1. law, govt and politics
2. legal issues
3. legislation
4. building laws

© State of New South Wales (NSW) 2015
Title: Independent Review of the Building Professionals Act 2005 - Discussion paper
Author: Mr Michael Lambert
ISBN: 978-0-7313-3674-6 (electronic) and 978-0-7313-3675-3 (print)
Contents
Foreword ........................................................................................................................................... 4
Public meetings and how to have your say........................................................................... 6
Purpose of this discussion paper .............................................................................................. 7
The subject of this review............................................................................................................ 7
What is building certification? ................................................................................................... 8
Approach to building regulation and certification in NSW ........................................... 10
Administrative approaches in other jurisdictions.............................................................. 14
Key issues, options for consideration and questions ........................................................17
1 Governance structure of building regulation and certification ................................17
1.1
Administrative and legislative structure ........................................................17
1.2
Legislative clarity .................................................................................................. 18
1.3
Administrative arrangements .......................................................................... 20
1.4
Governance of the Building Professionals Board ......................................25
1.5
Framework for cooperation between private certifiers and local
government ........................................................................................................................27
1.6
Strata and community title developments ................................................. 29
2 Use of e-technology to improve access to information, processing of
transactions and management of systems ......................................................................31
3 Building regulation and certification process................................................................33
3.1
Planning and design approval stage ............................................................. 34
3.2
Improved information for the community .................................................. 36
3.3
Certification to allow commencement of building work ........................37
3.4 Building construction and occupation stages ........................................... 40
3.5
Building safety maintenance ........................................................................... 43
3.6 Fire performance and safety ........................................................................... 44
4 Supply, accreditation, accountability and oversight of certifiers .......................... 47
4.1
Supply of certifiers .............................................................................................. 47
4.2 Accreditation process ........................................................................................ 49
4.3 Accountability.........................................................................................................51
4.4 Investigations, inquiries, complaints, audits and disciplinary action ..53
4.5 Support for certifiers .......................................................................................... 56
4.6 Competitive neutrality between council and private certifiers ............57
4.7 Insurance ................................................................................................................ 58
4.8 Swimming pool certification ............................................................................ 60
5 Resourcing and funding arrangements for the building regulation and
certification system ................................................................................................................ 61
Survey – questions raised in this discussion paper.......................................................... 62
Abbreviations and acronyms .................................................................................................. 65
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Foreword
This discussion paper has been released to invite input on the review of the
Building Professionals Act 2005. The Building Professionals Act 2005 is an
important part of the NSW building regulation framework directed at ensuring a
safe, quality building product.
The NSW building and construction industry is a major industry employing
broadly 255,000 full time equivalent employees, about 9.9 per cent of the total
state labour force, contributing over $25 billion per annum to the gross state
product or about 5.1 per cent of the total gross state product. It has been for the
last few years a major engine of growth for the state economy and that is
expected to continue.
There is a legitimate public policy and regulatory role in respect to the building
industry, centred on achieving desirable planning outcomes as well as safety,
health, amenity and sustainability of buildings and construction. Building
regulation and certification plays an important role in achieving these objectives
and is the subject of this review and this discussion paper.
Until 1998, NSW had a building permit scheme with councils having responsibility
for assessing building proposals in respect to building and planning requirements.
In 1998 the system of development consent and separate building approvals was
replaced with certification, supported by the introduction of private certification
in competition with certification by council officers. This led to the Building
Professionals Act 2005 (BP Act), the Building Professionals Board (BPB) and the
Building Professionals Board Accreditation Scheme (accreditation scheme) which
came into effect in 2007.
The purpose of this review is to evaluate the BP Act and its performance and to
identify whether there are ways in which the certification scheme and building
regulation in general can be improved. The terms of reference have been broadly
set to allow consideration of the larger context of building regulation within which
certification operates.
Building regulation is concerned with the establishment and maintenance of
standards for building work (which here and hereafter covers new buildings and
associated structures such as swimming pools, building systems, changes of use
of existing buildings, alterations and additions, and subdivisions); setting
requirements for the maintenance of building safety; and the setting and
enforcement of building controls in general. Certification is part of building
regulation and is concerned with ensuring that building work meets established
standards and other administrative and regulation requirements.
There is a lack of adequate data on the level of building defects, that is,
inadequate workmanship. NSW Fair Trading collects information on defects from
complaints about residential building work but does not have a more general
4
source of data on defects. Of the 8,000 complaints about construction matters
received annually by Fair Trading, 2,000 relate to alleged building defects. The
City Futures Research Project at the University of NSW estimated that
approximately 80 per cent of buildings have defects but the survey on which the
data is based is a self-reporting survey and may not properly represent the overall
position.
The major areas where concerns have been raised about building defects are with
fire protection and waterproofing, and the type of building where most concerns
have been raised is multi-unit residential strata and community development.
Over the years there have been a number of inquiries which have examined
aspects of the NSW building industry and more recently there was a review of the
planning system with the release of the 2013 White Paper: A New Planning System
for NSW (White Paper) and two exposure Planning Bills.
While these broader planning reforms have not proceeded, chapter eight
(Building regulation and certification) of the White Paper included proposals for
reform of building regulation and certification. While there were differences of
view expressed about aspects of the proposed planning reforms, there was a
broad consensus both about the need for building regulation and certification
reform and the broad elements of what reforms should occur.
As part of the review process initial discussions have been held with key
stakeholder groups. The next stage in the review process is public consultation
which has been preceded by the release of this discussion paper.
We are looking to your views and suggestions on what are the key issues in
building regulation and certification and the appropriate approach to addressing
these issues.
Michael Lambert, April 2015
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Public meetings and how to have your say
Following the release of this discussion paper, public meetings will be held in
various locations throughout the state.
Details of the timing and location of these meetings are listed at the website for
the independent review, available via the Building Professionals Board’s website
(bpb.nsw.gov.au).
You are encouraged to read this paper carefully and then provide feedback by:
•
•
•
attending a public meeting and providing your views at the meeting
completing the following survey which covers the questions raised in this
paper – or complete it online at www.bpb.nsw.gov.au
providing a submission via email or post:
o
o
email: [email protected]
post: BP Act review, GPO Box 39, Sydney NSW 2001.
The closing date for surveys and submissions is Friday 12 June 2015.
Once the results of the meetings, surveys and submissions have been considered,
a draft report will be prepared and exhibited for public comment later this year.
The report will contain draft findings and recommendations and will invite further
submissions. The final report is scheduled for completion by 31 October 2015.
6
Purpose of this discussion paper
This discussion paper provides a summary overview of the current building
regulation and certification system in NSW and a brief comparison with the
systems operating in other jurisdictions. The paper then sets out what have been
identified at this stage as the key issues which are matters that appear to have
diminished the effectiveness of the building regulation system, as well as possible
options for consideration that may be able to address these issues.
The subject of this review
The issues have been divided into five groups, these being:
1. Governance structure of building regulation and certification
2. Use of e-technology to improve access to information, processing of
transactions and management of systems
3. Building regulation and certification process
4. Supply, accreditation, accountability and oversight of certifiers
5. Resourcing and funding arrangements for the building regulation and
certification system.
For each of the identified issues and options for consideration, questions have
been posed to elicit responses from the community and industry. Responses will
feed back into the preparation of the final report. An online survey is provided at
the Building Professionals Board’s website (bpb.nsw.gov.au). Further information
on the public consultation process (see previous page) explains how interested
parties can provide input to the review.
The options for consideration in this paper have been drawn from a number of
sources, including discussions with key stakeholders, previous relevant reviews,
the White Paper, work being undertaken by the Building Policy Unit of the NSW
Department of Planning and Environment (DPE) and work initiated by the BPB to
implement certain of the recommendations of the ‘Maltabarow Report’. 1 A
recommendation of the latter was to establish two reference groups; one to
develop a Practice Guide for accredited certifiers (Practice Guide) and a second
to develop a framework for achieving cooperation between councils and
certifiers. Both reference groups involve council and industry representatives and
their work is nearing public consultation stage.
1 Building certification and regulation – serving a new planning system for NSW (May 2013)
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
What is building certification?
Certification is the independent review and approval of building work, design,
change of use and subdivision to ensure that it complies with both relevant
planning approvals and requirements and with building and other standards that
address safety, health, amenity and sustainability of buildings and structures.
Traditionally the role was undertaken by building inspectors at councils but during
the 1990s, as part of the national competition reforms, states and territories
allowed for the introduction of private certifiers and the function is now
undertaken by a mixture of council and private certifiers who compete for the
business.
Figure 1 shows the building certification process.
Figure 1: Building certification process
8
There are two routes for proceeding with a development proposal where consent
is required (i.e. that is not classified as exempt development): the development
application process involves the development application being assessed by the
consent authority, typically a council; or the complying development route
whereby the development is assessed by a certifier or council to see if it meets
the requirements of a complying development.
An approved development application is issued a construction certificate (CC)
while a development which is assessed as meeting the requirements of a
complying development is given a complying development certificate (CDC).
The project can then proceed to construction, with the requirement for a principal
certifying authority (PCA) to be appointed. In this stage the certifier is required to
undertake inspections, certain of which are mandatory. Prior to occupation and
use, the certifier has to undertake a final assessment and determine whether to
issue an occupation certificate (OC).
The functions of a certifier include:
•
•
•
•
•
•
assessing building proposals for the issue of either a CC or a CDC, which
authorises construction to commence as the project documentation is
compliant with the planning requirements and the building standards
preparing and issuing fire safety schedules
undertaking on-site inspections of critical stages of the construction work
to ensure conformity with planning and building requirements
informing the applicant if the work does not meet the required building
standards or planning requirements and seeking rectification including, if
necessary, initiating enforcement action and reporting to the consent
authority which is typically the local council
ensuring that the critical elements and systems for the building meet all
requirements, via inspection/ documentation or via certification by a
suitably qualified and experienced person
assessing the completed building for suitability to issue an OC.
Building certification is a regulatory function that is required to be undertaken in
the public interest even though the certifier may be paid by the owner/ developer
of the building.
There is often confusion in the community about the role of a certifier versus that
of a builder. A builder has responsibility and accountability for managing and
delivering the building project, including managing all subcontractors to achieve
an outcome in line with the contract, the approved plan and building standards.
The building certifier does not have an on-site management role but
independently assesses two key matters:
•
conformity of the building or development with the planning approvals
•
whether the building meets the necessary building standards.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
A certifier is not responsible for oversighting the work of the builder or for
ensuring the quality of the building work, which is the builder’s responsibility.
Approach to building regulation and
certification in NSW
The legislation and administrative structure for building regulating and
certification in NSW is relatively complex.
For the purpose of this review, there are three core pieces of legislation: the
Environmental Planning and Assessment Act 1979 (EP&A Act), the BP Act and the
Home Building Act 1989. Table 1 sets out the legislative framework.
Table 1: The NSW building industry regulatory framework
Legislation
Administrative agency
Responsible Minister
Framework legislation
Environmental Planning
and Assessment Act 1979
NSW Department of
Planning and
Environment
Minister for Planning and
Assistant Minister for
Planning
Local Government Act
1993
Office of Local
Government, within the
Department of Planning
and Environment
Minister for Local
Government
Industry and occupational regulation
Building Professionals Act
2005
Building Professionals
Board
Home Building Act 1989
NSW Fair Trading, within
the Department of
Finance, Services and
Innovation
Plumbing and Drainage
Act 2011
NSW Fair Trading, within
the Department of
Finance, Services and
Innovation
Swimming Pools Act 1992
Office of Local
Government, within the
Department of Planning
and Environment
Minister for Planning and
Assistant Minister for
Planning
Minister for Innovation
and Better Regulation
Minister for Finance,
Services and Property
Minister for Innovation
and Better Regulation
Minister for Local
Government
10
Consumer protection and market regulation
Building and Construction
Industry Long Service
Payments Act 1986
NSW Fair Trading, within
the Department of
Finance, Services and
Innovation
Minister for Innovation
and Better Regulation
Civil and Administrative
Tribunal Act 2013
Department of Justice
Attorney General
Fair Trading Act 1987
NSW Fair Trading, within
the Department of
Finance, Services and
Innovation
Minister for Innovation
and Better Regulation
Strata Schemes
Management Act 1996
NSW Fair Trading, within
the Department of
Finance, Services and
Innovation
Minister for Innovation
and Better Regulation
Work Health and Safety
Act 2011
WorkCover Authority of
NSW
Minister for Finance,
Services and Property
There are three key bodies that undertake regulatory functions for the building
industry:
•
•
•
the DPE, which administers the EP&A Act; develops building policy,
controls and regulation; administers the ePlanning initiative; and represents
NSW at inter-governmental forums, including the development of the
National Construction Code
the BPB, which operates under its own Act and administers the
accreditation and oversight of building certifiers. The BPB’s administrative
support and funding is principally from the DPE
NSW Fair Trading, which administers the Home Building Act 1989, licenses
home builders and building trades and undertakes the consumer protection
function for residential buildings as well as more generally.
