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1
Building and Other Legislation Amendment Bill 2006
Building and Other Legislation
Amendment Bill 2006
Explanatory Notes
Introduction
A review of Queensland's building legislation was triggered in 2003 when
the Standard Building Regulation 1993 (SBR) was due to expire. The
Office of the Parliamentary Counsel advised that the SBR could not be re-
written without major reformatting of Queensland's disjointed building
legislation.
Building legislation is currently scattered between the Integrated Planning
Act 1997 (IPA), the Building Act 1975 (BA), the Standard Building
Regulation 1993 (SBR) and the Building Regulation 2002 (BR). Many
provisions have changed since the major piece of legislation (the BA) was
written in 1975. Many provisions have been added and some have become
redundant, leading to poorly integrated legislation.
A major re-write of the principal and subordinate legislation has now been
completed. The provisions for regulation of building work in the BA and
IPA have been re-organised, clarified and moved between Acts and
regulations. The subordinate legislation (BR and SBR) has been
consolidated into one new document -- the proposed Building Regulation
2006. The effect is substantially the same.
The Bill also contains a limited number of significant changes, including:
· Councils to be recognised as concurrence agencies for building
assessment work;
· Public access to building approval and inspection documents to be
increased;
· The requirement for councils to keep certain building records to be
extended;
· Building work inspections to be more tightly controlled;
· Procedures to be introduced to help owners when building approvals
lapse; and
· Rationalising penalty offences and penalty levels.
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Building and Other Legislation Amendment Bill 2006
In order to be able to properly read and interpret the Bill it is necessary to
read the Bill together with the current reprint version of the Building Act
1975, and the Integrated Planning Act 1997.
General Outline
The Bill consists of:
· Amendments to the Building Act 1975 that rationalise the building
certification legislation currently provided for between the BA, IPA,
SBR and BR;
· Other technical and clarifying amendments to the Building Act 1975;
· Amendments to the Brisbane Markets Act 2002;
· Amendments to the Fire and Rescue Service Act 1990;
· Amendments to the Local Government Act 1993;
· Amendments to the Plumbing and Drainage Act 2002;
· Amendments to the Private Health Facilities Act 1999;
· Amendments to the Public Health (Infection Control for Personal
Appearance Services) Act 2003;
· Amendments to the Queensland Building Services Act 1991; and
· Amendments to the Southern Moreton Bay Islands Development
Entitlements Protection Act 2004.
Short Title
The short title of the Bill is the Building and Other Legislation Amendment
Bill 2006.
Policy Objectives of the Legislation
The intent of the Bill is to:
· Remove disparities in the building assessment and certification
legislation and to rationalise the format so that after ten years of
amendments the legislation fits together better and is easier to
understand; and
· Provide for certain other aims including:
· Recognise the role of councils as concurrence agencies for
building assessment work;
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Building and Other Legislation Amendment Bill 2006
· Increase public access to building approval and inspection
documents;
· Standardise the archiving period for which building information
is kept by local governments for all classes of buildings;
· Prepare inspection guidelines for building certifiers inspecting
commercial buildings;
· Provide owners with reminders that building approvals are about
to lapse and provide owners with current inspection documents if
the approval does lapse;
· Impose the same standards on all persons who prepare
supporting documents for building development applications;
· Rationalise penalties applying to offences under the building
legislation.
Reasons for the Bill
The development of the Bill was triggered by the review of the Standard
Building Regulation 1993 (SBR) which was due to expire on 1 September
2003 under the Statutory Instruments Act 1992. Work started in 2002 on
remaking the SBR, but it was soon apparent that remaking the SBR would
require a comprehensive reorganisation of Queensland's legal framework
for building work and an extended deadline for the expiry of the SBR.
Achieving the Objectives
The Bill aims to improve the clarity, readability and ease of interpretation
of the building legislation. This will assist builders, building certifiers and
local governments and will support the building industry that is so
important to Queensland. It will also help the community who will have
better access to development information and simpler rules affecting them
when they build or buy their homes or are involved with commercial
buildings.
The Bill rationalises the regulatory framework for building that is currently
provided for in four pieces of legislation the Building Act 1975 (BA),
Integrated Planning Act 1997 (IPA), the SBR and the Building Regulation
2003 (BR). Provisions have been moved between the IPA and the BA, and
some matters best dealt with in primary legislation have been moved out of
regulations into the Acts.
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Building and Other Legislation Amendment Bill 2006
For example, the provisions for private certification have moved from the
IPA to the BA. The Building Act will have six new chapters forming a
legislative framework that sensibly follows the process for making,
assessing and deciding a building application through to the certification of
building work. Also there are a number of minor consequential
amendments to other Acts.
To complement the Bill, it is proposed to consolidate the SBR and BR into
a single regulation, the new Building Regulation 2006
There is also a minor amendment to the Plumbing and Drainage Act 2002
correcting a definition that inadvertently had the Director General of the
Department of Local Government, Planning, Sport and Recreation
responsible for approving designs for chemical, composting and
incinerating toilets that are controlled under the Environmental Protection
(Waste Management) Regulation 2000 administered by the Environmental
Protection Agency (EPA). The Bill will redress this mistake and clarify
that only the EPA design rules apply.
Administrative Costs
Costs to local government and industry
Additional costs and resources for local governments and industry will
relate to:
· Storing building documents for houses and pool fences for longer
periods;
· Providing for increased public access to building documents; and
· Administrative costs associated with revised forms under the
reorganised legislation.
The impact on local governments will depend on their existing
administrative procedures, as some local governments already allow broad
public access to building documents and archive documents for all classes
of building for extended periods. Local governments may impose fees to
recover the real costs of providing a service which may be imposed on a
certifier when documents are lodged for archiving and on anyone who
seeks to access them.
Costs to State agencies
There are no financial implications for the State Government arising from
the introduction of the legislation.
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Building and Other Legislation Amendment Bill 2006
Net costs/Benefits
Overall the Bill aims to improve the clarity, readability and ease of
interpretation of the building and planning legislation. The community will
benefit from the building certification system operating to the highest
possible standards, and the public interests being properly protected.
Additional costs on industry are likely to be small in comparison to the
public health and safety benefits. These changes resulted from extensive
consultation with the public, representatives of industry, local governments
and interested parties.
Fundamental Legislation Principles
The Bill calls up two external documents, the Building Code of Australia
(BCA) and the Queensland Development Code (QDC). While this might
be thought to be a breach of fundamental legislative principles, this has for
many years allowed for the consolidation in a national code and a state
code of the frequently changed technical standards against which building
work is assessed in Queensland. This is both more user friendly for the
building industry which knows where to find the standards and more cost
effective than amending primary legislation many times every year as
technical standards are updated and developed to meet new problems and
new technologies.
Building Code of Australia
The Building Code of Australia is an existing document which is the
national source of technical building standards and the key element in
maintaining uniform building standards across Australia. It is highly
technical, detailed and extensive. It is maintained and annually amended
by the Australian Building Codes Board (the Board), on which Queensland
is represented.
At present the SBR states that the Building Code of Australia applies in
Queensland. Referencing the Code in the regulation has allowed for
detailed technical standards to be applied in Queensland while providing
for regular updates. This system has been operating successfully for many
years. Similar arrangements apply in the building regulations of all the
States and territories.
The Bill enhances the authority of Parliament by moving provisions
applying the Code from the SBR to the BA. The most appropriate way to
provide for these technical provisions is to call up the Code given its
technical nature, development and process for amendment.
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Building and Other Legislation Amendment Bill 2006
Queensland Development Code
The Queensland Development Code (QDC) is an existing technical code
containing Queensland specific building standards, that was previously
authorised under the SBR. Currently, the QDC is made and amended by the
chief executive of the Department of Local Government, Planning, Sport
and Recreation (DLGPSR), and each mandatory part of the QDC is called
up when individually notified in the SBR. Listing each part of the QDC in
the regulation as it is made, has ensured that the QDC remains subject to
Parliamentary scrutiny and potential disallowance. This system has been
operating successfully for some years, providing for cost effective
standards that are easy to access for industry users without reducing the
control of the Parliament over the QDC's content.
The Bill further enhances the control of Parliament, by moving the
authorising provisions from the SBR to the BA. The BA will contain a
schedule listing all the current parts of the QDC with mandatory effect.
The Bill also provides that the QDC may be amended or added to, with any
such changes listed in the proposed Building Regulation 2006 that will
replace the SBR. It is necessary to provide a more rapid means than Act
amendments to create new technical standards to address building
problems that arise without notice, particularly when Parliament may not
be sitting. An example of this was in early 2004 when it was necessary to
develop and introduce technical standards for tents and temporary
buildings by creating Part 28 of the QDC in a little over a month.
The QDC covers building standards that are outside the scope of and in
addition to matters dealt with in BCA, where a Queensland specific
technical standard is needed. The intent is to make the QDC the one place
for industry and government to find Queensland specific building
standards, in one easily accessed and well recognised document, instead of
scattered across Queensland's legislative framework. The QDC is
available on the DLGPSR website.
DLGPSR is progressively consolidating into the QDC, all State agency
building requirements dealing with such matters as tents and temporary
buildings, child care centres, private hospitals, fire safety in budget
accommodation buildings and pastoral workers' accommodation.
The QDC primarily contains standards in the form of qualitative statements
(or performance criteria) to be met by quantifiable standards (or acceptable
solutions) for specific areas of building work, along with explanatory
diagrams.
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Building and Other Legislation Amendment Bill 2006
In addition to the parts of the QDC that have mandatory or legislative effect
and are called up in the SBR, the QDC contains model or advisory
standards that outline best practice on specific building related issues such
as erosion and sediment control on building sites. The model standards
provide minimum standards that can be adopted by local governments
through their planning schemes, but adapted where necessary for the needs
and characteristics of their local area.
Local governments making building assessment provisions
The Bill clarifies and transfers from the SBR to the BA, current provisions
enabling local governments to make local laws, planning scheme
provisions or resolutions about provisions against which building work is
assessed. Local governments can only deal with matters where a regulation
allows them to do so. This allows local governments to deal with issues
requiring urgent or area-specific controls such as building requirements to
help control noise in Fortitude Valley, to protect children from drowning
through pool fencing standards, or to make special provision for bush fire
hazard areas and rain water tank areas. Local governments can also use
their planning schemes to relax the QDC requirements for site clearances
and boundary setbacks where needed for small lot development, heritage
areas or where rain water tanks are installed on urban lots where this was
not originally envisaged.
Right of entry to premises other than by warrant
Currently, the Queensland Building Services Authority Act 1991 (QBSA)
empowers the Building Services Authority (BSA) to enter and inspect a
building site that is the subject of a complaint made against a licensed
builder or audit, with the consent of the person in control of the building
site or authorised by warrant. The Bill will complement this power, by
giving the BSA auditors the power to enter and inspect a building
construction site to investigate complaints about a building certifier or to
conduct an audit. The Bill also complements the QBSA by requiring a BSA
auditor to be issued with and carry identification when exercising powers
of entry and requires auditors to take reasonable steps to identify
themselves to the occupier of the site before exercising these powers.
Private certifier to act in the public interest
The Bill sets a high maximum penalty (1665 penalty units) for private
certifiers who do not act in the public interest when performing private
certifying functions. This is based on the existing penalty provision in IPA.
Private certifiers perform may regulatory compliance functions in place of
local governments, who acted in the public interest in making decisions. A
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Building and Other Legislation Amendment Bill 2006
certifier working for a local government provides advice and the local
government itself is responsible for the decision. It is not appropriate to
prosecute local governments for exercising their powers, and the
Ombudsman's Office deals with improper decision making by local
governments. However, private certifiers may be prosecuted for breaching
their duty to act in the public interest when deciding building development
applications. The level of maximum penalty that was originally in the IPA
and transferred to the BA, reflects the importance of this duty. However,
the courts will determine appropriate penalties in individual cases based on
the seriousness of the consequences of the certifier's breach.
Information notice
Information notices, which include appeal rights, are required to be given
by a building certifier for an adverse final inspection decision. For all other
inspection decisions, certifiers are required to give written notice. Because
of the number, timing and place of decisions made about building
inspections, it would be unrealistic to require certifiers to give information
notices for every adverse decision. A person may appeal any building
certifier decision regardless of whether the decision is given by an
information notice or written notice.
Consultation
Targeted consultation the Building Reference Group
Targeted consultation has been undertaken since early 2004 with local
government and industry representatives including: Local Government
Association of Queensland (LGAQ), Brisbane City Council, Logan City
Council, Maroochy Shire Council, Townsville City Council, the Property
Council of Australia, the Urban Institute of Queensland, the Real Estate
Institute of Queensland, the Australian Institute of Building Surveyors
(AIBS), the Housing Industry Association (HIA), Queensland Master
Builders Association (QMBA), the Independent Private Certifiers
Association, Engineers Australia, and the Building Designers Association
of Queensland (BDAQ).
Broad Public Consultation
Broad public consultation on the draft legislation and eight proposed
changes was conducted from 9 November to 30 December 2005.
Submissions were received from 14 local governments, the LGAQ, five
private certifiers, the AIBS, the Independent Private Certifiers Association,
HIA, and an architect.
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Building and Other Legislation Amendment Bill 2006
Government
A broad range of Government agencies have been consulted including the
Department of the Premier and Cabinet, Office of Queensland
Parliamentary Counsel, Queensland Treasury, Department of State
Development, Trade and Innovation (DSDTI), Department of Public Works
and Housing, Department of Justice and Attorney-General, Department of
Emergency Services, Environment Protection Agency and the BSA.
Notes on Provisions
Part 1 - Preliminary
Short Title
Clause 1 provides that the short title of this Bill is the Building and Other
Legislation Amendment Bill 2006.
Commencement
Clause 2 provides that the Act, other than the amendments to the Plumbing
and Drainage Act 2002 provided for in part 4, section 101 and the schedule
(to the extent the schedule amends the Plumbing and Drainage Act 2002),
will commence on a day to be fixed by proclamation.
Amendments to the Plumbing and Drainage Act 2002 will commence on
Assent.
Part 2 Amendment of Building Act 1975
Act amended in Part 2
Clause 3 provides that part 2 of the Bill amends the Building Act 1975.
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Building and Other Legislation Amendment Bill 2006
Replacement of long title
Clause 4 replaces the long title to more accurately describe the purpose of
the Act which is to regulate for the approval of building development
applications, the construction and certifying of building work in
Queensland, the licensing of building certifiers and for other purposes.
Replacement of parts 1 and 2
Clause 5 replaces Parts 1 and 2 with new chapters 1 through to 6, namely:
· Chapter 1 - Preliminary
· Chapter 2 - When building work is assessable, self-assessable or
exempt development
· Chapter 3 - Additional requirements for building development
applications
· Chapter 4 - Assessment of building development applications and the
carrying out of self-assessable building work
· Chapter 5 - Inspections, building classification and the use of
buildings
· Chapter 6 - Provisions about private certifiers and other building
certifiers
These chapters insert new sections 1 to 11V. The new chapters represent a
significant change to the format of the BA which is based on the process of
lodging a building development application. The format is explained in
more detail in new section 3 (Simplified outline of main provisions of the
Act)
Chapter 1 Heading Preliminary
Chapter 1 provides an introduction to the BA and outlines the main
provisions of the Act. It describes how new chapters follow the process of
lodging a building development application, the interrelationship with the
Integrated Development Assessment Scheme (IDAS) under the IPA, the
assessment of the application and by whom, the approval and other related
matters. IPA specifies that all development is exempt development, that is,
no approval is required unless it is assessable or self-assessable
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Building and Other Legislation Amendment Bill 2006
development, including building work. The first step is to determine if the
proposed building work is assessable. The framework of the new
provisions in the BA is to assist the user in deciding if the proposed
building work is assessable development and, if so, what are the next steps
in obtaining an approval.
It also provides for definitions used in the Act listed in the dictionary
schedule 2, key definitions and other references used in the Act.
Part 1 Heading-(Introduction)
New section 1 (Short title)
Section 1 provides for the short title of the Building Act 1975.
New section 2 - (Act binds all persons)
Section 2 provides that the Act binds all persons as far as the legislative
power of Parliament permits. The persons bound by the Act include the
State (that is, it binds public sector entities unless otherwise excluded), as
well as the Commonwealth and other States to the extent that the
legislative power of the State allows. Under the provisions of the Acts
Interpretation Act 1954 this includes the Territories as well as the States.
Nothing in the Act makes the State liable to be prosecuted for an offence.
New section 3 - (Simplified outline of main provisions of Act)
New section 3 describes the purpose of chapters 2 9 of the BA.
· Chapter 2 (sections 5O to 5Q) specifies what building work is
assessable and will therefore trigger the need for a building
development application. Chapter 2 also notes the interrelationship
with IPA for determining what is assessable building development.
· Chapter 3 (sections 5R to 5X) imposes additional requirements to
those under IPA for the making of a building development application.
The IPA specifies the general requirements for a building development
application under section 3.2.1 (Applying for development approval).
· Chapter 4 (sections 5Y to 8K) provides for:
· the laws and other documents for the assessment of building
development applications;
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Building and Other Legislation Amendment Bill 2006
· who is responsible for assessing building development
applications. Chapter 4 part 2 division 1 also notes that generally,
building assessment work is carried out by building certifiers,
however, some aspects of the application must be assessed by
concurrence agencies under Integrated Planning Regulation
1998.
· the regulation of the assessment and approval;
· the regulation for the carrying out of building work.
· Chapter 5 (sections 8L to 9K) provides for the giving of inspection
documents for particular buildings, including final inspection
certificates for houses, certificates of classification for other buildings
and restricts the use of particular buildings.
· Chapter 6 (sections 9L to 11V) regulates building and private
certifiers and the performance of building and private certifying
functions including the engagement of private certifiers and the
licensing of, complaints, investigations, and disciplinary proceedings
against, certifiers.
· Chapter 7 makes provision about fire safety for budget
accommodation buildings.
· Chapter 8 regulates swimming pool fencing.
· Chapter 9 provides for the giving of show cause and enforcement
notices for particular buildings.
New Part 2 Heading - (Interpretation)
New Division 1 heading - (Dictionary)
New section 4 - (Definitions)
Section 4 provides in schedule 2 a dictionary that defines terms used in the
Act. All definitions, including key definitions, are listed in the dictionary
either by referring to the particular section in which the term appears or a
definition will be provided in the dictionary. Defined terms throughout the
Act appear in bold and italicised text for easy identification.
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Building and Other Legislation Amendment Bill 2006
New Division 2 heading (Key Definitions)
Division 2 provides for key definitions used in the Act that are crucial in
interpreting the Act and regulations.
New section 5 (What is building work)
Section 5 provides the definition of the term building work which is a key
definition to be used in interpreting the Act. Clause 1.3.5 of IPA is
currently relied on for the definition of building work and is significantly
broader than that required for the application of the BA provisions.
The definition has been refined to focus on matters dealt with by the Act
and includes a new provision to cover work regulated under the building
assessment provisions (other than IDAS). Subsection (2) includes work
that is a management procedure or other activity relating to a building even
though there may be no structural change to the building or structure. This
could be a management procedure under the fire safety standard relating to
a budget accommodation building.
New section 5A (What is a building development application)
Section 5A provides a definition that distinguishes development
applications for building work from other development applications made
under IPA. A building development application is a separate application
for work that falls within the definition of building work under section 5.
This is distinct from other types of development applications that may be
made under IPA even though those may depict buildings and structures.
New section 5B (What is building assessment work)
Section 5B defines building assessment work to identify it as assessment
of a building development application against specific provisions in the
Act. These specific provisions are the "building assessment provisions" set
out in new section 5Y. Assessment of a building development application
is a comparison of the material in the application against these provisions
to the extent they apply.
New section 5C (Who is a building certifier)
Section 5C replaces the current definition of a building certifier that is
narrow and without a specific link to the term private certifier. The narrow
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Building and Other Legislation Amendment Bill 2006
definition of building certifier in the BA and the separate definition of
private certifier in IPA has led to confusion about the two roles. The new
definition under section 5C(2) clarifies that a reference to a building
certifier includes a reference to a private certifier and section 5C(3)
includes a reference to a former building certifier. The two roles are further
clarified under the new section 5D which provides for the classes of private
certifiers.
New section 5D (Private certifiers and their classes)
Section 5D replaces the current definition of a private certifier in 5.3.3 of
IPA. The current definition in IPA does not make it clear there are
restrictions on a private certifier to issue development approvals, depending
on the type of endorsement on a certifier's licence. To avoid confusion,
section 5D has redefined the term private certifier and created two separate
classes of certifier indicating the corresponding endorsements.
Section 5D (1) defines a private certifier as a building certifier whose
licence includes a private certification endorsement under section 10T.
Section 5D(2) provides for a private certifier (class A), who has a licence
containing a development approval endorsement. A private certifier (class
A) can issue development approvals for building work.
