Environmental Planning and
Assessment Amendment (Quality of
Construction) Bill 2003

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to amend the Environmental Planning and Assessment Act 1979 and the
Environmental Planning and Assessment Regulation 2000 with respect to
the following matters:

        (i) functions of certifying authorities,
        (ii) investigation of certifying authorities,
        (iii) improper influence with respect to the conduct of certifying
authorities,
        (iv) the appointment and functions of principal contractors,
        (v) construction certificates,
        (vi) occupation certificates,
        (vii) conditions of development consents and complying development
certificates,
        (viii) time for giving notices,
        (ix) offences and penalties,
        (x) other miscellaneous matters,
        (xi) savings and transitional provisions,
and to make a consequential amendment to the Environmental Planning
and Assessment (Savings and Transitional) Regulation 1998, and

(b) to amend the Building Legislation Amendment (Quality of Construction)
Act 2002 to remove certain uncommenced amendments from that Act that
will be re-enacted with modifications in the proposed Act.

Outline of provisions

Clause 1 specifies the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation, except for sections 3 and 5 and Schedule 1
[27], [32], [39] and [42]–[44] to that Act which will commence on the date of
assent to the proposed Act.

Clause 3 is a formal provision giving effect to the Schedule of amendments to
the Environmental Planning and Assessment Act 1979 (Schedule 1).

Clause 4 is a formal provision giving effect to the Schedule of amendments to
the Environmental Planning and Assessment Regulation 2000 and the
Environmental Planning and Assessment (Savings and Transitional) Regulation
1998 (Schedule 2).

Clause 5 repeals certain uncommenced amendments in the Building Legislation
Amendment (Quality of Construction) Act 2002 as referred to in the Overview
above.

Schedule 1 Amendment of Environmental Planning
and Assessment Act 1979
The various amendments to the Environmental Planning and Assessment Act
1979 (the 1979 EP&A Act) in Schedule 1 to the proposed Act are explained
below. To assist locating related amendments to the Environmental Planning
and Assessment Regulation 2000 (the 2000 EP&A Regulation), the effect of
some of the amendments in Schedule 2.1 is also described below.

Functions of certifying authorities
Schedule 1 [7], [8], [10] and [11] amend sections 81A and 86 of the 1979 EP&A
Act to require a principal certifying authority, rather than the person by whom
he or she is appointed, to notify the relevant consent authority and council of the
appointment at least 2 days before work commences for which the person is the
principal certifying authority.

Proposed sections 81A (2) (b1) (ii) and (4) (b1) (ii) and 86 (1) (a1) (ii) of the
1979 EP&A Act will require a principal certifying authority to notify the person
having the benefit of a development consent or complying development
certificate of any critical stage or other inspections that will need to be carried
out at various times in relation to proposed development for which the principal
certifying authority has been appointed.

Schedule 1 [9] and [12] amend sections 81A and 86 of the 1979 EP&A Act to
exempt Crown development from certain requirements of those sections.

Schedule 2.1 [7]–[10] and [15]–[18] make consequential amendments to
clauses 103 and 135 of the 2000 EP&A Regulation to the amendments made to
the 1979 EP&A Act relating to principal certifying authorities.

Schedule 1 [18] substitutes section 109E (1) of the 1979 EP&A Act, so as to
provide that the appointment of a principal certifying authority for any
development is to be made by the person having the benefit of the relevant
development consent or complying development certificate, and inserts a new
section 109E (1A) so as to prohibit such an appointment being made by a builder
who is going to carry out the development unless the builder is the owner of the
land concerned.

