Australian Capital Territory Bills Explanatory Statements
[Index]
[Search]
[Download]
[Bill]
[Help]
BUILDING BILL 2003
2003
LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL
TERRITORY
BUILDING
BILL
2003
EXPLANATORY
STATEMENT
Circulated by authority of
the
Minister for
Planning
Mr Simon Corbell MLA
Building Bill 2003
Background
The Building Bill 2003 (“the Bill”) replaces
the Building Act 1972 and the Building Regulations 1972 (“the
superseded building legislation”) in conjunction with the Construction
Occupations (Licensing) Bill 2003 (“the new licensing
scheme”).
That bill sets up a single system of licensing for the
construction occupations of builders, building surveyors (certifiers), drainers,
electricians, gasfitters, plumbers and plumbing plan certifiers. The Bill omits
licensing provisions made superfluous by the new licensing scheme and modernises
many of the remaining provisions adapted from the superseded building
legislation.
Minor instances of modernisation include the omission of
superseded provisions, for instance those dealing with asbestos and legionella,
introduction of notes and examples, and the introduction of a modern system of
inspection powers. Some provisions have been more comprehensively updated to
remove ambiguous or obstructive regulation and a few introduce new policy
objectives. These include:
§ the right of building
surveyors to issue stop notices and other building notices when they are
involved;
§ the introduction of
start of work notices for builders (building commencement
notices).
Penalties
The penalties generally correspond to those in the
superseded building legislation. Most offences are now offences of strict
liability in accordance with current legal policy for regulatory offences with
small or moderate penalties. That means that conduct alone is sufficient to make
the defendant culpable. However, under the Criminal Code, all strict liability
offences will have a specific defence of mistake of fact. The potential
consequences for future owners and users of buildings and the public of a
failure to have construction services carried out adequately are the
justification for strict liability provision. Where appropriate the Bill adds
specific additional defences relevant to conditions in the construction
industry.
Outline
The key provisions of the Bill cover:
• compliance with the
Building Code of Australia (which mainly applies to builder’s and building
certifiers);
• building plan
approvals (which mainly applies to building certifiers);
• doing building work
(which mainly applies to building certifiers);
• inspection and
certification of building work (which mainly applies to builders and building
certifiers);
• residential building
warranties and risk coverage (through insurance or fidelity fund scheme
arrangements covering land owners against certain risks of loss from breach of
residential building warranties by builders).
The Building Act 1972 had extensive provisions
covering the handling of asbestos in relation to buildings. The Bill has a
transitional provision intending to ensure that those provisions continue to
apply for a certain period despite the repeal of the Building Act 1972.
In virtually all other cases, other than those relating to the above-mentioned
builder licensing provisions, the Building Act 1972’s provisions
are catered for in the provisions of the Bill. An exception is the provisions
in the Building Act 1972 that dealt with cooling tower warm water systems
and mechanical ventilation systems in buildings. Those provisions were made
redundant by the Public Health Act 1997.
Strict Liability
Offences
Most of the offences in the Bill are strict liability
offences. A strict liability offence under section 23 of the Criminal Code
means that there are no fault elements for any of the physical elements of the
offence. That means that conduct alone is sufficient to make the defendant
culpable. However, under the Criminal Code, all strict liability offences will
have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code
provides that other defences may still be available for use in strict liability
offences. Strict liability offences do not have a mental element, termed
‘mens rea’. However, the actus reus, the physical actions, do have
a mental element of their own, for example, voluntariness. For that reason, the
general common law defences of insanity and automatism still apply as they go
towards whether a person has done something voluntarily, as well as whether they
intended to do the act.
Notes on clauses
Part 1 Preliminary
Part 1 deals with the administrative elements of the
Bill.
Clause 1 gives the formal name of the
Bill. Clause 2 stipulates that the Bill commences on the
commencement of clause 6 of the Construction Occupations (Licensing) Bill
2003 and provides a note regarding automatic commencement. Clause 6 of the
Construction Occupations (Licensing) Bill 2003 defines what a
construction practitioner is and what a construction
service is, which relates to other provisions in that Bill that deal
with licensing of builders and building surveyors.
Clause 3 explains that the dictionary
contained at the end of the Bill is a part of the Bill, and provides notes to
explain how the definitions are structured and how they apply to the Bill.
Clause 4 explains that the “notes” that appear in the
Bill are only explanatory, and not part of the Bill.
Clause 5 explains that provisions in other
legislation apply to offences committed under the Bill. The notes in the clause
explain the application of the Criminal Code and penalty units under the
Legislation Act 2001 to the Bill.
Part 2 Important concepts
Part 2 outlines some of the fundamental concepts that
provide the framework for the operation of the Bill. Definitions used are
mainly based on those provided in the Building Act 1972, but some are
more extensive to clarify where they do or don’t apply.
Clause 6 defines the term building
work. It explains that it means work in relation to the erection,
alteration or demolition of a building, and includes disposal of waste materials
generated by the alteration of a building other than a building excluded under
the regulations, or by the demolition of a building and it includes work in
relation to repairs of a structural nature to a building. The clause also
allows regulations to exempt a kind of work from the definition of building
work, or to include a kind of work in the definition of building work. It is
intended that the term refer to the doing of the above-mentioned work rather
than refer to the building materials or building parts that the work is in
respect of.
Clause 7 defines the term
building. It explains that it includes a structure on or attached
to land and an addition to a building and a structure attached to a building and
part of a building, whether the building is completed or not. The clause
provides an example to help explain what is meant by the term “part of a
building”—footings poured for a building that is being built. It
has a note about the application of the example. The clause also explains that
the term building does not include a vehicle or craft that is not
used or adapted for use as a class of building or structure as classified under
the Building Code of Australia or a transportable building, mobile home, caravan
or similar that is not used for long-term habitation and that is readily
transportable without disassembly or without removal from associated components
including a footing, pier, stump, rigid annexe or an attached building or
similar. The clause also provides that that the term building
does not include something exempted under the regulations. The clause
endeavours to remove doubt about the meaning by explaining that something is not
excluded from the definition of building only because it is
temporary or novel. The clause sets out examples of temporary or novel
buildings—a building used in connection with a fair, circus, carnival,
celebration, market, show, concert, display, exhibition, competition, training
event, recreational event or publicity event is not excluded on the basis of its
temporary or novel nature. The clause also provides a note on the application
of the example.
Clause 8 defines the term
structure. It explains that the term structure
includes a fence, retaining wall, swimming pool, ornamental pond, mast, antenna,
aerial, advertising device, notice or sign; and a thing prescribed under the
regulations as a structure. It also provides that that the term
structure does not include something that is part of a machine or
mechanical plant unless it is part of something classified as a building or
structure by the building code or something prescribed under the regulations for
the clause.
The term specialist building work is
defined in clause 9 as the installation of a swimming pool and
also as the demolition of a building and also includes work prescribed under the
regulations as specialist building work. That is necessary to
facilitate restrictions on the kind of licenses under the Bill that authorise
those kinds of work. An intention is to ensure only appropriately experienced
licensees undertake specialist building work due to inherently
high risks associated with demolition (risk of collapse) and pool fencing and
barriers (risk of drowning).
Clause 10 defines the term basic
building work to mean building work that is erecting a prefabricated
building if the building is class 10a, or building work that is the erecting an
outbuilding if the outbuilding is class 10a, or building work that is installing
fireplaces or solid-fuel heaters, or building work that is non-structural
work. It explains that the term basic building work does
not include specialist building work. It explains what is meant
by the term non-structural work for the clause. It means work on
a part of a building that does not, or is not intended to, carry a structural
load imposed or transmitted by another part of a building and includes work on
non-load bearing walls, doors, partitioning, reticulated pipework, ventilation
ductwork and building fit-out items. It does not include work that may affect
the structural integrity of a structural element of a building, or weaken or
remove, completely or partly, the structural element, if the element is
installed in a way that it carries, or can carry, a load of part of a building.
It also does not include work that involves the use of a structural element to
carry, or to possibly carry, a structural load of part of a building. The
clause also provides 2 examples of work that is not included in the term
non-structural work, and a note about the application of the examples. The
examples are—1) the installation of a new storey on a building; and 2)
underpinning a subsiding building.
Clause 11 specifies that the provisions of
the Bill do not affect the operation of any other law in force in the ACT
relating to land use or to the provision of services for a building. It sets
out several examples of laws not so affected and a note on the application of
the examples. The examples are the—Electricity Safety Act 1971;
Utilities Act 2000; Scaffolding and Lifts Act 1912; and Water and
Sewerage Act 2000.
The term exempt building is defined by
clause
12
to mean buildings prescribed under the regulations. It also provides a note
explaining the term is used to narrow the application of parts 3, 5 and 6 of the
Bill. An intention is to allow limited deregulation in respect of buildings
that the definition covers, as the benefits of regulating some kinds of
buildings, particularly minor buildings, do not always justify the cost and
effort needed for their regulation.
Clause 13 describes some circumstances
where temporary buildings are excluded from the application of the Bill. The
circumstances are that the temporary building is erected on the site of building
work for the erection or alteration of another building and building approval
has been obtained for the building work and the temporary building is to be
removed on completion of the building work. An intention of the provision is to
exclude site-sheds and site-offices, for example, from the application of the
Bill, in the circumstances described in the clause.
Clause 14 entitles the Minister to
temporarily exempt, in writing, a building from the application of the Bill or a
provision of the Act for a period stated in the exemption. It explains that the
exemption period must not exceed 1 year, and that if the exemption has no
exemption period stated then the period for which the exemption is in force will
be 1 week. It permits the exemption to be conditional. The clause provides 2
examples of conditions and a note about the application of the examples. The
examples of conditions are—1) restricting number of people allowed in the
building; and 2) requiring the fire brigade to be present outside the building
when it is used for a stated event. The clause also provides that an exemption
is a disallowable instrument and a note about notification of such instruments.
An example of an intention of the provision is to cater for situations where the
holding of an important event would otherwise be jeopardised by the late
discovery of circumstances that would make the venue for the event unusable
because of the Bill’s application to it. For example, it is planned to
hold an international sporting event at venue with a large grandstand, but it is
discovered that structural alterations done to the grandstand require a
certificate of occupancy under the Bill. Without that certificate it is
unlawful under the Bill to occupy the grandstand. If the required certificate
cannot be obtained in time for the event, the Minister may exempt the stadium
from the application of the provisions of the Bill that would otherwise make
occupation of the grandstand unlawful. A condition of the exemption could
include the provision of a structural engineer’s certification
demonstrating the structural adequacy of the grandstand, for
example.
Part 3 Building Work
Part 3 sets out requirements for doing building work,
from the appointment of certifiers, through the plan approval process and
carrying out the work, to completion of the building work. The process is
basically the same process provided in the Building Act 1972, except that
the Bill additionally requires a building commencement notice covering matters
dealt with in other ways by the Building Act 1972.
Clause 15 provides that part 3 of the Bill
does not apply to building work in relation to an exempt building.
(Clause 12 defines the term exempt
building). An intention is to partly deregulate doing building work in
relation to such buildings as the cost and effort required for their regulation
does not justify that regulation, due to the buildings being of low to moderate
cost and complexity.
Clause 16 defines what the term
stage means for part 3 of the Bill. It explains that where it
applies to building work it means a stage prescribed under
subclause 43 (1) of the Bill.
Clause 17 defines various terms for the
purposes of Division 3.2 of the Bill. It explains that certifier
does not include the term government certifier, and for the term
eligible person for building work—see clause 18, and that the term government
certifier, for building work, means a person who is appointed under
clause 20 (4) of the Bill for the
work.
Clause
18
establishes that a licensed construction practitioner is referred to in that
clause as an eligible person. It sets out the eligibility
criteria that a licensed construction practitioner must satisfy in order to be
eligible to be appointed certifier or government
certifier for building work. Those criteria are that that person is
entitled under the Construction Occupations (Licensing) Bill 2003 to perform
services as certifier for the work, and is qualified under the regulations to be
appointed for the work.
Appointing a certifier or government certifier
Clause
19
provides procedures for appointing certifiers (which by definition for Division
3.2 excludes government certifiers), and explains some ways that
the appointment can end. It explains that the owner of land where it is
proposed to carry out building work may appoint an eligible person
(the certifier) as certifier for the work. The clause has a note
that an appointment must be in writing (see Legislation Act, s 206). The clause
describes 3 circumstances that will cause the appointment to end. They are as
follows: the certifier stops being an eligible person, or the owner of the land
revokes the appointment by written notice given to the certifier, or the
certifier resigns the appointment. However, it also limits the circumstances
under which a certifier can resign that appointment. The purpose of that
limitation is to protect the public interest that lies in ensuring the
construction industry has reasonable forewarning of the withdrawal of the
certifier’s services, for without those services building work cannot
lawfully progress past various inspection stages. It is theoretically possible
for 1 certifier to be appointed in respect of every construction project in the
ACT, and thus a withdrawal of that certifier’s services in cases of such a
large number of projects can cause significant disruption to the industry.
The limitation on circumstances under which a certifier
may resign are where the construction occupations registrar has approved of that
resignation, in writing, and where written notice of the resignation has been
given to the landowner that made the appointment. However, the clause also sets
out the only circumstances under which the construction occupations registrar
may approve of the resignation of a certifier—that the construction
occupations registrar is satisfied that the certifier cannot exercise his or her
functions in relation to the building work because of mental or physical
incapacity, or the certifier has arranged for another certifier to take over the
certifier’s functions in relation to the building work, or it is otherwise
appropriate to approve the resignation. It is intended that a certifier’s
appointment create a nexus with the parcel of land where the respective building
work is, or is to be, carried out. In that way, the appointment as certifier
should be able to withstand transfer of title of that land. It is intended that
the appointment continue despite such a transfer occurring, and the new
titleholder ought to be able to take the previous titleholder’s
appointment of the certifier as continuing until something ends it.
Clause
20
provides procedures for appointing government certifiers (which by definition
for Division 3.2 excludes certifiers that are not government
certifiers), and explains some ways that the appointment can end. It
explains that it only applies to building work if the last certifier appointed
for the work is no longer the certifier for the work. The clause sets out the
circumstances under which a certifier is taken to no longer be the certifier for
purposes of that clause. They relate to the certifier—
not having viable licence because it is suspended for
longer than 3 months, or because it has been cancelled; or
having resigned the appointment as certifier under
clause 19; or
being dead; or
not being covered by insurance required under the
Construction Occupations (Licensing) Act 2003 for the occupation class relating
to the building certifier.
Clause 20 also provides
that the owner of the land where the building work is being carried out (or
proposed to be carried out) may apply to the construction occupations registrar
for the appointment of a government certifier for the work. The
clause provides a note about the use of approved forms. It entitles the
construction occupations registrar to have discretion to appoint a
government certifier if the registrar is satisfied that the
criteria prescribed under the regulations are met, and it allows the regulations
to prescribe what must accompany the application for appointment. The clause
also defines what the term licence means for the clause—a
building surveyor licence under the Construction Occupations (Licensing) Act
2003.
A role of the government certifier is to provide a
safety net to allow certification work to continue in some circumstances where
the previous certifier is no longer viable and it is difficult to obtain
replacement certifier services from the public sector. The nature of building
certification work is such that where that certification work needs to be
carried on by a different certifier to the previous, that certifier may need to
rely on documentation that the previous certifier was required to produce in
relation to the work. To cater for such situations clause 21
entitles the government certifier to require the person that was the certifier
(or last certifier) for building work to give the government certifier any
building document the person has in relation to the work within the time period
stated in the requirement. The clause provides that that requirement must be by
written notice and the above-mentioned time period for giving the document must
not be less than 2 weeks after the notice was given.
The clause also creates a strict liability offence in
respect of a person where the person has been given a notice mentioned above
requiring the person to give documentation but the person contravenes that
notice. The clause specifies a maximum respective penalty of 50 penalty units
for the offence, the same amount for the corresponding regulatory offence in
the Building Act 1972.
Clause 22 provides some civil and criminal
liability protections for government certifiers. It provides that a government
certifier does not incur civil or criminal liability for an act or omission done
honestly as a government certifier. The clause also provides that a civil
liability that would, apart from the clause, attach to the government certifier
attaches instead to the Territory.
Clause 23 sets out criteria intended to
prevent some conflicts of interest that could arise if a person
has an interest in building work and is also the certifier for that
work—for example if the certifier owns the land that the work is built on.
It provides that a licensed construction practitioner is not entitled to perform
services as a certifier in relation to building work if he or she has an
interest in the work. The clause explains what the concept of having an
interest means in that clause—a licensed construction
practitioner has an interest in building work if the practitioner,
or a person related to the practitioner has a legal or equitable
interest in the land where the building work is, or is to be,
carried out, or has prepared, or intends to prepare, drawings intended to be
used in relation to the construction of the building work or has carried out, or
intends to carry out, any of the building work, or has a financial
interest in the construction or completion of the building work.
The clause further extends that prohibition to people that are related to the
practitioner. It explains when a person can be taken as being related to the
above-mentioned practitioner. The clause provides that, for the clause, a
person is related to a licensed construction practitioner if the person
is—a person with whom the practitioner has: a personal, professional,
commercial or financial relationship, or an employer or employee of the
practitioner, or a company of which the practitioner is a director or in which
the practitioner holds a share. The clause also provides an exemption from its
above-mentioned prohibition grounds relating to where the practitioner has
prepared, or intends to prepare, drawings intended to be used in relation to the
construction of the building work. The exemption is that that prohibition does
not prevent a certifier from sketching a required design solution as part of a
direction under clause 44 (2). That clause
requires a certifier to give directions that may include drawing a sketch plan
of building work to be done. In that case the need for urgent design
information outweighs the need to protect from the conflict of interest arising
from being both the designer and approver.
The provisions of the clause are necessary to protect
the public interest that lies maintaining the independent nature of the
certifier’s role in checking buildings and building plans for compliance
with requirements. Certifier’s are privatised regulators and therefore it
is beneficial that their regulatory function be kept free of the kinds of
conflicting interests referred to in the clause.
Clause
24
creates a strict liability offence against a person if the person fails to tell
the construction occupations registrar that they were appointed as a certifier
for building work covered by a building approval, or that such an appointment
ended. The clause explains that it only applies where a building approval has
been issued for the work and the telling did not occur within 7 days after the
day the person is appointed. That will assist the registrar’s function as
the central point of recording the certifiers’ statuses. Certifiers are
privatised regulators, and as such it is important that their clients and the
agency administering the Bill have precise records of the certifiers’
status.
The offence is necessary to promote compliance with the
clause as failure to comply has potential for serious consequences, particularly
in relation to high cost building projects. Only duly appointed certifiers are
entitled to provide certification services under the Bill, and building work
cannot lawfully progress beyond various inspection stages without that service.
Where a client of a certifier relies on obtaining those services from a person
purporting to be a certifier, but the person is not, the certifications are
invalid. Invalid certifications put the respective building at risk of being
constructed other than in accordance with required standards and codes, possibly
rendering the building unsafe or unusable. Retrospectively obtaining
replacement, but valid, certifications is difficult or impossible where critical
structural elements have been concreted over. The clause specifies a maximum
penalty of 1 penalty unit for the offence, the same amount for the corresponding
regulatory offence in the Building Act 1972. It is not set at a higher
number of units to recognise that an offence can be committed merely from
unintended lateness of lodging paperwork.
Building Approvals
Part 3 (Building Work) creates critical statutory
approvals and checking procedures for building plans and building work. They
are basically the same relevant procedures provided in the Building Act
1972. Ensuring the procedures are followed in full has high public interest
in that the procedures seek to ensure buildings are safe, sound, healthy and
accessible. A contract purporting to require building work to be done other
than in accordance with the part is at odds with the public interest that lies
in following the procedure. Therefore clause 25 specifies
that a provision in a contract or agreement that limits or modifies, or purports
to limit or modify, the operation of part 3, including that clause, in relation
to a certifier or building work, is void.
Clause
26
entitles the owner of a parcel of land to apply in writing under that clause to
the certifier for a building approval for building work to be carried out on the
land. The clause has a note that at common law, an agent may make an
application on the owner’s behalf. The clause sets out a list of things
that the application must comply with. The list states that the application
must—be accompanied by the number of copies of the plans relating to the
proposed work prescribed under the regulations and by a waste management plan if
the work involves the kinds of demolition or alteration detailed in the list.
The clause has a note about the use of approved forms. The clause also entitles
the regulations to require the application to contain other details or be
accompanied by other material.
Clause
27
sets out the circumstances under which a certifier can consider an application
for a building approval and it prohibits the certifier from considering such
applications outside of those circumstances. The circumstances broadly relate
to the plans complying with plan requirements, consultations and consents having
been attended to as required, the agent’s authority being in writing by
the owner (where an owner’s agent made the application), and the
training levy having been paid. The clause defines that the term
training levy means, for the clause, the training levy under
the Building and Construction Industry Training Levy Act 1999. That Act
relies on the Building Act 1972 for the provisions requiring payment of
the levy and therefore will rely on the Bill to continue that
requirement.
Clause
28 sets out the
requirements that apply to certifiers in issuing a building approval. It limits
its application to where the following 3 criteria are met—an application
for a building approval is made to the certifier under clause 26 of the Bill, and the certifier may consider the
application, and clause 30 (External design and
siting considerations) of the Bill does not apply to the application. The
clause requires the certifier to issue the building approval if satisfied on
reasonable grounds that the plans meet each approval requirement under clause 29. It is necessary to not allow the certifier
any discretion in issuing the approval, where in law it is appropriate to issue
it, to force the certifier to diligently attend to issuing such approvals. That
is because the certifier provides a mandatory privatised regulatory function
which if undertaken with a lack of due diligence can cause unreasonable delay in
building construction progress.
The clause requires the building approval to be marked
on, attached to or partly marked on and partly attached to, each page of the
plans it relates to. It also requires the certifier to initial and mark his or
her licence number on each page of the plans. An intention there is to remove
doubt about which pages and plans are approved, and which are not, and who made
an approval. The clause also provides a note about the use of approved forms.
Where the plans are too big to be practical to attach the approval to every page
the clause also allows the certifier to instead mark each page of the plans with
an indication that the approval, or part of the approval, is in a separate
document.
The clause also requires the certifier to give a copy of
the approval and the relevant plans as soon as practicable to the person who
applied for the approval and to also give to the construction occupations
registrar a copy of the approval, and a copy of the relevant plans, and if
notification of the certifier’s appointment has not previously been given
to the registrar—that notification. The clause specifies that those
things are required to be given to the construction occupations registrar within
7 days of the day of issuing the approval. The clause also provides notes about
the use of approved forms and determined fees. The requirement to give copies
to the registrar is needed to promote diligence in helping keep the
registrar’s relevant records up to date as the registrar provides the one
and only central repository for all such records and relies on them to
administer relevant laws.
Clause
29
sets out criteria relating to approval of plans. Each criterion is referred to
as an approval requirement. A criterion is: if the plans are for
the substantial alteration of a building—the building as altered will
comply with this Bill. That criterion has a note to see subclause (2) for the
meaning of the term substantial alteration. An intention of that
criterion is that the amount of alteration that a building has undergone over a
certain period of years needs to be considered together with the alterations
proposed in the plans to determine if together that amounts to a
substantial alteration of the building. Where that is the case, a
plan approval prerequisite is that the plans must show work which when carried
out in accordance with the plan will result in the entire building complying
with the Bill, rather than only a smaller part of the building so complying.