Section 5D(3) provides for a private certifier (class B), who has a licence
that does not contain a development approval endorsement. A private
certifier (class B) cannot issue building development approvals, but can
assess building work against the BCA and QDC.
New section 5E (What is a building certifying function)
Section 5E defines a building certifying function as any of the functions
listed in section 5E that only a building certifier may perform. These
functions apply to both local government building certifiers and private
certifiers.
If a building development application is made to the local government
under section 6S, the local government must appoint or employ a building
certifier to perform building certifying functions.
If a building development application is made to a private certifier, the
private certifier must perform building certifying functions for the
application and any relevant private certifying functions for the application.
Building certifying functions are expanded under section 6P to include the
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Building and Other Legislation Amendment Bill 2006
additional functions that a private certifier (class A) is licensed to perform,
or reduced under section 6Q in the case of a private certifier (class B).
Section 5E(a) provides that a building certifying function, performed by a
building certifier, is the carrying out of building assessment work but
excludes anything a concurrence agency has jurisdiction to assess and
decide.
Section 5E(b) provides that the giving of a compliance certificate is a
certifying function but only for aspects of building assessment work that
are not the responsibility of a concurrence agency.
Section 5E(c) provides that inspecting of building work for the purpose of
certifying the work, is a building certifying function. This clarifies that the
inspecting of building work relates only to work covered by the building
development approval.
Section 5E(d) applies to building work for a single detached class 1a
building or class 10 building or structure. It provides that the giving of
inspection certificates for the stage of building work that is after excavation
of foundation material and before the footings for the building are laid; and
final inspection certificates, are building certifying functions that must be
performed by a building certifier.
Section 5E(e) provides that the giving of a certificate of classification for
another class of building is a building certifying function that can only be
performed by a building certifier. Certificates under section 5E(d) and (e)
must be given in the approved forms and signed by a building certifier.
The provisions in section 5E differ from the current definition of building
certifying function which refers to the taking of enforcement action about
development approvals issued by a building certifier. Section 6P now
provides for private certifier enforcement, and clarifies that when a private
certifier (class A) is engaged to assess and approve a development
application, the certifier's functions include deciding to take enforcement
action if the circumstances are warranted.
Removing the enforcement function from the definition of building
certifying function better reflects the existing policy intent that a local
government does not require a building certifier to take enforcement action.
To remove any doubt about the functions or powers of a local government
in relation to enforcement action, section 6P(5) provides that while it is a
function of a private certifier (class A) to decide to take enforcement action
for their approval, this does not limit a local government's enforcement
powers or functions under IPA. Section 22 of the BA provides for a local
government to take enforcement action at any time if the local government
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Building and Other Legislation Amendment Bill 2006
reasonably believes the building work is dangerous, dilapidated, unfit for
use etc. and an enforcement notice may also be given to a person who does
not comply with the BA.
New section 5F (Who is the assessment manager for a building
development application)
Section 5F defines assessment manager and clarifies that, despite the
definition of assessment manager under IPA, when a private certifier is
performing functions for a building development application, the certifier
is the assessment manager for the application.
New section 5G (What is the Building Code of Australia (or
BCA))
Section 5G defines the Building Code of Australia as the current edition
with the Queensland Appendix, including any amendments published from
time to time. The Building Code is published and amended by the
Australian Building Codes Board.
New section 5H (What is the Queensland Development Code (or
QDC))
Section 5H defines the Queensland Development Code. The Queensland
Development Code (QDC) is an existing technical code containing
Queensland specific building standards that are outside the scope of and in
addition to matters dealt with in BCA, where a Queensland specific
technical standard is needed. The QDC is available on the DLGPSR
website.
DLGPSR is progressively consolidating into the QDC, all State agency
building requirements dealing with such matters as tents and temporary
buildings, child care centres, private hospitals, fire safety in budget
accommodation buildings and pastoral workers' accommodation. The
intent is to make the QDC the one place for industry and government to
find Queensland specific building standards, in one easily accessed and
well recognised document, instead of scattered across Queensland's
legislative framework.
The QDC consists of mandatory parts and model parts. It is made and
amended by the chief executive of the Department of Local Government,
Planning, Sport and Recreation (DLGPSR). Currently, each mandatory
part of the QDC is called up when individually notified in the SBR. This
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Building and Other Legislation Amendment Bill 2006
has ensured that the QDC remains subject to Parliamentary scrutiny and
potential disallowance.
The Bill further enhances the control of Parliament, by moving the
authorising provisions from the SBR to the BA. Section 5H(1) provides
that the QDC consists of the parts published by DLGPSR and stated in
schedule 1 to the Bill. The schedule will list all the current parts of the
QDC with mandatory effect. Section 5H(2) provides for the chief
executive amend, replace or add parts of the QDC.
Section 5H(3) provides that any amendment or replacement does not
become effective until the chief executive publishes the changes on the
Department's website and a regulation (the proposed Building Regulation
2006) approves the amendment. Section 5H(4) provides the regulation
must state the day on which the amended or replaced part was published.
Using a regulation will provide a more rapid means than Act amendments
to create new technical standards to address building problems that arise
without notice, particularly when Parliament may not be sitting.
Under IPA, section 5.7.6, the chief executive of the department in which
that Act is administered must make the QDC available for public
inspection and supply copies, free of charge.
In addition to the parts of the QDC that have mandatory or legislative effect
and are called up in the SBR, the QDC contains model or advisory
standards that outline best practice on specific building related issues such
as erosion and sediment control on building sites. The model standards
provide minimum standards that can be adopted by local governments
through their planning schemes, but adapted where necessary for the needs
and characteristics of their local area.
New section 5I (When building work complies with the BCA or
QDC)
Section 5I applies as a general application provision where there is a
reference to building work complying with the BCA, QDC, or the building
assessment provisions, to the extent they include the BCA and the QDC.
Subsection 5I(2) provides that for building work to comply with the BCA
and the QDC (the Code), it must comply with all the relevant performance
requirements under the code. Subsection 5I(3) provides that for building
work to comply with a relevant performance requirement, it must achieve a
relevant building solution under the code.
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Building and Other Legislation Amendment Bill 2006
Subsection 5I(4) provides that a relevant building solution is achieved for a
performance requirement by:
· for the BCA, complying with the relevant deemed-to-satisfy
provisions under the BCA. For the QDC, complying with the
relevant acceptable solution under the QDC;
· formulating an alternative solution that complies with the
performance requirement or is shown to be at least the equivalent
to the relevant requirement; or a combination of both these
approaches.
Division 3 Other References
New section 5J (References to changed BCA or QDC provision)
Section 5J provides that if the Act refers to a specific provision in the BCA
or the QDC the reference, under section 14H of the Acts Interpretation Act
1954, applies as if it were a reference to a law as remade or renumbered
and the reference continues to apply as if it were about the original
provision.
New section 5K (Reference in Act to applicants, development,
assessment managers, referral agencies, building work or
building certifiers)
Section 5K clarifies what is meant in the Act by the following terms:
applicant, building work, building, development, assessment manager,
referral agency, concurrence agency, advice agency, decision notice,
building certifier, and building development approval where these terms
are used in relation to a building development application, a building
development approval, a building or building work.
New section 5L (Reference in Act to local government)
Section 5L specifies that a reference to local government means the local
government for the area relevant to a building, proposed building, building
work, proposed building work, a building development application or
development approval.
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Building and Other Legislation Amendment Bill 2006
New section 5M (Reference to local government includes any
other assessment manager under IPA)
Section 5M provides that if the local government is not the assessment
manager for a development within its jurisdiction, a reference to the local
government means the entity acting as the assessment manager.
New section 5N (Reference to a proposed building or structure)
Section 5N provides that any references to a building, structure, owner of
building or structure respectively include a reference to a proposed building
or structure or a person who may be the owner when the building or
structure is finished. A reference to the use of a building that is proposed
to be built is a reference to the use once the construction of the building is
completed.
It is quite common for the ownership of a building to change throughout
the design and/or construction phase of a building. This provision removes
the need to provide a separate provision and definition for a change of
ownership throughout the design and construction phase or before the
building or structure is finished.
Chapter 2 When building work is
assessable, self-assessable or exempt
development
Chapter 2 (sections 5O to 5Q) specifies what `building work' is assessable
and will therefore trigger the need for a building development application.
It also notes the interrelationship with IPA for determining what is
assessable building development.
New section 5O (Building work that is assessable development
for IPA)
Section 5O provides that all building work is assessable, unless it is exempt
development, self-assessable development or it is building work that relates
to a retaining wall under the provisions of section 3.2.2B of IPA.
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Building and Other Legislation Amendment Bill 2006
New section 5P (Building work that is self-assessable for IPA)
Section 5P(1) declares the building work that is self-assessable for IPA,
schedule 8, part 2, table 1. This provision is intended to include both items
1 and 2 in table 1, part 2, of schedule 8 under IPA.
Section 5P provides that building work is self-assessable where it is
prescribed under a regulation, if it complies with the codes or alternative
provisions. If the building work is self-assessable under a regulation but
does not comply with the codes or alternative provisions, the building work
becomes assessable development.
New section 5Q (Building work that is exempt development for
IPA)
Section 5Q specifies that building work prescribed under a regulation is
exempt development.
Chapter 3 Additional requirements for
building development applications
Chapter 3 imposes additional requirements to those under IPA for the
making of a building development application. IPA specifies the general
requirements for a building development application under section 3.2.1
(Applying for development approval).
Part 1 Requirements for supporting
documents
New section 5R (Operation of pt 1)
Section 5R specifies requirements for supporting documents to be given
for a building development application.
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Building and Other Legislation Amendment Bill 2006
New section 5S (Required information for supporting
documents)
Section 5S provides that supporting documents must state particular details
about the person preparing them. These details must identify authorship of
the documents, and if the author (the designated person) is an architect,
licensed builder, building designer or registered professional engineer,
provide their relevant licence or registration number. Licence or
registration numbers on the documents will allow for checking on an
appropriate register or record for the authorised person's current status. It
is also provided to underpin the compliance roles of regulatory bodies such
as the BSA so that they may audit the aspects of a particular practitioner's
activities.
Alternatively, under section 5S(1)(b), a person may provide a separate
document stating this required information. This subsection allows for
instances where there are large amounts of material that forms the
supporting documents.
Section 5S(2) clarifies who may be designated persons.
New section 5T (General requirements for supporting
documents)
Section 5T(1) provides that documents, such as plans of proposed building
work, must generally show that building work will comply with the
building assessment provisions. Examples include a site plan showing the
location of buildings with relevant boundary clearances to demonstrate
compliance with siting provisions or documents showing external walls
having a particular type of construction material that achieves a specific
fire resistance level.
Section 5T(2) provides the particulars that must be stated on specific
supporting documents, which are intended to ensure all necessary
information is available to the assessment manager before an approval is
given.
New section 5U (Requirements if alternative solution used)
Section 5U provides that a document must be provided to support how an
alternative solution has been applied to a development approval. It requires
information about an alternate solution that can be used and relied upon to
justify the deviation from normal deemed to satisfy requirements of
particular codes.
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Building and Other Legislation Amendment Bill 2006
Part 2 Other requirements
New section 5V (Application for building work for budget
accommodation building)
Section 5V specifies that a building development application for a budget
accommodation building must also include a fire safety management plan.
This section intends that the fire safety management plan is lodged as part
of the documentation for the development application.
This is to ensure the availability of all relevant information, and in
particular the fire safety management plan, at the assessment stage of the
application. After the building work is carried out, the plan must comply
with the Fire and Rescue Service Act 1990.
New section 5W (Application to build swimming pool on
residential land must include fencing)
Section 5W specifies that building development applications for swimming
pools on residential land must also provide for construction of a pool fence.
The construction of a fence around a pool on residential land is crucial to
the overall function of pool safety. A separate approval for the fencing
component would not guarantee the safety of the overall pool enclosure at
the time the pool is constructed. Therefore, the inclusion of the fence
construction in the application is critical to ensuring a complete assessment
can be made and pool safety is not compromised.
New section 5X (Application must include required site works)
Section 5X specifies that a building development application must include
any site works required under the building assessment provisions to be
carried out as part of the development. It is intended the site works to be
assessed relates to the proposed building work in the development
application. This will ensure site works such as earthworks are suitably
retained where necessary. The term site works is defined in schedule 2-
dictionary.
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Building and Other Legislation Amendment Bill 2006
Chapter 4 Assessment of building
development applications and carrying
out self-assessable building work
Chapter 4 (sections 5Y to 8K) provides for:
· the laws and other documents for the assessment of building
development applications;
· who is responsible for assessing building development applications.
Chapter 4 part 2 division 1 also notes that generally, building
assessment work is carried out by building certifiers, however, some
aspects of the application must be assessed by concurrence agencies
under the Integrated Planning Regulation 1998;
· the regulation of the assessment and approval assessment;
· the regulation for the carrying out of building work.
Part 1 Laws and other documents under
which building work must be assessed
Division 1 - General provisions about the laws and
documents for the assessment
New section 5Y (Relevant laws and other documents for
assessment of building work)
Section 5Y(1) provides the building assessment provisions against which
all assessable building work and self-assessable building work must be
assessed.
Even though self-assessable building work does not trigger a building
development application and does not require a building certifier to
perform building certifying functions for the work, self assessable building
work must still be assessed against all relevant laws applying to the self-
assessable building work
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Building and Other Legislation Amendment Bill 2006
Section 5Y(2) provides for the application of the building assessment
provisions for the building work or self-assessable development. These
building assessment provisions may only be varied under division 2.
New section 5Z (Building assessment provisions form a code
for IDAS)
Section 5Z specifies each of the building assessment provisions in section
5Y, with the exception of IDAS, are codes for IDAS. This triggers the
requirement for building applications to be assessed against the building
assessment provisions. This general rule is subject to Divisions 1 and 2.
A local government can not make additional building assessment
provisions either through local laws, local planning instruments or by
resolution except as specifically provided for in sections 6 and 6A.
New section 6 (Local laws, planning schemes and local
government resolutions that may form part of the building
assessment provisions)
Section 6 enables a local government to make provision in a local planning
instrument, planning scheme, local law or a resolution about specific
matters that may form part of the building assessment provisions. The Bill
has clarified and moved provisions from the SBR to the BA, that currently
enable local governments to make local laws, planning scheme provisions
or resolutions about provisions against with building work is assessed.
Section 6 limits local government discretion to matters authorised by a
regulation and to the matters specified in the section, which maintains
controls over the content of such local government rules. It also prevents
local governments duplicating building assessment provisions under
section 5Y.
These powers are needed to allow local governments to deal with building
related matters that arise and require urgent attention, where public safety
or other public interests would be at risk from failure to act, such as
protecting children from drowning through pool fencing standards,
creating bush fire hazard areas or providing for water conservation through
declaring rain water tank areas. It is also needed where area-specific
controls are needed such as building requirements to help control noise in
Fortitude Valley.
The QDC contains advisory or model standards that contain minimum
standards on building related issues such as erosion and sediment control
on building sites. Local governments can adopt and adapt these standards
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Building and Other Legislation Amendment Bill 2006
through their planning schemes. This provides for a level of consistency
where standards are applied, but leaves it up to local governments to
determine whether these standards are required in local circumstances.
Section 6(1)(a) enables a local government to designate in its local
planning instrument, matters for the BCA or QDC, but only for those
matters authorised by a regulation. Examples include designating rain
water tank and bushfire prone areas within the local government area. This
designation requires building work in those specific areas to be assessed
against particular provisions as required under the building regulation.
Section 6(1)(b) enables a local government to provide in a local law,
planning scheme, or resolution other aspects of building work, where these
aspects are authorised by a regulation. This means building development
applications for building work that includes those aspects must be assessed
against particular provisions as required under the building regulation.
Examples include swimming pool fencing and land liable to flooding.
Section 6(1)(c) authorises a local government to make alternative
provisions under section 6A.
Section 6(2) enables a local government to make provision in a planning
scheme for other building assessment requirements, that are outside the
scope of the building assessment provisions provided for in section 5Y. The
intent of this subsection is to enable local governments to make building
assessment provisions that have not been covered by the building
legislation.
New section 6A (Alternative planning scheme provisions to
QDC boundary clearance and site cover provisions for
particular buildings)
Section 6A applies to building assessment work and self-assessable
building work (relevant work) in relation to single detached class 1 or class
10 buildings or structures. Section 6A enables a local government to make
alternative provisions in a planning scheme for the relevant work that
provide an alternative to the QDC provisions for boundary clearances and
site cover. The Bill clarifies and transfers from the SBR to the BA, current
provisions enabling local governments to use their planning schemes to
relax the QDC requirements for site clearances and boundary setbacks
where this is needed to cater for local circumstances such as small lot
development, heritage areas or where rain water tanks are installed on
urban lots where this was not originally envisaged. The intent of this
section is to provide local governments with the option to vary the QDC
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Building and Other Legislation Amendment Bill 2006
boundary clearance and site cover provisions if the local government
considers its alternative provisions are more appropriate for its local
government area.
Requiring local governments to do this via planning schemes ensures that
broad community consultation and State interest checks are conducted
before any provisions can be made. The provision in the local
government's planning scheme must be a qualitative statement or a
quantifiable standard. If the alternative provisions are not in a planning
scheme, or are in a planning scheme but are not a qualitative statement or
quantifiable standard, they have no effect.
Under section 6A(6) a qualitative statement means a statement about a
performance or outcome sought to be achieved when applicable buildings
or structures are completed. A qualitative statement is intended to operate
in the same way as a performance requirement in the BCA or performance
criteria in the QDC.
A quantifiable standard means a standard that achieves a performance or
outcome sought under a qualitative statement. A quantifiable standard is
intended to operate in the same way as a deemed-to satisfy provision in the
BCA or a acceptable solution in the QDC.
Alternative provisions must be qualitative and quantifiable, and therefore
the alternative provisions provide a clear documented outcome which can
be achieved by applying the documented standard. Thus, the private
certifier (class A) engaged to perform building certifying functions can
assess the application against the alternative provisions without needing to
seek an approval from the local government. So, where a local government
has made alternative provisions in their planning scheme, a private certifier
(class A) may assess an application against these alternative provisions. If
the proposed building work complies with the alternative provisions, there
is no requirement to refer the application to the local government for
assessment against the alternative provisions.
However, if the private certifier (class A) assesses the application and the
proposed building work does not comply with the alternative provisions,
the private certifier must refer the application to the local government as a
concurrence agency for assessment of that aspect of the application.
Section 6P provides for the concurrence agency to assess certain aspects of
a building development application and the Integrated Planning Regulation
1998 provides for the jurisdiction of concurrence agencies.
Subsection (4) provides that if there are alternative provisions in the
planning scheme for the relevant work, the QDC boundary clearances and
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Building and Other Legislation Amendment Bill 2006
site cover provisions only apply to the extent the alternative provisions do
not apply to the work. In effect, the QDC's provisions for boundary
clearances and site cover are default provisions, but only for those matters
not provided for in the alternative provisions. The alternative provisions are
alternative to all the performance criteria and acceptable solutions in the
QDC for boundary clearances and site cover, and the QDC will not apply.
If the planning scheme contains alternative provisions in place of merely
some of the QDC's performance criteria and acceptable solutions relating
to boundary clearance and site cover, the remaining performance criteria
and acceptable solutions in the QDC will apply.
Section 6A clarifies the policy intent in the current legislation, that is to
ensure there will always be requirements for boundary clearances and site
cover for building assessment work and self-assessable building work for
single detached class 1 or class 10 buildings or structures. The only
question is whether these requirements are in a local government's
planning scheme or the QDC. A local government referral will only be
triggered if the proposed building work does not comply with the
alternative provisions or if the QDC provisions apply, a referral to the local
government will be triggered if the proposed building work does not
comply with the QDC.
For building assessment work and self-assessable building work for other
building classes (not single detached class 1 or class 10 buildings or
structures), a local government is under section 6(2) using its powers under
IPA to make provision in a planning scheme for building work, provided it
relates to building outside the scope of the building assessment provisions.
Limiting alternative provisions to a planning scheme (instead of under
local planning policies or local government resolutions) means alternative
provisions can only be made using a rigorous process of community
consultation. This ensures consideration of potentially significant
community impacts resulting from creating of alternative siting provisions
in a local government's area.
New section 6B (Relationship between IDAS and other building
assessment provisions)
Section 6B provides that IDAS applies subject to other building assessment
provisions.
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Building and Other Legislation Amendment Bill 2006
New section 6C (Relationship between the BCA and the QDC)
Section 6C provides that if there is inconsistency between the BCA and the
QDC, the BCA will override the QDC.
New section 6D (When building assessment provisions must
be applied)
Section 6D provides that subject to sections 6E and 7B (Alterations to safe
existing work may be approved on basis of earlier building assessment
provisions), building assessment work, other than building work under
section 6N (Concurrence agencies may carry out building assessment work
within their jurisdiction), must comply with building assessment provisions
that were in force at the time the application was approved.