Schedule 1 [19] inserts new section 109E (3) and (4) into the 1979 EP&A Act
to set out other functions of a principal certifying authority for building work or
subdivision work. A principal certifying authority is required to be satisfied:

(a) that a construction certificate is issued before work over which the
principal certifying authority has control commences, and

(b) that any head contractor for the work is the holder of the appropriate
licence under, and is covered by the appropriate insurance required by, the
Home Building Act 1989 before any such residential building work
commences, and

(c) that any owner-builder who will carry out the work is the holder of an
owner-builder permit under that Act before any such residential building
work commences, unless excepted from that requirement, and

(d) that, while the work is being carried out, it is inspected on such occasions
as are prescribed by the regulations or otherwise required by the principal
certifying authority before the principal certifying authority issues an
occupation certificate or subdivision certificate for the building or work
concerned, and

(e) that compliance certificates have been issued for each matter as to which
the principal certifying authority must be satisfied before issuing the
relevant occupation certificate or subdivision certificate but in respect of
which the principal certifying authority proposes to rely on compliance
certificates issued by other persons, and

(f) that any preconditions to the issue of an occupation certificate or
subdivision certificate have been complied with before the certificate is
issued.

A principal certifying authority must also comply with any other requirements
imposed on principal certifying authorities by the regulations.

Schedule 2.1 [35] inserts a new clause 162A into the 2000 EP&A Regulation to
specify occasions on which building work must be inspected, for the purposes of
proposed section 109E (3) (d) of the 1979 EP&A Act. These compulsory
inspections for building work are called critical stage inspections and will need
to be supplemented by any other inspections required by a principal certifying
authority. This item also inserts a new clause 162B into that regulation requiring
a principal certifying authority to keep records of inspections conducted, as
referred to in proposed section 109E (3) (d) of the 1979 EP&A Act.

Schedule 2.1 [11] and [19] insert new clauses 103A and 135A into the 2000
EP&A Regulation which set out what is required to be included in a notice of
critical stage inspections that must be given to the person having the benefit of a
development consent or a complying development certificate by a principal
certifying authority before work is commenced.

Schedule 1 [20] inserts a new section 109EA into the 1979 EP&A Act, replacing
the existing section 109E (3) to be repealed by Schedule 1 [19]. New section
109EA will require the approval of an accreditation body to the replacement of
a principal certifying authority who was accredited by that body and the
approval of a consent authority or the council to the replacement of the consent
authority or the council by another principal certifying authority.

Schedule 2.1 [34] replaces clause 162 of the 2000 EP&A Regulation. New
clause 162 requires notice to be given to the consent authority and, if the consent
authority is not the council, to the council of his or her appointment by a
replacement principal certifying authority.

Schedule 1 [33] replaces section 109ZG (2) of the 1979 EP&A Act so as to relax
the existing provision that prohibits an accredited certifier from issuing a Part 4A
certificate for work in which he or she has been involved so that it no longer
applies merely because he or she has been involved in preparing the plans and
specifications for the work.

Schedule 1 [40] inserts new section 148A into the 1979 EP&A Act. That section
will create offences if an accredited certifier performs his or her functions as a
certifying authority otherwise than impartially.

Investigation of certifying authorities
Schedule 1 [37] inserts a new Division 1B into Part 6 of the 1979 EP&A Act.

The new Division contains provisions enabling a Departmental auditor
appointed by the Director-General of the Department of Infrastructure, Planning
and Natural Resources (the Director-General) to investigate the work and
activities of a council (proposed section 118P) or an accredited certifier
(proposed section 118Q) acting in the capacity of a certifying authority. The
powers of a Departmental auditor are set out in proposed section 118R.

Schedule 1 [29] repeals section 109U of the 1979 EP&A Act as a consequence
of enacting proposed Division 1B, and Schedule 1 [30] makes a consequential
amendment to section 109ZA of that Act.

Appointment and functions of head contractors
Schedule 1 [7] and [10] insert proposed new sections 81A (2) (b2) and 86 (1)
(a2) into the 1979 EP&A Act. These provisions require the person having the
benefit of a development consent or complying development certificate to
appoint a head contractor for any building work to be carried out in accordance
with a development consent or complying development certificate (otherwise
than by an owner-builder). A person may be appointed as head contractor for
residential building work only if the person is the holder of a contractor licence
under the Home Building Act 1989.

The person having the benefit of the development consent or complying
development certificate must notify the principal certifying authority of the
appointment of a head contractor and (unless that person is appointed as the head
contractor) must notify the head contractor of all critical stage and other
inspections that will need to be carried out in connection with the work.