The provision is necessary to reduce the incidence of buildings falling further
and further behind modern building code standards with the passage of time. The
provision is necessary for ensuring certain old buildings are entirely brought
up to current technical standards when they have been substantially altered over
time.
Another criterion set out in the clause is that if the
plans are for the erection of a building—the building as erected will
comply with the Bill. The clause has a note that a reference to an Act includes
a reference to the statutory instruments made or in force under the Act,
including regulations and the building code (see Legislation Act, s 104).
Another of the clause’s criterion is if a waste
management plan is required to accompany the application—the plan is
adequate. An intention is to reduce waste of used building materials and
encourage their reuse. The final criterion of the clause is that the building
as proposed to be erected or altered will be structurally sufficient, safe and
stable. The clause allows the regulations to prescribe when an alteration to a
building is a substantial alteration.
Although the clause requires, in essence, plans to
depict buildings that will comply with the building code when erected, it
explains that a building does not fail to comply with the clause only because
the plans for the building or alteration contain something to which the building
code does not relate. The clause also sets out criteria, which must all be
satisfied to enable a waste management plan to be taken as being adequate for
the purposes of the clause. They are—the plan satisfies any requirements
prescribed under the regulations, and there is a recycling facility
for the reuse or recycling of material mentioned in the plan and the
plan states that the material will be disposed of, if practicable, at the
facility. The clause entitles the Minister to The Minister may, in writing,
declare that a facility outside the ACT is suitable to reuse or recycle stated
material. It stipulates that such a declaration is a notifiable instrument and
has a note about notification of instruments. The clause also defines for the
clause what the term recycling facility, for material,
means—a facility in the ACT where the material is reused or recycled, or a
facility outside the ACT that the Minister has declared is suitable to reuse or
recycle the material under subclause (5).
Clause
30
prohibits a certifier from issuing an application for a building approval
if—because of the external design or siting of a proposed
building, or of a building as proposed to be altered, the carrying out of the
building work to which the application for the approval relates would result in
the contravention of the Bill or any other law in force in the ACT. However it
explains that that prohibition does not apply to building work forming part of a
development that is not required to be approved under the Land (Planning and
Environment) Act. The clause also defines what the term external
design, in relation to a building, includes—anything affecting the
appearance of the exterior of the building.
Clause
31
entitles the owner of land to apply to a certifier for approval of amendment of
plans relating to building approval on the land. It sets out the circumstances
that must all exist for the clause to apply—a building approval must have
been issued for the building work and the owner of the parcel of land where the
building work is being, or is to be, done proposes to amend the plans for the
work. The clause also has a note about the use of approved forms.
Clause
32
requires a certifier to approve the plans as amended and amend the building
approval, but only if all the criteria set out in the clause are satisfied. The
clause only applies if an application under clause 31 of the Bill for the amendment of plans has been
made to a certifier. A criterion is that the approval requirements set out in
the Bill, so far as they apply to plans, are satisfied in relation to the plans
as amended. Another criterion is that the application would not be refused
because of clause 30 (External design and
siting considerations) of the Bill if it were an application for a building
approval. The final criterion is that a building built to the amended plans
would not be significantly different from a building built to the
unamended plans. The clause allows the regulations to prescribe when a building
built to amended plans is significantly different from a building
built to unamended plans. The clause also has a reminder note about that. The
clause also requires the certifier to tell the applicant in writing that the
application is refused if the certifier cannot approve the plans as amended.
Clause 33 sets out what the certifier is
required to do if the certifier approves plans as amended under clause 32 of the Bill. The provisions mirror those that
the Bill requires the certifier to do when the certifier approves an unamended
plan under the Bill, in relation to marking the approval on the plans and giving
copies of the approval to the applicant and giving to the construction
occupations registrar a copy of the amended approval, a copy of the amended
plans, and if notification of the certifier’s appointment has not
previously been given to the construction occupations
registrar—notification of the appointment. The clause has a note about
the use of approved forms and a note about determined fees. Clause
34
makes a building approval for building work end if another building approval is
issued after that previous building approval and both are for the same building
work. It only applies where the previous building approval was in force when
the subsequent approval was issued. It explains that it applies even if the
other building approval relates to other building work not covered by the
original approval.
Clause 35 prohibits the issue of a
building approval for building work on a parcel of land from authorising either
or both of 2 things described in the clause. One thing is use of the land for a
purpose other than that for which the lease for the land was granted. It only
applies to land leased from the Commonwealth. The other thing is the use of the
land contrary to a provision, covenant or condition of any lease on the
parcel.
Clause 36 describes how long the period of
time is that a building approval operates. It provides that a building approval
is valid until the end of the earliest of 2 periods it describes apply to the
approval—1) the period of 3 years beginning on the day of its issue, or
alternatively 2) the period that is the development period applies
to the building work. The clause also has a note about how a building approval
ends if a further approval is issued for the same building work, as provided for
by clause 34 of the Bill. The clause also
defines what is meant by the term development period for the
clause—development period means a period within which, under
another law in force in the ACT or a condition of the relevant lease, the
building work must be completed. The clause also entitles the certifier to
extend the period of validity of the building approval in the following
circumstance—if the development period applying to the building work is
extended, the certifier may extend the period of operation of the building
approval to a day that is no later than the day the extended development period
ends. However it prohibits in any case the extension of the period of validity
of a building approval to a day that is more than 3 years after the day the
approval was issued. An intention is that a building approval can never be
valid for a period longer than a 3-year period commencing on the date of issuing
the approval. That recognises the fact that standards for building design and
construction change over time causing building approvals to fall behind current
standards over time.
Building commencement notices
Clause
37 entitles a builder to
apply to a certifier for a commencement notice in respect of building work or
part of some building work. It explains that the builder must be the builder
who is to do the building work, or part of it, and that the application must be
in writing signed by the owner of the relevant land. The clause has a note that
the ordinary rules of agency apply in relation to the application, and a note
about the use of approved forms. It stipulates that if an application under the
clause is for residential building work, then the application must be
accompanied by at least 1 of 3 things—a residential building insurance
policy in relation to the work or alternatively a certificate issued by an
approved insurer stating that the
insurer has insured the work under a residential building insurance policy or
alternatively a fidelity certificate for the work issued by the trustees of a
scheme approved under division 6.4 of the Bill (Approved fidelity fund schemes).
The clause requires the certifier to issue a building
commencement notice for the building work, on receiving an application
under the clause, if the certifier is satisfied on reasonable
grounds that the builder’s licence authorises the work in the building
approval. The clause has a note explaining that the term under
includes the term ‘in accordance with’ (see Legislation Act, dict,
pt 1, def under), so an application must comply with the clause before it can be
approved. It also has a note about the use of approved forms. The clause also
requires the certifier to give a copy of a commencement notice to the
construction occupations registrar within 1 week after issuing the notice, when
a certifier issues a notice. The clause also indicates that the clause only
applies where 3 circumstances all exist—1) a building approval has been
issued for building work, 2) under the Construction Occupations (Licensing)
Bill 2003 any of the work must be done by a licensed builder, and 3) a
licensed builder has been engaged to do the work.
The clause also defines what the term approved
insurer means for the clause—an authorised insurer
who has had a form of residential building insurance policy approved by the
construction occupations registrar and has not given to the registrar a notice
under clause 95 (Duties of insurers) of the
Bill. The term authorised insurer is defined in the dictionary at
the end of the Bill. The clause also refers to clause 84 of the Bill for a definition of the term
residential building work, for clause 27.
The building commencement notice requirement is
necessary to provide certainty about the statues of the matters covered by a
notice.
Clause 38 causes a building commencement
notice for building work to automatically end if, for residential building
work—the work is no longer insured. The clause also causes
a notice to automatically end if the building approval for the work ends. The
clause defines what the term insured means for the
clause—that the work is insured under a residential building insurance
policy or that a fidelity certificate is in force for the work by the trustees
of a scheme approved under division 6.4 of the Bill (Approved fidelity fund
schemes). The clause is necessary to protect the public interest that lies in
ensuring that relevant building work is only done where the public has the
protection of the coverage referred to in the clause.
Clause
39
entitles the licensed builder mentioned in a building commencement notice to
apply, in writing, for cancellation of the building commencement notice. If the
builder does apply for its cancellation, it requires that builder to give to the
owner of the parcel of the land where the work is being, or is to be,
done—a copy of the application, and a notice that states that the owner
has 2 weeks (the representation time) to make representations to
the construction occupations registrar about whether the building commencement
notice to which the application relates should be cancelled. The clause has a
note about the use of approved forms for the application. The clause requires
the application to include an explanation of why the building commencement
notice should be cancelled. The clause also provides that the clause only
applies if a building commencement notice is in force for the relevant building
work.
Clause 40 lists 2 circumstances both of
which must exist for the clause to apply. The 1st is that the construction
occupations registrar must have received an application under clause 39 of the Bill for the cancellation of a building
commencement notice; and the 2nd is that either—the
representation time for the application has ended or the owner of
the land where the work is being, or is to be, done agrees in writing to the
cancellation. The clause requires the construction occupations registrar to
consider any representation made by the owner within the representation time if
the representation time has ended without the owner of the land
agreeing to the cancellation. The clause also entitles the registrar to cancel
the building commencement notice if satisfied—that the builder mentioned
in the notice cannot do the building work or that it is otherwise appropriate to
cancel the notice.
Clause
41
clarifies that 2 or more building commencement notices for the same building
work may be in force at the same time. The clause also explains that a building
commencement notice continues to operate for building work even if the building
work being done is only part of the building work for which the commencement
notice was issued. That is intended to cater for a situation where, for
example, a small part of the work is completed, and more of the work is to be
done at a later stage. The notice continues to operate despite the initial work
being completed and so can apply to the later stage work.
Doing building work
Clause
42
sets out the requirements that must be complied with when building work is
carried out. It prohibits the carrying out of building work except where the
work is carried out in accordance with all of those requirements. A requirement
is that the materials used in the building work must comply with the standards
under the building code for the materials in buildings of the kind being built
or altered. Another is that the way the materials are used in the building work
must comply with their acceptable use under the building code for buildings of
the kind being built or altered.
An intention of those 2 requirements is that the use of
materials that they refer to should not result in a situation where the building
work produces a building, or part of a building, that does not comply with the
relevant provisions of the building code, because of the material used or the
way it was used. Another requirement is that the building work must be carried
out in a proper and skilful way. That requirement has a note that
considerations to be taken into account to decide when work is carried out in a
proper and skilful way may be prescribed under the regulations. The clause
allows the regulations to prescribe considerations to be taken into account to
decide whether building work is carried out in a proper and skilful way.
Another requirement of the clause is that building work for which an approved
plan is required must be carried out in accordance with the approved plans.
Another requirement is that the building work required to be done by a licensed
builder must be carried out by, or under the supervision of, the builder
mentioned in the building commencement notice. The final requirement lists 2
things, both of which the building licensee in charge of the building work must
take—1) all the safety precautions stated in or with the application for
the building approval, and 2) any other safety precaution that a certifier or
building inspector may require the building licensee to take under clause 46 of the Bill.
The clause is necessary to promote good practice in
doing building work so as it is consistent with reasonable public expectations
of builders and to protect public confidence in the standards of that
work.
The Bill requires various things, such as inspections,
to happen at various times during the carrying out of building work. It breaks
the process of doing building work into stages. Clause
43
allows the regulations to prescribe what each stage of building
work is. The clause also prohibits a building licensee in charge of building
work that has reached a stage from proceeding with building work
beyond the stage unless the 2 criteria it lists are both
satisfied—1) the licensee has given to the certifier notice that the stage
has been reached, and 2) the certifier has inspected the building work and given
written permission for the work to proceed. The clause creates a strict
liability offence against a person if the person fails to comply with the
prohibition and proceeds past a stage. The clause specifies a
maximum penalty of 50 penalty units for the offence, the same amount for the
corresponding regulatory offence in the Building Act
1972.
The clause also creates a further strict liability
offence—the building licensee in charge of building work commits the
offence where that person proceeds with any building work above dampcourse level
when both of the criteria clause 43 of the Bill
lists in relation to surveys has not been satisfied. The 1st of the
2 broad criteria is that the certifier has received either a plan signed by a
registered surveyor stating the position of the building in relation to the
boundaries of the parcel of land where the building is to be erected and stating
the level that the floor or floors of the building will have in relation to a
level stated in the approved plans or another document prescribed under the
regulations. The 2nd criterion is that the certifier is satisfied
that the position of the building and the level of the floor or floors are in
accordance with both the approved plans and the conditions to which any consent
or approval mentioned in clause 27 (1) (b) of
the Bill is subject. The clause specifies a maximum penalty of 50 penalty units
for the offence, the same amount for the corresponding regulatory offence in
the Building Act 1972.
The clause requires also that a person give written test
results as follows—if a building licensee in charge of building work is
required under clause 44 (5) of the
Bill to conduct a test, the licensee must, as soon as practicable after the test
is completed, give the person who made the requirement the written results of
the test.
Clause
44
sets out things that a certifier is require to do in relation to the stages of
building work. It requires the certifier to inspect the building work as soon
as practicable after the certifier receives the relevant notice under clause 43 (3) (a) of the Bill for the building work. The
clause requires the certifier to give the building licensee in charge of the
building work the written directions that are reasonable and appropriate for
achieving compliance with Bill’s clause 42 (Requirements for carrying out building work).
The clause explains that is only required where if, after inspection, a
certifier is satisfied on reasonable grounds that the building work does not
comply with clause 42. The clause stipulates
that where those written directions are required to be given they must be given
on the relevant inspection, or as soon as practicable (but in any case within 2
business days), after inspection.
However, if a certifier is satisfied, after an
inspection, that building work complies with the Bill’s clause 42 clause 44
requires the certifier to certify that the work complies with clause 42 of the Bill. The clause further requires the
certifier in that case to give the certificate to the building licensee in
charge of the building work. The clause stipulates that where that certificate
is required to be given it must be given on the relevant inspection, or as soon
as practicable (but in any case within 2 business days), after inspection.
Clause 44 also creates
strict liability offences in respect of a certifier if the certifier contravenes
clause 44 (1) or 44 (2) of the Bill. The clause specifies a
maximum respective penalty of 10 penalty units for the offence, the same amount
for the corresponding regulatory offence in the Building Act
1972.
Clause 44 also entitles
a certifier to have testing done in order to assist in fulfilling the
certifier’s inspection function. The clause provides that a certifier
may, by written notice, require the building licensee in charge of the building
work to conduct, on the materials used or to be used in the work, on the
structure of the building, or in relation to anything else connected with the
work, the tests stated in the notice. However, the provision does not further
limit when that entitlement may be exercised. It is intended that the certifier
may exercise the entitlement at any time, whilst certifier for the work.
Clause 45 requires the building licensee
in charge of building work to keep records of tests under clause 44, and of other tests referred to in the
clause—any records of test borings, test loadings or other investigations
made to work out the permissible loadings on piles used in the building work,
pile-driving operations, calculations of allowable loadings and details of the
location of the piles, and any records of test loadings and excavations made to
work out the bearing capacity of the foundation for the building or proposed
building or building as proposed to be altered. The records mentioned are
required by the clause to be kept until a certificate of occupancy for the
building work is issued; and must be given to the certifier when the certificate
of occupancy is issued.
Clause
46
entitles a building inspector or certifier to, in writing, give the building
licensee in charge of building work directions about the safety precautions that
the inspector or certifier believes on reasonable grounds are necessary to
protect the safety of people using a street or place. It describes the 2
circumstances which must both exist for the clause to apply—firstly,
building work for which a building approval has been issued is being carried out
at or near to the street or place that is open to or used by the public.
Secondly, the building inspector or certifier finds, on inspection, that
inadequate safety precautions in relation to the building work are being taken
to protect the safety of people using the street or place. The clause has 2
examples to illustrate those circumstances—1: George is building a
swimming pool on his property, but the property is not yet fenced and is open to
the street; and 2: building work is being done on an are of the ground floor of
a building in Civic to which the public have access. The clause also has a note
about the application of examples. The clause also clarifies that the
directions on safety precautions may be given whether or not safety precautions
were submitted to the certifier who issued the building approval, and if safety
precautions were submitted—whether or not those precautions are being
complied with.
Clause
47
entitles a certifier to require the owner of a parcel of land where building
work is being, or has been, carried out to give the certifier the certificates
by professional engineers about the structural sufficiency, soundness and
stability of the building as erected or altered for the purposes for which the
building is to be occupied or used. However, it limits the circumstances under
which the certifier may exercise that entitlement—only if the certifier is
satisfied on reasonable grounds that it is desirable to do so in the interests
of people who occupy or use, or are likely to occupy or use, the building or
part of the building that is being, or has been, erected or altered. It also
clarifies that the certifier may exercise the entitlement at any time before or
after the completion of building work. However, it is intended that a person
can only exercise that entitlement whilst they are the certifier appointed for
the work.
Clause
48
sets out things required to be done when building work appears complete. It
explains that it applies if building work appears to have been completed and the
certifier is satisfied on reasonable grounds that—the work has been
completed in accordance with the Bill and substantially in accordance with the
approved plans, and the building or part of the building as erected or altered
is structurally sufficient, sound and stable for the purposes for which it is to
be occupied or used. The clause lists the things, all of which, within 7 days
after the day the certifier is satisfied, the certifier must give to the
construction occupations registrar. This list of things is as
follows—
(a) if a consent or approval mentioned in clause 27 (1) (b) was required to be
obtained—written evidence of the consent or approval;
(b) a copy of the (survey) plan mentioned in clause 43 (2) (a) (Stages of building
work);
(c) a copy of each (“passed” inspection)
certificate issued for the building work under clause 44 (2);
(d) if the regulations require that, on completion of
the building work, the consent or approval of anyone is to be
obtained—
written evidence of the obtaining of the consent or
approval;
(e) a certificate by the certifier that the building
work has been completed in accordance with this Bill and substantially in
accordance with the approved plans;
(f) if a certificate has been obtained under clause 47 (Structural engineer’s
certificate)—the certificate;
(g) if no certificate under clause 47 has been obtained—a written statement to
the effect that—
(i) the certifier is satisfied that the building or part
of the building as erected or altered is structurally sufficient, sound and
stable for the purposes for which it is to be occupied or used;
and
(ii) no certificate under clause 47 is required;
(h) if, in the certifier’s view, the requirements
of a stated subclause of clause 69 (Certificate
of occupancy) have been satisfied—written advice that the construction
occupations registrar would be justified in issuing a certificate of occupancy
for the building under the subclause;
(i) a copy of the following documents and papers
relating to the building work:
(i) any application to the certifier under this Bill and
any accompanying document;
(ii) all plans or drawings;
(iii) any approval, certificate, determination,
notification or permission issued or given (a relevant
document);
(iv) any certificate or other document given or prepared
by someone else that the certifier has relied on for the purpose of issuing or
giving a relevant document;
(v) the certifier’s working papers and
calculations that are relevant to the decision to issue, grant or give a
document mentioned in subparagraph (iii).
The clause also entitles the construction occupations
registrar to, in writing, exempt a certifier from complying, completely or
partly, with any subparagraph of subclause 48
(2) (i) of the Bill in relation to building work stated in the exemption. It
provides that a certifier is not required to give the construction occupations
registrar a copy of a document or paper mentioned in subclause 48 (2) (i) of the Bill if the certifier
has already given to the construction occupations registrar, under the Bill, the
document or paper, or a copy of the document or paper or if the registrar has
exempted the certifier under subclause 48 (3)
from giving the copy.
The clause also stipulates that it applies in relation
to a part of a building in the same way as it applies to a
building.
Clause 49 requires a person to carry out
building work only in a way that will, or is likely to, result in a building
that complies with the building code (the Building Code of Australia). It
creates a strict liability offence where a person fails to comply with that
requirement. The clause specifies a maximum respective penalty of 50 penalty
units for the offence, the same amount for the corresponding regulatory offence
in the Building Act 1972. Nevertheless, the clause also provides that it
is a defence to a prosecution for that offence if the person proves
that—the building work was carried out in accordance with approved plans;
and if the approved plans had been followed at the time of approval, the
resulting building would have complied with the building code. An intention is
that in those circumstances, where building work is being done, and a building
code requirement in relation to doing that work changes, the work can continue
to be done in accordance with the building approval and the code requirement
before it changed. Otherwise a change in the code could see partly done
building work having to be demolished and redone to comply with the change.
Other provisions in the Bill relating to the life of building approvals ensure
that such cases cannot fall more than 3 years behind the current building code
requirements without needing a fresh building approval. The fresh approval will
require the respective work to be done to the up-to-date provisions of the
building code as in force on the day of the approval.
The clause also explains that building work is taken not
to result in a building that complies with the building code if, for each
provision of the building code with which the building must comply—the
building will not comply with the deemed-to-satisfy provision of the building
code and the approved plans for the building work do not state an alternative
solution under the building code. An intention is to require all such work to
either be done in accordance with the relevant deemed-to-satisfy provision of
the building code or if an alternative solution under the building code is to be
relied upon in doing the work, it must be stated in the approved plans. That is
necessary to ensure that the plans serve as the single reference document that
records how a building’s design or construction departs from the
deemed-to-satisfy provision of the building code. That is important as often
such departures (alternative solutions) rely on the building having a particular
kind of element. For example, a consideration of an alternative solution in
respect of fire and smoke handling requirements may depend on a partly enclosed
car park having an open grill access door to permit required ventilation.
Replacing the door with a solid door could cause the car park to be more
dangerous than would be the case if it had an open grill type of door. It is
intended in that case the plans indicate that as part of an alternative solution
the door must be an open grill type for ventilation. The requirement to specify
such information in the plans was not a requirement in the Building Act
1972, but that Act requires such information to be provided in the
application for the plan approval.
Clause
50
requires a certifier to, as soon as practicable, notify the construction
occupations registrar of any contravention of the Bill that comes to the
certifier’s attention. It is intended that that requirement apply in
relation to work that the certifier is appointed certifier for, as a person is
not a certifier in respect of any other building work. The clause has a note
that a reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including regulations and the building code (see
Legislation Act, s 104). The clause also creates a strict liability offence
against a certifier for a failure by the certifier to comply with the
requirement. The clause specifies a maximum respective penalty of 5 penalty
units for the offence, the same amount for the corresponding regulatory offence
in the Building Act 1972.
The clause also provides a dispensation for certain
building work. The notification provision does not apply to building work only
because the work does not comply with clause 42
(Requirements for carrying on building work) of the Bill if the building
licensee in charge of the building work fixes the matter to the satisfaction of
the certifier within a reasonable time after the day the matter is brought to
the licensee’s notice. The clause also has an example to illustrate a
circumstance where that dispensation does not apply: it comes to a
certifier’s attention that a builder proceeded with building work above
the dampcourse level without a plan mentioned in clause 43 (2). That contravention of the Bill must be
reported under clause 50 (1), and clause 50 (2) does not have an effect because the
contravention relates to clause 43 (Stages of
building work), not clause 42. The clause also
has 2 further notes. One note explains that the certifier has the evidentiary
burden of establishing the matters mentioned in subclause 50 (2) (see Criminal Code, s 58). An
intention there is that a certifier who relies on the exemption from reporting
unlawful work bears the evidentiary burden of establishing that the exemption
applied to that work. The second note explains the application of
examples.