The scope of regulation of the building industry differs between the DPE and BPB
on the one hand and NSW Fair Trading on the other. The DPE and BPB regulate
the full building industry, residential, commercial and industrial, whereas the scope
of Fair Trading’s regulation, which is focused on consumer protection, covers only
the residential building sector.
Table 2 sets out the main bodies involved in building industry regulation in NSW
and their roles.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Table 2: Organisations involved in regulation of the NSW building system
Organisation
Relevant Legislation
Role in building regulation
NSW
Department of
Planning and
Environment
Building
Professionals Act
2005
Building Professionals Board
NSW
Department of
Planning and
Environment
Environmental
Planning and
Assessment Act 1979
Building Policy Unit, Policy and
Strategy Division
Regulates and supports accredited
certifiers.
Advises on an effective and efficient
building control and regulation system
for NSW and its alignment with the
planning system and the National
Construction Code.
Planning Frameworks (Codes),
Planning Systems and Frameworks
Unit, Policy and Strategy Division
Administers the State Environmental
Planning Policy (Exempt and Complying
Development Codes) 2008.
ePlanning Unit, Policy and Strategy
Division
Seeking to develop with councils an
online system for the electronic
lodgement of development applications
and extending that to building
certification.
Sustainable Systems Division
Administers residential sustainability
requirements under the Act through
the Building and Sustainability Index
(BASIX) scheme.
NSW
Department of
Planning and
Environment
Local Government
Act 1993
Office of Local Government
NSW Fair
Trading – Office
of Finance,
Services and
Innovation
Home Building Act
1989
Manages consumer protection laws,
provides advice and assistance to
businesses and traders with respect to
fair and ethical practices and
administers the Home Building Act 1989
Fair Trading Act 1987
State oversight of local government
including administering and advising on
the Local Government Act 1993.
12
including occupational and trade
licensing and regulation.
In addition there is a Ministerial Home
Building Advisory Council and the
Home Building Compensation Fund
administers the home insurance
scheme
Local
government
(councils)
Environmental
Planning and
Assessment Act 1979
Local Government
Act 1993
Undertakes the key building and
planning regulatory function in local
areas that are not exempt or complying
developments.
Is the principal building control
authority for their respective local
government area.
Undertakes key planning functions
(strategic, policies and as a consent
authority).
Undertakes certain building regulatory
functions exclusively (such as local
approvals) and compete for
certification work (less so in certain
rural areas where few private certifiers
operate).
Maintains certification records for their
local government area.
NSW Treasury
Self Insurance
Corporation
Sole home warranty insurer in NSW.
WorkCover NSW Workers
– Office of
Compensation Act
Finance,
1987
Services and
Innovation
Administers work, health and safety,
injury management, return to work and
workers compensation across all
industries.
NSW Architects
Registration
Board
Architects Act 2003
Registers architects and maintains a
register of architect corporations
permitted to operate in NSW.
NSW Civil and
Administrative
Tribunal
Civil and
Administrative
Tribunal Act 2013
Handles appeals against decisions by
the BPB against certifiers, although the
BPB can refer disciplinary matters to
the Tribunal for determination in the
first instance.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Broader role: handles disputes between
consumers and businesses, and, in this
context, between consumers and
builders that are not resolved through
mediation processes provided by Fair
Trading.
The BPB has as its core role the regulation of building certification, covering both
council and private building certifiers. In this role the BPB undertakes the
following functions:
•
•
•
•
•
•
administration of the accreditation scheme which in part accredits
certifiers to issue certificates for building work as set out in the EP&A Act,
attesting to the building/ development having met specified requirements.
Accredited certifiers have to meet requirements in respect to
qualifications, skills, knowledge, experience, insurance, code of conduct
and continuing professional development
promotion and maintenance of standards of building and subdivision
certification
facilitation of education and training for accredited certifiers
investigation into the conduct of accredited certifiers and undertaking
disciplinary proceedings, as necessary, against accredited certifiers
audit of accredited certifiers and councils in their certification role to assist
in improving the system and the certification process
provision of advice to the Minister on policy development and matters
relating to the BP Act.
Administrative approaches in other
jurisdictions
The approach in other Australian states and territories and New Zealand is
broadly similar to that followed in NSW but the legislative and administrative
structures differ significantly, with NSW’s legislation and administrative
arrangements being more fragmented than is generally the case in other
jurisdictions.
All jurisdictions other than New Zealand have private certifiers, with a mixed
system of private and council certifiers, except in the ACT and the Northern
Territory where there are only private certifiers.
NSW differs from other jurisdictions in having an integrated, single process for
planning and building approval certification (whereas in other jurisdictions
certifiers certify building approvals but the relevant consent authority determines
whether the building is in conformity with planning approvals). However, it differs
in separating the function of regulating certifiers from regulating other building
14
professionals, and in having consumer protection across industries consolidated in
one agency, Fair Trading.
Victoria has a one-stop-shop structure with the Victorian Building Authority, set
up under the Building Act 1993, regulating the full building industry, including
compulsory registration and insurance for builders, plumbers, architects and other
building practitioners, including building certifiers. In effect the Victorian Building
Authority combines the building regulatory functions of the DPE, the BPB and
NSW Fair Trading and is funded by a levy on building permits.
Queensland has a similar consolidated approach. Within the Department of Public
Works and Housing there are two agencies: Building Codes Queensland, which
covers legislation and policy in the building area, and the Queensland Building and
Construction Commission, which combines the building certifier responsibilities of
the BPB and the building licensing role of NSW Fair Trading. There is a current
proposal to merge the functions of Building Codes Queensland into the
Queensland Building and Construction Commission.
Western Australia has a Building Commission within the Department of
Commerce. The Building Commission undertakes the functions of registration and
licensing of building practitioners, including certifiers; provision of information,
advice and dispute resolution services; providing technical services including state
and national building standards; and advising the government on the building
industry and regulation.
South Australia is the only other jurisdiction with a building regulation
administrative structure that is divided between agencies in a similar way to NSW.
The Department of Planning, Transport and Infrastructure undertakes both the
planning and building regulation functions. Unlike NSW, certifiers in South
Australia do not certify planning matters which are the responsibility of councils.
The Department of Consumer and Business Services undertakes consumer
protection and handles business and occupational licensing, including licensing of
builders, plumbers, gasfitters and electricians.
In Tasmania, building regulation, occupational licensing and building practitioner
accreditation is undertaken within the Department of Justice. The building
certifier role is restricted to building standards and codes and does not cover
conformity with planning approvals.
The ACT has building regulation functions consolidated within the Planning and
Land Authority which covers building regulation policy, maintaining the
construction occupations register, auditing the work of construction occupations
and investigating complaints.
The NT has a single consolidated Act for the building industry, the Building Act.
The Building Advisory Services Branch within the Department of Land Planning
and the Environment undertakes the full range of building regulation other than
occupation registration. The Building Practitioners Board regulates building
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
practitioners, including certifiers while the Building Appeals Board hears any
appeals on decisions of the BPB.
New Zealand, while at the time having private certifiers, decided to transfer all
building consents to councils in the light of what was termed the ‘leaky building
crisis’ of 2004. The building and housing function is situated within the Ministry of
Business, Innovation and Employment and covers all policy and regulatory roles
with respect to building and housing. Independent of the Ministry, but supported
by it, is the Licensed Building Practitioners Scheme which is overseen by a board
and manages the licensing of building professionals, including investigating
complaints.
16
Key issues, options for consideration and
questions
This section seeks to identify significant issues that impact on the efficiency and
effectiveness of the NSW building regulation and certification system, with
particular emphasis on building certification and the role and responsibility of the
BPB. There may be other building regulation issues not covered in this paper. An
important part of this review is to seek to identify and assess any other issues, and
obtain input on the significance of the issues identified in this paper.
Each issue is explained and then options for consideration are identified which
could address the issue. Finally, questions are posed which interested parties are
invited to address in part or whole by responding to the survey or providing a
submission.
1
Governance structure of building regulation and
certification
1.1 Administrative and legislative structure
As noted earlier in this paper, administrative and legislative responsibilities are
divided amongst a number of different government bodies:
•
•
•
•
The DPE is responsible for building and planning policy and administers the
EP&A Act and the Environmental Planning and Assessment Regulation
2000 (EP&A Regulation), which is primarily planning legislation but which
also incorporates building regulation legislation.
The Building Professionals Board, operating under the BP Act, administers
the accreditation scheme and has secretariat support from the DPE.
NSW Fair Trading licenses residential builders and trades, plumbers and
electricians and administers the Home Building Act 1989.
The Office of Local Government administers the Local Government Act
1993, and local government (councils) which act as a consent authority for
development approvals, provide a building certification service and have
enforcement powers for building work and approvals.
While all states have a division of responsibilities between local and state
government in the building and planning area, NSW stands out in terms of the
level of fragmentation of the building regulation function at state government
level. In Victoria, Queensland, Western Australia and Tasmania, regulation of the
building and construction industry is undertaken by a single state government
agency as described earlier in this paper.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
This raises two key issues:
•
•
the clarity of the legislative framework for building regulation
whether there should be changes to the existing administrative
arrangements to create a consolidated approach for building regulation
and certification.
1.2 Legislative clarity
The legislative structure for building regulation in NSW is set out in table 1. The
key legislation is the EP&A Act, BP Act and Home Building Act 1989. The EP&A
Act and the BP Act are concerned with planning and building control while the
Home Building Act 1989 seeks to regulate contractual dealings between
consumers and builders, with an objective of consumer protection.
While the main focus of this review is on the BP Act, it is essential to consider the
other legislation and in particular the EP&A Act and Regulation. The latter
legislation sets out the building regulation framework within which certifiers must
operate, and defines the functions of certifiers.
The EP&A Act is a very complex piece of legislation and the building regulation
component within it was originally transferred from the Local Government Act
1993. From the perspective of the building industry, it is difficult to navigate the
provisions of the EP&A Act and many of its provisions need to be revised to
reflect what would be now regarded as regulatory best practice. Chapter eight of
the White Paper identified the need for a number of reforms in the area of
building regulation.
Table 3 sets out the relevant building regulation provisions of the EP&A Act and
EP&A Regulation.
Table 3: Key building regulation provisions of the EP&A Act and EP&A
Regulation
EP&A Act
•
•
•
•
•
•
•
Part 4 Division 2, procedures for development that
needs consent
Part 4 Division 3, special procedure for complying
development
Part 4A certification of development
Part 4C liability and insurance
Part 6 Division 2A, orders
Part 6, Division 4, offences, including penalty
notice offences
Part 8 Miscellaneous, section 149A-G Building
certificates
EP&A Regulation
•
•
•
•
•
•
•
Part 6 Divisions 8 and 8A – clause 93 Fire
safety and other considerations, clause 94
upgrading of existing buildings, clause 98
compliance with the Building Code of
Australia (BCA), clauses 98A-98E
entertainment venues
Part 7 Procedures relating to complying
development
Part 8 certification of development
Part 9 Fire safety and matters concerning the
BCA
Part 12 Accreditation of building products and
systems
Part 16 Registers and other records
Part 17 Miscellaneous – clauses 280 and 281
building certificates, clause 284 penalty
18
•
•
notice offences, clause 291 savings and
transitional provisions
Schedule 1 Forms
Schedule 7 Penalty notice offences
The EP&A Act does not acknowledge that it contains building regulation and
there is no relevant statement of objectives relating to building regulation.
Further, as can be seen from the above table, the treatment is somewhat
fragmented and lacks a unifying structure. It reflects the origins of the provisions
in the Local Government Act 1993 followed by numerous amendments over the
years as new issues or processes have been incorporated.
Options for consideration
Merit is seen in consolidating and expressing in plain English the legislative
provisions relevant to the building industry, including clear statements of the
objectives of the legislation. Benefit is also seen in moving away from detailed,
prescriptive legislation to principle-based legislation, and addressing any
necessary details in regulations and codes. Such an approach would have the
benefits of:
•
•
•
providing greater clarity for both building practitioners and consumers
concerning the regulatory framework
assisting accredited certifiers in undertaking their regulatory role
assisting regulators in reviewing the performance against the legislative
objectives.
There are various options in regard to the structure of the legislation, including:
•
•
consolidating all the current building regulation provisions in the EP&A Act
and the BP Act into one appropriately rewritten and restructured Part of
the EP&A Act, including a statement of its own objectives
consolidating all building legislation into one Building Industry Act which
would include the building regulation provisions of the EP&A Act, the BP
Act and the Home Building Act 1993 (to the extent possible, noting that the
latter deals with, in part, different subject matter to the EP&A legislation).
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Questions: legislative structure for building sector regulation
1. Is there merit in consolidating the legislative framework for building sector
regulation and control in one part of the EP&A Act, expressed in plain English, on
a principles-based approach, with its own objectives, and incorporating any
reforms approved by the Government?
2. Are there sufficient additional benefits involved to justify consolidating all
building legislation in one Act, including the Home Building Act 1993?
1.3 Administrative arrangements
Reflecting in part the legislative structure, the State administrative structure is
divided between a number of bodies:
•
•
•
the Department of Planning and Environment
the Building Professionals Board
NSW Fair Trading.
