Review of the Tasmanian
Building Regulatory
Framework
ISSUES PAPER
VERSION 1.0, JULY 2014
Building Standards and Occupational Licensing
Department of Justice
REVIEW OF THE TASMANIAN BUILDING REGULATORY FRAMEWORK
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Table of Contents
Contents
1
Introduction ............................................................................................................. 4
Background to Review ............................................................................................. 4
Review Process - Explore the issues with Industry and Consumers .................... 6
Why this Document? ................................................................................................. 7
2
Terms of Reference ................................................................................................ 8
3
Are the Objectives of the Building Act still relevant? .....................................10
What we want you to tell us ..................................................................................16
4
Certification ..........................................................................................................17
Building Certification ...............................................................................................17
Building Permits ........................................................................................................19
Bushfire ‘Code’ ........................................................................................................22
What we want you to tell us ..................................................................................23
Questions ..................................................................................................................24
5
Standards ..............................................................................................................29
Scope of Physical Standards .................................................................................30
Scope of Behavioural Standards ..........................................................................31
Scope of Regulatory Process Standards .............................................................33
Standards imposed by Insurers and Legal Advisers ...........................................34
What we want you to tell us ..................................................................................34
Questions ..................................................................................................................35
6
Compliance and Enforcement .........................................................................38
Existing Compliance Model ...................................................................................38
What we want you to tell us ..................................................................................44
Questions ..................................................................................................................45
7
Protection ..............................................................................................................47
Consumer and Industry Protection .......................................................................47
The Housing Indemnity Act 1992 ...........................................................................48
The Building Act 2000 ..............................................................................................49
The Occupational Licensing Act 2005 .................................................................50
The Architects Act 1929 ..........................................................................................50
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The Civil Liability Act 2002 ......................................................................................50
Victorian Domestic Building Consumer Protection Reform Strategy ..............51
Land records ............................................................................................................51
What we want you to tell us ..................................................................................52
Questions ..................................................................................................................53
8
Professional Education, Training and Development ......................................56
What we want you to tell us ..................................................................................59
Questions ..................................................................................................................60
9
Accreditation, Licensing and Registration .......................................................62
Accreditation ...........................................................................................................62
Licensing ...................................................................................................................63
Registration ...............................................................................................................64
What we want you to tell us ..................................................................................65
Questions ..................................................................................................................66
10
Defining Work ....................................................................................................68
What we want you to tell us ..................................................................................69
Questions ..................................................................................................................70
11
Planning..............................................................................................................71
What we want you to tell us ..................................................................................72
Questions ..................................................................................................................73
12
Plumbing and Building .....................................................................................74
What we want you to tell us ..................................................................................75
Questions ..................................................................................................................76
13
Appeals and the Review of determinations or applications .....................77
What we want you to tell us ..................................................................................78
Questions ..................................................................................................................79
Building Standards and Occupational Licensing
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1 Introduction
Background to Review
The Tasmanian Government is undertaking a comprehensive review of the
building regulatory framework to ensure that only the regulation which is still
relevant to Tasmania today and into the future remains part of the
framework.
This includes a review of the interactions between legislation and policies
affecting the building industry including:
 The Building Act 2000
 The Building Regulations 2004 and the Plumbing Regulations 2004
 The Housing Indemnity Act 1992
 The Occupational Licensing Act 2005
 The Architects Act 1929
 The Building and Construction Industry Security of Payments Act 2009
 The Resource Management and Planning Appeals Tribunal Act 1993
 The Fire Service Act 1979
The review will also address the issues in relation to the Residential Building
Work Quality (Warranties and Disputes) Bill 52 of 2012 which caused the Bill to
fail to become law in mid-2013.
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Current Legislative Objectives
The Building Act 2000 Objectives include:
 To establish, maintain and improve standards for the construction and
maintenance of sustainably designed buildings;
 To facilitateo the adoption and efficient application of national uniform
building and plumbing standards;
o national accreditation of building and plumbing products,
construction methods, building designs, building components
and building and plumbing systems;
o the adoption and efficient use of performance-based technical
standards;
 To enhance the amenity of buildings, to meet the social needs of people
who use buildings, and to protect the safety and health of people who
use buildings;
 To facilitate and promote the cost effective construction of buildings and
the construction of environmentally and energy efficient buildings;
 To provide an efficient and effective system for issuing building, plumbing
and occupancy permits and administering and enforcing related building,
plumbing and safety matters and resolving disputes;
 To protect consumers who use building practitioners;
 To reform aspects of the law relating to legal liability in relation to building
and plumbing matters;
 To aid the achievement of an efficient, innovative, competitive and
sustainable building and plumbing industry.
 To promote the consolidation of building legislation;
 To promote the sustainable development of existing buildings and their
maintenance;
 To provide for the fair, orderly and sustainable use of buildings.
The extent to which the Building Act (as well as subsequent amendments,
and other recent legislation, administrative and policy changes) has been
able to achieve (or has worked against) these Objectives will form part of the
Review.
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Reforms in 2000 – 2004
When introduced in 2004 the Building Act and regulations were the result of
over 20 years of consultation and development beginning with the
Development Review Working Group (1983) and the Model Building Act
developed nationally in 1991 by the Australian Uniform Building Regulations
Co-ordinating Council. The Building Act 2000 introduced significant reforms
including:
 Accreditation of all responsible Building Practitioners (designers, builders
and building surveyors) with a requirement for mandatory insurance and
continuing professional development,
 Private certification of building compliance, with permits issued by council
Permit Authorities,
 Liability reforms and specified duties for all participants,
 The binding of the Crown,
 Maintenance of essential safety and health features in buildings,
 Establishment of a Director of Building Control, a Building Regulation
Advisory Committee and continuation of the Building Appeal Board.
Review Process - Explore the issues with Industry and
Consumers
1.
Are the Objectives of the Building Act still relevant?
2.
Does the current
Objectives?
3.
What changes have occurred – legislative, legal, professional, and
operational?
4.
What are the major Issues?
5.
What is an appropriate Framework for 2015?
6.
What major changes could be made?
7.
What fine tuning needs to be made to existing components?
Building Legislative Framework achieve these
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Why this Document?
The purpose of this document is to provide sufficient background information
to engender debate and to seek to question aspects of the framework.
Having shared the background we want the reader to answer the question - if
we were starting with a clean slate how would we regulate our building
processes?
The document explores the framework from a number of perspectives and
we have listed a series of questions in each section – readers should not feel
constrained to simply answer the questions. Further comment, examples of
the reader’s experience and perspectives gained from your own experience
will all aid in identifying the issues for the review and therefore better inform
the response and recommendations which go forward to Government.
The support documents to this Paper, such as the Acts, Regulations and
Schemes are available through our website which can be accessed from
www.justice.tas.gov.au
Why so many questions?
The Questions throughout this paper have been generated in discussion with
those involved in the Building Industry, including owners and local
government. The questions reflect the many different perspectives and the
issues or problems that have been brought to our attention. In some cases
the intent of the questions may seem to be contradictory, but this again
reflects differing views which we have not attempted to resolve, but instead
have treated as equally valid.
We do not expect that contributors to the review will work through and
answer every single question – but we are hoping the questions will generate
reflection on the building regulatory framework and debate on a way
forward. The resulting feedback will help us form a direction for the future of
Tasmania’s framework.
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2 Terms of Reference
The Director of Building Control is to investigate and report to the Treasurer
following a systematic and complete Review of the Tasmanian Building
Regulatory Framework (the Review). The Review will be managed and
conducted by the Director of Building Control in conjunction with the Building
Regulatory Advisory Committee.
The Review will include a review of the interactions between legislation and
policies affecting the building industry including:
 The Building Act 2000
 The Building Regulations 2004 and the Plumbing Regulations 2004
 The Housing Indemnity Act 1992
 The Occupational Licensing Act 2005
 The Architects Act 1929
 The Building and Construction Industry Security of Payments Act 2009
 The Resource Management and Planning Appeals Tribunal Act 1993
 The Fire Service Act 1979
The review will also address the issues in relation to the Residential Building
Work Quality (Warranties and Disputes) Bill 52 of 2012.
The Review will also consider the relationship of the Framework with planning,
environmental, heritage and any other legislation which intersects with the
Framework.
The Review will determine whether the current Building Regulatory Framework
meets the needs and expectations (including safety, quality, performance,
efficiency and sustainability) of the community, consumers and the industry
and recommend any changes to improve the framework.
The Review will be informed by contemporary building regulatory frameworks
in other jurisdictions, recent reviews and any proposed changes in other
similar jurisdictions.
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The Director of Building Control is to establish and consult with:
 A Local Government Technical Advisory Group;
 A Building Practitioner Technical Advisory Group;
 An Industry Reference Group formed from representatives of the Industry
Associations; and
 A Consumer Advisory Group
The Review outcomes are to be implemented by the end of 2015.
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3 Are the Objectives of the
Building Act still relevant?
Although not actually included in the Building Act 2000, the Objectives of the
Building Act were developed during the consultation process for the Act and
included in legislative scheme by being read into Hansard in the Legislative
Council by the Government Leader. The Objectives have been
communicated in training and development sessions and used to guide
subsequent Building Act and Regulation development and amendments as
well as new Acts.
In summary, the intentions of the Objectives are to establish and maintain an
orderly process for a sustainable building industry to efficiently construct and
maintain a safe, healthy, and sustainable building stock which meets the
social needs of the community. The needs of consumers are to be protected
in that process.
1. to establish, maintain and improve standards for the construction and
maintenance of sustainably designed buildings;
It is an assumption of modern regulatory frameworks that the Community
expects Government to set appropriate standards for their protection. This
assumption underlies modern consumer protection laws, human rights laws
and of course planning, environment and building laws. No advanced
economy survives without setting standards.
In the Building area the consequences of failure due to inadequate
construction standards are potentially so large and so costly to the public
purse and the economy that standard setting and order are demanded by
the community. Recent examples of this is the community pressure for
compensation and greater protections from Government, both State and
Local, in relation to landslip events and more recently the widespread
legislative and other consequences arising from the Royal Commission into
the Victorian bushfires in 2009.
It is ineffective and inappropriate to set construction standards for when
building assets are built but then allow subsequent deterioration which risks
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the health and safety of occupants and the public. This would be like
registering a new bus but never doing any maintenance.
Increasingly the community is becoming aware of the relationship between
buildings and their environment and the high environmental loads that the
buildings we live and work in can place on the planet. Environmental
efficiency and sustainability are key goals of leading designers and
developers around the world.
Nationally, built assets are now required to meet a 6 star rating for energy
efficiency. A house built to a 6 star standard will use about 20 to 25% less
energy to heat and cool when compared to a similar sized 5 star house.
This reduces energy bills and reduces the burden on the State's energy
infrastructure.
2.
to facilitatei.
the adoption and efficient application of national uniform
building and plumbing standards;
ii.
national accreditation of building and plumbing products,
construction methods, building designs, building components
and building and plumbing systems;
iii.
the adoption and efficient use of performance-based technical
standards;
The Productivity Commission review in 2004 endorsed the use of nationally
uniform performance-based building and plumbing standards. Subsequent
work done for the Australian Building Codes Board (ABCB) in 2013 indicates
that there is still significant public benefit to be gained by greater national
uniformity and increased use of the performance-based National
Construction Code (NCC). In fact that report indicates a further benefit to the
Australian Economy of around 1.1 Billion dollars.
The Building Act adopts the performance-based NCC and Tasmania
participates in the Australian Building Codes Board (ABCB) processes to
underpin and develop the NCC and non-mandatory advisory information.
The Building Act has also consolidated building and plumbing standards
within Tasmania into the NCC and acts as a “gatekeeper” to eliminate local
government regulatory interventions.
The building and plumbing product accreditation schemes, CodeMark and
WaterMark, are aimed at providing certainty to the community that products
accredited under the schemes meet the relevant standards. Both schemes
are currently under review by the ABCB.
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to enhance the amenity of buildings, to meet the social needs of people
who use buildings, and to protect the safety and health of people who
use buildings;
Protection of the safety and health of people who use buildings has been the
objective of “building regulation” since at least the Great Fire of London.
Contemporary society has extended the objective in relation to amenity to
include basic human rights such as access for people with a disability.
After 15 years of work the National Construction Code now includes access
provisions which meet the intentions of the Commonwealth’s Disability
Discrimination Act 1992. Further development may see an investigation into
regulation of accessible or adaptable houses.
4.
to facilitate and promote the cost effective construction of buildings and
the construction of environmentally and energy efficient buildings;
Building regulation has always set only the minimum standards for safety,