The clause also clarifies that the requirement that a
certifier notify under the clause applies even if a direction under clause 44 (2) (Stage inspections) has been given in
relation to the matter that constitutes the contravention, but only if the
defect is not dealt with in a reasonable time.
The clause is necessary as certifiers are privatised
regulators providing the only building inspection and approval process under the
Bill, and therefore it is beneficial that certifiers involve the registrar in
cases of unlawful building work. The registrar has wider powers for dealing
with such work than certifiers.
Clause 51 prohibits building work from
being carried out other than in accordance with clause 42 (Requirements for carrying out building work).
It creates a strict liability offence against a person if building work is begun
or carried out on a parcel of land in contravention of that prohibition and the
person is the owner of the parcel of land or is the person who carries out the
building work. The clause specifies a maximum respective penalty of 50 penalty
units for the offence, the same amount for the corresponding regulatory offence
in the Building Act 1972.
The clause sets out several defences against prosecution
under the clause. They relate to awareness of, or belief about, certain
circumstances set out in the clause.
Part 4 Stop and demolition
notices
Part 4 mainly provides entitlements to prohibit the
carrying out of building work and entitlements to require certain building work
to be carried out. The part’s provisions are based on the corresponding
provisions in the Building Act 1972, except that the Bill entitles
building certifiers to issue stop work notices whereas the Act didn’t.
That is to assist certifiers in their privatised-regulator
role.
Clause 52 defines what the term
easement includes for part 4 of the
Bill—easement includes an area of land identified as an
easement for electricity, telecommunication, water, drainage and sewerage
services in, on or over the land on certificate of title or on a deposited plan
under the Districts Act 2002.
Clause
53
entitles the construction occupations registrar, a building inspector or a
certifier to, by written notice (a stop notice), prohibit the
carrying out of any further building work or of building work stated in the
stop notice. It sets out a list of circumstances and provides
that it applies if any of the circumstances exist. The circumstances all relate
to how building work is being, or is to be, carried out, and are as
follows—
(a) without a building approval having been issued for
the work; or
(b) otherwise than in accordance with the approved plans
for the building work; or
(c) contrary to a provision of this Bill relating to the
building work; or
(d) if the building work is being carried out on a
parcel of land held under lease from the Commonwealth—contrary to a
provision, covenant or condition of the lease; or
(e) for building work forming part of a development
requiring approval under the Land Act, division 6.2—without the approval;
or
(f) for building work forming part of a development
approved under the Land Act, division 6.2—contrary to the approval, or a
condition of the approval; or
(g) for building for an exempt building—so that
the building, or part of the building, is or will be on an easement.
The term exempt building is defined in
clause 12. Clause 53 gives 2 examples of circumstances of carrying
out building work to which the clause applies—
1: the footings of a building have been poured and are
setting. The footings are on an easement. A stop notice can be
issued for the building work, which is to continue with the work on top of the
footings;
2: a concrete truck is about to deliver concrete to a
building site for which there needs to be an approved plan, although there is no
plan. A stop notice can be issued for the building work to be
done.
It is intended in the case of example 1 that the
stop notice can be issued regardless of the fact that it may not
be known what building work may be erected upon the footings, or regardless of
the fact that no evidence of intention to continue with work is at hand. The
clause also has a note about the application of examples to the Bill.
The clause also lists circumstances that cause a
stop notice to end. Those circumstances are—1) the person
who gave the stop notice cancels it, or 2) the grounds for giving
the stop notice no longer exist, or 3) the stop
notice is cancelled under clause 55
(Application by land owner for cancellation of stop notice) or clause 57 (Decision on application by other than land
owner). The clause has 7 examples of when the grounds for giving the stop
notice no longer exist. They refer to various paragraphs within
subclause 53 (1) of the
Bill—
1 if the ground for issue of the notice was clause (1)
(a)—an approval has been issued for the work;
2 if the ground for issue of the notice was clause (1)
(b)—the building work that was not in accordance with the approval has
been removed so that the remaining work complies with the existing building
approval or a new approval has been obtained that allows the building
work;
3 if the ground for issue of the notice was clause(1)
(c)—if the grounds of the contravention were that the building work was
being carried out by a person without a builder licence, an appropriately
licensed builder continues the building work;
4 if the ground for issue of the notice was clause (1)
(d)—the building work that was not in accordance with the lease is removed
or the lease varied to allow the work;
5 if the ground for issue of the notice was clause (1)
(e)—the missing approval is obtained;
6 if the ground for issue of the notice was clause (1)
(f)—the building work that was not in accordance with the approval is
removed or the approval varied to allow the work;
7 if the ground for issue of the notice was clause (1)
(g)—the building work that was on the easement is removed or the easement
is changed to allow the work.
The clause prohibits a stop notice being
issued for work in relation to an exempt building without a
building approval having been issued for the work or otherwise than in
accordance with the approved plans for the building work. The term exempt
building is defined in clause 12.
The clause is necessary to prevent the escalation of
risks associated with continuing with building work contrary to the respective
requirements. Those risks include wastage of resources arising from potentially
having to undo or redo unlawful building work, or the creation of structurally
dangerous building elements.
Clause 54 limits the operation of a
stop notice. It explains that it only applies if a stop
notice has been issued in relation to building work. It provides that a
stop notice does not prevent building work being carried out in
the particular circumstances it describes. The clause indicates the following
circumstance must exist for that provision to apply—doing the work does
not, or would not contravene the Bill. The clause further indicates that,
additionally, at least one of the following circumstances must also exist for
that provision to apply: the only purpose of the work (rectification
work) is to fix or reverse the building work that caused the stop
notice to be issued; or the work is necessary to ensure rectification
work is carried out safely.
The clause also has 2 examples that illustrate how it
applies—
1 a stop notice is issued in relation to
an extension on a house, which does not comply with the building code. The
extension may be pulled down, but the rest of the house may
not;
2 a garage has been built partly on an easement. If it
is decided to make the garage smaller so it is not on the easement, the building
of temporary supports necessary to support the roof and ensure the safety of the
rest of the garage while the garage is made smaller is building work allowed to
be done despite the stop notice.
The clause has a note about the application of examples.
Those examples assume that the rectification work they refer to is
done in a way that does not, or would not contravene the Bill. It is intended
that if the rectification work is carried out in a manner that is
a ground for a stop notice under the Bill, then another stop
notice is not prevented from being issued nor from having effect in
respect of the rectification work.
Clause
55
entitles the owner of a parcel of land to apply in writing to the construction
occupations registrar for cancellation of a stop notice, that
relates to the owner’s land, and entitles the registrar to have the
discretion to decide to subsequently cancel that stop notice or
not. The clause has a note that the ordinary rules of agency apply in relation
to an application under it. That clarifies that the landowner may appoint an
agent to act for the landowner and make the application on the landowner’s
behalf, and that in that case the application can be taken to have been made by
the landowner. The clause explains that it applies if a stop
notice has been given in relation to building work on a parcel of land,
regardless of who gave the notice. The clause explains that the landowner is
only entitled to make the application if the application gives reasons why the
stop notice should be cancelled. It is intended that the
construction occupations registrar decide each application unless the owner
withdraws the application or the subject notice otherwise ends. The clause
requires the construction occupations registrar to consider 3 things before the
registrar makes a decision on an application—
§ the application;
and
§ the reasons why the
stop notice was given; and
§ the current state of
the building work to which the notice relates.
The clause also puts a further condition on when the
registrar may cancel the notice—if the registrar is satisfied that the
cancellation will not endanger the public or people who will use the building on
which the building work is being, or is to be, done or affect public confidence
about the standard of building work in the ACT. It is not intended that the
clause effect any entitlement that the registrar has despite the application of
that clause, to cancel a stop notice that the registrar
issued.
Clause
56
entitles any person, except the owner of the relevant parcel of land, to apply
in writing to the construction occupations registrar for cancellation of a
stop notice, giving reasons why the notice should be cancelled.
It indicates that it applies if a stop notice has been given in
relation to building work on a parcel of land, regardless of who gave the
notice. On receiving an application, it requires the registrar to do 2
things—
§ give the owner of the
parcel of land a copy of the application; and
§ tell the owner in
writing that the owner may, within 2 weeks after the day the owner is given the
copy of the application, either make written comments to the registrar on the
merits of the application or tell the registrar in writing that the owner does
not object to cancellation of the stop notice.
Clause
57
entitles the construction occupations registrar to cancel a stop
notice if satisfied that the cancellation will not endanger the public
or people who will use the building on which the building work is being, or is
to be, done or affect public confidence about the standard of building work in
the ACT. It indicates that it applies if the following 3 criteria are all
satisfied—
§ a person has made an
application under clause 56 in relation to a
stop notice; and
§ the construction
occupations registrar has given the owner of the parcel of land to which the
stop notice relates the a copy of the application and the
information required under clause 56 (3) (b);
and
either—
§ the owner has told the
registrar in writing that the owner does not object to cancellation of the stop
notice; or the 2-week period for making written comments on the merits of the
application has ended.
The clause requires the construction occupations
registrar to consider 4 things before the registrar makes a decision on an
application—
§ the application;
and
§ the reasons why the
stop notice was given; and
§ any written comments
from the owner given to the registrar within the 2 weeks mentioned in clause 56; and
§ the current state of
the building work to which the notice relates.
It is not intended that clause 56 or 57 effect
any entitlement that the registrar has despite the application of those clauses,
to cancel a stop notice that the registrar
issued.
Clause
58
entitles the construction occupations registrar to give a notice (a
further notice) that states the building work (including
demolition) that is required to be carried out to ensure that the building work
for which a building approval was issued will be carried out in accordance with
the approved plans and the provisions of the Bill. It explains that the clause
applies if a stop notice has been given on a ground other than a
ground mentioned in clause 53 (1) (a) (which is
about building work for which there is no approval). The clause requires the
further notice to relate to the relevant stop
notice. The clause restricts the time period in which the registrar may
exercise that power to the period that is within 7 days after the day the
stop notice is given. The clause also restricts the exercising of
the power if the ground for the stop notice is mentioned in clause
53 (1) (f) (which is about building work that
does not comply with an approval). In that case the registrar may only give a
notice under clause 58 to carry out the
demolition of a building if the planning and land authority recommends giving
the notice. The clause provides that any building work done by a person to
comply with a notice under clause 58 is taken
not to contravene the respective stop notice. It is not intended
that that provision otherwise exempt the doing of an act or thing from the
application of any law including the Bill. Clause 58 also provides that a further
notice ends if the ground for the issue of the stop notice
to which it relates no longer exists.
Clause 59 lists various ways that a
stop notice or a further notice may be served. It
specifies that they may be given to—
§ the owner of the parcel
of land where the building work mentioned in the notice is being, or is to be,
carried out; or
§ the person by whom the
building work mentioned in the notice is being, or is to be, carried out;
or
§ for a stop
notice—on any person carrying out building work mentioned in the
notice; or
§ any 2 or more of the
people, jointly, to whom the notice may be given under paragraph (a), (b) or
(c).
The clause has a note—see clause 143 for service
of notices.
It is not intended that the clause prevent a stop
notice or further notice from being served in any other lawful
manner.
Clause 60 entitles the construction
occupations registrar to give the owner of the parcel of land where the building
work was carried out, or the person by whom the building work was carried out,
requiring the person to give to the registrar the plan mentioned in clause 43 (2) (a) of the Bill. That is a survey plan as
described in that clause, signed by a registered surveyor. It is intended that
the requirement operate regardless of the fact that the plan may not exist, and
in that case the person cause the plan to be created and given to the registrar.
The clause requires the notice to state the period within which the person must
comply with the notice and for that period to be at least 7 days after the day
the notice is given to the person. The clause explains that it applies if
building work for which a building approval has been issued has been carried out
in contravention of clause 43 (2) (Stages
of building work). That clause refers to other requirements in relation to the
above-mentioned plan.
The clause is necessary to ensure the location and
height of floors in building work can be readily checked against the survey plan
for compliance with the Bill’s requirements.
The Bill entitles the construction occupations registrar
to give a person a notice, in certain circumstances, requiring the person to
carryout building work. Clause
61
sets out a list of circumstances. It indicates that if such a circumstance
exists, that is a precondition for the giving of a notice under clause 62 (Notice to carry out building work), which
deals with notices requiring people to carryout building work. The
circumstances listed are—
(a) building work has been carried out without a
building approval required for the work;
(b) building work for which a building approval has
been given has been carried out in contravention of clause 42 (Requirements for carrying out building work),
or otherwise than in accordance with clause 43
(Stages of building work);
(c) building work, in relation to which a notice has
been served under this part, has been carried out otherwise than in accordance
with the notice;
(d) building work has been carried out on a parcel of
land held under lease from the Commonwealth, contrary to a provision, covenant
or condition of the lease;
(e) building work forming part of a development
requiring approval under the Land Act, division 6.2 has been carried out without
the approval;
(f) building work forming part of a development
approved under the Land Act, division 6.2 has been carried out contrary to the
approval, or a condition of the approval;
(g) building work in relation to an exempt building
work has been carried out so that the building or part of the building is, or
will, be on an easement;
(h) the construction occupations registrar finds, on
inspection, that—
(i) for a building if plans or plans and specifications
in relation to its erection or alteration have been approved under this
Bill—the completed building has deteriorated, or is likely to deteriorate,
so that the building is, or is likely to become, unfit for use as a building of
the class stated, or for the purpose stated in the plans or plans and
specifications approved for the most recent building work carried out in
relation to the building; or
(ii) for a building other than a building of a kind
mentioned in subparagraph (i)—the completed building has deteriorated, or
is deteriorating, so that the building is, or is likely to be, unfit for any
kind of use; or
(iii) building work has not been completed when the
building approval for the building work ended; or
(iv) a building or part of a building is not
structurally sound; or
(v) the maximum safe live load, or the load that a
building was designed to carry, has been exceeded; or
(vi) injury to people or damage to property may result
from a part of a building becoming detached because of the external condition of
the building; or
(vii) a building or part of a building is unsafe
because of fire hazard or unfit for use because of a danger to
health.
Clause
62
establishes the construction occupations registrar’s entitlement to
require building work to be done. It provides that if a precondition under
clause 61 exists in relation to building work
on a parcel of land, the registrar may give the owner of the parcel a notice
directing the owner to carry out stated building work (including demolition) on
the parcel within a stated period, in the notice.
The clause further provides that the notice may also
include a direction to the owner to submit plans for approval and obtain the
issue of a building approval. The clause also explains that if building work
has been carried out in the circumstances mentioned in clause 61 (a), a notice given by the registrar under
subclause (1) is taken to have been revoked if a certifier, on application by or
on behalf of the owner of the parcel of land made under this Bill within 2 weeks
after the day the notice is given, issues a building approval for the building
work. The above-mentioned clause 61 (a)
relates to building work that has been carried out without a building approval
required for the work. Clause 62 also limits
the registrar’s entitlement to require a person to do building
work—it does not allow the registrar to require a person doing building
work in relation to an exempt building to obtain an approval for
the building work. The meaning of the term exempt building is
defined in clause 12.
Clause 62 also
restricts the registrar’s entitlement to require demolition on clause 61 (f) grounds (building work forming part of
a development approved under the Land Act, division 6.2 has been carried out
contrary to the approval, or a condition of the approval). The clause explains
that if building work has been carried out in the circumstances mentioned in
clause 61 (f), the registrar may only give a
notice under clause 62 to carry out the
demolition of a building if the planning and land authority recommends the
demolition. The clause also provides that a notice given to the owner of a
parcel of land by the registrar under subclause 62 (1) directing the person to carry out building
work may state reasonable safety precautions to be taken in carrying out the
building work. An intention is to expand the application of the notice so it is
not limited to building work but so as it can include a requirement that the
person do other activities that are reasonable safety precautions to be taken in
carrying out the building work. It is not intended that a notice that fails to
state such precautions allow the person doing the building work to not take
reasonable safety precautions.
Clause 62 also creates
an additional requirement for certain persons—if the owner of a parcel of
land does not hold a builder licence that authorises the doing of building work
required to be done by a notice under this clause, and the building work is
required to be done by a building licensee, the owner must appoint someone to do
the work who has a builder licence that authorises the work.
Clause 63 requires that the owner of the
parcel of land must give the construction occupations registrar the fees that
would have been payable to the registrar if the owner had been required to
submit plans for approval and that would have been payable to the registrar by
the certifier for a building approval in relation to that building work. An
intention is to ensure that the creation of the system for requiring
noncompliant building work to be brought into compliance does not also amount to
a method of avoiding the payment of fees that would have been payable had the
building work been initially done in a complaint manner. The clause indicates
that it only applies if the owner of a parcel of land is directed by a notice
under clause 62 (1) to carry out building work
(other than demolition) and the notice contains no requirements about the
approval of plans or the obtaining of a building approval.
Clause
64
creates a strict liability offence against a person if the person is given a
notice under part 4 of the Bill and the person contravenes the notice. The
provision caters for a circumstance such as where for example the person
required by a notice to do building work is denied access to the site of the
work, and thereby is unable to fulfil the requirement. It provides that that it
is a defence to a prosecution for an offence against subclause 64 (1) if the defendant establishes that the
defendant paid a reasonable amount to have the work done by someone else who was
licensed to do the work. It is intended that that defence can operate
regardless of if or not the person given the money caused the required work to
be done. The clause specifies that the maximum penalty for the offence is 50
penalty units, the same amount for the corresponding offence in the Building
Act 1972.
Part 5 building occupancy
Part 5 of the Bill relates mainly to requirements in
connection with the occupancy and use of buildings. The part’s provisions
are based on the corresponding provisions in the Building Act
1972.
Clause 65 explains that part 5 does not
apply to building work in relation to an exempt building. The
meaning of the term exempt building is defined in clause 12. Division 5.1 of the Bill mentions the term
prescribed requirements and clause
66
defines what the term prescribed requirements means in division
5.1 of the Bill—in relation to building work it means the requirements of
the Bill or the requirements of the approved plans for the work. The clause has
a note—a reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and the
building code (see Legislation Act, s 104).
Division 5.1 requires the construction occupations
registrar, in certain circumstances, to work out whether building work has been
completed in accordance with the prescribed requirements for that
division. Clause 67 provides that, in working out whether
building work has been completed in accordance with the prescribed
requirements, the construction occupations registrar may have regard to
certificates and other documents given to the registrar by the certifier under
clause 48 of the Bill. That clause 48 relates to documents and things that the
certifier is required to give the registrar, when that work appears complete,
that relate to the building work. It is not intended that the registrar be
required to have regard to any of those documents, but rather the registrar may
have regard to anything that the registrar believes is relevant in working out
whether building work has been completed in accordance with the prescribed
requirements for Division 5.1
Division 5.1 also relates to the giving of certain
certificates that mainly relate to the occupancy or use of buildings. Clause
68 provides that the giving of a certificate under division 5.1 in
relation to a building or part of a building does not affect the liability of
anyone to comply with the provisions of a Territory law (including the Bill)
relating to the building or part of the building.
Clause
69
requires the construction occupations registrar to issue certain various
certificates in certain various circumstances mentioned in the clause. There
are 3 broad circumstances—
1. If building work involving the erection or alteration
of a building has been completed in accordance with the prescribed
requirements for the building work, the construction occupations
registrar must, on application by the owner of the parcel of land where the
building work was carried out, issue a certificate that the building work has
been completed in accordance with the requirements and that the building as
erected or as altered is fit for occupation and use as a building of the class
stated in the approved plans for the building work.
2. If building work involving the erection or alteration
of a building as completed is not strictly in accordance with the
prescribed requirements for the building work but is substantially
in accordance with the requirements, the construction occupations registrar may,
on application made by the owner of the parcel of land where the building work
has been carried out, issue a certificate that the building as erected or as
altered is fit for occupation and use as a building of the class stated in the
approved plans for that building work.
3. If part of a building has been erected in accordance
with the prescribed requirements so far as they relate to the part
of the building, the construction occupations registrar may, on an application
made by the owner of a parcel of land where the building is being erected, issue
a certificate that the part of the building is fit for occupation and use as a
part of a building of the class stated in the approved plans in relation to the
building work.
(Clause 73 sets out
some other information that a certificate may have to specify). (For the meaning
of prescribed requirements, see clause 66). Clause 69
also mentions a method of obtaining certain evidence of how the prescribed
requirements for the building work that relate to plumbing, sewerage and
drainage have been complied with, and a method of obtaining certain evidence of
how the prescribed requirements for the building work that relate
to electrical wiring work have been complied with for the purposes of clause 69—
§ a certificate under the
Water and Sewerage Act 2000 that the plumbing, sewerage and drainage work
carried out in building work complies with the prescribed requirements for the
building work relating to plumbing, sewerage and drainage work is evidence of
the fact; and
§ a certificate signed by
an inspector under the Electricity Safety Act 1971 certifying that the
electrical wiring work, as defined by the Electricity Safety Act 1971,
carried out in the building work complies with the prescribed requirements for
the building work relating to the electrical wiring work is evidence of the
fact.
Clause 69 also has a
note—a reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
Clause 70 requires the construction
occupations registrar to cancel a certificate of occupancy that relates to a
part of a building if the clause applies. It explains that it applies if both
of the following circumstances exist—
§ a certificate of
occupancy has been issued under clause 69 (3)
for a part of the relevant building; and
§ the construction
occupations registrar, on completion of the whole of the building work, issues a
certificate of occupancy for the whole of the building.
Clause
71
requires the construction occupations registrar to issue a certificate to the
effect that building work was carried out in accordance with the
prescribed requirements for the work, if the clause applies. (For
the meaning of prescribed requirements, see clause 66). It explains that it applies if both of the
following circumstances exist—
§ the relevant building
work (involving the demolition of a building) has been completed in accordance
with the prescribed requirements for the building work; and
§ the owner of the parcel
land where the building work was carried out made application to the
construction occupations registrar for the certificate.
(Clause 73 sets out
some other information that a certificate may have to specify).
Clause
72
requires the construction occupations registrar to issue a certificate to the
effect that building work was carried out in accordance with the
prescribed requirements for the work, if the clause applies. (For
the meaning of prescribed requirements, see clause 66). It explains that it applies if both of the
following circumstances exist—
§ the relevant building
work (involving the erection of a structure on or attached to land or a
building) has been completed in accordance with the prescribed
requirements for the building work; and
§ the owner of the parcel
land where the building work was carried out made application to the
construction occupations registrar for the certificate.
Clause
73
provides that if the construction occupations registrar issues a certificate for
building work carried out by a person who holds an owner-builder licence, the
certificate must include a statement to the effect that part 6 (Residential
building—statutory warranties, insurance and fidelity certificates) may
not apply in relation to the building work. It is not intended that the
registrar need determine the status of the application of that insurance in that
circumstance, but rather that the certificate contain the required statement to
serve as a warning to the effect that the insurance may, or may not apply
partially or wholly, as part 6 does not require such insurance or certificates
in respect of work to be done under an owner-builder licence.
