NSW Building Regulations
Advisory Council
c/- Building Policy Unit,
Department of Planning and
Environment
GPO Box 39
Sydney NSW 2001
Mr Michael Lambert
BP Act Review
GPO Box 39
Sydney NSW 2001
Email: policy@bpb.nsw.gov.au
Dear Mr Lambert,
Independent Review of the Building Professionals Act 2005 – discussion
paper - submission
The NSW Building Regulations Advisory Council (BRAC) is a committee of
industry, government agencies and professional representatives which
provides non-binding advice to the Building Policy Unit of the Department of
Planning & Environment.
Advice is provided to the Department and the Australian Building Codes Board
on technical aspects associated with building and development including the
application of the National Construction Code (NCC) and building regulations
affecting NSW. A list of BRAC membership, including current member
representatives, can be found at the end of the attached submission.
The BRAC supports the current review of the Building Professionals Act (BP
Act) and other building control and certification issues raised and discussed in
the Paper. A review of the BP Act was raised in the Government’s release of
a White Paper and draft Exposure Bill in 2013 in relation to the draft Planning
Act. In this regard the BRAC made the following comments as part of its
submission to Government:
Review of the Building Professionals Act 2005
The proposed review of the Building Professionals Act is supported including
a proposal to expand the building accreditation system to other disciplines
within the development and construction sectors. This should include the
accreditation of builders, designers and architects in a single scheme. (p18)
Many of the points and issues raised in the subject discussion paper were
also highlighted in the White Paper and Green Paper. The issues raised in
these two papers and again in the current paper require attention to address
many aspects and shortfalls of the current building regulatory and certification
systems.
The attached submission reproduces the BRAC’s previous comments (shown
in italics) against many of the questions put forward in the discussion paper.
A copy of the BRAC’s submission on the White Paper and draft Exposure Bill
is available on the Department’s website:
http://planspolicies.planning.nsw.gov.au/?action=view_submission&job_id=59
27&submission_id=66272
A number of BRAC member organisations and agencies will also make their
own submissions on the discussion paper and therefore it is likely that more
detailed feedback on many of the questions within the discussion paper will be
provided. As pointed out in the BRAC’s White Paper submission, some of the
feedback and recommendations made in the attached submission were not
unanimously agreed amongst the BRAC membership however the majority of
members endorse the comments provided.
I’d like to also point out that two BRAC members: Peter Meredith (Master
Builders Association and BPB board member) and Gabrielle Wallace
(Manager, Building Professionals Board), have declared a pre-existing interest
and have therefore declined to be involved in the BRAC’s review and
submission on the discussion paper.
If you would like to discuss any aspects of the feedback provided or wish to
meet with members to explore any matters further please feel free to contact
me.
Yours faithfully,
Trevor Beardsmore
Chair
BRAC sub-committee
Review and submission - Independent Review of the Building
Professionals Act 2005
12 June 2015
Independent Review of
the Building
Professionals Act 2005
Discussion Paper
May 2015
- Submission NSW Building Regulations
Advisory Council (BRAC)
12 June 2015
1
Response to the questions raised in the Discussion
Paper
1. Is there merit in consolidating the legislative framework for building
sector regulation and control in one part of the EP&A Act, expressed in
plain English, on a principles-based approach, with its own objectives,
and incorporating any reforms approved by the Government?
It is assumed that the Planning Act Bill will not proceed in its current form or
may not proceed at all. If this is the case then it is important that the current
Act is reviewed to address many of the issues identified in the White paper
and also in the current discussion paper on the BP Act. A refinement of the
current statutes is therefore necessary to address many of the issues
highlighted including matters raised in the discussion paper and also which
were highlighted in the Green Paper. (refer also to Question 2 for further
comment).
The BRAC is supportive of changes being made to consolidate all buildingrelated provisions within a single part of the current Act and Regulations.
2. Are there sufficient additional benefits involved to justify
consolidating all building legislation in one Act, including the Home
Building Act 1993?
Yes. Building regulation is a very significant and important part of
development activity in NSW. Building regulation, including the building
certification process, are complex areas and have distinctly different aims and
objectives than the ‘planning’ aspects of the current Environmental Planning
and Assessment Act and Regulation.
The BRAC noted this important aspect in its submission on the Green Paper
regarding the proposed new planning act and recommended that a separate
statute such as a building act should be established to provide a stand-alone
act focussing solely on building regulation and certification.
