Review of the Building Professionals Act

Review of the Building Professionals Act

Thank you for the opportunity to comment on this important discussion paper.

By way of background I am a practising Building Surveyor currently working for Local Government. I am currently accredited by the NSW Building Professionals Board (BPB) and nationally accredited by the Australian Institute of Building Surveyors. I am a current member of the Swimming Pool Cross Agency Advisory Group.

I have worked in Local Government for approximately 30 years having experienced the transfer of the technical requirements from Ordinance 70 to the Building Code of Australia (BCA) and the transfer of administrative provisions from the 1919 Local Government Act to the current Environmental Planning and Assessment Act.I also undertake work as an off site teacher for TAFE.

To assist in the consideration of my submission I have correlated my responses and recommendations to a selection of relevant feedback questions listed in the discussion paper. My responses vary from overarching policy to matters of detail.

I respectfully request that consideration be given to my following comments and recommendations.

1. Governance structure of building regulation and certification

1.2 Legislative Clarity

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?

Consolidation of legislation is recommended. See Question 2 for additional detail.

2. Are there sufficient additional benefits involved to justify consolidating all

building legislation in one Act, including the Home Building Act 1993?

The Building Professionals Boards continued supervision of only one aspect of the development/building process (certification) at the exclusion of significant others (builders, designers, planners etc) requires an immediate review. There appears to be an over emphasis on policing the checker rather than the builder, designer and tradesman who are also key personnel in the process.

It makes much more sense to have all licensing/accreditation roles of tradesman and professionals in the building industry controlled under one central body. This will result in cost savings as a result of less duplicating roles between for example the NSW Fair Trading and the BPB. Further, it is likely to be better understood by the community and will likely increase consumer confidence. With greater accountability for all professions, market forces will assist in ensuring greater levels of compliance.

Reliance upon specialist certification has been happening for many years due to the complex and specialist nature of the professions. The detailed nature of relevant Australian Standards and manufacturers specifications, which cover numerous specialist fields, is so extensive that it is difficult for an accredited certifier or Principal Certifying Authority (PCA) to keep abreast of change. To ensure compliance with the broad spectrum of controls a number of specialised building professionals are needed in the construction of a standard building. It is difficult for a certifier to have a thorough knowledge of all professional fields. Further to this, the concealed nature of building works makes inspections limited in their usefulness. For example, is the builder using 50mm nails or 75mm nails? Are they skewed? What is the sand/cement ratio of mortar? How many coats of the waterproof membrane have been applied to the bathroom floor? Etc. Most visual inspections cannot categorically conclude compliance with Australian Standards. On many occasions a reliance on statements from the builder is required. In addition the dynamic and innovative nature of the building industry often requires specialist involvement. In particular it is difficult for PCAs to keep up to date with the number of new products coming onto the market with their own construction intricacies.

Certifiers appear to be taking an unfair proportion of blame for mistakes made by builders, subcontractors and other professionals. Confidence in the private certification process will not be achieved until the accreditation of all responsible parties in the building process has been introduced.

Having regard to these circumstances I think it is necessary to partially rely on self- certification. To make this workable it is necessary to increase the level of training and accreditation of builders and tradesman so that the Building Surveyor and ultimately the public can rely on self- certification when it is required. PCA’s need to continue their current role however it needs to be acknowledged that self- certification is necessary in the process.

To formalise and strengthen the existing situation it is recommended that all building tradesman, designers and professionals be accredited so that consumers and the community can have greater confidence in the certification process. It is considered imperative that as part of this review that accountability of key building professionals be broadened.

It is also considered that town planners be accredited. This has become necessary due to extensive use and zoning issues that need to be resolved prior to the issue of a complying development certificate. Currently certifiers are making “use” decisions which are essentially planning issues. Change of use CDCs could then be issued by certifiers following certification from an accredited planner and resolution of fire upgrade and change of class issues.

The use of component certificates provided by accredited and suitably qualified persons, which can provide protection from liability to a certifier, is also strongly recommended.

The continual training and ongoing accreditation of builders, certifiers, designers, tradesman, subcontractors and planners etc will ensure certification is more acceptable to the community. Improved training should also result in greater levels of compliance allowing greater savings in construction costs and a better finished product for the consumer.