While a separate statutory body, the BPB is administered within the DPE, though
until recently there was not integrated executive oversight of the BPB and the
Department’s Building Policy Unit.
In common with other jurisdictions, other than the ACT, there is a natural
separation between local government and state administration. The major
difference between NSW and other Australian jurisdictions is in the separation of
the building regulation and certification policy functions undertaken by the DPE
and BPB on one hand, and building licensing by NSW Fair Trading on the other.
Another difference between NSW, and Queensland and Victoria, is that in NSW
consumer protection across industries is centralised in Fair Trading. In Queensland
and Victoria it is separated between various agencies.
The separation of the regulatory responsibilities between state agencies has a
number of adverse impacts:
•
There is a lack of clarity for consumers and to a lesser extent with industry,
about the respective agencies’ roles and responsibilities. Consumers are
not able to distinguish the role of building certifiers from builders and other
building professionals, and hence there is uncertainty about whether a
complaint should be pursued through NSW Fair Trading or through the
BPB. While part of the solution would be to educate the public about the
role of certifiers, if the functions were in a single agency there would be a
greater capacity to assess up front which is the most appropriate area to
address the issue.
20
•
•
There is a lack of common direction with regard to the overarching
purpose and principles of regulation associated with separate agencies and
separate responsible Ministers.
There is a lack of coordination and consistency with two separate agencies
each pursuing its own agenda.
Options for consideration
A number of options could be considered, including the following which are
presented in increasing order of scale of change (from the status quo):
•
•
•
•
putting in place an overarching coordination and communication
mechanism (such as a memorandum of understanding) between the
building regulatory functions of the DPE (including the BPB), local
government and NSW Fair Trading
consolidating the licensing/ accreditation of building professionals in one
body
consolidating in one agency the building regulation functions of the DPE
(including the BPB) and the Home Building Services area of Fair Trading
creating a separate building agency analogous to the situation in Victoria,
Queensland and Western Australia.
While the NSW Building Regulation Advisory Council advises the DPE’s Building
Policy Unit, it has a broad representation of external industry organisations and
hence is not suitable to coordinate across government agencies. A separate
committee, the Building Industry Coordination Committee, was established
following the ‘Campbell Inquiry’ in 2002 with the remit of improving cross-agency
coordination in the building sector. It consisted of representatives of the then
Department of Planning, NSW Fire Brigades and NSW Fair Trading. However, it
would appear that the Committee was largely ineffective in its mission and has
ceased to function. There was also an information communication protocol in
place between the BPB and Fair Trading but that has lapsed.
The second option involves consolidating in one body the accreditation and
administration of certifiers, and the licensing of building professionals, which are
currently divided between BPB and Fair Trading.
The third option involves combining in one agency the BPB, the Building Policy
Unit of DPE, and the Home Building Services area of Fair Trading, to create a
designated division of building regulation and certification. As noted earlier there
is a difference in scope of coverage of the building industry, with the DPE
covering the full industry and Fair Trading covering the home building sector.
This approach would have the advantage of including in one division all the
functions of building regulation and so facilitating greater coordination and
consistency of approach. Where consumers raise issues of concern, it would be
possible to triage to assess what is the underlying issue and hence which area of
the division is most appropriate to address the issue. Also, where an issue involves
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
concerns both about a builder and building certification, both areas could be
investigated concurrently. It would also facilitate the creation of a single,
consistent organisational culture. The disadvantage of this option is the
separation of the planning and building policy functions.
The fourth option is to establish a separate building agency. The establishment of
a Building Commission was in fact recommended back in 2002 by the Campbell
Inquiry 2 and more recently by the Collins Report. 3 In both cases the government
of the day decided not to proceed with the proposal. The decision not to proceed
with a Building Commission may in fact have been taken because of a desire not
to broaden the scope of regulation, specifically the extension of consumer
protection regulation to the non-home-building part of the industry. In this regard,
this option does differ from those earlier proposals in that it would not extend the
scope of building industry regulation, but rather would consolidate in one body all
regulation relating to the building industry.
This approach differs in three ways from the third option:
•
•
•
it is based on the creation of a new entity rather than transfer of functions
to an existing one
it would be dedicated to the building and construction sector
there would be a separation of the consumer protection function for the
building industry from that applying to other parts of the economy.
There are two points to note about this option. The first is that while consolidation
may create a more consistent approach, it is not a guarantee of success – it may
be a necessary condition but is not a sufficient condition for success. In the case
of both Victoria and Queensland, serious problems were identified with their
building commissions which have led to significant changes. Second, any
restructure will have both a consolidation and a separation element, with positive
and negative impacts. In this case, the separation would be separating the
building industry consumer protection from the balance of consumer protection.
Table 4 summarises the advantages and disadvantages of each option.
2
3
Joint Select Committee on the Quality of Buildings, 2002
Inquiry into Construction Industry Insolvency in NSW – Final Report, 2012
22
Table 4: Summary assessment of administrative options for building
regulation
Option
Across sector
coordination
committee
Create a single
body for
accreditation/
licensing of
certifiers and
other building
professions
Consolidate
building
regulation and
certification in
one existing
agency
Explanation
Advantages
Establish a
committee with
representation
from the DPE,
NSW Fair
Trading and the
Office of Local
Government
•
Simple to
implement
•
Avoids
reorganisation
of existing
agencies
Consolidates in
one body the
function of
building industry
occupational
licensing and
oversight. Could
be located in the
BPB or Fair
Trading
•
Relatively
simple to
implement
•
Maintains the
integration of
planning and
building policy
•
Creates a onestop-shop and
consistent
approach to
building
industry
occupation
regulation
Combine in one
agency the BPB,
the Building
Policy Unit of
DPE, and the
Home Building
Services area of
Fair Trading, to
create a
designated
division of
building
regulation and
•
Consolidates
the building
regulation
function in one
division and
hence makes it
easier for
consumers and
industry to
navigate
•
Creates a
consistent
building
DISCUSSION PAPER MAY 2015
Disadvantages
•
Based on
past
experience
it may
prove to
be
ineffective
•
Does not
address
the
confusion
and lack of
clarity of
consumers
and
industry
•
Does not
consolidat
e the full
range of
building
regulation
in one
body
•
There will
be a
significant
reduction
in the
linkage
between
planning
and
building
regulation,
which is
unique to
23
INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
certification
Establish a NSW
Building
Commission
Transfer the
building
regulation and
building
consumer
protection
functions from
NSW Fair
Trading and the
Building Policy
Unit and the
Building
Professionals
Board from the
DPE to a NSW
Building
Commission
industry culture
and focus
•
Retains the
synergies of
having
consumer
protection in
one agency
•
Avoids the risks
of industry
capture with a
dedicated
building agency
•
Creates a single
one-stop-shop
for the building
industry
•
Consolidates
the building
regulation
function in one
division and
hence makes it
easier for
consumers and
industry to
navigate
•
Creates a
consistent
building
industry culture
and focus
NSW – this
would be
most
apparent
with the
work on
complying
developme
nt
standards
(where
interpretati
on and
advice to
certifiers is
important)
but also
with ePlanning
•
Possible
conflict of
priorities
between
building
regulation
and other
functions,
given the
broader
role of Fair
Trading
•
Risks the
Building
Commissio
n
becoming
subject to
industry
capture or
becoming
an
advocate
for the
building
industry
•
Loses the
synergies
present in
NSW Fair
Trading
24
•
Avoids a
potential
conflict of
priorities
between
building
regulation and
other functions
with the
consolidati
on of
consumer
protection
in the one
agency
•
Raises the
issue of
whether
licencing
of building
trades is a
better ‘fit’
with
consumer
protection
or building
regulation
Questions: administrative structure for building sector regulation
3. Are there sufficient benefits to justify the consolidation of building regulation
administration?
1.4 Governance of the Building Professionals Board
While the Building Professionals Board is established under legislation, it employs
no staff and does not have a defined resourcing arrangement. The staff that
undertake the functions of administering the responsibilities of the BPB are staff
from the DPE, accountable to the secretary of that department. This creates the
potential for conflict for staff between their responsibilities to the BPB and DPE.
In addition, the BPB has not had control of its financial resources and there has
not been a budgetary process in place whereby the BPB can establish a financial
plan to match with its corporate plan for the coming year. The BPB is in fact
almost fully dependent on the allocation of funding from the DPE and hence has
had no financial certainty or control. It has been agreed to introduce a budgetary
process for the BPB from 1 July 2015. A related issue, addressed in section 5, is
whether there should be a separate funding source for the BPB.
Options for consideration
Regardless of which overall administrative structure is in place, consideration
could be given to improving the governance arrangements for the BPB by
providing it with the power to act as the employer of its staff.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
If this were to occur it would need to be handled in a way that did not
disadvantage staff or create administrative inefficiencies. Current staff in the BPB
secretariat are staff from the DPE, and as such have a broader range of
employment opportunities available than simply working in the secretariat. One
approach that would avoid disruption to existing and future staff, in terms of their
own career planning, would be to provide the BPB with the ability to both recruit
its own staff and, under its existing powers, second staff from the DPE. It would
be efficient for the Board to continue to rely on the corporate services of the DPE
rather than create its own in-house corporate support functions.
An alternative option is to have the functions of the BPB undertaken by a nonstatutory body, with the Building Professionals Board becoming an advisory
council.
Questions: Building Professionals Board governance
4. Should the BP Act provide the BPB with the power to employ its own staff in
addition to seconding staff?
5. Is there merit in the functions undertaken by BPB continuing to be undertaken
by a statutory board?
26
1.5 Framework for cooperation between private certifiers and
local government
Critical to the success of the building certification process is having an open and
cooperative relationship between private certifiers and councils. Unfortunately,
the evidence provides mixed examples, with some instances of a good working
relationship but also many examples of a poor or less than fully effective
relationship.
Private certifiers in NSW have limited enforcement powers. Apart from drawing
the developer’s attention to a matter not in conformity with the development
approvals or the Building Code of Australia (BCA), the only actions available to a
private certifier are to issue a ‘notice of intention’ to issue an order, or to decline
to issue certificates. Such a notice is generally provided to the builder, with a copy
sent to the relevant council. Any enforcement action beyond that is at the
discretion of the council.
In addition, there is currently no obligation for a certifier to report non-compliance
to the consent authority. The certifier has discretion to do so, but there is little
evidence of this being general practice.
Some private certifiers are reluctant to issue notices of intent as it as it could
create a direct conflict with the builder, while at the same time there is no
certainty that the council will act on the matter. Councils have advised that such
notices are issued quite infrequently and, when issued, often contain significant
errors. If the council is to take action, these errors require the council to
commence the process again, issue a new notice and bear the cost of compliance.
As a result, councils do not often take action upon receipt of a notice from a
private certifier and instead recommence the process as noted above.
What needs to be recognised is the key role of councils in the planning and
building approval system. This role covers:
•
•
•
acting as a consent authority in accordance with both the requirements of
state and local environmental planning instruments
using their inspection and enforcement powers to achieve consent
compliance (this may be a combined responsibility between the council
and private certifier appointed as the PCA), and protecting local
communities from the environmental impact of the building and
construction process, including responding to residential complaints
providing advice and assistance to residents and developers in assisting
them undertake developments.
Complying developments do not require the submission of a development
application and hence council review and consent (although councils can and do
issue CDCs). These constitute approximately 29 per cent of all developments.
Hence local government continues to be the consent authority for the majority of
development in NSW and provides a vital role in ensuring that developments
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
conform to local, state and national development policies. Moreover, even in
respect to complying developments, which are subject to certification, where
there is a dispute between the developer and the building certifier regarding
conformity with the requirements pertaining to development, the relevant council
has an enforcement role.
The key issues with the current approach are:
•
•
•
•
the lack of a defined protocol and process for the relationship between
private certifiers and councils
the lack of enforcement ability of private certifiers
the cost to councils of undertaking compliance actions in cases involving
private certifiers
confusion and frustration in the community about the roles of certifiers and
councils.
Options for consideration
The BPB’s Local Government Reference Group has developed a proposed
framework for cooperation between local government and private certifiers, along
the following lines:
•
First-instance enforcement:
o
o
•
•
in general, off-site issues (such as damage to street trees or sediment
runoff onto adjacent property) are directed to the council unless the
certifier is on-site at the time; and built form issues are directed to the
certifier
councils can require a certifier to inspect and report back.
Certifiers to no longer issue a notice of intent; this is to be replaced by a
written direction using a prescribed form, with a copy sent to notify the
council.
A two-pronged approach to cost-recovery for council enforcement:
o
o
a compliance fee built into all applications for development consent or a
CDC (and fees to be standardised across NSW)
a cumulative and/ or tiered system of penalty infringement notices, and
stronger order provisions.
Another option for consideration is making it mandatory for certifiers to report
any non-compliance to the relevant local council.