New section 6E (Provision for changes to building assessment
provisions)
Section 6E provides for the assessment of building work following an
amendment to the building assessment provisions if the building work:
· started before an amendment commenced;
· approval was given but work has not started before an amendment
commenced;
· an application is made but not decided before an amendment
commenced; or
· planning started before an amendment and the building certifier is
satisfied that replanning would impose financial hardship.
In these circumstances, the building work can be lawfully carried out under
the building assessment provisions in force immediately before the
amendment and IDAS, or a building development approval can be given
under the building assessment provisions in force immediately before the
amendment.
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Building and Other Legislation Amendment Bill 2006
Division 2 - Variation of how particular building
assessment provisions apply
New section 6F (Applying to vary how particular building
assessment provisions applies)
Section 6F provides that building assessment provisions can be varied
either before, during or after construction of a building is completed. This
applies where building work will not or does not comply with a provision
of the building assessment provisions other than IDAS. In these
circumstances, a person can apply to the chief executive to vary how the
building assessment provision applies, using the prescribed form and
paying the prescribed fee.
Section 6F(2) provides that a person cannot apply to vary the assessment
provisions if a building certifier already has the ability to exercise
discretion under the building assessment provisions about the matter.
New section 6G (Applying for fast-track decision)
Section 6G provides that an application can be fast tracked and a decision
made within 2 business days. A prescribed fee is required to fast track an
application; however an application can be accepted or refused. The
applicant may also need to pay reasonable additional costs for deciding the
application within 2 business days.
New section 6H (Effect of application on IDAS process)
Section 6H specifies that if an application is made for building work or
building development application, the process under IDAS stops on the
same day the application is received by the chief executive and it starts
again on the same day when the chief executive gives the applicant notice
under section 6K.
New section 6I (Deciding variation application)
Section 6I provides that the chief executive must decide to vary or refuse an
application for variation of the assessment provisions in consultation with
particular people and within certain timeframes.
The chief executive, before deciding an application for variation, must
consult with an assessment manager if there is one for the building work
unless it is work for the State. The chief executive may consult with
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Building and Other Legislation Amendment Bill 2006
anyone before deciding the application. The chief executive must make a
decision about the application that either varies it or refuses the application
in total. The chief executive must decide the application within 20 business
days after the application is made.
New section 6J (Criteria for decision)
Section 6J requires the chief executive officer to consider all relevant
matters when considering an application to vary the application of the
building assessment provisions. Examples have been provided for the types
of matters that may be considered as relevant and include::
· whether the building work substantially complies with the other
building assessment provisions;
· whether compliance with the provisions is unnecessary in the
particular circumstances; and
· whether the proposed variation is as effective as or more effective than
compliance with the provisions.
Applications for variations may include allowing a horizontal member of a
pool barrier to be a less distance above the ground than the minimum
required. The chief executive may consider the variation to the pool barrier
is as effective as the existing minimum requirements and that the pool
barrier would not be likely to pose any greater danger to children under five
years of age than it would had it fully complied.
Another example may involve an application to vary automatic warning
smoke detection. The variation may require a system of heat detection in
lieu of smoke detection. After considering relevant matters the chief
executive may determine the interests and safety of the building's
occupants will be no less than that provided by meeting either the deemed
to satisfy provisions or performance requirements of the BCA.
New section 6K (Notice of decision)
Section 6K stipulates that within 5 business days of deciding an
application, the chief executive must give the applicant and any assessment
manager for the building work, a notice of the decision. If the chief
executive decides to refuse to vary how the provision applies to building
work, the notice must be an information notice.
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Building and Other Legislation Amendment Bill 2006
New section 6L (Effect of variation)
Section 6L provides that the chief executive's decision to vary an
application has particular effects on the application for building
development work made to an assessment manager. Where the chief
executive decides to vary how the building assessment provisions apply to
building work, the varied building assessment provisions apply to the
building work - unless the chief executive's decision to vary the assessment
provisions is appealed against.
An assessment manager is not allowed to refuse a building development
approval for reasons relating only to a decision by the chief executive to
vary a building assessment provision. If a provision is varied it may be the
case that it no longer complies with some aspects of the building
assessment provisions, for example a provision under the BCA or QDC.
This section intends that this must not be the sole reason for an assessment
manager to refuse a building development approval. An assessment
manager can, under section 3.5.11 of IPA, refuse a building development
approval if there are other reasons.
Part 2 Persons responsible for assessing
building development applications
Division 1 Who carries out building assessment
work
New section 6M (Generally a building certifier must assess)
Section 6M provides that building assessment work must be carried out by
a building certifier.
New section 6N (Concurrence agencies may carry out building
assessment work within their jurisdiction)
Section 6N provides that a concurrence agency may carry out building
assessment work even though it is not a building certifier. This section
applies if, under IPA, a concurrence agency has jurisdiction for part of
building assessment work, for example, the chief executive under the Child
Care Act 2002 for the building of child care centres.
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Building and Other Legislation Amendment Bill 2006
Only the concurrence agency can assess that part of the building
assessment work for which it has jurisdiction, as set out in the schedules 2
and 2A of the IPA regulation. A concurrence agency can only assess the
matters within its jurisdiction under the building assessment provisions
that are in force at the time the assessment is made.
If a concurrence agency's jurisdiction for a part of the building assessment
work is assessing compliance against a fire safety standard, it must employ
or appoint a building certifier to carry out the actual assessment.
Division 2 Functions of private certifiers
New section 6O (Operation of div 2)
Section 6O confers on private certifiers, private certifying functions for
building development applications. Private certifiers are accredited and
licensed primarily as building certifiers performing building certifying
functions. Through licence endorsement, private certifiers perform
additional functions together with building certifying functions which are
private certifying functions. There are 2 classes of private certifiers
according to licence endorsement, class A who are assessment managers
and class B, who assess a building development application for technical
compliance against the BCA and certain parts of the QDC.
New section 6P (Functions of private certifier (class A))
Section 6P provides private certifiers (class A) can receive, assess and
decide a building development application and either grant or refuse the
building development approval as if they were the assessment manager
under IPA for the application under section 3.1.7 IPA. These functions are
in addition to the functions a private certifier (class A) may perform as a
building certifier under section 5E.
Section 6P(1)(c) provides that the functions of a private certifier (class A)
include the decision as to whether enforcement action ought to be taken for
a building development approval granted by the private certifier (class A)
or another private certifier (class A) employed by the same private certifier
employer when the decision to take the enforcement action is made.
The power of a private certifier (class A) to take enforcement action for the
approval is as the assessing authority under IPA chapter 4, part 3, divisions
2 and 3. In addition, section 22 of the BA provides for specific
circumstances under which the local government may also take
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Building and Other Legislation Amendment Bill 2006
enforcement action in relation to building work and section 6P(3) provides
the same ability for a private certifier (class A) when the certifier is
performing the functions under section 6P(1)(c).
The enforcement functions of a private certifier apply only until the giving
of a final inspection certificate for the building work or a certificate of
classification for the building. This provision provides a point at which the
private certifier has decided that the building work complies, or substantial
completion has been achieved, and there could be no reason for the certifier
to take enforcement action past this point.
Section 6P(5) removes any doubt about the functions or powers of a local
government to take enforcement action for a private certifier (class A)
approval by stating that a local government's enforcement powers or
functions under IPA are not limited.
Section 6P(6) provides if a private certifier gives an enforcement notice and
the person does not comply with the notice, the certifier must ensure the
local government is given notice of the fact. The purpose of this provision
is to ensure the local government is informed of enforcement issues within
their area and enable the local government to take further action if
warranted.
New section 6Q (Functions of private certifier (class B))
Section 6Q specifies that for IDAS a private certifier (class B) can receive
and assess building development applications and perform building
assessment work against the BCA and the QDC (except for assessment of
the application in relation to boundary clearances and site cover). The basis
for the difference in functions of a private certifier (class A) and a private
certifier (class B) is the class B certifier does not have the necessary
development approval endorsement on their licence.
The function of receiving a building development application is in addition
to the functions of a building certifier provided for under section 5E.
However, a private certifier (class B) is restricted in the performance of
other building certifying functions as indicated in section 6R.
New section 6R (Restrictions on building certifying functions
that a private certifier (class B) can perform)
Section 6R provides that a private certifier (class B), can only give
compliance certificates about how the building work complies with the
BCA and QDC other than for boundary clearances and site cover. This
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Building and Other Legislation Amendment Bill 2006
restricts a private certifier (class B) from giving certificates of classification
and final inspection certificates for a building.
Division 3 - Functions of local government
New section 6S (Function to act on building development
application or development approval unless private certifier
(class A) engaged)
Section 6S stipulates that if a private certifier (class A) is not engaged for a
building development application and the application is properly made
under IDAS, the local government must receive, assess and decide the
application. The local government must appoint or employ a private
certifier or another building certifier to perform building certifying
functions for the application and if approved, the building work. If a private
certifier is appointed or engaged under this section, the private certifier can
not perform private certifying functions under section 6P for the
application, only building certifying functions under section 5E (What is a
building certifying function). To clarify, if a private certifier (class B) is
engaged, the local government can rely on the work of that certifier.
If a private certifier (class A) has given the building development approval
and subsequently the engagement of the private certifier is discontinued
before building work is certified, the local government for the approval
must perform building certifying functions if asked in writing by the owner
of the building.
New section 6T (Restriction on local government issuing
building development approval)
Section 6T provides that a local government can only issue a building
development approval if a local government has appointed or employed a
appropriately licensed private certifier or another building certifier to carry
out the building assessment work for the application. This section provides
that only a building certifier is qualified to perform building certifying
functions for the application.
New section 6U (Local government may rely on particular
compliance certificates and other documents)
Section 6U specifies that if a private certifier (either class A or class B)
engaged for the application, or a local government building certifier, gives
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Building and Other Legislation Amendment Bill 2006
a compliance certificate or other documents for the building work, the local
government may, if carrying out functions for the application, accept and
rely on the certificate or document. This enables the local government to
continue the assessment of an application only for those aspects that have
not been given a compliance certificate. A compliance certificate is defined
in section 5E (What is a building certifying function).
New section 6V (Local government may rely on documents
private certifier gives it for inspection or purchase)
Section 6V provides that when a private certifier gives the local
government documents required under the Act, such as the building
approval and inspection documents, the local government may accept, and
without further checking, rely on the documents. This reliance can be
archiving and making it available for inspection and purchase as specified
under IPA.
Division 4 - Power of particular replacement
assessment managers to decide status under IDAS
New section 6W (Power to decide what stage of IDAS
application is to resume or start)
Section 6W applies if a private certifier (class A) has been disengaged
before the application has been decided and there is a new assessment
manager for the application. Section 6W also applies if a building
development approval lapses under IPA and the owner of the land makes a
new building development application for all or part of the building work
covered under the lapsed approval.
The assessment manager for the application can start the application
process at any stage of IDAS as it deems appropriate.
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Building and Other Legislation Amendment Bill 2006
Part 3 Discretionary matters in the
assessment of building development
applications
New section 6X (Building certifier's discretion BCA)
Section 6X applies if the BCA allows a discretionary decision about
building design and specification and a building development application
proposes to use the design or specification. The building certifier must
decide if the design or specification complies with the BCA under section
5I (When building work complies with the BCA or QDC).
New section 6Y (Building certifier's or concurrence agency's
discretion QDC)
Section 6Y applies for a building development application if a part of the
QDC applies to the application and the part allows a discretionary decision
about building design and specification and a building development
application proposes to use the design or specification.
The certifier or the concurrence agency carrying out the building
assessment work for the application must decide if the design or
specification complies with the QDC or the QDC as varied under part 1,
division 2.
New section 6Z (Survey certificate)
Section 6Z provides that a building certifier may before assessing the
building development application, require a cadastral survey be carried out
to show the boundaries of the allotment on which the building work is
proposed and the location of any proposed or existing buildings or
structures on the allotment. This requirement may be a condition of the
building development approval under section 7S.
New section 7 (Discretion for building development
applications for particular budget accommodation buildings)
Section 7(1) applies to the assessment of a building development
application for building work completed on a budget accommodation
building, for the purposes of complying with the fire safety standard.
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Building and Other Legislation Amendment Bill 2006
The assessment of a building development application for this type of work
can only be carried out by local government.
Section 7(2) specifies that a local government may approve a building
development application that conflicts with environmental outcomes, such
as street appeal, as set out in a local government planning scheme. The
intent is to give local governments the discretion to compromise these
outcomes in particular circumstances.
For example, a budget accommodation building may require an additional
fire-stair to comply with the fire safety standard. The cost of
accommodating the stair inside the building may be excessive and place the
owner in financial hardship. Therefore, the local government may decide
to allow the stair to be placed externally even though the aesthetics of the
street are compromised.
New section 7A (Building certifier may rely on particular
compliance certificates and other documents)
Section 7A applies if a building certifier has given anyone else a
compliance certificate or other document made by or given to the building
certifier for the purpose of carrying out building assessment work. Another
building certifier may accept and without further checking, rely and act on
the document.
New section 7B (Alterations to safe existing work may be
approved on basis of earlier building assessment provisions)
Section 7B applies if the building certifier is satisfied that, under building
assessment provisions (including former Standard Building By-laws) and
earlier building assessment provisions, (includes building assessment
provisions as they were in force at a particular time before the application
was made), alterations to a building would be generally safe and
structurally sound. This section allows a certifier to approve building work
under earlier provisions if they consider the work must be carried out that
way. An example would be a heritage building that cannot be made to
comply with current building assessment provisions without compromising
its heritage status.
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Building and Other Legislation Amendment Bill 2006
Part 4 Requirements for and restrictions on
assessing or approving building development
applications
New section 7C (Requirement to consider any agency advice
response)
Section 7C provides that the assessment manager for a building
development application must not approve the application if an advice
agency under IPA has jurisdiction for a part of building assessment work. A
note to the section provides information about advice agency jurisdiction
under the Integrated Planning Regulation and for treatment of advice
agency matters under IPA.
New section 7D (Restriction on granting building development
application for budget accommodation building)
Section 7D provides that an assessment manager must not approve a
building development application for a budget accommodation building
that does not have a fire safety management plan compliant with the Fire
and Rescue Service Act 1990, or where building work involves an
alternative solution under the BCA that includes a fire safety management
procedure and the fire safety management plan does not adequately reflect
the procedure.
New section 7E (Required report before assessing application
for temporary building or structure with special fire service)
Section 7E requires a building certifier to obtain a report from QFRS
before assessing a temporary building or structure that is proposing to have
a special fire service. The QFRS report must comment on the suitability of
the proposed special fire service.
New section 7F (Land subject to registered easement or
statutory covenant)
Section 7F prohibits an assessment manager from approving a building
development application for land in an easement or subject to a registered
statutory covenant without the holders of registered interests consenting to
the building work. Statutory covenant is defined as a covenant for which
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Building and Other Legislation Amendment Bill 2006
the registered holder of the covenant is the State, or a statutory body
representing the State, or a local government.
New section 7G (Special structures)
Section 7G specifies that building development applications for buildings
classified as special structures under section 9G cannot be approved unless
the application complies with all building assessment provisions. The
application must address the safety of persons if there is a fire, the
prevention, suppression and spread of fire, and the health and amenity of
persons using the special structure.
New section 7H (Temporary building or structure that does not
comply with other building assessment provisions)
Section 7H applies to a building development application for temporary
buildings or structures. If the application will not comply with the building
assessment provisions, a compliance alternative is provided for under
subsections (2), (3) and (4). The building certifier must not approve the
application unless the temporary building or structure satisfies certain
safety criteria and the approval must impose a condition that limits the
period during which the temporary building or structure is to remain and
requires the removal or demolition of the temporary building or structure at
the end of the period.
New section 7I (Particular alterations not permissible)
Section 7I provides that alterations to an existing building or structure
should not substantially reduce the existing level of protection from fire for
persons living in or using the building or structure. Alterations should also
not significantly reduce the level of fire resistance, safeguards against fire
to prevent the spread to other buildings or the level of emergency egress
from the building. This does not apply to budget accommodation buildings
undergoing alteration to be able to comply with the fire safety standard.
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Building and Other Legislation Amendment Bill 2006
Part 5 Conditions of building development
approvals
Division 1 Conditions taken to be imposed
For general provisions about conditions on development approvals,
including building development approvals, see IPA chapter 3, part 5
division 6. The conditions imposed under this division 1 must be imposed
on certain building development approvals.
New section 7J (Operation of div 1)
Section 7J provides that division 1 imposes conditions on particular
building development approvals. However, this division does not limit the
conditions that may be imposed under IPA.
If a provision of this part applies to a building development approval, the
condition, (imposed condition), is taken to be relevant and reasonable
under the requirements of IPA section 3.5.30.
However, IPA sections 3.5.33 (Request to change or cancel conditions) and
3.5.33A (When condition may be changed or cancelled by assessment
manager or concurrence agency) do not apply to imposed conditions under
this division.
If there is a conflict between an imposed condition and any other condition
of a building development approval the imposed condition prevails to the
extent of the inconsistency.
New section 7K (Engineering drawings)
Section 7K applies to an approved application where engineer's drawings
supported the building development application and the drawings were not
included with the application. In these circumstances, the imposed
condition requires that work on the footings must not start until the
drawings and details for the footings have been approved by the building
certifier. Similarly subsection (3) imposes the condition that a stage of
building work must not be started until the drawings and details for the
stage have been approved by the certifier.
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Building and Other Legislation Amendment Bill 2006
New section 7L (When demolition, removal and rebuilding must
start and finish)
Section 7L imposes conditions on building development approvals for
building work to demolish or remove a building or structure or rebuild after
removal. The imposed demolition/removal completion condition requires
the building work to substantially start within 2 months after the giving of
the approval. Within six months after the giving of the approval, the
building work must be completed. If the approval is for rebuilding after
removal of a building or structure, the building work is completed after a
final inspection showing the building work complies, or the issue of a
certificate of classification has been given for the building under chapter 5.
New section 7M (Building work in erosion prone area)
Section 7M imposes a condition on a building development approval for
building work in an erosion prone area under the Coastal Protection and
Management Act 1995.
The condition requires all material excavated from land for the building
work to be placed, levelled and stabilized against wind erosion.
Section 7M(3) specifies if the building work includes the erection or
alteration of a roof drainage system or stormwater drain, the system or
drain must not be likely to cause erosion of the area.
However, these conditions do not apply if the approval states that the
person carrying out the building assessment work for the application is
satisfied the conditions are not necessary.
New section 7N (Obligation to make current drawing available
for inspection)
Section 7N provides that a legible set of drawings for a building
development application is available to anyone who under this or any other
Act can inspect the building site.
New section 7O (Inspection and testing of special fire service
installation)
Section 7O applies to a building development approval for a building
served by a special fire service. The imposed condition requires the person
who installs the service to give QFRS a notice to inspect the installation.
The installer must also give the QFRS a notice to test the service before
interior surface finishes are applied. A copy of the notices must also be
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given to the assessment manager when they are given to the QFRS. The
QFRS is limited to inspecting and testing the building work only about
special fire services.
New section 7P (Earthworks and retaining walls)
Section 7P provides that if soil conditions, ground levels, excavation or
filling make it necessary to protect land, buildings and structures around
the building work, the imposed condition on the approval requires a
retaining wall to be built and drainage to be provided.
New section 7Q (Drainage of buildings or land)
Section 7Q requires that a building development approval permits drainage
of a building or land, the imposed condition requires the drainage to be
carried out in a way that protects land, buildings and structures in the
neighbourhood of the building or land.
New section 7R (Building work over existing sanitary drainage)
Section 7R imposes the condition requiring building work over or adjacent
to existing sanitary drainage to comply with the Standard Plumbing and
Drainage Regulation.
Division 2 - Conditions that may be imposed
Division 2 provides for conditions that may be imposed on
certain building development approvals.
New section 7S (Survey certificate)
Section 7S provides that a building development approval may include a
condition to provide the building certifier with a cadastral survey that
shows the allotment boundaries and the location of the buildings or
structures. The survey must be given as soon as the location of buildings or
structures can be established, or at a later time if permitted by the building
certifier.
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Building and Other Legislation Amendment Bill 2006
New section 7T (Hazardous buildings)
Section 7T applies to building development approvals for buildings that are
class 5, 6, 7 or 8 with total floor areas greater than 36000m2 that the
building certifier considers should have special fire protection provisions
because of its use. The conditions may be to restrict or combat the spread
of fire within or from the building, but can only be imposed after the
certifier has consulted the QFRS about their appropriateness.
New section 7U (Alterations to unsafe existing work)
Section 7U applies if the building certifier believes that a building or
structure is unsafe or structurally unsound. As a condition of approving the
alteration, the building certifier can require that all or part of the building or
structure complies with the building assessment provisions at the time the
application is approved. The building certifier can also require that the
structure complies with building assessment provisions at another time that
will ensure the building or structure is made safe and structurally sound.