Obligations relating to the carrying out of building work are imposed on head
contractors, as described below in explanations of particular amendments. They
are required to give the principal certifying authority sufficient notice for critical
stage and other inspections to be made by certifying authorities and to maintain
a sign showing their particulars on a building site.

Construction certificates
Schedule 1 [5] amends section 80 (12) of the 1979 EP&A Act so as to ensure
that not only original plans and specifications for which a construction
certificate is issued, but also variations to the construction certificate and those
plans and specifications, form part of a development consent.

Schedule 1 [6] omits from section 80 of the 1979 EP&A Act certain provisions
that require a development consent to identify the classification of a proposed
building. Schedule 2.1 [28] and [29] amend clause 147 of the 2000 EP&A
Regulation to make this a requirement of a construction certificate.

Schedule 2.1 [28] re-enacts in clause 147 of the 2000 EP&A Regulation the
provision omitted from section 80 of the 1979 EP&A Act with respect to the
classification of buildings.

Occupation certificates
Schedule 1 [21] inserts new subsections (1A)–(1D) into section 109H of the
1979 EP&A Act. Requirements for interim occupation certificates are removed
from the regulations into this section (see subsections (1C) and (1D)). Schedule
1 [23] makes a consequential amendment by repealing section 109H (3).

Schedule 1 [22] amends section 109H (2) to acknowledge that a final occupation
certificate will be issued to allow a use of a building (and not a change of
building use).

Proposed section 109H (1) (b1) intended to be inserted by the Building
Legislation Amendment (Quality of Construction) Act 2002 has not been reenacted
because it is now seen to impose an impractical requirement.

Schedule 1 [24] amends section 109M of the 1979 EP&A Act so as to set the
maximum penalty for occupying a new building for which an occupation
certificate has not been issued at 5 penalty units ($550) for a class 1a or class 10
building (a dwelling-house or ancillary building) and 1,000 penalty units
($110,000) for any other building.

Schedule 1 [25] amends section 109N of the 1979 EP&A Act so as to remove a
minor ambiguity of expression.

Schedule 2.1 [32] amends clause 156 of the 2000 EP&A Regulation so as to
repeal a provision that currently exempts class 1a and class 10 buildings
(dwelling-houses and ancillary buildings) from the requirement for an
occupation certificate.

ther miscellaneous matters
Schedule 1 [1] and [2] amend section 4 (1), the provision containing definitions
for the purposes of the 1979 EP&A Act, so that references to the Building Code
of Australia may be updated by the regulations under that Act and so as to insert
new definitions of critical stage inspections, head contractor, owner-builder
and residential building work which are used in other amendments.

Schedule 1 [3] and [4] amend section 22 of the 1979 EP&A Act so as to
specifically allow the Minister to establish committees for the purposes of
administration of the Act and to appoint a Chairperson to such a committee.

Schedule 1 [13] amends section 105 of the 1979 EP&A Act to authorise a
consent authority or council to impose a fee with respect to the lodging of a
complying development certificate with it.

Schedule 1 [14] amends section 109C of the 1979 EP&A Act so as to make it
clear that a single compliance certificate can deal with a number of matters.

Schedule 1 [15] and [16] amend section 109D of the 1979 EP&A Act to allow
the council of the area in which the development is carried out to issue a
compliance, construction, occupation or subdivision certificate.

Schedule 1 [17] amends section 109D (3) of the 1979 EP&A Act so as to remove
a minor ambiguity of expression.

Schedule 1 [26] amends section 109Q of the 1979 EP&A Act so as to enable the
regulations under Part 4A of that Act to authorise the imposition of a fee with
respect to Part 4A certificates that are lodged with a consent authority or council.

Schedule 1 [27] and [28] amend section 109T of the 1979 EP&A Act so as to
allow an accreditation body:

(a) to impose conditions on a person’s accreditation by the body in
accordance with its authorisation as an accreditation body, and

(b) to rely on a certificate of currency issued by an insurance company or an
appropriate current insurance policy when determining whether or not an
accredited certifier is covered by the required insurance.