Clause
74
entitles an application to be made for a certificate that a building to which
the clause applies is fit for occupation. It explains that only a person that
is eligible under that clause can make such an application. The clause sets out
the relevant eligibility criteria for that person—
• if when the
application is made, the building is on land held under a lease from the
Commonwealth, the application may be made by the lessee; or
• if, when the
application is made, the building is not on land held under a lease from the
Commonwealth, the application may be made—
(a) if the land is held by a person, including the
Territory, under a tenancy from the Commonwealth, whether or not the occupier is
the tenant or a subtenant by the Commonwealth or the tenant; or
(b) if the land is held under a tenancy from the
Territory, whether or not the occupier is the tenant or a subtenant, by the
tenant; or
(c) for national land—the Commonwealth; or
(d) for Territory land—the
Territory.
The clause also sets out the things that an application
under it must take account of. They are that the application
must—
(a) be in writing signed by or on behalf of the
applicant; and
(b) provide sufficient information to allow the building
to be identified; and
(c) be accompanied by a copy of the plans and
specifications relating to—
(i) the erection of the building and any alteration to
it; or
(ii) the building when the application is made; and
(d) state the purpose for which the building or each
part of the building is being used; and
(e) if it is intended that any part of the building be
used for a purpose other than the purpose for which it is being used when the
application is made—state the intended purpose.
Clause 74 also has a
note that a fee may be determined under clause 149 for clause 74. The clause also lists the circumstances that
must exist for the clause to apply to a building—a certificate of
occupancy or regularisation must not have been issued for the building and the
building must have been erected on land that, when the building was erected, was
held: by the Commonwealth, or by the Territory, or by someone else under a lease
from the Commonwealth.
Clause
75
sets out what the construction occupations registrar is required to do if the
registrar receives an application for a certificate under clause 74. It requires the registrar, on receiving an
application under clause 74, and is satisfied
that the building complies with subclause 75 (2)—issue a certificate
(certificate of regularisation) that the building is fit for
occupation if each part of it is used only for the purpose stated in the
certificate; or in any other case to refuse the application. The clause also
sets out criteria for a building to comply with in order for the building to
comply with subclause 75 (2)—
(a) if it is structurally sound and can withstand the
loadings likely to arise from its expected use; and
(b) contains reasonable provision for—
(i) the safety of people likely to be in the building if
there is a fire, including the provision of adequate facilities for leaving the
building; and
(ii) the prevention and suppression of fire; and
(iii) the prevention of the spread of fire.
Clause 75 also
describes some things that the register is entitled to do to decide whether a
building complies with subclause 75
(2)—the construction occupations construction occupations registrar may
require the applicant for the certificate to provide the registrar with a
written statement by a qualified licensed construction
practitioner that deals with the matters mentioned in subclause 75 (2) (a) and (b), or such of the
matters as the registrar states, and the registrar may consider that statement.
It is not intended that the registrar be required to obtain, nor consider, such
a statement in deciding whether a building complies with subclause 75 (2). Clause 75 defines what the term qualified licensed
construction practitioner means for that clause—qualified
licensed construction practitioner means a person who—is licensed
under the Construction Occupations (Licensing) Bill 2003; and in the
construction occupations registrar’s opinion, has sufficient expertise to
provide a statement under subclause 75 (3) that
would help the registrar to decide whether the building complies with subclause
75 (2).
Clause 75 also
indicates what the construction occupations registrar is required to do if the
registrar grants an application under it—if the construction occupations
registrar grants the application, the registrar must issue to the applicant a
certificate that the building is fit for occupation if each part of the building
is used only for the purpose stated in the certificate.
Clause
76 creates a strict
liability offence against a person if the person occupies or uses, or allows
someone else to occupy or use, a building or part of a building, and the
construction occupations registrar has not issued a certificate of occupancy for
the building or part of the building. It is not intended that such occupation
or use include occupation or use of the building for the purposes of building,
demolishing or inspecting the building under the Bill, or for purposes
incidental to those purposes. The clause specifies that the maximum penalty for
the offence is 50 penalty units, the same amount for the corresponding
regulatory offence in the Building Act
1972.
For the same reasons, the clause creates a strict
liability offence against a person if all of the following 3 circumstances
exist—
(a) the construction occupations registrar has issued a
certificate of occupancy for only a part of a building (the approved part);
and
(b) the person occupies or uses, or allows someone else
to occupy or use, a part of the building for which no certificate of occupancy
has been issued; and
(c) the purpose of the use is not incidental to the use
of the approved part.
It is not intended that such occupation or use include
occupation or use of the part of the building for the purposes of building,
demolishing or inspecting the part under the Bill, or for purposes incidental to
those purposes. The clause specifies that the maximum penalty for the offence
is 50 penalty units, the same amount for the corresponding regulatory offence in
the Building Act 1972.
The clause also explains that the use of the term
building in the clause does not include a building for which a
certificate of regularisation has been issued.
Clause
77
creates a strict liability offence against a person if the
person—
(a) occupies or uses, or allows someone else to occupy
or use, a building or part of a building—
(i) for a building in relation to the erection or
alteration of which plans have been approved under this Bill—as a building
or part of a building of a class other than the class stated in the plans
approved in relation to the most recent building work that has been carried out
in relation to the building; or
(ii) for a building in relation to the erection or
alteration of which plans have been approved only under the repealed
laws—for a purpose other than that stated in the plans and specifications
approved in relation to the most recent building work that has been carried out
in relation to the building; and
(b) the construction occupations registrar has not given
written approval for the occupation and use.
The clause specifies that the maximum penalty for the
offence is 50 penalty units, the same amount for the corresponding regulatory
offence in the Building Act 1972.
Subclause 77 (3)
requires the construction occupations registrar to, on written application, give
his or her written approval for the occupation and use of a building or part of
a building as a building or a part of a building of a class stated in the
application if the registrar is satisfied that a reasonable certifier would,
under this Bill, approve the plans for the erection of the building or part
if—
(a) the building or part had not been erected and the
certifier were then and there considering the plans; and
(b) the plans required the building or part to be of the
same class as that stated in the application.
An example of the intention of that provision is to
allow in that circumstance a person to apply for approval to use a building as a
class of building that is different to the class stated in the certificate of
occupancy for the building. Clause 77 also
clarifies that if a parcel of land is held under a lease from the Commonwealth,
an approval given by the construction occupations registrar under subclause 77 (3) in relation to the parcel of land does not
authorise the use of the parcel for a purpose other than the purpose for which
the lease was granted nor for the use of the parcel of land contrary to a
provision, covenant or condition of the lease. Clause 77 also explains that the use of the term
building in the clause does not include a building for which a
certificate of regularisation has been issued.
Clause
78
creates a strict liability offence against a person if the person occupies or
uses, or allows anyone else to occupy or use, a building to which it applies, or
a part of the building, for a purpose other than the purpose stated in the
certificate of regularisation. It explains that it applies to a building for
which a certificate of regularisation has been issued that is on
land held under a lease or tenancy from the Commonwealth by a person other than
the Territory or is on land held under a sublease or tenancy from the Territory.
The clause specifies that the maximum penalty for the offence is 50 penalty
units, the same amount for the corresponding regulatory offence in the
Building Act 1972.
Clause
79
creates a strict liability offence against a person if the person fails to
comply with the requirements of a notice given to the person under the clause.
It explains that a person to whom a notice under subclause 79 (3) is given must not fail to comply with the
notice and that a person who contravenes that provision commits the offence, in
relation to each day the person contravenes the subclause (including any day
when the person is convicted of an offence). The clause also lists the
circumstances that must exist for it to apply—if, after being convicted
for an offence against a building occupancy offence section, a person continues
to use or continues to allow someone else to use a building or a part of a
building in contravention of the section for an offence against which the person
has been convicted.
The clause defines what the term building
occupancy offence section means for the clause—any of the
following clauses of the Bill:
• clause 76 (Occupation
and use of buildings);
·• clause 77 (Use
of restricted buildings);
·• clause 78
(Occupation and use of ex-government buildings).
Subclause 79 (3)
entitles the construction occupations registrar to, by written notice to the
occupier or to the person allowing the occupation (or
both)—
(a) for a conviction for an offence against section
76—require the building to be vacated within the period stated in the
notice; or
(b) for a conviction for an offence against section 77
or 78—require the occupation or use of the building or the part of the
building in contravention of that section to stop within the period stated in
the notice.
The clause specifies that the maximum penalty for the
offence is 50 penalty units, the same amount for the corresponding regulatory
offence in the Building Act 1972.
Clause 80 requires a copy of each
certificate issued under part 5 of the Bill to be kept in the construction
occupations registrar’s office and entitles anyone to inspect a
certificate at the registrar’s office during the hours the office is open
for business. The clause also mentions that if the registrar issues a
certificate under clause 69 (1) or (3)
(Certificates of occupancy) for a building or part of a building and a copy of a
certificate of occupancy for the building or part of a building is already being
kept in the registrar’s office, the registrar must replace the earlier
certificate with a copy of the later certificate. It is not intended that the
registrar be prevented from separately keeping an archive of earlier copies of
such certificates. But it is intended that the copy that is usually available
is to be the latest copy kept by the registrar.
Safe floor loading
Clause
81
creates 4 strict liability offences in relation to floor loadings of buildings.
They apply in relation to class 5, class 6, class 7, class 8 or class 9
buildings, as classified by the Building Code of Australia. Those classes
relate to non-residential use buildings, (the descriptions of classes in that
code give greater detail about classes and respective uses). The maximum
penalty for each offence under the clause is 5 penalty units, the same amount
for the corresponding regulatory offence in the Building Act 1972. The 4
offences for the clause are set out below.
1. Subclause (1) creates an offence against a building
owner if that owner contravenes that subsection, which provides—if a
certificate is issued under this part on the completion of a class 5, class 6,
class 7, class 8 or class 9 building or on the completion of the alteration of
such a building, the owner of the building must attach, in a conspicuous place
on the walls of each storey of the building, in way approved in writing by the
construction occupations registrar, the number of metal plates of a size and
form approved in writing by the registrar showing the maximum live load for
which the floor on that storey has been designed.
2. Subclause (3) creates an offence against a building
owner as follows—the owner of a building commits an offence
if—
(a) the building is altered; and
(b) a later certificate is issued under part 5 of the
Bill for the altered building; and
(c) when the certificate is issued, the safe live load
for a floor of that building is different from that shown for that floor on the
metal plates attached to the walls of the floor under subsection (1); and
(d) the owner does not substitute other plates showing
the current maximum safe live load for the floor.
3. Subclause (4) creates an offence a building owner if
the owner fails to maintain each plate under the clause.
4. Subclause (5) creates an offence against a person if
the person occupies a building or part of a building in relation to which plates
are required to be attached or substituted under this clause before they have
been so attached or substituted. It is not intended that the provision apply in
respect of occupation of a building for the purposes of, or incidental to,
building, demolishing or inspecting the building under the Bill or attaching,
substituting or maintaining the plates under the Bill.
The clause stipulates that an approval of a
plate’s attachment and size and form by the construction
occupation’s registrar is a notifiable instrument.
Clause 82 creates a strict liability
offence against a person if the person is the owner or occupier of a building
which has a safe live load plate mentioned in clause 81 showing a maximum live load for a floor and
each person fails to ensure that the maximum live load shown on the metal plate
is not exceeded on that floor. The maximum penalty for the offence is 50
penalty units, the same amount for the corresponding regulatory offence in
the Building Act 1972. The clause is needed to ensure buildings are not
structurally overloaded.
Part 6 Residential buildings—statutory
warranties, insurance and fidelity certificates.
Part 6 mainly creates a warranty that applies in certain
circumstances, and a requirement to have certain insurance or a certain kind of
certificate that relates to the risk of loss associated with breach of the
warranty. The part’s provisions are based on the corresponding provisions
in the Building Act 1972.
Warranty for residential building
work
Clause
83 indicates that part 6
does not apply to building work in relation to an
exempt building; or building work
exempted under the regulations. (Clause 12
defines the meaning of the term exempt building). The benefits
gained from applying part 6 requirements to exempt buildings does not justify
the consequential cost and effort of enforcing that application due to the fact
that exempt buildings are generally minor buildings and structures of low or
moderate cost.
Clause
84
defines or clarifies the meaning of certain terms used in part 6 of the Bill.
In particular it defines the term residential building as
meaning—
a building intended mainly for private residential use,
or a part of such a building, if—
(a) the building has no more than 3 storeys at any
point, excluding any storey used exclusively for parking; or
(b) for a part of a building—the part provides
structural support, or is a structurally integral adjunct, to the
building.
An intention is to balance the public benefit stemming
from requiring warranty coverage, with the reluctance of the insurance industry
to provide warranty insurance cover to high-rise buildings. Warranty insurance
or fidelity fund certificates are required under Part 6 of the Bill.
The clause provides several examples to illustrate how
the term residential building can be applied in various different
contexts, and a note about the use of examples—
Examples
1 A building has shops on its ground storey, a hotel on
its 2nd storey and private residential units on its 3rd storey. It is not a
residential building because it is not used mainly for private residential
use.
2 A building has 2 wings, which are structurally
independent of each other. The north wing has 3 storeys including the ground
storey. The south wing has 6 storeys including the ground storey. All storeys
contain residential units. The north wing is a residential building. The south
wing is not a residential building because it is 6 storeys.
3 A building has 2 wings that are dependent on each
other for structural support. The north wing has 3 storeys including the ground
storey. All storeys contain residential units. The lower 3 storeys of the south
wing are structurally integrated with the north wing. A structural instability
in any of the lower 3 storeys in the south wing could compromise the structural
integrity of both wings of the building. The south wing storeys that are higher
than the north wing are structurally independent of the north wing. The north
wing of the building is a residential building. The lower 3 storeys of the south
wing are a residential building to the extent that they are a structurally
integral adjunct to the building as a whole. The upper 3 storeys of the south
wing are not a residential building because they are over 3 storeys and not a
structurally integral adjunct to the building.
4 A 4-storey residence has a parking garage as its
ground storey. A structural instability in the garage could compromise the
building’s structural integrity. The garage is a residential building
because it is a structurally integral adjunct to the building and the building
is a residential building.
5 A single storey residence has a garage attached at
the side. The roof trusses of the building span across the residence and garage
in a single span. A structural instability in the garage could compromise the
structural integrity of the roof trusses and, because of that, compromise the
structural integrity of the building. The garage is a residential building
because it is a structurally integral adjunct to the building and the building
is a residential building.
6 A single storey residence has a garage attached at
the side and under the same roofline as the residence. The garage is mainly used
for cars and is not for residential use. No structural elements of the residence
depend on the garage for structural integrity. A structural instability in the
garage could not compromise the structural integrity of the residence. The
garage is not a residential building because it is not a structurally integral
adjunct to a building intended primarily for residential use. The residence,
apart from the garage, is a residential building.
Note—an example is part of the Bill, is not
exhaustive and may extend, but does not limit, the meaning of the provision in
which it appears (see Legislation Act, s 126 and s 132).
Clause
85
defines the meaning of the term completion day for residential
building work, for part 6 of the Bill—it means the day the work is
completed or the day the contract relating to the work ends, whichever is the
later. The clause also explains that, without limiting that meaning, the work
is taken to have been completed no later than the day a certificate of occupancy
(if any) is issued for the work. Those certificates are provided under part 5
of the Bill.
That statutory warranty created by part 6 of the Bill
applies in relation to certain building work of a certain cost. It is not
efficient to require warranty insurance for building work less than that cost,
and the insurance industry is reluctant to provide warranty insurance for
building work greater than that cost. Clause 86 explains what,
for part 6, the cost of building work is—
(a) if a contract has been entered into for carrying out
of the building work—the cost of the work as fixed by the contract
(including the cost of any engineering service in relation to the land where the
building work is to be carried out, but excluding the cost of the land where the
building work is to be carried out); or
(b) in any other case—
(i) an amount agreed between the construction
occupations registrar and the builder; or
(ii) if an amount is not agreed—an amount worked
out by the registrar.
Clause 87 lists the kinds of things that
part 6 of the Bill does not apply to in relation to residential building
work. (For the meaning of the term residential building
work see clause 84). The clause
indicates that part 6 does not apply where residential building
work is—
(a) carried out or to be carried out by or for the
Territory or the Commonwealth, a Territory authority or an authority established
under a Commonwealth Act; or
(b) in relation to which an owner-builder licence has
been granted; or
(c) if the cost of the work is less than the amount
prescribed under the regulations; or
(d) in relation to a building or dwelling other than a
class 1 or class 2 building (which are essentially residential buildings under
the Building Code of Australia).
However, the above-mentioned provision of the clause
does not prevent part 6 of the Bill from applying in relation to
residential building work carried out in relation to a garage that
provides structural support for, or constitutes a structurally integral adjunct
to, a class 1 or class 2 building. (See the Building Code of Australia for a
description of those classes of building; they are certain kinds of dwellings).
It is intended that a test to determine if a garage does not provide structural
support for, or is a structurally integral adjunct to, a building is if the
entire garage can be removed without adversely affecting any other structural
member of the remaining building.
Clause
88
creates a statutory warranty. Its force is to affect every
contract for the sale of a residential building, and every contract to carry out
residential building work to which a builder is a party, so that the contract is
taken to contain a warranty under the clause. An intention is that regardless
as to whether or not such contracts provide such a warranty, the effect of the
clause is to place that statutory warranty into all such
contracts. The clause spells out the particulars of the statutory
warranty as set out below.
The builder warrants the following:
(a) that the residential building work has been
or will be carried out in accordance with the Bill;
(b) that the work has been or will be carried out in a
proper and skilful way and in accordance with the plans approved for the work by
the construction occupations registrar;
(c) that good and proper materials for the work have
been or will be used in carrying out the work;
(d) if the work has not been completed, and the contract
does not state a date by which, or a period within which, the work is to be
completed—that the work will be carried out with reasonable
promptness;
(e) if the owner of the land where the work is being or
is to be carried out is not the builder, and the owner expressly makes known to
the builder, or an employee or agent of the builder, the particular purpose for
which the work is required, or the result that the owner desires to be achieved
by the work, so as to show that the owner is relying on the builder’s
skill and judgment—that the work and any material used in carrying out the
work is or will be reasonably fit for the purpose or of such a nature and
quality that they might reasonably be expected to achieve the
result.
The clause also explains that each of the owner’s
successors in title succeeds to the rights of the owner in
relation to the statutory warranties. It is intended that transferring title in
the land where the building exists or is to be done will not cause the warranty
to be void and the new title-owner will be entitled to the benefit of the
warranties. The clause also explains that the warranties end at the end of the
period prescribed under the regulations after the completion day
for the work (Clause 85 defines the
meaning of the term completion day). Clause 88 also clarifies what the term
owner means in the clause—
(a) for a contract mentioned in subclause (1) for the
sale of a residential building—the person to whom title in the land where
the building was built is transferred under the contract; or
(b) for a contract mentioned in subclause (1) to carry
out residential building work—the owner of the land where the work is to
be carried out under the contract.
Clause 89 clarifies that the Bill does not
limit the liability a builder would have to anyone apart from the
Bill.
Coverage against breach of building
warranty
Clause 90 lists criteria for
compliant residential building work insurance. The criteria
covers—
• the kind of insurer that issues the
insurance—for compliance it must be an authorised insurer,
(see the dictionary at the end of the Bill for the meaning of authorised
insurer)
• the amount of coverage (for compliance it
must provide for a total amount of insurance cover of at least the amount
prescribed under the regulations, or the cost of the work, whichever is less,
for each dwelling that forms part of the work);
• who it insures (if the builder is not the
owner of the land where the work is to be carried out—for compliance it
must insure the owner and the owner’s successors in title for the period
beginning on the day the certifier in relation to the for the work issues a
building commencement notice under section 37 for to the work and ending at the
end of the period prescribed under the regulations after the day a certificate
of occupancy is issued for the work. If the builder is the owner of the land
where the work is to be carried out—for compliance it must insure the
builder’s successors in title for the period beginning on the day the
title in the land is transferred to someone else and ending at the end of the
period prescribed under the regulations after the day a certificate of occupancy
is issued for the work. (See part 5 of the Bill for certificates of
occupancy));
• how much of the premium is paid (for
compliance the whole of the premium payable for the period of the insurance must
have been paid);
•
what risks the insurance covers (for
compliance it must insure the owner (if the builder is not the owner) and the
owner’s successors in title against the risk of being unable to enforce or
recover under the contract under which the work has been, is being or is to be
carried out because of the insolvency, disappearance or death of the builder.
It must also insure the owner (if the builder is not the owner) and the
owner’s successors in title against the risk of loss resulting from a
breach of a statutory warranty. It must also insure the owner (if
the owner is not the builder) and the owner’s successors in title against
the risk of loss resulting, because of the builder’s negligence, from
subsidence of the land. (Clause 88 gives
particulars of the statutory warranty));• the period claims may be made within
(for compliance it must provide that a claim under it may only be made within
the period prescribed under the regulations, or a longer stated period after the
claimant becomes aware of the existence of grounds for the
claim);
• the form of the policy (for compliance
the form of the policy must have been approved in writing by the construction
occupations registrar).
However, subclause (2) stipulates that if the owner is a
developer, the insurance is taken to comply with subclause (1)
(c), (f), (g) or (h) if it insures the owner’s successors in title, even
though it does not insure the owner. Those subclauses infer that the required
insurance must cover the owner but an intention of subclause (2) is to not
require a developer that is a landowner to provide insurance covering the
developer as part of the required insurance.
The clause also explains that to remove any doubt, an
insurance policy issued in relation to residential building work may exclude
claims other than those in circumstances in which the builder is insolvent, dead
or has disappeared. They are the only respective circumstances that the
insurance is required to cover.
The clause also defines for the clause the meaning of
the term developer, for residential building work—it means a
person for whom the work is done in a building or residential development where
4 or more of the existing or proposed dwellings are or will be owned by the
person.
It is necessary to stipulate the criteria for compliant
residential building work insurance for 2 main reasons: to set minimum benefit
levels for the insurance coverage (a consumer protection); and to set its
maximum benefit levels (to limit insurers’ liabilities and thereby
encourage the insurance industry to provide the insurance
product).
Clause 91 stipulates how certain things
operate in relation to compliant residential building work
insurance—
• a complying residential building insurance
policy may provide that the authorised insurer who issues the policy is not
liable for the amount prescribed under the regulations, or the stated lesser
amount, of each claim;
• in calculating the amount of the premium payable
in relation to a complying residential building insurance policy,
the value of the work is taken to be equal to the cost of the
work;
• a provision, stipulation, covenant or agreement
that negatives, limits or modifies or purports to negative, limit or modify the
operation of part 6 of the Bill is void;
• a complying residential building insurance
policy is not be taken to be invalid only because it contains a term,
condition or warranty not contained in the form of policy approved by the
construction occupations registrar; but such a term if so unapproved is void.
An intention is that in addition to the form of the policy approved by the
registrar the policy may contain other terms, conditions or warranties, but the
affect of the clause is to make those extra things void.
Clause 92 prohibits an authorised insurer
from avoiding liability under a complying residential building
insurance policy only because the policy was obtained by
misrepresentation or nondisclosure by the relevant builder.