New section 7V (Building development approval for particular
alterations may require existing building or structure to comply
with building assessment provisions)
Section 7V applies to a building development approval for alterations to an
existing building or structure if:
· the total of the alterations or any previous structural alterations to it
approved or finished in the previous three years, represent more than
half the total volume of the existing building or structure, measured
over its roof and external walls or
· the building certifier has decided the alterations pose a risk to the
safety of persons accommodated in or using the building or structure,
or of spreading fire to the adjoining buildings or structures.
In these circumstances the building development approval may include a
condition that all or part of the existing building or structure must comply
with all or part of the building assessment provisions as if it were a new
building development or structure.
This section does not apply if the alterations are for a budget
accommodation building and the purpose of the alteration is to ensure the
building or structure complies with the fire safety standard.
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Building and Other Legislation Amendment Bill 2006
Part 6 Regulation of building assessment
work and the issuing of building development
approvals by private certifiers
New section 7W (Application of part 6)
Section 7W applies if a private certifier (class A) is assessing a building
development application or deciding and issuing a decision notice. The
functions of a private certifier (class A) are listed in section 6P.
New section 7X (General restrictions on granting building
development approval)
Section 7X stipulates that a private certifier must not grant a building
development approval if the building development application includes
development that is not building work, until;
· under IPA, all requisite development permits are effective for the other
development;
· under IPA, all necessary preliminary approvals under IPA are effective
for the other assessable development;
· under the BA, the building assessment work for the application has
been carried out under the building assessment provisions;
· under IPA, a concurrence agency has assessed that part of the
application within its jurisdiction and local governments acting as
concurrence agencies have been given any required security;
· under the Plumbing and Drainage Act 2002, a compliance permit has
been issued where necessary;
· under the Water Act 2000, consent has been given for the work to be
carried out over or adjacent to the sewer or water main and the work
meets specifications under this section.
Subsection (3) provides that if the certifier receives the application before
all other approvals or permits required under this section have been given,
then for the timelines under IPA the application is taken to have not been
received until the day all other assessments under IDAS have been
completed. This section does not limit part 4.
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Building and Other Legislation Amendment Bill 2006
New section 7Y (Approval must not be inconsistent with
particular earlier approvals or self-assessable development)
Section 7Y makes it an offence for a private certifier to approve an
application if the building development application relates to an earlier
development approval granted by the local government, the approval has
not lapsed and the new application is inconsistent with the earlier approval.
Subsection (2) also makes it an offence for the private certifier to approve
an application if the application is inconsistent with a local planning
instrument that has declared the development to be self assessable and the
development affects the height or form of building work.
New Section 7Z (Additional requirement for decision notice)
Section 7Z provides that when private certifiers issue a decision notice,
details of any self assessable code under IPA with which the applicant must
comply, are to be included in the notice.
New section 8 (Requirements on approval of application)
Section 8(1) stipulates that once a private certifier approves an application,
then within 5 days the local government must be given a copy of the
application and the approval documents. The certifier must also provide
the local government with the approved form for the application and pay
the local government fee for accepting the application and approval
documents. Failure to lodge the documents and pay the fee attracts a
penalty.
Section 8(2) specifies that the documents lodged with the local government
either be individually identified as approved by the private certifier for the
application, or have a cover sheet that identifies all the documents relating
to the application any edition number and that they have been approved by
the private certifier.
The term `approval documents' referred to in this section is defined in the
dictionary to the Act and includes the following:
· The decision notice or the negotiated decision notice;
· A copy of the plans, drawings and specifications and other
information lodged by the applicant;
· A list of required fire safety installations and special fire services;
· Certificates relied on by the private certifier to make a decision;
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· A list of development information relied on by the private certifier to
decide the application in the approved form.
· This includes a description of physical characteristics, the location of
infrastructure relevant to the application, local government easements,
encumbrances, estates or interests in the land, site characteristics such
as the design or location of stormwater connections or details of any
heritage listed buildings.
· The reasons for using an alternative solution for building work.
New section 8A (Local government acknowledgement)
Section 8A requires the local government to immediately give the private
certifier an acknowledgement that fees have been paid. The
acknowledgement document is not a receipt for the fees, and can be in
either written or electronic format.
The approved form includes a tear-off section for local governments to give
to certifiers as the acknowledgement of the fee for archival of the approval
documents. This will allow local governments who issue receipts on a
monthly basis, to issue immediate `acknowledgement' for the payment of
the fee.
Local governments do not have the same 5 day period mentioned in section
8B to acknowledge receipt of payment of the fee for archival. This 5 day
period applies only to private certifiers for the lodgement of the application
and approval documents.
New section 8B (When applicant is to be given the approval
documents)
Section 8B requires that if the private certifier approves the application,
approval documents must not be given to the applicant until local
government acknowledgement has been received by the certifier. Once the
acknowledgement has been received, the certifier has 5 business days to
give the approval documents to the applicant.
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Building and Other Legislation Amendment Bill 2006
Part 7 Provisions about lapsing of building
development approvals and related matters
Division 1 Building work for demolition or removal
New section 8C (Application of div 1)
Section 8C specifies that Division 1 applies to a building development
approval to which a demolition or removal completion condition applies.
New section 8D (Relevant period under IPA, s 3.5.21 for
development approval)
Section 8D specifies that the period mentioned in the demolition or
removal completion condition is the currency period specifically for the
development approval, and can not be extended under IPA.
New section 8E (Lapsing of building development approval)
Section 8E specifies that this section applies despite the provisions in
section 3.5.21 of IPA.
A building development approval lapses if the demolition or completion
condition, under section 7J, has not been complied with by the end of the
currency period. This section provides that if section 8F applies, the
approval does not lapse until the local government decides not to take
action.
Section 8E(3) is intended to ensure that the obligation under section
3.5.21(7) to refund a monetary security on lapsing does not apply until the
local government decides not to take action under that section.
New section 8F (Local government may complete particular
work if condition not complied with)
Section 8F applies where a building development approval lapses under
section 8E and it does not apply to demolition work.
A local government may take necessary action to complete building work if
the building development approval lapses, and has discretion regardless of
the extent of work necessary to complete building work under the
development approval. However, the local government can only complete
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the building work that was covered under the building development
approval and not building work additional to it.
Section 8F(3) provides that if the local government takes action to
complete building work, the lapsed approval continues to be in force. This
allows the local government to enforce all relevant conditions of the
approval as they were applied in the first instance to the building
development approval. The local government is entitled to use the approval
and has authority to carry out whatever may be necessary to complete the
works. In addition the local government may use all or part of any
monetary security to carry out the building work
New section 8G (Releasing security)
Section 8G(1) empowers the local government to decide to refund all or
part of a monetary security given to for the carrying out of building work.
This can be based upon the progress of the building work. However, the
local government must refund or release all of the monetary security if a
demolition or removal completion condition is complied with or the
building development approval lapses.
Division 2 Other building work
New section 8H (Application of div 2)
Section 8H(1) applies if a condition is placed on a building development
approval requiring the development to be completed by a particular time.
This section refers to this particular time as the condition time. This
clarifies that Division 2 -Other Building Work, does not apply to building
work to which demolition or a removal condition applies.
Under Division 2 Other building work, the general provisions of IPA,
chapter 3, part 5, divisions 5 and 6 for lapsing and conditions apply. These
provisions generally apply to development approvals and have not been
included in the Building Act so as to avoid duplication.
New section 8I (Reminder notice requirement for lapsing)
Section 8I stipulates when a building development approval lapses and
when the provisions in IPA, chapter 3, part 5, divisions 5 and 6 do not
apply. It also provides that a building development approval only lapses if
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the assessment manager has given the owner of the building a reminder
notice containing certain matters about the lapsing time.
The owner of a building is defined in the Building Act 1975 to include the
person who at the time would be entitled to receive rent if the building were
let to a tenant. Over the period of the development approval, which could
be almost two years in some cases, ownership of the building could change
hands. However this definition ensures the most recent owner of the
building receives the reminder notice and is therefore not disadvantaged.
The approval only lapses if the time stated in the reminder notice has
passed without all of the building work being completed. The development
approval lapses if the development or an aspect of the development is not
completed before the time set out in the reminder notice. This lapsing may
be a later time than the original condition time (referred to under section
8H(1)). This would come about if the assessment manager neglected or
forgot to give the owner of a building a reminder notice within the
timeframes set out in section 8I(3). Neglecting or forgetting to give the
owner of the building a reminder notice within the timeframes in section
8I(3) has the effect of allowing the development approval to continue
indefinitely.
The lapsing time stated in the reminder notice must be after but not before
the condition time. This is intended to ensure the assessment manager
cannot reduce the time for the building work to be completed under the
development approval.
This section is to ensure the owner of the building is made aware of the
date the development approval for the building work will lapse. This will
also allow the owner of the building to take whatever measures necessary
to either complete the building work or apply to have the lapsing date
extended.
Section 8I(3) specifies the particular requirements relevant to a reminder
notice. Firstly, the reminder notice must be given at a time that is no more
than 6 months before the lapsing time and secondly, at a time that is at least
3 months before the lapsing time. The lapsing time referred to in this
subsection is the lapsing time set out in the reminder notice which, as in
section 8I(1)(b), may be a time beyond the original condition time. The
reminder notice must state all of the matters set out in items (i) to (iv) under
subsection (3)(b). The reminder notice must highlight:
· The relevant condition dealing with time for lapsing;
· The actual lapsing time which is a date and may include a time if
desired;
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· The fact that the development approval will lapse unless the
development or an aspect of the development is completed by the
lapsing time; and
· That if the currency period under IPA for the building development
approval is extended past the lapsing time provided in the reminder
notice, that time is taken to be when the currency period ends.
Only one reminder notice may be given. If another reminder notice is to be
given and the assessment manager is a private certifier, the provisions of
section 8K apply. Also an assessment manager cannot change the lapsing
time unless a request has been made under the provisions of section 8J.
New section 8J (Extension of lapsing time because of
application to extend currency period under IPA, s3.5.21)
Section 8J(1) applies if a reminder notice has already been given under
section 8CB, and before the lapsing time, a request is made to extend a
currency period under IPA.
In these circumstances, for section 8I, the lapsing time in the reminder
notice is taken to have been extended until the request has been decided.
The intent of this subsection is to provide a deemed extension to encourage
the assessment manager to progress a decision for a request as quickly as
possible. This will also ensure the owner of the building is not
disadvantaged by any tardiness on the part of the assessment manager in
deciding the request. Also, if the currency period is extended beyond the
lapsing time stated in the reminder notice, the extended currency period
ends when that lapsing time has passed.
New section 8K (Restriction on private certifier (class A)
extending relevant period under IPA, s3.5.21 more than once)
Section 8K(1) applies to a private certifier (class A) acting as assessment
manager for a building development approval, where they have already
extended the currency period under section 8I.
The private certifier may give a further extension to the currency period if
they have consulted with the local government. Consultation with the local
government also applies to any other subsequent extension.
Section 8K(3) specifies that if 8K(2) applies, the provisions of IPA chapter
3, part 5, divisions 5 and 6 do not apply.
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Building and Other Legislation Amendment Bill 2006
Chapter 5 Inspections, building
classification and the use of buildings
Chapter 5 (sections 8L to 9J) provides for the giving of inspection
documents for particular buildings, including final inspection certificates
for houses, certificates of classification for other buildings and restricts the
use of particular buildings.
Part 1 Giving of inspection documentation for
single detached class 1A buildings and class
10 buildings or structures
New section 8L (Application of pt 1)
Section 8L stipulates that this section only applies to a local government
building certifier or a private certifier (class A) if either is the certifier for a
development approval for buildings that are single detached class 1a or
class 10 building and structures.
New section 8M (Obligation to give owner inspection
documentation on final inspection)
Section 8M(1) applies if the building certifier's inspection of building work
for the final stage is based on industry best practice for inspections and the
certifier is satisfied that the work complies with the building development
approval.
The building certifier must give the building owner a copy of the final
inspection certificate and any other inspection documentation within the
specific timeframe set out in 8M(3). The owner of the building is defined
under the Building Act 1975 to include the person who at the time would be
entitled to receive the rent, if they let the building to a tenant.
Section 8M(3) sets the specific timeframes for giving documents to the
owner as 5 days from when the building certifier has accepted the
certificates making up the inspection documentation. If there are no
certificates to accept, the 5 day period starts when all of the building work
has been inspected and the certifier considers it complies in relation to the
building approval.
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Building and Other Legislation Amendment Bill 2006
Part 2 Certificates of classification for other
buildings
Division 1 - Preliminary
New section 8N (Application of pt 2)
Section 8N stipulates that part 2 applies to a local government building
certifier or a private certifier (class A) where either is the certifier for a
development approval for buildings that are not a single detached class 1a
or class 10 building or structure.
New section 8O (Meaning of substantially completed)
Section 8O provides a list of work that must be undertaken for a building or
part of a building to be substantially completed.
Division 2 - Giving of certificate
New section 8P (Obligation to give certificate of classification
on inspection after particular events)
Section 8P(1) applies if the building certifier has inspected the building and
decided the building or alterations to it are substantially completed or has
consented to occupation of part of the building before it is substantially
completed. It also applies if the applicant has given the certifier
information about fire safety installations, requirements under the building
assessment provisions or conditions imposed by referral agencies.
Section 8P(2) specifies that the building certifier must give the owner of the
building a copy of the certificate of classification that complies with the
requirements of section 8Q. The owner of the building is defined under the
Building Act 1975 to include the person for the time who would be entitled
to receive the rent if they let the building to a tenant.
Section 8P(3) provides that the certificate of classification cannot be issued
to the owner unless any referral agency conditions or inspections have been
complied with.
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Building and Other Legislation Amendment Bill 2006
New section 8Q (Certificate requirements)
Section 8Q provides that a certificate of classification must be in the
approved form and include information about the building's classification,
any building solutions that restrict the building's use or occupation, and the
performance requirements of any alternative solutions used. Not all the
requirements would necessarily apply to all developments and therefore
would not be required to be included on the certificate of classification.
New section 8R (Interim certificate if building is remote)
Section 8R applies to a remote building where it is not practical for the
certifier to inspect the building to decide if it is substantially completed. In
this case, an interim certificate of classification can be given to the owner
until an inspection of the building can be undertaken. The interim
certificate must comply with requirements, state that it is an interim
certificate, and when it will expire. The interim certificate can be based on
information that the building owner provides to the certifier. The interim
certificate expires after six months or when an inspection is carried out.
The building certifier can also cancel the certificate at any time if the
information provided to the certifier by the building owner was false.
New section 8S (Certificates for a building occupied in stages)
Section 8S applies to unfinished buildings where the owner has been given
a certificate of classification for part of the building, and the building
certifier has consented to the occupation of a further part of the building.
The building certifier must also make sure that the owner is given another
certificate of classification for the further part of the building. This
certificate must comply with all requirements set out in section 8Q.
Division 3 Miscellaneous provisions about
certificates of classification
New section 8T (Term of certificate of classification)
Section 8T stipulates that a certificate of classification other then an interim
certificate under section 8R Interim certificate if building is remote, is in
force until it is replaced under section 9 Obligation of building certifier
approving BCA classification change to give new certificate of
classification.
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Building and Other Legislation Amendment Bill 2006
New section 8U (Building certifier's obligation to give referral
agency certificate and other documents)
Section 8U applies if a referral agency must be given notice to inspect a
building under a building development approval and a building certifier
issues a certificate of classification. Within 10 business days, the certifier
must give the referral agency a copy of the certificate and a copy of plans
and specifications of the finished building work that the agency has
jurisdiction over. If the referral agency is the QFRS, drawings and a list of
all fire safety installations must be supplied.
New section 8V (Additional obligations if certificate of
classification given by private certifier (class A))
Section 8V provides that a private certifier (class A) must give the relevant
local government a copy of certificate of classification within five business
days of issuance. The certifier must also keep a copy for five years from the
date it was issued.
Part 3 Changes to BCA classification
New section 8W (What is a BCA classification change to a
building)
Section 8W specifies that a BCA classification change to a building is a
change of use from the use for which the building was originally designed
for, built or adapted. A BCA classification change can also occur when
there is a change of circumstances affecting the way a building complies
with a restriction on its use outlined in the certificate of classification.
New section 8X (Restriction on making a BCA classification
change)
Section 8X provides that the owner must ensure a BCA classification
change is not made to the building unless the change is approved by a local
government building certifier or a private certifier. The changed building
must comply with building assessment provisions.
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Building and Other Legislation Amendment Bill 2006
New section 8Y (Provision for applying to local government to
obtain approval for BCA classification change)
Section 8Y provides that the owner of a building can apply for a BCA
classification change. The application must be made to the relevant local
government for the building, be in the approved form and include sufficient
detail about the proposed change, that a local government building certifier
could issue a certificate of classification. The local government certifier can
approve or decline the application. Private certifiers engaged by the owner
of a building can also grant a BCA classification change. Both local
government and private certifiers should not approve a classification
change unless the building complies with building assessment provisions.
If there is a condition of the building development approval, that an
inspection needs to be undertaken by a referral agency about the
classification change, BCA classification should not be granted by either a
local government or private certifier until this inspection takes place or it is
no longer a requirement of the approval.
New section 8Z (Concessional approval for particular existing
buildings)
Section 8Z applies only to buildings that existed before 14 December 1993
when the SBR was made. A local government building certifier or a
private certifier (class A) may approve a BCA classification change without
the building having to comply with the building assessment provisions
other than BCA parts E1 and E4.
However, a certifier may only approve a classification change if they
consider the building will have the structural capacity to withstand the
loads imposed by the new use. The certifier must also ensure the building
will have reasonable provision for fire safety, fire prevention and
suppression and prevention of fire spread. If the building has special fire
services, the certifier may only approve a change of classification if they
have received a report from the QFRS about the suitability of the special
fire services in the building. The certifier may also impose any conditions
necessary about matters in BCA parts E1 and E4 or anything in section
8Z(3).
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New section 9 (Obligation of building certifier approving BCA
classification change to give new certificate of classification)
Section 9 applies if a building certifier approves a BCA classification
change to a building. The building certifier must give the owner a new
certificate of classification, which replaces any existing certificates.
Part 4 Restrictions on the use of buildings
New section 9A (No occupation or use of particular buildings
without certificate of classification)
Section 9A applies when a certificate of classification has not been issued
for the building and the building is not classified as a single detached class
1a or class 10 building or structure. The building must not be occupied or
used without reasonable excuse, and the owner must ensure that another
person is not using the building.
New section 9B (Occupation and use of building must comply
with relevant BCA and QDC provisions)
Section 9B specifies that a person must not occupy or use a building
(without a reasonable excuse) if the building does not comply with any
relevant BCA provisions for its class and any relevant QDC provisions.
The provisions are subject to any variation of them under the Building Act
and any local law or local planning instrument, that applied to the building
work. Subsection (4) clarifies that the use or occupation of the building
must comply with the provisions even if the building development approval
is contrary to the BCA or the QDC provisions.
New section 9C (Exception for use of government buildings in
emergency)
Section 9C applies if there is an emergency situation or a potential
emergency situation that would justify the use of a government building for
emergency use for other than its BCA classification. A government
building is owned and occupied by the State or government owned
corporations. The building must be structurally sound and be suited to the
emergency use. Section 9C permits the emergency use or occupation of
government buildings as a reasonable excuse for not complying with a
BCA classification. However, this section does not limit what may be
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considered a reasonable excuse under section 9A or 9B. An example would
be using a school for emergency accommodation in the event of houses
damaged by flooding or a cyclone.
New section 9D (Enforcement action required)
Section 9D applies if a building other than a single detached class 1a or
class 10 building or structure has been occupied without a certificate of
classification, therefore contravening section 9A. The assessment manager
must take enforcement action against the building owner, unless only minor
building work is needed to be undertaken to issue a certificate of
classification. If a private certifier (class A) issues an enforcement notice
and it is not complied with, the local government must be informed.
New section 9E (Restriction on use of buildings built on or after
1 April 1976)
Section 9E stipulates that owners of building constructed after 1 April 1976
must make sure that the use of the building does not change from the use
stated in the last certificate of classification issued.
New section 9F (Further restriction on occupation of building
for residential purposes)
Section 9F provides that only class 1, 2, 3 and 4 buildings can be used for
residential purposes. Other classes of buildings cannot be used for
residential purposes unless approved by local government.
Part 5 - Miscellaneous provisions
New section 9G (BCA classification as special structure)
Section 9G stipulates that a building or structure that cannot be classified
under part A3 of the BCA must be classified as a BCA special structure.
New section 9H (Doubtful BCA classifications)
Section 9H applies when a building's BCA classification is doubtful. The
classification must be either a building class mentioned in part A3 of the
BCA or a special structure.