At a broader level, the Independent Pricing and Regulatory Tribunal (IPART), in its
draft report Local government compliance and enforcement, proposed a
partnership model between State Government agencies and local government,
noting that in many cases there was a lack of coordination between the two levels
of government which adversely impacted on public administration. IPART cited as
28
best practice the Food Regulation Partnership between the NSW Food Authority
and local government, which has the following characteristics:
•
•
•
•
clear delineation of roles and responsibilities
clear guidance and assistance from the State agency, such as standard
forms, templates and guidance
two-way exchange of information, with councils providing feedback on
actual practice which informs policy
dedicated forums for strategic consultation, such as on proposed
regulatory reforms.
IPART identified planning as an area with large potential gains from the adoption
of this model.
Questions: framework for cooperation between private certifiers and
local government
6. Would the framework of cooperation developed by the BPB Local Government
Reference Group provide an effective approach for interaction between private
certifiers and local government?
7. Should certifiers be required to report all cases of building and planning noncompliance to councils?
8. Is there merit in a partnership model between the State and local government
in the area of certification and building regulation enforcement?
1.6 Strata and community title developments
With most developments there is an owner/ beneficiary of the development
present. Certainly that is the case with most single residential developments,
commercial and industrial buildings. In the case of single residential developments
the owner may not be fully informed or experienced but is nevertheless present
and has an incentive to achieve a good building outcome. In the case of
commercial and industrial buildings, the developer can be the owner. Where that
is not the case the owner is nevertheless fully informed, resourced and
incentivised to act as a knowledgeable counterparty in the contract with the
builder/ developer. For this reason, commercial and industrial buildings are not
subject to consumer protection legislation in NSW.
However, in the case of strata and community title developments, the ultimate
owner of a unit is not ‘at the table’ but enters the picture following the completion
of the project. Furthermore, under the Home Building Act 1993, for residential
buildings with a rise in storeys greater than three, participation in the Home
Building Compensation Fund is not required. The logic of not having Home
Building Compensation Fund coverage for residential buildings above three
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
storeys is not apparent for, whether it has three or more storeys, there is still the
problem of the absence of the ultimate owner’s participation in the design,
construction, commissioning and certification of strata and community title
buildings.
For some strata buildings, the developer may delay selling many of the lots until
the statutory warranty period has elapsed, meaning the developer and owners’
corporation are, at first, the same body. The former practice of developers
retaining the proxy votes of lot owners is no longer allowed under the Strata
Schemes Management Act 1996, with a developer prohibited from casting a proxy
vote on behalf of an owner if the proxy was given pursuant to the contract for
sale.
However, developers are reportedly getting around this provision by requiring
owners, in the contract for sale, to vote in the same manner as the developer. To
overcome this new scenario, proposed strata reforms include making such a
provision in a contract void and unenforceable. The reforms also propose
prohibiting developers from voting on motions involving defects.
These factors may reduce the ability of owners’ corporations to address
rectification of building defects during the crucial two-year period after the OC is
issued (see ‘options for consideration’ below). Further, the statutory warranty
begins when the OC is issued, but months may pass until the first annual general
meeting of the owners’ corporation, limiting the time to investigate defects.
A related issue is the role of inspections during construction, and annual
reinspections of building systems, to help identify non-compliance. More
inspections could be required, while existing inspections could be made more
effective. For instance, annual fire safety inspections could be made to focus on a
different part of the building each year, avoiding the risk that non-compliant
elements are undetected simply because the same elements in an adjacent storey
are instead reinspected every year.
Finally, for off-the-plan purchases before construction starts, another issue that
may arise is consistency of the final product with the initial approved design.
Proposed reforms such as the Practice Guide will help to address this issue.
Options for consideration
The Government has set out in a position paper a possible approach to provide
greater consumer protection in this area. This involves setting a defects bond for
strata schemes, which would be set at two per cent of the value of the
construction and held for a period of two years after the completion of the
building. No longer than 12 months after completion of the building, a building
inspector would be appointed to undertake an inspection and produce a defects
inspection report. The cost of repairing any defects would be deducted from the
bond. Such an approach acts as a form of consumer protection, seeking to
address building defects.
30
An approach that is directed at seeking to minimise problems during the
construction period would be to recognise the special circumstances of
ownership with strata and community title developments, and require greater
involvement by the BPB in appointing and auditing PCAs involved in community
and strata title developments. This was proposed by the Campbell Inquiry. It
should be noted that this will not necessarily address problems of building
workmanship – which is not the role of a certifier – but instead seeks to ensure
conformity with the planning approval and the BCA.
Questions: strata and community title developments
9. Would enhanced oversight of the certification process assist in addressing the
problems experienced by owners of strata and community title developments?
2
Use of e-technology to improve access to
information, processing of transactions and
management of systems
It is important that any regulatory system has a built-in process for generating
information that measures both the level of activity and the performance of the
system. The current DPE-based building regulation and certification system is
substantially paper-based and hence does not generate, in a convenient way, the
necessary data to inform evidence-based policy and to monitor the effectiveness
of the system.
Beyond the generation of information to track activity and performance of the
system, is the broader issue of most effectively using e-technology to facilitate
more efficient and faster transaction processing, the proposed creation of an
electronic Building Manual, and providing broad access to information relevant to
approval decisions, such as land use restrictions and development standards.
Steps to improve the use of e-technology have been taken by various councils
and the DPE’s ePlanning Unit. These include online applications and processing of
development applications in a number of councils, and the development by
ePlanning of an electronic lodgement system for complying developments. In
addition, ePlanning is working with local government on an approach involving
the digitalisation of development approvals, from lodgement to approval. This
would be undertaken by councils but would allow ePlanning access to the
information on an ongoing basis to enable state-wide tracking of development
applications and approvals via councils and complying developments, which could
be broken down by regions.
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Both the accreditation and complaints processes at the BPB are manual systems
with various drawbacks, including:
•
•
•
•
the effort required to manually lodge accreditation applications and
complaints
the need to manually process information onto spreadsheets and
databases, which is slow and absorbs scarce resources
a lack of effective tools to manage online complaints and accreditation
applications
the separation into two databases of information on certifier accreditation
and information on complaints and disciplinary action taken against
certifiers, meaning it is difficult for consumers to access full relevant
information when making a decision about the appointment of a certifier.
Under the EP&A Regulation, private certifiers are required to provide to the
relevant council, within two days of issue, a copy of each CC/ CDC and OC and
supporting documentation. If provided in hard copy form, such documents cannot
be conveniently digitalised, restricting access to the documentation. Further,
there are not standard forms for CCs, CDCs and OCs, and hence significant
variation in the content of such forms.
Options for consideration
The following are possible options to improve both the information system and
management of aspects of building regulation:
•
•
•
establishing a standard format for a development application as well as
each of the Part 4A and complying development certificates
capturing information on a digital basis from council and private certifiers
on the issue of all certificates by certifiers. Such an extension would enable
real time tracking of the key stages of each development in the state and
by region. It is also noted that in Victoria a state agency collects data
electronically from councils and certifiers, prepares it in a suitable form and
then passes it to the Australian Bureau of Statistics. In NSW, the Australian
Bureau of Statistics has to collect this information from individual councils
conversion by the BPB of the complaints and accreditation schemes to an
online digital system, with supporting management systems (work is
underway to deliver this by the end of June 2015).
Questions: use of e-technology
10. Would an electronic system for development applications, complying
developments and building certification generate useful information for
government and the industry and improve regulatory performance?
11. Do you support the adoption of standard forms for development applications,
CCs, CDCs and OCs?
32
3
Building regulation and certification process
The building regulation and certification processes seek to ensure that buildings
are designed and constructed in accordance with approved development policies
and are safe and fit for purpose, and that complex buildings remain safe over
time. The NSW building regulation and certification process has already been
explained; this section reviews each stage of the building regulation and
certification process, identifies issues that are directly relevant to building
certification and sets out options that may address these issues.
This section covers the same broad area that was addressed in chapter eight of
the White Paper but with a greater focus on the certification process.
Figure 2 (below) summarises the four key stages of any building and construction
project, which include the three stages shown in figure 1 plus an ongoing
maintenance stage after the OC is issued. The key issues that impact on the role
and responsibilities of certification at each stage are set out in the following
sections, together with an identification of options for consideration to address
the issues. A fifth category of issues has been included, fire performance and
safety, which applies to Class 2-9 buildings, 4 which occur in each of the four
building stages but, owing to the importance of fire safety, have been treated as a
separate issue.
Figure 2: Stages of development
Stage 1:
Planning
Design and
Approval
•Preparation
of plans
•Lodgement
or
proceeding
as a
complying
development
•Assessment
•Issue of CC
or CDC
4
Stage 2:
Building and
Construction
•Engagement
of a builder
•Appointment
of principal
certifying
authority
(PCA)
•Notice to
council of
commencem
ent and PCA
•Inspections
•Certification
of building
elements
Stage 3:
Completion
and
Commissioning
Stage 4:
Maintenance
•Final
assessment
•Commissioning of
systems
•Issue of OC/
completion
certificate
As classified under the Building Code of Australia (BCA)
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
As shown above, a development proceeds in several major stages, from planning
to construction, to certification at completion, and then ongoing maintenance.
Each step is not necessarily discrete – for instance, an applicant may begin
building and then lodge an application to amend part of the approved plans or a
condition of the approval, or an interim occupation certificate may be issued while
minor building work is still underway.
3.1 Planning and design approval stage
Nature of development approval conditions and consistency of conditions
across councils
For developments that are neither complying nor exempt developments, there is
a requirement under the EP&A Act to submit a development application to the
relevant consent authority. This approval stage is intended to review the
development to assess whether it is in accord with planning laws and
requirements. There is a subsequent approval stage for developments that obtain
development consent, which is to obtain a CC which deals with the detailed
design of the development. The CC is required to confirm that the building design
and specifications are in accord with, among other requirements, the standards
set out in the BCA.
There are a number of issues that have been raised by the industry concerning the
current process:
•
•
•
There is a tendency at the development application stage, even for
proposed new buildings, for consent authorities to require very detailed
plans, specifications and reports, and to impose a range of building
requirements as conditions of the development consent. Not only does this
create an overlap with the subsequent CC stage, it can create unnecessary
delays and increase costs, particularly if the proposed development will not
be approved or not approved in the form sought.
The above issue tends to be worse when the proposed development is to
modify or extend an existing building, since the planning system insists
that consent authorities consider matters such as the upgrading of the
building.
It is normal practice to set out construction management conditions under
both the development application/ CC approach and the CDC approach.
These typically relate to matters such as hours of construction, security
fencing around the site, on-site facilities and waste management. For
complying developments there are a set of standard construction
management conditions, while no such state-wide standard conditions
apply for development application/ CC approvals. Variations in conditions
across local government areas can impose delays, additional costs and add
to the complexity of the certification process.
34
•
•
More generally, concerns have been raised that development consent
conditions can be overly complex, restrictive, unnecessary and inconsistent
across councils and within councils.
As part of a development application, councils can and sometimes do
require building standards in excess of the national standards. While this
may be justified in certain cases, this is not necessarily the case.
Options for consideration
Chapter eight of the White Paper proposed that:
•
•
approval for a development application should return to being a concept
approval for the development and not enter into detailed design and
building standard requirements, such as required by the BCA, which are
handled at the construction certificate stage
a standard set of development application conditions be established based
on the existing CDC conditions, and that the first step be a standard set of
construction management conditions.
In addition, the Productivity Commission has proposed that where a council
wishes to impose a higher building standard than the BCA, it must undertake a
cost-benefit assessment and submit the assessment to an independent party such
as IPART for review and approval. There is currently policy work being undertaken
at a national level in relation to this issue.
Quality of building and critical element design and certification of design
There are no requirements about who can prepare building design plans, apart
from residential flat buildings under State Environmental Planning Policy No 65 –
Design Quality of Residential Flat Development. In addition, there are no
requirements as to who can design building services and critical building
elements, such as air handling systems and fire protection systems, or who can
certify such systems. This lack of requirements can result in poorly designed
buildings and critical building elements (such as hydraulic, geotechnical,
mechanical and stormwater designs and fire protection systems), and poorly
installed critical building elements producing ongoing problems and costs. Many
problems at the construction and maintenance stages have their origins in poor
design.
Option for consideration
The White Paper proposed that building plans should be prepared and certified
by appropriately qualified persons for complex buildings. In addition it was
proposed that, for critical building systems and elements, there should be a
requirement for appropriately qualified persons that are accredited to undertake
the certification of design and installation. At present, certification is often
provided by the party responsible for that building element, which is in effect selfDISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
certification. Alternatively the building certifier certifies it, but may not have the
relevant expertise.
In order to extend the certification process to both design of complex buildings
and to critical building elements, it would be necessary to accredit suitable
professionals to undertake the certification. It would be desirable to draw upon
relevant professional associations and accreditation schemes that they have
developed, subject to the Government assessing the suitability and robustness of
the accreditation schemes and in having a role in oversighting the scheme.
It is noted that there is certification for building design in place in Victoria,
Queensland and Tasmania and Western Australia, and the ACT is examining the
matter. Furthermore, architects are already the subject of an accreditation
scheme, and Building Designers Australia also has an accreditation scheme, open
both to its members and more generally to suitably qualified and experienced
building designers.
