Submission from Sutherland Shire Council
to the Independent Review of the Building Professionals Act 2005
In response to the
Discussion Paper May 2015
Endorsed by Sutherland Shire Council
Meeting Date 29/06/2015
Report Number EHR114-15
“A certifier is only responsible for certifying whether the project
meets both planning requirements and building standards. A
builder is responsible to the owner for producing the building
within the specifications and to a suitable standard.”
(Discussion Paper May 2015, page 59)
Legislative structure for building sector regulation
1.
Is there merit in consolidating the
legislative framework for building sector regulation and control in
one part of the EP&A Act, expressed in plain English, on a
principals based approach, with its own objectives and
incorporating any reforms approved by the Government
There is benefit in consolidating legislation and expressing it in plain English.
The building industry is governed by a plethora of standards, specifications,
best practice guidelines and legislation. Practitioners in the building industry,
including the builders and tradesmen who are implementing development on
site and the certifiers who are checking are not always proficient in the
reading of legalese. Couple this with poorly set out and worded development
consents means deciphering the best outcome can be extremely difficult, and
this assumes the builders and certifiers are using the correct standards to
begin with. Sutherland Shire Council commonly encounters difficulties with
certification of works in bushfire prone areas for instance, where through
ignorance the incorrect materials and building standards are used. Plain
English and consolidation would assist.
2.
Are there sufficient additional
benefits involved to justify consolidating all building legislation in
one Act, including the Home Building Act 1993
Yes, similar reasoning to above.
Administrative structure for building sector regulation
3.
Are there sufficient benefits to justify
the consolidation of building regulation administration?
Table 4 outlines advantages and disadvantages of various models. Capture
of the oversight body by any party isa real risk in the building industry. The
current model has operated to the greater benefit of all parties EXCEPT the
broader community who find themselves confused by the plethora of
legislation and standards and not necessarily well advised or well represented
by either their builder or their certifier when things start to go wrong. Any
option which offers a greater degree of simplification even if it is not a model
of total consolidation, but can remain independent and offer robust and
transparent decision making is best – Option 2 – creation of a single body for
Draft Submission from Sutherland Shire Council
Page 2
accreditation /licensing of certifiers and other building professionals is the
preferred model. It does not offer full consolidation of the range of building
regulation but it builds on the strengths of the current model (integration of
planning and building policy) while also offering some protection from
“capture”.
Building Professionals Board governance
4.
Should the BP Act provide the BPB
with the power to employ its own staff in addition to seconding
staff?
Providing the BPB remains accountable to the Department of Planning and
Environment for oversight it makes sense for the BPB to have both budget
and staff. The BPB is best place to understand the demand on its resources,
and it is neither well funded nor well resourced currently.
5.
Is there merit in the functions being
undertaken by BPB continuing to be undertaken by a statutory
board?
The best protection for the wider community is for the BPB to remain a
statutory body. There is no guarantee that this offers the best service to the
community – a case in point is the level and quality of service offered by the
Land and Property Information Department – that is to say none – however
the best option for proper governance of the building industry is a statutory
board.
Framework for cooperation between private certifiers and local
government
6.
Would the framework of cooperation
developed by the BPB Local Government Reference Group
provide an effective approach for interaction between private
certifiers and local government
The activities of this group are not well publicised, nor is it clear how
individuals or organisations are selected for participation in this group. Some
transparency around selection into the Reference Group would assist all
parties to have greater confidence in the Group. Nevertheless generally a
reference group is a good starting point.
7.
Should certifiers be required to report all cases o
Draft Submission from Sutherland Shire Council
Page 3
Resourcing in council could be an issue. However being informed is a good
first step. All unauthorised development should be reported – a reporting
