Part 11Classification and occupation of buildings

Part 11—Classification and occupation of buildings Division 1—Preliminary 101—Preliminary council has the same meaning as in Part 11 of the Act; designated relevant authority means any of the following: (a) an Accredited professional—building level 1; (b) an Accredited professional—building level 2; (c) an Accredited professional—building level 3. Division 2—Classification of buildings 102—Classification of buildings (1) The owner of a building to which a classification has not been assigned may apply to the council or a designated relevant authority for assignment of a classification to the building in accordance with the Building Code. (2) An owner of a building may apply for a change in classification of that building (but an application may be subject to the need to obtain an appropriate consent or approval in respect of any associated development). (3) An application under subregulation (1) or (2) must— (a) specify the existing classification (if any), and the classification which is being sought; and (b) be accompanied by— (i) such details, particulars, plans, drawings, specifications, certificates and other documents as the council or designated relevant authority may reasonably require to determine the building's classification; and (ii) the prescribed fee. (4) Subject to subregulation (5), a council or a designated relevant authority must assign the appropriate classification under the Building Code to a building if satisfied, on the basis of the owner's application, and accompanying documentation, that the building, in respect of the classification applied for, possesses the attributes appropriate to its present or intended use. (5) If an application under this regulation is made in respect of an existing class 2 to class 9 building, the council or designated relevant authority may require the applicant to satisfy it that the provisions of any relevant Ministerial building standard relating to upgrading health and safety in existing buildings has been complied with (to the extent reasonably applicable to the building and its present or intended use). (6) On assigning a classification to a building (or part of a building), a council or designated relevant authority must, if relevant, determine and specify in the notice to the owner under section 151(3) of the Act— (a) the maximum number of persons who may occupy the building (or part of the building); and (b) if the building has more than 1 classification—the part or parts of the building to which each classification relates and the classifications currently assigned to the other parts of the building. Division 3—Certificates of occupancy 103—Exclusions (1) Pursuant to section 152(1)(a) of the Act, a certificate of occupancy is not required in respect of— (b) a Class 10 building under the Building Code. 103A—Required documentation (1) Pursuant to section 152(3)(b) of the Act, an application for the issuing of a certificate of occupancy relating to a Class 1b to 9 (inclusive) building under the Building Code must be accompanied by the following documentation: (a) a copy of a Statement of Compliance, duly completed in accordance with the requirements of regulation 104, that relates to any relevant building work, together with any documentation required under regulation 57(8)(c); (b) unless already provided—a copy of any certificate of compliance under regulation 94(7) (if relevant); (c) if the development has been approved subject to conditions, such evidence as the council may reasonably require to show that the conditions have been satisfied; (d) if the application relates to the construction or alteration of part of a building and further building work is envisaged in respect of the remainder of the building, such further evidence as the council may reasonably require to show— (i) in the case of a building more than 1 storey—that the requirements of any relevant Ministerial building standard have been complied with; or (ii) in any other case—that the building is suitable for occupation. (2) Pursuant to section 152(3)(b) of the Act, an application for the issuing on or after 1 October 2024 of a certificate of occupancy relating to a Class 1a building under the Building Code is only required to be accompanied by the following documentation: (a) a copy of a Statement of Compliance, duly completed in accordance with the requirements of regulation 104, that relates to any relevant building work, together with any documentation required under regulation 57(8)(c); (b) if the development has been approved subject to conditions, such evidence as the council may reasonably require to show that any conditions relevant to the suitability of the building for occupation have been satisfied. (3) A council may, other than in relation to a designated building on which building work involving the use of a designated building product is carried out after 12 March 2018, dispense with the requirement to provide a Statement of Compliance under subregulation (1)(a) or (2)(a) if— (a) the council is satisfied that a person required to complete 1 or both parts of the statement has refused or failed to complete that part and that the person seeking the issuing of the certificate of occupancy has taken reasonable steps to obtain the relevant certification or certifications; and (b) it appears to the council, after undertaking an inspection, that the relevant building is suitable for occupation. 103B—Prescribed requirements Pursuant to section 152(6) of the Act, on and after 1 October 2024, the requirements set out in a statement of building occupancy requirements for Class 1a buildings under the Building Code published by the Chief Executive on the SA planning portal for the purposes of this regulation are prescribed requirements in respect of Class 1a buildings. 