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New section 9I (Building certifier's obligation to give owner
inspection documentation if building development approval
lapses)
Section 9I specifies that the building certifier must give the owner of the
land a copy of inspection documentation within 5 business days of the
building development approval lapsing. The owner of the building is
defined under the Building Act 1975 to include the person who would be
entitled to receive the rent for the land if they let the land to a tenant.
New section 9J (Certificate of classification for particular
buildings built before 30 April 1998)
Section 9J applies to buildings built before 30 April 1998. The building
owner can make a written application for a certificate of classification from
a local government building certifier. The application must contain
sufficient detail for the certifier to issue a certificate that complies with
requirements. If the application complies with certificate requirements, the
certifier must give the owner a certificate of classification.
New section 9K (Building certifier's obligation to give
information notice about particular decisions)
Section 9K requires the certifier to give the applicant or client an
information notice about the following decisions:
· not to give a final inspection certificate because the building work
does not comply with the building development approval;
· not to give a certificate of classification because the building has not
been substantially completed;
· to refuse an application in relation to a certificate of classification;
· a private certifier (class A) decides to refuse to approve a BCA
classification change;
· approve a BCA classification change with a condition.
An information notice about a decision is defined in the Building Act 1975
to include a notice stating the decision and the reasons for it, all rights of
appeal against the decision and how those rights are to be exercised. For
appeals against a decision for which an information notice must be given
under section 4.2.12A of IPA
A failure to decide an application under subsection (1) within 20 business
days is taken to be a refusal of the application.
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For all other inspection decisions, certifiers are required to give written
notice. Because of the number, timing and place of decisions made about
building inspections, it would be unrealistic to require certifiers to give
information notices for every adverse decision. A person may appeal any
building certifier decision regardless of whether the decision is given by an
information notice or written notice.
Chapter 6 - Provisions about private
certifiers and other building certifiers
Chapter 6 (sections 9L to 11V) regulates building and private certifiers and
the performance of building and private certifying functions including the
engagement of private certifiers, licensing and dealing with complaints,
investigations, and disciplinary proceedings against certifiers.
Part 1 - General provisions about building
certifiers
Division 1 - Regulation of the performance of building
certifying functions
New section 9L (Person must not perform building certifying
functions without licence)
Section 9L imposes a penalty on a person who performs the functions of a
building certifier without being a building certifier. Under section 5C a
building certifier is an individual who, under chapter 6 part 3 (Licensing of
building certifiers) is licensed as a building certifier. Section 5E defines
building certifying function.
To be licensed as a building certifier, a person must have current
accreditation as a building surveyor or assistant building surveyor, from the
Accreditation Standards Body, (prescribed under regulation as Australian
Institute of Building Surveyors). The person must also be assessed as a
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suitable person to hold a building certifier's licence and granted a licence
by the Building Services Authority.
All private certifiers are building certifiers. Building certifiers are
employed by the local government to perform building certifying
functions. A private certifier may be contracted or employed by the local
government to perform only building certifying functions for the local
government and not the additional functions that make up private certifying
functions. The private certifier is therefore operating as a building certifier
in this capacity.
New section 9M (Building certifier performing building
certifying function must be appropriately licensed)
Section 9M imposes a penalty on a building certifier who is not
appropriately licensed to perform building certifying functions.
For example, under section 10L a building surveyor, licensed at the level of
building surveyor, may perform building certifying functions for all classes
of building and structures. An assistant building surveyor, licensed at the
level of assistant building surveyor, may perform only certain aspects of
building certifying functions as specified under section 10M (Role of
assistant building surveyor).
New section 9N (Building certifier's duty to act in public
interest in performing building certifying function)
Section 9N provides that a building certifier, must always act in the public
interest when performing building certifying functions. Subsection (2)
provides a non-inclusive list of acts that, if performed by a building
certifier, are acts outside of the public interest.
If a building certifier does act outside the public interest, under section 9S
the failure by the certifier is not an offence. However, non-compliance may
result in the BSA finding the certifier guilty of unsatisfactory conduct,
which is conduct contrary to a function under the Act.
New section 9O (Building certifier must not perform building
certifying function if there is a conflict of interest)
Section 9O provides that a building certifier must not carry out building
certifying functions if the certifier has a conflict of interest. Subsection (2)
includes acts, if performed by a building certifier, will constitute a conflict
of interest.
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Under section 9S, failing to comply with this section is not an offence.
However, non-compliance may result in the BSA finding the certifier guilty
of unsatisfactory conduct, which is conduct contrary to a function under the
Act.
Division 2 Code of conduct
New section 9P (Code of conduct)
Section 9P provides that the code of conduct is the Code of Conduct for
Building Certifiers made by the chief executive on 20 October 2003 and
tabled in the Legislative Assembly on 14 November 2003. A reference to
the code of conduct is taken to include any amendment or replacement that
has taken effect.
Subsections (2) and (3) provide that the chief executive may amend or
replace the code of conduct, but this change does not take effect until it is
approved under a regulation.
New section 9Q (Tabling and inspection of amendment or
replacement not part of or attached to regulation)
Section 9Q provides that the code of conduct for building certifiers must be
amended or replaced by regulation. The regulation must be tabled by the
Minister within 14 days of the regulation being notified in the gazette.
Failing to table the amendment or replacement does not invalidate the
legislation.
New section 9R (Access to code of conduct)
Section 9R requires the chief executive of the department that administers
the Building Act 1975, to make a copy of the code of conduct available for
inspection. The IPA makes provision for the documents the chief executive
must make available to the public.
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Division 3 - Miscellaneous provisions
New section 9S (Effect of building certifier not complying with
Act if no penalty provided)
Section 9S applies to a building certifier who does not comply with a
provision of the Building Act 1975 about building certifying functions or
private certifying functions where no penalty is prescribed. The failure by
the certifier is not an offence. Non-compliance may result in the BSA
finding the certifier guilty of unsatisfactory conduct, which is conduct
contrary to a function under the Act.
New section 9T (Additional functions of BSA for building
certification)
Section 9T provides the BSA with specific functions under the Building
Act which are in addition to its functions under the Queensland Building
Services Authority Act 1991. The additional functions are to:
1. licence individuals as building certifiers under part 3 and endorse their
licenses as private certifiers either class A or class B provided they
have insurance as prescribed under a regulation to perform building
certifying functions.
Private certifiers (class A) must have a statement of attainment for the
course in issuing building development permits for development
approval licence endorsement to perform private certifying functions.
Private certifiers (class B) who do not have development approval
endorsement are restricted, under section 6SA, in the performance of
building certifying functions to the giving of compliance certificates.
Building certifiers who are employees of, or contracted to, the local
government to perform building certifying functions are not required
to have private certification endorsement, (that is, insurance
endorsement and/or development approval endorsement).
2. monitor compliance with chapter 6 of the Building Act by building
certifiers through audits.
3. investigate written complaints about unsatisfactory conduct or
professional misconduct by building certifiers or former building and
private certifiers and where appropriate, take disciplinary action.
4. at least once a year, give the chief executive of the department that
administers the Building Act, a report on complaints, a list of building
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certifiers and a summary of disciplinary action taken against building
certifiers. The intent of the report is to assist the chief executive to:
· monitor the overall effectiveness of the legislation as it relates to
the regulation of building certifiers;
· identify areas for review or amendment;
· identify training needs through an analysis of complaint
investigations; and
· monitor the financial position of the certification industry.
5. to keep a register of building certifiers.
Part 2 - Private certifiers
Division 1 - Regulation of private certifying functions
New section 9U (Restriction on performing functions of private
certifier (class A))
Section 9U imposes a penalty on a person who performs the functions of a
private certifier (class A) under section 6P without being a private certifier
(class A). Under section 6P the private certifier that is engaged to assess a
building development application, is the assessment manager, and can
receive, assess and decide the building development application, inspect
and certify the building work, and take enforcement action.
A private certifier is an individual who is a building certifier and whose
licence has private certification endorsement under section 10W. Private
certification endorsement may be made only if the private certifier has the
prescribed insurance for private certification, is an accredited building
surveyor or assistant building surveyor and has development approval
endorsement.
New section 9V (Restriction on private certifier performing
functions for building development applications)
Section 9V imposes a penalty on a private certifier who performs private
certifying functions for a building development application without the
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appropriate licence for the type of building assessment work required for
the application.
For example, a private certifier (class B) is restricted under section 6R to
receiving and assessing a building development application for compliance
against the BCA and certain parts of the QDC (not boundary clearances
and site cover) and can not decide the application.
A private certifier (class A) is the assessment manager for the building
development application for which the certifier has been engaged. The
certifer can receive, assess and decide the building development
application, inspect and certify the building work, and take enforcement
action.
New section 9W (Offence for private certifier not to act in public
interest in performing private certifying function)
Section 9W imposes a penalty on a private certifier who does not act in the
public interest when performing private certifying functions.
Private certifiers perform regulatory compliance functions in place of local
governments, who acted in the public interest in making decisions. A
certifier working for a local government provides advice but the local
government is responsible for the decision. The Ombudsman's Office
deals with improper decision making by local governments. However, a
private certifier may be prosecuted for breaching their duty to act in the
public interest. The level of maximum penalty reflects the importance of
this duty, but the courts will determine appropriate penalties in individual
cases.
Subsection (2) provides a non-inclusive list of acts that, if performed by a
private certifier, are acts outside of the public interest.
New section 9X (Private certifier must not perform private
certifying function if there is a conflict of interest)
Section 9X provides that a private certifier with a conflict of interest must
not perform a private certifying function. Subsection (2) includes acts, if
performed by a private certifier, will constitute a conflict of interest.
Subsection (3) provides for terms defined in the section, that is, builder,
building work, owner and the building.
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Division 2 - Engagement of private certifiers
New section 9Y (Power to contract to perform private certifying
functions)
Section 9Y provides that, subject to sections 10 and 10A, a private certifier
may enter into a contract to perform private certifying functions with a
private certifier employer. This is termed an engagement. A private
certifier employer is a person (including natural persons and corporations)
or a public sector entity who employs private certifiers. A private certifier
employer may enter into a contract to provide the services of their
employed private certifiers to perform private certifying functions for
others.
Subsection (2) provides that a local government can not enter into a
contract where a private certifier performs private certifying functions.
However, a local government can enter into a contract with a private
certifier for the private certifier to perform building certifying functions for
the local government.
The provisions of subsection (2) do not prevent a local government from
performing functions required under section 6S.
The client is the person under an engagement of a private certifier, for
whom it is agreed to perform private certifying functions.
Section 9Y applies subject to section 10 which provides that the service
provider who is a private certifier (class B), or a private certifier employer
who does not employ a private certifier (class A), can not enter into an
engagement unless the service provider has disclosed in writing to the
proposed client that the service provider can not decide whether to grant or
refuse the approval. A private certifier (class B) can not grant or refuse the
application and can only assess the application for technical compliance
against the BCA and certain parts of the QDC.
Section 9Y applies subject to section 10A which provides that the
engagement of a private certifier must in writing state the fees payable by
the client. The mere making of a building development application does not
of itself constitute an engagement of the certifier by the applicant.
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New section 9Z (General restrictions on private certifier
entering into engagement)
Section 9Z prohibits a private certifier from entering into an engagement to
perform private certifying functions if performing the functions will
contravene section 9W, that is, act against the public interest and will have
a conflict of interest under section 9X(2).
New section 10 (Restriction on engagement of private certifier
(class B))
Section 10 defines service provider as a private certifier (class B), or a
private certifier employer who does not employ a private certifier (class A).
It is an offence for a service provider to enter into an engagement without
disclosing in writing to the proposed client that the service provider can not
decide whether to grant or refuse the approval. A private certifier (class B)
can not grant or refuse the application. Class B certifiers can only assess
the application for technical compliance against the BCA and certain parts
of the QDC.
A service provider may still enter into a written agreement with a private
certifier (class A), or an employer of a private certifier (class A), to perform
those private certifying functions that the service provider is not licensed to
perform, including whether to decide to grant or refuse the development
approval.
New section 10A (Requirements for engagement of private
certifier)
Section 10A provides that the engagement of a private certifier must be in
writing, note the fees to be paid by the client to the certifier or private
certifier employer whichever applies. An applicant making a building
development application to a private certifier is not an engagement of a
certifier, without the agreement.
New section 10B (Engagement of private certifier (class A)
taken to include inspection and certification)
Section 10B specifies that a private certifier (class A) who is engaged to
assess a development application is also engaged to inspect and certify
building work for a development approval because of the application.
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New section 10C (Notice of engagement to local government)
Section 10C applies to a private certifier engaged by a client for building or
building assessment work. Within 5 days of being engaged, the certifier
must notify the local government that the certifier has been engaged. If the
owner of the building is not the client or applicant for the building
development application, the certifier must advise the owner of the private
certifier's name and the details of the certifier's responsibilities, using the
approved form.
The owner, of the land is defined under the Building Act as including the
person for the time being entitled to receive the rent for the land or who
would be entitled to receive the rent for the land if it were let to a tenant.
New section 10D (Restriction on discontinuing engagement)
Section 10D applies to discontinuing the engagement of a private certifier
by either the private certifier or the client. The engagement can be
discontinued if appropriate action is taken but does not take effect until
notice, in the approved form, has been given to all parties. Within 5
business days of the discontinuance taking effect, the private certifier must
give the local government a copy of the notice.
This section clarifies that any party to the engagement, (namely, the private
certifier or the client) may discontinue the engagement.
New section 10E (Effect of transfer of functions for building
development approval to local government or replacement
private certifier)
Section 10E applies where the original private certifier is discontinued. A
replacement private certifier may be engaged in place of the original
certifier. If a replacement private certifier has not been engaged, a local
government under section 6S must act on the building development
application or development approval.
Subsection (2) provides that the replacement certifier, private certifier or
local government, (the replacement) is not responsible for private or
building certifying functions performed by the original certifier.
Subsection (3) provides that the replacement may accept and without
further checking, rely and act on any of the original certifier's development
information or inspection documentation.
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New section 10F (Agreed fee recoverable despite valid refusal
of particular actions)
Section 10F applies if a client engages a private certifier to perform any
private certifying function under the engagement and the certifier has
refused to continue to perform a function because of non-compliance with
the building assessment provisions, an applicable code under IDAS or
another valid reason.
Subsection (2) provides in these circumstances the client is still liable to
pay the certifier the fee for the work agreed to under the engagement.
Division 3 Record-keeping and related requirements
New section 10G (Building development applications and
approval documents)
Section 10G requires a private certifier to keep a copy of all building
development applications and approvals they have approved. Copies must
be kept for at least 5 years from:
· for class 1a or class 10 buildings, the day the final inspection
certificate is given or the approval lapses; and
· for a private certifier (class B), the day the private certifier gave the
compliance certificate for the application.
New section 10H (Obligation to give inspection documentation
to owner of building)
Section 10H applies where the engagement of a private certifier is
discontinued before the final inspection certificate or the certificate of
classification is given. In these circumstances, the private certifier must
give the building's owner a copy of the inspection documentation within 5
business days of the certifier accepting certificates from a competent
person or within 5 business days after the discontinued engagement.
New section 10I (Obligation to give inspection documentation
and any reminder notice to local government)
Section 10I(1) requires a private certifier to give the local government a
copy of any inspection documents or the final inspection certificate within
5 business days of the earlier of the following:
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· giving the final inspection certificate or the certificate of
classification;
· the private certifier engagement; or
· the lapsing of a building development approval.
Where the inspection documents include a certificate relied on by the
private certifier the five day period does not start until the private certifier
has accepted all certificates.
Where an approval lapses, the documents provided to the local government
within 5 business days after the lapsing, must include a copy of the relevant
reminder notice given under section 8I.
New section 10J (Obligation to keep inspection documentation)
Section 10J provides that a private certifier must keep all inspection
documentation for 5 years after the building work is finished.
Part 3 - Licensing of building certifiers
Division 1 Licence levels and their roles
New section 10K (Levels)
Section 10K provides that the BSA must issue building certifiers licences
at one of three levels, being building surveyor, assistant building surveyor
or a building surveying technician.
New section 10L(Role of building surveyor)
Section 10L provides that a building surveyor can perform building
certifying functions for all classes of building and structures.
New section 10M (Role of assistant building surveyor)
Section 10M specifies that an assistant building surveyor can only perform
certain functions without the supervision of a building surveyor, that is, an
assistant building surveyor can only perform building certifying functions
on buildings and structures of no greater than 3 storeys and with a floor
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area of less than 2000m2. Under the supervision of a building surveyor, the
assistant building surveyor can help to assess and inspect all classes of
buildings and structures.
New section 10N (Role of building surveying technician)
Section 10N(1) specifies that a building surveying technician can only
perform certain functions. If employed by a local government, a building
surveying technician can perform building certifying functions on
buildings or structures that are no more than 2 storeys and a floor area no
greater than 500m2. This does not apply to designated local governments
listed in subsection (2). If employed by a local government that is a
designated local government or by a private certifier employee, a
technician must be supervised by a building surveyor or assistant building
surveyor, and can help to assess and inspect buildings and structures of no
more than 2 storeys and with a floor area of no greater then 500m2.
This provision must be read in conjunction with section 68, which provides
that building surveying technician employed by a local government
immediately before 21 October 2003, who works for a `designated local
government', may continue to be a building surveying technician and
perform building certifying functions as prescribed under subsection (1)
until 20 October 2010. After this period, only those technicians employed
by a local government before 21 October 2003 and who after 21 October
2010 are working for a local government, other than a designated local
government, may continue to perform functions as a technician.
The transitional period is intended to allow building certifiers licensed as
technician to up-skill before the Accreditation Standards Body (AIBS)
phases out accreditation for technicians.
`Designated local governments' means any of the following:
Beaudesert Shire Council, Brisbane City Council, Bundaberg City Council,
Burnett Shire Council, Caboolture Shire Council, Cairns City Council,
Calliope Shire Council, Caloundra City Council, Cooloola Shire Council,
Crow's Nest Shire Council, Douglas Shire Council, Gladstone City
Council, Gold Coast City Council, Hervey Bay City Council, Ipswich City
Council, Livingstone Shire Council, Logan City Council, Mackay City
Council, Mareeba Shire Council, Maroochy Shire Council, Maryborough
City Council, Noosa Shire Council, Pine Rivers Shire Council, Redcliffe
City Council, Redland Shire Council, Rockhampton City Council,
Thuringowa City Council, Toowoomba City Council, Townsville City
Council, and Whitsunday Shire Council.
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Division 2 - Applying for and obtaining licence
New section 10O (Who may apply)
Section 10O provides that only a person with a current accreditation issued
by an accreditation standards body may apply for a BSA license.
Accreditation is obtained from the Accreditation Standards Body which is
prescribed by regulation to be the Australian Institute of Building
Surveyors (AIBS). The accreditation and licensing of building certifiers is
a two step co-regulatory process involving accreditation by AIBS at the
national level and licensing by the BSA at the State level.
AIBS assess the applicant's qualifications and experience to determine the
accreditation level. Accredited building certifiers apply to the BSA for a
licence to perform particular functions.
New section 10P (Requirements for licence application)
Section 10P requires license applications to be in the approved form, state
the level of license applied for, and include the application fee and the
license fee, evidence of the applicant's identity and a copy of the
applicant's certificate of accreditation for the level of license applied for.
New section 10Q (Decision on licence application)
Section 10Q requires the BSA to consider an application and either issue a
licence at the level the applied for (with or without conditions) or refuse to
license the applicant. The BSA must be satisfied that the applicant is a
suitable person to hold a license. Section 1T provides that the BSA may
seek further information from an applicant to establish if the applicant is a
suitable person to hold a licence.
New section 10R (Steps after making decision)
Section 10R states that if the BSA decides to license the applicant, it must
issue the license. If the BSA either refuses the application or imposes
conditions on the license it must give the applicant an information notice
about the decision. There is a right of appeal against an information notice.
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New section 10S (Duration of licence)
Section 10S provides that a licence remains in force for 1 year unless it is
earlier cancelled, suspended or surrendered under the Building Act. This is
subject to section 11A that provides that where an application for a licence
renewal is made before the licence expires after 1 year, then the existing
licence is taken to be in force while the application is being considered.
Division 3 - Private certification endorsements
New section 10T (Endorsements)
Section 10T empowers the BSA to endorse the building certifier's license
that the certifier may perform building certifying functions as a private
certifier. If the license has a private certification endorsement (development
approval endorsement) the certifier can issue development approvals under
section 6P (Functions of a private certifier (class A)). Endorsement is
subject to section 10W (Restrictions on making endorsements).
New section 10U (Who may apply for endorsement)
Section 10U provides that a building certifier can apply for private
certification or development approval endorsement at any time. An
applicant can apply for private certification endorsement or development
approval endorsement at the same time as they apply for their license.