1. To ensure the effective operation of the construction and building regulatory
sectors it is critical that the new legislation have a key focus on building-related
aspects of development. A new act is seen as a best way forward to achieve
the desired outcome. A building act should therefore be created to control the
functions of the construction and certification sectors to support the
development assessment and approval parts of the new planning act. The
current building-related legislation should also be enhanced and transferred to
a new building statute (Green Paper submission, p1-2; 26 September 2012).
The BRAC however also pointed out that if this is not achievable it was
supportive of the proposed new planning act proceeding with clearly
structured and refined chapters containing all building-related provisions (see
also comments under Question 1).
2
3. Are there sufficient benefits to justify the consolidation of building
regulation administration?
Yes. The BRAC, in its submission on the Green Paper (Point 2 below),
identified a number of benefits in consolidating all current building regulatory
functions within a single agency such as a building commission or building
authority similar to agencies operating in Victoria and Queensland.
2. It is also considered essential that a Building Commission, or similar agency,
be established to administer a new building act including other associated
statutes such as the Building Professionals Act, to provide a coordinated and
better regulated and administered system across all key industry groups. One
glaring dichotomy from a property owner or occupier’s perspective is how their
home is treated depending on whether they live in a house or an apartment; an
issue that will only grow as a greater number of people move to higher density
living.
The current disjointed system involving several government departments and
agencies responsible for the regulation, licensing and accreditation of the
construction sector is ineffective to achieve a sound and coordinated system
of building control for the State. A Building Commission would also be
effective to deal with future federal government initiatives regarding common
national building regulatory systems including national licensing. (Green Paper
submission, p2; 26 September 2012)
4. Should the BP Act provide the BPB with the power to employ its own
staff in addition to seconding staff?
This is a matter that does not relate to the function and aims of the BRAC
therefore feedback is not provided.
5. Is there merit in the functions undertaken by BPB continuing to be
undertaken by a statutory board?
Building certification is an important part of the development and construction
industry. Effective administration and regulation of this sector is therefore
critical to the provision of quality development and building control to maintain
acceptable community and industry standards.
The BRAC therefore believes that a formal regulatory body such as a statutory
board is the most effective system to provide independent advice and
direction to a government agency such as the BPB to provide support,
guidance and direction the administrative and policing arms of a building
certification and regulatory agency.
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 BRAC is unable to comment on this question as members are not fully
aware of the work of the Local Government Reference Group. The BRAC in
its submission on the White Paper dis however provide the following in
3
respect of enhancing a principal certifying authority’s role where noncomplying works are encountered:
Consideration should also be given to permit building certifiers, particularly
private certifiers, to issue some types of orders for construction-related
approvals including stop-work orders (development control order No. 2) where
development is not proceeding in accordance with a development approval.
This should also include provisions to allow building certifiers to recover costs
for time spent in dealing with unauthorised works. There should also be
mandated penalties for defiance of stop work orders. (p13)
7. Should certifiers be required to report all cases of building and
planning non-compliance to councils?
The following comments were provided in the White Paper submission in
relation to variations to complying development approvals. There may also be
some merit in allowing certifiers to accept minor variations (non-compliances
with development consents) resulting from issues arising during the
construction however clear guidance material would need to be prescribed by
the BPB:
Complying development with minor variations to standards
Allowing minor variations associated with complying development has some
merit however it may encourage the submission of applications for complying
development that do not satisfy the controls in several areas. If variations are to
be permitted clear guidance will need to be provided as to what constitutes a
minor variation to a standard. It may also be necessary to place limitations on
the number of variations per development.
Recommendations:
1. ……….
2. ………
3. If variations are to be allowed under the complying development provisions
clear guidance must be available setting out what constitutes a minor
variation to a standard. Limiting the number of variations per development
should also be considered. (p6)
4. ………
5. ………
Further comment on this area in relation to ‘non-minor’ variations was also
provided:
8.2
Better Construction Compliance
Clear roles and responsibilities
The proposed requirement for building certifiers to have mandatory reporting
responsibilities applied to their functions where unauthorised building works are
detected is supported.
Certifiers currently have no power to enforce
development consents, other than to issue notices of intention to issue orders
which are then referred to local authorities for further action. The issuing of
notices under the current legislation is discretionary therefore a mandatory
4
reporting function will provide greater rigor and enhance community confidence
in the certifying and building control system.
