting services will require a building permit and using them may also require an occupancy permit.

For example, a space shuttle is clearly not a building, however if a club buys a disused shuttle and converts it for use as a club room, then it is being used as a building and must meet the performance standards that apply to a new building of the same type. This means that the relocated space shuttle must be added to or modified to ensure that it meets the requirements for structural provisions, access, fire safety, energy efficiency and the like.

Tents and fabric building components

Tents, marquees and fabric building components may be considered as buildings if their use and length of time in place give them the character of a building or incidental structure. Considerations include whether it can be categorised under the BCA; whether the public use the facility; or whether structural, ventilation or fire safety standards should be met. The location may also be significant, for example if it is located on land zoned for building purposes and it is being used for a building-like purpose it may be covered by the Building Act, but if it is located on an area zoned as a camping ground it may not. The permit authority will advise if it considers the nature and use of the structure requires compliance with the Building Act.

Tents and marquees used for private purposes are exempt from the need for a building permit if they are erected for less than one month.

Park homes

Building work for a park home or annexe as defined in s. 5(1) of the Caravan Parks and Camping Grounds Act 1995 (Caravan Parks Act,) does not require a
building permit. (Please note: this may change as this Act is under review). While a building permit may not be required, owners are required under the Building Act to ensure that the park home or annexe, if it is a building or incidental structure, still complies with applicable building standards and the smoke alarm provisions of the Building Regulations that are required on the sale; transfer of ownership; hire or rent of a dwelling. If the park home is a licensed vehicle such as a caravan, then it may not be a building or incidental structure. Owners should be aware that there may be other approvals by a permit authority that apply under the Caravan Parks Act.

Structures

There is no formal definition of structure in the Building Act; its normal or dictionary meaning applies. Structures are things that are built such as bridges, jetties, towers and the like and are clearly not buildings. The Building Act does not regulate structures, except when they are incidental to a building.

Incidental structures

Incidental structure is defined in the Building Act as a structure attached to or incidental to a building and includes a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure; and a part of a structure. A structure is incidental to a building if it performs a function that complements the use of the building.

Generally, if the structure is attached to, supported by, or forms part of the building it should be regulated as part of the building and is covered by the Building Act. If the structure is on land zoned for building purposes it is likely to be incidental to a building and is covered by the Building Act, even if a building has not yet been constructed on the same site. A freestanding advertising sign on the same site as a building would be an incidental structure, even if the advertisement is not for the building, but the same sign on a road verge or in a farm paddock may not be an incidental structure and may not be covered by the Building Act.

The permit authority is best placed to determine if a structure is considered an incidental structure and covered by the Building Act.

Exemptions

Part 5 of the Building Act provides for exemptions from the requirement to obtain certain permits under the building approval process for particular buildings and incidental structures based on their level of risk. However these exemptions do not remove the requirement for approvals under other legislation if required, for example planning or health. To determine whether an exemption applies for your particular circumstance, contact the permit authority. 

Areas where building permit not required for certain work

Schedule 4 Clause 1 of the Building Regulations sets out areas of the state (being specific regional or remote areas) where a building permit is not required for certain work.

REGARDLESS of any exemption that may apply there is ALWAYS a requirement under s. 37(2) of the Building Act for the OWNER to ensure that the building or incidental structure, when completed, COMPLIES with each applicable building standard.

Kinds of building work for which a building permit is not required 

Schedule 4 Clause 2 of the Building Regulations sets out the kinds of building work for which a building permit is not required for certain work. These include small garden sheds, temporary site sheds, certain fences (other than a fence forming part of an enclosure for a private swimming pool), certain masts and antennas, small retaining walls, small pergolas and the like. The Building Regulations provides a detailed description of these exemptions.

Ministerial order 

Occasionally the Minister may by order, exempt certain works or buildings from requiring a permit. Such orders can also extend to providing exemptions to the type of information to be provided on an application for a building or demolition permit. Any orders made, revoked or amended by the Minister will be published in the Government Gazette. Currently the only ministerial order in effect relates to the requirement for owner’s signature on an application for a building permit for Class 1 and Class 10 buildings and incidental structures.

General responsibilities

The roles and responsibilities of the key players during the building approval and building process.

Applicants

  • Lodgement of permit application with all required supporting documents.
  • Providing further information to the permit authority within the specified time if requested.
  • Obtaining all required approvals prior to lodgement of building permit applications.

