In recent years, Victorian communities have faced a surge in crisis situations – such as natural disasters and pandemics. So too have councils been asked to step in and approve the temporary occupation of buildings as a solution in emergencies.

While necessary as communities are forced to cope with often unprecedented circumstances, it has resulted in councils facing local pressure to approve that use to support vulnerable and displaced community members after the crisis has passed.

However, there is no guidance in the current legislation on when approvals should be granted, and there are risks associated with using buildings for a purpose for which they weren’t originally approved. This leaves councils potentially exposed by having to quickly assess a temporary occupation application without any legislative guidance.

Crisis scenarios

In a crisis, buildings that are not typically used for accommodation can be approved for that use on a temporary basis if a council’s Municipal Building Surveyor (MBS) grants approval. This is an important statutory function conferred on an MBS under the Victorian Building Act 1993 (Act). This need may arise where, for example:

• there is an accommodation crisis as a result of a natural disaster such as a fire or flood
• residents have been displaced from a building due to safety concerns
• there is a need for a large volume of temporary accommodation, such as for quarantine or isolation purposes
• there is a need to provide accommodation to the homeless in extreme heat or cold weather

In assessing an application for temporary occupancy approval, an MBS must carefully balance the need for temporary accommodation with the risks of approving a building for temporary occupation in circumstances where such a building was not designed for that purpose.

Why does this issue arise?

Under the Act, regulations, and National Construction Code (NCC), a building is classified according to its function and use. This classification is used, in part, to provide a standard of safety with which that building must comply. In buildings that are not intended to be used for sleeping, for example, there will be different safety and sanitation requirements compared to those which are. The same applies to buildings that are used to accommodate a small number of people compared to those which are used to accommodate a large group.

For instance, if someone wanted to use a school gymnasium to accommodate residents who have been displaced by a flood, approval must be obtained for the temporary occupation of that building for that accommodation purpose.

What is the MBS' role?

Where an application is submitted to an MBS for approval, the surveyor must consider the risks associated with the occupation of that building and whether those risks are acceptable or can be mitigated. A decision on whether temporary approval can take place in all circumstances is also a major factor.

In considering an application for temporary approval, councils and their surveyors take on a level of risk in the form of owing a duty of care to those people who will occupy the building on a temporary basis. Accordingly, it is important that applications contain sufficient information and are considered before approval is granted.

In assessing an application for temporary occupancy approval, an MBS needs to consider (among other things) the following:

• the profile of the building and its intended use
• the nature of the proposed temporary use
• the duration of the temporary use, and whether the occupation can be regarded as ‘temporary’ if it is intermittent or ongoing
• whether occupancy will be supervised
• whether there are sufficient fire safety interventions, such as emergency exits, sprinklers, fire extinguishers etc
• whether there are adequate sleeping, cooking, and bathroom facilities, and
• whether the building has disability access.

An MBS must also consider whether any general or specific conditions need to be imposed on any approval. This could include consideration of occupancy numbers, fire safety, hygiene and access requirements and compliance with local laws.

Preparation of a policy and procedure document

As a way to ensure some consistency when it comes to assessing temporary usage of buildings, councils should consider preparing a policy and procedures document which provides guidance as to:

• the circumstances in which council will consider a temporary occupation application
• the information that should be provided by the applicant
• the factors which should be assessed by council, and
• when the proposed use is genuinely a ‘temporary’ use.

Assessment against standardised and detailed criteria in the policy and procedure will ensure consistent decision making and will assist councils in reducing their liability when considering temporary occupancy approval applications. The council MBS must remain mindful of their statutory and common law duty of care when exercising their statutory functions.

What councils should consider

Victorian councils are required to exercise a large number of statutory functions and powers, some of which will carry an inherent risk.

When it comes to determining whether to grant approval for temporary occupation of a building, the council MBS must carefully balance the interests of benefits for the affected community from granting approval with the risks associated with use of a building which was not designed for that purpose. It is with this in mind that a standardised process may assist the surveyor by calling on the policy, procedure and application form to make a decision that is informed, in conjunction with their skills and experience as expert building surveyors.

If you have further questions about the temporary occupation of buildings or any construction related queries, please contact our Partner Simone Holding from our Construction & Projects Team.