Enabling variations to constructed works
Changes to development during the construction phases are often inevitable
therefore it is appropriate for the act or regulations to contain appropriate
provisions to deal with this aspect.
The ability to have an accredited person with appropriate skills and
qualifications to assess whether a formal modification to a development
consent is required has some merit. If adopted, the regulations will need to set
clear criteria on how an accredited person is to determine such matters.
Standardised assessment processes will need to be developed to provide
consistency across the sector.
Managing unauthorised works
The BRAC agrees that an appropriate system to deal with unauthorised works
must be developed. The regulations need to deal with both unauthorised works
associated with approved development activity (not being constructed in
accordance with an approval) and building works undertaken without an
approval i.e. work that is not exempt development.
Any system however which allows for consideration of unauthorised works may
encourage or lead to an increase in unauthorised building works. The proposal
to allow development to proceed where unauthorised work has occurred,
subject to certain conditions and requirements being satisfied, is noted. It is
unknown what this will entail. It is likely to place a greater onus on building
certifiers to ensure that unauthorised works comply with the development
consent and the BCA.
Where unauthorised works occur greater accountability must be placed on
applicants to demonstrate that unauthorised works comply. This could include
providing supporting retrospective documentation/reports to a building certifier
confirming that certain conditions and requirements of the works have been
satisfied. This will reduce potential time delays in determining and issuing final
occupation certificates. Greater penalties for undertaking works without
approval should also be considered. (p15)
8.6
Key Legislation
Certification
Requirements
for
Building
Regulation
and
The key legislative requirements and regulation are generally supported subject
to the specific matters set out in the recommendations of this section of the
White Paper being addressed.
A clear methodology for dealing with unauthorised works must form part of the
new act and regulations. The current approach by building owners and
consultants to lodge building certificate applications is not appropriate. (p19)
8. Is there merit in a partnership model between the State and local
government in the area of certification and building regulation
enforcement?
No comment provided.
5
9. Would enhanced oversight of the certification process assist in
addressing the problems experienced by owners of strata and
community title developments?
The discussion paper highlights consumer issues for purchasers of strata and
community title developments. The number and type of inspections during
construction for this type of development was raised in the White Paper
including the detection of non-compliant works and issues associated with fire
safety systems. The following comments on this aspect were provided as part
of the BRAC’s submission on the White Paper:
Certifying the installation and commissioning of critical building systems
The reliance on installation or compliance certificates from various disciplines
within the construction industry is supported however the accreditation scheme
must be rigorous including the provision of significant penalties where breaches
occur.
The BRAC agrees that a better system for the certification of fire safety systems
is required to place greater responsibility on contractors, installers and building
practitioners to ensure that fire safety systems are compliant. Appropriate
accreditation of individuals certifying fire safety systems should be introduced
through the BPB Act. It is also important to note that health in the workplace is
important and has a significant reliance on the commissioning of building
engineering services e.g. air conditioning, lighting etc. which should be
designed and certified by accredited practitioners.
Principal builders and contractors must also play a greater role in certifying
various elements and aspects of building work and may also require
appropriate accreditation including being held accountable for works
undertaken. (p13-14)
10. Would an electronic system for development applications, complying
developments and building certification generate useful information for
government and the industry and improve regulatory performance?
Yes. The following comments were provided through the White Paper
submission:
Data collection
A centralised database to register all building-related approvals which allows
public access to general information and more detailed unrestricted access by
local councils, government agencies and building certifiers should be pursued.
This matter was highlighted in the BRAC’s submission on the Green Paper (ref.
B14).
A centralised database could also capture the annual fire safety statement
registrations which will be useful to building certifiers when determining
construction certificate and complying development certificate applications.
Recommendation 3: The proposal to establish a system of centralised
electronic data collection for various building-related approvals should be
investigated and, if considered practical and feasible, be developed and
introduced. This should also include consideration for a centralised database of
fire safety measures and annual certification. (p18-19)
6
11. Do you support the adoption of standard forms for development
applications, CCs, CDCs and OCs?
Yes. This will have a number of benefits for both the certification sector and
local government (i.e. easier recognition of various certificates for recording
and electronic document storage). The BRAC also highlighted in the White
Paper submission the need to prescribe criteria in relation to the quality and
degree of information that should be lodged with applications (see
recommendation below):
Recommendation 14: The regulations or guidelines should clearly prescribe
the level of detail required to be lodged with applications for the various building
types and sizes to ensure standardisation across the certification sector (both
private and council). (p12)
12. Do you support, as ways of improving the planning and approval
stage:
• limiting development approval to a concept approval
• a standard set of development application conditions
• independent assessment of instances where a council seeks to impose
higher building standards than the BCA
• improved information to the community on developments in their area?