template that assists the certifier in providing some minimum documentation
and assists the council in prioritising the report should also accompany a
requirement of this nature.
8.
Is there merit in a partnership model
between the State and local government in the area of certification
and building regulation enforcement?
A partnership model offers the best chance of success. Local government is
experienced in regulation enforcement. Certification in NSW is still recent
enough that a significant proportion of certifiers are ex-local government.
There is therefore a lot of common ground and experience to build on.
Strata and community title developments
9.
Would enhanced oversight of the
certification process assist in addressing the problems
experienced by owners of strata and community title
developments?
Start the revolution from the bottom up – unskilled labour is increasingly used
to carry out skilled work with little or no supervision from an experienced or
qualified tradesman. The building industry has been flooded with unskilled
labour, while education and training has been deconstructed for builders and
trades. TAFE funding and resources are continually under threat and being
reduced, while the Apprentice system no longer functions as intended. In this
context the certification system is probably the least dysfunctional area of the
industry – although it is fatally flawed given that the builder / developer is
paying the certifier to certify their work.
A requirement for trades to produce certificates of compliance for their work
that is backed by insurance would transform this issue. As it is now the
insured certifier is left with a fist full of certificates that have little or no real
value.
Further, lack of accountability of big developers in the building industry is an
endemic problem that goes beyond the ability of an individual certifier to
overcome on a specific site. Participation by developers in the Building
Compensation Fund would offer them some incentive to provide a better
quality development.
Draft Submission from Sutherland Shire Council
Page 4
Use of e-technology
10.
W
ould an electronic system for development applications
complying developments and building certification generate
useful information for governed and the industry and improve
regulatory performance
The certification practioners are by and large is low tech in their administration
and based on very simple business models. Sutherland Shire Council
accepts certification in soft copy – only to find most of these documents
provided in a manner which is administratively cumbersome (ie one big
document, via CD or USB which is hundreds of pages in length, and usually
password protected – which means to store them electronically they must be
printed and then scanned). In order to overcome this problem an online
lodgement page was developed – this attempt has not thus been successful
because certifiers want to lodge the documents with the registration cheque
provided by the applicant, which means mail or face to face lodgement only.
The use of a corporate credit card would be sufficient to overcome this
problem, and a process to charge the $36 registration fee back to the client
(or charge them upfront on appointment) however there was a surprising
reluctance, even amongst a couple of larger certification operatives to change
their practices.
Applicants using the DA process are usually able to accommodate softcopy
lodgement – Sutherland Shire Council has had great success in requiring this
since 1 January 2015, and has 100% compliance. However with respect to
CDCs – these documents are of much poorer quality, frequently hand drawn
and not to scale. Regulation to drive change, and red tape reduction to create
incentive is required simultaneously in order to create sufficient momentum to
shift this end of the building industry.
11.
D
o you support the adoption of standard forms for development
applications, CCs CDCs and OCs?
Standard forms for DA’s have largely been achieved via the EP&A regulation.
CC’s, CDC’s and OC’s would similarly benefit. The BPB offers some
templates but these are over complicated. There are other standard
documents that would benefit from a template approach, such as NOPOS
which could set out the minimum information required for the certifier to
provide both to the offender and to Council in order to provide a better
opportunity for council to properly prioritise the complaint and then act.
Template NOPO could also assist in the current problem for council’s having
Draft Submission from Sutherland Shire Council
Page 5
to reissue NOPOS due to lack of confidence in the initial NOPO issued by the
certifier.
Building regulation and certification – planning and approval stage
12.
D
o you support as ways of improving the planning and approval
stage:

L
imiting development approval to a concept approval

A
standard set of development application conditions

I
ndependent assessment of instances where a council
seeks to impose higher building standards than the
BCA

I
mprove information to the community on developments
in their area?
The EP&A Act is already premised on a DA being a concept approval. There
are however many instances where this approach fails both neighbours who
are impacted by unplanned or changed elements to this “concept” approval
and property owners who are left with no real understanding how they have
fallen foul of Council’s compliance section due to less capable or less
scrupulous builders and tradesmen.
A standard set of development application conditions that offered
commonality across NSW would be highly valuable, so long as it did not
restrain the ability of assessment staff to address one off or merit issues.
Comparison of conditions of consent across local government shows that
layout and language do not always assist either the builder or the certifier in
implementing the requirement of the development consent. Sutherland Shire
Council has developed and used template conditions for many years.
Experience shows that well developed and considered template conditions
also assist assessment officers in dealing with common issues in a
standardised manner, to the great benefit of the local industry who deal
regularly with the council.
13.
W
ill a significant improvement in the process of certification to
allow commencement of building work be provided by;
Draft Submission from Sutherland Shire Council
Page 6

S
tandardising the information to support the CC/CDC

S
tandardising the report to support alternative solutions
with content confirmed by the certifier

R
eplacing the not inconsistent test with the consistent
test for both CCs/CDCs and OCs
Standardising the information that must be provided to support the CC / CDC
would be highly beneficial. Overtime some specific requirements have been
set out in the regulations as to the information required to support a
development application. Similarly requirements for CC and CDC could also
be specified.
Standardisation for documentation supporting alternative solutions would also
be helpful – currently the certifier is required to either accept at face value the
alternative solution or undertake research which they may not be either
confident or well enough resourced (with either time or information) to take –
provision of a standard report would assist, especially if it requires the
provider to reference the sources and supporting information as part of the
package presented to the certifier.
14.
D
o you support combining the roles of certifying authority and
principal certifying authority?
Separation of certifier and PCA is not a significant problem. Although
combining the roles may offer the opportunity to reduce some red tape, this is
a marginal benefit. Separation of the roles provides the opportunity of peer
review, and may assist in a more thorough check of approvals as the certifier
cannot be certain they will be the PCA. This uncertainty means that errors in
signing off a CC / CDC may be more open to scrutiny.
15.
F
or a CC or CDC is there merit in separating the assessment of
conformity with planning requirements to be handled by the
consent authority from the assessment of building requirements?
A major component of CDC consideration is assessment against given
criteria. The planning considerations within a CDC are usually minor. To
separate would see a reversal in current legislation and the streamlining affect
that CDCs created, ie it would defeat the purpose of its introduction.
Draft Submission from Sutherland Shire Council
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Building regulation and certification – building construction stage
16.
W
ould the current problems with the building construction stage
regulatory approach be addressed by

E
nsuring the builder receives the certified plans and
CC/CDC

D
ocumenting and requiring adherence to good certifier
practice

P
otential additional critical site inspections based on risk
assessment

R
eplacing interim and final OCs with an OC and
development completion certificate

R
equiring projects with missed mandatory inspections
and unauthorised work to obtain an OC