103C—Statement of site suitability (1) If— (a) a relevant authority grants planning consent in respect of an application to which Schedule 8 clause 2A applies; and (b) remediation on the site to which the application relates (the relevant site) is necessary but the required remediation has not been undertaken, the following provisions apply: (c) a certificate of occupancy must not be granted in relation to a building on the relevant site until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use; (d) in the case of a building on the relevant site that does not require a certificate of occupancy—a person must not occupy the building for the purpose authorised under the development approval until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use; (e) if the development authorised under the application does not involve building work—a person must not use the relevant site for the purpose authorised under the development approval until a statement of site suitability is issued certifying that the required remediation has been undertaken and the land is suitable for the proposed use. (2) A statement of site suitability under subregulation (1) should, so far as is reasonably practicable, be issued by the site contamination consultant or site contamination auditor who prepared the most recent of the following in relation to the application: (a) the preliminary site investigation report under Schedule 8 clause 2A; (b) the detailed site investigation report under regulation 32A; (c) the statement of site suitability under regulation 32B. (3) A person who fails to comply with subregulation (1)(d) or (e) is guilty of an offence. Default penalty: $100. 103D—Report from fire authority (1) If— (a) a building is— (i) to be equipped with a booster assembly for use by a fire authority; or (ii) to have installed a fire alarm that transmits a signal to a fire station or to a monitoring service approved by the relevant authority; and (b) facilities for fire detection, fire fighting or the control of smoke must be installed in the building pursuant to an approval under the Act, the council must not grant a certificate of occupancy unless or until it has sought a report from the fire authority as to whether those facilities have been installed and operate satisfactorily. (2) If a report is not received from the fire authority within 15 business days, the council may presume that the fire authority does not desire to make a report. (3) The council must have regard to any report received from a fire authority under subregulation (1) before it issues a certificate of occupancy. 103E—Issue of certificate of occupancy (1) Subject to this regulation, pursuant to section 152(8) of the Act, an application for the issue of a certificate of occupancy must be decided— (a) if the council must seek a report from a fire authority under regulation 103D—within 20 business days from the day on which all documentation required by the council under regulation 103A in relation to the class of building is received by the council; or (b) without limiting paragraph (a) if, on receipt of a notification of intended completion of building work under regulation 93(1)(f), the council determines that the building work will be inspected by an authorised officer— (i) where building work or other action relevant to the suitability of the building for occupation is required to be undertaken as a result of the inspection—within 5 business days of completion of that building work or action; or (ii) in any other case—within 5 business days of the day by which the inspection must be carried out under a practice direction issued for the purposes of section 144 of the Act; or (c) in any other case—within 5 business days from the day on which all documentation required by the council under regulation 103A in relation to the class of building is received by the council. (2) A council must provide to the entity that will be issuing the certificate of occupancy for the relevant building— (a) notice of a determination to carry out an inspection of building work referred to in subregulation (1)(b) (the initial inspection); and (b) — (i) where no building work or other action relevant to the suitability of the building for occupation is required to be undertaken as a result of the initial inspection—notice of the completion of the inspection; or (ii) in any other case— (A) notice that building work or other action relevant to the suitability of the building for occupation is required to be undertaken; and (B) notice of the completion of an inspection (a subsequent inspection) after any such building work or other action has been undertaken. (3) If a notice under subregulation (2) in respect of a Class 1a building is not received from the council within— (a) in the case of a notice under subregulation (2)(a), (b)(i) or (b)(ii)(A)—the timeframe within which an inspection must be carried out under a practice direction issued for the purposes of section 144 of the Act; or (b) in the case of a notice under subregulation (2)(b)(ii)(B)—3 business days of the council receiving notice of the completion of any building work or other action relevant to the suitability of the building for occupation required to be undertaken as a result of the initial (or a subsequent) inspection, the entity that will be issuing the certificate of occupancy for the relevant building may presume that— (c) in the case of a notice under subregulation (2)(a)—the council has determined not to inspect the building work; or (d) in the case of a notice under subregulation (2)(b)(i) or (b)(ii)(A)—the council has completed the initial inspection and no building work or other action relevant to the suitability of the building for occupation is required; or (e) in the case of a notice under subregulation (2)(b)(ii)(B)—the council has completed a subsequent inspection and no additional building work or other action relevant to the suitability of the building for occupation is required. (4) A certificate of occupancy will be in the form determined by the Chief Executive for the purposes of this regulation (being a form published by the Chief Executive on the SA planning portal). (5) If a building certifier issues a certificate of occupancy, the building certifier must, within 5 business days after issuing the certificate, provide to the council a copy of the certificate of occupancy, together with a copy of any documentation provided under regulation 103A. (6) Subregulation (5) does not apply if the certificate of occupancy is issued via the SA planning portal. 103F—Revocation Pursuant to section 152(13) of the Act, a council may revoke a certificate of occupancy— (a) if— (i) there is a change in the use of the building; or (ii) the classification of the building changes; or (iii) building work involving an alteration or extension to the building that will increase the floor area of the building by more than 300 m2 is about to commence, or is being or has been carried out; or (iv) the building is about to undergo, or is undergoing or has undergone, major refurbishment, and the council considers that in the circumstances the certificate should be revoked and a new certificate sought; or (b) if the council considers that the building is no longer suitable for occupation because of building work undertaken, or being undertaken, on the building, or because of some other circumstance; or (c) if a schedule of essential safety provisions has been issued in relation to the building and the owner of the building has failed to comply with the requirements of regulation 94(10); or (d) if the council considers— (i) that a condition attached to a relevant development authorisation has not been met, or has been contravened, and that, in the circumstances, the certificate should be revoked; or (ii) that a condition attached to the certificate of occupancy has not been met, or has been contravened, or is no longer appropriate. 