Clause 93 places certain limitations on
what an owner can recover from an insurer under a complying residential
building insurance policy. It explains that the owner is not entitled
to recover from the insurer any amount by which the amount paid exceeds the cost
of the work done. However, if the owner has paid a deposit on the
work and the cost of any work done is less than the amount of the
deposit, the owner may recover from the insurer the lesser of the
following amounts: (a) the amount equal to the amount of the
deposit less the cost of any work done, or (b) the amount
prescribed under the regulations less the cost of any work done. The clause
also describes the circumstances that must exist for it to apply. It applies if
all 4 of the following apply—1) the builder is not the owner of the land
where the builder is carrying out residential building work; 2) the builder
fails to complete the work because the builder becomes insolvent;
3) the owner has paid the builder part or all of the cost of the work; and 4)
the work is insured under a complying residential building insurance
policy.
The clause also describes the circumstances that must
exist for a builder to be taken as being insolvent for the
purposes of the clause—if the builder becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an assignment of his or her
remuneration for their benefit. The clause also defines what is meant in the
clause by the term deposit—in relation to residential
building work, deposit means an amount that was paid or payable by
the owner to the builder, under the contract to carry out the work, before the
beginning of the work.
Clause 94 entitles a judgment creditor to
apply to a court for a direction that judgment be entered in favour of the
creditor against the authorised insurer who issued the policy. It
requires the judgement creditor to give the insurer at least 7 days written
notice of his or her intention to make an application. The clause entitles an
authorised insurer to, in addition to any other right or remedy,
recover from a builder in relation to whose work a complying residential
building insurance policy was issued so much of the following as the
insurer has paid under, or because of, the policy:
(a) any judgment entered or obtained against the
insurer; and
(b) any amounts paid by the insurer in payment,
settlement or compromise of a claim or judgment against the builder or of a
judgment entered or obtained against the insurer; and
(c) the costs of, and expenses reasonably incurred by,
the insurer.
The clause explains that a judgment entered against an
authorised insurer is enforceable only to the extent that it had not been
satisfied at the time the judgment was entered. The clause also describes 3
circumstances, all of which must exist for the clause to apply. It applies
if—
(a) a court gives judgment in favour of a person in
relation to a matter for which the person is insured under a complying
residential building insurance policy; and
(b) the insurer is a party to the proceeding in which
the judgment is given; and
(c) the judgment is not satisfied in full within 30 days
after the day judgment is entered.
The provisions of the clause are necessary to provide
certainty to the insurance industry about the matters the clause deals
with.
Clause
95
creates various offences against certain entities in relation
to—
a strict liability offence against an insurer for
failure to notify ceasing to be an authorised insurer, for which the maximum
penalty is 50 penalty units, the same amount as for a corresponding regulatory
offence in the Building Act 1972;
an offence against an authorised insurer for making
certain misrepresenting about a policy, for which the maximum penalty is 250
penalty units, the same amount as for a corresponding offence in the Building
Act 1972;
a strict liability offence against an authorised insurer
for failing to report certain listed things to the construction occupations
registrar in a certain time period, for which the maximum penalty is 100 penalty
units, the same amount as for a corresponding offence in the Building Act
1972.
Fidelity fund schemes
Certain fidelity certificates issued by a fidelity fund
scheme provide benefits to people having building work done, in much the same
way as residential building work insurance does. The certificate scheme is
however technically not an insurance scheme.
Clause
96
entitles the trustees of a fidelity fund scheme to apply to the planning and
land authority for approval of the fidelity fund scheme and for the authority to
approve of the scheme in writing. It limits that approval entitlement to
circumstances where the scheme complies with the relevant approval
criteria, which are set out at clause 99. The clause requires an application to be
signed by all of the scheme’s trustees. The clause explains that the
approval is a notifiable instrument. For expediency in establishing a scheme
the approval is not intended to be a disallowable instrument. The clause has a
note that a notifiable instrument must be notified under the Legislation Act
2001.
Clause 97 entitles the planning and land
authority to require, by written notice, the trustees of a fidelity fund scheme
to give the authority information, documents and a statutory declaration in
relation to an application for scheme approval. It entitles the authority to
not consider the application further until the trustees comply with the
requirement of the notice. The clause explains that it only applies if the
trustees of a fidelity fund scheme apply to the planning and land authority for
approval of the scheme.
Clause 98 entitles the planning and land
authority to require changes to be made to a fidelity fund scheme to ensure that
it complies with the Bill, before it approves the scheme. The clause has a
note—a reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations and
disallowable instruments (see Legislation Act, s 104).
Clause
99 entitles the Minister
to determine in writing the requirements (the
approval criteria) for the Bill with
which a fidelity fund scheme must comply as 1 prerequisite to being an approved
scheme under the Bill. It requires the approval criteria to
include requirements in relation to all of the things it lists. The clause
explains that the approval criteria is entitled to apply, adopt or incorporate a
law or instrument, or a provision of a law or instrument, as in force from time
to time. The clause has notes—the text of an applied, adopted or
incorporated law or instrument, whether applied as in force from time to time or
as at a particular time, is taken to be a notifiable instrument if the operation
of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)). A
notifiable instrument must be notified under the Legislation Act. The clause
also stipulates that a determination under it is a disallowable instrument and
has a note—a disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
Clause 100 creates a strict liability
offence in respect of each of the trustees of a clause 96 approved scheme if the trustees fail to ensure
that the scheme complies with the conditions of the scheme’s approval.
The clause specifies a maximum respective penalty of 60 penalty units for the
offence, the same amount for the corresponding offence in the Building Act
1972. It also entitles the approval of a fidelity fund scheme to be given
subject to conditions, and for such a condition to be expressed to have effect
despite anything in the Bill’s prudential standards. The
prudential standards are determined under clause 103 of the Bill.
Clause 101 entitles the trustees of a
clause 96 approved scheme to apply in writing
to the planning and land authority for the authority’s approval for a
change to the scheme. It explains that it does not apply to a change to the
scheme declared under the prudential standards to be a change to
which it does not apply. The prudential standards are provided at
clause 103 of the Bill. The clause also
requires an application under it to be signed by all the trustees of the scheme
and to set out the proposed change to the scheme and the reasons for the
change.
Clause 102 entitles the planning and land
authority to, in writing, approve or refuse to approve a change to a fidelity
fund scheme approved under the Bill. However, it requires the planning and land
authority to refuse to approve a change to a scheme if the authority is not
satisfied that the scheme as proposed to be changed would continue to meet the
approval criteria and the prudential standards. The
approval criteria are determined under clause 99 of the Bill. The prudential
standards are provided at clause 103
of the Bill. The clause explains that an approval or refusal under it is a
notifiable instrument. The clause has a note—a notifiable instrument must
be notified under the Legislation Act.
Clause
103
entitles the Minister to, in writing, determine standards (the prudential
standards) for this Bill relating to prudential matters
that must be complied with by a clause 96
approved fidelity fund scheme. It has a note—power given under a Bill to
make a statutory instrument includes power to make different provision for
different categories, eg different kinds of schemes (see Legislation Act, s 48).
The clause also lists things that the prudential standards are entitled to
do—
• require approval of the trustees of the approved
scheme; and
• make provision in relation
to—
(i) the capital adequacy of the scheme;
and
(ii) the valuation of liabilities; and
(iii) the effectiveness of risk management strategies
and techniques; and
(iv) requiring the giving of information to the
commissioner for fair trading, or any other entity prescribed under the
prudential standards, about decisions by the trustees to pay or refuse to pay
claims; and
• provide for the exercise of discretions under
the standards, including discretions to approve, impose, adjust or exclude
particular prudential requirements in relation of an approved scheme;
and
• apply, adopt or incorporate a law or instrument,
or a provision of a law or instrument, as in force from time to time.
The clause also has several other
notes—
• an Act that authorises the making of a statutory
instrument (eg prudential standards) also authorises an instrument
to be made with respect to any matter required or permitted to be prescribed
under the authorising law or that is necessary or convenient to be prescribed
for carrying out or giving effect to the authorising law (see Legislation Act, s
44);
• the text of an applied, adopted or incorporated
law or instrument, whether applied as in force from time to time or as at a
particular time, is taken to be a notifiable instrument if the operation of the
Legislation Act, s 47 (5) or (6) is not disapplied (see s 47
(7));
• a notifiable instrument must be notified under
the Legislation Act.
The clause also explains that a determination of
prudential standards under it is a disallowable instrument, and
has a note—a disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act. The clause also defines
the meaning of the term prudential matters, in relation to a
fidelity fund scheme approved under the Bill, for the purposes of the clause.
The clause explains that the term prudential matters means matters
relating to the conduct by the trustees of the scheme of any of the
scheme’s affairs in a way that keeps the scheme’s affairs in a sound
financial position with integrity, prudence and professional
skill.
Clause 104 creates a strict liability
offence in respect of each of the trustees of a clause 96 approved scheme if the trustees fail to ensure
that the scheme complies with the prudential standards referred to
in clause 103. The clause specifies a maximum
respective penalty of 60 penalty units for the offence, the same amount for the
corresponding offence in the Building Act 1972.
Clause 105 entitles the planning and land
authority to, by written notice given to the trustees of a clause 96 approved scheme, require the trustees to comply
with the provision of the prudential standards within a stated
time. The prudential standards are determined under clause 103. The clause requires the trustees to comply
with the notice despite anything in the trust deed or in any contract or
arrangement to which the trustees are party. The clause creates a strict
liability offence in respect of each of the trustees of an approved scheme if
the trustees fail to comply with a notice given to the trustees under the
clause. The clause specifies a maximum respective penalty of 60 penalty units
for the offence, the same amount for the corresponding regulatory offence in
the Building Act 1972. The clause also describes 2 circumstances, either
or both of which must exist for the clause to apply—it applies if the
planning and land authority is satisfied on reasonable grounds that an approved
scheme is contravening a provision of the prudential standards or
is likely to contravene a provision of the prudential standards in
a way that is likely to give rise to prudential risk.
Clause 106 entitles the planning and land
authority to, by written notice given to the trustees of a clause 96 approved scheme, to require the trustees to
give the authority stated information about anything relevant to the
scheme’s ability to meet its liabilities and potential liabilities at a
particular date or time or at particular intervals. It sets out some examples
of what that stated information may include information
about—
(a) the scheme’s liabilities and potential
liabilities; and
(b) contributions to the scheme; and
(c) administrative or other costs of the scheme;
and
(d) claims received by the scheme.
The clause has a note that an example is part of the
Act, is not exhaustive and may extend, but does not limit, the meaning of the
provision in which it appears (see Legislation Act, s 126 and s 132).
The clause requires a notice under it to state a
reasonable period for complying with the notice. It lists some things that the
notice is entitled to require information about in respect of claims received by
the scheme, but explains that the list does not limit what the notice may
require—
(a) the number of claims received by the scheme;
and
(b) the amount of each claim; and
(c) the number of claims that have been paid;
and
(d) the amount paid on each claim; and
(e) if a claim was rejected—the reason for its
rejection.
The clause creates a strict liability offence in respect
of each of the trustees of a clause 96 approved
scheme if the trustees fail to comply with a notice given to the trustees under
the clause. The clause specifies a maximum respective penalty of 60 penalty
units for the offence, the same amount for the corresponding offence in the
Building Act 1972.
Clause 107 entitles the planning and land
authority to take action under that clause in relation to a fidelity fund
scheme, that has an approval under clause 96,
on any of grounds listed under subclause (1). The grounds
are—
(a) the trustees of the scheme have contravened this
Bill or another Territory law in relation to the scheme; (note—a reference
to an Act includes a reference to the statutory instruments made or in force
under the Act, including regulations and disallowable instruments (see
Legislation Act, s 104);
(b) the scheme is insolvent and is unlikely to return to
solvency within a reasonable time;
(c) the scheme has inadequate capital and is unlikely to
have adequate capital within a reasonable time;
(d) the scheme is, or is likely to become, unable to
meet its liabilities;
(e) there is, or there may be, a risk to the security of
the scheme’s assets;
(f) there is, or there may be, a sudden deterioration in
the scheme’s financial condition;
(g) the scheme has ceased to issue fidelity certificates
in the ACT;
(h) a ground prescribed under the prudential standards
exists for the suspension or cancellation of the approval of the
scheme.
The clause also entitles the planning and land authority
to, in writing, suspend or cancel the clause 96
approval of a fidelity fund scheme. However it provides prerequisites that must
all have been fulfilled before that entitlement can be
exercised—
• if the planning and land authority proposes to
suspend or cancel the approval of the scheme, the authority must give the
trustees of the scheme a written notice—
(a) stating the grounds on which the authority proposes
to suspend or cancel the approval; and
(b) stating the facts that, in the authority’s
opinion, establish the grounds; and
(c) telling the trustees that the trustees may, within a
stated reasonable time, give a written response to the authority about the
matters in the notice; and
• after considering any response given to that
notice the planning and land authority must to be satisfied that the grounds for
suspending or cancelling the approval have been established.
The clause also requires the planning and land authority
to give written notice to the trustees of a clause 96 approved scheme of any decision the authority
makes under the clause to suspend or cancel the scheme’s approval. It
stipulates that suspension or cancellation of an approval under it takes effect
on the day when notice of the suspension or cancellation is given to the
trustees or, if the notice states a later date of effect, that date. It
indicates that such a suspension or cancellation is a notifiable instrument and
has a note—a notifiable instrument must be notified under the Legislation
Act.
Clause 108 entitles the trustees of a
clause 96 approved scheme to request the
planning and land authority to cancel that approval. It entitles the planning
and land authority to decide to respond to such a request by so cancelling the
approval of the scheme. The clause also requires the planning and land
authority to give written notice to the trustees of a fidelity fund scheme of
any decision the authority makes under it to cancel the scheme’s approval.
It indicates that such a cancellation is a notifiable instrument and has a
note—a notifiable instrument must be notified under the Legislation
Act.
Clause 109 entitles the planning and land
authority to apply to the Supreme Court for orders to give effect to, or
consequential on, a Division 6.4 suspension or cancellation of a clause 96 approval of a fidelity fund scheme. If that
application is made under subclause (1), the clause entitles the Supreme Court
to make the orders it considers just, including—orders for the winding-up
of the scheme and orders in relation to the assets and liabilities of the
scheme.
Clause 110 requires the trustees of a
fidelity fund scheme, that has a clause 96
approval, to have an address for service in the ACT for the Bill, at all times.
The clause stipulates that such an address becomes the address for service for
the trustees when written notice of the address is given by the trustees to the
planning and land authority, and that the address continues to be the address
for service until the planning and land authority is given written notice by the
trustees of another ACT address for service for the trustees.
Clause
111
requires trustees of a fidelity fund scheme, that has a clause 96 approval, to appoint an auditor for the scheme
and an actuary for the scheme. It has a note—for the making of
appointments (including acting appointments), see Legislation Act, div 19.3.
The clause also requires those trustees to appoint someone else to be auditor or
actuary for the clause 96 approved scheme
within 6 weeks after a person stops being the auditor or actuary for the clause
96 approved scheme. The clause also sets out 2
criteria both of which must be satisfied as some of the prerequisites entitling
a person to hold an appointment as auditor or actuary for a clause 96 approved scheme—the planning and land
authority must have approved the appointment and its terms and the approval has
not been revoked. The clause also prevents the appointment of a person as
auditor or actuary for a clause 96 approved
scheme from taking effect while an appointment of someone else in that position
is current.
Clause
112 entitles the
trustees of a clause 96 approved scheme to, in
writing, ask the planning and land authority to approve the appointment of a
person as auditor for the scheme or to approve the appointment of a person as
actuary for the scheme. It entitles the planning and land authority to approve
that appointment but only if the authority is satisfied that the person meets
the eligibility criteria for the appointment prescribed under the
prudential standards. The
prudential standards are determined under clause 103 of the Bill. The clause requires the
planning and land authority to give the trustees notice of the authority’s
decision to approve or refuse to approve the appointment under it. If the
planning and land authority refuses under the clause to approve an appointment,
the clause requires the notice under the clause to include the reasons for the
refusal.
Clause
113
entitles the planning and land authority to, in writing, revoke the approval of
a person’s appointment as auditor or actuary for a clause 96 approved scheme. It lists the circumstances of
which 1 or more must exist before that entitlement can be exercised—the
authority must be satisfied that the person—
• has failed to exercise adequately and properly
the functions of the appointment under the Bill. (Note—a reference to an
Act includes a reference to the statutory instruments made or in force under the
Act, including regulations (see Legislation Act, s 104)); or
•
does not meet 1 or more of the criteria for
fitness and propriety prescribed under the prudential
standards. (The prudential standards are
determined under clause 103 of the Bill);
or• does not meet the eligibility criteria for the
appointment prescribed under the prudential
standards.
The clause stipulates that the revocation of an approval
under it takes effect on the day the revocation is made. It requires the
planning and land authority to give a copy of any revocation to the person whose
appointment it revokes and to the trustees of the approved
scheme.
Clause 114 lists circumstances that relate
to a person holding an appointment as auditor or actuary of a clause 96 approved scheme. It indicates that if 1 or
more of those circumstances exist in relation to a person then that circumstance
stops the person holding an appointment as auditor or actuary of an approved
scheme. It is intended that that appointment stop when the circumstance takes
effect. The circumstances are—
•
the approval of the person’s appointment
is revoked under clause 113;
or• the person resigns the appointment by giving
written notice to the trustees of the approved scheme; or
• the trustees end the appointment by giving
written notice to the person.
Clause 115 requires the trustees for a
clause 96 approved scheme to give the planning
and land authority written notice of the appointment of a person as auditor or
actuary for the scheme and anything else prescribed under the prudential
standards. (The prudential standards are determined under
clause 103 of the Bill). It requires
that notice to be given within 14 days after the appointment is made. The
clause also requires the trustees for a clause 96 approved scheme to give the planning and land
authority written notice of a person having stopped being auditor or actuary for
the scheme and of the reasons for and circumstances of that stoppage. The
clause requires that notice to be given within 14 days after the stoppage
commences. However it explains that the requirement to give notice of that
stoppage does not apply to the revocation by the planning and land authority of
the approval of a person’s appointment.
Clause 116 creates a strict liability
offence in respect of either, or both, the auditor or actuary for a clause 96 approved scheme where the auditor or actuary
contravenes the prudential standards in relation to the exercise
of his or her functions as auditor or actuary for the scheme. (The
prudential standards are determined under clause 103 of the Bill). The clause specifies a maximum
respective penalty of 60 penalty units for the offence, the same amount for the
corresponding offence under the Building Act 1972.
Clause 117 creates a strict liability
offence in respect of either, or both, the auditor or actuary for a clause 96 approved scheme where the auditor or actuary
fails to give the planning and land authority written notice about certain
circumstances within 7 days after the day the auditor or actuary forms the
belief that the circumstances exist. It lists the circumstances as being where
the auditor or actuary forms the belief that the scheme is insolvent, or there
is a significant risk that it will become insolvent, or the trustees have
contravened the Bill or another Territory law in relation to the scheme. The
clause explains that the circumstances only apply if the auditor or actuary
fails to give the planning and land authority written notice about the
circumstance or circumstances within 7 days after the day the auditor or actuary
forms the belief that the circumstances exist. The clause specifies a maximum
respective penalty of 100 penalty units, imprisonment for 1 year, or both, the
same penalty for the corresponding offence in the Building Act
1972.
Clause
118 indicates that it
only applies to a person who is, or has been, an auditor or actuary for clause
96 approved scheme. It entitles a person to
give information to the planning and land authority about the approved scheme if
the person considers that giving information will assist the authority to
exercise the authority’s functions under part 6 of the Bill. It entitles
the planning and land authority to give a written notice to a person to require
the person to give stated information about an approved scheme to the authority
within a stated reasonable time. The clause limits the circumstances that the
entitlement can be exercised to if the clause applies to the person. The clause
creates a strict liability offence in respect of the person that is given a
notice under subclause (3) if the person contravenes the notice. The clause
specifies a maximum respective penalty of 100 penalty units, imprisonment for 1
year or both, to reflect the seriousness of the offence.
Clause
119
sets out certain things that the auditor of a clause 96 approved scheme is required to do—in
accordance with the prudential standards (the prudential
standards are determined under clause 103 of the Bill)—
• exercise the functions of auditor for the scheme
prescribed under the prudential standards; and
• find out and report on whether the trustees of
the scheme are complying with the prudential standards;
and
• prepare, and give to the trustees of the scheme,
any reports (subclause (1) (c) reports) required under the
prudential standards to be prepared by the auditor;
and
• give the trustees any certificates
(subclause (1) (d) certificates) relating to the scheme’s
accounts that are required under the prudential standards to be
prepared by the auditor.
The clause stipulates that subclause (1) (c)
reports must deal with everything required under the prudential
standards to be dealt with in the report, and that subclause (1)
(d) certificates must contain statements of the auditor’s opinion
on the matters required under the prudential standards to be dealt
with in the certificate.
Clause
120
sets out certain things that the actuary of a clause 96 approved scheme is required to do—in
accordance with the prudential standards (the prudential
standards are determined under clause 103 of the Bill)—
• exercise the functions of actuary for the scheme
prescribed under the prudential standards; and
•
prepare, and give to the trustees of the scheme,
the reports (subclause 120
(1) (b) reports) (if any) required under the prudential
standards to be prepared by the actuary. The clause stipulates that subclause 120 (1) (b) reports must deal with
everything required under the prudential standards to be dealt
with in the report.
Clause 121 requires the trustees of a
clause 96 approved scheme to, in accordance
with the prudential standards, give to the planning and land
authority a copy of each certificate given to the trustees under clause 119 (Auditor’s role); and the reports
mentioned in that clause and clause 120
(Actuary’s role). The prudential standards are determined
under clause 103 of the Bill. The clause
creates a strict liability offence in respect of the trustees if the trustees
contravene it. The clause specifies a maximum respective penalty of 60 penalty
units, the same amount for the corresponding offence in the Building Act
1972.
Clause
122
entitles the planning and land authority to, by written notice given to the
trustees of an approved scheme, require the trustees to appoint, at the
scheme’s expense, an additional actuary (the special
actuary) to investigate completely or partially the scheme’s
liabilities as at a particular time and to give the authority a written report
within a stated period. It prohibits a special actuary from being
the actuary appointed under clause 111
(Appointment of auditor and actuary for approved scheme) or being a trustee or
officer of the scheme. Subclause 122 (3)
requires the trustees: 1) to appoint a special actuary, and 2) to
give the planning and land authority written notice of the special
actuary’s name; both within 7 days after the day the trustees are given a
clause 122 notice. The clause creates a
strict liability offence in respect of the trustees if the trustees fail to
comply with subclause 122 (3). The clause
specifies a maximum respective penalty of 100 penalty units to reflect the
seriousness of the offence.
Clause
123
entitles the planning and land authority to give written notice to the trustees
of a clause 96 approved scheme that a
special actuary is not acceptable to the authority. It explains
that it only applies if the trustees of an approved scheme notify the planning
and land authority of the special actuary’s name under clause 122 (3). The clause limits the time period
during which the authority can give a clause 123 notice to the period that is 7 days after the
authority is given the name under clause 122
(3). Section 123 (3) requires the trustees to
appoint a different special actuary; and give the planning and
land authority written notice of the name of that special actuary
if the following circumstances exist—Clause 123 applies, and the trustees are given a notice
under subclause 123 (2). The clause requires
the trustees to make that appointment and notify the authority of that name
within 7 days after the day the trustees are given a clause 123 notice. It explains that the
authority’s entitlement to give a clause 123 (2) notice applies regardless of whether or
not the unacceptable special actuary’s name was notified under clause 122 (3) or clause 123 (3) (b). It is intended that if a
replacement special actuary is appointed under clause 123 (3) (a) that appointment supersedes the
appointment of the special actuary mentioned in the clause 123 notice, and therefore that mentioned
actuary’s appointment stops on the commencement of the superseding
appointment.