3.2 Improved information for the community
When a complaint is not directed to the correct party, it causes confusion and
lack of resolution for complainants (such as neighbours) who may feel powerless
to have their concerns resolved. Unnecessary delays caused by complaints being
referred to various parties can also lead to frustration, resentment and lack of
confidence in the certification system, whether or not the certifier is at fault.
Ultimately, the risk is of poor built outcomes due to complaints not being resolved
and construction continuing whilst the complaint is determined.
Options for consideration
Providing more information on development site signs can help improve general
awareness of ‘who does what’ in development, so that concerns about
development are directed to the most appropriate party in the first instance and
problems are resolved without unnecessary delay. The site sign may be the main
information source that a member of the public has for the development – a good
sign is certainly the most immediately accessible source. A sign template could
even be mandated as a new requirement for complying development.
Other options outlined in this paper also support the raising of general awareness.
One example is the cooperative framework between certifiers and councils, to be
delivered with a supporting education package for council front counter staff
(often the first party to receive a complaint). Another example is a centralised,
state-wide system (ePlanning) for lodgement and tracking of development
applications, complying development applications, and associated documents.
Such a system could include more publicly accessible information than is available
at present.
36
Questions: building regulation and certification – planning and approval
stage
12. Do you support, as ways of improving the planning and approval stage:
•
•
•
•
limiting development approval to a concept approval
a standard set of development application conditions
independent assessment of instances where a council seeks to impose
higher building standards than the BCA
improved information to the community on developments in their area?
3.3 Certification to allow commencement of building work
Before construction can commence, either a CC or CDC must be issued, stating
that the proposed development will comply, if erected, with the certified plans
and specifications, planning approval conditions and with the BCA. The CC or
CDC can apply to the entire building or part of a building (such as when the
building is constructed in stages).
There are a number of issues which impact the effectiveness of the certification
process to allow commencement of building work:
•
•
•
Information requirements: There is a lack of clarity about what
information is required to support the issue of a CC or CDC, and
information submitted to support certification can be inadequate. Further,
CCs/ CDCs do not always include all the information required by the
legislation.
Assessment and certification of alternative solutions: The BCA, part of
the National Construction Code, is a national construction standard
adopted under NSW planning and building legislation. It is mandatory to
comply with the performance standards in the BCA. This can be achieved
using its ‘deemed to satisfy’ prescriptive standards or via an ‘alternative
solution’, which is a non-standard design, material or construction method.
Where an alternative solution is proposed, it is mandatory to meet the
performance standards in the BCA. However, there is evidence that
alternative solutions are not, in all cases, fully evaluated, documented or
maintained and that the records of approved alternative solutions are poor.
There is also a degree of uncertainty about what is the exact performance
standard, given that they are usually expressed in qualitative terms.
The ‘not inconsistent’ test: The EP&A Regulation incorporates a ‘not
inconsistent’ test, whereby it is required to be determined whether the
project is not inconsistent with the development consent. In clause 145 of
the EP&A Regulation the test is required to be applied at the time of
assessing a CC, while in clause 154 of the EP&A Act the test is required to
be applied when assessing an OC. There has been considerable criticism
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
over the years of the not inconsistent formulation. As a double negative
requirement there is inherent uncertainty about how to assess it. In that
sense it is a vaguer requirement than the alternative formulation of
requiring consistency with the development consent. In fact, 2008
amendments to the Regulation included amendments to transform the not
inconsistent requirement to a consistent requirement, but these
amendments have yet to be enacted.
There are two other issues. The first is the advantages and disadvantages of
combining building and planning approvals. At present, to issue a CC or CDC
involves certifying that the building proposal is in conformity with planning and
building standards. Historically, these were separated in NSW between a
development approval and a building approval, but were integrated with the 1998
reforms. Other jurisdictions have separate certification of planning and building
requirements. The issue is whether there is merit in maintaining the current
approach or separating the two certifications.
The second issue is the distinction between certifying authority and principal
certifying authority. Certifying authorities, which can be the local council, the
Minister for Planning or a private certifier, are responsible for issuing the CC or
CDC. A PCA must be appointed prior to the commencement of building or
subdivision work and has the role of inspecting building and subdivision work
during construction to ensure that it complies with regulatory requirements. The
PCA will issue the OC, and the subdivision certificate where relevant. The purpose
of the distinction between the certifying authority and PCA was to provide an
opportunity to have a different certifier for the construction stage compared with
the design and approval stage. However, it also creates the potential for a
disconnect between the certification of a building’s design and the oversight of its
construction, particularly when plans and certification for critical aspects of work
are not submitted with the application for a CC/ CDC, and when projects are the
subject of multiple CCs/ CDCs issued by different certifiers. In addition, the
distinction between the certifying authority and the PCA creates considerable
confusion amongst consumers.
Options for consideration
Possible options to deal with these issues include:
•
clear specification of what information will be required to support
certification, and clear guidelines for the compliance checking and review
required of a certifier (White Paper)
•
standardised reports (to the extent possible, noting the variety in
buildings) on any proposed alternative solution to accompany an
application for a CC or CDC, with a requirement for the certifier to confirm
that the report contains all required information and whether it
demonstrates conformity with the performance standards (White Paper)
38
•
a regulatory system that is better able to accommodate the Australian
Building Codes Board’s 5 intention to expand the uptake of alternative
solutions
•
combining the role of certifying authority and PCA and permitting only one
certifying authority per development consent, to improve compliance
coordination when projects are subject to multiple CCs/ CDCs (White
Paper)
•
replacing the not inconsistent requirement with the requirement, at both
the CC/ CDC and OC stages, for the building to be assessed in terms of
whether it is consistent with the development consent (the draft Practice
Guide proposes this ‘positive test’ for consistency, and provides
comprehensive guidance for certifiers).
It should also be noted that the Australian Building Codes Board, as a priority, is
quantifying existing performance standards. This will make it easier to assess
whether alternative solutions meet the performance standards.
Questions: building regulation and certification – certification to allow
commencement of building work
13. Will a significant improvement in the process of certification, to allow
commencement of building work, be provided by:
•
•
•
standardising the information to support the CC/ CDC
standardising the report to support alternative solutions with content
confirmed by the certifier
replacing the not inconsistent test with the consistent test for both CCs/
CDCs and OCs?
14. Do you support combining the roles of certifying authority and principal
certifying authority?
15. For a CC or CDC, is there merit in separating the assessment of conformity
with planning requirements, to be handled by the consent authority, from the
assessment of building requirements?
5
The Australian Building Codes Board is the body responsible for developing and managing the National Construction Code – a uniform, national
approach to building codes and building standards.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
3.4 Building construction and occupation stages
There are a number of issues that have been raised regarding the regulation of the
building construction and occupation stages:
•
•
•
•
•
Provision of the building plan to the builder: Before building work
commences, it is important that the builder has the development consent,
including any and all ‘section 96’ modifications, the CC or CDC and
associated building documentation and plans. This does not always occur,
with builders sometimes working on a different version of the plan to that
certified.
Clarifying certifier’s role: There is general confusion about the role of the
building certifier during the construction stage, with an expectation by
many in the community that it is a general inspection/ ‘clerk of works’ role
which includes identifying and having the builder correct workmanship
defects. There is also a lack of clarity about the specific responsibilities of a
certifier, including by some certifiers. The role of a building certifier is to
ensure that the building is being constructed in accordance with planning
approvals and policies, the regulations and in accord with building
standards. In undertaking this role the certifier can seek certification for
critical elements of the building from appropriately qualified persons,
where the building certifier does not have the specific skills required.
However as noted earlier, this often results in self-certification by the
person responsible for the specific building element.
Adequacy of mandatory building inspections: There are a prescribed
number of stages of construction that must be inspected. The number of
actual inspections carried out will be dependent on the construction type
and how the construction is staged. It may be desirable to tailor the
number and extent of inspections on a risk assessment basis rather than
‘one size fits all’.
Clarifying criteria for the issue of an occupation certificate: At present
there is a lack of clarity about the purpose of an OC and the tests for its
issue. OCs are required for all types of buildings and structures, including
structures which cannot be occupied such as swimming pools. Further,
there is confusion about what an OC actually certifies. Consumers
generally assume a very broad scope whereby an OC means that the
building or structure complies with the relevant planning approvals and the
BCA, with the rationale of linking the development back to the consent
once construction is completed. Under the EP&A Act, an OC authorises
occupation of the completed building or structure, and certifies non
inconsistency with applicable conditions of consent, but does not
necessarily confirm that it is in accordance with the planning approvals and
BCA.
Issue of OCs when mandatory inspections have been missed or
approvals have not been obtained: At present an OC cannot be issued
40
•
unless the PCA can say that all mandatory and critical stage inspections
have been carried out. This requirement was introduced to act as a
deterrent to builders/ developers continuing work without ensuring the
PCA has undertaken the necessary inspections. There is a provision which
allows the PCA to issue an OC where an inspection was ‘unavoidably
missed’, but this term is not clearly defined. Where mandatory inspections
are missed and the PCA is not in a position to classify it as being
‘unavoidably missed’, builders/ developers seek to obtain a building
certificate from the council. Building certificates are not designed for this
purpose and have a different set of criteria to an OC. Furthermore, the
council may not have had any involvement in the project as a certifying
authority. Similarly, it is not uncommon for building work to occur in a
manner contrary to the approval or without all approvals obtained in
advance. This is referred to as unauthorised work. In such circumstances it
is not possible to issue an OC for the unauthorised parts and, in that case,
builders/ developers often seek a building certificate.
Effective sanctions for unauthorised work: There are at present no
effective sanctions that apply to a builder or developer who proceeds with
unauthorised work. Councils may sometimes issue demolition or
rectification orders, but cost-recovery is an issue. While current legislation
allows for legal action to be undertaken, courts have clearly indicated that
they are not prepared to impose major sanctions in the case of
unauthorised work.
Options for consideration
Possible options to address these issues include the following (many of which will
be considered in the draft Practice Guide):
•
•
•
Provision of the building plan to the builder: The PCA having
responsibility for ensuring that the builder is provided with the CC or CDC
at the time of certification or at the time the builder is appointed, if that is
after certification.
Documentation of the requirements for a certifier: The BPB is
developing, in conjunction with industry and local government, a Practice
Guide that clearly documents the requirements of a certifier at each stage
of a development, from planning and design, to CC/ CDC, to the issue of an
OC. It is also proposed that the Practice Guide be given legal recognition,
such that if a certifier does not follow the practices in the Guide, it is prima
facie evidence that the certifier has not acted correctly and conversely, if it
has been followed, it is prima facie evidence that the certifier has acted
correctly.
Critical site inspections: The White Paper (and draft Practice Guide)
proposed that additional critical site inspections would be determined
based on a risk assessment approach, targeting, for example, areas subject
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
•
to frequent construction defects. It also contemplated tailoring mandatory
inspections for each building based on risk and the building’s complexity.
Clarity of criteria for the issue of occupation certificates: The BPB’s
Local Government Reference Group is proposing a revised approach to
certification of completed development, involving the following elements:
o
o
o
o
o
•
Missed mandatory inspections and unauthorised work: One approach is
to limit the ability to issue building certificates, remove the ‘unavoidably
missed’ inspection process, which can be manipulated, and require for all
buildings the issue of an OC, with no exceptions.
o
o
•
Interim and final OCs are to be replaced with an OC, which will certify
only health, safety and suitability for use, and a development
completion certificate, which will certify that all building and planning
conditions are met. The OC may be issued for part of a development to
make staged occupation possible.
Following the OC, the PCA and the applicant are to negotiate a
timeframe for development completion, with enforcement by the
council if not obtained, and within a maximum timeframe of 12 months.
An OC may be issued if an inspection is missed or if approvals have not
been obtained.
An OC to be required for home and contents insurance, and vendors
must disclose whether an OC has been issued when selling residential
property.
The 10 year period for building action under the EP&A Act to start from
the date of issue of the OC.
Where an inspection is missed, there would be a need to place
significant requirements on the PCA. One approach is to require the
PCA to immediately inform both the council and the BPB, and submit a
missed inspection report based on a subsequent inspection of that
aspect of the construction that was not inspected.
With respect to unauthorised work, one approach would be to follow a
similar approach as set out above for missed mandatory inspections.
This would require that an OC must be obtained and that it can only be
issued if a modified CC or CDC is obtained. In turn the issue of a
modified CC or CDC would require the certifier to be satisfied that the
unauthorised work is satisfactory, both from a building regulation
perspective and consistent with planning requirements. It could also be
a requirement that the modified CC/ CDC is provided to the relevant
council and the BPB.
Sanctions for unauthorised work: Merit is seen in introducing suitable
sanctions in the form of fines of a size that effectively discourage
unauthorised work.
42
Questions: building regulation and certification – building construction
stage
16. Would the current problems with the building construction stage regulatory
approach be addressed by:
•
•
•
•
•
•
ensuring the builder receives the certified plans and CC/ CDC
documenting and requiring adherence to good certifier practice
potential additional critical site inspections based on risk assessment
replacing interim and final OCs with an OC and development completion
certificate
requiring projects with missed mandatory inspections, and unauthorised
work, to obtain an OC
effective financial sanctions for unauthorised work?