health and amenity. Excessive minimum physical material costs are not
tolerated by the community but frequently the community expectation
exceeds those minimum standards. The performance-based NCC facilitates
cost effective and energy efficient construction.
As the scope of building regulatory requirements becomes broader and more
complex in response to community expectations, and urban growth spreads
outside the optimum locations, there is an increased need for specialist input
in ways that have not been needed in the past. Cost effectiveness has been
addressed by the adoption of National Competition Policy objectives and
continuing review of regulation and “red tape”.
5.
to provide an efficient and effective system for issuing building, plumbing
and occupancy permits and administering and enforcing related
building, plumbing and safety matters and resolving disputes;
The purpose of the Act and regulations is to exert order and control over the
building construction process. The Building Act has been updated by four
substantial amendment Bills and other minor amendments since its
introduction. The Building Regulations 2004 and the Plumbing Regulations
2004 were developed over four years of consultation and have also been
regularly reviewed and updated with the assistance of the Building
Regulation Advisory Committee (BRAC) since then in response to issues
identified by industry, the community or government.
Changes to other legislation and the building legislation and advice to
practitioners in relation to liability and insurance, in response to changing
community expectations have exerted pressure on the efficiency of the
building regulatory process.
The practitioner complaints system under the Building Act was designed as a
means of owners holding practitioners to account for their professional
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conduct, it was never designed to resolve domestic building disputes. 'The
Residential Building Work (warranties and Disputes) Bill 2012 was an attempt to
address the domestic disputes which arise, however it did not pass the
Parliament and this review needs to include this aspect.
In 2012, building practitioner appeals and building and plumbing regulatory
process appeals were transferred from the Building Appeal Board to the
Resource Management and Planning Appeals Tribunal to increase
administrative efficiency.
6.
to protect consumers who use building practitioners;
Early in the 1990s Australian governments identified that there were three
requirements for an effective domestic building consumer protection
framework. These are:
 Building Practitioner registration;
 Domestic building warranty insurance; and
 Alternative building dispute resolution.
Tasmania has never had all three components.
When the Building Act was implemented it relied on Housing Indemnity
Insurance to provide the insurance against domestic builder default. The
Building Act required that all accredited building practitioners be insured to
protect all consumers and balance the risks between industry players. The
Government abandoned housing indemnity insurance in 2008.
The Consumers’ Federation Australia has advised:
The Residential Building Work Quality (Warranties and Disputes) Bill was
introduced in 2012 to address the lack of effective alternative dispute
resolution and transfer the statutory warranties previously found in the Housing
Indemnity Act 1992. It also rebalanced rights and obligations between the
community and industry after the implementation of the Building and
Construction Industry Security of Payments Act 2009. The Bill was defeated in
the Legislative Council in 2013 after sections of the industry withdrew support.
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to reform aspects of the law relating to legal liability in relation to
building and plumbing matters;
The Building Act continued liability reform commenced in the 1990s and
retained the 10 year liability cap for building actions. It also introduced
proportionate liability in the building sphere in place of the joint and several
liability doctrine that had previously prevailed. Subsequently, Tasmanian
legislation has changed to introduce proportionate liability more generally.
8.
to aid the achievement of an efficient, innovative, competitive and
sustainable building and plumbing industry;
Industry efficiency and order and control are often seen as competitive
objectives. However, frequently industry seeks certainty and hence efficiency
by the establishment of processes, rules and standards including prescriptive
requirements.
Adoption of the performance-based NCC in the regulatory framework
promotes innovation in design and construction and business and
professional practices are not restricted except where a statutory function is
performed.
National competition policy underpins the inclusion of private building
surveying in competition with councils. Conflicts of interest, scope of work and
cross-subsidisation have been identified for discussion.
9.
to promote the consolidation of building legislation;
Most building construction-related legislation (but not heritage) has been
consolidated under the Treasurer and Minister for Local Government and
Planning and is administered by the Department of Justice. Consolidation
promotes consistency and efficiency.
Building and plumbing technical regulatory requirements are consolidated in
the NCC. The Act requires Ministerial approval for the making of building
technical regulations under any other Act. Councils cannot make building
related by-laws. Tasmania enjoys the efficiency of a high level of building
regulation consolidation not enjoyed by any other state or territory.
10. to promote the sustainable development of existing buildings and their
maintenance;
The legislation promotes the sustainable use of existing buildings. Existing
buildings are not required to be upgraded when a new standard is
introduced and Tasmania does not have the 50% upgrade rule of some
jurisdictions. The performance based NCC promotes sustainability of existing
buildings.
Maintenance provisions were introduced to attempt to ensure existing
buildings are kept in a safe and healthy state suitable for their occupants. The
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maintenance obligations build on existing fire safety regulations and place
the obligation on owners. Expensive compliance checking by government is
not a feature.
11. to provide for the fair, orderly and sustainable use of buildings;
Order and fairness for both community and industry are basic tenets of the
building legislation. Order frequently requires processes, hold points
certification and permits. The Building Act contains all of these.
A key objective of the NCC is the sustainability of buildings.
Sustainable use of buildings is clearly aligned with the sustainable
development of new and existing buildings. Development will not occur
without a projected use. The Building Act also contains Temporary
Occupancy Permit processes to allow uses for which a building was not
designed.
12. to establish, maintain and improve standards for the construction and
maintenance of sustainably designed buildings.
The Building Act has, established, maintained and improved standards for the
construction and maintenance of buildings, by the adoption of the NCC and
Tasmania’s involvement in the ABCB and other national organisations with
sustainability as a goal.
The Objectives of the Building Act 2000 are prima facie still relevant. However,
there is no denying that there are challenges for the industry, the community
and the regulators to achieve these Objectives. Professor Kim Lovegrove FAIB,
one of the original authors of the Model Building Act has commented
recently:
“Tasmania has the opportunity to get it right and adopt world best practice in
building control. First, however, the government needs to be clear about the
purpose of reform, and ask itself whether or not the Act as it stands is truly
broken and if not, why it needs to be fixed. Reform for reform’s sake is
pointless.”
That is the point of this review of the building regulatory framework. It is a “big
picture” review.
A future framework should follow the best practice regulatory guide issued by
the Australian Government, that is, regulation should meet test of necessity,
benefit and ease of use. The Australian Government Framework introduction
includes the following statement which should also be seen as a guiding
principle for this review:
“Regulation can’t eliminate every risk, nor should it. We therefore seek better
regulation, not more regulation. Policy makers must seek practical solutions,
balancing risk with the need for regulatory frameworks that support a
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REVIEW OF THE TASMANIAN BUILDING REGULATORY FRAMEWORK
stronger, more productive and
investment and jobs are created.”
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diverse
economy
where
innovation,
What we want you to tell us
3.1
Are these objectives still valid?
3.2
Does the current Building Regulatory Framework meet these objectives?
3.3
How do we simplify the Building Regulatory Framework so that it meets
the test of “necessity, benefit and ease of use”?
3.4
What success measures should be collected and reported on for the
Building Regulatory Framework?
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4 Certification
Building Certification
Third party certification of compliance has been a function exercised by
control authorities since building regulation as we know it was introduced.
Certification and permits go hand in hand to impose order and control over
community building activities which actually or potentially affect other
community members.
An alternative is post-completion inspection for compliance in situations
where compliance (and safety) can be readily tested. The electrical industry
has used this process and domestic plumbing is partly controlled in this way in
Victoria.
Self-certification with audit is another mechanism used to ensure community
confidence in regulatory controls. Frequently, this method is aligned to
licensing controls but has been used in building processes for specialist
functions.
With the introduction of Competition policy requirements federally in the
1990s, governments identified that the certification function carried out by
council employees was a contestable activity and so private certification was
enabled in building legislation. In Tasmania, a preliminary form of private
certification by building surveyors was introduced prior to the Building Act
2000. With the introduction of that Act and the Certificate of Likely
Compliance, full private certification of compliance with the Act was
introduced.
The Act does not recognise any difference between private building
surveyors and building surveyors working for a council. Of course, one
difference that exists in reality is that council building surveyors enjoy the
liability protections afforded to councils.
Building surveyors (including Council building surveyors) must be engaged by
the owner of a building development and discharge a duty to the
community by ensuring that “as far as reasonably practical” building work is
carried out in accordance with the Act.
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Their role as the statutory building surveyor has been seen by some as akin to
an extension of the executive of government. However, whilst that fits
comfortably within councils, private building surveyors are also driven by the
commercial realities of getting, keeping and servicing clients whilst
maintaining a viable business. In addition private building surveyors have
indicated that they feel they are disadvantaged by councils offering building
surveying services and by variable service delivery causing a race to the
lowest fee regardless of quality and risk to the owner.
The Building Act offers Certificates of Specialists and Other Persons and liability
protections for an honest act done or omission made for all persons exercising
a power or carrying out a statutory function. The reported advice given to
building surveyors by insurers and legal advisors in relation to their risk and
liability has added unintended and unforeseen complexity to the operation
of the certification functions under the Building Act.
Recent changes (1 January 2014) to the Land Use Planning and Approvals
Act and consequential amendments to the Building Act have introduced the
practice of private planning compliance certification to the Building
Regulatory Framework.
Certification models – the current Act contains both:
1
Third Party Certification
Certification implies checking, value and public benefit –e.g.
certificate of likely compliance, certificates of others, peer
review.
2
Self-Certification
Certificates of specialists –e.g. soil properties, energy, bushfire,
etc.
Professor Kim Lovegrove says private certification regulation in Australia is
in dire need of regulatory overhaul and no regime has got it right. His views
on ‘world best practice’ building regulation based upon his experience in
Australia include:
o With respect to private certification, take away the power of
certifiers to sanction alternative solutions.
o In order to avoid underquoting and fees dropping to the point of
standards being compromised, regulate fees for certification
services and impose a minimum charge out rate floor below
which certifiers are not able to descend.
o Introduce a peer review system for the approval of performance
based design scenarios. The peers would need to be
independent, government approved and well respected.
o Boost auditing powers and resources and adopt a user pays
auditing system based upon a model similar to that in the legal
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profession whereby any solicitor operating a trust account is
subjected to mandatory annual audits, the solicitor pays for the
auditor and the auditor is independent and nominated by the
law society. Whilst a ‘user pays’ system does cost builders more,
reluctance on the part of governments to increase funding for
auditing means this is in reality the most practical and feasible
approach.
Building Permits
The function of issuing permits under the Building Act was deliberately
retained in government (local government) when the Building Act was
passed by Parliament. The experience at that time (and subsequently) in
Victoria indicated that there was a high potential for unsuitable outcomes if
permits were issued by building surveyors. The close links between Planning
and Development control by councils and building control indicate the
suitability of this arrangement. A recent review of certification in NSW did not
contemplate private permit issue and called for closer links between councils
and certifiers.
The role of the Building Permit Authority was originally purely administrative
with no technical knowledge requirements. However experience has shown
that it is necessary for Permit Authorities to have a better understanding of the
requirements of the Act to ensure that Building Permits are issued to
applications that comply with the Act. The Director of Building Control has
undertaken extensive training of Permit Authorities and sponsored Certificate
IV in Government (Statutory Compliance) for many existing and previous
Permit Authorities.
Attachment 1 maps out the certification process for a building project in
Tasmania.
Permit - Authority
The role of Permit Authority appears to be implemented in different ways
across Tasmania’s 29 councils.
In some councils it appears as a role similar to a Building Surveyor and
processes include detailed investigation and checking of the work done in
order to receive certificates of compliance.
In other councils, it appears to be a purely administrative, low-skill role which is
responsible for accepting the paperwork and issuing a permit as a verification
of that paperwork.
Other councils and the Director of Building Control see the role as one where
an understanding of the Building Act 2000 is required and some judgement
needed – essentially one of compliance and education.
The result of the differing understanding of the role means that the process of
certification can differ significantly across council boundaries resulting in
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many frustrations and often varying costs for Building Practitioners who are not
limited to one location.
Plumbing Certification and Plumbing Permits
The Building Regulatory Framework also includes the Plumbing Regulatory
Framework. Councils have responsibility for ensuring that both building and
plumbing work meet the standards expected by the community.
The administrative process for plumbing permits is slightly different to building.
Because we do not have a statutory plumbing surveyor equivalent to a
statutory building surveyor, the assessment of plumbing plans and site
inspection of plumbing work is required to be done by the council’s plumbing
permit authority who also issues the permit.
This was the intention of the Act. However, because a plumber can self-certify
their work (included in the Act to assist plumbing permit authorities and the
industry), the result had been that some councils neither check the plans for
compliance nor carry out any inspections. This entirely unexpected
consequence has resulted in amendments to the Building Act in November
2012 to require a council audit regime of at least 20% of jobs which would
have previously been self-certified and carry out inspections of 100% of
certain special plumbing work. A number of councils, however, which
recognise the high level of risk to their communities from non-compliant
plumbing work, carry out nearly 100% inspections or have much higher levels
of audit.
Attachment 2 maps out the certification process for a plumbing process in
Tasmania.
TasWater Certification
A recent entry into the Regulatory Framework is TasWater, created under the
Water and Sewerage Corporation Act 2012. TasWater now administers the
delivery of water and the management of the reticulated sewerage system in
Tasmania on behalf of their 29 Local Council shareholders.
Resulting from the move of these assets from Council to TasWater, a new form
of certification has been established, which is a requirement of TasWater that
owners seek and receive a certificate of certifiable works for all building work
prior to a building and/or plumbing permit being issued by Council. The
reports from Concils indicate that this is occurring irrespective of whether or
not the assets owned by TasWater are affected or nearby.
This blanket certification process appears not to be the requirement of
legislation, but a business practice adopted by TasWater and Councils as an
added protection for the water assets. The Water and Sewerage Industry
Act 2008 appears only to require this certificate to be issued when demands
on the TasWater Assets are to be affected or there is likely interference with
those assets.
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Councils are still responsible for stormwater and deal with any related issues as
part of the plumbing permit process.
Temporary Occupancy Permits
Under section 105 of the Building Act 2000 a General Manager of a Council is
responsible for issuing a Temporary Occupancy Permit (TOP). A general
manager may issue a TOP if satisfied that the building or temporary structure is
suitable for occupation.
In 2006 an amendment to Regulation 38 of the Building Regulations 2004
provided for making of additional exemptions from the requirement for a TOP
to be determined by the Director of Building Control, for tents or other
temporary structures, or buildings that are of a type or for a purpose or meet
specific criteria.
The temporary structures initially exempted in 2006 were tents, booths and
gazebos with a maximum area of 20m2 and groups of such smaller structures.
Potentially the required licences/ permits for one single event could include
all or any of the following:

A TOP (including obtaining a CLC for Building Code and Disability
Access provisions, certification of fire resistance of temporary
structures, etc.)

Place of Assembly Licence

Liquor Licensing Act Licence

Food Act Licence for food safety

Worksafe Tasmania registration for amusements (rides)

Council by-laws e.g. for permits for conducting markets
There is potential to review the relationship between the TOP process and
Place of Assembly Licensing (POAL) under the Public Health Act 1997 with the
possibility of reducing council Environmental Health Officer involvement with
POAL and instead relying more on the Building Act 2000 TOP or the essential
maintenance process.
Occupancy Permits
An Occupancy Permit is issued to signify that a building has complied to the
standard that it may now be occupied.
With a single new dwelling or commercial building this is relatively
straightforward, but when additions are made to an existing building, a new
Occupancy Permit is issued. This means that a large commercial building may
end up with multiple Occupancy Permits for different parts of the building.
This raises concerns with record keeping and access to information. In some
cases new work may contradict an earlier Occupancy Permit, especially
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where alternative solutions have been used which may not be readily
apparent to the owner, occupier, designer, builder or building surveyor.
The Occupancy Permit process needs to ensure that the Occupancy Permit
recognises safe occupancy and this must include new work on the building
taking into account any effect on existing occupancy.
Often Occupancy predates completion and as such the momentum of the
work sometimes stalls and this results in completion not being certified for a
considerable time after occupancy and in some situations completion not
being certified.
Environmental concerns
The review of building regulations is an opportunity to consider environmental
concerns and climate change impacts. For example, condensation in
buildings is becoming an issue in cool climates. Recent experience indicates
Tasmanian architects, designers and builders have differing views on how to
address condensation issues in Tasmanian residences.
Inaccuracies in Council planning overlays can cause problems with
environmental assessment of buildings. Guidelines are needed for
interpretation to ensure consistency.
Feedback from other Tasmanian Energy Assessors indicates a diverse range of
assessment methods are used, suggesting some clarification is required.
The application process appears to be discretionary, depending on council
zonings.
Bushfire ‘Code’
The Building Code of Australia (BCA) provides that for any new building work
(including alterations and extensions) in a bushfire-prone area, the building
work must comply with the requirements of Australian Standard AS3959
"Construction of buildings in bushfire-prone areas". There are extra provisions
for design and construction, over and above the usual building standards, to
minimise the risks to occupants should the building come under attack from a
bushfire. There are graded "Bushfire Attack Levels" (BALs) depending on the
level of risk. A building with a high BAL will require much higher construction
specifications than a building with a lower level of bushfire attack.
Incorporating appropriate features or measures from the Standard into the
particular building's design will reduce the effects of ember attack and
radiant heat, two of the main forms of bushfire attack.
Under Part IVA of the Fire Service Act 1979, the Chief Officer can accredit
persons to provide bushfire hazard management plans for use under the
Planning Directive PD5. The Director's Determination on Certificates of
Specialists and Other Persons has been amended to recognise these
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specialists for the provision of Bushfire Hazard Certificates, including the
assessment of Bushfire Attack Level (BAL).
What we want you to tell us
4.A
Is the current system working, where permits are issued at various
stages of the building process?
4.B
What are the problems?
4.C
How could the system be improved?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Questions
Questions – Certification
4.1
Is there a new model of certification that would better serve the building industry and
consumers?
4.2
Does the current mix of private certification and council certification work?
4.3
What level of documentation should be required from private certifiers?
4.4
Could the owner benefit from additional certificates/forms? (e.g. wet area water
proofing, Insulation, rendering, construction in accordance with the bushfire standard)
4.5
Should full compliance be certified by the lead producer – designer, builder, rather
than each designer?
4.6
Is
the
separation
between
certifier,
council
and
other
practitioners
(builder/designer/engineer) sufficient to protect the public?
4.7
Should greater use be made of certified designs (for example kit homes) to simplify
the certification process?
4.8
What should be the role of TasWater in certification?
4.9
Would it be more efficient for TasWater to also take responsibility for storm water?
4.10
How might all the different elements of certification – for example, planning, building,
bushfire, heritage and TasWater- be included in one package rather than separately
and sequentially?
4.11
Should we introduce a self-certification process similar to the Electricity Industry? What
checks and balances would be required?
4.12
Are certification techniques and practices designed to unreasonably reduce the risk
of litigation of an agency at the expense of certification efficiency?
4.13
Can the certification process be made less adversarial and more consultative?
4.14
How can we reduce paperwork in the application process, with multiple agencies
involved and fees applied at each stage?
Questions – Occupancy Certificate
4.15
Are there essential elements which should be present in a builidng which are not
presently being captured in the occupancy permit process, if yes, what are those
additional elements?
4.16
Should the Occupancy Permit process be improved to ensure that the conditions
under which a building is occupied recognise all work, past and present?
4.17
Do we need to review the conditions under which an occupancy certifcate can be
issued, to avoid inappropriate safety measures such as a locked door to an
incomplete deck?
4.18
Should a completion certificate be required within a set period after occupancy and
lack of completion therfore automatically void the occupancy certificate?
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25
Should tere be an interim occupancy certificate, with final occupancy issued once
completion is certified?
Questions – Role of Building Surveyors
4.20
Should private certification invoke ongoing responsibilities for certain areas, for
example regarding bushfire plans?
4.21
Does the legislation ensure building surveyors perform their duties consistently?
4.22
Is the definition of the role of a Building Surveyor sufficient? (Duties of Building
Surveyors and powers and duties in the Act)
4.23
Is more public awareness/involvement required as to the role and duties of the
certifier/building surveyor?
4.24
Should there be a fixed minimum fee for building surveyors (private and council) to
ensure the appropriate level of service?
4.25
Should Building Surveyors have greater role and responsibility regarding planning
schemes?
4.26
Is there support for the views of Professor Lovegrove?
o
Remove certifiers’ power to sanction alternative solutions
o
Set a minimum fee to avoid underquoting and lowering of standards
o
Introduce a peer reviewed system for approval of performance based design
scenarios
o
4.27
Boost auditing powers and resources and adopt a user pays auditing system
Who is best suited to do structural assessments (including flashing, waterproofing etc)?
Should there be a required level of skill and experience?
4.28
Can the process involving protection orders be improved, for example all necessary
orders organised at the design stage?
4.29
Should an Occupancy Permit be recognised as a permit in its own right?
4.30
Would limiting safety inspections to building surveyors deliver a better outcome, or
would this be costly over-regulation?
4.31
How do we resolve the overlap between environmental health and the role of the
building surveyor regarding certification, for example in food preparation areas,
onsite waste water management etc?
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Questions – Permit Authorities
4.32
Should the Permit Authority be a state government function?
4.33
Should the Permit Authority be a skilled accredited role?
4.34
Should there be consistency between permit authorities in regards to performance of
legislative duties?
4.35
What opportunities might there be to achieve greater uniformity in building control
across all jurisdictions, with uniformity/standardisation resulting in higher levels of
efficiency and effectiveness in the building sector?
4.36
Should permit authorities be authorised by the Director after demonstrating
appropriate skill levels?
4.37
What are the key factors which determine whether there is effective performance of
legislative duties by permit authorities? Effective performance includes timeliness,
technical accuracy and cost. What performance measures should be applied to
processing of the permit function?
4.38
Should the permit function be expanded to be a single stop shop for all stakeholder’s
permits, eg, water, sewer, plumbing, fire, planning, heritage, environmental, legal,
owner builder?
4.39
Is there clarity in the distinction between the function of permit authorities and
building surveyors both in practice and in the legislative regime?
4.40
To what extent do permit authorities require specialist reports prior to processing
applications?
4.41
Are those requests generally reasonable or do permit authorities require specialist
reports when they should be applying their own expertise?
4.42
Should the Permit process be retained with a Permit Authority as gatekeeper?
4.43
Should the permit authority function be a complete technical approval incorporating
building surveying and permit authority, or just a paper-collection exercise?
4.44
Should the self-certification provisions for plumbing work be changed?
4.45
What guidance is provided to consumers on what to expect from permit authorities in
terms of providing specialist reports?
4.46
Does the legislative regime provide sufficient clarity on the specialist information that
consumers should be expected to provide? Is this possible or is significant flexibility a
necessary aspect of the regime?
4.47
Is the requirement to provide specialist reports consistent both within and between
permit authorities?
4.48
Are permit authorities accurately applying the 2008 amendments to the Water and
Sewerage Industry Act 2008 with respect to when applications for building and
plumbing permits require a certificate of certifiable work?
4.49
What is the most cost effective system to ensure accurate determinations are made
as to when a certificate of certifiable work is required?
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4.50
Is the definition of “certifiable work” appropriate to achieve its intended purpose?
4.51
What are appropriate exemptions from the requirement for Taswater to consent to
the issuing of building and plumbing permits?
Questions – Temporary Occupancy Permits (TOP)
4.52
Should a TOP be required for private events such as erecting a wedding marquee at
a private home?
4.53
Should a TOP be reserved for public events where the public assemble for
entertainment?
4.54
Are the existing provisions for making an application to obtain a TOP for temporary
structures too difficult or complex for many applicants?
4.55
Are more exemptions from a TOP needed?
4.56
Are there unnecessary overlap/ duplication/ uncertainty regarding what permits are
needed for events?
4.57
Should granting a TOP be the responsibility of the council General Manager or should
a private building surveyor issue a TOP to the applicants?
4.58
Should a TOP for a temporary structure, be able to be used for all events in the state
for a certain period of time, rather than a new application be made to every
separate council?
4.59
Is the TOP process for the temporary use of an existing building appropriate? Or is
there a better way to deal with short term use changes?
4.60
What would be the implications of an amalgamation of Place of Assembly Licensing
with the Building Act provisions?
4.61
Is clarification needed of the roles of other authorities, for example Planning, in the
TOP process?
Questions – Energy Efficiency
4.62
Can the way energy efficiency codes are applied/implemented be improved?
4.63
Should energy efficient hot water systems be mandatory?
4.64
Should we regulate to reduce the cost of housing by encouraging owner-builders,
cooperative housing ventures, use of recycled materials, higher density developments
close to transport hubs?
4.65
Should there be increased oversight to ensure that glazing and insulation products
specified in the design are those that have been installed, and installation is correct?
4.66
Should clarification of energy assessment requirements be developed / circulated?
4.67
Sustainability and efficiency are tightly coupled with cost and productivity. How is the
Building Act driving sustainable activities?
4.68
When an addition or alteration is insulated and glazed to meet the current BCA
requirements should the existing building, where the ceiling or underfloor area of the
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existing building is accessible, be insulated to the current BCA requirements especially
the living areas that are adjacent to or matching the new work?
Questions – Bushfire Code
4.69
Can the way the Bushfire provisions are applied/implemented be improved?
4.70
Should we continue to have separate Accredited Bushfire Hazard Assessors or should
this skill set be part of the role of an existing practitioner (for example designers or
surveyors)?
4.71
What is the appropriate level of training for a Bushfire Assessor?
4.72
Do Bushfire Hazard Assessors need to be licensed by the Chief Officer of the
Tasmania Fire Service?
4.73
What is the appropriate level of training for a Bushfire Hazard Assessor?
4.74
Could Building Surveyors take on the role of bushfire assessment with appropriate
training?
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5 Standards
The Building Regulatory Framework establishes many standards for the
construction of buildings in the Tasmanian community. These may be
characterised as:

Physical - health, safety, amenity, environmental

Behavioural - professional, governance, individual obligations

Regulatory Process - order and control, consumer and industry
protection, dispute resolution
These standards may be either prescriptive or performance-based standards.
There are other standards (which are not regulatory standards) imposed on
the building industry and building owners which impact on their interaction
with the Building Regulatory Framework. These may be standards imposed by
other levels of government (e.g. the Australian Consumer Law, tax laws,
ATSIC), Professional Standards (e.g. Engineers Australia Code of Ethics, AIBS
Code of Professional Conduct), and state laws such as the Work Health and
Safety Act 2012. Perhaps those standards that are least recognised are
standards imposed by Insurers and Legal Advisers.
Although originally intended as a specification of minimum standards, the
Building Code of Australia now prescribes a number of standards relating to
safety and energy efficiency which reduce the level of risk that can be
accepted by the owner. The standards could be seen as approaching “best
practice” rather than minimum standard.
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Scope of Physical Standards
 Technical Codes such as the National Construction Code (including the
BCA & PCA including Tasmanian variations and consolidation additions);
the Health Service Establishments Code; the Early Childhood and School
Aged Care Facilities Code.
 Referenced Australian Standards: Australian Standards which are primary
standards referenced from the Codes and secondary Australian Standards
referenced from the primary standards.
 The National Construction Code (NCC) sets the public policy physical
requirements based on an agreed or inferred risk of failure and the NNC
referenced documents, usually Australian Standards, specify how to
achieve those requirements. Compliance with the NCC performance
requirements is deemed to be satisfied compliance with the Australian
Standards. Under the NCC compliance with the performance
requirements (mandatory) may be demonstrated by a number of means.
 The Building Regulatory Framework establishes the NCC as the minimum
construction standard. It may not be the optimum or maximum standard.
 Physical standards establish the requirements for the construction of
buildings, for example:

Health – light, ventilation, sanitary facilities, egress, wet areas, plumbing
and drainage, milk or meat production premises, food premises

Safety – structural, fire, bushfire, swimming pool and other barriers,
flooding, flammable and combustible or explosive goods, temporary
structures