In relation to the establishment of a standard set of development consent
conditions the following comments were made as part of the White Paper
submission:
Principle 7: Providing conditions of approval that are clear, reasonable
and proportionate to impacts
The BRAC supports initiatives to ensure that development consents are not
subject to unnecessary and irrelevant conditions. Conditions of consent must
also have clarity to minimise misinterpretation particularly for building
practitioners and builders required to implement and comply with
determinations.
A set of State-wide standard development consent conditions is supported
particularly in relation to common and specific environmental and technical
issues such as land contamination, environmental and construction noise
impacts and conditions imposed by various State agencies including conditions
imposed through the current integrated development assessment process.
The BRAC is interested in reviewing the set of standard conditions when they
are developed.
Recommendations:
1. The government should prepare clear guidelines or legislative provisions to
prescribe the purpose of conditions of consent and in what circumstances it
is appropriate to impose conditions. This should include standard conditions
from concurrence authorities and agencies.
2. A State-wide set of standard conditions of consent as proposed is supported
which will provide consistency across the State for the development and
building sectors including the building certification industry.
7
3. Prior to a set of standard conditions being implemented the set should be
referred to the BRAC for review and feedback. (p4)
Furthermore, in establishing a standard set of development consent conditions
consideration must to be given regarding whether such an approach is
suitable for development involving alterations and additions to existing
buildings particularly in relation to the current provisions of the Environmental
Planning and Assessment Regulation 2000 (Clauses 93 and 94). In this
regard the following comments were provided in the White Paper submission:
Planning approvals
The general aim of this section to limit the amount of technical building-related
details required for development applications is generally supported. This is
particularly relevant for new development where compliance with the Building
Code of Australia (BCA) is relatively straightforward. However, for development
involving alterations to existing buildings and/or change of building use (change
in BCA classification) there can be greater challenges for owners and certifiers
particularly regarding compliance with today’s building standards including fire
safety and how new works interrelate to existing older components which do
not comply with contemporary codes and standards.
It will therefore be necessary for the new act and/or regulations to address the
special complexities and issues associated with existing building stock
undergoing change. Clauses 93 and 94 of the Environmental Planning and
Assessment Regulation 2000 currently deal with these matters and in the
BRAC’s two previous submissions on the planning and building reforms these
issues were highlighted.
The BRAC is fully aware of the various issues faced when altering buildings
and would be prepared to assist the Department in developing effective and
appropriate legislative provisions for this area of development activity. (p7)
13. Will a significant improvement in the process of certification, to allow
commencement of building work, be provided by:
• standardising the information to support the CC/ CDC
• standardising the report to support alternative solutions with content
confirmed by the certifier
• replacing the not inconsistent test with the consistent test for both
CCs/ CDCs and OCs?
The White Paper raised matters relating to compliance with the Building Code
of Australia including producing compliance reports when processing CC and
CDC applications. The BRAC suggested in its submission that there may be
merit in having common template report formats in a number of areas (see
below):
Compliance with the Building Code of Australia
The concept of building certifiers being required to complete BCA compliance
reports as part of a CC or CDC assessment has some merit however the extent
of reporting required to satisfy the act and/or regulations is unclear. There may
be fundamental problems in assessing all aspects of various building elements
particularly parts of buildings that have multiple references to various Australian
Standards. This needs thorough consideration before being introduced.
8
Common template report formats particularly for smaller development such as
single dwelling houses and minor structures including importantly swimming
pools due to the significant safety risks to children, should also be considered to
ensure all certifiers work to a common set of minimum reporting standards. (p9)
Recommendation 5: BCA compliance report templates should be developed
by the Department to ensure that building certifiers operate to common
reporting standards and quality. The BCA compliance report should be
mandated to provide a permanent record as to the scope of the services of the
PCA. (p10)
Compliance with the development approval
The proposal to allow building certifiers to seek and rely on the expertise of
other professionals to confirm that construction drawings are ‘not inconsistent’
with development consents has merit. The BRAC believes this will be
particularly beneficial for large complex development. If however made
mandatory it is likely to increase costs to the CC and CDC assessment
processes, which will be passed on to building owners/developers.