Clause 123 creates a
strict liability offence in respect of the trustees if the trustees fail to
comply with subclause 123 (3). The clause
specifies a maximum respective penalty of 100 penalty units to reflect the
seriousness of the offence.
Clause
124
requires, at clause 124 (1), the trustees of a
clause 96 approved scheme to ensure that a
special actuary’s report is given to the planning and land
authority within 30 days after the authority gave a notice under clause 122 (1) or within any additional further time the
authority allows in writing. Clause 122
explains what a special actuary is. Clause 124 lists things that it requires a special
actuary’s report to contain—it must be signed by the special
actuary and it must contain a statement of the special actuary’s opinion
about each of the following—
(a) the adequacy of the whole or part of the amount
stated in the scheme’s accounts in relation to its liabilities, and the
amount that the actuary considers would be adequate in the
circumstances;
(b) the accuracy of any relevant valuations made by the
actuary;
(c) the assumptions used by the actuary in making the
valuations;
(d) the relevance, appropriateness and accuracy of the
information on which those valuations were based;
(e) anything else in relation to which the prudential
standards require a statement of the actuary’s opinion to be included
in the report. (The prudential standards are determined under clause 103 of the Bill).
Clause 124 creates a
strict liability offence in respect of the trustees if the trustees fail to
comply with subclause 124 (1). The clause
specifies a maximum respective penalty of 100 penalty units to reflect the
seriousness of the offence.
Clause 125 specifies eligibility criteria
that apply to the appointment of a special actuary. (Clause 122 explains what a special actuary
is). The clause prohibits a person from being appointed as a special
actuary for clause 122 (Investigation
of liabilities by special actuary) except where the person is a Fellow of The
Institute of Actuaries of Australia or where the planning and land authority
has, in writing, approved the person as an actuary for that clause. The clause
limits the entitlement of the planning and land authority to approve a person
for the clause—the planning and land authority may approve a person only
if satisfied that the person has actuarial qualifications and experience that
make the person an appropriate person to exercise the function of a
special actuary for clause 122.
Clause 126 creates a strict liability
offence in respect of the trustees of a clause 96 approved scheme if the trustees fail to make
arrangements necessary to enable the auditor or actuary for the scheme, or any
special actuary for the scheme, to exercise his or her functions
in relation to the scheme. Clause 122
explains what a special actuary is. The clause specifies a
maximum respective penalty of 60 penalty units, the same amount for the
corresponding offence in the Building Act 1972.
Clause 127 has a provision intended to
ensure the auditor, actuary or any special actuary for a clause 96 approved scheme does not incur civil liability,
or criminal liability under the Defamation (Criminal Proceedings) Act
2001, for an act or omission done honestly and without negligence for part 6
of the Bill.
Part 7 Administration
The part’s provisions are based on the
corresponding provisions in the Building Act 1972.
Clause 128 entitles the construction
occupations registrar to appoint a person to be a building inspector for the
Bill. The clause has 2 notes—1) for the making of appointments (including
acting appointments), see Legislation Act, div 19.3; and 2) in particular, a
person may be appointed for a particular provision of a law (see Legislation
Act, s 7 (3)) and an appointment may be made by naming a person or nominating
the occupant of a position (see Legislation Act s 207).
Clause 129 requires the construction
occupations registrar to issue a building inspector with an identity card that
states the person is an inspector for the Bill, or stated provisions of the
Bill, and shows all of the following—
(a) a recent photograph of the person;
and
(b) the name of the person; and
(c) the date of issue of the card; and
(d) a date of expiry for the card; and
(e) anything else prescribed under the
regulations.
The clause requires, under subclause (2), a person who
ceases to be an inspector to return his or her identity card to the construction
occupations registrar as soon as practicable, but no later than 7 days after
ceasing to be an inspector. The clause creates a strict liability offence in
respect of a person who ceases to be an inspector and fails to comply with
subclause (2). The clause specifies a maximum respective penalty of 1 penalty
unit, the same amount for the corresponding offence in the Building Act
1972.
Clause
130
entitles a building inspector to inspect building work for which a
building approval has been issued to decide whether the building
work is being, or has been, carried out in accordance with the Bill. (The Bill
defines what building work and building approval
means). The clause has a note—a reference to an Act includes a reference
to the statutory instruments made or in force under the Act, including
regulations and the building code (see Legislation Act, s 104).
Clause
131
entitles the construction occupations registrar to, in writing, authorise a
building inspector to carry out an inspection of certain building
work or certain buildings at any reasonable time. The clause also
entitles the registrar to authorise the inspector to do 1 or more of the
following—
• make tests of the soil or the
building materials used or to be used in the building work or
building;
• order the opening or cutting into
or pulling down of any building work.
However, the clause sets out the circumstances that must
exist for it to apply. The construction occupations registrar must have
reasonable grounds for suspecting 1 or more of the following:
(a) a building approval has not been issued for building
work that is being, or has been, carried out; or
(b) building work is not being, or has not been, carried
out in accordance with the approved plans for the work or a notice under part 4
of the Bill (Stop and demolition notices); or
(c) if plans or plans and specification have been
approved under the Bill for the erection or alteration of a
building—
(i) the completed building has deteriorated, or is
likely to deteriorate, so that building is, or is likely to become, unfit for
use as a building of the class stated, or for the purpose stated, in the plans
or plans and specifications approved in relation to the most recent building
work carried out in relation to the building; or
(ii) the building is being used other than as a building
of the class stated, or for the purpose stated, in the plans or plans and
specifications approved in relation to the most recent building work carried out
in relation to the building; or
(d) for a building other than a building to which
paragraph (c) applies—the building has deteriorated to the extent that it
is unfit for any use; or
(e) a building or part of a building is no longer
structurally sound; or
(f) because of the use to which the building has been or
is being put, the maximum safe live load has been or is being exceeded or the
load on the building has been or is in excess of the load that the building was
designed to carry; or
(g) a building or part of a building is unsafe because
of fire hazard or unfit for use because of a danger to health.
Clause 132 stipulates who must bear the
costs (the inspection costs) of any pulling down, opening or
cutting into the building work carried out during an inspection under clause 130. It indicates that if, on inspection, it is
found that there are grounds for the giving of a stop notice, the
builder must bear the inspection costs, whereas if, on inspection, it is found
that there are no grounds for the giving of a stop notice, the
Territory must bear the inspection costs and the costs of making
good any damage to the building work caused by the inspection.
Clause
133 entitles the
planning and land authority to, in writing, authorise a building inspector, with
the assistance the construction occupations registrar considers necessary, to
enter on the land where the building work mentioned in the notice has been, is
being or should have been carried out and to carry out the requirements of a
notice under part 4 (Stop and demolition notices). The clause limits the
circumstance under which the entitlement may be exercised to when the
requirements of that notice under have not been complied with in accordance with
the notice. An intention is to ensure work is done to make a building safe to
remove a risk to the public, for example.
Clause 134 entitles a building inspector,
who is authorised under clause 130 or 131 to inspect a building or building work, to
enter on land or premises where the building has been erected or building work
is being or has been carried out. An intention is to allow the inspector
reasonable access to inspect all of the building or building work. The
entitlement is particularly relevant in circumstances of building work having
been carried out without a required building approval having been obtained. In
that case, the inspector may require access into a private dwelling, for
example, to inspect building work that is a partial demolition and extension to
the dwelling. The inspection is warranted in that case as it may detect that
the building work is structurally unsound and thereby puts at risk the safety of
the dwelling’s occupants when they use the parts of the dwelling that are
adjacent to the extension. However, the clause stipulates that the building
inspector is not authorised to remain on the land or premises if, when asked by
the occupier of the land or premises, the building inspector does not
produce—
(a) if authorised under clause 130—the inspector’s identity card;
or
(b) if authorised under clause 131—a written certificate signed by the
construction occupations registrar that the inspector is authorised to enter the
land or premises.
Clause 135 creates an offence in respect
of a person if—
(a) the person knows that, or is reckless about the fact
that, a person is a building inspector; and
(b) the person obstructs, hinders, intimidates or
resists the building inspector in the exercise of the inspector’s
functions.
The clause stipulates that an offence for (b) is a
strict liability offence. The clause specifies a maximum respective penalty of
50 penalty units, imprisonment for 6 months or both in respect of any offence
under the clause, the same penalty for the corresponding offences under the
Building Act 1972.
Part 8 Building code
Part 8 mainly establishes what the building code is and
related administrative matters. The part’s provisions are based on the
corresponding provisions in the Building Act 1972. The building code
contains fundamental technical standards for construction of buildings and
structures. The Territory is formally consulted on, and actively involved in,
proposed changes to the Building Code of Australia. Therefore, the Territory
has a degree of influence over the content of such amendments and thereby
forewarning of potential impact on Territory legislation.
Clause
136 defines the term
building code for the Bill. It means the
Building Code of Australia prepared and published by the Australian Building
Codes Board, as amended from time to time by the Australian Building Codes
Board, together with the Australian Capital Territory Appendix to the Building
Code of Australia. The intention is that unless a provision of the Bill
provides otherwise, where the term building code is used it refers
to the version of the building code that is in force at the time the provision
applies, and includes the provisions of the Australian Capital Territory
Appendix to the Building Code of Australia. The clause entitles the Minister
to, in writing, make an Australian Capital Territory Appendix to the Building
Code of Australia. The clause has a note that this includes the power to amend
or repeal the Appendix (see Legislation Act, s 46 (2)). The clause stipulates
that the Australian Capital Territory Appendix to the Building Code of Australia
is a disallowable instrument. The clause has two other notes, that a
disallowable instrument must be notified, and presented to the Legislative
Assembly, under the Legislation Act; and that an amendment or repeal of the
Australian Capital Territory Appendix to the Building Code of Australia is also
a disallowable instrument (see Legislation Act, s 46 (2)). The clause indicates
that the Legislation Act, clause 47 (6) does not apply to the Building Code of
Australia. The intention is that the building code not be required to be
notified on the legislation register. That is necessary because it is
impractical to notify that code on the register due to its large size, cost and
copyright restrictions.
That code’s provisions apply nationally. Its
appendixes, such as the above-mentioned ACT appendix are necessary to facilitate
the provision of State and Territory variations from, or additions to, the
code’s provisions. For example, the ACT appendix could include provisions
covering domestic waste collection from multiunit buildings to cater for waste
collection regimes that are peculiar to the ACT.
Clause 137 requires notice of the
publication of each edition of the Building Code of Australia and each amendment
of it by the Australian Building Codes Board to be published, in a daily
ACT newspaper. The clause defines the term daily ACT
newspaper as a daily newspaper printed and published in the ACT. The
intention is to inform the public of changes. The clause stipulates that a
notice under it is a notifiable instrument and a note explains the requirements
for a notifiable instrument under the Legislation Act.
Clause 138 requires the construction
occupations registrar to keep a copy of the building code at his
or her office and entitles any person to inspect the building code
kept by the registrar. However it indicates that that entitlement may only be
exercised on request to the registrar and when the registrar’s office is
open for business. It is intended that the office copy of the building code may
be in electronic form stored at a source that is not at the registrar’s
office but can be immediately displayed for reading at the registrar’s
office. For example the copy could be held on a computer outside of the
registrar’s office if another computer, which is at that office, can
immediately access the copy and display it at the registrar’s office so it
can be readily read at that office.
Clause 139 stipulates that in a proceeding
before a court or the administrative appeals tribunal, evidence of the
building code as in force on a stated date or during a stated
period may be given by the production of an office copy of the building code
certified by the construction occupations registrar as a true copy as at the
date or during the period.
Part 9 Limitation on liability
Part 9 mainly provides limitations on certain
entity’s liabilities to pay for damages arising from certain defective
work or performing certain functions. It’s provision are based on the
corresponding provisions in the Construction Practitioners Registration Act
1998. The limitations are necessary in that they contribute to the
viability of the building and building certification industries in the Act by
providing certainty about the liabilities that the part covers.
Clause 140 defines the term building
action for part 9—
building action—
(a) means an action (including a counterclaim) for
damages for loss or damage in relation to—
(i) defective building work;
or
(ii) defective construction work other than
building work; or
(iii) the negligent exercise by a licensed construction
practitioner of a function as a certifier, or the negligent failure to exercise
such a function; but
(b) does not include an action for damages for death or
personal injury.
(The terms licensed construction practitioner
and certifier are defined the Bill’s
dictionary).
Clause
141
has the intention of ensuring that certain liabilities for damages amounts are
divided among those responsible. Subclause 141 (1) requires a court that decides an award of
damages in a building action to give judgment against each
defendant to the action who is found to be jointly or severally liable for the
damage for the proportion of the total amount of the damages that the court
considers to be just, having regard to the extent of that defendant’s
responsibility for the loss or damage. Subclause 141 (2) stipulates that the liability for damages
of a person found to be liable for damages in a building action is
limited to the amount for which judgment is given against the person, even if
another Act or a rule of law provides otherwise. A person found to be liable
for a proportionate part of damages under subclause (1) in a building action is
not liable to contribute to the damages apportioned to anyone else in the action
or to indemnify any other person in relation to the damages.
Clause
142 limits the period
when a building action may be taken to
no more than 10 years. It sets out criteria for determining when the 10-year
period commences, and how the limitation operates. The standard period is 10
years from the date when completion is certified under the Bill but provision is
made for circumstances in which no certificate is issued, a person ceases to act
as certifier for the work or a period less than 10 years is
relevant.
The clause defines what the term building
means for the clause—building, in relation to building work
that consists of, or includes, the alteration of a building, means the building
as altered.
Part 10 Miscellaneous
Clause 143 sets out some methods for
serving notices or other documents under the Bill. It provides that a notice or
other document under the Bill addressed to 1 person may be served by attaching
the notice in a prominent position on the building or, for an alteration to a
building, on the part of the building being altered, to which the notice
relates. It further provides that if a notice under the Bill is addressed
jointly to 2 or more people, a number of copies of the notice equal to the
number of people to whom the notice is addressed must be signed by the person
giving the notice, and 1 of those copies must be served on each of the people.
The clause also has a note—for how documents may also be served, see
Legislation Act, pt 19.5.
It is intended that where a notice is addressed to an
entity that could be a number of people, such as to “the partners”,
“the director”, “the trustees”, then the notice can be
taken as being addressed to one person for the purposes of the
clause.
Clause 144 has an intention of providing
privacy in respect of building plans. It prohibits copies of plans submitted
under the Bill from being given to anyone except in accordance with the
instructions of—
(a) the lessee or the owner of the parcel of land where
the building to which the plans relate is erected; or
(b) if the plans relate to a unit within the meaning of
the Unit Titles Act 2001, the proprietor of the unit.
Clause
145
entitles applications to be made to the administrative appeals tribunal for the
review of an appealable decision. It stipulates that the
regulations may prescribe what decisions are appealable decisions
and the relevant person for each appealable
decision. Where the matter under review involves a development within
the meaning of the Land Act, the clause prohibits the administrative appeals
tribunal from—
(a) varying a decision issuing a stop
notice under clause 53 or a notice
under clause 58 (2) or (4) (Further notices
relating to stop notices) or 62 (1) (Notice to
carry out building work), or from substituting a decision for such a decision it
has set aside, in a way that would be contrary to an approval of the
development; or
(b) varying a decision issuing a notice under clause 58 (4), or from substituting a decision for such a
decision it has set aside, unless the development has been
approved.
Subclause 145 (3)
requires the construction occupations registrar to give written notice of the
decision to the relevant person in relation to the decision, if
the registrar makes an appealable decision. (The regulations may
prescribe what decisions are appealable decisions and the
relevant person for each appealable decision).
Clause 145 requires a subclause 145 (3) notice to be in accordance with the
requirements of the code of practice in force under the Administrative
Appeals Tribunal Act 1989, section 25B (1).
Clause 146 assigns liability for payment
of the costs of certain work—the costs incurred in the carrying out of the
requirements of a notice under part 4 (Demolition and stop notice
s) or a decision of the construction occupations registrar by a building
inspector or his or her assistants under clause 131 (Inspection of building work where no
approval) or clause 133 (Power to authorise
required work) is recoverable as a debt owing to the Territory from the person
who was required to carry them out by the notice or order.
Clause
147 stipulates that
certain things are evidence of certain matters in a proceeding before a court or
the administrative appeals tribunal. It stipulates that in a proceeding before
a court or the administrative appeals tribunal—a document purporting to be
a copy of a notice under the Bill and certified as a true copy by the
construction occupations registrar or of a person authorised in writing by the
registrar must be received in evidence and must be taken without further proof
to be a true copy of the notice, and that a notice certified as a true copy
under the clause must be taken, unless the contrary is proved, to have been
given by the person purporting to give it and to have been given on the date
stated in the certified copy of the notice.
The clause also stipulates that in a proceeding before a
court a document purporting to be a certificate given by the construction
occupations registrar and certifying that there was a building approval in force
for stated building work on a stated date or during a stated period is evidence
that on the stated date or during the stated period the building approval was in
force, and that a document purporting to be a certificate given by the registrar
and certifying that there was no building approval in force for stated building
work on a stated date or during a stated period is evidence that on the stated
date or during the stated period no building approval was in
force.
The clause also stipulates that in a proceeding before a
court a certificate signed by the construction occupations registrar certifying
that a document attached to the certificate is a true copy of plans approved by
the registrar under the Bill, or of a part of such plans, is evidence of the
plans or of the part as so approved.
The clause also stipulates that in a proceeding before a
court, a certificate signed by the construction occupations registrar and
certifying that, at a stated date a certificate of occupancy had not been issued
for a stated building or a stated part of the building is evidence that, at that
date, a certificate of occupancy had not been issued for the building or part of
a building.
The clause also has a note—a document that
purports to be signed by the construction occupations registrar is presumed to
have been signed by the registrar unless the contrary is proved (see Evidence
Act 1995 (Cwlth), s 150.
Clause 148 intends to protect the
construction occupations registrar and building inspectors, and people who used
to be the registrar or building inspectors, from certain civil and criminal
liabilities. It provides that a building inspector, or a former building
inspector, is not civilly or criminally liable in relation to anything done or
omitted to be done honestly by him or her in the exercise of a function under
the Bill. The clause further provides that a civil or criminal liability that
would, apart from this the clause, attach to the construction occupations
registrar or a building inspector attaches instead to the
Territory.
Clause
149 entitles the
Minister to, in writing, determine fees for the Bill. It has a note that the
Legislation Act contains provisions about the making of determinations and
regulations relating to fees (see Legislation Act pt 6.3). However, the clause
requires a fee for the issue of a building approval under clause 28 (2) (issue of building approval) to only be
determined by reference to the value of building work for which the building
approval has been issued. The clause indicates that a determination under it is
a disallowable instrument, and it has a note that a disallowable instrument must
be notified, and presented to the Legislative Assembly, under the Legislation
Act.
Clause 150 entitles the construction
occupations registrar to, in writing, approve forms for the Bill. It requires
the approved form to be used for a particular purpose under the Bill if the
registrar approves a form for that particular purpose. The clause has a note
that other provisions about forms appear in the Legislation Act. The clause
indicates that an approved form is a notifiable instrument and it has a note
about requirements for a notifiable instrument under the Legislation
Act.
Clause 151 entitles the Executive to make
regulations for the Bill. It has a note that regulations must be notified, and
presented to the Legislative Assembly, under the Legislation Act. The clause
entitles the regulations to make provision in relation to the approval of
building work in relation to particular buildings and anything else in relation
to the approval of building work on particular buildings. The intention is to
allow the regulations to either (or both) add to requirements for prescribed
building work approvals that already apply or exempt prescribed building work
from approval requirement that would otherwise apply. For example the
regulations could prescribe that an aviation authority approve all proposed
building work for erection of buildings of more than 200 storeys, in addition to
any other required approval. Another example is that the regulations could
prescribe that stated kinds of building work for erection of dwellings do not
need any kind of approval under the Bill or regulations. The clause also
entitles the regulations to prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units
for offences against the regulations.
Part 11 Transitional provisions
Many of the functions of the building controller under
the Building Act 1972 are comparable to functions that the construction
occupations registrar is responsible for under the Bill. Most of part
11’s provisions provide continuity of matters from the Building Act
1972 to the Bill.
Clause 152 defines some terms for part 11:
Building Act 1972 means that Act as in
force immediately before the commencement of the Bill;
building controller means the
building controller mentioned in the Building Act 1972
(repealed) s 5 (1);
commencement day means the day this Bill
commences.
Clause 153 requires a thing to be given to
the construction occupations registrar under the Bill if the thing was required
to be given to the building controller or a deputy building controller and if,
immediately before commencement day—
(a) a person was required to give the building
controller or a deputy building controller something; and
(b) the person had not given the building controller or
deputy the thing.
It is intended that where the clause applies the time
required to give the thing to the building controller or a deputy building
controller is also the time required to give it to construction occupations
registrar.
The Bill requires building work to be carried out in
accordance with the building code. However clause 154 exempts the
Territory from having to comply with other requirements in relation to building
work that the Territory carries out in the circumstances set out in the clause.
On 1 July 2001 the approval requirements of the Building Act 1972 were
extended the Act to unleased land, in accordance with the Sherman Report.
The amending legislation allowed for exemptions, including one applicable
to projects for which the government had entered into commitments at prices that
did not include approval costs. The circumstances are that the Minister
certifies that a contract in relation to the work was entered into before 1 July
2001. The clause clarifies that the exemption has effect despite the
Legislation Act, section 121 (Binding effect of Acts).
On 9 December 1992 provisions in the Building Act
1972 commenced which had the effect of exempting certain building work from
the application of certain provisions of that Bill, including building work that
commenced prior to the exemptions taken effect. The Building Bill 1972
clarified that the exemptions also applied to such earlier commenced work.
Clause 155 has an intention of ensuring that same exemption
concepts apply in the Bill. The provisions stipulate how they limit the
operation of part 3 (Building work), part 5 (Building occupancy), Section 53 (1) (g) (certain stop notice s)
and clause 62 (Notice to carry out building
work) of the Bill in relation to exempt buildings. It defines the
meaning of the term exempt buildings for the
clause—exempt building includes a building prescribed under
the Building Act 1972 as in force at the relevant time, section
6AA.
Clause 156 has an intention of ensuring
things done by certifiers, including government certifiers, immediately before
commencement day are taken to have been done under the Bill, and for their
appointments as certifier that were then in effect to be in effect under the
Bill. That is to ensure certifiers do not have to attend to resubmitting things
or being reappointed certifier merely because of the repeal of the Building
Act 1972 and commencement of the Bill.
Clause 157 provides that to remove any
doubt, the Bill applies to building work, whether done before or after
commencement day. An example of the application of the clause is as
follows—a building was constructed in 1993. The clause is not the subject
of a certificate under part 5 of the Bill (Building occupancy). Under that part
it is unlawful to occupy or use the building without such a certificate. That
applies despite the building having been built prior to commencement
day.