Amenity – access, acoustics, light, ventilation, lifts

Environmental – energy efficiency, on-site waste water management,
water conservation.
 Current standards do not set durability requirements. Conformity
Assessment Bodies determinations (WaterMark, CodeMark) attest
component and system compliance with physical standards. Building
surveyors, accredited building practitioners and other experts and
specialists can certify building and plumbing compliance with physical
standards.
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Scope of Behavioural Standards
 Behavioural standards underpin the Regulatory Standards, particularly
where the Regulatory Standards are performance-based or outcomefocussed.
 Behavioural standards are applied by the Building Act on building
practitioners, plumbers, permit authorities, councils, reporting authorities
and owners by the duties imposed under Part 3 of the Building Act. These
clauses are directory and not mandatory and rely on the professionalism of
the industry and councils.
 Behavioural standards are further developed for accredited building
practitioners through the Code of Conduct in the Scheme for the
Accreditation of Building Practitioners (2008, amended 2012). This Code of
Conduct references complementary industry codes of conduct to further
define expected levels of practitioner behaviour.
 Normal business ethics, corporate and consumer law and competition
policy apply to building practitioner businesses and councils.
 Under the Complaints provisions of Part 4, Division 4 the Building Act,
accredited building practitioners can be censured by the Director of
Building Control for unprofessional conduct or professional misconduct. The
range of penalties can include training, suspension and cancellation of
accreditation. There is no equivalent provision in relation to the behaviour
of councils.
 In most circumstances an aggrieved party may appeal a decision by a
building surveyor, council, or the Director of Building Control. Further review
is available through the Magistrates Court (Administrative Appeals
Division).
 The Occupational Licensing Act 2005 requires licence holders and
nominated managers to comply with relevant codes, codes of practice,
standards and lawful instructions and is obligated to ensure that there is no
risk to public health and safety or damage to property or infrastructure.
They are also obligated to carry out continuing professional development
(if the Director Building Control has activated a scheme) and maintain
insurance. Licensed contractors also have business obligations under the
Act
 The Work Health and Safety Act 2012 places obligations on all “persons
conducting a business or undertaking” and employees and volunteers to
establish a safe and healthy workplace and carry out work in a safe
manner.
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 The Housing Indemnity Act 1992 imposes extensive behavioural standards
and states that the following warranties on the part of the builder are
implied in a building work contract for a period of 6 years:
i.
a warranty that the building work will be performed in a proper
and skilled manner and in accordance with the plans and
specifications agreed to by the parties;
ii.
a warranty that all materials to be supplied by the builder for use
in the building work will be good and suitable for the purpose
and that, unless otherwise specified in the contract, those
materials will be new;
iii.
a warranty that the building work will be performed in
accordance with the requirements of this or any other Act;
iv.
where the contract does not stipulate a period within which the
building work must be completed, a warranty that the building
work will be performed with reasonable diligence;
v.
where the owner expressly makes known to the builder, or a
person with express or apparent authority to enter into or vary
contractual arrangements on behalf of the builder, the particular
purpose for which the building work is required, or the result that
the owner desires the building work to achieve, so as to show
that the owner relies on the builder's skill and judgment, a
warranty that the building work and any materials used in
performing the building work will be reasonably fit for that
purpose or for achieving that result.
 The Housing Indemnity Act 1992 also imposes financial standards (in
relation to contract payment demands) on building contractors.
 The Building and Construction Industry Security of Payment Act 2009
establishes contractual and financial obligations for a wide range of
contractors (and owners) in the building and construction industry. It
establishes the right to progress payments and is aimed at “keeping the
money flowing” within the industry. Whilst more a Regulatory Process
Standard, this legislation establishes expected contractual behaviours
within the industry and was the result of previously poor behaviour or sharp
practices.
 The Architects Act 1929 provides for the registration of architects and to
regulate the practice of architecture. Architects must be “of good fame
and character” and if convicted of an offence or alleged to be guilty of
“infamous or improper conduct in a professional respect”, can be deregistered by the Board for “improper conduct in a professional respect”.
The Board has adopted the Architects Accreditation Council of Australia
and the Australian Institute of Architects joint code: Architects’ Model
Statutory Code of Professional Standards and Conduct.
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 In 2012/13 a Bill which was to replace the Housing Indemnity Act 1992 was
put before the Tasmanian Parliament. Whilst there was widespread
support for the intent and objectives of the Bill, the regulatory mechanisms
were criticised and the Bill failed to pass the Parliament. The Bill provided
for Statutory Warranties, for Standard Contractual arrangements including
disclosure and for affordable and enforceable dispute resolution matching
the rights of the consumer with those rights afforded practitioners in the
Security of Payments provisions. There remains widespread support for
achieving these outcomes and this review is a way to explore the
regulatory mechanisms acceptable to stakeholders.
Scope of Regulatory Process Standards
 The Tasmanian Building Framework includes the following Acts and
Regulations:
o The Building Act 2000
o The Building Regulations 2004 and the Plumbing Regulations 2004
o The Housing Indemnity Act 1992
o The Occupational Licensing Act 2005
o The Architects Act 1929
o The Building and Construction Industry Security of Payments
Act 2009
o The Resource Management and Planning Appeals Tribunal
Act 1993
o The Water and Sewerage Industry Act 2008
 There are a number of other regulatory documents authorised by the
Building Act which complete the regulatory standards. These include:
o Director’s Specified List
o Determination on Certificates of Specialists and Other Persons
o Determination on Specialists and Other Persons
o Determination on Payment of Building Levy
o Approved Forms
 These Acts of Parliament, regulations and other regulatory instruments all
serve to provide the community with an orderly and controlled process to
develop buildings, provide for administrative appeals and a process to
resolve disputes.
 These regulatory standards and others have been enacted by Parliament
or determined by the Executive to be necessary to exert the requisite level
of order and control over the building process. In the last 20 years there
has been an increased value placed on de-regulation, however market
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failures, national uniformity, competition policy, consumer protection,
environmental efficiency and other drivers have acted together to result in
the regulatory process standards we have today. Legislation such as the
Subordinate Legislation Act 1992 mandate regulatory impact statements
and ongoing reviews of current laws to ensure they do not place an
unnecessary burden on business or the community.
Standards imposed by Insurers and Legal Advisers
In addition to the government’s laws and standards, there is another powerful
agent acting on those charged with implementing and enforcing the agreed
community standards. That agent is liability.
Council officers, building surveyors and even product suppliers are known to
use an ignorance of the community standard to apply an even higher
standard “on the advice of my insurer” or “my lawyer says”. Whilst nationally,
agreements such as the Australian Building Codes Board Inter-Government
Agreement, can attempt to apply the “gatekeeper model” to restrict council
building by-laws, individual decision makers within councils are managed and
advised locally to reduce exposure to litigation.
The recent debate about Form 55 (Certificate of Specialists and Others) and
Form 35 (Certificate of the Responsible Designer) between the Director of
Building Control, building surveyors and engineers was based on issues of
liability and influenced by legal and insurer advice.
When implemented in 2004, the Building Act established a balanced duty
and liability framework. Subsequent changes, such as the removal of housing
indemnity legislation, defects insurance and a misunderstanding of the
building surveyor’s role may have skewed that framework in favour of the
accredited practitioner.
What we want you to tell us
5.A
To what extent do Standards benefit the people they are designed to
protect?
5.B
Is there a better way of managing the quality of buildings?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Questions
Questions - Benefits of standards
5.1
What does the community expect to be the benefit of standards?
5.2
Who are the beneficiaries of standards?
5.3
Should standards define durability requirements?
5.4
Should the building standard applied be registered on the Title of the property along
with building surveyor’s details?
5.5
Have we become over-regulated and risk-averse?
5.6
Do the standards prevent the problems they are designed to solve, or is it a costly
exercise that does not deliver either increased safety or economic benefit?
5.7
Do we have a knee-jerk reaction to natual disasters such as fire and flood and impose
standards that are more burdensome than the risk?
5.8
Should the Standards represent best practice, or minimum standard?
Questions - Standard setting
5.9
Is the role of standards to set proactive rules or to address known market failures
(reactive)?
5.10
Are current standards working, achieving the broader aims/ objectives of the
community?
5.11
Should the standards be free and easily accessible?
5.12
Should there be private, industry or government role/ representation with regard to
standards?
5.13
Should standard setting be more rigorous for performance based codes rather than
prescriptive codes?
5.14
Should
technical
standards
provide
verification
methods,
tests
(conformity
assessment) and measurement methods?
Questions - Research and review of standards
5.15
Should a construction code be developed which provides construction methodology
(DTS details) for, say, 90% of construction that occurs which doesn’t reference
Australian Standards?
5.16
How can we engage the consumer in setting building standards?
5.17
How do we ensure the standards can readily accommodate evolving (including
digital) technology?
5.18
What parts of the process should remain centralised? What should remain locally
responsive?
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Questions - Scope of standards
5.19
Should standards set best practice or be a minimum standard?
5.20
Should standards incorporate or be supported by technical documents or advisory
handbooks?
Questions - Certification of standards compliance
5.21
Are different processes for standard setting needed for materials, products, and
building systems?
5.22
Are Conformity Assessment Schemes such as WaterMark (mandatory) and CodeMark
(voluntary) of value to the Community?
5.23
Does self-certification add any value to the regulatory process or consumer or
guarantee a standard will be met?
5.24
Should all prefabricated buildings/ products (trusses, beams, kit buildings including
sheds and dwellings) be certified as a manufactured product and not as building
work?
Questions - Consumer aspects
5.25
Should minimum standards (in a wide range of areas) be set for contractual building
arrangements or should the contracting parties simply agree to refer to apply a
technical standard?
5.26
Does information cross-referencing as occurs in the Building Code and elsewhere
unfairly favour the knowledgeable practitioner?
5.27
Should behavioural aspects that deal with all facets of disputes, payments,
unprofessional conduct and misconduct issue etc. be removed to a separate piece
of legislation leaving the Building Act to only deal with technical, regulatory
requirements and enforcement provisions?
5.28
Should the standards and the BCA call for owners who instigate building work to have
the option to accept a certain level of risk, as long as this is reflected in the property
title?
Questions - Scope for appeals/ review/ modifications flexibility of
application of standards
5.29
Should there be a simple means to determine whether application of a mandatory
standard can be relaxed or modified?
Who determines their application or
modification?
5.30
Are standards overly prescriptive and conservative (please provide examples)?
5.31
To what extent is the application of standards by Council officers, building surveyors or
product suppliers explained to the builder and/or owner?
5.32
Should permit authorities or building surveyors be required to provide the legal advice
they are relying on, when they cite that advice as the basis for a decision made
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under the legislative regime (or for requiring further material to be provided in order to
make a decision)?
5.33
Is there an adequate understanding amongst consumers and other stakeholders as to
who is liable for losses incurred in building projects?
5.34
What examples can you provide where damages incurred in a building project have
been paid by settlement or ordered by a court?
5.35
Should Council officers who provide advice in relation to building matters be required
to be accredited by the Director of Building Control? If yes, what are the critical skills
that an officer should possess in order to be accredited?
Question – Regulatory impact
5.36
What is the likely Regulatory impact of any proposed changes to legislation and
regulation? How do we ensure productivity and efficiency gains result from change –
that is - net benefits to the community are maximised by change?
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6 Compliance and
Enforcement
Existing Compliance Model
Compliance and Enforcement of building standards and control processes
are delegated by legislation to Building Surveyors (council or private), Permit
Authorities and General Managers. The Director of Building Control has a
statutory function to audit the performance of owners and owner builders,
building practitioners and plumbers, and councils and their staff. He currently
carries out performance audits.
The cost of the compliance regime is primarily funded by the individual owner
who commissions the work, as they contract with and pay the Building
Surveyors and pay permit fees to Council.
The Audit function carried out by the Director of Building Control is funded
from the Building Levy collected by Councils as part of the permit fee and
from the Accreditation Fees paid by Building Practitioners.
Compliance with the Building Act
The primary obligation to comply with the Building Act lies with the owner. If
there is no identifiable builder the sole responsibility lies with the owner.
Owners have duties under the Act along with accredited building
practitioners and council officers.
Duties of owners
(1) The owner of a building who authorises building work in respect of
the building, so far as is reasonably practicable, is to ensure that –
(a) any person engaged to carry out the building work and
associated building work is an accredited building practitioner if
required under this Act; and
(b) correct information is provided to any person engaged to carry
out the building work and associated building work; and
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(c) the building or land on which the building work is to be carried
out is clearly identifiable; and
(d) provisions for the protection of adjoining property are carried
out in accordance with this Act; and
(e) the building is not occupied until an occupancy permit has
been issued; and
(f) sufficient information is supplied to the next owner for that owner
to maintain the building in accordance with this Act.
(2) An owner who engages a person to carry out any plumbing work is
to ensure, so far as is reasonably practicable, that the person is a
licensed plumber if so required under the Occupational Licensing Act
2005.
(3) An owner who engages a person to design plumbing work is to
ensure, so far as is reasonably practicable, that the person is –
(a) an accredited building practitioner; or
(b) a plumber.
(4) The owner of a building, so far as is reasonably practicable, is to
ensure that the building is used and maintained for the intended
purpose in accordance with this Act.
Building Surveyors
A building surveyor, as far as is reasonably practicable, is to ensure that
building work is carried out in accordance with this Act. The Building Act and
the Building Regulations explicitly establish the process for orderly control of
the construction of buildings and checking of compliance by building
surveyors.
Unusually, these statutory officers can either work for a council or in a private
business. Building inspections by building surveyors at every stage are not
strictly mandatory (the building surveyor “may inspect”) although notification
by the builder of certain stages is mandatory. The Certificate of Final
Inspection requires the building surveyor to advise the reason they did not
inspect, if that was the case.
Unfortunately inspection by building surveyors has declined in recent years
with some now rarely undertaking inspections, apparently basing their actions
on arguable legal advice that they were less liable if they did not attend the
site. Clearly this was not the intention of Parliament as building inspections
have traditionally been part of the order and control of building work.
The quantity and quality of inspections of building work varies between
building surveyors. Sometimes the fees paid do not encourage inspections or
re-inspections. Sometimes building surveyors rely on engineers conducting
inspections (but not a building surveying inspection) and further building
surveying inspections are not done. Whilst the Act was written to allow any
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person to inspect on the building surveyor’s behalf there have been instances
when inappropriate persons have been used. A number of complaints to the
Director under section 32 of the Act have identified unprofessional conduct
and professional misconduct by building surveyors in relation to inspection.
There is a view that in some private building surveying firms commercialism
overwhelms professionalism. Clearly there is a tension between compliance
enforcement by building surveyors and their likelihood of getting their next job
from that owner or builder. The Act was amended in 2012 in an attempt to link
the building surveyor more closely to the owner on whose behalf (and the
community’s) they act.
A further tension arises when local government building surveyors offer their
services at subsidised prices despite competition policy rules. Fee differences
have been identified as a cause to the “race to the bottom”. The very low
fees charged indicate either financial cross-subsidisation or low standard
services. An increased reliance on certificates by experts and others for every
aspect of design or construction may indicate lack of skills, competence,
confidence or legal and insurance advice acting in ignorance of the
expectation of the profession and government.
Permit Authorities (Building)
Originally the Act was written in the expectation that most permit authorities
would be a council administrative officer who had support from council
building surveyors and other professionals.
With the advent of private building surveyors most councils abandoned
technical building services. Some have retained building surveyors and some
even compete successfully outside their municipal area.
These changes have been recognised by the Director of Building Control and
more detailed training has been delivered to permit authorities to enable
them to more closely examine applications for a building permit to determine
whether the building surveyor has complied with administrative requirements
in his or her role (for example required referrals). The Building Appeal Board
has upheld the right to question these matters although some building
surveyors would prefer that they didn’t.
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However the Permit Authority’s duties are clear:
Duties of Permit Authorities
A Permit Authority who issues a building permit or plumbing permit, so far as is
reasonably practicable, is to ensure that:
(a) the permit is in accordance with this Act; and
(b) any required matters are taken into account in accordance with
this Act; and
(c) registers are kept in accordance with this Act; and
(d) a certificate of completion (building work) or a certificate of
completion (plumbing work) is issued in accordance with this Act.
Permit Authorities (Plumbing)
Under the Building Act the role of the Permit Authority (plumbing) is
substantially different from that of the Permit Authority (building). It is both a
technical and an administrative role. Because there is no such legislated
statutory “plumbing surveyor”, unlike for the building surveyor, the role of both
technical assessor and permit issue is combined in the role of the Permit
Authority (plumbing).
Since the Act commenced in 2004 some councils have allowed the control of
plumbing work to fall away in their municipalities. This reduction in
compliance activity was the unintended consequence of a provision in the
Act designed to assist councils in the practicable discharge of their statutory
functions in relation to plumbing inspection and control. Some councils chose
to require and rely on s. 113 certificates from plumbers certifying plumbing
work compliance, for all plumbing work. Combined with a lack of technical
expertise by Permit Authorities (plumbing) this acceptance of certification
meant that all plumbing work was self-certified in some municipalities.
This practice was of such concern that in 2012 a requirement for a minimum
compliance audit of 20% of all permits was introduced by amendment to the
Act. However, a number of councils lost the necessary technical expertise
when the state Water Corporations were set up and now need to rebuild that
skill base.
On the other hand, councils which recognised the critical health importance
of compliant plumbing work continued to exercise almost 100% inspections
and importantly still found a high level of non-compliance. It was these issues
that prompted the 2012 amendment. Some councils undertaking higher
inspection rates are now considering reducing to the 20% threshold.
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General Managers and Councils
General Managers are given the principal enforcement roles under the
Building Act. Frequently they delegate their responsibilities to other council
staff. The GM has this role because, at the time of drafting the Act, local
government preferred it be given to a person rather than just the “council”.
This was partly to clarify that it was not the corporation, nor the elected
representatives.
It has been identified that the GM has duties and responsibilities in over 45
sections of the Building Act ranging from Notices and Orders for illegal or noncompliant building work, through to Temporary Occupancy Permits and more
recently, dilapidated buildings.
With the advent of the Building Act, infringement notices were included for
the first time for offences under building legislation. Any fines levied by a
council are paid to the council. Some councils have used this facility but
others have argued it is not worthwhile. Some councils have prosecuted
offences in the courts and others are reluctant.
When a building surveyor is unable to bring a non-compliance issue during
construction to resolution they are required to refer the matter to the GM for
enforcement. Despite the clear duty under the Act to institute proceedings
against any person or body failing to comply with the Act, some councils fail
to do so, much to the reported frustration of the building surveyors.
This very variable and inconsistent response to enforcement by GMs and
Councils hinders appropriate application of the Building Act 2000 in the
community.
Other Compliance and Enforcement Models
1
The Gas Model. Under the Gas Act 2000 all gas installations are 100%
checked for compliance by a state employed inspector. This model
requires gasfitters to lodge a notice informing Government of the
installation. The Gas Inspection regime is mainly funded by the State
Government.
2
The Electrical Model. Electrical installations are self-certified by licensed
electrical practitioners and random compliance audits are conducted
by an independent government-appointed organisation. The certifying
practitioner is required to lodge a notice with the inspection
organisation.
The random audits are generated by an algorithm which factors in the
complexity of the installation and the past rate of defect of the
practitioner. If high rates of defect are being found with particular
installations then the model allows for more frequent inspection of the
work, for instance since early 2013 a 100% inspection regime has
applied to solar panel installations.
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The Electrical Inspection Regime is funded by electricity consumers via
the collection of a tariff by electricity retailers.
In both the Gas Model and Electrical Model the Inspector has the ability to
issue defect notices which require rectification action and may result in
infringements notices being issued and in some case an escalation of fines
based on failure to rectify the defect in the work within a prescribed time.
If it is determined that an alternative model for compliance and enforcement
under the Building Act should be considered, these models may be
considered in respect of personnel, fees, automatic fines (infringement
notices) and rectification actions.
Section 32 – code of conduct complaints
The Scheme of Accreditation for Building Practitioners creates a code of
conduct for the practitioners and Section 32 of the Building Act then allows
for complaints based on the code of conduct.
Section 32 provides that a formal complaint must be in writing, provide details
of the complaint and evidence to support each element of the complaint
and must be accompanied by a statutory declaration. Complaints are
subject to a six year limitation.
As the complaint process is a disciplinary process under a code of conduct
the Director is unable to:

