Penrith City Council BPB review discussion paper comments June 2015
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?
Yes, however discussion point 2 is preferred. The legislation is complex and difficult to understand, particularly for home owners. The legislation should be clear as to responsibilities of all parties including builders, home owners, Council’s and Certifiers.
2. Are there sufficient additional benefits involved to justify consolidating all
building legislation in one Act, including the Home Building Act 1993?
Yes, there is confusion amongst builders, home owners, Council’s and Certifiers as to who is responsible for the different functions of building construction, certification and defects.
3. Are there sufficient benefits to justify the consolidation of building regulation
administration?
Yes, at present it is often difficult for builders, home owners, Council’s and Certifiers to know who to contact for different issues. For example, a home owner is often unsure if they need to contact Department of Fair Trading or Building Professionals Board for different issues relating to their development.
4. Should the BP Act provide the BPB with the power to employ its own staff in
addition to seconding staff?
Yes, it appears the BPB is well understaffed as demonstrated when a complaint is made about a certifier. Complaints are often not investigated or communication regarding the investigation is not provided. The BPB should have enough staff to be able to adequately investigate all complaints and take appropriate action where necessary.
5. Is there merit in the functions undertaken by BPB continuing to be undertaken
by a statutory board?
The key issues here are providing adequate staffing levels, regardless of which board undertakes these functions. A statutory board may not change the existing problems without adequate staffing levels.
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?
Any framework to provide an effective approach for interaction between private certifiers and local government should be independent from Council. There is often a conflict where Council’s and private certifiers perform the same functions, often in competition, and yet Council’s often have to deal with complaints about private certifiers.
7. Should certifiers be required to report all cases of building and planning noncompliance to councils?
No. Certifiers should be given more powers and responsibilities to be able to effectively deal with non-compliances without requiring involvement from Council or the BPB. Private certifiers should be required to follow up any non-compliance before handing over issues to Council’s.
8. Is there merit in a partnership model between the State and local government
in the area of certification and building regulation enforcement?
Any partnership between State and Local Government in this area would be worthwhile. State Government often makes the legislation but the practicality of enforcing this can be difficult within local government. A partnership could provide additional guidance and consistency for certification across the state.
9. Would enhanced oversight of the certification process assist in addressing the
problems experienced by owners of strata and community title developments?
Yes
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, Penrith Council is already implementing these systems. In the future we expect all DA’s and CDC’s to be lodged, assessed and approved electronically. At present, each Council is developing its own system. We would support a State-Wide approach to provide consistency for customers.
11. Do you support the adoption of standard forms for development applications,
CCs, CDCs and OCs?
Yes, however, forms should be short and simple. Some Council’s forms are almost 20 pages. A simple 1-2 page form should be provided with a list of required documentation only. Penrith Council is willing to assist in this process.
12. Do you support, as ways of improving the planning and approval stage:
• limiting development approval to a concept approval
It is important to define what is meant by ‘concept approval’. It is agreed issues such as BCA compliance shouldn’t be considered at DA stage, however, developments such as subdivisions should have enough detail to ensure appropriate site responsiveness to ensure dwellings can be constructed without excessive earthworks. The approach may also increase the complexity of the DA process as it could end up being a 2-step DA for the concepts and then more detailed DA
• a standard set of development application conditions
Standard conditions are supported, however, they should be clear, concise, and always have the ability to modify, add, or remove for each DA.
• independent assessment of instances where a council seeks to
impose higher building standards than the BCA
It is unclear what an ’independent assessment’ means in relation to higher BCA standards. The BCA should continue to be the minimum necessary controls. Any ‘higher standards’ should relate to planning requirements only.
• improved information to the community on developments in their area?
.
We agree there should be improved information to the community on developments in their area.
13. Will a significant improvement in the process of certification, to allow
commencement of building work, be provided by:
• standardising the information to support the CC/ CDC
• standardising the report to support alternative solutions with
content confirmed by the certifier
• replacing the not inconsistent test with the consistent test for both
CCs/ CDCs and OCs?
Yes. Standardising information and reports are crucial for this to occur. It is agreed the ‘not inconsistent’ test is not clear enough and too subjective. A ‘consistent’ test would be better.
There also needs to be clear guidance as to what ‘commencement of building work’ means. We would suggest a very clear approach such as ‘first critical stage inspection completed’ or similar.
14. Do you support combining the roles of certifying authority and principal
certifying authority?
Yes. It is very rare for Penrith Council to have developments where the certifying authority and PCA are different. We support the certifying authority and PCA should be the same unless approved by the BPB.
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?
