Thank you for the opportunity to comment on the Draft Report – Independent Review of the Building
Professionals Act 2005 by Michael Lambert.
Shoalhaven City Council has reviewed the draft report and offers the following comments:
Chapter 11 – Reform of governance: legislation, regulation and administrative structure
The reforms to building legislation and administration advocated in chapter 11 are generally
supported.
Chapter 12 – Reform of information systems: Use of e-technology
General support for the recommendations on development of an e-Building strategy subject to the
provision of appropriate resources and funding to Local Government.
Chapter 13 - Reform of roles and responsibilities: clarification of roles of certifiers and councils
General support for reforms that target clarification of the roles and responsibilities of Councils and
private certifiers.
Chapter 14 Building regulation and certification process
14.2 Stage 1: planning, design and approval
1.1 Exempt developments
Review of the current exempt development categories to establish changes to address potential
significant building safety and performance implications is supported.
1.2 Changes of existing building or use
Reforms generally supported.
1.3 Quality of building and critical element design and certification of design
The proposal to require the design of complex building and critical building elements, such as fire
safety and waterproofing, to be carried out by accredited persons is generally supported.
1.4 Development approvals – information requirements and conditions and consistency of conditions
across councils
A proposal to define minimum submission requirements for development applications is supported.
Any intention to create a suite of standard conditions must include the ability for Councils to include
other non-standard conditions on development consents where deemed necessary and appropriate
in individual cases. Concerns are raised about how any “peer review” process might work. Concerns
are raised with any proposal for development applications returning to being a “concept approval”
with detailed designs being provided at construction certificate stage.
1.6 Accreditation of town planners
Accreditation of privately practicing town planners would increase levels of accountability and is
generally supported.
1.7 Peer review and decision support
A system of submission of alternative solutions and critical building elements to a peer review panel
is cautiously supported subject to concerns about timeframes and costs.
1.8 Section 96 approvals
There are significant concerns about the introduction of mandatory turnaround times for Section 96
applications. The current review needs to seriously consider case law in NSW related to Section 96
applications that has significantly broadened the concept of what is consisted to be “substantially
the same development”.
14.3 Certification to allow commencement of building work
2.1 Clarity of requirements for issue of construction certificates or CDC
Proposed reforms to improve construction certificate and CDC documentation and process are
generally supported.
2.2 Need for consistency in the CC and CDC process and sufficient supporting information
As above in 2.1.
2.3 Assessment and certification of alternative solutions
The proposed reforms to the assessment and administration of alternative solutions is generally
supported.
2.4 The ‘not inconsistent’ test
The proposed move away from ‘not inconsistent’ to ‘consistent’ with formal criteria in legislation is
supported.
2.5 Distinction between certifying authority and principal certifying authority
Retaining the status quo of having separate categories for certifying authority and principal
certifying authority is supported.
2.6 Accessibility of building plans
The proposal to have fully specified building plans at CC stage is generally supported but may be an
onerous and costly task that might outweigh the benefits in some cases, such as class 1 and 10
buildings. If this was to occur for Class 1 and 10 buildings it should be done on the basis that the
plans can only be prepared by appropriately accredited persons. If this is not the case, certifiers will
experience delays and costs associated with non-compliant building plans submitted in CC and CDC
applications.
2.7 Building in stages
Generally support the concept that where a building is constructed and certified in stages the
certifier taking full account of and documents the proposed work’s relationship with the overall
project.
2.8 Implications of the Burwood Council versus Ralan Case
Support a review by the DPE of the legal and policy implications of this court case.
2.9 Conditions for CC and CDC
Some flexibility for certifiers in applying conditions on CC and CDC is supported.
14.4 Building construction stage
3.1 Specific matters impacting on strata and community title developments
It should be noted that in some cases strata and community title subdivision of these developments
does not occur at DA and CC stage and that this may allow the proposed reforms to be
circumvented.
3.2 Improved information for the community
There is insufficient information provided on the proposed ‘electronic noticeboard’ to comment in
detail however there is merit in ensuring that the project information is readily available to the
community. It is unclear how the information on exempt development would get onto the
‘electronic noticeboard’.
3.3 Adequacy of mandatory building inspections
Proposed reforms are generally supported. The purpose of reporting missed critical stage
inspections to the Council and the BPB is unclear. In many cases it is not possible to undertake the
inspection after the critical stage inspection has been missed, particularly if, for example, concrete
has been poured. Detailed guidance needs to be provided to certifiers on how the certifier can be
satisfied that the works are satisfactory and can proceed. There also needs to an indemnification for
certifiers against claims for costs associated with missed inspections. This is necessary where an
inspection has been missed and where invasive works are ordered, such as removal of wall cladding
to inspect framework, but where no defects are found and the works are found to be satisfactory.
3.4 Improving the certification process for critical building elements
The proposal to require building professionals who design, install or commission critical building
elements to be suitably accredited, have professional indemnity insurance and to certify their work
is supported.
3.5 Fire safety schedules
There is insufficient information stated on the proposed reform to fire safety schedules to comment.
14.5 Issue of Occupation Certificates
4.1 Clarifying criteria for the issue of an occupation certificate
The concept of a ‘Development Completion Certificate’ for a DA and CDC is supported. There are
however concerns about an OC being able to be issued prior to the Development Completion
Certificate and only considering if a ‘building is safe and fit for its approved use’. Will the OC only
consider BCA matters or will it extend to matters required by the development consent that need to
be in place before the development commences, such as car parking, road access and the like? If not
the use of a building may be authorised by an OC but other critical matters contained in the
development consent may not be in place and the use of the building may be inappropriate and
unsafe.