resolve contractual disputes;

order a refund or compensation; or

order the return of progress payments
Generally, the complaint must relate to the code of conduct and generally
cannot be about performance or defective work. This is in contrast to the
provisions applying to Plumbers, Electricians and Gasfitters in the
Occupational Licensing Act.
Once a complaint is lodged with the Director of Building Control the
complaint will go through an initial assessment process.
The initial assessment includes:

referral for alternative dispute resolution

request for further information;

acceptance of the complaint for investigation; or

a complaint may be dismissed at this point by the Director if it appears
to be lacking in substance.
If the complaint is accepted, the Building Practitioner is notified and sent a
copy of the complaint along with any documents included.
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Upon completion of an investigation the Director will make a decision as to
whether a practitioner is guilty or not guilty of unsatisfactory professional
conduct or professional misconduct. If found guilty, a range of penalties can
be imposed. Penalties include:

caution or reprimand the practitioner

impose an appropriate condition upon the practitioners accreditation

direct the practitioner to complete a course or training

direct the practitioner to report on their practice

impose a building order directing the practitioner to carry out certain
works at their expense

impose a fine

suspend or cancel the practitioner's accreditation.
If a practitioner's accreditation is suspended or cancelled, the Director also
has the authority to publish the details relating to that suspension or
cancellation.
The Building Practitioner has a right to appeal the Director's decision.
Consumer education should be considered as part of any revised Building
Regulatory Framework. Significant issues can be avoided by encouraging
consumers to improve their knowledge of their rights and responsibilities.
What we want you to tell us
6.A
Is the current Compliance and Enforcement model working?
6.B
How can it be improved?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Questions
6.1
Should the duties of building practitioners be added to the Building Act?
o
Not to do new work over work that is already defective
o
Responsibilities to future property owners
o
Certifying performance characteristics for the solution
o
Accountable for defective works
o
Where the owner relies on the practitioner’s skill and judgment, to warranty that
the building work and any materials used in performing the building work will be
reasonably fit for that purpose and for achieving the desired result.
6.2
Should Clause 1(b) of the Duties of owners be reviewed/repealed?
6.3
Should Building Surveyors be engaged by the Councils or the Director rather than by
the owner to avoid potential conflict of interest when required to report defects when
the owner is also the employer?
6.4
Should Building Surveyors, rather than Councils, have full responsibility for administering
the Act for work that they are engaged in?
6.5
Should there be statutory plumbing surveyors including private plumbing surveyors?
6.6
Are General Managers the appropriate person to undertake the compliance and
enforcement role allocated to them?
6.7
How can we make it easier for the General Manager to ensure compliance or
undertake enforcement procedures?
6.8
Are performance audits (aimed to develop compliance) enough?
6.9
Should the Director have enforcement powers to intervene in disputes involving
councils?
6.10
Should the complaint process be widened to the performance of the building
practitioners?
6.11
Should any of the key compliance officers (the Building Surveyor, Permit Authorities,
General Managers or staff of the Director) be authorised to issue on the spot defect
and rectification orders and/or infringement notices?
6.12
Should the Director have the power to require rectification or suspend or cancel a
builder as is common in other states?
6.13
Should we implement a hybrid mediation/arbitration mechanism for resolving
owner/builder disputes, similar to the one used in Queensland?
6.14
Should there be some restriction on the overlapping roles that people can undertake?
(for example, builder – building surveyor)
6.15
Should it be possible to contract out liability?
6.16
Should we have a different model of compliance and enforcement, for example
similar to the gas and electricity industry?
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Should the dispute process be more focused on reaching a resolution and less
legalistic?
6.18
What are the critical elements we need to check or inspect once building work has
commenced?
6.19
What should be the mandatory minimum level of inspections, and should there be a
penalty for not complying with this level?
6.20
Should there be stronger penalties, and/or zero tolerance for builders doing the wrong
thing?
6.21
Should the Building Surveyor be accountable for the performance, suitability and
timeliness of the works with powers to delegate the accountability down?
6.22
Where should compliance reside? Who should be responsible?
6.23
Should the Building Surveyor be able to assess overall quality?
6.24
Should the Building Surveyor hold and release stage funds once the stage is certified
complete?
6.25
Should previous rectification records be accessible to other authorities to issue
stronger fines for further non-compliance issues?
6.26
Does
the
current
compliance
and
enforcement
regime
effectively
deliver
rectification?
6.27
Should there be an obligation on Director Building Control to ensure consumers’ views
are adequately represented?
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7 Protection
Consumer and Industry Protection
The Building Act, the Building Regulations, the Plumbing Regulations, the
Housing Indemnity Act, the Occupational Licensing Act, and the Architects
Act all have consumer protection as one of their core objectives.
The Building Act, the Occupational Licensing Act, the Architects Act and the
Building and Construction Industry Security of Payment Act (BCISPA) all have
industry protection elements common in licensing and accreditation regimes.
The creation of a special class of person entitled to perform work at the
exclusion of others creates a market imbalance which must be justified in the
public interest. This was demonstrated to the satisfaction of Treasury and the
Parliament when the legislation was introduced.
The BCISPA was introduced to protect the financial viability of subcontractors
as well as primary contractors by “keeping the money flowing” from the
owners, through the principal contractors, subcontractors and suppliers.
In Tasmania a person who does building or construction work, or supplies
goods or services for building or construction work, has a legal right to recover
progress payments for work done and goods and services supplied.
This is known as Security of Payment and consists of a number of steps that
can be taken to ensure payment is made.
The counter-balancing consumer protection legislation, the Residential
Building Work Quality (Warranties and Disputes) Bill was aimed at continuing
the existing warranties in the Housing Indemnity Act and providing consumers
with accessible alternative dispute resolution. Currently the only building
dispute resolution process is under the contract provisions or through the
Courts. Neither process is particularly consumer friendly.
Contracts such as the industry developed residential contract may appear as
leaning in the favour of the builder. Most owners do not have sufficient
knowledge to understand this unless they seek advice from an appropriately
experienced lawyer. The Royal Australian Institute of Architects contracts
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make the architect the ‘umpire’, with a duty to ensure that the rights and
obligations of both owner and builder are met.
BSOL also has a role in ensuring consumers are aware of their rights. An
essential part of any framework is raising the awareness of consumers
regarding topics such as:
 Owners’ duties under the Act
 The permit processes, including Planning, Building, Plumbing and
Special Plumbing Permits
 Roles of various building practitioners
 Owner Building
 Contracts
 Occupancy
 Temporary Occupancy
In 2013, the Select Committee on The Costs of Housing, Building and
Construction in Tasmania found that the current processes for dispute
resolution in the building and construction industry was highly ineffective and
did not provide acceptable resolution of complaints, and that an improved
dispute resolution process must urgently be developed. The Committee
further recommended that a disputes mechanism be established involving a
Building Disputes Commissioner with expertise in one or more of the following
areas:
 Arbitration;
 Natural justice and procedural fairness;
 Building and construction principles; or
 Engineering principles.
The Committee also saw a need to involve specialist consultants to assist in
arriving at a determination; and if necessary the involvement of independent
arbiters similar to the role in the current Building and Construction Industry
Security of Payments Act 2009.
The Housing Indemnity Act 1992
The Housing Indemnity Act protects consumers by:

Providing that work must be at a minimum applicable standard

Providing for timeframes for the completion of work

Limiting the amount that can be asked for as a deposit or progress
payment.
There is no requirement for owners to take out insurance for building in
Tasmania. Prior to July 2008 this Act also provided that Builders hold housing
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indemnity insurance which allows for the homeowner to claim against the
insurance policy in the event that the work was defective or unable to be
completed due to death or insolvency of the builder.
Under the Ministerial Insurance Order applying to accreditation, builders are
required to have contract insurance in place which covers the builder and
owner in the event of loss or damage to materials for a particular contract.
The Building Act 2000
The Building Act protects consumers by:
 setting the standards for building and plumbing work;
 clearly expressing duties of owners, building practitioners and councils;
 requiring responsible building practitioners to demonstrate qualifications,
competence and insurance and to act in accordance with a Code of
Conduct – the accreditation requirements;
 establishing a complaints process to sanction unprofessional conduct by
building practitioners;
 limiting the work that can be performed by owner builders;
 providing an appeal mechanism;
 establishing an ordered process for development and restricting
construction on sites impacted by natural hazards or contamination;
 establishing certification and inspection processes; and
 establishing the legal defence of prior compliance.
The Building Act protects practitioners by:
 setting the standards for building and plumbing work;
 clearly expressing duties of owners, building practitioners and councils;
 by providing an appeal mechanism;
 establishing an accreditation scheme which limits the involvement of
others in the industry;
 establishing the 10 year liability cap and a defence in relation to
performance solutions; and
 facilitating professional development, insurance standards and public
liability in respect of personal injury and property damage.
Under the Ministerial Insurance Order applying to accreditation builders are
required to have contract insurance in place which covers the builder and
owner in the event of loss or damage to materials for a particular contract.
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The Occupational Licensing Act 2005
The Occupational Licensing Act protects consumers by:
 setting standards to ensure that persons carrying out any occupation,
trade or calling, that may be a risk to public health, safety, property or
infrastructure are appropriately licensed;
 establishing a licensing and inspection regime for fit and proper qualified,
competent and licensed contractors and practitioners in the fields of
plumbing, gas-fitting and electrical installation;
 establishing duties and codes of practice in relation to prescribed work;
and
 incorporating disciplinary provisions.
The Occupational Licensing Act protects practitioners by:
 establishing a licensing scheme which restricts the involvement of others in
the occupation;
 allowing for continuing professional development to maintain or develop
skills (this protection has not been implemented in a systemic manner); and
 assisting licensed practitioner compliance
guidelines and codes of practice.
through
administrative
The Architects Act 1929
The Architects Act 1929 protects the public by ensuring that only practitioners
registered by the Board may describe themselves as architects in Tasmania.
Under the Architects Act 1929 (the Act), it is an offence for anyone who is not
registered with the Board to call themselves an architect.
For full details of the prohibited practices please refer to Section 19 of the
Architects Act.
By restricting the use of the term “architect” to persons registered under the
Architects Act 1929, members of the public can be assured that an architect
has completed a recognised course in Architecture, had a minimum of two
years practical experience and completed an Architectural Practice
Examination to demonstrate that they have a range of competencies as
outlined by the National Architectural Competencies Standards.
The Board can investigate complaints and discipline architects if they have
acted unprofessionally or breached the Act.
The Civil Liability Act 2002
Part 9A of the Civil Liability Act 2012 contains proportionate liability provisions
with respect to building claims.
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Victorian Domestic Building Consumer Protection
Reform Strategy
The Victorian Government released the Domestic Building Consumer
Protection Reform Strategy on 27 May 2013. It sets out changes including:
•
establishing a 'one stop shop' for consumers and builders
•
improving registration standards, oversight and discipline
•
improving consumer information
•
improving dispute resolution
•
improving mandatory insurance.
The reforms are being introduced during 2013 and 2014. Implementation will
be staged to give consumers, builders and insurers time to change their
practices.
The Strategy includes a Domestic Building Consumer Protection Fund which
was announced on 8 April 2014, in response to the perceived gaps in the
current system that can leave some consumers vulnerable and impose
additional costs on building practitioners, consumers and taxpayers. Builders
in Victoria are already required to have insurance in place before
undertaking work for contracts over a threshold amount. This provides some
protection for consumers if a builder defaults on a contract.
Further information about this model is included in Attachment 1 at the end of
this document.
Land records
In Tasmania, the quality and quantity of information available for property
titles can vary widely, depending on the Permit Authority, building surveyor
and diligence of the home owner in ensuring any work on the property goes
through the appropriate approval process.
This means that when you buy a house there is often not a complete record
of all the work that has been done on that property.
The Land Information System Tasmania (LIST) holds limited information about a
property title and is accessible to the public, though there is a cost for
obtaining copies of some documents relating to the title.
A more comprehensive system is the Land Information system in New Zealand
(LINZ) which looks after millions of land records for the Crown, including
property titles, related land documents and survey records. LINZ provides
public access to core survey and title records.
The land records that LINZ holds are mostly used to:
 record registered transactions – showing when property is ‘dealt with’
including when it is bought or sold
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 identify ownership of ‘registered interests’ – such as a bank which holds a
mortgage on the property, or an easement that gives a neighbour the
right to use some of the property
 identify legal (survey) boundaries
 record survey dimensions.
What we want you to tell us
7.A
Do consumers and people within the building industry have an
appropriate level of protection?
7.B
How can we improve the level of protection whilst maintaining fairness?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Questions
7.1
Should the Director or another relevant administrator have an active role in dispute
resolution or should it be left to the Courts?
7.2
Is there an alternative model to resolve disputes involving low estimated rectification
costs but potentially excessive expert opinion costs?
7.3
Should the previous appeal process be restored, with an emphasis on making it less
litigious and more informal?
7.4
Is the Code of Conduct process protective of consumer rights?
7.5
Is the Code of Conduct for building practitioners an appropriate instrument to protect
the rights of the practitioner?
7.6
Should immunity from liability under section 251 of the Building Act 2000 include
councils and/or their building surveyor employees when one or both are carrying out
the statutory functions of a building surveyor?
7.7
Where should the power to order rectification rest?
7.8
Should the Act prescribe processes for dealing with businesses closing down during
building works?
7.9
Should the operation of the Civil Liability Act 2002 in respect of the liability of various
categories of building practitioner be included in the review?
7.10
Should civil liability attach to a breach by a building practitioner of its duties under the
Building Act 2000?
7.11
Are the public being sufficiently protected? Should there be mandatory inspection
points?
7.12
What records should be kept at each stage of the process? Who should be
responsible for keeping these records? Where should they be kept? Who should have
access to them? Is there a benefit to including photographic evidence?
7.13
What protection is there for the public if a building surveyor resigns or otherwise
becomes unavailable? What should happen to the records?
7.14
Should the practitioner be liable for their works, or the underlying works their works are
built on, not meeting the standard required by the NCC?
7.15
7.16
What consumer protection is available:
1)
During the building process?
2)
During the re-sale of the building?
How do we ensure that a purchaser of an owner/builder property has the same sort of
protection as someone buying a property built by a registered builder and that the
building is built to the same standards?
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Questions - Security of Payments
7.17
Does Security of Payments provide a level of protection to practitioners below the
court level that is not available to consumers?
o
Is it practical?
o
Do we need it?
o
Should the protection be extended to other occupations?
7.18
Should stage funds be held in trust until a stage is certified complete?
7.19
Should stage charges more reasonably align to the actual cost of the stage?
7.20
Does the legislation need amending to ensure that “fair” building claims or the ability
of owners to fight “unfair” building claims are not impacted by artificial timelines?
7.21
Should there be staged payments for building surveyors?
Questions - Housing Indemnity Act
7.22
Has the removal of housing indemnity insurance for builders been a benefit to
builders? Has it delivered a benefit to consumers?
7.23
Is this Act effective in affording a level of protection to consumers?
7.24
How do we protect consumers from buying a defective/illegal property?
7.25
Is any additional protection required in the sale of an owner/builder property?
7.26
Is there a more effective mechanism than that provided by this Act?
7.27
Should persons who perform pre-purchase building inspections be licensed and
insured?
Questions - Warranties
7.28
Do we need statutory warranties?
7.29
Should all accredited building practitioners be required to hold professional indemnity
insurance?
7.30
Is contract insurance for builders a consumer protection and does it work effectively?
7.31
Should a scheme for domestic builders requiring performance bonds (eg bank
guarantees) be considered instead of insurance?
7.32
Should a consumer be liable for works that a certified practitioner has completed?
7.33
Should consumers be protected through a no fault scheme?
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Questions - Contracts
7.34
Should there be compulsory contracts for private domestic construction?
7.35
Should there be industry body contracts?
7.36
Do the current contracts sufficiently protect the consumer, or is there a need for a
new type of contract for projects that do not involve an architect?
7.37
Should all signed documents be considered part of a contract?
7.38
Should variations to a contract be required to be in writing and signed by both
parties, where the cost of the variation is above a certain amount?
7.39
Should a detailed plain English specification form part of the contractual package?
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8 Professional Education,
Training and Development
All accredited building practitioners are required to meet qualification and
experience requirements under the Minister’s Scheme for the Accreditation of
Building Practitioners. Some existing practitioners were “grandfathered” into
the scheme in 2004 based on evidence of current practice.
New qualifications have been developed over the last 10 years under the
Australian Qualifications Framework through the auspices of the Construction
and Property Services Industry Skills Council (CPSISC) for builders, building
designers, building designers (fire), access consultants, energy consultants
and building surveyors. Membership of various national forums has enabled
Tasmania to have input to these qualifications and align them with
accreditation and licensing requirements or minimum qualifications required
under section 266 for a Certificate of Other. From time to time the Scheme
has required amendment when vocational education qualifications
changed. University level qualifications have largely remained unchanged.
For the various Categories and Classes of building practitioner there is a
qualification and experience requirement aligned to the various scopes of
work. In general as the scope of work increases the education and
experience requirements also escalate. Accredited practitioners are also
bound to work only within their area of competence notwithstanding their
assigned scope of work. Some practitioners have reduced, or occasionally
increased, scopes of work because of interstate mutual recognition or other
personal circumstances. The scope of work of each accredited building
practitioner is set out on the Justice accredited practitioner website.
The competency-based qualifications AQF 1 to AQF 6 are intended to deliver
competent practitioners to industry and experience requirements should not
be necessary. However, the experience of regulators around Australia is such
that they do not yet have the confidence in the VET systems to delete
experience requirements from accreditation and licensing standards. Some
regulators have managed to have “capstone” tests included in qualifications
(electrical) or apply them after graduation. One element missing from pure
qualifications-based standards is the mentoring period required for new
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graduates to meet an industry “experienced practitioner” standard such as
for Engineers and Architects.
The Act and the Scheme require all accredited building practitioners to
undertake Continuing Professional Development (CPD). The purpose of CPD is
to ensure practitioners maintain currency and continuing competence for the
benefit of the consumers of their services. Re-accreditation does not require
demonstration of continuing competence (as some occupational licensing
schemes do) but uses the CPD requirement as a proxy.
The required number of CPD points (or hours) varies with profession. Some
professions have CPD requirements through their institutes or associations
which are aligned with those professional requirements.
For example:
 building surveyors (30)
 architects and building designers (20)
 engineers (30)].
The Scheme requires 12 hours for builders. CPD in Tasmania is a broadly
defined professional development opportunity and is not required to be
delivered by specifically approved or registered training organisations.
CPD broadly includes, but is not restricted to: –
 Formal education and training activities;
 Informal learning activities;
 Conferences and meetings;
 Presentations and papers; and
 Service activities.
CPD consists of a variety of learning activities and must be relevant to the
practitioner’s area of practice. CPD may include any activity that enables
the practitioner to: –
 Extend or update their knowledge, skill or judgment;
 Become more productive;
 Understand and apply advances in technology;
 Face changes in the industry;
 Improve their individual career paths and opportunities for advancement;
 Better serve the community.
The Scheme allows for mandatory CPD but to date this has not been
exercised.
One of the lessons learned from the changes to legislation and the Building
Code in New Zealand in the early ‘90s was the very high importance of
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professional education, training and development,
changes to legislation, codes and standards are made.
particularly
when
When the Building Act and new regulations were introduced in 2004 extensive
training was offered and undertaken by council employees, building
surveyors and many industry participants. That training focus has been
maintained by the Department with annual information sessions on the NCC
in the regions and other topical training sessions from time to time.
In 2013 the Select Committee on The Costs of Housing, Building and
Construction in Tasmania recommended that the industry would be better
served with voluntary CPD, though Building industry groups should be
encouraged to promote CPD to its members, possibly as a requirement of
membership. Specific mandatory CPD could be ordered by the Director of
Building Control where the practitioner has been found in breach of
compliance issues.
The training of council permit authorities has been identified as very important
as frequently council staff are drawn from other areas of local government
with little or no knowledge of the building regulatory framework. Permit
authorities have been offered 1-2 day introductory training up to twice a year
and Permit Authority Forums are organised four times a year. Building
Standards and Occupational Licensing has also offered and sponsored
Certificate IV in Government (Statutory Compliance) on two occasions. Up to
45 participants have undertaken this qualification. This course will be offered
again in 2014 and probably future years. This course will be offered to building
surveyors and their staff. On occasion participation has also been a
disciplinary requirement.
Building Surveyor Forums have been held in the past and now are
programmed for four times a year. These sessions offer the opportunity for
building surveyors to discuss common issues between themselves and with the
Director and staff. It also enables the Director to communicate his
expectations to these statutory officers.
Tasmanian Building and Construction Industry Training Board
The Act introduced a levy of Training 0.2% of the estimated value of building
or construction work costing more than $12,000. This levy is paid into a fund
which is administered by the Building and Construction Industry Training Board
to provide the necessary training.
The purpose of the Fund is to provide for the building and construction
industry to make vital improvements in industry training and a significant
contribution to the future growth and stability of the industry. For this reason,
the establishment of the fund was supported by all sectors of the industry at
the time it was created.
All the money collected through the levy is spent on training through the
decisions of the Building and Construction Industry Board. The Board is an
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independent organisation, controlled by the industry and committed to
providing quality, relevant training to ensure a constant supply of skilled
personnel.
The Board has identified that the major benefits to the industry, include:

Overcoming the shortages of skilled persons which occur when industry
downturns result in cutbacks in training.