The structure of development consent determination documents in a userfriendly format could be a viable alternative to assist building certifiers and
builders to more fully understand the requirements of consent determinations.
Standard development consent determination templates in conjunction with the
proposed standard DA conditions should be pursued as part of the planning
reforms.
The BRAC therefore supports the development of standard reporting forms.
Additionally, the BRAC made the following comments in relation to better
quality building design and the need for better quality drawings and
documentation to be provided with applications:
Certification to enable construction
The suggested enhancements to the level and quality of details required to be
lodged with CC and CDC applications through the new act and regulations
should result in better quality buildings and improved decision making. There
will however be a financial cost associated with the proposed changes therefore
it’s important that a cost benefit analysis be undertaken to confirm that
substantial benefits will be realised. It is further recommended that to minimise
costs, schedules or guidelines setting out the extent of information to be
provided based on the size and type of building should be developed.
Standardising application forms at a State-wide level and requiring checklists as
a prerequisite for applicants to complete will ensure consistency and quality. It
will also improve overall confidence in the building process and completed
building works. The BRAC therefore supports this proposal.
The proposal to specify the type of information (drawings and specifications)
required to be lodged prior to work commencing is also supported, however
consideration needs to be given to introducing common systems and processes
for building certifiers to receive and approve amended details during
construction as construction issues arise.
The ability for certifiers to impose prescribed or limited conditions with CC and
CDC approvals is supported. Consideration should also be given to permit
building certifiers to make limited annotations on approved construction
drawings to clarify aspects relating to conditions of consent and/or BCA
9
matters. This will assist in streamlining the approval process and reduce
delays. (p8)
Recommendation 4: Building certifiers should be allowed to make limited or
prescribed annotations on construction drawings to clarify aspects of design
that are unclear in terms of BCA compliance. This however must be fully
considered to ensure appropriate levels of rigor are instilled in the regulations
for its effective operation and to ensure sound probity. (p11)
14. Do you support combining the roles of certifying authority and
principal certifying authority?
The following comments were made in the White Paper submission:
Construction approvals
The BRAC suggested in the Green Paper submission (ref. A16) a number of
ways to improve the certification functions of building certifiers including
enhancements to provide a higher standard of quality building outcomes. The
submission suggested splitting the functions of the PCA from the CC/CDC
certifier roles to introduce greater oversight of the certification system. With the
proposal to enhance auditing functions through the BPB this may no longer be
necessary.
The proposal therefore to combine the certifying authority and principal
certifying roles into a single entity (building certifier) has a number of benefits
particularly in regard to simplifying the role for the general community and
therefore the BRAC supports the proposal. This support is however based on
enhanced auditing functions and sanctioning powers being available to the
Building Professionals Board to effectively monitor the performance of building
certifiers and other accredited practitioners including also taking appropriate
action to penalise certifiers where breaches occur.
The single term of ‘building certifier’ is appropriate, however other certifiers
such as practitioners involved in component certification should have a specific
and distinctive title to differentiate them from the principal ‘building certifier’. (p8)
15. For a CC or CDC, is there merit in separating the assessment of
conformity with planning requirements, to be handled by the consent
authority, from the assessment of building requirements?
There may be some merit in separating the ‘planning’ assessment
components from the CC and CDC to allow building certifiers to focus their
principal skills on the technical building (BCA) aspects of development. As
additional categories of development, including the complexity of
development, are added to the complying development SEPP, splitting the
‘planning’ and ‘building’ compliance functions may be necessary. The BRAC
would need to consider this question in greater detail should a change in this
area proceed.
10
16. Would the current problems with the building construction stage
regulatory approach be addressed by:
• ensuring the builder receives the certified plans and CC/ CDC
• documenting and requiring adherence to good certifier practice
• potential additional critical site inspections based on risk assessment
• replacing interim and final OCs with an OC and development
completion certificate
• requiring projects with missed mandatory inspections, and
unauthorised work, to obtain an OC
• effective financial sanctions for unauthorised work?
The BRAC supports the suggestion that certified plans and documents should
be issued to the builder. This should assist in the area of building and
development consent compliance.
In relation to the issuing of certified plans and other information, the BRAC
made the following comments in the White Paper submission:
Documentation dissemination and availability
The BRAC supports the development of clear requirements for building
certifiers to provide copies of construction plans, specifications, compliance
certificates and compliance reports to councils, applicants and landowners.