E
ffective financial sanctions for unauthorised work
It must become accepted practice by builders and trades that all plans in play
are stamped by council or the certifier. Builders and tradies need to work
based on this premise and refuse to work on unstamped plans. This must be
a fundamental basic premise such that unstamped plans can be assumed to
be unauthorised and thus accompanied by a level of risk. As Council’s move
increasingly to electronic determinations this can be easier to enforce as
stamped plans can be made available more readily. Some councils are even
posting stamped plans on the website after determination for download and
print. The availability of digital determinations is becoming more widespread
and part of accepted local government practice. It is time for the in=trodcton
of penalties for using unstamped documentation. This would have the added
incentive of moving all parties toward appropriate technologies for the
acceptance, assessment and issue of documentation.
A Practice Guide setting out the requirements of a certifier would be a useful
tool in both informing practitioners and also managing unrealistic expectations
of complainants.
Additional critical site inspections based on risk assessment is a sensible
notion, and needs swift implementation.
Draft Submission from Sutherland Shire Council
Page 8
Separation of the use of the building (via OC) and certification that planning
and building conditions are met via a completion certificate is an attractive
notion, as it accommodates requirements imposed during the development
assessment that may not relate to the specific use of the building but may
have been required as a social or environmental amenity consideration.
However currently the OC process is fairly flawed now as there isn’t sufficient
incentive by many applicants to ensure they seek an OC. There would need
to be some pretty strong incentives to ensure that the completion report was
seen as a valuable commodity by applicants to ensure that this system
produced the desired result.
Currently unauthorised work can be covered by a building certificate. This is
assessed by Council. The first test in the council assessment is a check as to
whether the unauthorised work would be “approvable’ under the planning
instruments. If it is not it may be minor or insignificant enough to be allowed
to stand, and a building certificate may be issued if the building work is
satisfactory. If the unauthorised work is significantly outside the planning
instruments it may be that a building certificate is not issued and instead
compliance action is taken. Given that this is a local government process,
with a planning element, building certificates probably remain the best
approach.
17.
D
o you support the option of requiring the creation and
maintenance of a building Manual for all class 1b -9 buildings?
Section 3.5. Building Maintenance
3.5.1 Compliance Schedules in lieu of Fire Safety Schedules (FFS)
There is no discussion as to how the Building Manual and its main
components such as schedules will interact with current legislation. This
needs consideration/discussion.
It needs to be established that the overarching responsibility for the document
(Building Manual) is vested with the owner as the building manual will evolve
over time and needs to be passed successfully from one owner to the next on
sale of the premises, and Strata managers should be informed of this process
and Manual. Therefore there needs to be a legal mechanism in place to
ensure hand-over of the manual on sale of the premises, otherwise the idea of
continuous updating is lost and the exercise is a waste of time.
Enforcement provisions (but would need to be under separate legislation ie
EPA Regs 2000) and may be necessary and by ensuring it is the owners
responsibility means that enforcement if required is an easier process.
Draft Submission from Sutherland Shire Council
Page 9
This is a creative solution however the success lies in the execution; currently
the Fire Safety aspects of certification is the point of greatest concern and risk
of certifiers because installers and trades are self certifying without the
requirement of appropriate qualifications, training nor are they backed by their
own insurance.
18.
D
o you support the reform of the fire protection system
certification, including the proposed revised role for Fire &
Rescue?
3.6 Fire Performance & Safety (p44)
Schedules and Certificates will play an integral role within the Manual.
Ensuring accuracy of Fire Safety Schedule (or Compliance Schedule) and
sufficient information in them and or Fire Safety Certificates will be crucial in
establishing proper certification and ongoing maintenance.
These matters when handled poorly can and do have consequences for
building owners and the community, in the Annual Fire Safety Statement
AFSS process.
In some cases, certifiers provide to Council a list of documents relied upon
with Occupation Certs. In many cases, the documents relied upon by certifiers
are poorly worded, quote incorrect or outdated legislation, and in many cases,
wrong standards of performance. It is considered that the proposed idea of
moving to a Building Manual could result in Certifiers dumping a bundle of
poorly worded contractors certificates which don’t accurately reflect the
performance standards listed in the Schedule,( yet are accepted by the PCA
without proper consideration or any scrutiny) and relied upon as third party