3.5 Building safety maintenance
3.5.1 Inadequate building information
There are responsibilities in regard to certain Class 1b-9 buildings to keep fire
safety measures in place and in a functional condition, and for affected building
owners to routinely submit certification to the council and a copy to Fire and
Rescue NSW, confirming that they are meeting this responsibility – usually via an
annual fire safety statement.
There are also responsibilities imposed on consent and certifying authorities,
when assessing proposed building and use changes, to assess the impacts on the
existing building and generally be satisfied that the building can suitably
accommodate the change. To properly fulfil these responsibilities there is a need
for access to an adequate level of information about the existing building.
However, in many cases there is insufficient information available about existing
buildings (including the alternative solutions that apply to them; indeed, many
older buildings may have no documentation whatsoever) and their safety
measures to allow the responsible persons to undertake their full responsibilities.
The current fire safety schedule is considered generally insufficient in terms of the
information it contains, and because it is issued at project commencement it may
not reflect ‘as built’ when the project is completed. Also, it is sometimes difficult
to find the current fire safety schedule when a building is issued with multiple
CCs/ CDCs.
Options for consideration
The White Paper proposed that a Building Manual be created for all new Class 1b9 buildings, which would hold all relevant information relating to the ongoing
safety and compliance of the building. The manual would be created at the end of
the project and issued with the OC. The White Paper also proposed that a
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
compliance schedule be issued in lieu of a fire safety schedule. The purpose of the
compliance schedule would be to facilitate collection of information during the
design approval and construction phases, for inclusion in the manual when
eventually issued. Among other things, the manual would include a list of the
building’s essential safety measures, details of applicable alternative solutions, a
copy of the annual building safety certification, and possibly schematic and other
plans of critical building systems. The certifying authority would be responsible
for ensuring the manual is properly compiled but would not necessarily have to
compile it personally. The manual would be updated over time as the building and
its use changes. Preferably it should be a requirement that the manual is kept in
an electronic form.
Questions: building regulation and certification – building construction
stage
17. Do you support the option of requiring the creation and maintenance of a
Building Manual for all new Class 1b-9 buildings?
3.6 Fire performance and safety
Rather than treat fire safety systems under each of the stages set out above, it
has been addressed as a single system in this section owing to its critical nature.
In order to ensure effective fire protection is in place, there needs to be the
highest professional approach at the design, installation, commissioning and
maintenance stages for fire safety systems.
The current approach involves the issuing of a CC or CDC based on the building
plans which can include statements of intent. There is no explicit requirement that
the certifier obtains plans or certification of critical elements such as the fire
safety system. Once construction starts the PCA has to assess the building against
the approved plans, and in doing this can draw on certification from suitable
persons. Typically the PCA obtains a certificate from the party installing the fire
safety system. However, there is no accreditation process for parties designing,
installing, commissioning or maintaining fire safety systems.
For certain classes of buildings (Class 1b to 9), a fire safety schedule is issued with
a CC or CDC or certain development consents for changes of building use and
with fire safety orders. The schedule is required to list all essential and critical fire
safety measures and required performance standards. It has been indicated that
the schedule can be difficult to locate and can be missing relevant detail.
Fire and Rescue NSW has a role defined under the EP&A Regulation which is
focused on a review role for alternative solutions for certain fire safety provisions.
Under clause 144 of the EP&A Regulation, for alternative solutions for fire safety
systems for certain classes of buildings with certain characteristics, the certifying
44
authority must, within seven days of receiving an application for a CC, submit the
application and associated documentation (relevant to the proposed alternative
solution) to Fire and Rescue. In turn, Fire and Rescue must provide an initial fire
safety report to the certifier. The certifier cannot issue a CC before the initial fire
safety report is received, or at least 23 days after the documentation was sent to
Fire and Rescue. Fire and Rescue is then required to produce a final fire safety
report. It is not mandatory for the certifier to have regard to this report, or indeed
to await the report before certifying, provided the certification occurs 23 days or
more after the submission of the plans.
A number of very significant issues are raised by the current mandated approach
to fire safety systems:
•
There is no form of accreditation of suitably qualified and experienced
persons to design, implement and maintain fire safety systems. The current
approach requires assessments to be made by a ‘competent person’, but
what is meant by ‘competent’ is not defined. What happens in practice is
that those responsible for the design, installation, commissioning and
maintenance of the fire safety system certify their work, so that what is in
place is a form of self-certification, with no third party verification.
• Building certifiers have no ability to rely on suitably accredited persons to
certify the fire safety system for building projects, and hence are liable for
the actions of others without any legal or financial protection.
• Fire and Rescue is required by legislation to undertake a role that is poorly
targeted in the sense that it prescribes a subset of categories of alternative
solutions, and does not necessarily identify all alternative solutions which
should be notified to Fire and Rescue. In addition, Fire and Rescue does
not have the resources to develop a fire safety report for all notified
alternative solutions.
• The fire safety schedules which are required to be produced are often hard
to locate on-site and often lack necessary detail. This is a consequence of
single projects being issued with multiple CCs/ CDCs, as each certificate
must have a schedule attached. It also results when existing buildings are
subject to multiple building changes certified by different certifiers.
• The fire industry associations believe there is evidence of a growing trend
for fire protection in new and existing buildings being certified even
though they are not compliant with relevant standards. This concern has
been reinforced by evidence provided by Fire and Rescue to this review of
installed fire safety systems which are clearly non-compliant.
It should be noted that there is an existing licensing scheme administered by Fair
Trading for the trades and installation work on fire protection systems that
involving water plumbing. However, there is no general licensing or accreditation
system in place.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Options for consideration
The White Paper, and Fire and Rescue, have both proposed reforms to make the
approach to fire safety assessment more effective. In the case of the White Paper,
these were directed at addressing broader problems than fire safety systems, with
consideration given to prioritising safety issues, given the limited resources
available to implement regulatory reforms. In the case of Fire and Rescue, the
proposals were directed at achieving a more appropriate and effective role for
itself.
The key proposals are to:
•
•
•
•
•
•
•
accredit suitably qualified and experienced persons for specialist design
components of buildings, including fire safety systems, as well as
accreditation for installation, commissioning and maintenance
replace fire safety schedules with a compliance schedule, issued with the
CC or CDC and incorporated into the Building Manual
incorporate the International Fire Engineering Guidelines or an alternative
equivalent requirement as a mandatory referenced document for the
purposes of pursuing an alternative solution, and for the certifier to declare
that for the alternative solution this document has been followed, or to
detail in what aspects it has been deviated from and for what reason
expand the scope of alternative solutions that are required to be notified
to Fire and Rescue, to include any that affect a performance standard
related to fire and, in particular, where fire brigade intervention is explicitly
mentioned
amend the EP&A Regulation to remove the requirement for Fire and
Rescue to produce an initial (clause 144) and final (clause 152) fire safety
report, and leave it as an option at the discretion of the Fire Commissioner,
with a relatively short (say 10 business day) notification period for calling in
a design for review and a 30 day review period. This preserves the ability
of Fire and Rescue to review plans but for this to be done on a risk
assessment basis, with the prime reliance placed on the accreditation
requirements for fire safety certification
require the certifier to notify Fire and Rescue, on completion of the fire
safety compliance schedule for all Class 1b-9 buildings, of their intention to
issue an OC. Fire and Rescue would then have five business days to both
notify of and conduct an inspection of the building before the issuing of
the OC
provide Fire and Rescue with the power to issue penalty infringement
notices.
The Fire Protection Association Australia is developing an accreditation scheme,
the Fire Protection Accreditation Scheme which will cover each critical stage of
building:
46
•
•
•
•
design
install and commission
inspect and test
annual certification.
Rather than the BPB developing its own accreditation system, it would appear
more effective for the BPB to review the existing accreditation system and, if
satisfactory, approve it for the accreditation of fire protection certifiers. It is noted
that the National Fire Industry Association has not had an involvement in the
development of the accreditation system. It would be highly desirable for both
associations to reach agreement on a suitable accreditation scheme.
Questions: building regulation and certification – fire performance and
safety
18. Do you support the reform of the fire protection system certification, including
the proposed revised role for NSW Fire and Rescue?
4
Supply, accreditation, accountability and oversight
of certifiers
4.1 Supply of certifiers
Across NSW there are approximately 1,550 certifiers, comprising 700 private
certifiers and the balance being council certifiers. The issues that need to be
considered are:
•
whether, in view of the scale of the certification task, there is an adequate
number and type of certifiers, in total and by region
•
whether the demographic profile is such that there will be a significant
decline in certifiers in the future
•
the trend in the number of certifiers, and whether it is seen as an attractive
profession and is attracting the right sort of expertise and experience.
The evidence is that, at this point in time, there is an adequate supply of certifiers
in the major metropolitan areas and some regional centres, but in smaller regional
centres and country areas, the supply is more restricted (having regard to the
level of building activity).
A second observation is that there is a demographic bulge with respect to
certifiers, both private and council, in the 50 to 60 age group, and that as these
persons move to retirement, there are insufficient certifiers entering the
profession to maintain an adequate supply. When council certifiers were brought
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
into the accreditation scheme, existing certifiers were ‘grandfathered’ in, having
regard to required qualifications for accreditation, but this does not apply to new
council certifiers. Whilst in the main, councils have not been recruiting and
training in sufficient numbers new certifiers to replace those that will retire,
private certification practices have taken the role of recruiting and training entry
level certifiers.
The more challenging issue to address is on the demand side, given that the
building certifier position may not be considered attractive to potential new
entrants. Specific issues that can impact negatively on potential new entrants
include the:
•
•
•
•
•
cost of obtaining professional indemnity insurance
legal exposure of a certifier, given the range of matters they are
responsible for assessing without reliance on the persons providing the
certification
general lack of understanding in the community about the role and
responsibilities of certifiers
lack of support available for certifiers who mainly operate as sole traders
inadequate career pathway.
Options for consideration
Change in this area needs to approach the issue from both the supply and
demand sides. On the supply side the key qualification requirement at present for
building certifiers is a building surveyor tertiary qualification.
On the supply side, consideration could be given to broadening the range of
qualifications that could be considered for accreditation as a building certifier.
This is covered further in the following section.
The attraction of a career in certification could be improved by a number of the
options identified in this paper, such as:
•
•
•
extending the scope of certification to include building design and critical
building elements, with a corresponding expansion in accreditation. This
would mean that building certifiers could rely on accredited third party
persons to certify these aspects. This would impact favourably both on the
legal liability of building certifiers and the cost of insurance
seeking to educate the general public as well as industry in the role of a
certifier and how it differs from a builder’s role
expanding the support mechanisms available to certifiers, including
advisory panels, providing and maintaining a Practice Guide, the regular
provision on advice on aspects of the role based on in-the-field reviews,
and having a continuing professional development program more
individually targeted to address the specific needs of certifiers (these
matters are further discussed below in this section).
48
Questions: supply, accreditation, accountability and oversight of
certifiers – supply of certifiers
19. Would the options for change set out in this paper be helpful in improving the
supply of qualified certifiers and making it a more attractive profession?
20. Is there an adequate pathway that allows a certifier to progress from the A4
category (building inspector) right through to A1 (building surveyor – grade 1), if
desired?
4.2 Accreditation process
The accreditation process is undertaken annually with all accredited persons
required to apply for a further extension of accreditation. The process requires
those that are accredited to renew their insurance, meet a fit and proper person
test including a review of any complaints or relevant investigations. The annual
fee is $750 for category C certifiers (various specialist engineers) and $1,500 for
categories A, B, D and E (building certifiers, strata and subdivision certifiers, and
swimming pool barrier certifiers).
Whilst annual accreditation ensures certifiers are appropriately meeting the
aforementioned accreditation criteria, it is onerous to administer both from a
regulatory and corporate perspective. The issue is whether it is appropriate to
extend the period of accreditation for certifiers with a history of sound
professional practice and current program of continuing professional
development and insurance, or for groups of certifiers for administrative
efficiencies.
The core professional requirement for Category A accredited certifiers who issue
CCs, CDCs and OCs, under the accreditation system, is having the qualification
and experience of a building surveyor.
There are a number of issues with the current accreditation process, including:
•
whether there are professional qualifications, beyond building surveying,
that could be considered for building certifiers. Potentially, there are other
professional qualifications that could be considered, such as civil engineers,
architects and construction managers, though there will be gaps between
the professional qualifications and the knowledge required of various
categories of certifier. These gaps could be identified, and courses
established to address these gaps, such that a combination of the
professional qualification and the identified courses would meet the
knowledge requirements for categories of certifier. The benefit of such an
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
approach is that it would provide a broader range and larger number of
potential certifiers
• providing a means for assessing both the gaps in experience and
knowledge of certifiers wishing to progress to higher categories, and
objectively assessing the knowledge of certifiers in particular categories
• use of a manually-based accreditation system which is labour intensive,
inefficient and does not conveniently link to the information on complaints
and disciplinary action.