New section 10V (Requirements for endorsement application)
Section 10V states that an application for endorsement must be in the
approved form with the application fee.
New section 10W (Restrictions on making endorsement)
Section 10W states that private certification endorsement can only be
applied for if the applicant has appropriate insurance (prescribed under a
regulation), and the applicant is accredited as a building surveyor or
assistant building surveyor.
Subsection (2) provides that development approval endorsement may be
made only if the applicant has obtained a statement of attainment for
successfully completing the prescribed course, `Issuing development
permits for building work'.
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New section 10X (Notice of refusal)
Section 10X states that if the BSA refuses a licence application an
information notice must be given to the applicant. Information notice in
the dictionary schedule 2 means a notice stating the decision, and the
reasons for it, all rights of appeal against the decision under the Building
Act or IPA and how those rights are to be exercised.
Division 4 - Renewals
New section 10Y (Notice of expiry of licence)
Section 10Y provides that the BSA must notify the certifier within 20
business days before the expiry of their license. The BSA notice must state
the day the license expires and inform the certifier that if they wish to
renew their license, the certifier must apply to have the license renewed and
the appropriate fee must be paid. The BSA notice must also provide
information about how to renew the license.
New section 10Z (Automatic expiry on failure to apply for
renewal)
Section 10Z states that if a building certifier does not renew their license
before the expiry date, the license expires at the end of that day. The license
will expire even if the BSA has not complied with section 10N and given
the certifier notice of expiry of the license.
New section 11 (Applying for renewal)
Section 11 provides that a building certifier can apply to the BSA to renew
their licence, if the application is not made after the licence expires.
Applications also cannot be made by a person who is not qualified for a
licence under section 10O. Applications for a licence must be in the
approved form and accompanied by the licence fee and evidence of
identity. The applicant must also provide evidence of their accreditation for
the level of licence. Also, if the applicant is applying for continuation of a
private certification endorsement, evidence of appropriate insurance must
also be supplied.
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Building and Other Legislation Amendment Bill 2006
New section 11A (Existing licence taken to be in force while
application is considered)
Section 11A provides that if an application is made to renew a licence, the
licence is considered to still be in force while the application is considered.
This will not apply if the licence has already been cancelled, suspended or
surrendered.
New section 11B (Decision on renewal application)
Section 11B provides that the BSA must consider the application and
decide to renew the licence at the level the applicant applied for, or decide
to refuse the licence.
Under section 11T, the BSA may also seek information from an applicant
about their suitability. The decision to renew a licence is subject to the BSA
being satisfied that the applicant is a suitable person to hold a licence.
New section 11C (Steps after making decision)
Section 11C states that if the BSA renews the licence, the licence must be
issued to the applicant. If the application is refused, the BSA must give the
applicant an information notice about the decision. Information notice in
the dictionary schedule 2 means a notice stating the decision, and the
reasons for it, all rights of appeal against the decision under the Building
Act or IPA and how those rights are to be exercised.
Division 5 - Cancellation and suspension of, and other
changes to, licences and cancellation of
endorsements
Subdivision 1 - BSA's powers
New section 11D (Power to amend, cancel or suspend licence)
Section 11D provides that if the BSA determines that a building certifier is
not a suitable person to hold a licence; the BSA can amend the licence to
impose or remove a condition on the licence. The licence can also be
cancelled or suspended. A show cause notice must be issued before taking
action under this section.
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New section 11E (Power to change licence level)
Section 11E applies if the BSA is satisfied that a building certifier no
longer holds appropriate accreditation from a standards body. The BSA can
amend the licence to impose or remove a condition, or change the level of
the licence, or cancel or suspend the licence. The BSA may exercise
powers under this section at any time but only after the BSA has complied
with the show cause process under subdivision 2.
New section 11F (Cancellation of endorsement of licence to act
as private certifier)
Section 11F applies if the BSA is satisfied that the private certifier does not
have insurance for private certification prescribed under a regulation. In
these circumstances the BSA must give the certifier a show cause notice
that it proposes to cancel the endorsement. The BSA may then, subject to
any submissions, cancel the endorsement.
New section 11G (Notice of particular events to interstate
licensing authorities and other entities)
Section 11G provides that if the certifier's licence is cancelled, suspended
or amended (the event), the BSA must as soon as practicable after the
event, give notice (which includes the information the BSA considers
appropriate), of the event to the authority in other States and New Zealand,
where the BSA is aware the building certifier has an equivalent licence in
that jurisdiction to one under this Act.
The BSA may also give notice of the event to each accreditation standards
body, an employer of, or a person who has appointed the building certifier,
and/or another entity the BSA reasonably believes needs to know of the
event.
Subdivision 2 - Show cause notice procedure
New section 11H (Show cause notice)
Section 11H provides that if the BSA believes that grounds exist to act
under subdivision 1 (amend, cancel suspend, change the level of licence
and/or cancel the endorsement), the BSA must before taking the action,
give the certifier a show cause notice. The show cause notice must state the
proposed action, the grounds for taking the proposed action, the facts and
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circumstances forming the basis for the grounds, any proposed amendment
to the licence, and any proposed suspension period (the suspension period
may be fixed by reference to the happening of an event) for the licence. It
must also state that the building certifier may, within the show cause period
make submissions about why the proposed action should not be taken.
Subsection (3) provides that the show cause period must be a period ending
at least 20 business days after the building certifier is given the show cause
notice.
New section 11I (Submissions about show cause notice)
Section 11I provides that a building certifier may make a submission to the
BSA about the show cause notice within the show cause period. The BSA
is obliged to consider the submission.
New section 11J (Decision on proposed action)
Section 11J provides that the BSA, after considering the show cause
submissions, must decide whether to take the proposed action. If the
proposed action is to cancel the certifiers licence, the BSA can choose to
instead suspend the licence for a specified period.
New section 11K (Notice and taking effect of decision)
Section 11K provides that if the BSA decides not to take the proposed
action, the BSA must inform the certifier of the decision. If the BSA does
take the proposed action, they must give the certifier an information notice
about the decision. The action takes effect when the information notice is
given to the certifier. Information notice is defined in the dictionary
schedule to mean a notice stating the decision, and the reasons for it, all
rights of appeal against the decision under the Building Act or IPA and how
those rights are to be exercised.
Division 6 - General provisions about licences
New section 11L (Register of building certifiers)
Section 11L provides that the BSA must keep a register, in the form the
BSA considers appropriate (for example electronic or paper), of building
certifiers. The register must contain the following details:
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· The certifier's name, licence number and business contact details;
· Details about the licence, including the issue and expiry date,
endorsements, licence level, conditions (if any) on the licence and
information about eligibility;
· A decision of unsatisfactory conduct or professional misconduct
under section 40(1), and the details of the decision. For unsatisfactory
conduct, details about further decisions required under section 40(4).
· If the Commercial and Consumer Tribunal has made an order about
the certifier, the details of the order unless it is specified that those
details are not to be displayed.
More information about recording details of orders is provided in section
45C.
New section 11M (Access to register)
Section 11M provides that the BSA must make the register of building
certifiers available in hard copy for inspection by any person during office
hours. The BSA must also link the register to their website.
New section 11N (Surrendering licence)
Section 11N provides that a building certifier may by notice surrender their
licence to the BSA. The surrender will take effect on the day the notice is
given to the BSA or a later day stated in the notice. The licence must be
returned to the BSA within 10 business days of the licence being
surrendered. If the licence is not returned within 10 days, the certifier must
have a reasonable excuse for not returning the licence.
New section 11O (Obtaining replacement licence)
Section 11O states that a building certifier can apply to the BSA for a
replacement certifier's licence but only if the BSA is satisfied that the
licence has been damaged, destroyed, lost or stolen. If the BSA is satisfied
the licence has been damaged, destroyed, lost or stolen, the BSA must give
the applicant a replacement licence.
New section 11P (Obligation of building certifier to give notice
of change in particular circumstances)
Section 11E provides that a building certifier must give the BSA notice of
certain changes in circumstances. The BSA must be advised of a change of
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address, or if the certifier holds a licence in another state or in New Zealand
and that licence is suspended or cancelled. Also the certifier must advise
the BSA if they are convicted of certain offences. The certifier has 20
business days to notify the BSA of these changes in circumstance.
Division 7 - Miscellaneous provisions
New section 11Q (Accreditation standards bodies)
Section 11Q defines an accreditation standards body. An accreditation
standards body is the Australian Institute of Building Surveyors or any
other body prescribed under a regulation as an accreditation standards
body. However, accreditation bodies under the regulation can only be
prescribed if they have identifiable ability and expertise in issuing
accreditation to building certifiers.
New section 11R (Function of accreditation standards body)
Section 11R defines the functions of an accreditation standards body. The
role of an accreditation standards body is to issue accreditation to
individuals who wish to apply as building certifiers. An accreditation
standards body must set educational and experience standards necessary
for each level of licensing. The standards must comply with national
accreditation for building certifiers. The accreditation body must also
implement a continuing professional development scheme. The scheme
requires executive approval.
National accreditation framework means the framework approved by the
body known as the Australian Building Codes Board.
New section 11S (Criteria for deciding suitability of applicants
and licensees)
Section 11S provide for where the BSA is considering whether an applicant
for a licence or the renewal of a licence or a licence holder is a suitable
person to hold a licence. Subsection (2) provides a list of criteria for
deciding whether an applicant for a licence is a suitable person to hold a
licence. These criteria are:
· Whether the applicant or holder has been convicted of a relevant
offence;
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· Whether the applicant has previously been refused a licence, or had a
licence suspended or cancelled under this Act or another relevant Act;
· Whether the applicant or holder has under this Act, or another relevant
Act been disqualified from holding a licence;
· The standard of honesty and integrity demonstrated in dealings the
applicant has been involved in;
· Any failure by the applicant or holder to carry out statutory
obligations relating to building or private certifying functions;
· Whether the applicant or holder has current accreditation; and
· All other relevant circumstances.
New section 11T (BSA may seek information from applicants
about suitability)
Section 11T applies to an application for or renewal of a licence. The BSA
may, by a written notice, request documents or information from the
applicant about their suitability to hold a licence. The BSA will provide a
timeframe for the information to be submitted by the applicant.
New section 11U (Refund of particular licence fees
accompanying applications)
Section 11U provides that the BSA must refund an applicant's licence fee if
the application is withdrawn or the BSA refused the application.
New section 11V (Appeals to Commercial and Consumer
Tribunal about decisions under pt 3)
Section 11V applies where a person is given or entitled to an information
notice about a decision under Part 3. The BSA's decision can be appealed
against to the Commercial and Consumer Tribunal. The applicant must
lodge the appeal with the Tribunal within 20 days of receiving the
information notice.
6 Replacement of pt 2A, hdg (Fire safety for budget
accommodation buildings)
Clause 6 replaces part 2A heading with Chapter 7 because clause 5 inserted
6 new chapters.
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Clause 6 inserts a note under new chapter 7 heading, to inform the user that
chapters 2 and 3 contain special provisions for obtaining building
development approval for budget accommodation buildings and refers the
user to section 5V (Application for building work for budget
accommodation building), section 6N(4) (Concurrence agencies may carry
out building assessment work within their jurisdiction), 7 (Discretion for
building development applications for particular budget accommodation
buildings) and section 7D ( Restriction on granting building development
application for budget accommodation building).
7 Amendment of pt 2A, div 1, hdg (Interpretation)
Clause 7 replaces part 2A division 1 heading with Division 1 with Part 1 of
the new chapter 7.
8 Amendment of s 12A (definitions for pt 2A)
Clause 8 amends the heading to section 12A and references within section
12 A to pt 2A by replacing pt 2A with chapter 7.
Clause 8(4) relocates the definition of `fire safety management plan' to the
dictionary for ease of reference by the user.
9 Amendment of pt 2A, div 2, hdg (Fire safety standard)
Clause 9 amends the div 2 heading by replacing it with `Part 2' as a
consequence of renumbering part 2A as chapter 7.
10 Amendment of s 12C (Fire safety standard)
Clause 10(1) replaces section 12C(1) to update the definition of `fire safety
standard' to include the QDC part 14 and any other standard prescribed
under a regulation.
Clause 10 (2) replaces the term `fire safety standard' with the term `a
prescribed standard'.
The Fire Safety Standard forms part of the QDC and is the only standard
that is so prescribed at this time. The experience with the Fire Safety
Standard showed there can be a need to speedily create prescribed
standards, for example the need to create the standard for fire safety in
budget accommodation buildings after the fatal Childers fire. There can be
a need to urgently create new standards when unanticipated situations arise
with a danger to life and public safety. The provision for prescribed
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standards will, in future, allow such situations to be addressed and provides
the flexibility to cater for whatever danger to life and property may arise.
11 Omission of ss 12E and 12F
Clause 11 omits sections 12E and sections 12F which provided public
access and notification of guidelines for fire safety standards. These
requirements have been incorporated into the generic provisions about
guidelines issued or made by the chief executive under new sections 51A
(Guidelines), and new section 51B (Access to guidelines).
12 Amendment of pt 2A, div 3, hdg (Budget accommodation
buildings built, approved or applied for, before 1 January 1992)
Clause 12 amends the div 3 heading by replacing it with `Part 3' as a
consequence of renumbering part 2A as chapter 7.
13 Amendment of s 12G (Application of div 3)
Clause 13(1) amends section 12G heading by replacing `div 3' with `pt 3'
as a consequence of renumbering part 2A as chapter 7.
Clause 13(2) replaces the word `division' in the section with `part'.
14 Amendment of s 12I (Approval of longer period for
conformity with fire safety standard)
Clause 14(1) amends section 12I(4)(b) to replace the term `written notice
of' with `an information notice about'. Information notice is defined in the
dictionary to mean the decision and the reasons for it, all rights of appeal
and how the rights are to be exercised.
Clause 14(2) omits section 12I(5) which duplicates information about a
notice now contained in the dictionary.
Clauses 14(3), (4) renumbers 12I(6) as (5) and the reference in the section
has been update.
Clause 14(5) inserts a note to the section to inform users about the rights of
appeal to a building and development tribunal against a decision under this
Act, other than a decision by the BSA, for which an information notice
must be, or is taken to be given. See also section 4.2.12A (Appeals for
plumbing and drainage matters) under IPA.
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15 Amendment of s 12J (Advice as to conformity with fire
safety standard)
Clause 15(1) amends section 12J(2)(b) to replace the term `written notice'
with `notice'. Notice is defined in the dictionary to mean a written notice.
Clause 15(2) amends subsection (3) to provide that if the local government
decides the building does not conform with the fire safety standard, the
notice must be, or include, an information notice about the decision, the
reasons for the decision and the appeal rights.
16 Omission of s 12K (Appeals about conformity with fire
safety standard)
Clause 16 omits section 12K as it duplicates rights of appeal to the building
and development tribunal contained under IPA.
17 Amendment of s 12L (Stay of operation of local government
decision)
Clause 17 amends section 12L to correct a cross reference to section 12J(3)
instead of section 12K(1)(a).
18 Amendment of s 12M (Local government decisions)
Clause 18 amends section 12M to replace the term `written notice' with
`notice'. Notice is defined in the dictionary to mean a written notice.
19 Amendment of pt 2A, div 4, hdg (All budget accommodation
buildings)
Clause 19 amends division 4 heading by replacing the heading with `Part 4'
as a consequence of renumbering part 2A as chapter 7.
20 Amendment of s 12N (Application of div 4)
Clause 20 amends section 12N heading and section by replacing the term
`div 4' in the heading and `division 4' in the section, with `pt 4' and `part 4'
respectively, as a consequence of renumbering part 2A as chapter 7.
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21 Amendment of s 12O (Obligation about fire safety
management plan)
Clause 21 amends section 12O to omit a cross reference in subsection
(1)(a) to section 12Q which is now omitted.
22 Omission of s 12Q (Development approval for building work
for budget accommodation buildings)
Clause 22 omits section 12Q as the requirements under section 12Q have
been relocated to section 5V (Application for building work for budget
accommodation building).
23 Amendment of pt 2A, div 5, hdg (Miscellaneous)
Clause 23 amends division 5 heading by replacing the heading with `Part 5'
as a consequence of renumbering part 2A as chapter 7.
24 Insertion of new ss 12SA and 12SB
Clause 24 inserts into Chapter 7, part 5, as renumbered, new sections 12SA
(Local government's fire safety record-keeping obligations) and 12SB
(Owner's fire safety record-keeping obligation)
New section 12SA (Local government's fire safety record-
keeping obligations)
Section 12SA provides that a local government must keep all documents
relating to the application made under section 12I (Approval of longer
period for conformity with fire safety standard), and a record of each
inspection made under section 12R (Random inspection of buildings for
which development approval is given), until the building is demolished or
removed.
New section 12SB (Owner's fire safety record-keeping
obligation)
Section 12SB provides that the owner of a budget accommodation building
to which section 12R (Random inspection of buildings for which
development approval is given) applies, must keep complete and accurate
records for the building showing the owner is complying with the fire
safety standard.
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The records must include, if an alternative solution (within the meaning of
the BCA) is involved, the records required under the alternative solution,
and if the local government imposes conditions on an approval given under
section 12I(3), details of how the building complies with the conditions.
25 Replacement of pt 3, hdg (Swimming pool fencing)
Clause 25 substitutes part 3 heading as chapter 8 as a result of new chapters
1 to 6 being inserted by clause 5.
26 Amendment of s 12T (Definitions for pt 3)
Clause 26 amends section 12T heading by replacing `pt 3' with `ch 8' as a
result of new chapters 1 to 6 being inserted by clause 5.
27 Omission of s 13 (local law for fencing of swimming pools)
Clause 27 omits section 13 as the provision for a local law to be made
about swimming pool fencing has been made under new section 6 (Local
laws, planning schemes and local government resolutions that may form
part of the building assessment provisions under section 5Y (Relevant laws
and other documents for assessment of building work).
28 Amendment of s 16D (Steps to be taken after application
decided)
Clause 28 amends section 16D to replace `written notice' with
`information notice' as defined in the dictionary to mean a notice stating
the decision and the reasons for it and appeal rights against the decision
under the Building Act.
29 Amendment of s 16E (Revocation of exemption)
Clause 29 amends section 16E to replace the term `written notice' with the
term `notice'.
Clause 29(3) amends subsection (4) to provide that the `revocation notice'
must be, or be accompanied by, an information notice about the decision.
`Information notice' as defined in the dictionary, means a notice stating the
decision and the reasons for it and appeal rights against the decision under
the Building Act.
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30 Insertion of new s 16F
Clause 30 inserts new section 16F (Register of exemptions) after section
16E.
New section 16F Register of exemptions
Section 16F provides that the local government must keep a register of
exemptions it grants under chapter 8 (Swimming pool fencing) that are still
in force and make the register available for inspection and purchase as if it
were a document under IPA chapter 5 part 7 (Public access to planning and
development information).
31 Amendment of s 17 (Advice as to compliance)
Clause 31 amends section 17 to replace the term `written notice ' with the
term `information notice' as defined in the dictionary to mean a notice
stating the decision and the reasons for it and appeal rights against the
decision under the Building Act.
32 Omission of s 20 (Appeals about swimming pool fencing)
Clause 32 omits section 20 which duplicates the general appeal provisions
under the Building Act.
33 Amendment of pt 4, hdg (Show cause and enforcement
notices)
Clause 33 amends part 4 heading by replacing part 4 with chapter 9 as a
result on new chapters 1 to 5 inserted by clause 5.
34 Amendment of s 22 (Enforcement notices)
Clause 34 amends section 22 by omitting section 22 (3), omitting from
section 22 (4) and (5) the term `or private certifer' and replacing the
"Integrated Planning Act 1997" with `IPA', then renumbering section 22.
35 Amendment of s 23 (Specific requirements of enforcement
notices)
Clause 35 omits from section 23(1)(a) the reference to the Integrated
Planning Act 1997.
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36 Amendment of s 24 (Appeals against enforcement notices)
Clause 36 amends section 24(1) by replacing the "Integrated Planning Act
1997" with `IPA'
37 Amendment of s 25 (Register of notices given)
Clause 37 omits from section 25 the term `open to inspection by the public'
and relies on the IPA chapter 5 part 7 for public access rights.
38 Omission of pt 5 (Accreditation and provisions about
building certifiers)
Clause 38 omits part 5 as the provisions under division 1 (Accreditation),
division 1A (Functions of BSA and licensing of building certifiers),
division 2 (Jurisdiction), and division 3 (Code of Conduct for building
certifiers), have been relocated to other chapters of the Building Act.
The authorisation and functions of the accreditation standards body are
now located at new sections 11F (Accreditation standards body) and 11G
(Function of accreditation standard body).
The provisions for the functions of the BSA have been relocated to new
section 9I (Additional functions of the BSA for building certification) and
the provisions for the licensing of building certifiers has been relocated to
new chapter 6 (Provisions about private certifiers and other building
certifiers) part 3 (Licensing of building certifiers).