certification. Unfortunately, building owners in many cases don’t have the
expertise to understand the documentation. Subsequent PCAs would also
have considerable difficulty trying to resolve/understand inaccurate
information. The documents would result in confusion and additional costs to
the community and perhaps poor maintenance which may have disastrous
consequences.
Examples In many cases the schedules and certificates are not detailed and
could/should be in order to identify and give locations and details of
Lightweight construction used in the building rather than just the current
industry practice of listing BCA C1.8 & Spec C1.8 as the standard of
performance. These BCA Clauses offer no benefit in terms of standards of
Draft Submission from Sutherland Shire Council
Page 10
performance. The clauses give no help to owners and or contractors in
attempting to locate and assess/maintain it. Poor quality Schedules result in
poor maintenance practices. This then has potential for fire safety
consequences litigation etc.
Many Certifiers don't accurately list the current/relevant version of Alternate
Solutions.
Some certifiers submit third party certs that are listed in the "documents relied
upon" for fire safety measures that are not listed in the Schedule, and don't
bother to clarify the situation.
There is also a trend in certifiers listing AS1530.4 and or the rest of that suite
as a standard of performance. It cannot be listed as a standard of
performance.
Unfortunately many certifiers believe that they only have to list fire safety
measures that are listed in Cl 166 of the Regs 2000 as they don’t fully
understand the provisions within the Regs 2000 that any component/system
or the like can and should be included as a fire safety measure.
Eg Exit latches are not listed in the statutory list, nor are bollards, but these
play an important part in Fire safety provisions and most certifiers don't list
them in schedules. NB It may help to amend the outdated Cl166 of the Regs
2000.
Recommend It is suggested here that certifiers be provided with better
education or be provided with clear practice guidelines in or as part the
Revised BP Act in handling Schedules and Fire Safety certs and how those
documents work with Occupation Certs and Schedules.
Furthermore, Fire Safety Certificates can be signed off by the building owner
or their agent who generally has no knowledge of fire safety or even what they
are doing or why. The Fire Safety Certificate is an important document that
should require a suitably qualified and experienced person too sign off on it,
such as a certifier with accreditation equivalent to the class and type of
building to which the fire safety certificate relates.
P46
Final dot point; “provide fire & rescue with the power to issue Penalty
Infringement Notices”
There is no discussion on this or how/why it is relevant to the Building
Professionals Act or the discussion, yet
In short – in response to Q18 - the answer is “yes in principal only” - it would
be useful to know what the F& R is wanting to issue PINS on and why the
Draft Submission from Sutherland Shire Council
Page 11
question is framed with next to no direct correlation in the discussion as to
what the PINS would be issued on.
19.
W
ould the options for change set out in this paper be helpful in
improving the supply of qualified certifiers and making it a more
attractive profession?
Yes – the changes set out in this paper would assist given that it includes
sharing of responsibility for building outcomes with the trades who implement
the built form. At the moment too much of the risk and responsibility lies with
the certifier, while the public does not sufficiently understand the limits of the
role.
20.
I
s there an adequate pathway that allows a certifier to progress
from the A4 category (building inspector) right through to A1
(building surveyor-grade 1) if desired?
No, accreditation has been captured by established certifiers, and is
reminiscent of a closed shop.
21.
W
ould the proposed changes to the accreditation process address
the main deficiencies in the current system?
The process of accreditation, particularly to A1 requires greater transparency
and overhaul. Over sight by an academic or practice based third party such
as TAFE should be considered.
22.
D
o you support the use of an evidence based framework and
guide for the review of the accreditation scheme?
A good start would be to work with universities to build a really strong practical
component into their course requirements. UNSW has done this with the
Bachelor of Town Planning Course with great success. Students take a one
year break from study in their third year to seek supervised work experience.
Some courses require 90 day placements, but UNSW requires a full year.
With such a lengthy period for work experience, there is strong rational for the
organisation employing the student to offer proper work place training and use
it as a recruitment strategy for entry level positions. It is a model that
Sutherland Shire Council has sought to follow with other scarce professions
Draft Submission from Sutherland Shire Council
Page 12
such as both building surveyors and engineers, but with little success as it
works best as a course requirement set by the educational establishment.
23.
A
re the following sufficient to create a suitable level of
accountability for certifiers in respect to their regulatory role”