No. This approach appears to be returning a CDC to a DA/CC approach (ie. Council does the planning assessment and Certifier does building assessment). The key issue here is the complexity and ambiguity of current CDC legislation. If the legislation was clearer, there should be no need for a separate planning assessment. A CDC should be a clear set of guidelines and as soon as there is a non-compliance, a DA should be lodged with Council.
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
This should be occurring anyway but should not be the responsibility of Council or the Certifier.
• documenting and requiring adherence to good certifier practice
This needs to be defined. Minimum necessary standards need to be clear. Good practice should be encouraged but cannot be enforced.
• potential additional critical site inspections based on risk assessment
This needs to be clear. Who does the risk assessment? Will there be consistency? Any additional inspections will have financial implications.
• replacing interim and final OCs with an OC and development
completion certificate
We support the ability for building occupancy when there are some minor issues outstanding (such as landscaping). The idea of negotiating up to 12 months with the applicant to complete works is not supported. In most cases, where an Interim OC has been issued, it is difficult to enforce the remainder of the work. Often the owner claims they have no money to carry out the works. If an Interim OC (or completion certificate) is issued, there should be an ability and requirement to issue a NISO to have the remainder of the work completed within 3 months. It is easier to have these followed up through the NISO and Order pathway than 12 month negotiation. It should also be the PCA’s responsibility to follow this up and not just Council’s. The insurance period should begin after the issue of an Interim OC, not the final OC.
• requiring projects with missed mandatory inspections, and
unauthorised work, to obtain an OC
This is a key issue needing to be addressed. The missed mandatory inspection requirements are not working and penalise the home owners and Certifiers when they are not responsible for a missed inspection (it is usually the builders error for not booking in the inspection). The paper states an OC cannot be issued, and a Building Certificate should not be issued if there is a missed mandatory inspection (unless unavoidably missed which is also an area of confusion). What then can happen if a PCA cannot issue an OC or obtain a BC?
There should be penalties for missed mandatory inspections, however, with appropriate documentation and certification for a missed inspection, an OC or completion certificate should still be able to be issued on a case by case basis. A builder/applicant who continually fails to book in inspections should be penalised.
• effective financial sanctions for unauthorised work?
There should be increased disincentives for unauthorised work. In general, any unauthorised work should be more difficult to authorise and more costly for a person than if they went down the correct approval process before commencing work. Presently this is not the case. Fines for unauthorised work should be substantially increased to deter unauthorised work. Cost recovery for actioning complaints for unauthorised work should also be available.
17. Do you support the option of requiring the creation and maintenance of a
Building Manual for all new Class 1b-9 buildings?
More detail required for this option. What benefits are likely to result? Who would be responsible for this?
18. Do you support the reform of the fire protection system certification,
including the proposed revised role for NSW Fire and Rescue?
Yes, only accredited persons should be certifying fire safety systems.
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?
Yes, in part. The pathway to become a building surveyor is unclear and continues to change. There should be a NSW University degree in building surveying. It should also be clear what accreditation is available for the different courses. There should be greater promotion of the role of building surveyors to ensure the industry attracts quality staff.
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. The pathway to progress to A1 is unclear and continues to change. Again it needs to be very clear which qualification will provide which level of accreditation and a clear pathway to increase accreditation levels.
21. Would the proposed changes to the accreditation process address the main
deficiencies in the current system?
Yes
22.Do you support the use of an evidence-based framework and guide for the
review of the accreditation scheme?
Yes
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?
No. Practice guide should be compulsory and not just ‘good practice’. We do support proactive investigations and audits and greater clarity about the role of Certifiers.
The other approaches proposed are all not supported. There should be opportunities for both Council’s and private certifiers to carry out contestable services.
24.Does the establishment of certifier panels by councils have merit?
No. There is too much conflict of interest in Council’s recommending certifiers to applicants. Council’s and private certifiers both contest for these services. If this approach was to work, it should up to the BPB to appoint the certifier, not Council.
25.Do you support an expanded program of proactive investigations and audits
by the BPB and if so, how should they be conducted?
Yes. As per previous points, there needs to be enough BPB staff for this to work. Proactive investigations are just as important is reactive investigations. There is an industry perception the BPB is not good at handling complaints about Certifiers and there are few penalties imposed, which may encourage substandard work in this industry. When a complaint is made, there needs to be a clear communication process.
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. However. this should not be the responsibility of Councils. The BPB should be involved in this and have adequate staffing.
27.Would you prefer an online system for the lodgement of complaints?
Yes
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?
Yes
29. Is it possible to achieve full competitive neutrality without either councils
ceasing to offer certification services, or private certifiers being abolished?
Yes, with clear legislation and guidelines, adequate training and education, adequate resourcing from the BPB and appropriate and strong action taken against certifiers who do not act in accordance with these requirements.
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