Introducing a more equitable way of funding training through a levy
applied across the whole industry.

Providing regular, quality training outside the apprenticeship system at
a level which had not existed previously.

Improving the industry's skills base, efficiency and productivity.
There is also a need for greater consumer education, given that the decision
to build a house or contract a builder is one of the most significant financial
decisions a person will make during their lifetime.
What we want you to tell us
8.A
What would a good model of professional education, training and
development look like?
8.B
How should it be funded?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
Building Standards and Occupational Licensing
Department of Justice
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Questions
8.1
Is the current Continuing Professional Development regime adequate?
8.2
How could it be improved?
8.3
What mechanisms should be available to the Director to ensure the quality of
Continuing Professional Development or should that be left to the market?
8.4
Should the Continuing Professional Development Regime also be mandatory for
Permit Authorities?
8.5
Regarding Mutual Recognition, should we be prescribing some local training for
interstate applicants?
8.6
Should the range and scope of courses and apprenticeships be reviewed?
8.7
Should the Continuous Professional Development (CPD) requirements for plumbers be
implemented?
8.8
Should there be a similar requirement on plumbers (as per electricians) to do a set
number of supervised hours before becoming a contractor?
8.9
Has there been any real benefit in certifying builders when it is the building
practitioner’s output that affects the quality and fit for purpose of the building
element?
8.10
Is it appropriate that persons are required to determine their own level of
competency?
8.11
Is the current career curriculum for accreditation and licensing adequately serving
those to be competent in the work they become accredited or licensed to do?
8.12
Should there be a different approach to training and accreditation for Building
Surveyors?
8.13
Should training be multi-disciplinary?
8.14
Should CPD include core units and have commonalities?
8.15
Are all parts of the industry benefiting from the training Levy?
8.16
Who should have access to funded training (from the traning levy)?
8.17
Is there a different way to provide for training to the Building and Construction
Industry, other than via a levy?
8.18
Should there be a legislative requirement that the training levy be used to fund CPD
where the Director of Building Control determines that the CPD is compulsory for a
class of Building Practitioner?
8.19
Should the threshold of the Building Levy be raised to a realistic figure (eg $25-30,000)?
(is the building levy the same thing as the training levy? Need to be consistent)
8.20
Should the Building Levy threshold be indexed?
8.21
Is there a better way to collect the Building Levy (eg set on contract value rather than
quoted value)?
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What is the appropriate level of training and accreditation for an Accredited Bushfire
Hazard Assessor?
8.23
Is there a more equitable way to fund training?
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9 Accreditation, Licensing and
Registration
Accreditation
Under the Building Act building practitioners must be accredited under the
Scheme approved by the Minister. It is not a scheme of occupational
licensing. Not all builders, building designers, engineers, architects and
building surveyors need accreditation – only those in positions of responsibility
in relation to a given Building project. This generally means those persons
within organisations authorised to enter into contracts or engagements.
Usually it means accredited partners or directors but a business can operate
as a building practitioner if a nominated employee is accredited.
In response to the building industry calls for the benefits of “registration”, a coregulatory accreditation scheme was authorised by Parliament. At the time it
was envisaged that there would be different schemes for different professions
and even competition within the professions. The Minister established
Guidelines for the Schemes and called for expressions of interest. Although
various groups and combinations initially expressed interest, only the
Tasmanian Compliance Corporation followed through to deliver an
acceptable scheme in compliance with the Minister’s Guidelines and was
appointed in 2004 to undertake accreditation for all categories of building
practitioner.
Proof of current practice was the requirement for many existing building
practitioners to get initial accreditation whist others had the required
qualifications, registration and experience. The Minister of the day was keen
not to disadvantage existing practitioners. Entry to accreditation in the various
categories and classes was established by qualification, experience and
insurance, and where applicable aligned with similar systems interstate.
Tasmania is unique in accrediting all responsible designers, builders and
building surveyors under the one consistent scheme. Accreditation does not
extend to trades and sub-trades as some interstate licensing schemes do.
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This attempt at a statutory accreditation scheme run by private enterprise
eventually failed for mainly financial and political reasons and the
accreditation role was transferred to the Director of Building Control in 2006.
The requirements for accreditation of Building practitioners in Tasmania are
outlined in the scheme for accreditation. Included in the Scheme is an
explanation of:

each category and class of accreditation;

the qualifications, experience and competence required to achieve
accreditation for each category and class of accreditation;

the code of conduct and complaints process;

the audit process for accredited practitioners;

continuing professional development;