The regulations should however permit the transfer or issuing of documentation
to various parties by electronic means. (p12)
Occupation certificates
The proposed changes are generally supported however introducing two types
of certificates for completed works: ‘occupation certificate’ and ‘completion
certificate’, is considered inappropriate and unnecessary. Introducing two types
of certificates for different types of buildings/structures will overly complicate
matters.
It is recommended that a single term such as ‘completion certificate’ be used for
all development and that this term be defined in the legislation to indicate that it
includes and authorises the occupation of a building. The Department must
also deal with the issues of occupation certificates being issued where some
aspects and conditions of development consent have not been satisfied or
completed.
The proposal for ‘works-as-executed’ drawings to be provided to the building
certifier as a prerequisite to the issuing of an occupation certificate should be
restricted to development that requires a building manual. (p15)
Documenting approvals and inspection processes is critical to the integrity of
the certification system therefore the BRAC supports any changes in this area
to improve the system.
A risk-based approach to the critical stage inspection regime is considered a
sound step towards improving building and planning compliance throughout
the construction stages. This is particularly important for the higher risk
buildings such as Class 2 apartment buildings for the reasons pointed out
highlighted out under Question 9.
11
Effective financial sanctions against persons undertaking unauthorised works
must also be pursued through any future amendments to legislation.
17. Do you support the option of requiring the creation and maintenance
of a Building Manual for all new Class 1b-9 buildings?
8.3 Improving Life Cycle Building Performance and Compliance
Building manual
The concept and proposed introduction of a building manual is generally
supported by the BRAC however the ongoing and accurate upkeep of such
manuals will be critical to the effectiveness of the system to maintain control
over building uses and changes in buildings.
The development of appropriate and effective (including cost-effective)
provisions in the regulations must be available to control and administer
building manuals including strong legislative requirements forcing building
owners to maintain accurate manuals.
Consideration should also be given to extending manuals to cover aspects of
development beyond building structures such as the allotment of land e.g.: the
continued maintenance of asset protections zones for Class 2-9 buildings under
the Rural Fires Act 1997 including emergency evacuation plans.
The regulations also need to include clear provisions setting out who will be
responsible for ensuring that manuals are kept up-to-date and contain accurate
information.
The BRAC is particularly interested in this part of the proposed regulation and
therefore requests that the Department consult with the BRAC prior to finalising
the regulations. (p17)
Ongoing compliance of existing buildings
Supported in principle however the costs to property owners for existing
buildings to establish building manuals and to check and certify some non-fire
safety measures not currently requiring annual checking needs to be fully and
thoroughly considered.
The proposal for standardised fees for the administration of annual statements
is supported. This will ensure consistency across the State which is currently
not happening. (p17)
Recommendations:
1. The concept of building manuals applying to Class 1b - 9 buildings
should be pursued however the system must be effective and easily
accessible to building certifiers to support the construction certificate,
complying development certificate and occupation certificate approval
processes. The draft regulations for building manuals should also be
referred to the BRAC for review and comment.
2. Investigate the feasibility, effectiveness and benefits to the building
certification sector in making building manuals and/or annual fire safety
statements available through a centralised database.
3. Consider the feasibility and safety benefits of listing various approved
uses throughout buildings which would be checked as part of the annual
fire safety certification of buildings. This could also include confirming
12
approved occupancy densities are not being exceeded beyond the
maximum fire egress capabilities or changes in occupancies which
introduce excessive fire hazards.
4. Extend the application of building manuals beyond building structures to
capture other important fire safety matters such as the ongoing
maintenance of asset protection zones regarding bush fire safety. (p17-18)
18. Do you support the reform of the fire protection system certification,
including the proposed revised role for NSW Fire and Rescue?
The following feedback on improving the building regulation and certification
systems was provided in the White Paper submission:
8.1
Improving Building Regulation and Certification
It appears evident from various media reports and particularly the incident
involving the Bankstown apartment fire and ongoing issues associated with the
Auburn Central development including also the findings of various committees
of the Department of Planning and Infrastructure such as the Alternative
Solutions Working Party and Fire Safety Systems Working Party that there are
systemic problems with building certification in NSW.
The BRAC therefore believes that it is imperative that the building control
system has the confidence of the community and building professionals to
ensure that NSW has a safe built environment. The BRAC consequently
supports an improved building regulations and certification system.