Schedule 1 [30] and [31] amend section 109ZA of the 1979 EP&A Act so as:

(a) to update cross-references to other sections, and

(b) to increase the maximum fine that may be ordered by the Administrative
Decisions Tribunal to be paid by an accredited certifier found guilty of
unsatisfactory professional conduct or professional misconduct from 300
penalty units (currently $33,000) to 1,000 penalty units (currently
$110,000).

Schedule 1 [32] amends section 109ZF of the 1979 EP&A Act so that
complaints against a person who was an accredited certifier, but whose right to
practise as such has been suspended, or whose accreditation has lapsed, may be
made and dealt with in the same way as complaints against an accredited certifier
whose accreditation has been withdrawn.

Schedule 1 [34] amends section 109ZN of the 1979 EP&A Act so as to allow a
council employee to act as an accredited certifier outside the council area if
covered by the council’s general insurance policy in relation to those activities.

Schedule 1 [35] amends section 116G of the 1979 EP&A Act so as to remove
an unnecessary cross-reference to another provision of the Act.

Schedule 1 [36] amends section 118A of the 1979 EP&A Act so as to make it
clear that a principal certifying authority’s power of entry on to land applies only
for the purpose of the exercise of functions of a principal certifying authority
under that Act and the 2000 EP&A Regulation.

Schedule 1 [38] amends section 121H of the 1979 EP&A Act so as to require a
council to notify the principal certifying authority for any development being
carried out before it gives an order under Division 2A of Part 6 of that Act in
respect of any aspect of the development.

Schedule 1 [39] amends section 127 of the 1979 EP&A Act so as to allow
proceedings for an offence against the Act or regulations made under it to be
commenced not later than 2 years after the offence was alleged to be committed.

Schedule 1 [41] amends section 157 of the 1979 EP&A Act to add a further
regulation-making power that will specifically allow regulations to be made
under that Act for the purpose of signs relating to the carrying out of
development or persons involved with the carrying out of development.

Savings and transitional provisions
Schedule 1 [42] and [44] amend Schedule 6 to the 1979 EP&A Act so as to
enact certain savings and transitional provisions consequent on the amendments
to that Act by the proposed Act explained above and so as to enable the
regulations under that Act to enact further savings and transitional provisions.

Schedule 1 [43] repeals certain savings inserted into that Act prematurely by
amendments made by the Building Legislation Amendment (Quality of
Construction) Act 2002.

Schedule 2 Amendment of regulations
The various amendments to the Environmental Planning and Assessment
Regulation 2000 (the 2000 EP&A Regulation) that are not referred to above are
explained below, as is the amendment to the Environmental Planning and
Assessment (Savings and Transitional) Regulation 1998 (the 1998 EP&A
Regulation).

Conditions of development consents and complying development
certificates
Schedule 2.1 [3] amends clause 98 of the 2000 EP&A Regulation so as to make
it a condition of a development consent that any insurance required for
residential building work by the Home Building Act 1989 must be in place before
the work is commenced. Schedule 2.1 [22] amends clause 136A (renumbered
clause 133) of that regulation to make a parallel requirement a condition of a
complying development certificate.

Schedule 2.1 [4] and [23] insert clauses 98A and 98B (in relation to
development consents) and clauses 136B and 136C (in relation to complying
development certificates) into the 2000 EP&A Regulation. Clauses 98A and
136B require the erection of signage at building and demolition sites identifying
the principal certifying authority for the work and the head contractor, and
stating that unauthorised entry to the site is prohibited. Clauses 98B and 136C
require the council to be given notice of the head contractor’s licence number or
owner-builder’s permit number, and the name of the insurer for the work, under
the Home Building Act 1989. The requirements are imposed as conditions of a
development consent or complying development certificate.

Schedule 2.1 [2], [20] and [21] make consequential amendments to the 2000
EP&A Regulation.

Plans
Schedule 2.1 [6] amends clause 100 of the 2000 EP&A Regulation so as to
require a notice of determination of a development application that is granted to
include a copy of any endorsed plans relating to the development.

Schedule 2.1 [12] amends clause 122 of the 2000 EP&A Regulation to require
a notice of determination of an application for modification of a development
consent that is granted to include a copy of any endorsed plans relating to the
modified consent.