personal probity; and

the statement of financial capacity which builders must lodge.
The Insurance requirements for accredited practitioners are listed in the
Ministerial Insurance Order.
Building practitioners are subject to a code of conduct and the Building Act
provides for conduct complaints to the Director of Building Control. The
powers of the Director relate to the conduct rather than the standard of the
work and the outcome is subject to Appeal to the Resource Management
and Planning Appeals Tribunal and then to the Magistrates Court
(Administrative Appeals Division) and ultimately to the Supreme Court – a four
tier process.
Building practitioners must also do a minimum level of continuing professional
development during each year and provide proof of the activities at the time
of their accreditation renewal.
Licensing
A different approach to ensuring practitioners are appropriately qualified is
the Occupational Licensing model.
The Occupational Licensing Act 2005 (which was phased in over the last few
years) requires that the trades of Electrical, Plumbing, Gas-fitting and
Automotive Gas-fitting are licensed in Tasmania. The licences are required for
prescribed work and it is unlawful to undertake prescribed work without a
licence.
For each of these trades there are practitioners (those doing the work) and
contractors (those selling you the service) - consumers need to find a
contractor who provides them with a practitioner though in a small business
the contractor and practitioner may be the same person.
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Electrical, Plumbing and Gas-fitting apprentices have up to 30 days to apply
for a practitioner licence upon completion of their training.
Electricians must complete the Contract of Training time period with their
employer (4 years) as administered by Skills Tasmania before being eligible to
apply to be licensed.
Electrical apprentices must hold a practitioner’s licence of the relevant class
for 12 months before being eligible to be a nominated manager. They must
also do further training.
Roof Plumbing is prescribed work in Tasmania which is consistent with only one
other Australian jurisdiction; generally roof plumbing can be undertaken by
Builders in other States and Territories, provided it follows an approved design.
Roof plumbing specifically includes work relating to stormwater drainage
(including a roof gutter, roof valley, metal roof ridge, metal roof weathering, a
roof downpipe and any flashing associated with any such gutter, valley,
ridge, weathering or downpipe). It does not include roof sheeting.
This means that a Tasmanian builder can install roof sheeting, but none of the
other roof components specifically related to stormwater drainage.
The Occupational Licensing Act provides for the Administrator to require
continuing professional development and to establish codes of conduct,
however to date no scheme have been established for CPD.
The application process also allows the Administrator to prescribe particular
training, in addition to the minimum training, as a condition of an individual’s
licence. Minimum requirements are prescribed by the Administrator in the
form of published determinations.
Complaint under the Occupational Licensing Act includes complaints about
the performance of the work.
The role of Administrator is currently undertaken by the same person as the
role of Director of Building Control.
Registration
Under the Building Act the Director was required to keep a Register of owner
builders. Initially this was to be populated by information from start work
notices forwarded from building surveyors but was changed to a system of
application and referral by the building surveyor to the Director (as a referral
authority) by amendment to the Building Regulations. In 2012 this legislative
scheme was updated and transferred to the Building Act and includes a
requirement for an owner builder awareness course.
Owner builders are persons who are not in the business of building and who
have not commenced more than two buildings in ten years. All owners of the
land on which an owner-built building is to be built must be registered, but
only one is required to do the owner builder awareness course and hold an
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OHS white card. Applications for registration are made by real persons (not
corporations) through the building surveyor to the Director.
Registration of owner builders can be for all classes of buildings although it is
predominantly for dwellings. The Act contains exemption provisions to allow
community organisations to become owner builders if the Director is satisfied.
Registration of owner builders is primarily to ensure that owner builder
properties are meeting the same standards as those built commercially and
also as a protection of the accreditation scheme whilst at the same time
providing a right, for those that want to, to build two buildings in ten years.
Whilst the Owner Builder must pay for the training they are required to
undertake they do not pay a fee for registration, whereas Building
practitioners do.
In 2013 a Select Committee on The Costs of Housing, Building and
Construction in Tasmania recommended that an owner builder be limited to
three projects in ten years, rather than two, on the basis that the Director of
Building Control provides information to those owner builders on the benefits
of using registered building practitioners for their project.
What we want you to tell us
9.A
Is the current
appropriate?
accreditation,
9.B
How could it be improved?
licensing
and
registration
system
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
Building Standards and Occupational Licensing
Department of Justice
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Questions
9.1
Are there other trade occupations which should be subject to a licensing regime
under the Occupational Licensing Act and if so which trades?
9.2
Should Builders be absorbed into the Occupational Licensing Regime – allowing for
practitioners (employees) and contractors?
9.3
Should all accreditation of Building Practitioners be absorbed into the regime created
by the Occupational Licensing Act?
9.4
Should a code of conduct and/or a continuing professional development scheme be
applied to trade occupations under the Occupational Licensing Act?
9.5
Does the current system of accreditation under the Building Act provide sufficient
protection for owners as to the quality of practitioners?
9.6
Should Owner Builders be required to pay a fee for registration?
9.7
Should there be greater control and penalty over builders misusing accreditation
numbers?
9.8
Should the accreditation process be more stringent? (for example sitting before an
expert panel, and random audit/questions following accreditation?)
9.9
Should the Director’s powers be increased when removing accreditation?
9.10
Is there a better process than the current one which requires both RMPAT and the
Magistrates Court and can take up to three years due to the appeals process?
9.11
Should there be greater control around the use of “owner builder”? How do we avoid
builders using this classification to avoid their obligations under the Act? What
additional protection might be needed to ensure a new purchaser has the same sort
of protections as someone buying a house from a registered builder? (see also
question under Indemnity in Chapter 7)
9.12
Should there be some consistency in approach between accreditation of builders
(done under Building Act) and electricians, plumbers etc done under Occupational
Licensing Act?
9.13
Should the accreditation categories be streamlined? (only 16 classes, but many subclasses within these)
9.14
Should Planners be accredited and/or licensed?
9.15
Should Architects be treated separately?
9.16
Should there be a greater emphasis on attracting people from the building industry to
be inspectors?
9.17
Should there be levels of accrediation for building surveyors – for example starting out
as a “limited” inspector authorised to inspect outbuildings? What level of
qualifications and experience would be appropriate for an “unlimited” building
surveyor?
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67
How do we ensure that practitioners continue to develop their skills to meet an
acceptable accreditation level? How do we assist existing practitioners to upskill as
standards and legislation change?
9.19
Should there be a “probation” period for builders and other practitioners to
demonstrate a certain level of competency before gaining full accreditation?
9.20
Do we need to make it easier for interstate practitioners to work in Tasmania?
9.21
A minimum fee has been suggested for Building Surveyors. Should a minimum fee
apply to any other professions involved in building regulation?
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10 Defining Work
Building Work is defined in the Building Act and the Building Regulations then
prescribe some work and exempt certain types of work from requiring a
permit even though they are building work.
building work means work relating to –
(a)
erecting, re-erecting, constructing, altering, repairing, underpinning,
demolishing or removing a building; or
(b)
adding to a building; or
(c)
excavating or filling incidental to an activity referred to in paragraph
(a) or (b); or
(d)
any other prescribed work;
(1)
A person must not carry out any building work unless a building permit is
in force that allows the carrying out of that work.
Penalty:
In the case of –
(a)
a natural person, a fine not exceeding 100 penalty units; or
(b)
a body corporate, a fine not exceeding 500 penalty units.
(2)
Subsection (1) does not apply if the proposed building work –
(a)
is exempted under the Building Regulations from the requirement of a
building permit; or
(b)
in the opinion of the building surveyor before building work
commences, is either a minor alteration of, or a minor repair to, an
existing building and the cost of the work does not, or is estimated to
not, exceed $5 000.
(3)
Within a specified period of forming an opinion under subsection (2)(b),
the building surveyor is to notify the permit authority in writing of that
opinion and his or her reasons for it.
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Where a building surveyor has formed an opinion that work is minor
alterations or minor repairs, he or she may exercise or perform any of his
or her powers or functions in relation to inspections of work under Part 8
as if the work were the subject of a building permit.
The exemptions are in the Building Regulations 2014.
prescribed work means any work that is –
(a)
usually carried out in the course of an occupation, trade or calling to
which this Act applies; and
(b)
determined by the regulations to be prescribed work; and
(c)
not excluded from the application of this Act by the regulations;
A full list of prescribed work and exemptions is available in the Occupational
Licensing Regulations 2008.
Issues which may require attention, such as emerging technologies similar to
current exemptions, require Ministerial permission to draft regulations and then
are required to go through a reasonably complex process to become law.
For a range of issues within Occupational Licensing, such as training
requirements and the classes of licences, the Administrator is able to make a
determination which the Administrator then publishes.
What we want you to tell us
10.A Is the current system of defining work appropriate?
10.B
How could it be improved?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Department of Justice
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Questions
10.1
Is the current system of defined work in and out by regulation responsive to industry
needs?
10.2
Does the current definition of a building or “structure” in the Act need clarification to
avoid certification processes in inappropriate circumstances?
10.3
Should the Director and Administrator be able to provide determinations as to what is
or is not work?
10.4
Is the $5000 minor alteration or minor addition for building work amount provision
sufficient or should the amount be higher? If so what amount should apply? Does this
threshold serve any community benefit? Should indexation be applied?
10.5
Should the $5000 minor alteration or minor addition amount be reflective of the
materials practices employed in the various solutions?
10.6
Should non-structural building work – for instance some office fitouts which include
work such as carpeting, painting, fixing workstations, realigning light fittings etc. – be
considered as minor alterations or minor repairs regardless of amount?
10.7
Is the current definition and list of exclusions or exemptions in both the Building and
Occupational Licensing Acts appropriate – what should be included and/or what
should be excluded?
10.8
What should be exempted?
10.9
How can we ensure that the cost of certification does not exceed the value of the
work?
10.10
Should a full list of prescribed work and exclusions be more easily reachable and
useable?
10.11
What factors are important to deciding whether works should be exempt from the
requirement to obtain a building permit?
10.12
Is the cost of works a reasonable basis for making the decision?
10.13
What are examples of works that you believe should be exempt, but in your
experience, have required a permit?
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11 Planning
The Tasmanian Government’s Resource Management and Planning System
(RMPS) is an integrated approach to development assessment and
environmental planning in Tasmania.
The RMPS is underpinned by the following objectives:
 To promote the sustainable development of natural and physical resources
and the maintenance of ecological processes and genetic diversity;
 To provide for the fair, orderly and sustainable use and development of air,
land and water;
 To encourage public involvement in resource management and planning;
 To facilitate economic development in accordance with these objectives;
and
 To promote the sharing of responsibility for resource management and
planning.
Generally, developments are assessed under the Land Use Planning and
Approvals Act 1993 and environmental impacts are assessed and managed
under the Environmental Management and Pollution Control Act 1994.
Local councils are responsible for developing, administering and enforcing
planning schemes to regulate land use and development within a local
government area.
The Tasmanian Planning Commission (TPC) performs a variety of functions in
respect of land-use planning and development under several pieces of
legislation including: the Land Use Planning And Approvals Act 1993, the State
Policies and Projects Act 1993, the Public Land (Administration and Forests)
Act 1991, the National Parks and Reserves Management Act 2002 and the
Water Management Act 1999.
The Resource Management and Planning Appeal Tribunal (RMPAT) deals with
planning and resource management decisions.
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In Tasmania, as in other jurisdictions, the development process moves through
various design and assessment stages including initial concept, design
proposal, development application, development assessment, completion of
building plans, checking of construction standards and final building
approval. These stages should encourage high quality developments which
meet the design, planning, environmental, and safety standards required by
the community, legislation and the Building Code of Australia.
Development approval ensures the development is suitable for an area and
complies with any regulations or rules that may apply to a piece of land and
with planning requirements for the development.
Building approval ensures the proposed building will be safe and structurally
sound and will provide the required levels of fire resistance, durability,
amenity, access for people with disabilities and energy efficiency.
However there are a number of overlaps between the Building Act and
LUPAA/planning schemes; both systems address land instability, erosion,
dispersive soils, floor levels for flood prone land and contaminated land, and
the Building Act has a definition of building line.
This review of the Building Regulatory Framework provides a good opportunity
to explore any perceived overlaps and resolve which system is best
positioned to achieve a minimum level of regulation necessary in a risk
management context.
Opportunities may exist in the planning process to introduce standardisation
and certification of model designs for simple 1 a class dwellings in order to
reduce costs, particularly in respect to supporting new development in
affordable housing. Regulation can provide a basis for achieving greater
economies of scale, scope and specification, in building. For example, the
creation of common zones (across jurisdictions) with agreed climate,
exposure to bush fires, floods, earthquakes, cyclones and engineering/design
responses could significantly streamline the planning approval process.
What we want you to tell us
11.A Do the current processes for planning and building work well together?
11.B
How could they be improved?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
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Department of Justice
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Questions
11.1
What opportunities might there be to streamline the approval processes with regard
to
climate,
exposure
to
bush
fires,
floods,
earthquakes,
cyclones
and
engineering/design responses?
11.2
Should all the different elements, for example bushfire, planning, heritage, where
possible, be included in one package rather than separately with crossovers resulting
in duplication?
11.3
Should it be possible for some processes to happen concurrently rather than
sequentially? (For example planning, then building – these two could happen at the
same time as long as land has the appropriate zoning. Energy assessment could
happen concurrently with construction).
11.4
What opportunites might there be to improve interactions between planning and/or
heritage control and building control where that interaction brings about inconsistent
processes and/or decision making within the overall framework? Should there be
greater detail as to which agency/body has responsibility for each stage of the
process?
11.5
How can we ensure that planning and/or heritage processes don’t inadvertantly
modify the outcome of standardisation supported by the BCA?
11.6
Is planning and heritage compliance adequately dealt with at the end of the
process? Should there be one approval system?
11.7
Planners are not currently audited. Should they be?
11.8
Should the planning application purely relate to land use, while any conditions
relating to the building are managed under the Building Application? For example,
specificying installation of tanks as part of planning scheme?
11.9
Should people be able to accept the risk for building a shack in a bushfire area? Can
future consumers be protected by clearly stating limits to use on the title, for example
“This can never be a prinicpal residence”?
Building Standards and Occupational Licensing
Department of Justice
74
12 Plumbing and Building
Plumbing work and plumbing installations in Tasmania are regulated under
the Building Act and the Plumbing Regulations 2004.
The Tasmanian Plumbing Code is the standard for plumbing work and
plumbing installations. The Code enables the adoption of the Plumbing Code
of Australia (which is Volume 3 of the National Construction Code) as the
appropriate standard for plumbing work, plumbing installations and plumbing
products in Tasmania.
The Tasmanian Plumbing Code is a performance based code which provides
for performance based solutions. The Building Act requires all plumbing work
and plumbing installations to meet the performance requirements.
The requirements are designed to ensure that any plumbing and drainage
work or installation is fit for its intended purpose, does not have an adverse
impact on the environment and can continue to function as intended
without excessive maintenance. Being a performance based code it allows
for any solution to the performance requirements provided they are
supported by the appropriate assessment methods.
Many users of the code however, will choose to use the code without making
use of this opportunity by complying with prescriptive provisions such as
Australian Standard 3500 Plumbing and Drainage Standards.
To carry out plumbing work a permit from the council permit authority is
required unless the work is exempted under the Plumbing Regulations 2004.
All plumbing work must be carried out by licensed plumbers unless that work is
exempt from licensing under the Occupational Licensing Act 2005.
The Building Act 2000 requires an owner who engages a person to design
plumbing work to ensure that person is either an accredited building
practitioner in the category of designer or a plumber certifier licensed in the
class of the work being designed. A designer of plumbing work is to ensure
there is sufficient information in their design to enable assessment of
compliance with the codes and regulations and be sufficiently detailed for a
plumber to be able to carry out the work.
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Roof plumbing is prescribed plumbing work in Tasmania, that is, it can only be
carried out by a licensed plumber. This approach has been adopted in
Tasmania, Victoria and NSW. In other jurisdictions it is required to be part of
an approved design, but installation can be carried out by a builder.
What we want you to tell us
12.A Do plumbing and building processes work together to provide the best
result for practitioners and consumers?
12.B
How could they be improved?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
Building Standards and Occupational Licensing
Department of Justice
REVIEW OF THE TASMANIAN BUILDING REGULATORY FRAMEWORK
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Questions
12.1
Why is the plumbing certification process different to building?
12.2
Should the plumbing design be integrated into the building design rather than
requiring a separate certificate?
12.3
Should the plumbing surveying have the same statutory status as the building
surveying?
12.4
Should plumbing surveying be self-funded or privatised?
12.5
Should there be a minimum level of plumbing inspections, for example 20%?
12.6
Should site hydrology be included in mandatory inspection?
12.7
Is it appropriate to come up with alternative solutions (vs standards or performancebased)?
12.8
Should building and plumbing permits be integrated to provide an overview of the
whole project?
12.9
Should the occupancy certificate be dependent on the issue of a plumbing
certificate?
12.10
Should roof plumbing work be restricted to plumbers, or could it be carried out by a
builder, to an approved design?
12.11
Would better integration of plumbing and heritage regulation avoid inappropriate
works?
12.12
How is the habitable building’s occupancy to be determined (for new building work
and any additions) to ensure the onsite wastewater management systems have the
appropriate upgrade?
12.13
Do we need a Plumbing Code of Tasmania? How do we ensure that it is relevant and
accessible to the practitioners for whom it is intended?
12.14
Should there be some discretion as to when plumbing permits are required, for
example for farm buildings? Is it clear when plumbing permits are required?
Building Standards and Occupational Licensing
Department of Justice
77
13Appeals and the Review of
determinations or
applications
Building Regulatory system includes many decision makers against whom a
formal appeal or a review may be made. Their decisions may affect  property rights,
 the value of a building and the way it can be used,
 construction costs, and
 rights to practice as a building practitioner/ licensed tradesperson or
contractor
There are also applications regarding whether a particular provision of the
building or plumbing regulations apply, for example Disability Access .
Decision makers under the Building Act 2000 include
 Permit Authority – Building and Plumbing (permits) and application of
regulations
 General Manager (TOP, Building and Plumbing Orders, Emergency Order)
 Council (demolition order)
 Building Surveyors (CLC, technical application of regulations, occupancy
permits, orders, inspection directions)
 Reporting Authorities and Function Control Authorities are both “decision
makers” and can be also formal appellants for the review of granting of
building permits and occupancy permits
 Owners (protection work disagreements or no insurance before work starts)
 Director of Building Control under the Building Act 2000 and as
Administrator of Occupational Licensing (responsibilities for accreditation,
registration of OB, licensing of plumbers, electricians and gas fitters,
decisions regarding complaints of Unsatisfactory Professional Conduct/
Professional Misconduct, change of BS)
 Landslip A areas building applications – decision of the Minister
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There are many types of appeals and applications under various legislation
that all affect building and plumbing work.
This makes it difficult for a lay person to navigate through the system.
There are different appeal bodies such as the Resources Management and
Planning Tribunal and Magistrates Court
There may be an industry and consumer perception that appeals are not a
cost effective method to enforce individual rights or are too expensive to
challenge poor decision making.
Tasmania is only state with a three-tier appeals process:
1. RMPAT
2. Magistrates Court
3. Supreme Court.
Planning uses a two-tier system:
1. RMPAT
2. Supreme Court.
Effectively, the tribunal replaces the Magistrates Court and rules on law rather
than on the merits of case.
There is some concern that the current three-tier approach can result in long
delays in resolving disputes.
The current model does not deal satisfactorily with vexatious complaints
which may hold up a legitimate development for an unacceptable length of
time.
The Victorian model, which is common to other jurisdictions, also has a
mediation process before any formal court procedures are instigated.
What we want you to tell us
13.A Is the current appeals process fair and accessible to all stakeholders?
13.B
How can we improve it?
You may wish to refer to some of the supplementary questions below to see
the issues other people have raised, but there’s no need to answer every
question.
Building Standards and Occupational Licensing
Department of Justice
REVIEW OF THE TASMANIAN BUILDING REGULATORY FRAMEWORK
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Questions
13.1
Is the current system for “building” appeals or review, fair, impartial, speedy, cost
effective and not unduly legalistic/ cumbersome?
13.2
Should we return to a less adversarial model with mediation as the first step?
13.3
Is there a perception that the decision makers (e.g. councils ) know how the “system”
operates, have unlimited money to spend on lawyers at appeals and can fight
appellants, so why bother challenging them (no chance of winning an appeal)
13.4
Are potential appellants unaware of their rights? What can be done to educate
persons affected by decisions as to their appeal rights?
13.5
In 2012 RMPAT took over the role of the Building Appeal Board. Has that been a
successful changeover? By what criteria?
13.6
Should there be a single appeal body for all types of “administrative decision
making”?
13.7
Is there scope for better “alternative dispute resolution” instead of formal appeals?
For example the Building Regulation provides for a “review” by the General Manager
of the Permit Authorities decisions. Does that work or is it in reality a conflict of interest?
(as no separation of decision makers)
13.8
Should government outsource review functions to other bodies? Such as the
adjudicators appointed by Nominating Authorities under the BCISOP Act 2009?
13.9
Should the DBCDirector of Building Control have a role to mediate appeals or
intervene in disputes rather than litigants going to an appeal body?
13.10
Are practitioner appeals (relating to complaints/ decisions by the Director of Building
Control) too slow and cumbersome?
13.11
Should there be a different appeal system for practitioner appeals (accreditation
decisions and complaints) as it relates to their “livelihood” as distinct from the appeals
just about a building permit condition?
13.12
Is there a fair balance between natural justice of persons and “getting the job done”
in a timely and cost efficient manner (example is disputes over protection work that
become vexatious or frivolous as neighbours are already in dispute over other
matters).
Building Standards and Occupational Licensing
Department of Justice
PO Box 56 Rosny Park, 7018
Phone: 1300 322 366
Email: wstinfo@justice.tas.gov.au Visit: www.justice.gov.au