The provision for the jurisdiction of building certifiers has been relocated
to chapter 4 (Assessment of building development applications and the
carrying out of self-assessable building work), part 2 (Persons responsible
for assessing building development applications.
The provisions for the code of conduct for building certifiers have been
relocated to chapter 6 part 1 (General provisions about building certifiers)
division 2 (Code of conduct.
39 Relocation and renumbering of pt 5A (Complaints,
investigations and disciplinary proceedings relating to building
certifiers)
Clause 39 relocates part 5A to chapter 6 (Provisions about private certifiers
and other building certifiers), as inserted under this Act, and renumbers it
as chapter 6, part 4 as part of rationalising the new format of the Building
Act.
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40 Amendment of s 34 (Building certifier must be advised of
complaint)
Clause 40 amends section 34 by replacing the term `written notice' with the
term `notice'.
41 Amendment of s 34A (BSA may recommend mediation to
resolve complaint)
Clause 41 amends section 34A by replacing the term `written notice' with
the term `notice'.
42 Amendment of s 34B (Mediation process)
Clause 42 amends section 34B by replacing `the term `written notice' with
the term `notice'.
43 Amendment of s 36 (BSA may require documents to be
produced)
Clause 43 amends section 36 by replacing the term `written notice' with the
term `notice'.
44 Insertion of new sections 36A and 36B
Clause 44 inserts new sections 36A and 36B which require a BSA auditor
to have and display their identity card when exercising their powers under
the Act to investigating a building certifier. These provisions provide some
constraint on the new power of the BSA under the Bill to enter and inspect
a building construction site to investigate complaints about a building
certifier or to conduct an audit.
New section 36A (Issue of identity card to auditor)
Section 36A requires the BSA to issue each auditor an identity card
containing a recent photo, copy of the auditor's signature, identify the
person as an approved auditor and state the expiry date for the card.
New section 36B (Production or display of identity card)
Section 36B requires the auditor to produce their identity card for an
inspection and clearly display the card.
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45 Amendment of s 38 (Power to enter and inspect building)
Clause 45(1) amends section 38 heading and subsection (1) to replace
`building' with `building site relating to complaint or audit' to more
accurately describe the extent of the powers of the BSA to enter a
construction site.
Clause 45(3) amends subsections (2)(a), (3), (6) and (7)(a) to replace
`building' with `building site' to clarify that the BSA's powers extend to the
site.
Clause 45(4) amends subsection (2) to insert new subparagraph (c) to
extend the powers of the BSA, when investigating a complaint or
conducting an audit of a building certifier, to enter and inspect a building
when the building work is being carried out at the building site.
Clause 45(5) renumbers subsections (3) to (7) as subsections 38(5) to (9).
Clause 45(6) inserts new subsections (3) and (4) to provide that entry by
the BSA must not include a part of a building in which a person resides.
Subsection (4) provides the auditor with the power to enter the building site
to the extent that it is reasonable to ask the person in control of the site for
consent to enter.
46 Insertion of new section 38A
Clause 46 inserts new section 38A (Procedure before entry) after section
38.
New section 38A (Procedure before entry)
Section 38A sets out procedures the auditor is to follow if the auditor is
intending to enter a building site under section 38, other than for the
purpose in section 38(4).
47 Amendment of s 40 (Decision after investigation or audit
completed)
Clause 47 amends section 40 to replace written notice with information
notice as defined in the dictionary to mean a notice stating the decision and
the reasons for it and appeal rights against the decision under the Building
Act.
Clause 47(2) substitutes subsection (3) to provide that if the BSA is aware
that the building certifier is employed or has been appointed by someone
else to perform building or private certifying functions, it must give the
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employer or appointer a copy of the notice about the decision following the
investigation.
Clause 47(4) omits subsection (7) because the requirements for a notice are
included in the definition of information notice in the dictionary.
Clause 47(6) refers the user to IPA schedule 10 dictionary for the meaning
of `assessable development'.
48 Amendment of s 41B (Representations and decision)
Clause 48 amends section 41B to replace the term `written notice' with the
term `notice' as defined in the dictionary to mean a written notice.
49 Amendment of pt 6, hdg (General provisions)
Clause 49 amends part 6 heading by replacing part 6 with chapter 10 as a
result of clause 5 inserting new chapters 1 to 6.
50 Omission of s 47 (Giving security in certain cases)
Clause 50 omits section 47 as the provisions for an approvals for removal
and or rebuilding have been relocated to section 7L (When demolition,
removal and rebuilding must start and finish).
51 Amendment of s 48 (Information to be supplied by the State)
Clause 51 amends section 48 by replacing `the Integrated Planning Act
1997' with `IPA'.
52 Omission of s 49 (Owner liable for offences under Standard
Building Regulation)
Clause 52 omits section 49 as the provisions have been replaced elsewhere.
53 Amendment of s 50 (Prosecution of offences)
Clause 53(1) amends subsection (1) to remove the reference to the SBR as
the Building Act now covers those matters once dealt with in the SBR.
Clause 53(2) substitutes subsection (2) to provide that the person who may
make a complaint for an offence against this Act is:
· For chapter 6 (Provisions about private certifiers and other building
certifiers), the general manager;
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· And for another offence, the local government or a person authorised
by the local government.
54 Insertion of new ss 51A to 51C
Clause 54 inserts new sections 51A to 51C after section 51.
New section 51A Guidelines
Section 51A provides that the chief executive of the department that
administers the Building Act, may make guidelines for matters within the
scope of this Act to help compliance with this Act.
New section 51B Access to guidelines
Section 51B provides that the chief executive must make any guidelines
under section 12D (Guidelines for fire safety standard) or 51A available for
inspection and purchase as if they were a document under IPA chapter 5
part 7(Public access to planning and development information).
New section 51C Evidentiary aids
Section 51C provides that in a proceeding under, or in relation to, the
Building Act or the Queensland Building Services Authority Act 1991 a
certificate purporting to be signed by the general manager of the BSA
stating that the following matters are evidence of the matters.
· A stated document is a copy of, or an extract from or part of a licence,
the register, the BCA, the QDC or another document kept or made
under this Act;
· An edition of the BCA was the current edition of the BCA at a stated
time or during a stated period;
· A particular version of the QDC was in force at the stated time or
during the stated period;
· A particular part of the QDC was in force at the stated time or during
the stated period;
· On a stated day, or during a stated period, a licence was or was not in
force, was or was not subject to a stated condition or was or was not
cancelled or suspended.
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55 Amendment of s 52 (Regulation-making power)
Clause 55 amends section 52 by renumbering subparagraphs 52(2)(a) to (c)
with 52(2)(e) to (h) and inserting new subparagraphs (a) to (d). The new
subparagraphs add to the existing provisions by allowing a regulation may
make provision for building work, the occupation of buildings, the
performance of building certifying functions and private certifying
functions and the licensing of building certifiers.
56 Omission of s 53 (Day when Standard Building Regulation
was made for Statutory Instruments Act 1992)
Clause 56 omits section 53 as a redundant provision.
57 Amendment of pt 7, hdg (Savings and transitional
provisions)
Clause 57 amends part 7 heading by replacing the term `part 7' with
`chapter 11' as a result of the reformatting of the Building Act and the
insertion of chapters 1 to 6 by clause 5.
58 Amendment of pt 7, div 1, hdg (Transitional provision for
Local Government Act 1993)
Clause 58 amends part 7 division 1 heading by replacing division 1 with
part 1.
59 Amendment of pt 7, div 2, hdg (Transitional provisions for
Building and Integrated Planning Amendment Act 1998)
Clause 59 amends part 7 division 2 heading by replacing division 2 with
part 2.
60 Amendment of section 55 (References to Standard Building
Law etc)
Clause 60 amends section 55 to omit the reference to Standard Building
Law and replace it with a reference to Standard Building Law or the
repealed Standard Building Regulation 1993 is a reference to the Building
Act.
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Building and Other Legislation Amendment Bill 2006
61 Amendment of s 56 (Existing referees)
Clause 61 amends section 56 by replacing `the Integrated Planning Act
1997' with `IPA'.
62 Amendment of s 57 (Existing registrar)
Clause 62 amends section 57 by replacing `the Integrated Planning Act
1997' with `IPA'.
63 Amendment to section 58 (Lawfully constructed buildings
and structures protected)
Clause 63 replaces a reference to the Standard Building Regulation with a
reference to the Act.
64 Amendment of pt 7, div 3, hdg (Transitional provisions for
Building Amendment Act 2003)
Clause 64 amends part 7 division 3 heading by replacing division 3 with
Part 3.
65 Amendment of s 58A (Definitions for div 3)
Clause 65 amends section 58A heading and section to replace the term `div
3' with `pt 3' and `division' with `part' respectively.
66 Amendment of pt 8, hdg (Transitional provisions for
Plumbing and Drainage Act 2002)
Clause 66 amends part 8 heading by replacing part 8 with part 4.
67 Amendment of s 60 (Definitions for pt 8)
Clause 67 amends section 60 by replacing pt 8 with pt 4.
68 Amendment of s 61 (Swimming pool fences for existing
tourist resort complexes exempted)
Clause 68 amends section 61(1) by replacing `specified under a regulation'
with `was, under section 4 and schedule 2 of the repealed Building
Regulation 2003, specified for section 13(3)(a) as in force immediately
before the commencement'.
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Building and Other Legislation Amendment Bill 2006
Clause 68(2) amends section 61(2) to provide that a local law is of no effect
if it requires the construction of fencing around the swimming pool on the
land, provided the land `is not land prescribed under a regulation as land to
which this subsection is no longer to apply.'.
Under section 68 `tourist resort complex' means a complex that operates
as a single integrated facility providing all, or substantially all, the
recreational and personal needs of guests resident at the complex and
visitors at the complex.
69 Insertion of new ch 11, pt 5 and schedule 1
Clause 69 inserts a new chapter 11 part 5 and schedule 1. Chapter 11 part 5
provides for the operation of transitional provisions as a consequence of the
commencement of the Bill, i.e. the Building and Other Legislation
Amendment Act 2006. Schedule 1, authorised by section 5H, provides a
table setting out the mandatory parts of the QDC.
New Part 5 Transitional provisions for Building
and Other Legislation Amendment Act 2006
New section 66 (Undecided building development applications)
Section 66 provides that if, immediately before the commencement of
section 66, a building development application had not been decided and
the application is a properly made application, the application must be
decided as if the Building and Other Legislation Amendment Act 2006 had
not been enacted.
New section 66A (Consequential amendments to the QDC)
Section 66A provides that section 5H(3) does not apply to amendments to
the QDC under section 5H(2) if the amendment is consequential to the
Building and Other Legislation Amendment Act 2006 or the repeal of the
Standard Building Regulation 1993.
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Building and Other Legislation Amendment Bill 2006
New section 67 (Consequential amendments to code of
conduct)
Section 67 provides that section 9E(3) does not apply to an amendment of
the code of conduct if the amendment is consequential to the Building and
Other Legislation Amendment Act 2006 or the repeal of the Standard
Building Regulation 1993.
New section 68 (Local government building surveying
technicians)
Section 67 provides that if a building surveying technician was,
immediately before 21 October 2003, employed by a local government as a
building certifier and the local government is a designated local
government under section 10 C, the building surveying technician, despite
section 10N(1)(a) (Role of building surveying technician), may until 20
October 2010, perform building certifying functions on the buildings and
structures mentioned in section 10N(1)(a).
New section 69 (Amendment to renumber)
Section 68 provides a renumbering provision so that on commencement of
section 68, the Building Act may be renumbered sequentially in the first
reprint of the Building Act following commencement according to section
43 of the Reprints Act 1992. Each reference in the Building Act and each
of the references in another Act under subsection (3), to a provision of the
Building Act as renumbered is amended when the renumbering happens.
Section 68(7) inserts Schedule 1 (the QDC as at the commencement of s
5H), which lists the parts of the QDC with mandatory effect as at the
commencement of section 5H under the Bill.
70 Amendment of schedule (Dictionary)
Clause 70 amends the schedule (Dictionary), by numbering the schedule as
schedule 2 and omitting, replacing and making new definitions.
Clause 70(2) omits the following definitions:
accreditation standards body, assessment manager, building, building
certifier, building certifying function, Building Code of Australia,
building work, code of conduct, complaint, former building certifier,
local government, national accreditation framework, private certifier,
register, show cause notice show cause period, Standard Building
Regulation and tourist resort complex..
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Building and Other Legislation Amendment Bill 2006
Clause 70 (3) inserts the following definitions:
accreditation standards body under section 11Q(1) provides for the
Australian Institute of Building Surveyors (AIBS) and another entity
prescribed under a regulation, to be an accreditation standards body.
advice agency is an advice agency under IPA and means an entity
prescribed under a regulation as an advice agency for a development
application.
AIBS means the Australian Institute of Building Surveyors.
allotment means a separate, distinct parcel of land on which a building is to
be built, or is built.
alterations to an existing building or structure, includes additions to the
building or structure.
alternative solution means a material, system, method of building or other
thing intended to be used by a person to comply with relevant performance
requirements. However it does not include:
· if the relevant performance requirements are under the BCA - a
building solution under the BCA that complies with the deemed-to-
satisfy provisions under the BCA for the performance requirements;
or
· if the relevant performance requirements are under the QDC - an
acceptable solution under the QDC for the performance requirements.
another relevant Act means IPA, the Queensland Building Services
Authority Act 1991, the Building and Construction Industry (Portable Long
Service Leave) Act 1991, or a law of another State or New Zealand that
provides for the same matter as this Act or a provision of this Act.
appropriately licensed for
(a) a building certifying function means licensed under chapter 6
(Provisions about private certifiers and other building certifiers), part
3 (Licensing of building certifiers), division 2 (Licence levels and
their roles) at a level that allows the licensee to carry out that function;
or
(b) a private certifying function means licensed as mentioned in paragraph
(a) and endorsed under chapter 6, part 3, division 4 (Private
certification endorsements), in a way that allows the licensee to carry
out that function.
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approval documents, for a building development application, means each
of the following:
(a) the decision notice or negotiated decision notice for the application;
(b) a copy of the plans, drawings and specifications and other documents
and information lodged by the applicant, stamped approved or
otherwise endorsed by the assessment manager;
(c) a list of required fire safety installations and required special fire
services applying to the building work;
(d) certificates relied on to decide the application;
(e) a list, in the approved form, of any of the following information relied
on by the private certifier to decide the application--
(i) the physical characteristics and location of infrastructure related
to the application;
(ii) local government easements, encumbrances or estates or interests
in land likely to be relevant to the application;
(iii) site characteristic information likely to affect the assessment of
the application (examples include information about proposed
road or footway works, stormwater connections, vehicle
crossings, heritage listed buildings, discharge of swimming pool
backwash water, flood levels, driveway gradients, the capacity of
sewerage, stormwater and water supply services, erosion control
districts, contaminated land, land-slip and mine subsidence
areas);
(f) if the application relates to building work that uses an alternative
solution a notice of reasons for any approval.
assessment manager for a building development application under section
5F (Who is the assessment manager for a building development
application) means generally the assessment manager for the application,
as defined under IPA, section 3.1.7. However, if under section 6R, a private
certifier (class A) is performing functions for the application, the certifier is
the assessment manager for the application.
assistant building surveyor means a building certifier who, under section
10, is licensed as an assistant building surveyor.
BCA (Building Code of Australia) is defined in 5G as the edition, current
at the relevant time, of the Building Code of Australia (including the
Queensland Appendix) published by the body known as the Australian
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Building Codes Board. It includes the edition as amended from time to
time by amendments published by the board.
BCA classification for a building, means its classification under BCA. The
BCA classifications are contained in part A3 of the BCA.
BCA classification change for a building under section 8W is:
(a) a change to the use for which the building was designed, built or
adapted to be used of an extent that alters its BCA classification; or
(b) if, under section 8W(d), a certificate of classification for the building
states a restriction on its use or occupation - a change in circumstances
that affects the way the building complies with the restriction.
An example of a BCA classification change is a change in the nature or
quantity of materials displayed, stored or used in a building that increases
the risk to life or safety, requiring building work to be carried out to comply
with the BCA.
budget accommodation building is defined for chapter 7 (Fire safety for
budget accommodation buildings) in section 12B.
building is a fixed structure that is wholly or partly enclosed by walls and is
roofed and includes a floating building and any part of a building.
building assessment provisions under section 5Y(1) refers to the
following laws and other documents (subject to how they apply under
Chapter 4, division 1 and subject to any variation under division 2), that
must be complied with for building assessment work:
(a) IDAS;
(b) chapters 3 and 4 of the Act;
(c) the fire safety standard;
(d) regulations made under the Act relating to building assessment work
or self-assessable building work;
(e) any relevant local laws, planning scheme provisions or resolutions
made under section 6 (Local laws, planning schemes and local
government resolutions that may form part of the building assessment
provisions) and section 6A (Alternative planning scheme provisions to
QDC boundary clearances and site cover provisions for particular
buildings);
(f) the BCA;
(g) the QDC.
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building assessment work under section 5B refers to the assessment under
the building assessment provisions, of a building development application
for compliance with those provisions.
building certifier under section 5C means an individual who is licensed as
a building certifier under chapter 6, part 3. The term includes a reference to
a private certifier and a former building certifier.
building certifying function under section 5E means doing any of the
following:
· Carrying out building assessment work, other than those for which a
concurrence agency has jurisdiction under section 6N;
· The giving of a compliance certificate stating that the building work
complies with the building assessment provisions;
· Inspecting the building work for a building development approval for
the purpose of certifying the work;
· The giving of final inspection certificates or certificates of
classification.
These functions stop being building certifying functions on the giving of
the final inspection certificate or the certificate of classification for the
building.
Building Code of Australia (BCA) is defined in 5G as the edition, current
at the relevant time, of the Building Code of Australia (including the
Queensland Appendix) published by the body known as the Australian
Building Codes Board. It includes the edition as amended from time to
time by amendments published by the board.
building development application under section 5A is an application for
development approval under IPA to the extent it is for building work.
building development approval means a development approval to the
extent it is for building work.
building site means a place where building work has been, is being, or is
about to be, carried out.
building surveying technician means a building certifier who, under
section 10K, is licensed as a building surveying technician.
building surveyor means a building certifier who, under section 10K, is
licensed as a building surveyor.
building work is defined in section 5 as:
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1. building, repairing, altering, underpinning (whether by vertical or
lateral support), moving or demolishing a building or other structure:
2. excavating or filling that is for, or incidental to, building work outlined
under 1, or any other excavation or filling that could adversely affect
the stability of a building or other structure on the same or adjoining
land;
3. supporting (whether vertically or laterally) land for building activities
mentioned in 1; or
4. other work regulated under the building assessment provisions (other
than IDAS).
Building work includes a management procedure or other activity relating
to a building or structure even though the activity does not involve a
structural change to the building or structure. An example would be a
management procedure under the fire safety standard relating to a budget
accommodation building.
certificate of classification means for a building or structure, a certificate
about its BCA classification, given under chapter 5, that, under section 8T,
is still in force. The term includes an interim certificate of classification
given under section 8R.
certificate requirements is defined under section 8P(2) as the requirement
that a building certifier must, as soon as practicable, ensure the owner of
the building is given a certificate of classification by a building certifier that
complies with the requirements under section 8H for a certificate of
classification.
certify, for building work, means certifying under the Act that the work
complies with the building development approval.
class of a building or structure is its particular BCA classification.
client of a private certifier is defined under section 9Y(5)) as the person for
whom private certifying functions are agreed to be performed under an
engagement of a private certifier.
code of conduct is defined under section 9P(1) as the document called
`Code of Conduct for Building Certifiers' that was made by the chief
executive on 20 October 2003 and tabled in the Legislative Assembly on 14
November 2003, as amended or replaced from time to time under that
section.
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complaint is a complaint made under chapter 6 (Provisions about private
certifiers and other building certifiers), about a building certifier or former
building certifier.
compliance certificate is a certificate under section 5E(b) stating that
work, except for work that must be assessed by a compliance agency,
complies with the building assessment provisions. The giving of a
compliance certificate is a building certifying function.
complies, with the BCA or QDC, under section 5I means complying with
the BCA or QDC (the Code) for all relevant performance requirements
under the code. Building work complies with a relevant performance
requirement only if it achieves a relevant building solution under the code
for the requirement. A relevant building solution is achieved for a
performance requirement only by complying with the relevant
requirement.
If the code is the BCA, complying is to be with the relevant deemed-to-
satisfy provisions under the BCA for the performance requirement.