Effective building regulation systems and certification have been deficient in a
number of areas for some time and changes to improve this area are well
overdue. Improvements in the certification process at the beginning of the
development process rather than trying to resolve building defect problems at
the end will reduce costs and other impacts including legal and consultant costs
in dealing with building defects.
The BRAC also seeks regulations and codes that are user-friendly; drafted in
plain English and are unambiguous and not subject to legal action such as
recent Supreme Court proceedings and judgment regarding the height of a
residential apartment building in Rockdale. The regulations must also be easily
accessible for persons using the legislation occasionally.
The BRAC supports the proposal for greater rigor in the building certification
process however this needs to be weighed against increased costs to industry
which inevitably is passed on to customers (building owners). This is
particularly relevant and significant regarding current housing affordability. (p6-7)
Further comment was provided in relation to a peer review process for
complex alternative solutions particularly in the area of fire safety:
Relying on specialist advice
The proposal for a peer review process for complex alternative solutions is
supported. Any peer review process will however need to be appropriately
resourced (with both finances and personnel) to ensure its long-term effective
operation. (p 9)
Inspections for fire safety and other complex matters
The role of Fire and Rescue NSW in the proposed new legislation is supported
however to ensure that appropriate services are provided to the certifying and
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construction sectors appropriate resources must be available to fully support
the new system. (p14)
19. Would the options for change set out in this paper be helpful in
improving the supply of qualified certifiers and making it a more
attractive profession?
No comment provided.
20. Is there an adequate pathway that allows a certifier to progress from
the A4 category (building inspector) right through to A1 (building
surveyor – grade 1), if desired?
No comment provided.
21. Would the proposed changes to the accreditation process address
the main deficiencies in the current system?
The discussion paper provides a number of options to consider regarding the
accreditation system and associated aspects. In this regard the following was
provided in the BRAC’s submission on the White Paper:
The BRAC also believes that there should be a staged process of accreditation
whereby private certifying practices should be restricted on the number of
employees and the nature (complexity) of projects until the principals have
demonstrated adequate business skills and ethics to grow their certification
practice.
There is evidence that some private accredited practitioners have previously
held relatively junior positions in local government but have significantly
developed their private practices over a short time period without the necessary
supporting mechanisms.
In one case a private certifier who had his
accreditation cancelled was allowed to build a certification business using
another person’s accreditation and absconded overnight leaving numerous
people in financial distress. This area needs to be reviewed by the BPB and
tighter constraints and greater reporting requirements put in place. (p13)
The following recommendation was made regarding an expansion of the
accreditation system to capture other professions associated with the
development and construction sector:
Recommendation 2: Expand the accreditation schemes under the Building
Professionals Act to capture all professions associated with the design of
buildings including services and building construction. (p19)
22. Do you support the use of an evidence-based framework and guide
for the view of the accreditation scheme?
No comment provided other than what was made in the submission as part of
the White Paper:
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Review of the Building Professionals Board’s Accreditation Scheme
The proposed review of the accreditation scheme is supported with the view to
including other professionals into the system. (p18)
23. Are the following sufficient to create a suitable level of accountability
for certifiers in respect to their regulatory role:
• improved transparency of the performance of a certifier with a Practice
Guide
• proactive investigations and audits
• increasing the awareness of the role of certifiers?
The following was provided as part of the White Paper discussion document:
Enhanced requirements on accredited certifiers
The proposed enhancement to the BPB’s guidelines to clarify the role,
functions, responsibilities and required actions by building certifiers is
supported. (p18)
Ongoing education and training
Appropriate training, education and continuing professional development for all
practitioners within the development and construction sectors is essential to
achieve quality building outcomes. The BRAC therefore supports initiatives to
improve this area. (p18)
Recommendation 1: The Building Professionals Board’s role regarding
educational and professional development aspects of their jurisdiction should
be expanded throughout the development and construction sectors to ensure
quality building outcomes. (p19)
24. Does the establishment of certifier panels by councils have merit?
No. The BRAC believes that a building certifier accredited under the Building
Professionals Act should be authorised to operate across the State and not be
restricted through the establishment of local council certifier panels.
If the intention through this question is to allow councils to improve or control
the quality of building certification in their area then a broader approach
through an enhanced BPB is considered the most appropriate and effective
way to improve the system.