A major objective of this central body should be the support for a national licensing/accreditation system that would allow tradesman and professionals to operate throughout out Australia under a national scheme.

In addition to accreditation, the central body could also be involved in investigation, prosecution and auditing. In particular the central body could introduce the reporting of infringement notices issued on builders by Councils and others to display on their website. Improved availability of infringement history will give consumers a more informed choice. Those builders that continually infringe will be adversely affected in terms of market share of work thereby encouraging greater levels of compliance.

Removal of development and/or building controls administered by the Department of Planning and transferring these to a Central Body created under the auspices of a new act is recommended. This would minimise confusion with respect to responsibilities. The Department of Planning could then focus on strategic issues. Building functions that could move across include thoseadministered by the Department of Planning, Building Professionals Board, NSW Fair Trading, NSW Fire and Rescue and the NSW Rural Fire Service. This will be like a one stop shop for the building industry and is likely to be better understood by the community with increased consumer confidence.

To allow this to take place consolidation of legislation will be necessary.

1.3 Administrative Arrangements

3. Are there sufficient benefits to justify the consolidation of building regulation

administration?

See response to question 2 above.

1.4 Governance of the Building Professionals Board

4. Should the BP Act provide the BPB with the power to employ its own staff in

addition to seconding staff?

This question will be irrelevant if a central body is created.

5. Is there merit in the functions undertaken by BPB continuing to be undertaken

by a statutory board?

See response to question 2 above.

1.5 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?

Yes, the proposal has considerable merit.

7. Should certifiers be required to report all cases of building and planning non-

compliance to councils?

Based on experience it is common to find non-compliances on building sites.

In respect of building non-compliances (i.e BCA non-compliances) this is a matter for the certifier not the consent authority.

Planning issues are a little more complex. Prior to certification, local government as both the consent authority and inspection authority were able to more easily resolve non-compliance issues having regard to knowledge of and the ability to vary local planning controls as well as facilitating neighbour mediation. This ability has now been lostresulting in a fragmented and inconsistent approach in resolving these issues. While reporting all non-compliances could be overly onerous a compromised approach involving reporting of significant planning breaches may be more amenable to all parties. This could result in limiting the reporting to matters to Councils that are of significance rather than technical.

8. Is there merit in a partnership model between the State and local government

in the area of certification and building regulation enforcement?

Yes, the proposal has considerable merit.

1.6 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?

This is another example of over policing on the checker.

Builders and contractors need to be far more accountable for their actions. If designers, builders and contractors were part of the system and were policed liked certifiers, far more compliance would be expected. Further, by publishing penalties, disciplinary action and the like of all professionals, market forces could play a more powerful role in the enforcement of compliance.

2. Use of e-technology to improve access to information, processing of transactions and management of systems

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 proposal has considerable merit.

In this regard concern is also raised regarding access to information held by private certifiers. If Council is the certifier it is required to comply with the Government Information (Public Access) (GIPA) Act 2009 which regulates activities relating to access of information and restricts fees that can be applied. As an anecdote I have been told that an owner would be charged $300 to view the file on his property at the certifiers business to determine why the issue of an occupation certificate is being delayed. The public do not appear to have the same right of access to information held by certifiers compared to Councils when undertaking the same role. Conversely, clients of certifiers have far greater levels of privacy compared to those clients of Council. This is yet another example of the “non level playing field”

11. Do you support the adoption of standard forms for development applications,

CCs, CDCs and OCs?

Yes, the proposal has considerable merit. It should be noted however that this was the approach as part of the 1998 amendments and all relevant forms were subsequently removed from legislation.

3. Building Regulation and Certification Process

3.2 Improved information for the community

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?

• From my experience in local government adjoining property owners demand this detail particularly in relation to residential development. Information on heights to determine shadow lengths, location and height of windows, uses of rooms and deck details are necessary to determine privacy impacts. Stormwater drainage, bulk and scale and streetscape are other matters that neighbours regularly raise.

Further, it is considered necessary to obtain relevant detail so a proper 79C evaluation can take place.