4.2 Issue of development completion certificates where there is unauthorised works
Reforms to address unauthorised works, including penalty fines that act as a disincentive are
supported. The removal of the building certificate path to ‘regularise’ unauthorised works is also
supported. It is unclear how the Development Completion Certificate will address unauthorised work
generally but particularly where the unauthorised works are not related to a DA or CDC.
14.6 Building information and maintenance regulation
The concept of the ‘building manual’ as proposed in the Planning White Paper is generally
supported. Provision of these documents online utilising e-Technology is also supported.
Shoalhaven City Council currently requires building owners and managers of relevant buildings to
submit annual fire safety statements in accordance with the current requirements of the
Environmental Planning and Assessment Act and Regulation. The two most significant difficulties
with the current requirements are the responsibility of the owners/managers to nominate a
competent person to certify the fire safety measures and the lack of any form of
accreditation/qualifications/experience requirements on persons carrying out such works. It is
considered that persons certifying annual fire safety measures in existing buildings be required to
hold specific qualifications and accreditation by the BPB.
14.7 Fire safety certification and review
The proposed reforms on the design, installation, commissioning and maintenance of fire safety
systems is supported.
14.8 Subdivision and strata certification
Extending private certification to include subdivision and strata certification is not supported.
14.9 Other building regulation issues
Licensing of commercial builders
The assessment of this issue in the report acknowledges that NSW is unique amongst other States
and Territories in not requiring licensing of commercial builders and dismisses any need to extent
such licensing requirements on the basis that owners/developers are able to assess the capability
and capacity of builders. This seems at best a superficial assessment that does not acknowledge the
important role of the builder in these types of developments and the need to ensure that the builder
is suitably qualified and experienced to carry out the works. This is also an important issue for the
Certifier who, to a significant extent, relies on the competence and integrity of the builder.
Consideration should be given to extending the current licensing provisions to commercial builders
or alternatively requiring all builders, residential and commercial, to be accredited by the BPB.
The licensing/accreditation of commercial builders is considered an important issue in smaller
commercial developments where owners/developers may not be as knowledgeable and a greater
reliance is placed on the builder.
Access to Australian Standards
Current access to Australian Standards is restricted by cost and any future move to free access in line
with the NCC is supported.
Interpretation of Australian Standards and NCC
Both proposed reforms are supported.
Chapter 15 Reform of accreditation, accountability, discipline and support of certifiers
15.2 Accreditation of certifiers
 Qualified support for the proposal to extend the range of professional and academic
qualifications for building certifiers subject to knowledge gap identification and training
programs.
 Support the proposal to expand the accreditation scheme to recognise nationally recognised
training organisations.
 Support work to develop tools to assess certifier’s knowledge and to assist in moving to
higher levels of accreditation.
 Support the proposal to increase accreditation periods from 1 year to 3-5 years.
 Support the development of an online system for the accreditation system
 Support the proposal to introduce a fit and proper test for all persons in companies
providing certification services.
15.3 Scope of Accreditation
The proposal to increase the scope of accreditation to include building plans, the design, installation
and commissioning of critical building envelopes and systems and town planning is generally
supported.
15.4 Accountability of certifiers
It is unfortunate that the scope of the review has not seriously considered whether private
certification is an appropriate option to retain. This system has been in place in NSW for over a
decade and has been continually the subject of reviews and changes to try and address the problems
with a system that is arguably fundamentally flawed.
Proposals to include development of a practice guide and a proactive investigation and auditing
program by the BPB are supported.
Retaining of the mandatory contract for certification services for Councils is not supported.
Tentative support to the creation of a tripartite partnership arrange between certifiers, councils and
the State.
15.5 Handling of complaints and disciplining of certifiers
The proposed reforms to the complaints/disciplining procedures for certifiers is generally supported.
15.6 Education and training
The recommended reforms to improve the education and training opportunities for certifiers are
supported. It is also important that training programs are more accessible, with greater use of online
delivery, and are affordable. Council has a significant number of certifiers and training costs
associated with accreditation CPD requirements are significant.
15.7 Other support for certifiers
The establishment of a hot line enquiry service, and advisory and reference panels to assist certifiers
is supported.
15.8 Certifying fees
The development of an indicative fee structure for certification services and the requirement for
private certifiers to publish their fee structure is supported.
15.9 Competitive neutrality
Agreed that competitive neutrality between Council and private certifiers will not be achieved under
the current arrangements. A requirement for private certifiers to publish their fee structures will
however assist.
15.10 Professional indemnity insurance
No comment
15.11 Improving the supply and career path of certifiers
Shoalhaven City Council is a large regional Council that employs approximately 15 certifiers that
provides certification services for all Classes of buildings. Since the introduction of accreditation for
Council certifiers there has been a noticeable decrease in the availability of suitably qualified,
experienced and accredited candidates to fill vacancies that have arisen over that time. So much so
that Council has in the past had to employ non-accredited persons and invest significant amounts of
time and money on training to enable these staff members to obtain the necessary levels of
accreditation. In order to address this shortfall of available candidates as vacancies arise, Council has
recently moved to employ a cadet building surveyor.
The proposed reforms outlined in the report are generally supported and, particularly from Council’s
perspective, any incentives to encourage the provision of additional trainee positions are welcomed.
Chapter 16 Reform of the resourcing and funding of building regulation and certification
Council’s experience in the past has been that compliance work is expensive, resource hungry and
not self-funding. The proposal of a levy on DA and CDC applications, coupled with revenue from
PINS, to provide adequate funding for compliance is considered to be an option worth further
consideration.