Clause 50 of the Bill
requires certifiers to notify of certain breaches of the Bill. Clause
158 provides that a reference in clause 50 to a contravention of the Bill is taken to
include a reference to a contravention of the Building Act 1972 as in
force at the relevant time. An intention is that if the contravention is the
kind that must be notified and the certifier is aware that when the
contravention occurred it was a contravention of the Building Act 1972 as
in force at the relevant time the requirement to notify still applies despite
that Bill having been repealed.
Clause 159 requires people to do a
specific thing under the Bill if the thing was required to be done under the
Building Act 1972, if the clause applies. It stipulates that the time for
doing the thing ends when it would have ended if the Building Bill 1972
had not been repealed and if the thing required the giving of something to the
building controller, the person complies with the requirement if the person
gives the thing to the construction occupations registrar. The clause indicates
that it applies if, immediately before commencement day—
• under the Building Act 1972 (repealed),
a person was required to do something; and
• immediately before commencement day the person
had not done the thing.
The Building Act 1972 contained a provision that
related to a certificate under the Canberra Sewerage and Water Supply
Regulations 1933 as in force immediately before the repeal of the
Energy and Water Act 1988 for purposes relating to the certificate as a
prerequisite to the issue of a certificate of occupancy under the
Building Act 1972. The clause ensured those certificates continue to be
valid despite repeal of the law they were issued under. Clause
160 of the Bill has an equivalent provision with the same intention
in relation to clause 69 (Certificate of
occupancy) of the Bill.
Clause 161 provides that, to remove any
doubt, clause 74 (Government
buildings—application for fitness certificate) applies to a building
whether erected before or after commencement day. An example of the application
of the provision is as follows: a building was erected in 1923. The fact that
it was erected so long before commencement day does not affect an entitlement to
apply under clause 74 for a fitness certificate
in respect of the building.
Section 76 stipulates
that a person commits an offence if—
(a) the person occupies or uses, or allows someone else
to occupy or use, a building or part of a building; and
(b) the construction occupations registrar has not
issued a certificate of occupancy for the building or part of the
building.
Whereas clause 162 clarifies that that
reference in clause 76 (1) (b) (Occupation and
use of buildings) to the construction occupations registrar issuing a
certificate of occupancy for the building or part of the building includes a
reference to—
(a) the building controller issuing the certificate
under the Building Act 1972 as in force at any time; and
(b) for a building erected or altered before 1 September
1972 or to which the laws repealed by the Building Act 1972 continued to
apply while that Act was in force—a certificate for the building or part
of the building issued in accordance with the Canberra Building
Regulations, regulation 69A, as in force at the time of
issue.
An intention is to ensure that certificates issued under
laws since repeal still have some validity in respect to clause 76 (1) (b) (Occupation and use of
buildings).
Clause 163 extends the meaning of the term
builder for clause 84 (Definitions for pt 6):
builder, in relation to residential building work or a residential building, to
include a person whose name was notified to the relevant certifier under the
Building Act 1972, section 37A (Notifications by owner of land in
relation to building work) at any time before its repeal. The intention of the
provision is to prevent the need to renotify the name for the purposes of clause
84 merely because of the repeal of the
Building Act 1972.
Clause 164 provides that a person who was
a building inspector under the Building Act 1972 immediately before
commencement day is a building inspector under the Bill and an identity card
issued to a building inspector under the Building Act 1972 and in force
immediately before commencement day is taken to have been issued under the Bill.
The intention of the provision is to prevent the need to reappoint building
inspectors and reissue identity cards merely because of the repeal of the
Building Act 1972.
Clause 165 provides that an approved
scheme under the Building Act 1972 is taken to be an approved scheme for
this Bill. It relates to approval of fidelity fund schemes under clause 96 of the Bill. An intention of the provision is
to prevent the need to re-approve schemes merely because of the repeal of the
Building Act 1972. For a corresponding reason, clause 166
provides that a person who was an auditor or actuary under the Building Act
1972 immediately before commencement day is taken to be an auditor or
actuary under the Bill. Similarly, clause 167 provides that the
trustees are taken to have asked for a respective approval under the Bill,
clause 112 (Approval of appointment of auditor
or actuary) if before commencement day—
(a) the trustees of an approved scheme had asked for an
approval under the Building Act 1972 (repealed), section 83 (Approval of appointment of auditor or
actuary); and
(b) the planning and land authority had not made a
decision on the approval.
To facilitate that arrangement for auditors and
actuaries clause 168 provides that a reference in clause 118 (Giving of information to authority by
auditor or actuary etc) to a person who has been an auditor or actuary for an
approved scheme includes a reference to a person who has been an auditor or
actuary for an approved scheme under the Building Act 1972 as in force at
any time.
To provide a continuity of certain inspection powers
affected by the repeal of the Building Act 1972 and commencement of the
Bill, the meanings of certain terms used in clause 130 (Inspection where approval) and clause 131 (Inspection where no approval) are extended
by clause 169—
this Act includes the Building Act 1972
as in force at any time;
building approval includes a building
approval under the Building Act 1972 as in force at any
time;
approved plans include approved plans
under the Building Act 1972 as in force at any time;
notice under part 4 includes a notice
under the Building Act 1972, part 4 as in force at any
time.
To provide a continuity of certain inspector’s
powers affected by the repeal of the Building Act 1972 and commencement
of the Bill clause 170 provides that if, before commencement day
the planning and land authority authorised a building inspector to enter land
and carry out building work under the Building Act 1972 (repealed),
section 9 (4) and the building inspector had not carried out the work then the
authorisation is taken to be an authorisation under the Bill, clause 133.
Clause 171 provides that in clause 136 the Australian Capital Territory Appendix to
the Building Code of Australia includes the latest Australian Capital Territory
Appendix to the Building Code of Australia made under the Building Act
1972. An intention is to avoid the need to remake the appendix merely
because of the repeal of the Building Act 1972.
Clause 172 provides that in part 9 the
term building work includes building work under the Building
Act 1972 as in force at any time after 18 December 1998, in relation to
which a building approval was issued after 18 December 1998. An intention is to
clarify that part 9 applies in respect of building approvals issued prior to
commencement day. On 18 December 1998 provisions commenced that initially
established the entitlement for certifiers to issue building approvals and
certify building work.
To provide a continuity of certain matters affected by
the repeal of the Building Act 1972 and commencement of the Bill
clause 173 provides that for clause 142 of the Bill—
(a) a certificate of completion includes a certificate
of completion under the Building Act 1972 (repealed);
and
(b) a reference to an inspection or a certifier includes
an reference to an inspection or a certifier under the Building Act 1972
(repealed); and
(c) a reference to a notice under clause 24 (2) about the end of the certifier’s
appointment includes a reference to a certificate under the Building Act 1972
(repealed), section 32 about the end of a certifier’s
appointment.
Similarly, to provide a continuity of certain matters
affected by the repeal of the Building Act 1972 and commencement of the
Act, clause 174 provides that a reference to a document mentioned
in clause 147 (1) (c) includes a reference to
a document purporting to be a certificate given by the building controller or
construction occupations registrar and certifying that a stated builder was or
was not the holder of a builder’s licence for stated building work or a
building licence included in a stated occupation class on a stated date or
during a stated period. The clause also defines the meaning of certain terms
used in the clause—
building approval—see the
Building Act 1972 (repealed) s 5 (1).
builder’s licence—see the
Building Act 1972 (repealed).
building permit means a building permit
issued under the Building Act 1972 as in force as at the time of issue of
the permit.
Similarly, to provide a continuity of certain matters
affected by the repeal of the Building Act 1972 and commencement of the
Bill, clause 175 provides that a reference in clause 147 (1) (f) to a certificate signed by the
construction occupations registrar includes a reference
to—
(a) a certificate issued by the building controller
under the Building Act 1972 as in force at the time of issue of the
certificate; and
(b) for a building erected or altered before 1 September
1972 or to which the laws repealed by the Building Act 1972 as in force
at any time continued to apply while that Act was in force—a certificate
for the building or part of the building issued in accordance with the Canberra
Building Regulations, regulation 69A, as in force at the time of
issue.
Clause
176
has provisions about asbestos. An intention is to ensure that
every provision in the Building Act 1972 that relates to building work
that involves the removal or handling of asbestos, continues apply despite the
repeal of that Act. That includes the issuing a licence authorising the holder
to do building work that involves the removal or handling of
asbestos is included in the matters to which the clause applies.
It defines the meaning of certain terms uses in the clause
—
asbestos—see the Building Act
1972, section 5 (1).
handling of asbestos—see the
Building Act 1972, section 5 (4).
In the Building Act 1972 handing, removing or
disturbing certain asbestos containing things in doing building work is taken to
be building work for that Act, requiring a certain kind of
builder’s licence under that Act.
The clause also provides that unless it expires earlier,
it expires on the day, after the commencement of the Bill, that a Territory law
is made about asbestos. An intention is to facilitate the expiration of the
provisions relating to asbestos in the Bill when and if another Territory law is
made about asbestos, as it is anticipated that another such law (a Dangerous
Substances Act) may commence within 2 years after the commencement of the Bill.
Clause
177,
subclause (1) explains that the provisions set out in schedule 1 to the
Bill are taken, on the commencement of the clause, to be regulations made under
the Bill, clause 151 (Regulation-making power). Schedule 1’s provisions
are the draft Building Regulations 2003. Subclause (2) explains that to remove
any doubt and without limiting subsection (1), the provisions set out in
schedule 1 may be amended or repealed as if they had been made as regulations by
the Executive under this Act, section 151. Subclause (3) explains that to
remove any doubt, the regulations mentioned in subsection (1) are taken—to
have been notified under the Legislation Act on the day the Building Act 2003 is
notified; and to have commenced on commencement day; and not to be required to
be presented to the Legislative Assembly under the Legislation Act, section 64
(1). The clause also stipulates that subclauses (1), (2) and (3) are laws to
which the Legislation Act, section 88 (Repeal does not end effect of
transitional laws etc) applies. The clause stipulates that it expires on the
day it commences.
Clause 178, subclause (1) explains that
the provisions set out in schedule 2 to the Bill are taken, on the
commencement of the clause, to be regulations made under the Bill, clause 151
(Regulation-making power). Schedule 2’s provisions are the draft Building
(Bushfire Emergency) Regulations 2003. The subclause (2) explains that to
remove any doubt and without limiting subsection (1), the provisions set out in
schedule 2 may be amended or repealed as if they had been made as regulations by
the Executive under this Act, section 151. Subclause (3) explains that to
remove any doubt, the regulations mentioned in subsection (1) are taken—to
have been notified under the Legislation Act on the day the Building Act 2003 is
notified; and to have commenced on commencement day; and not to be required to
be presented to the Legislative Assembly under the Legislation Act, section 64
(1).
The clause also stipulates that subclauses (1), (2) and
(3) are laws to which the Legislation Act, section 88 (Repeal does not end
effect of transitional laws etc) applies. The clause stipulates that it expires
on commencement day.
Clauses
179
and
180
deal with administrative matters for part 11. Clause 179 entitles the regulations to modify the
operation of this part to make provision in relation to any matter that is not,
or is not in the Executive’s opinion adequately, dealt with in part 11.
Clause 180 makes all of part 11 expire expires
2 years after commencement day. It is anticipated that after that period the
provisions of part 11 ought to have become redundant apart from its provisions
that continue despite expiration.
Part 12 Repeals
Part 12 repeals laws that the Bill makes redundant,
including the Building Act 1972. However clause 176 provides to the effect that provisions in
that Act that relate to asbestos continue to apply despite repeal of that Act,
for a certain period, as the Bill does not make those provisions
redundant.
Clause 181 provides for the repeal of the
legislation it lists—
• Building Act 1972 A1972-26;
and
• Building (Bushfire Emergency) Regulations
2003 SL2003-5; and
• Building Regulations 1972
SL1972-8.
Schedule 1 — New Building
Regulations
Outline
The Building Regulations 2003 (“the
regulations”) contain much of the administrative requirements for the
effective operation of the Bill.
The Building Bill 2003 (“the Bill”) replaces
the Building Act 1972 and Building Regulations 1972 regulations
(“the superseded building legislation”) in conjunction with the
Construction Occupations (Licensing) Bill 2003 (“the new licensing
scheme”).
That bill sets up a single system of licensing for the
construction occupations of builders, building surveyors (certifiers), drainers,
electricians, gasfitters, plumbers and plumbing plan certifiers. The Bill omits
licensing provisions made superfluous by the new licensing scheme and modernises
many of the remaining provisions of the superseded building
legislation.
The regulations replace the Building Regulations
1972.
Overview of
provisions
The key provisions of the Building Regulation 2003
cover:
• descriptions of the
kinds of buildings and building work that the Building Bill 2003 does not apply
to, entirely or partly
• criteria for the
appointment of government certifiers
• requirements for
certain plans and plan approvals and amendments
• criteria to assist in
considering if work is done in proper and skilful way
• descriptions of
mandatory inspection stages for building work
• particulars of
administrative matters relating to the completion of building work, insurances,
and decisions subject to review.
The provisions of the Building Regulation
1972 are catered for in the provisions of the Building Regulations 2003,
other than builder licensing provisions and other minor provisions that have
become redundant.
Details
Regulation 1 provides for the title of the
regulations. Regulation 2 states that the dictionary at the end of the
regulations is a part of the regulations. It has 2 notes about the application
of the dictionary. Regulation 3 explains that the “notes”
that appear in the regulations are aids to interpretation but not part of the
regulations.
Regulation 4 explains that provisions in other
legislation apply to offences committed under the regulations. The notes in the
Regulation refer to the application of the Criminal Code and penalty
units under the Legislation Act 2001 to the regulations.
Regulation 5 lists descriptions of buildings that
are exempt buildings for the purposes of clause 12 of the
Bill. Exempt buildings are exempted from the application of Parts
of the Bill dealing with approvals and certification of work. Exempt
buildings are either comparatively small buildings or structures of not
significant structural complexity or certain temporary buildings or structures.
The cost and efficiency benefits gained from deregulation the construction of
exempt buildings outweigh the justification for regulating their construction.
Examples of exempt buildings are certain—fences, walls,
retaining walls, outdoor decks, carports, pergolas, porches, verandas, shelters,
gazebos, shade structures, hail protection structures, sheds, greenhouses,
conservatories, cubbyhouses, stores, workshops, studios, outbuildings, class 10a
buildings antenna or aerial assemblies, artificial pools, internal
alterations to certain buildings, outdoor ponds, small structures, amusement
rides or water tanks. The regulation describes certain dimensional tolerances
and other matters that specified aspects of those buildings or structures or
building work need to be within in order to qualify as exempt
buildings. In the case of alterations to certain buildings, the
regulations place limitations on the exemption with respect to structural
sufficiency, fire ratings, fire escape, fire protection, light and ventilation.
For the term antenna or aerial assemblies it
explains that an assembly includes the antenna or aerial and its
mast, tower and footing.
Regulation 6 lists descriptions of buildings and
structures that the Act does not apply to by virtue of clause 13 (2)
of the Bill. They comprise urban and municipal infrastructure which is
generally constructed using engineering practices considered sufficient to not
warrant regulating their construction under the Act, particularly considering
they are mainly constructed by, or for, government or utilities regulated by
government. Also the cost and efficiency benefits gained from deregulation
their construction outweighs the justification for regulation their
construction. They include bridges, dams, retaining walls associated with
bridges, dams or roads, stiles, mesh fences less than 3m high, prefabricated bus
shelters, prefabricated playground equipment, road signs, electricity network
distribution equipment, reservoirs that are not part of an on-site stormwater
detention system, aqueducts, water and sewage treatment works, stormwater
outfalls and certain poles and masts.
Regulation 7 lists descriptions of building work
that are exempt building work for the purposes of clauses 15
(b) and 83 (b)of the Bill. Exempt building work is exempted
from the application of parts part 3 (Building work) and part 6 (Residential
buildings—statutory warranties, insurance and fidelity certificates).
Those parts of the Bill mainly relate to plans, approval, inspection,
certification and insurance of building work. Exempt building work includes
certain kinds of installation, alteration or removal of certain externally
mounted photovoltaic panels or solar water heaters and certain externally
mounted air conditioning units. The regulation sets out various circumstances
that must exist for the exemption to operate. The cost and efficiency benefits
gained from deregulation of doing exempt building work outweighs
the justification for regulating it.
Regulation 8 sets out the criteria for the
appointment of a government certifier for building work—
(a) a building approval for the work is in force;
and
(b) a licensed builder has started the work;
and
(c) the owner of the land where the work is being
carried out cannot, after making reasonable efforts, appoint a certifier for the
work.
Subclause 20 (4) of the Bill refers to the criteria .
The intention is that the government certifier provides a safety net that can
provide the certification services that are unreasonably difficult or impossible
to obtain from the private sector. An effect of the criteria is that a person
cannot choose to use a government certifier’s services unless the person
practically has no other option. Therefore there will effectively be no
commercial competition between government certifiers and certifiers in the
private sector.
Regulation 9 prescribes that the number of copies
of plans required for a building approval application, as referred to in clause
26 (2) (a) of the Bill, is three copies of the plans. The intention is that the
certifier keep one copy, one copy is required to be given to the construction
occupations registrar and one copy is required to be given to the applicant for
the plan approval. The certifier is entitled to require extra copies in certain
circumstances where extra copies are required for certain
consultations.
Regulation 10 prescribes the general requirements
for applications for building approval, as referred to in clause 26 (3) of the
Bill. It requires certain cost estimates, safety precautions and the area of
the respective land parcel to be stated in the application. The cost estimate
is used as a basis for determining fees that are required as part of the plan
approval requirements under the Act. The regulation provides that construction
occupations registrar determines the method for calculating that cost, and that
such a determination is a notifiable instrument. That determination is necessary
to establish a consistent method of cost calculation and reduce incidence of fee
evasion. The safety information is particularly relevant for dangerous aspects
of the work such as demolition. Demolition, including demolition by explosion
or implosion, is included under the definition of building work in the Bill and
is therefore regulated by it. It is intended that the required safety
information include particulars of things like hoardings to protect footpath
traffic, security fencing, barricades and road traffic management plans where
applicable to the work. The land area is used for statistical
purposes.
Regulation 11 prescribes certain specific
requirements for applications for building approval in relation to the erection
or alteration of a building, as referred to in the Act, s 26 (3). It requires
certain information to be given in the application in certain circumstances
including—the building class, type of fire-resisting construction and site
classification, all as set out in the Building Code of Australia, the materials
used, the number of storeys, the number of new dwellings (if any) created by the
building work, and relevant floor areas. They also include, if a performance
requirement of the building code is to be complied with by use of an alternative
solution under the code—the performance requirement, and the alternative
solution, and each assessment method used to show that the alternative solution
complies with the performance requirement. They further include, if the
building code does not state a standard of work in relation to any part of the
proposed building work and it is intended to carry out that part of the proposed
building work in accordance with a standard of work stated in another
document—
(i) the nature of the proposed building work;
and
(ii) the title of the document; and
(iii) each assessment method used to show that the
proposed building work complies with the standard of work stated in the
document.
Most of that information is used in determining if the
application complies with technical standards, such as the Building Code of
Australia. Some is used for statistical purposes.
The term alternative solution is defined
in the Building Code of Australia. Regulation 11 refers to the code to
define the meanings of the terms assessment method and
performance requirement for that regulation.
Regulation 12 prescribes requirements for
applications for building approval in relation to the removal or demolition of a
building, as referred to in clause 26 (3) of the Bill. Demolition, including
demolition by explosion or implosion is included under the definition of
building work in the Bill and is therefore regulated by it. Regulation 13
requires certain information to be given in the application in certain
circumstances including details of the methods to be used in the execution of
the building work including a work plan as stated or set out in Australian
Standard 2601 (which deals with demolition) as in force on the commencement of
the regulation, and the number of dwellings demolished (if any). The
information is relevant to determining how the work is to be done and site
inspection requirements during the demolition, and the information about
dwelling numbers is used for statistical purposes.
Regulation 13 prescribes general requirements for
plans that accompany applications for a building approval, as referred to in
clause 27 (1) (a) of the Bill. It requires plans, in certain circumstances,
to-
• be drawn to Australian
Standard 1100 (which deals with plan drawing);
• show easements;
• show certain pipe
connections in relation to storm water, sewer, or water supply and land surface
grading, where relevant to the proposed work;
• include a site plan on
a scale of not less than 1:200 showing the block, section, boundaries and
dimensions of the parcel of land.
The information is required to determine if the work
will comply with required standards and the building code, enable the building
work to be built to the plan, and to enable a certifier to determine if the work
as built complies with the Act, the plan, relevant standards and the building
code.
Regulation 13 also defines the meaning of some terms
used in that regulation.
Regulation 14 prescribes requirements for plans
that accompany applications for building approval in relation to the erection or
alteration of a building, as referred to in clause 27 (1) (a) of the
Bill. It Plans that relate to the erection or alteration of a building must
contain sufficient information about the proposed finished dimensions,
arrangement, locations and inherent characteristic of materials making up every
element of the proposed building work—
(a) to allow a certifier to work out if a building
erected or altered in accordance with the plan would contravene the Bill;
and
(b) to allow a competent builder to carry out the
building work in accordance with the plans and the Bill; and
(c) to allow a certifier to work out if the building
work, if carried out, complies with the plan and the Bill.
It further requires that information required to be
shown on the plans must be consistent with AS 1100 (which is about technical
drawing) and must be apparent from reading the drawing, rather than having to
take measurements from the drawing.
However, the regulation provides some dispensation in
relation the requirement to provide details about certain things. The cost and
time needed to document such specific information about every part of a building
are difficult to justify in terms of the benefits gained from requiring such
detailed documentation, particularly considering the computer aided design and
manufacture techniques used in fabricating house framing. The dispensation
applies to certain walls, partitions, floors, or roofs, masonry, and concrete
elements. The regulation prescribes the level of information that is required
in respect of things covered by the dispensation. It provides an example on how
an aspect of the dispensation can apply. Regulation 15 indicates that plans may
contain other information than that prescribed.
Regulation 15 describes a list of consultations
and consents that the Act requires take place before a plan approval can be
given. They are referred to in clause 27 (1) (b) of the Bill. A
number of areas of the ACT Government and some outside it have interests in
aspects of construction or administer legislation affecting aspects of it. The
provisions for consultation and approval in regulation 16 maintain the link
between planning and building and continue other relevant arrangements that were
in place under the former building regulations. The prescribed list
includes-
(a) any consent or approval required under a Territory
law in relation to the work;
(b) if the work is, or forms part of, a development
requiring approval under the Land (Planning and Environment) Act 1991,
part 6.2—approval of the development;
(c) if the approval mentioned in paragraph (b) contains
conditions precedent to starting the building work—compliance with those
conditions;
(d) if the parcel of land is in a designated
area—approval under the Australian Capital Territory (Planning
and Land Management) Act 1988 (Commonwealth), section 12;
(e) if the work involves the erection or alteration of a
lift—a permit under the Scaffolding and Lifts Regulations 1950, regulation
17;
(f) consultation with ACTEW Corporation Limited in
relation to—
(i) the demolition of any building to which electricity,
water or sewerage services are supplied or to which an electricity or water
meter is connected; and
(ii) any encroachment of the proposed building or
proposed new part of the building onto an easement; and
(iii) the disposal of any non-domestic waste into the
sewerage system;
(g) consultation with the fire commissioner and the
chief fire control officer in relation to—
(i) any use of an alternative solution in relation to a
provision of the building code which deals with fire protection;
and
(ii) any proposed building or proposed new part of a
building, as the case requires, with a floor area exceeding 500m2 that is not a
class 1 or class 10 building;
(h) consultation with the chief executive responsible
for urban services in relation to—
(i) procedures to be used in the demolition of any
building of class 2, class 3, class 4, class 5, class 6, class 7, class 8 or
class 9; and
(ii) any waste management plan provided in the
application;
(i) if it is proposed that the new building or new part
of the building is to be used for the sale or supply of
liquor—consultation with the construction occupations registrar of liquor
licences in relation to occupancy loading and kitchen, bar and toilet
facilities;
(j) consultation with the chief health officer in
relation to the application of any health law to the proposed new
building or new part of the building;
(k) consultation with the environment protection
authority if—
(i) it is proposed that the new building or new part of
the building is to be used to conduct a class A or class
B activity; or
(ii) an accredited code of practice is
applicable to an activity intended to be carried out in the new building or new
part of the building.