Schedule 2.1 [14] amends clause 134 of the 2000 EP&A Regulation so as to
require a complying development certificate for any development to include a
copy of any endorsed plans relating to the development.

Time for giving notices
Schedule 2.1 [13], [25], [27], [31] and [33] amend clauses 130, 138, 142, 151
and 160 of the 2000 EP&A Regulation so as to shorten, from 7 days to 2 days,
the time within which certain notices are to be given to the council by an
accredited certifier with respect to complying development certificates,
compliance certificates, construction certificates, occupation certificates and
subdivision certificates.

Notice of modification of construction certificate
Schedule 2.1 [30] amends clause 148 of the 2000 EP&A Regulation so as to
require the Commissioner of NSW Fire Brigades to be notified if the
construction certificate for a proposed building that had originally been referred
to the Commissioner for evaluation is subsequently modified in such a manner
that the building concerned is no longer such as to require evaluation by the
Commissioner.

Records
Schedule 2.1 [39] and [41] amend clauses 200 and 202 of the 2000 EP&A
Regulation so as to require an accreditation body to keep telephone numbers for
its accredited certifiers in its register and the Director-General to keep telephone
numbers of all accredited certifiers on the central register.

Schedule 2.1 [42] amends clause 205 of the 2000 EP&A Regulation so as to
require an accredited certifier to keep a record of each critical stage inspection
required to be made by the accredited certifier. Schedule 2.1 [43] amends the
same clause to require that record to be kept for 15 years after the time of the
inspection.

Schedule 2.1 [40] corrects a cross-reference.

Other miscellaneous matters
Schedule 2.1 [1] replaces clause 51 (1) of the 2000 EP&A Regulation so as to
declare that a development application may be rejected by a consent authority
within 7 days of receiving it if it does not contain information, or is not
accompanied by any document, required by that regulation.

Schedule 2.1 [5] amends clause 100 of the 2000 EP&A Regulation so as to
require a notice of determination of a development application that allows
development involving a building to specify the class of the building if a
construction certificate is not required.

Schedule 2.1 [7]–[9] amend clause 103 of the 2000 EP&A Regulation so as to
require the name of the person appointing the principal certifying authority
(instead of the name of the person giving the notice) to be specified in a notice
of appointment of a principal certifying authority and to update a cross-reference
in that clause.

Schedule 2.1 [24] amends clause 138 (1) (e) of the 2000 EP&A Regulation so
as to require formal particulars of title to be included in a compliance certificate.

Schedule 2.1 [26] inserts a new clause 139A into the 2000 EP&A Regulation
which makes it clear that an application for a construction certificate may be
withdrawn and allows the whole or part of the application fee for the certificate
to be retained by the certifying authority in such a case.

Schedule 2.1 [36] replaces clause 163 of the 2000 EP&A Regulation. The new
clause will require a head contractor for a building site and an owner-builder to
give the principal certifying authority at least 48 hours notice before
commencing any building work that requires a prior critical stage inspection so
that the inspection may be carried out before the work is commenced.

Schedule 2.1 [37] and [38] amend clauses 170 and 175 of the 2000 EP&A
Regulation so as to allow a final fire safety certificate and an annual fire safety
statement for a building to be issued on behalf of (instead of always by) the
owner of the building.

Schedule 2.1 [44] inserts new Part 13A (clause 227A) into the 2000 EP&A
Regulation. The clause will require a principal certifying authority and a head
contractor for building work, subdivision work or demolition work each to make
sure that a sign displaying specified particulars is erected and maintained on the
building site until that work is carried out.

Schedule 2.1 [45] makes a minor amendment to Schedule 1 to the 2000 EP&A
Regulation confirming that details of a development consent are required in an
application for a construction certificate only if a relevant consent has been
granted.

Environmental Planning and Assessment (Savings and Transitional)
Regulation 1998
Schedule 2.2 omits clause 51 of the 1998 EP&A Regulation so as to terminate
a savings provision that allows certain activities to be carried out under former
provisions of the Local Government Act 1993, rather than those of the 1979
EP&A Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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