I
mproved transparency of the performance of a certifier
with a Practice Guide

P
roactive investigations and audits

I
ncreasing the awareness of the role of certifiers?
All three points above would go some way in assisting in greater
accountability for certifiers in respect of their regulatory role. Sutherland Shire
Council has a very active Compliance team and therefore has developed
some very good working relationships with certifiers, and this has significantly
improved accountability of certifiers with respect to the broader community.
However this approach requires significant investment by local government
and this is not always possible.
Builders and trades being held to greater accountability through training,
insurance, and statutory oversight would also go a long way to improving the
success of the system in NSW.
24.
D
oes the establishment of certifier panels by councils have merit?
This is a creative idea which is worth exploring provided that it did not become
another opportunity for “closed shop”.
25.
D
o you support an expanded program of proactive investigations
and audit by the BPB and if so how should they be conducted?
Audits and proactive investigations would have the impact of improving
performance. Consequences of such an audit would be identification of areas
for improvement by way of recommendations which would then be followed
up. Failure to implement would result in the imposition of a penalty A process
like this could then be used to assist in the development of best practice guide
lines and would also provide the BPB with firsthand experience of some of the
new technologies and processes that are being used to offer better
administration and decision making. Currently the certification process is
Draft Submission from Sutherland Shire Council
Page 13
beset by old fashioned and cumbersome business models and technology.
These make it difficult to implement process efficiencies and reduce red tape
for all parties. This is made even more difficult where certifiers are sole
traders and unwilling to implement, invest or are unaware of technology.
26.
W
ould introducing a demerits point system and issuing more
penalty infringement notices provide a more timely mechanism
for disciplining certifiers who have not performed to a required
professional standard?
This appears to be a sensible solution if resourced adequately for proper
implementation.
27.
W
ould you prefer an online system for the lodgement of
complaints?
On line lodgement of all forms of application (not only complaints) is a must.
28.
W
ould the establishment of an education and training program for
inquiries, complaints and audits together with a building services
advisory hot line address the needs of certifiers for training and
information support?
The above is sensible. Currently the BPB is seriously under resourced such
that a timely response is rare, although if you are lucky enough to get a
response the information is appropriate, to the point and useful.
29.
I
s it possible to achieve full competitive neutrality without either
councils ceasing to offer certification services, or private
certifiers being abolished?
This (competition between private and council certifiers) is possibly less
important than it first appears, especially while Council remains the certifier of
last resort. Further, Council’s can position themselves to offer a specialised
service that, due to risk (ie bushfire, flooding) requires a further level of
complexity that private certifiers may not wish to engage in. The fatal flaw is
the tension between the certifier as a public officer but also provide of a
purchased services, with builder as customer is more of a risk than lack of full
competitive neutrality.
Draft Submission from Sutherland Shire Council
Page 14
30.
W
ould certifiers insurance issues be addressed by expanding
certification and accreditation to cover critical building elements
and design, and by implementing an industry scheme to cover
the gap in insurance cover from certifiers leaving the industry or
where certification changes for a particular project? If not what
additional problems remain?
31.
D
o you agree that there is not a “last person standing” problem
arising from the different liability cover between builders and
certifiers? If it does arise, please explain the problem created.
In response to 30 &31 above, building companies have a different legal
identity to certifiers. This is extremely problematic ... phoenixing – cheap shelf
companies that disappear as soon as a project is complete, is a recently
recognised phenomena that places increasing and unfair pressure on the
certifier when the builder has failed to produce a building with the
specifications and to a suitable standard. The builder, the principle offender,
is gone and only the certifier is available for prosecution.
32.
D
o you favour a simplification of the requirement for swimming
pool fencing certification requirements, moving from three
standards to one?
Yes – the current system of swimming pool certification is over complicated by
a desire not to impose costs for upgrading of fencing on pool owners with old
pools. This has created significant complexity for certifiers as efficiencies
cannot be leveraged from streamlined administration. This is because an
overwhelming amount of research is required to check which standard applies
to all but newer pools. This is a real difficulty for local government who are
further hamstrung by a regulated fee.
Moving to a single standard uncomplicates the system, puts the compliance
burden back on the pool owner and offers an economy of scale that can be
worked to the advantage of the broader population of pool owners who pay
the reduced pool inspection fee. The current process just leaves councils
agitating for a higher fee because the work cannot be done under the
regulated fee with three standards. Three standards also prevents the
development of a successful market solution, which is sorely needed given
the number of pools in NSW, as only local government can be counted on to
hold sufficient information to determine which standard applies to a pool.
Draft Submission from Sutherland Shire Council
Page 15
33.
W
ould setting charges for both councils and the State to recover
processing costs for development applications and CDCs be the
most equitable and efficient approach?
DA fees have not been reviewed in over 15 years. As applications become
more complex, due to both increased residential densities, and increased
difficulties on site (as easy sites have been taken up in the past), more and
more “assessment” is needed to make the site work – car parking (including
ingress/egress), drainage, flooding and bushfire. Also a greater level of
negotiation with neighbours is required to response to objections about the
application. A review of the DA fees is well over due given this context. CDC
fees are capped by the DA fee. Let market forces prevail for CDC’s – as they
are capped by the DA fee anyway, and as a last resort any application can be
processed by council as a DA, even if it is complying development. This
offers some protection for the applicant, by setting an upper limit for a CDC.
Conclusions
While the focus of the review is on the role of certification, there are myriad
problems with the structure of the building industry in NSW. These include

the deconstruction of formal training for
skilled trades,

the use of unskilled labour to replace
trades,

self certification by installers,

failure of certifiers to properly accept the
role of a public official and take responsibility for the protection of the
rights of future occupants, the environment or the broader community

inadequate insurance schemes for
developers to protect purchasers and

capture of some elements of the
accreditation scheme by interest groups, restricting access to higher
levels of accreditation.
Certifiers are largely small businesses, unaware or unwilling to invest in better
administration, technology or a more agile business model, making it difficult
to create a momentum for change or for the certification practioners
themselves to leverage efficiencies from change.
This review is welcome.
Draft Submission from Sutherland Shire Council
Page 16