103G—Other matters (1) Pursuant to section 152(1)(a) of the Act, if— (a) approval of building work in respect of a Class 1a building under the Building Code was granted under the repealed Act before 19 March 2021; and (b) the building work is to be completed on or after the commencement of the Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2021, a certificate of occupancy is not required in respect of the building. (2) Pursuant to section 152(1)(a) of the Act, if an appropriate notice in respect of an application for building consent in relation to a Class 1a building under the Building Code is provided under regulation 31(1)(d)(iii)(B) before 1 October 2024, a certificate of occupancy is not required in respect of the building (but a certificate of occupancy is required in respect of the building if such a notice is given on or after that date). (3) Pursuant to section 152(1)(a) of the Act and despite regulation 103(1)(a), if— (a) approval of building work in respect of a Class 1a building under the Building Code was granted under the Act before the commencement of the Planning, Development and Infrastructure (General) (Miscellaneous) Variation Regulations 2021; and (b) notification of intended completion of the building work under regulation 93(1)(f) was given before that commencement, a certificate of occupancy is required in respect of the building. (4) A reference in this Division to a council (other than in regulations 103A(3), 103E(1)(b), (2) and (3) and 103F) will be taken to include a reference to a building certifier acting pursuant to section 154 of the Act. Division 4—Occupation 103H—Occupation of Class 1a buildings (1) This regulation applies to a Class 1a building under the Building Code for which a certificate of occupancy is not required in accordance with these regulations. (2) A person must not occupy a Class 1a building under the Building Code (or an addition to a Class 1a building) that has not been fully completed in accordance with a development authorisation insofar as it relates to the performance of building work unless— (a) the building is structurally sound and weatherproof; and (b) all approved health and amenity facilities have been installed in accordance with the requirements of the Building Code; and (c) the building conforms with the relevant requirements of the Building Rules for bushfire protection; and (d) all smoke alarms required under the Building Code have been installed and tested; and (e) all service connections referred to in regulation 104(8) have been made in accordance with the requirements of the relevant service provider and relevant regulating authority. Division 5—Statement of Compliance 104—Statement of Compliance notice of completion means a notice of the completion of building work under regulation 93(1)(f). (2) This regulation does not apply to a Class 10 building under the Building Code, other than a swimming pool or a private bushfire shelter. (3) If building work is carried out in a case where this regulation applies— (a) the licensed building work contractor responsible for carrying out the building work; or (b) if there is no such person, a registered building work supervisor or a building certifier, must, when a notice of completion with respect to the building work is given, provide to the relevant authority under subregulation (4) and the person referred to in subregulation (6)(b) via the SA planning portal a duly completed Statement of Compliance in the form determined by the Chief Executive for the purposes of this regulation and published on the SA planning portal. (4) For the purposes of subregulation (3) the relevant authority is— (a) if a building certifier was the relevant authority for the purposes of the assessment of the building work against the provisions of the Building Rules—that building certifier; or (b) in any other case—the council. (5) A Statement of Compliance provided under this regulation must be accompanied by any certificates, reports or other documents that the relevant authority, by notice issued under regulation 57(8)(c), indicated would need to be furnished at the time of the provision of the statement under this regulation. (6) A Statement of Compliance must be completed as follows: (a) the first part of the statement must be signed by the licensed building work contractor responsible for carrying out the relevant building work or, if there is no such person, by a registered building work supervisor or a building certifier; (b) the second part must be signed by the owner of the relevant land, or by someone acting on his or her behalf. (7) For the purposes of subregulation (6)(a), a licensed building work contractor (the contractor) will be taken to be responsible for carrying out building work if the contractor is responsible, or is primarily responsible, for— (a) performing the work; or (b) engaging another person to perform the work in a situation where the contractor retains overall responsibility for the work. (8) For the purposes of the first part of the Statement of Compliance, service connections are connections to any of the following: (a) a public electricity source; (b) water/sewerage infrastructure (within the meaning of the Water Industry Act 2012); (c) a sewerage system, community wastewater management system or waste control system; (d) a communications facility required under the Telecommunications Act 1997 of the Commonwealth; (e) any other public service or facility provided by an authority or utility. (9) If a requirement of this regulation (other than under subregulation (10) or (11)) is not complied with, the owner of the relevant land is guilty of an offence unless they establish that the failure to comply with the relevant requirement is due to the act or omission of another person. (11) If an accredited professional receives a Statement of Compliance under this regulation and a certificate of occupancy is not issued, the accredited professional must, within 5 business days of receiving the statement, provide to the council a copy of the statement together with a copy of any documentation provided for the purposes of this regulation.