Moving to a concept approval particularly in residential development will raise many unanswered questions and creates uncertainty leading to additional enquiries and investigations at certification stage. It may lead to the subjective conditioning on construction certificates.

On this topic, the constraints of legislation prevents construction certificates from being issued unless compliant with the BCA. In addition there are situations where designs are not completed before construction starts. These include mechanical ventilation, electrical layout and the like. This often results in redrawing of plans, additional notations or delays waiting for specialist details. This issue can be rectified by introducing conditional construction and complying development certificates. The plans can be read in conjunction with the conditions similar to the development consent. It is therefore suggested that conditional construction certificates and conditional complying development certificates be given consideration. To prevent unlawful conditions being attached to construction certificates, conditions could be restricted to BCA matters only.

The benefit of conditional construction certificates is that amended plans and complete construction drawings need not be sought before the certificate is issued if a BCA non-compliance is identified. The non-compliance can be rectified as a condition rather than by redrawing the plans. Streamlining of the process will result. Further, conditional construction certificates have the benefit of educating builders (and building designers where they are applicants) of BCA requirements resulting in increased levels of compliance. Being made aware of BCA requirements at the early stages of the process will result in greater savings as a result of less rectification work. Conditions also act as a checklist during the inspection process which is likely to result in a more thorough and consistent approach being applied.

As an additional tool, conditional construction certificates (issued by Councils only) could allow minor variations to development consent plans following a streamlined single step merit assessment process. The determination could even be made more expedient if the developer elected to have the plans certified as BCA compliant by an accredited certifier.

Cost and time savings are likely as there is no need to amend the plans to allow a construction certificate to be issued (except where substantial changes are required). The amendments can be included when the detailed construction drawings (if required) are prepared or when the client proposes amendments.

It is also recommended that errors in construction certificates, occupation certificates fire safety schedules etc being capable of correction by a statutory procedure. This mechanism will ensure greater accuracy in the building certification system.

• In respect of compliance with the BCA it should not be necessary at DA stage. In this regard if designers are properly accredited it is expected that there will be less design change and therefore conflict at certification stage.

For example disabled access is one area that may necessitate design change to the building. If an accredited designer certified the design as compliantthere would be no need for the consent authority to assess this aspect and no need for change at certification stage.

If there are examples of higher building standards being inserted into Development Control Plans then the Department of Planning and Environment should increase their monitoring role and have these removed.

• Standard development conditions are supported subject to Council having the ability to add additional conditions based on the merits of a proposal.

• Improved information to the community can be more easily facilitated by the use of e-technology.

3.3 Certification to allow commencement of building work

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

CCsl CDCs and OCS?

All three suggestions have considerable merit.Notice of commencements should be permitted to be issued by builders.

14. Do you support combining the roles of certifying authority and principal

certifying authority?

Yes, the proposal has considerable merit.

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?

The separation of functions will create additional red tape and is likely to slow the process down.

3.4 Building construction and occupation stages

16. Would the current problems with the building construction stage regulatory

approach be addressed by:

. ensuring the builder receives the certified plans and CCI 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?

• Can be resolved by having a central portal where access to all relevant information is available to all relevant parties.

• Agreed

• May not be necessary if relevant practitioners are also accredited. For example if a builder is accredited and undertakes unauthorised works he may lose their accreditation denying future employment opportunities. It is less likely that offences will be committed by the builder if there is a risk of losing accreditation.

• I agree with the proposal to introduce a development completion certificate. A completion certificate could be issued by Council which verifies that the Consent Authority will not serve orders or notices in respect of the development. (Similar to the building certificate provisions or a certificate of non action) or that Council is satisfied that the development is consistent with the development consent. In doing so the Consent Authority could rely on the final occupation certificate issued by a PCA as verification that BCA matters have been complied with.

Indemnification for consent authorities will be required where there is a reliance on privately issued occupation certificates when issuing completion certificates.

Payment for this certificate could be at lodgement of the Development application to cover the costs of the issuing the certificate and as an incentive for the applicant to complete the work and obtain the certificate. The application fee for the proposed completion certificate can help offset this cost if investigations are required by Council during construction.