As more development categories are added to the complying development
SEPP it is essential that a greater focus is directed to regulating the industry
including quality support systems to the sector to ensure that the community
has confidence in the system. The following was provided in the BRAC’s
submission on the Green Paper:
3. The proposal to expand the categories of code compliant development and
to also expand the role of accredited certifiers in approving such development
must be supported by clear and user-friendly codes.
Effective and sound regulatory systems are also required to ensure that the
development sector can operate confidently with appropriate and coordinated
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government agency support.
It is also important that the community as a whole have full confidence in a
new code assessment system, particularly the approval and enforcement
functions of both private and local government accredited certifiers. This must
form a key part of the new legislation. (Green Paper submission, p2; 26 September 2012)
25. Do you support an expanded program of proactive investigations
and audits by the BPB and if so, how should they be conducted?
Yes. The following comment on this area was provided through the White
Paper submission:
Improved auditing of accredited certifiers
The proposed expansion of certifier auditing functions of the BPB is supported
as a way of increasing community confidence in the private certification system.
(p18)
26. Would introducing a demerits point system and issuing more penalty
infringement notices provide a more timely mechanism for disciplining
certifiers who have not performed to a required professional standard?
Yes. This should form part of a suite of controls for better regulation of the
certification sector and may be particularly beneficial as the sector grows and
captures other professions and trades within the development and
construction sectors.
27. Would you prefer an online system for the lodgement of complaints?
Yes. Any improvements in this area will instil greater community confidence in
the process of compliant lodgement. Such system must however be fully and
properly supported by the BPB administration including the provision of
regular electronic communication with complainants as each step of
investigation and actions are reached.
28. Would the establishment of an education and training program to
inquiries, complaints and audits together with a building services
advisory hot line address the needs of certifiers for training and
information support?
Any improvements in the extent and quality of communication, skills
development and training will be beneficial. The BRAC is therefore supportive
of any initiatives to improve this area.
29. Is it possible to achieve full competitive neutrality without either
councils ceasing to offer certification services, or private certifiers being
abolished?
No comment provided.
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30. Would certifiers’ insurance issues be addressed by expanding
certification and accreditation to cover critical building elements and
design, and by implementing an industry scheme to cover the gap in
insurance cover from certifiers leaving the industry or where the certifier
changes for a particular project? If not, what additional problems
remain?
The general assumption in the White Paper that current building practitioners
including designers, services and structural engineers and other professionals
will wish to be accredited under an expanded BPB accreditation scheme may
not eventuate to an acceptable and viable level to service the needs of the
development and construction industry.
Issues associated with obtaining professional indemnity insurance and
associated costs may also prevent or discourage practitioners taking up
accreditation. This needs to be given due consideration. (p18)
31. Do you agree that there is not a ‘last person standing’ problem
arising from the different liability cover between builders and certifiers?
If it does arise, please explain the problem created.
No comment provided.
32. Do you favour a simplification of the requirement for swimming pool
fencing certification requirements, moving from three standards to one?
Any improvements in the legislative structure to simplify the regulations and
Standards applying to this very important area of building control is viewed as
a positive step to enhance child-safety.
The recent expansion of the accreditation scheme to allow private swimming
pool certifiers to inspect swimming pools and issue certificates of compliance
places a greater emphasis to ensure that the various legislative provisions are
structured to provide clarity and ease of application.
The BRAC is therefore supportive of change to simplify and clarify the
requirements applying to swimming pool fencing to improve pool-safety.
33. Would setting charges for both councils and the State to recover
processing costs for development applications and CDCs be the most
equitable and efficient approach?
No comment provided.
___________________________________
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BRAC membership:
Organisation/government agency
Current representatives
Property Council of Australia
Trevor Beardsmore
Master Builders Association
Peter Meredith*
Housing Industry Association
David Lawrence
Australian Institute of Architects
Ross Maxwell
Engineers Australia
Stephen Gilchrist
Australian Institute of Building Surveyors
Russel Grove
Australian Institute of Building
David Beslich
Sydney City Council
Peter Conroy
Local Government and Shires Association
Nick Katris
Fire and Rescue NSW
Greg Buckley
NSW Rural Fire Services
David Boverman
Department of Finance and Services
Paul Murtough
Land and Housing Corporation
Upali Mallawaaratchy
NSW Health
Ben Cohen
Building Professionals Board
Gabrielle Wallace*
*Note: These two members did not contribute to the preparation of the BRAC’s
submission and recommendations made (refer to the introductory letter).
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