Owners

  • Owners of new commercial and multi-residential buildings (Class 2 to Class 9 buildings) must ensure that they have an occupancy permit before the building is occupied and display the occupancy permit or details at the entrance to the building. Owners of houses and associated buildings (Class 1 and Class 10 buildings and incidental structures such as sheds, pools and similar) do not need an occupancy permit.
  • Appointing a new builder in the event the previous builder ceases work prior to completion of building work.
  • For Class 2 to Class 9 buildings, ensuring the safety measures that formed part of the building permit in each part of the building are maintained (r. 48A).
  • Where an exemption applies (ie a building permit is not required under the Building Act or Building Regulations), each owner of the land must ensure that, on completion, the building or incidental structure complies with each applicable building standard.

Demolition contractors

  • Ensuring demolition work complies with the demolition permit and all required policies (ie OSH, WorkSafe and local government.)
  • Ensuring that no work affecting other land is undertaken without consent or a court order.
  • Giving a notice of completion (form BA7) to the permit authority within seven (7) days of completion of the work or stage of the work for which the permit was granted.
  • Giving a notice of cessation (form BA8) to the permit authority within seven (7) days, if the demolition contractor ceases to be responsible for the work before its completion.

Builders

  • Ensuring the building or incidental structure is completed in accordance with the plans and specifications detailed in the certificate of design compliance and that the building complies with each applicable building standard.
  • Ensuring that no work affecting other land is undertaken without consent or court order.
  • Arranging for any inspections and tests listed on the building permit to be carried out and recorded.
  • Giving a notice of completion (form BA7) to the permit authority within seven (7) days of completion of the work or stage of the work for which the permit was granted.
  • Giving a notice of cessation (form BA8) to the permit authority within seven (7) days, if the builder ceases to be responsible for the work.

Where works are required to be undertaken by a registered builder, this person is required to be registered as a building contractor under the Building Services (Registration) Act 2011 (Registration Act). Refer to Do I need to be a registered builder? 

Building surveyors

  • Certifying the design of new building work to state it will meet the applicable building standards.
  • Certifying that the building has been built in accordance with the specified plans and specifications.
  • Certifying that existing buildings meet the applicable building standards for temporary or permanent changes of use or classification, or when a building is being strata titled or retrospectively approved.
  • Certifying that the building in its current form is safe to occupy and use in the way proposed.
  • Owners or applicants can either engage a private building surveyor or seek the services of a building surveyor employed by a local government that provides certification services.

Owners or applicants can either engage a private building surveyor or seek the services of a building surveyor employed by a local government that provides certification services.

Private building surveyors

A private building surveyor must be registered as a building surveying contractor under the Registration Act in order to contract with the public to carry out building surveying work. Registration as a building surveying contractor authorises that person to contract to carry out building surveying work which is defined in the Registration Act as:

  • building surveying work level 1 — certifying compliance in respect of any building or incidental structure;
  • building surveying work level 2 — certifying compliance in respect of a building or incidental structure with a floor area up to 2000m2 and not more
  • than three storeys.

A building surveying contractor (company or partnership) must at all times have a director or partner who is a registered building surveying practitioner or employ at
least one building surveying practitioner to act as the nominated supervisor. In the case of a building surveying contractor (individual), that individual must always be
the nominated supervisor and be registered as a building surveying practitioner.

There is a third level of building surveying practitioner technician registration under the Registration Act. Such practitioners are generally employed by a permit authority or a private building surveying contractor and are restricted to certifying buildings up to two storeys high and 500m2 floor area. A technician cannot contract with members of the public to provide certification services.

Local government building surveyors

A building surveyor employed by a local government is required to be registered as a building surveying practitioner (Levels 1, 2 or technician) for the purposes of
providing compliance certificates. However a local government is not required to be registered as a building services contractor.

Independent building surveyors

All certifying building surveyors must be independent - meaning that they cannot be an owner of the land, an employee of an owner, or the builder or demolition contractor or an employee of the builder or demolition contractor. This applies to both private and local government building surveyors.

Permit authorities

A permit authority controls the construction, occupation and demolition of buildings and incidental structures through the granting of building, demolition or occupancy permits and building approval certificates and the enforcement of compliance with permits. A permit authority ensures that all statutory requirements are met for the lodgement of an application and is responsible for maintaining building records, which can be made available to authorised people, such as current or subsequent owners. 

NEXT – Section 1 continued: Coverage, exemptions and responsibilities

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