Regulation 15 also limits the period for response to
consultation to 10 working days. There is no time limit prescribed for where
agreement is required. It defines the meaning of some terms
used-
accredited code of practice means a code
accredited under the Environment Protection Act 1997, section 31
(1).
class A activity means an activity listed
in the Environment Protection Act 1997, schedule 1, clause
2.
class B activity means an activity listed
in the Environment Protection Act 1997, schedule 1, clause
3.
designated area—see the
Australian Capital Territory (Planning and Land Management) Act 1988
(Commonwealth).
health law means a Territory law that has
as one of its objects or purposes the protection of public
health.
Regulation 16 contains criteria to be used to
determine if plans are for the substantial alteration of a
building, as referred to in clause 29 (2) of the Bill. An intention is
that if the volume of the proposed building work when added to that of certain
building work carried out on the same building in the past three years comprises
more than 50% of the volume of the building, then the plans ought to also
reflect any work required to ensure the entire building will meet current
requirements of the Act (and not just the originally proposed work). The
anticipated outcome is that in the long term many old buildings will be upgraded
to better keep pace with changes in building code requirements. The regulation
provides that an alteration of a building is a substantial alteration
if—
(a) the aggregate volume of the proposed alteration and
any other alteration made to the building during the 3 years immediately before
the day the application for building approval of the alteration is made is more
than 50% of the volume of the original building; and
(b) the volume of a building is measured by reference to
roof and outer walls.
Regulation 16 also gives five examples of the effect of
those provisions to endeavour to illustrate the intent of the
regulation—
1 A house is extended by 70%. The whole building must
comply with this Act, not just the extension (see par (a)).
2 A sunroom is added to a building, adding only 10% to
the building. The sunroom must comply with this Act, not the rest of the
building (see par (b)).
3 Two shops in a mall are to be combined to form a
café. The building work involves replacing all the shops’ fitout,
including all fixtures, the glazed shopfront walling and ceiling and removal of
the common wall. In the three years immediately before the date the application
for building approval is made, other shops in the mall have been altered
similarly. The total volume of the refitted shops, with the volume of the
café, is more 50% of the volume of the mall. The whole mall must comply
with this Act, not just the café.
4 A photocopier room is to be added to an office
building. In the three years immediately before the date the application for
building approval is made the building has often had parts of its fitout
altered. Open plan cubical work stations were moved, enclosed meeting rooms were
converted to open plan cubical workstations, three walls of another enclosed
office were moved to make a hallway and new enclosed offices were created where
open plan cubical workstations originally were located. The first alterations to
the cubical workstations did not involve altering or erecting fixtures, so the
alterations do not need to be included when working out the total volume of
alterations to the building. The cubicle work stations erected in place of the
enclosed meeting rooms were fixtures, so the volume of each workstation, worked
out by multiplying its usable floor area by the height of the floor or roof
above, must be included in working out to the total volume of alterations to the
building. The removal of the three walls of the enclosed office to make a
hallway prevent the room functioning as a room, so the volume of the room must
be included in working out the total volume of the alterations to the building.
The walls erected to form a room or substantially enclosed space must be
included to work out the total volume of the alterations to the building.
However, the total of the volumes of the alterations made to the building, when
added to the volume of the proposed photocopier room, amount to 45% of the
building, so only the proposed room has to comply with this Act, not the whole
building.
5 A building contains a nightclub where a fire sprinkler
system was installed 1 year ago. Plans now propose to upgrade the
airconditioning system throughout the building. The volume of the sprinkler
pipework and proposed airconditioning ducts are included in working out the
total volume of alterations to the building, but the volume of the spaces they
can sprinkle or ventilate is not included.
Regulation 17 sets out criteria, which
clause 32 (4) of the Bill requires be used, to determine if a building
built to amended plans (the new building) is significantly
different from a building built to the unamended plans (the old
building) when considering plans for approval under the Act. An
intention is to require that a new building approval be sought, rather than an
amendment to an existing approval, where the criteria indicate that the
old building is significantly different to the new
building. Without that mechanism, it could be possible to reduce the
liability to pay relevant determined fees by exploiting the use of the system of
amendments to plan approvals. That is because under the Bill the relevant fees
payable are proportional to the value of the building work. So, for example if
the old building is a 1 bedroom house, the fees payable are based
on the cost of that house. If the new building is in respect of
an amendment to the plans for that 1 bedroom house to change it to a 10 room
motel, then without the regulation 18 provisions no additional fees would
apply despite the cost of the work increasing substantially. The effect of
regulation 17 is to allow the 1 bedroom house plan to be amended to the
extent that it would not have significant impact on the determined fees payable
after the amendment. Such changes could include things like adding a window or
door, for example. But if the amendment is to add a second bedroom, the
increase in certain dimensions of the house as described in the regulation would
prevent the amendment from being treated as an amendment to the relevant plan
approval. Instead a new approval ought to be sought for the extra bedroom, thus
incurring a liability to pay extra fees in respect of the extra cost of the
work, as required by the Bill.
The relevant prescribed criteria which determine that an
amendment to a plan results in a significantly different building
include-
(a) the floor area, roof area or volume of the new
building has increased or decreased by more than 1%; or
(b) the new building is not same class of building as
the old building; or
(c) if the old building had parts that are not of the
same class of building—
(i) the position of the parts in the new building has
changed; or
(ii) the floor area, roof area or volume of the parts in
the new building has increased or decreased by more than 1%; or
(d) any dimension of the perimeter of the new building,
including the perimeter of the building’s footprint or an elevation, has
changed by more than 1%; or
(e) the type of material to be used in the new building
to form a structural element, roof, floor or external wall cladding has changed;
or
(f) the number of storeys or buildings in the new
building has changed.
Regulation 17 also provides an example to clarify how
the change of dimension concept it establishes applies-the height of the
building increases from 3m to 3.5m. The change of the dimension is more than
1%.
Regulation 18 prescribes criteria, which
clause 42 (2) of the Bill requires be taken into account, in
considering if building work has been done in a proper way. The Bill requires
building work to be done in a proper and skilful way. The prescribed criteria
include-
(a) whether the work uses a product or system in
accordance with any accessible instructions, directions, guidelines or
suggestions of the maker or seller of the product or system;
(Examples of instructions that are not accessible are-
1) instructions not in English; 2) an information leaflet printed 10 years ago
that is now unavailable).
(b) whether the work is in accordance with any relevant
rules or guidelines published by Standards Australia;
(c) whether, as part of the work, a product or system is
being, or has been, used in a way that a reasonable person would expect is
contrary to the intended use of the product or system;
(d) whether, as part of the work, a product or system is
being, or has been, used in a way that the maker has given written notice will
void the maker’s warranty;
(e) whether a reasonable person doing the work would
know or reasonably suspect that the use of a product or system in a particular
way would cause more instability, or affect the durability or soundness of the
product or system or of the building work than if the product or system were
used appropriately;
(f) how reasonable it is in all the circumstances for
the user of a product or system to rely on the maker’s statement that the
product or system complies with a stated standard;
(g) whether the building work contravenes the Bill or
another Territory law.
An example of the intended application of paragraph (a)
is where the manufacturer of a lintel provided tables specifying the maximum
distanced that the lintel can span in a given situation. The tables may be
taken as being manufacture’s guidelines for the purposes of paragraph (a).
If building work involved the installation of a lintel that spans further than
that respective maximum distance in the relevant circumstances, then under
paragraph (a) that work may be taken to have been done not in a proper way.
It is intended that paragraph (b) applies in respect of
any Australian Standard that is applicable to doing the building work. For
example, if an Australian Standard set out acceptable tolerances for the
erection of roof trusses then paragraph (b) applies in respect of those
tolerances where relevant building work involved the erection of roof trusses
covered by that standard. It is intended that that apply despite the fact that
the building code may, or may not, refer to the Australian
Standard.
An example of the intended application of paragraph (c)
is where an untreated, low-durability timber wall stud is buried in the ground
and used as a long-term structural support for a deck. If it is established
that a reasonable person would expect such use of a wall stud to be contrary to
the intended use of that product in that it would rot in the ground, then
paragraph (c) applies to that use in the building work.
Regulation 18 also provides an example of the
application of paragraph (d)- Installing roof sheeting so it is level at any
point is use in a way that a reasonable person would expect to be contrary to
the intended use of the sheeting if the manufacturer’s published
literature indicates that the sheet’s warranty is voided ifthe sheeting is
installed at a fall of less than 1° off level.
An example of the intended application of paragraph (e)
is where plain steel fasteners, such as nails and bolts, were used to hold beams
and columns of an external timber pergola together. If it is established that a
reasonable person would suspect that the pergola may eventually become unstable
due to rusting of the plain steel fasteners, then paragraph (e) applies to their
use in the building work.
An example of the intended application of paragraph (f)
is where the maker of a container of steel bolts indicated that the bolts are
zinc plated and that plating complies with a stated standard. If a person used
the nails suspecting that the statement was wrong in that the bolts were clearly
of plain steel with no zinc coating (and therefore subject to rapid rusting),
then paragraph (f) may apply to the way the person relied on the statement and
used the bolts in the building work in a situation where plain steel bolts were
inappropriate due to rusting.
An example of the intended application of paragraph (g)
is where a person does building work that does not comply with the building code
in circumstances where the Bill required such work to so
comply.
Regulation 19 prescribes the criterion, which
clause 42 (2) of the Bill requires be taken into account in
considering if building work has been done in a skilful way. The Bill requires
building work to be done in a proper and skilful way. The prescribed criterion
includes-
in deciding whether building work has been done in a
skilful way, consideration must be taken of whether the work has been carried
out to completion with enough care that it does not have to be redone to
adequately serve its intended purpose or comply with the Act.
It provides examples to illustrate application of the
criterion-
1 A timber stairway was built. Its elements were glued
and nailed together permanently. The top step was too high to comply with a
relevant provision of the building code. The step had to be disassembled or
removed to rectify that noncompliance. The building of the step was not done in
a skilful way.
2 The potential non-compliance in the step mentioned in
example 1 was noticed before the components of the step were permanently
fastened together. It was adjusted to ensure it complied with the building code
without having to undo or redo any completed building work. That noncompliance
and adjustment do not indicate that the building of the stair was not done in a
skilful way.
It is intended that in applying the criterion
consideration ought to be given to the extent to which defective building work
must be undone and redone to achieve compliance with the requirements of the
Act. It recognises that there is likely to be a level of error making while
carrying out building work that ought not necessarily be captured by the
criterion. However it is intended that a failure to put in place reasonable,
adequate and effective measures to minimise, detect and rectify such errors
ought to result in the paragraph applying, particularly where earlier detection
of the errors, or exercising more care in doing the work, would have reduced the
amount of rework necessary to bring resulting non-compliance into
compliance.
Regulation 20 describes how much building work
can be done to constitute the building work having reached various stages. The
stages are referred to in clause 43 (1) of the Bill. The stages are
consistent with the stages that were previously prescribed in the Building
Regulations 1972. The Act prohibits building work from continuing past a
stage unless the work had been inspected and passed by a certifier and the
certifier had given permission for the work to proceed. The stages are set at
points during construction where critical aspects of the work can be seen before
being covered over with concrete or wall linings for example. The stages
include-
(a) completion of excavation, placement of formwork and
placement of steel reinforcing for the footings before any concrete for the
footings is poured;
(b) completion of the structural framework and, for a
class 1 or class 10 building, before the placement of any internal lining;
and
(c) for a class 1 or class 10 building—completion
of placement of formwork, and placement of steel reinforcing, for any reinforced
concrete member before any concrete for the member is poured;
and
(d) for a building other than a class 1 or class 10
building—completion of any reinforced concrete member, before any concrete
for the member is poured, stated by the certifier in the relevant building
approval; and
(e) completion of the building work approved in the
relevant building approval.
The regulation includes a note-“the Act, s 43 (2)
requires certain things to be done before building work proceeds beyond the
dampcourse level of a building.” That is in addition to the stage
requirements of regulation 21.
The class 1 and class 10 buildings referred to in
regulation 21 are residential buildings that are not blocks of flats, as
classified by the building code.
Regulation 21 prescribes the criteria that a plan
must satisfy to be prescribed for the purposes of clause 43 (2) (a) (ii) of the
Bill. It also describes the circumstances under which the regulation applies.
An intention is to provide a degree of dispensation in certain circumstances
where the Bill requires a plan signed by a registered surveyor (a survey plan).
When most buildings are constructed, before proceeding with construction above
the building’s damp course level the Bill requires the relevant certifier
to be given a survey plan for the work and for that certifier to be satisfied
the building is located at the required position and that its floors are at the
required level. An intention is to detect wrongly positioned building footings
and floors before construction becomes more advanced. The requirement has
applied in relevant previous laws for several decades. Most buildings therefore
have a survey plan in existence that was created at the early stages of their
construction. The provisions of regulation 21 recognise that such survey
plans can serve a similar purpose as a new survey plan can in respect of certain
additions to a building. The Bill requires that a new survey plan be made for
all new building work that has a damp course, subject to the dispensation of
regulation 21. Most habitable residential buildings do have a damp course.
In practice creation of the required survey plan entails a registered land
surveyor measuring the building work and boundaries of the land and depicting
the measurements in the survey plan. That process can take significant time and
has a significant cost. The regulation 21 dispensation provides that the
certifier can use certain old survey plans to check the position on new building
work, rather than require a new survey plan. An example is where an old survey
plan for a house states that the house is located at a distance of 6 m from its
side boundary, and that the house is parallel to that boundary, and the boundary
is straight. In circumstances where an extension of the house is to be
constructed at the same 6 m distance from the same boundary, and also parallel
to it, then under regulation 21 the certifier is entitled to rely on the
old survey plan rather than require a new survey plan in checking the position
of the new extension. That is subject to the provisions of that regulation
which include-
The regulation applies to building work if—
(a) the work is only in relation to an extension or
alteration of an existing class 1 or class 10 building (the original
building); and
(b) any building resulting from the work is to be
located completely on the same parcel of land (the original land)
where the original building is.
A plan (the original survey plan) signed
by a registered survey is prescribed in relation to building work
if—
(a) the original survey plan contains
sufficient information to allow the certifier to form an accurate opinion about
whether the building work complies with the Act, section 43 (2) (b);
and
(b) the arrangement of the boundaries of the original
land, and location and levels of the original building, have not changed since
the original survey plan was made; and
(c) no building on which the work is to be carried out
is, or building resulting from the work is to be, situated closer than 100mm
away from boundary of the parcel of land.
Regulation 22 describes a list of approvals that
the Bill requires be obtained when a certifier believes that building work
appears complete, as part of the building approval process. They are referred
to in clause 48 (2) (d) of the Bill. A number of areas of the ACT
Government have interests in aspects of construction or administer legislation
affecting aspects of it. The provisions for approvals in regulation 23
maintain the link between planning and building and continue other relevant
arrangements that were in place under the former building regulations. The
prescribed list includes-
(a) if an approval for building work given under the
Land (Planning and Environment) Act 1991 is subject to a condition—the
approval of the chief planning executive to the way in which the condition has
been satisfied;
(b) approval of the installation of any fire appliance
in the new building or new part of the building by the fire commissioner or
other person authorised under the Fire Brigade Regulations 1958, regulation 3
(2);
(c) approval under the Scaffolding and Lifts Regulations
1950, regulation 21.
Regulation 23 prescribes that the cost of
residential building work as referred to in clause 87 (1) (c) of the Bill is $12
000. The intention of that provision is that part 6 of the Bill does not apply
to residential building work that costs less than $12 000. That part 6 deals
with building warranty insurance.
Regulation 24 prescribes that the period that
needs to elapse before a statutory warranty ends as referred to in clause 88 (4)
of the Bill is 6 years or 2 years after the completion day (as
defined in clause 88 (4) of the Bill) for the work. The 6-year period applies
for residential building work in relation to a structural element
and that the 2-year period applies for residential building work in relation to
a non-structural element. The regulation defines the term
non-structural element of a building to mean a component of the
building that is not a structural element. It defines the term
structural element of building to mean an internal or external
load-bearing component of the building that is essential to the stability of the
building (a foundation, floor, wall, roof, column or beam) or to mean any part
of it or any component (including weatherproofing) forming part of the external
walls or roof of the building.
An intention in limiting the duration of statutory
warranties is to balance the conflicting objectives of providing consumer
protection whilst maintaining builder’s and insurers liabilities at viable
levels.
Regulation 25 prescribes that the maximum amount
that insurance referred to in the Bill, subclause 90 (b) must provide insurance
cover of, (or an amount equal to the cost of the work, whichever is less), is
$85 000. An intention in limiting the amount of required insurance cover to a
maximum of $85 000 is to balance the conflicting objectives of providing
consumer protection whilst maintaining builder’s and insurers liabilities
at viable levels.
Regulations 26 to 27 prescribe things, which the
Bill, clause 90 relies on in setting out compliant insurance criteria. Set out
below is some of the text of clause 90 of the Act with the respective
prescribed things inserted and emphasised, to clarify the intention of the
clause and regulations 26 to 28.
“An insurance policy issued in relation to
residential building work complies with this section if—
(a) it is issued by an authorised insurer;
and
(b) it provides for a total amount of insurance cover of
at least the amount prescribed under the regulations [$85 000 (see regulation
25)], or an amount equal to the cost of the work, whichever is less, in
relation to each dwelling that forms part of the work; and
(c) if the builder is not the owner of the land where
the work is to be carried out—it insures the owner and the owner’s
successors in title for the period beginning on the day the certifier in
relation to the work receives a notification under section 37 in relation to the
builder and ending at the end of the period prescribed under the regulations
[5 years (see regulation 26)] after the day a certificate of occupancy is
issued for the work; and
(d) if the builder is the owner of the land where the
work is to be carried out—it insures the builder’s successors in
title for the period beginning on the day the title in the land is transferred
to another person and ending at the end of the period prescribed under the
regulations [5 years (see regulation 26)] after the day a certificate of
occupancy is issued for the work; and
(e) the whole of the premium payable in relation to the
period has been paid; and
(f) it insures the owner (if the builder is not the
owner) and the owner’s successors in title against the risk of being
unable to enforce or recover under the contract under which the work has been,
is being or is to be carried out because of the insolvency, disappearance or
death of the builder; and
(g) it insures the owner (if the builder is not the
owner) and the owner’s successors in title against the risk of loss
resulting from a breach of a statutory warranty; and
(h) it insures the owner (if the owner is not the
builder) and the owner’s successors in title against the risk of loss
resulting, because of the builder’s negligence, from subsidence of the
land; and
(i) it provides that a claim under it may only be made
within the period prescribed under the regulations [90 days (see regulation
27)], or a longer stated period after the claimant becomes aware of the
existence of grounds for the claim; and
(j) the form of the policy has been approved in writing
by the construction occupations registrar.”
Regulations 28 prescribes an amount, which the
Bill, clause 91 (1) relies on. Set out below is some of the text of clause 91
(1) of the Bill with the prescribed amount, $500, inserted and emphasised, to
clarify the intention of clause 91 (1) and regulation 29.
“A compliant residential building insurance policy
may provide that the authorised insurer who issues the policy is not liable for
the 1st amount equal to the amount prescribed under the regulations
[$500], or the stated lesser amount, of each
claim.”
Regulations 29 prescribes an amount, which clause
93 (3) (b) of the Bill, relies on. Set out below is some of the text of clause
90 (3) (b) of the Bill with the respective prescribed amount, $10 000, inserted
and emphasised, to clarify the intention of clause 93 (3) (b) and regulation
30.
“However, if the owner has paid a deposit on the
work and the cost of any work done is less than the amount of the deposit, the
owner may recover from the insurer the lesser of the following
amounts:
(a) an amount equal to the amount of the deposit less
the cost of any work done;
(b) the amount prescribed under the regulations [$10
000] less the cost of any work done.”
Regulation 30 prescribes a list of certain kinds
of decisions that the construction occupations registrar is entitled to make
under the Bill and a corresponding list of certain people (relevant
people) that clause 144 (5) of the Bill requires notices under that
clause to be given to if the clause applies. It relates to appeal rights in
respect of the decisions, and notices of those appeal rights.
The dictionary at the end of the regulations is
provided for in regulation 3 and gives definitions of terms used in the
regulations.
Schedule 2—New Building (Bushfire Emergency)
Regulations
Outline
The Building (Bushfire Emergency) Regulations
(“new”) replace the regulations (“old”) made under
the Building Act 1972, which performed the same function as the as the
new. The old regulations are also entitled the Building (Bushfire Emergency)
Regulations.
The new regulation’s provisions are virtually
identical to the old, but refer to the Construction Occupations (Licensing) Bill
2003 rather the Building Act 1972 where appropriate.
The new regulations apply to buildings and structures
affected by the bushfires of January 2003 and provide for them to be
demolished under a modified procedure.
The new regulations work in combination with the Land
(Planning and Environment) (Bushfire Emergency) Regulations 2003 (“the
Land Bushfire Emergency Regulations”). Normally a development application
and then building approval are both required for demolition. The two sets of
regulations reduce these to one process.
The Land Bushfire Emergency Regulations provide for the
identification of the land where buildings and structures were destroyed by
bushfires, identify the period of the bushfires and exempt demolition on that
land from approval as a development under the Land (Planning and Environment)
Act under certain conditions.
One of the conditions is that a plan of works is drawn
up for the demolition and the development complies with an agreement between the
owner and the person carrying out the demolition that has been approved by the
construction occupations registrar.
The Bill defines building work to include demolition,
describes building approval (including a statement of what plans must be
provided with an application to carry out demolition) and states which the kinds
of people (certifiers) who may provide building approval.
The new regulations modify those requirements by
providing that an endorsed plan of works that satisfies the Land Bushfire
Emergency Regulations also satisfies the building approval requirements of the
Bill.
Details
Regulation 1 is a formal regulation that
gives the name of the regulations.
Regulation 3 is a formal regulation that
indicates that the effect of notes included in the regulations is limited to
explanatory purposes.
Regulation 4 states that if there is an endorsed
plan of works for a building exempted from development approval under the Land
(Planning and Environment) (Bushfire Emergency) Regulations 2003, then the
corresponding building work is taken to be approved.
The Bill—Dictionary
The dictionary at the end of the Bill is provided
for in clause 3 of the Bill and gives definitions of terms used in the
regulations.
Cost implications
Nil.
[Index]
[Search]
[Download]
[Bill]
[[Help]]