In addition, IPART developed an evidence-based framework and guide in its 2013
review 6 of licences in NSW, and recommended their use by licensing agencies
such as in the review of the BPB accreditation scheme. This recommendation is
being considered as part of the BP Act review.
Options for consideration
Options that could address the current weaknesses in the accreditation system
include:
•
•
•
•
6
identifying what professional qualifications have a reasonable mapping
with the knowledge required of certifiers, what the gaps in knowledge are
and what training programs could bridge the gaps
expanding the accreditation scheme to recognise nationally recognised
training organisations and universities. Where a registered training
organisation is accredited with the Australian Skills Quality Authority to
deliver nationally recognised qualifications in the vocational education and
training sector, there should be no need for those organisations to go
through another accreditation process with the BPB
working with relevant tertiary institutions to develop a tool that can assess
the knowledge of certifiers in each category against what is required for
that category, as well as identifying the gaps that need to be addressed to
move to a higher category
replacing the current manual accreditation system with a fully online
system which consolidates, in one database, information on certifiers
including qualifications, accreditation history, history of continuing
professional development, complaints lodged and outcomes.
Reforming licensing in NSW – Review of licence rationale and design – October 2013 (draft report)
50
Questions: supply, accreditation, accountability and oversight of
certifiers – accreditation process
21. Would the proposed changes to the accreditation process address the main
deficiencies in the current system?
22. Do you support the use of an evidence-based framework and guide for the
review of the accreditation scheme?
4.3 Accountability
Building certifiers undertake a regulatory function and under the Independent
Commission Against Corruption Act 1988 are classified as ‘public officials’. The
EP&A Act requires the beneficiary of development consent, normally the property
owner, to appoint a certifier. However, certifiers, both council and private,
compete for appointments with the decision on appointment normally made by
the builder (for single unit housing developments) and by the owner/ developer
(for larger developments). Often, owners are not advised by the builder of the
options available to them in appointing a certifier as there is a working
relationship that develops between builders and certifiers. There is an inherent
conflict in the regulatory role undertaken by the certifier, and the commercial
driver of securing appointment from the builder (on behalf of the beneficiary of
the development), whose interests may not coincide with regulatory
requirements.
This conflict, while still present with council certifiers, is less pronounced than for
private certifiers. Council certifiers are employees of the council which is normally
the consent authority for developments. Thus, while the certifier may have a
professional and commercial interest in securing appointments, there is a clear
accountability to the council as the consent authority. For a private certifier there
is no such mitigation of the private, commercial interest.
The BP Act was amended to require a written contract between the development
beneficiary and the certifier. In the single unit housing sector this is rarely done
and in any case, regardless of which part of the building sector, it does not
address the underlying conflict.
The key issue is then whether it is possible to ensure that certifiers act on the
basis that their prime duty and obligation is to undertake a regulatory
responsibility in the public interest, and that commercial interests are a secondary
consideration.
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Options for consideration
The conflict between regulatory duty and commercial interest is inherent in the
role of a private certifier. The issue is whether the conflict can be sufficiently
mitigated. Some of the options identified elsewhere in this paper would assist in
improving the accountability of certifiers to act in the public interest.
These options include:
•
•
•
establishing and maintaining a Practice Guide to create a benchmark for
the process that should be followed by a certifier
creating a program of proactive investigations and audits as a more
effective means to monitor the approach taken by certifiers, and to
increase the risk to certifiers of doing the wrong thing
providing greater clarity to the community about the role and
responsibility of certifiers, to reduce or eliminate misconceptions about the
role of the certifier.
Other approaches have also been proposed.
A very significant change would be to revert to council certifiers only. This
approach has been followed in New Zealand in recent years, on the basis that the
role is regulatory in nature and should not be compromised by private interests.
This does not appear to be a realistic option for NSW, where the current system is
heavily reliant on private certifiers, particularly in major metropolitan areas, and
some councils may no longer have the resources to take up the full function.
A second option would be to remove the power from owners, developers and
builders to appoint certifiers, and have certifiers assigned on the basis of eligibility
lists constructed by the BPB. The eligibility lists would need to have regard to the
skills and experience relevant to different types of buildings. The difficulty with
this approach is that it completely eliminates the market mechanism and replaces
it with a queuing system. Under such an approach, there is no basis on which
highly motivated and capable certifiers can develop and grow a business.
A third option would be for councils, as consent authorities, to create a panel of
recommended certifiers based on the track record of the certifiers in undertaking
a professional approach to their role and working effectively with the council. Any
approach of this nature would need to address the potential for bias, in that
councils would continue to provide certification services and hence compete with
private certifiers on the panel.
The most effective approach would appear to be to create greater transparency
with respect to the role and conduct of certifiers along the lines set out above
with the Practice Guide, proactive investigations and audits, and creating greater
awareness of the role and responsibilities of certifiers.
52
Questions: supply, accreditation, accountability and oversight of
certifiers – accountability of certifiers
23. Are the following sufficient to create a suitable level of accountability for
certifiers in respect to their regulatory role:
•
•
•
improved transparency of the performance of a certifier with a Practice
Guide
proactive investigations and audits
increasing the awareness of the role of certifiers?
24. Does the establishment of certifier panels by councils have merit?
4.4 Investigations, inquiries, complaints, audits and
disciplinary action
Investigations and audits, handling inquiries, addressing complaints and
undertaking disciplinary action are all linked. Inquiries can be just to seek
information, or can be a form of informal complaint investigation which, once the
basis of a complaint has been established, leads to a formal investigation. Audits
can be targeted based on the information identified from complaints.
There are two dimensions to investigations and audits:
•
•
a monitoring, control and disciplinary aspect whereby the investigation of
complaints, and some targeted investigations based on intelligence
gathered, is undertaken and, where the investigation identifies
wrongdoing, suitable penalties are applied
a continuous improvement approach whereby audits are undertaken on
practice and performance in the field against a benchmark such as the
Practice Guide. This could be targeted at specific aspects of the role where
there is a concern that practice may be less than ideal, or it could involve a
more general assessment of certifier practice. The intended outcome from
such audits would be to identify ways in which certification practice could
be improved which would flow through to the Practice Guide, the program
of continuing professional development, and training programs.
The BPB does have an investigation and audit function and has, in the past,
undertaken a successful state-wide program of advisory reviews of certification
practices of private certifiers, and of councils in their role as a certifying authority.
The program comprised desktop reviews with debriefing sessions, and follow–up
correspondence and education aimed at improving practice and compliance with
legislative requirements. Advisory reviews did not result in penalty, but did
provide for further investigation where significant breaches were identified and
the certifier did not take action to improve practice.
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
However, the level of resources applied to this function, combined with the level
of complaints that need to be investigated, means that most if not all of the work
undertaken is in the nature of reactive investigations of complaints. There are no
audits being undertaken at present.
The BPB has available to it a number of disciplinary powers which distinguish
between unsatisfactory professional conduct and professional misconduct. In
regard to the former, the BPB can issue a caution or reprimand; impose conditions
on accreditation; order undertaking of training; order reporting on practice; or
impose a fine of up to $110,000. In regard to professional misconduct the BPB can
impose a fine of up to $110,000; suspend or withdraw accreditation for a period;
or cancel accreditation.
There are four issues with the current approach:
•
A largely reactive complaints and investigation process which can involve
long delays in addressing complaints:
o
o
•
A largely manual, outdated system for processing and managing
complaints:
o
•
The current system is manual with the information inputted to a
database and there is not an effective system for managing the
outstanding complaints online. Furthermore the register of accredited
certifiers is a separate database to the register of complaints and
disciplinary actions whereas they should be in the one data system.
A lack of in-the-field investigations and audits with a feedback loop of
communication and training of certifiers:
o
•
There are limited resources, so investigations are focused on following
up complaints rather than undertaking proactive audits and
investigations.
Improvements have been made with more effective upfront triaging of
complaints, early follow up with those that are more urgent, and
improved electronic business and reporting systems. Nevertheless an
independent review found that, on average, complaints were taking
about six months to process and it is necessary to see how the process
can be further streamlined to reduce delay.
Audits can be used to focus on what are identified as problem areas,
such as the assessment of Complying Developments, with assessments
undertaken in the field. This can be used to issue case studies and
advisory notes to certifiers and produce follow up training to improve
practices. Unfortunately the lack of resources means that such activities
are not undertaken at present.
A limited range of penalties that can be applied.
54
Options for consideration
Consideration is being given to five changes in this area:
1. establishing a less prescriptive approach in the legislation to the handling of
complaints
2. establishing an online complaints lodgement and management system.
o
This should also include creating an integrated database of all the
information on accredited certifiers, including complaints and
disciplinary actions, and this information should be accessible to
potential clients
3. more timely and effective handling of complaints, through both the application
of more resources a more effective management of complaints, and clear
advice to the community about the process and potential outcomes.
4. establishing an active audit program which is informed from complaints and
investigations and targets problem areas, with the results of the audits linked
to communication and education of certifiers.
o
o
o
It is important that certifiers are accountable for their actions and that
there is a reasonable risk of inappropriate behaviour, practice and
repeated poor conduct, being identified and punished.
At present, this risk is limited to the risk of a complaint being lodged
and upheld. The number of complaints lodged with the BPB each year is
relatively small and even smaller are the number that are investigated
and upheld. Hence the complaints mechanism does not provide a
significant risk to certifiers who act unprofessionally, engage in
professional misconduct or display repeated poor conduct.
Complaints investigation could be supplemented by an active program
of field investigations undertaken either at random or based on
intelligence gathered.
5. broadening the range of penalties that can be imposed. The current penalty
regime follows from the investigation program which is predominantly
complaints-based and involves fines and suspension or removal of licences.
An intermediate form of penalty may be useful to the BPB where there has
been poor administration or a less serious example of misconduct.
o
o
Two possible options are a making greater use of an existing system of
penalty infringement notices, and introducing a demerits point system.
The benefit of both these approaches is that they can be imposed
quickly, without the long delays of an investigation, and provide
immediate feedback to the relevant certifier.
A demerit system is in place in Queensland and has the benefit that it
takes account of an individual action that of itself may not justify a fine
or suspension of accreditation, but may justify more serious action if it
becomes part of a pattern.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Questions: supply, accreditation, accountability and oversight of
certifiers – investigations, audits and disciplinary action
25. Do you support an expanded program of proactive investigations and audits
by the BPB and if so, how should they be conducted?
26. Would introducing a demerits point system and issuing more penalty
infringement notices provide a more timely mechanism for disciplining certifiers
who have not performed to a required professional standard?
27. Would you prefer an online system for the lodgement of complaints?
4.5 Support for certifiers
The BPB is overseeing the development of a continuing professional development
program on complying development for certifiers, has provided occasional advice
on suitable practice to certifiers, and is working with key stakeholders on
developing a Practice Guide that will set out the approach to be followed in
undertaking the certification role. In addition to a general overview of the building
certification system, the draft Practice Guide provides practice notes on each
major area of a certifier’s responsibility.
However, the level of resources applied in this area is very limited and as a
consequence there are deficiencies that should be addressed including:
•
•
•
no linkage of issues, as raised in complaints and inquiries, to develop
training and education programs directed at improving certifier
performance in the field
no courses provided or sponsored by the BPB that target important topics
such as complying development (but such courses are currently under
development)
a fragmented approach to advisory services for the industry, with the BPB,
and the DPE’s Building Policy Unit and Codes Unit, each maintaining an
advisory service. This means there is no oversight of requests for advice
being received.
Options for consideration
Merit is seen in addressing the above limitations by the following initiatives:
•
establishing an education and training program, which identifies (from
inquiries, complaints, audits and investigations as well as surveys of
certifiers) topics that would be useful targets for case studies, practice
notes and training courses
56
•
establishing a building services advisory hotline service, which consolidates
in one area the advice currently being provided by the BPB, Building Policy
Unit and the Codes Unit.
Questions: supply, accreditation, accountability and oversight of
certifiers – support for certifiers
28. Would the establishment of an education and training program to inquiries,
complaints and audits together with a building services advisory hot line address
the needs of certifiers for training and information support?
4.6 Competitive neutrality between council and private
certifiers
Given that council and private certifiers do directly compete for business, it is
important that there is a reasonable level of competitive neutrality to avoid giving
one group a systematic benefit over the other. It is important that certifiers in a
council operate as a separate commercial unit from the council’s regulatory area
which is understood to be the case.
However, there are aspects of the arrangements which mean that full competitive
neutrality cannot be achieved, in particular:
•
•
•
•
•
•
•
council certifiers are council employees and hence have an obligation and
responsibility to the council as the consent authority
council certifiers are better placed to obtain council enforcement action
council certifiers are not required to hold professional indemnity insurance
private certifiers can negotiate fees on a case by case basis while council
certifiers are subject to a schedule of fees which is approved by council
annually
builders and developers, in general, prefer to deal with private certifiers
rather than council certifiers given the association of council certifiers with
the consent authority and enforcement, as well as the potential availability
of certifiers outside office hours
private certifiers have freedom to operate throughout the state
private certifiers have discretion to accept or not accept appointment as
PCA.
These deviations from competitive neutrality appear to be inherent in the nature
of the two classes of certifier.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Questions: supply, accreditation, accountability and oversight of
certifiers – competitive neutrality between council and private certifiers
29. Is it possible to achieve full competitive neutrality without either councils
ceasing to offer certification services, or private certifiers being abolished?
4.7 Insurance
There are a number of issues relating to professional indemnity insurance of
private certifiers. These include:
•
•
•
•
the cost and availability of insurance, which can act as a disincentive for
participation in the industry
the level of exposure of certifiers to matters outside their control, which in
turn impacts on the cost and availability of insurance
gaps in coverage by the insurance
a lack of alignment between the period of liability of certifiers and builders
which, it has been argued, creates a ‘last person standing’ risk exposure for
certifiers.
Certifiers are required to undertake mandatory inspections and to certify that
critical building elements are in conformity with building standards. It is not
possible for certifiers to have a suitable level of expertise across all aspects of
buildings, and hence they often rely on certification by the party that installs or
designs the system. In effect, this amounts to self-certification with no
independent third party review. As those providing the self-certification are not
accredited, the ultimate liability rests with the certifier if there is an error in the
certification.
A condition for being accredited as a private certifier is to hold professional
indemnity insurance to a suitable level. Certifiers have a liability period of ten
years under the EP&A Act. Insurance is provided on a claims reported basis, not
when a liability event arose. This means, where there is a delay between the
liability event and when the claim is made, there is a need for continuity of the
insurance policy if there is to be recourse to insurance. However, when certifiers
leave the industry they typically do not maintain cover and hence recourse can
only be to the individual. Another gap is where there is a change of certifier
during the course of a project. As the insurance is on a claims reported basis, it is
possible for a liability event to have occurred whilst the first certifier was
engaged, but which has not yet been reported. Therefore, when the event is
reported, neither the insurance of the first or second certifier will cover it.
For certifiers working in companies, they have insurance provided by the
company which is not attached to individuals. If and when a company closes, the
individuals are left without insurance cover.
58
Finally, there is a difference in the liability period for a builder and a certifier. For a
builder, the liability period under the Home Building Act 1993 is six years for
structural matters and two years otherwise. In contrast, for a certifier the liability
period is ten years. It has been argued that this creates an additional exposure for
certifiers – if a building problem is identified outside the builder’s six-year period,
there is a risk that action will be launched against the certifier on the basis that
the latter’s liability period is still in place.
However, the two insurance schemes differ in form and what they cover. The
certifier has professional indemnity insurance which is a protection against the
risk and cost of the certifier being sued for negligence in common law. In contrast,
the Home Building Compensation Fund is a statutorily limited scheme of
consumer protection provided by the State, and does not provide professional
indemnity cover. A builder can still be sued under common law for claims of
negligence.
Options for consideration
The option discussed previously, to broaden the certification and accreditation
system to cover design and critical building elements, can address the problem of
the risk exposure of certifiers and their insurance cost.
Consideration is being given by the BPB, with assistance from industry
associations, to establishing an industry insurance scheme. This aims to address
the problem of insurance coverage when a certifier exits the industry or when
there is a change in certifier on a project.
The final issue identified above was the lack of alignment of the liability period
between builders and certifiers. It is not clear that this creates a problem given the
different roles and responsibilities of certifiers and builders. A certifier is only
responsible for certifying whether the project meets both planning requirements
and building standards. A builder is responsible to the owner for producing the
building within the specifications and to a suitable standard. These are separate
and distinct requirements, and it is not apparent why the difference in liability
periods between builders and certifiers would create an additional liability
exposure for certifiers.
Questions: supply, accreditation, accountability and oversight of
certifiers – insurance
30. Would certifiers’ insurance issues be addressed by expanding certification and
accreditation to cover critical building elements and design, and by implementing
an industry scheme to cover the gap in insurance cover from certifiers leaving the
industry or where the certifier changes for a particular project? If not, what
additional problems remain?
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
31. Do you agree that there is not a ‘last person standing’ problem arising from the
different liability cover between builders and certifiers? If it does arise, please
explain the problem created.
4.8 Swimming pool certification
The most recent accreditation category the BPB has commenced accrediting
certifiers in is Category E1 Accredited certifier – swimming pool certification.
For all categories of accreditation, it is important to have full clarity with respect
to what is being certified and the basis of the certification. In the case of category
E1, the requirements for the issue of a certificate of compliance in respect of a
swimming pool are:
•
•
the swimming pool must be registered under Part 3A of the Swimming
Pools Act 1992
the swimming pool must comply with the requirements of Part 2 of the
Swimming Pools Act 1992.
Under the current requirements, a certifier must certify whether or not the
swimming pool conforms to the requirements in place at the time of construction.
This requires the certifier to identify when the child-resistant barrier was
constructed and to assess it against the requirements in place at that time. In
addition, the certifier must assess whether an existing barrier has been
substantially altered or rebuilt and, if so, assess whether it complied with the
standard at the time it was substantially altered or rebuilt. Clearly, this adds
complexity and requires judgment by the certifier. It also means that there will be
different standards of fences in place concurrently, and no timeframe within which
fences are to be upgraded to the current requirement.
Another issue is whether certifiers should be able to carry out minor repairs/
modifications to remove the need for multiple re-inspections of a pool fence, and
how to manage the potential conflicts of interest that may arise.
Options for consideration
•
•
•
apply the current proposal, with different standards of pool barriers
require non-conforming barriers to be immediately upgraded to the
current standard, and barriers that conform to a non-current standard to
be upgraded to the current standard within a defined period
assess all pool barriers against the current standard and require those not
conforming to be upgraded within a defined period.
60
Questions: supply, accreditation, accountability and oversight of
certifiers – swimming pool certification
32. Do you favour a simplification of the requirement for swimming pool fencing
certification requirements, moving from three standards to one?
5
Resourcing and funding arrangements for the
building regulation and certification system
The NSW building regulation system is both more fragmented than in other
jurisdictions, and appears to be less resourced.
The BPB is, in the main, funded by a grant provided by the DPE with accreditation
fees forming the other major revenue source. There is no revenue source from the
building industry in general. Compared with other jurisdictions, there is a higher
reliance on government funding and limited recourse to industry funding. Both
the Victorian and Queensland systems are fully funded by industry. Further, in
NSW the Government funding is not directly appropriated from the budget but is
provided in the form of an annual grant by the DPE. This leads to significant
uncertainty about the level of funding available from year to year. It also means
that when building activity is high, and demands on the regulatory system are also
correspondingly high, there is no flow-through of additional funding for increased
building regulation activity.
Councils undertake an important compliance role in the building regulation sector,
but are not fully funded for this role in terms of charges that they can impose. This
is particularly the case when there are enforcement matters that arise with private
certification. There are also caps in the EP&A Regulation with respect to charges
and fees that councils can impose, which restrict the ability of councils to recover
costs.
Options for consideration
An approach that would be equitable and efficient would be to establish a
charging regime that sets charges on the basis of the efficient cost of regulation,
and to apply such charges to development applications and CDCs, with the
charges set separately for councils and the State. This would have the benefit of
the revenue source matching the level of building activity and also being a form of
user-pays, funded by the beneficiary of the development rather than by the rateor tax- payer.
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
Questions: resourcing of the building and certification system
33. Would setting charges for both councils and the State to recover processing
costs for development applications and CDCs be the most equitable and efficient
approach?
Survey – questions raised in this discussion
paper
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Is there merit in consolidating the legislative framework for building sector
regulation and control in one part of the EP&A Act, expressed in plain English,
on a principles-based approach, with its own objectives, and incorporating
any reforms approved by the Government?
Are there sufficient additional benefits involved to justify consolidating all
building legislation in one Act, including the Home Building Act 1993?
Are there sufficient benefits to justify the consolidation of building regulation
administration?
Should the BP Act provide the BPB with the power to employ its own staff in
addition to seconding staff?
Is there merit in the functions undertaken by BPB continuing to be undertaken
by a statutory board?
Would the framework of cooperation developed by the BPB Local
Government Reference Group provide an effective approach for interaction
between private certifiers and local government?
Should certifiers be required to report all cases of building and planning noncompliance to councils?
Is there merit in a partnership model between the State and local government
in the area of certification and building regulation enforcement?
Would enhanced oversight of the certification process assist in addressing the
problems experienced by owners of strata and community title
developments?
Would an electronic system for development applications, complying
developments and building certification generate useful information for
government and the industry and improve regulatory performance?
Do you support the adoption of standard forms for development applications,
CCs, CDCs and OCs?
Do you support, as ways of improving the planning and approval stage:
•
•
•
limiting development approval to a concept approval
a standard set of development application conditions
independent assessment of instances where a council seeks to
impose higher building standards than the BCA
62
•
improved information to the community on developments in their
area?
13. Will a significant improvement in the process of certification, to allow
commencement of building work, be provided by:
•
•
•
standardising the information to support the CC/ CDC
standardising the report to support alternative solutions with
content confirmed by the certifier
replacing the not inconsistent test with the consistent test for both
CCs/ CDCs and OCs?
14. Do you support combining the roles of certifying authority and principal
certifying authority?
15. For a CC or CDC, is there merit in separating the assessment of conformity
with planning requirements, to be handled by the consent authority, from the
assessment of building requirements?
16. Would the current problems with the building construction stage regulatory
approach be addressed by:
•
•
•
•
•
•
ensuring the builder receives the certified plans and CC/ CDC
documenting and requiring adherence to good certifier practice
potential additional critical site inspections based on risk assessment
replacing interim and final OCs with an OC and development
completion certificate
requiring projects with missed mandatory inspections, and
unauthorised work, to obtain an OC
effective financial sanctions for unauthorised work?
17. Do you support the option of requiring the creation and maintenance of a
Building Manual for all new Class 1b-9 buildings?
18. Do you support the reform of the fire protection system certification,
including the proposed revised role for NSW Fire and Rescue?
19. Would the options for change set out in this paper be helpful in improving the
supply of qualified certifiers and making it a more attractive profession?
20. Is there an adequate pathway that allows a certifier to progress from the A4
category (building inspector) right through to A1 (building surveyor – grade 1),
if desired?
21. Would the proposed changes to the accreditation process address the main
deficiencies in the current system?
22. Do you support the use of an evidence-based framework and guide for the
review of the accreditation scheme?
23. Are the following sufficient to create a suitable level of accountability for
certifiers in respect to their regulatory role:
•
•
improved transparency of the performance of a certifier with a
Practice Guide
proactive investigations and audits
DISCUSSION PAPER MAY 2015
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INDEPENDENT REVIEW OF THE BUILDING PROFESSIONALS ACT 2005
•
increasing the awareness of the role of certifiers?
24. Does the establishment of certifier panels by councils have merit?
25. Do you support an expanded program of proactive investigations and audits
by the BPB and if so, how should they be conducted?
26. Would introducing a demerits point system and issuing more penalty
infringement notices provide a more timely mechanism for disciplining
certifiers who have not performed to a required professional standard?
27. Would you prefer an online system for the lodgement of complaints?
28. Would the establishment of an education and training program to inquiries,
complaints and audits together with a building services advisory hot line
address the needs of certifiers for training and information support?
29. Is it possible to achieve full competitive neutrality without either councils
ceasing to offer certification services, or private certifiers being abolished?
30. Would certifiers’ insurance issues be addressed by expanding certification and
accreditation to cover critical building elements and design, and by
implementing an industry scheme to cover the gap in insurance cover from
certifiers leaving the industry or where the certifier changes for a particular
project? If not, what additional problems remain?
31. Do you agree that there is not a ‘last person standing’ problem arising from
the different liability cover between builders and certifiers? If it does arise,
please explain the problem created.
32. Do you favour a simplification of the requirement for swimming pool fencing
certification requirements, moving from three standards to one?
33. Would setting charges for both councils and the State to recover processing
costs for development applications and CDCs be the most equitable and
efficient approach?
64
Abbreviations and acronyms
Legislation
•
•
•
BP Act: Building Professionals Act 2005
EP&A Act: Environmental Planning and Assessment Act 1979
EP&A Regulation: Environmental Planning and Assessment Regulation
2000
Government agencies and other organisations
•
•
•
•
BPB: Building Professionals Board
DPE: NSW Department of Planning and Environment
Fair Trading: NSW Fair Trading, Department of Finance, Services and
Innovation
IPART: Independent Pricing and Regulatory Tribunal of NSW
Certification terms
•
•
•
•
CC: construction certificate
CDC: complying development certificate
OC: occupation certificate
PCA: principal certifying authority
Other abbreviations and acronyms
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Accreditation scheme: Building Professionals Board Accreditation Scheme
BCA: Building Code of Australia (part of the National Construction Code,
together with the Plumbing Code of Australia, and administered by the
Australian Building Codes Board)
Practice Guide: Practice Guide for accredited certifiers (being developed
by the BPB in conjunction with industry and local government)
White Paper: White Paper: A New Planning System for NSW
DISCUSSION PAPER MAY 2015
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