If the code is the QDC, complying is to be with the relevant acceptable
solution under the QDC for the performance requirement, or formulating
an alternative solution that complies with the performance requirement, or
is shown to be at least equivalent to the relevant requirement; or a
combination of both.
concurrence agency means a concurrence agency under IPA. A
concurrence agency for a development application, means an entity
prescribed under a regulation as a concurrence agency for the application,
or if the functions of the entity in relation to the application have been
devolved or delegated to another entity, the other entity.
condition time is defined in section 8H(1) for chapter 4, part 7, division 2
as the time set under a condition of a building development approval within
which the development or aspect of a development must be completed.
convicted of a relevant offence means a conviction, other than a spent
conviction, for an offence--
(a) under this Act or another relevant Act, or
(b) involving fraud or dishonesty; or
(c) against a law of another State if the act or omission that constitutes
the offence would, if it happens in Queensland, be an offence under
this Act or another relevant Act; or
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(d) committed anywhere in Australia before this section commenced that,
apart from the non-commencement of this section, would have been
an offence mentioned in paragraph (a) or (b).
A conviction includes a finding of guilt, or the acceptance of a plea of
guilty, by a court, whether or not a conviction is recorded. A spent
conviction is a conviction for which the rehabilitation period under the
Criminal Law (Rehabilitation of Offenders) Act 1986 has expired and not
been revived under section 11 of that Act.
decision notice, for a development application, means a decision notice
under IPA, section 3.5.15.
demolition or removal completion condition under section 7L(4) provides
that within 6 months of giving the approval the building work must be
completed.
development approval endorsement under section 10T(b) means if the
licence has a private certification endorsement - perform the function under
section 6R of issuing building development approvals.
enforcement action means the giving, under chapter 6, of a show cause
notice and enforcement notice and taking action under IPA, chapter 4, part
3, divisions 2 and 3.
engagement, of a private certifier, under section 9Y(4) means a contract
entered into by a private certifier or private certifier employer is an
engagement of the private certifier or certifiers who under the contract are
to perform private certifying functions.
final inspection certificate under section 5E(d)(ii) means a certificate
given by the building certifier in the approved form for the final stage of
building work. If a building certifier is satisfied, on an inspection carried
out under best industry practice, that the work complies with the building
development approval, the certifier must ensure the owner of the building
is, within the required period, given the certificate.
fire safety installation for a building or structure, means any of the
following items for the building or structure:
(a) structural features (including access panels through fire-rated
construction, fire control centres, fire curtains, fire dampers, fire
shutters and fire doors, fire windows, penetrations through fire-rated
construction, structural fire protection, and systems required to have a
fire-resistance level):
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(b) fire protection systems (including air-handling systems, fire detection
and alarm systems, smoke and heat venting systems, smoke exhaust
systems, special automatic fire suppression systems, sprinklers, and
stairwell pressurisation systems)
(c) fire fighting equipment (including fire extinguishers, fire hose reels,
fire hydrants, and fire mains);
(d) occupant safety features (including emergency lifts, emergency
lighting, emergency power supply, emergency warning and
intercommunication systems, exit door hardware, exit signs, fire
doors, smoke proof doors, and solid core doors); and
(e) other features (including services provided under conditions imposed
under section 7T, services required under BCA, clause E1.10, and
vehicular access for large isolated buildings).
However this term does not include interconnected alarms in budget
accommodation buildings to which chapter 7, part 3 applies.
fire safety standard, for chapter 7 (Fire safety for budget accommodation
buildings), is defined in section 12C as part 14 of the QDC and any other
standard prescribed under a regulation.
fire safety system, for chapter 7 (Fire safety for budget accommodation
buildings), is defined in section 12A. A fire safety system for a building
means the building's features, and procedures established for the building,
providing for all or any warning to the building's occupants about a fire
emergency, the safe evacuation of the building's occupants and
extinguishing or restricting the spread of fire in the building.
floor area, for a building, means the gross area of all floors in the building
measured over the enclosing walls other than the area of a veranda, roofed
terrace, patio, garage or carport in or attached to the building.
former building certifier means an individual who was a building certifier
when a building certifying function that is now the subject of a complaint,
was performed. However this individual is not licensed when the
complaint, or the decision taken about the complaint under section 40(1), is
made; or when the Commercial and Consumer Tribunal makes an order
under section 45A.
IDAS means the system detailed in IPA chapter 3, for integrating State and
local government assessment and approval processes for development.
imposed condition is defined under section 7J(4) as the conditions imposed
under Chapter 4, part 5, division 1 on particular building development
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approvals. These imposed conditions are taken to have been imposed on
the approval and be relevant and reasonable for IPA, section 3.5.30.
information notice, about a decision, means a notice stating the decision,
and the reasons for it, all rights of appeal against the decision under this
Act or IPA, and how the rights are to be exercised.
inspection documentation, refers to the following documents relating to
inspection of building work that are given for the building work:
(a) a compliance certificate;
(b) a notice, given to the builder for the work by or for the building
certifier about an inspection for the work;
(c) a certificate about an inspection under the Building Act;
(d) a final inspection certificate;
(e ) a certificate of classification;
(f) a certificate relating to the inspection of the building work relied on by
the building certifier.
IPA means the Integrated Planning Act 1997.
IPA Regulation means the Integrated Planning Regulation 1998.
licence means a licence as a building certifier, issued under part 3 of
chapter 6.
licensed builder means a licensed builder under the Queensland Building
Services Authority Act 1991.
local government building certifier means a building certifier appointed or
employed by the local government for the building, for a building
development application or for a development approval.
negotiated decision notice see IPA, section 3.5.17(2).
notice means a written notice.
performance requirements means any of the following:
· the performance requirements under the BCA;
· the performance criteria under in the QDC; or
· a requirement for the assessment of building work for which a
discretion may need to exercised under this Act.
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planning scheme under IPA section 2.1.1. means an instrument made by a
local government under division 3 (Making, amending and consolidating
planning schemes).
private certification endorsement is defined under section 10T(a). A
private certification endorsement may be made only if the applicant has the
insurance for private certification prescribed under a regulation, is a
building surveyor or assistant building surveyor and has development
approval endorsement which may only be made if the applicant has
satisfactorily completed the course prescribed under regulation.
private certifier under section 5D(1) means an individual who is a building
certifier who has private certification endorsement which enables the
private certifier to perform building certifying functions as a private
certifier.
private certifier (class A) under section 5D(2) means a private certifier
whose licence has development approval endorsement.
private certifier (class B) under section 5D(3) means a private certifier
whose licence does not have development approval endorsement.
private certifier employer under section 9Y (1)(b) means a person or public
sector entity who employs private certifiers and may enter into a contract to
provide the services of any of the private certifiers to perform private
certifying functions for others.
private certifying functions under section 6O(3) means functions that are
in addition to the building certifying functions.
properly made application, for a building development application, means
a building development application that is a properly made application
under IPA, and complies with any relevant additional requirements under
chapter 3 for building development applications.
QDC (Queensland Development Code) under section 5H is the mandatory
parts of the QDC as listed in Schedule 1 to the Act, or as amended and
prescribed under a regulation, ie the proposed Building Regulation 2006.
QDC boundary clearance and site cover provisions are defined under
section 5H(1)(a) as the aspects of parts 11 and 12 of the QDC that relate to
boundary clearances and site cover and are part of the mandatory
provisions of the QDC.
QFRS means the Queensland Fire and Rescue Service established under
the Fire and Rescue Service Act 1990.
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Queensland Development Code (QDC) under section 5H is the mandatory
parts of the QDC as listed in the Schedule to the Act, or as amended and
prescribed under a regulation, ie the proposed Building Regulation 2006.
referral agency means a referral agency as defined under IPA, schedule 10
dictionary, and includes a concurrence agency and an advice agency.
register, when used as a noun, means the register of building certifiers that
the BSA keeps under section 11L.
self - assessable building work under section 5P(1) is building work that is
declared to be self-assessable for IPA, schedule 8, part 2, table 1 if it is
prescribed under a regulation. It must also generally comply with the BCA
and QDC. If any alternative provisions under section 6A apply to the
building work, it must comply with the alternative provisions and the
provisions of the BCA and QDC, other than the QDC boundary clearance
and site cover provisions.
show cause notice is defined for chapter 6, part 3 in section 11H(1), and for
chapter 9 in section 21(1).
show cause period is defined for chapter 6, part 4 in section 11H(2)(f), and
for chapter 6, part 5 in section 41A(2)(c).
site works means building work of a type mentioned in section 5(1)(b) or
(c) and drainage for the building work, other than drainage that is plumbing
work or drainage work under the Plumbing and Drainage Act 2002.
special fire service includes:
(a) fire mains (other than fire mains that connect only fire hose reels;
(b) fire hydrants;
(c) sprinklers (including wall-wetting sprinklers);
(d) special automatic fire suppression systems (including foam, deluge
and gas flooding systems);
(e) fire detection and alarm systems (other than stand-alone smoke alarms
not required to be interconnected or connected to a fire indicator
panel);
(f) fire control centres;
(g) stairwell pressurisation systems;
(h) air-handling systems used for smoke control;
(i) smoke and heat venting systems;
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(j) smoke exhaust systems;
(k) emergency warning and intercommunication systems;
(l) emergency lifts;
(m) vehicular access for large isolated buildings;
(n) services provided under conditions imposed under section 7T; and
(o) services required under the BCA, clause E1.10.
special structure means a structure that can not be classified under the
BCA, part A3.
State includes territory.
substantially completed for a building means that it meets all the
recruitments under section 8O which contains a list of items, that when
completed will mean that the building is substantially completed. Building
includes alterations to all or part of a building.
supporting documents under section 5R refers to the documents required
under part 1 of Chapter 3, that are needed for the purposes of section
3.2.1(2)(b) of IPA, to support a building development application.
variation application under section 6F(1) refers to where building work is
proposed to be carried out, is being carried out or has been carried out and
the building work will not, or does not, comply with a provision of any of
the building assessment provisions, other than IDAS. In these
circumstances, a person may apply (the variation application) to the chief
executive to vary how the provision applies to the building work.
Clause 70(4) amends the following definitions to omit the term `the
Integrated Planning Act 1997' and replace it with `IPA'; building and
development tribunal, development application, development approval,
development permit and local planning instrument.
Clause 70(5) omits from the definition residential land the reference to the
Standard Building Regulation.
Clause 70(6) amends the definition unsatisfactory conduct in paragraph
(a) by replacing the words `building certifying functions' with the words'
building or private certifying functions'.
Clause 70(7) updates an incorrect cross reference from the definitions
construct, fencing standards and pool owner.
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Part 3 Amendment of Integrated Planning Act
1997
71 Act amended in pt 3
Clause 71 provides for the amendment of the Integrated Planning Act 1997
in part 3.
72 Amendment of s 1.3.5 (Definitions for terms used in
development)
Clause 72 amends section 1.3.5, definition of building work, paragraph
1(b) to include work that is regulated under the building assessment
provisions set out in section 5Y of the Act. The definition operational
work, item 2, paragraph (a) has also been amended to clarify that it applies
to items (a) to (f) and (j) where any element that is building work, other
than building work for the reconfiguration of a lot, drainage work or
plumbing work.
Clause 72 also inserts section 1.3.5(2) that provides for the definition of
building work in subsection (1), paragraph (b), work includes a
management procedure or other activity relating to a building or structure
even though the activity does not involve a structural change to the building
or structure. This amendment is intended to cover matters that are
management procedures under the fire safety standard, relating to a budget
accommodation building.
73 Insertion of new s 3.2.2B (Approved operational works for
retaining walls required for certain developments)
Clause 73 inserts a new section 3.2.2B after section 3.2.2A to specify that
retaining walls that are part of an application for a reconfiguration of a lot
are to be considered as an application for operational works. This is
intended to ensure that the construction of the retaining walls are
considered at the same time as the application for the reconfiguring of the
lot and are assessed for structural adequacy. This amendment is further
intended to remove the confusion about when an application for a retaining
wall is required in relation to an application for building development
approval for a building on the lot. An assessment manager will also be able
to access and rely on any certification for the retaining wall at the time a
development application for building work is made. The ability will also
exist for an assessment manager to establish if the building work proposed
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under a development application will impact on the structural adequacy of
the retaining wall.
74 Amendment of s 3.3.15 (Referral agency assesses
application)
Clause 74 amends section 3.3.15(2)(b) by replacing `Standard Building
Regulation' with `building assessment provisions'.
75 Amendment of s 3.3.16 (Referral agency's response)
Clause 75 amends section 3.3.16 to replace `referral agency' with
`concurrence agency'.
Clause 75 also inserts a new subsection (4) into section 3.3.16 to specify
that if a response under subsection (1) is not provided for certain matters
relating to a building development application, it is deemed to be refused.
The matters relating to the building development application include
decisions by the local government as a concurrence agency except for
amenity and aesthetics matters.
76 Amendment of s 3.3.17 (How a concurrence agency may
change its response)
Clause 76 amends section 3.3.17 by inserting a reference to `section 3.3.16'
as a whole. This amendment clarifies that all of the provisions of 3.3.16
are excluded instead of only subsection (1).
77 Amendment of s 3.3.18 (Concurrence agency's response
powers)
Clause 77 amends section 3.3.18 by renumbering Section 3.3.18(6) and (7)
with section 3.3.18(7) and (8).
Clause 77 also amends section 3.3.18 by inserting subsection (6) about the
extent of a local government's concurrence agency's jurisdiction about
assessing the amenity and aesthetic impact of a building or structure. The
amendment clarifies the concurrence agency may only tell the assessment
manager to refuse the application if the concurrence agency considers the
following:
· That the building or structure, when built, will have an extremely
adverse effect on the amenity; or
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· The likely amenity of its neighbourhood or the aesthetics of the
building or structure, when built, will be in extreme conflict with the
character of its neighbourhood.
These provisions were originally in section 51 of the SBR and have been
moved to IPA to avoid duplication, under another Act, of the concurrence
agency's role in respect to amenity ands aesthetics.
Section 3.3.18(8) has also been amended to reflect renumbering and to
include a reference to the new subsection (4) under the provisions of
section 3.3.16(4).
78 Amendment of s 3.5.13 (Decision if application requires
code assessment)
Clause 78 amends section 3.5.13(4) and removes the provision subsection
(a) relating to an assessment manager's decision about building work that
must not conflict with the Building Act 1975.
79 Amendment of s 3.5.15 (Decision notice)
Clause 79 amends section 3.5.15 to clarify that the assessment manager
must give designated persons written notice of the decision. The
amendment also includes a new section 2B which requires approved
drawings to be included in the decision notice if it is for building
development approval. The term `designated person' is also defined for
the purposes of applying the section.
80 Amendment of s 4.2.1 (Establishing building and
development tribunals)
Clause 80 amends section 4.2.1(4) to remove the reference to the Standard
Building Regulation 1993.
81 Amendment of s 4.2.7 (Jurisdiction of tribunals)
Clause 81 amends section 4.2.7 (2)(a) to clarify that appeals under the
provisions of the Building Act 1975 do not extend to those matters that may
or must be decided by the Building Services Authority. Matters decided by
the Building Services Authority are generally dealt with by the
Commercial and Consumer Tribunal set up under the Commercial and
Consumer Tribunal Act 2003.
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82 Replacement of s 4.2.12A (Appeals for plumbing and
drainage matters)
Clause 82 replaces section 4.2.12A (Appeals for building and plumbing
and drainage matters), and enables a person to appeal to a building and
development tribunal established under section 4.2.1 of IPA. The grounds
for appeal for building, plumbing and drainage matters include:
· If a person has been given or is entitled to be given an information
notice under the Building Act 1975 about a decision other than a
decision under that Act made by the BSA; or
· If a person has been given or is entitled to be given an information
notice under the Plumbing and Drainage Act 2002 about a decision
under part 4 or 5 of that Act; or
· If a person was an applicant for a building development approval and
is dissatisfied with a decision under the Building Act 1975 by a
building certifier or referral agency about an inspection of building
work the subject of the approval.
· The lack of a decision by the local government within the decision
period for certain application under the Building Act 1975.
The appeal to the tribunal must be started within 20 days after the day the
person is given the notice of the decision.
Section 4.2.12A consolidates various existing appeal rights under the
Building Act 1975 and the SBR to give a right of appeal to a person against
a building certifier's adverse decision about an inspection. Depending on
the stage of inspection, adverse decisions are required to be given either by
notice or an information notice.
An information notice about a decision is defined in the Building Act 1975
to include a notice stating the decision and the reasons for it, all rights of
appeal against the decision and how those rights are to be exercised.
Information notices are required to be given by a building certifier for an
adverse final inspection decision. For all other inspection decisions,
certifiers are required to give written notice. Because of the number, timing
and place of decisions made about building inspections, it would be
unrealistic to require certifiers to give information notices for every adverse
decision. A person may appeal any building certifier decision regardless of
whether the decision is given by an information notice or written notice.
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83 Amendment of s 4.3.18 (Proceedings for offences)
Clause 83 amends section 4.3.18 by deleting the reference to the Standard
Building Regulation 1993 in section 4.3.18(3)(a) and replacing it with the
term `building assessment provisions'.
84 Amendment of s 4.3.22 (Proceeding for orders)
Clause 84 amends section 4.3.22 by deleting the reference to the Standard
Building Regulation 1993 in section 4.3.22(2) and replacing it with the
term `building assessment provisions'.
85 Omission of ch 5, pt 3 (Private certification)
Clause 85 omits chapter 5 part 3 from IPA as its provisions have been
incorporated into the Building Act. This part principally deals with the way
a private certifier operates in terms of approving building development
work, being engaged for certification services and other function relating to
their obligations.
The Building Act 1975 is the principal Act that covers the licensing and
operating parameters for private certifiers. The relocation of these
provisions from IPA to the Building Act 1975 has removed any confusion
about the application of building legislation to private certification.
Furthermore the relocation provides a logical application of the technical
and administrative functions about building development approvals as
carried out by private certifiers.
86 Amendment of s 5.7.2 (Documents local government must
keep available for inspection and purchase)
Clause 86 amends section 5.7.2 (1) to clarify the type of copy of a
document that a local government must keep available for inspection or
purchase. The term `certified copy' has been replaced with the term
`designated type of copy'. This new term specifies that a copy of a
document for specific matters must be certified or it may otherwise be an
ordinary copy.
Section 5.7.2(1) has also been amended to include other documents such as
planning scheme maps for bush fire prone areas, register of resolutions for
land liable to flooding, particular records the local government must keep
under the Building Act 1975 and development information about building
development applications. To avoid duplication local governments are not
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Building and Other Legislation Amendment Bill 2006
required to keep information about development applications if that
information can be purchased elsewhere.
The amendments to this section also clarify that for items (t) to (y) a local
government does not have to make the documents available under certain
circumstances. The circumstances include matters about the security of
information in the documentation and if there are any issues of privacy
contained within them. A local government only has to be reasonably
satisfied that either of these circumstances is present for it to choose to not
make the documents available.
87 Replacement of s 5.7.3 (Documents local government must
keep available for inspection only)
Clause 87 replaces section 5.7.3 to include the Building Act 1975 and
Building Code of Australia as documents the local government must keep
available to the public for inspection. This amendment is intended to have
local governments make available documents that are related to building
developments that are generally difficult for the public to access easily.
The BCA is subject to annual amendments and it is therefore not
reasonable to expect members of the public to have to purchase it on any
regular basis.
88 Amendment of s 5.7.4 (Documents assessment manager
must keep available for inspection and purchase)
Clause 88 amends section 5.7.4 by adding new items to subsection (2).
This item provides that a local government must keep documents relating
to a building development application made to a private certifier (class A)
or the local government itself. The documents include the approval
documents and inspection documents defined under the Act.
Amendments to this section also provide that local governments are not
obliged to make documents available if they contain information that is
sensitive to the security or privacy of an individual. Local governments
must be reasonably satisfied the information would be detrimental to the
rights and security of individuals. An example of the information that is
sensitive to the security and privacy of an individual could be someone's
residential address or credit details etc.
Amendments to this section also provide that local governments are
obliged to keep building approval documents and inspection documents for
a specific period of time. Local governments must keep building approval
documents and inspection documents for all class 10 buildings and
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Building and Other Legislation Amendment Bill 2006
structures, except for swimming pool fences, for a period of 10 years or
until they are demolished. For all other classes of buildings and swimming
pool fences the documents must be kept until the buildings are either
demolished or removed.
The intent of this amendment is to ensure building approval and inspection
documents are available to the public throughout the life of a building. The
availability of these documents will provide comprehensive details of a
building's approval and inspection history. This will help identify any
work on a property that has not been approved or has not been properly
inspected and is available for all future purchasers or owners of a property.
89 Amendment of s 5.7.6 (Documents chief executive must
keep available for inspection and purchase)
Clause 84 amends section 5.7.6 and clarifies that the chief executive must
keep available for inspection and purchase a copy of the Queensland
Development Code. The amendment further clarifies that the chief
executive must not charge a fee for a copy of the Queensland Development
Code.
90 Amendment of s 6.1.1 (Definitions for pt 1)
Clause 90 amends section 6.1.1 by replacing the term `Standard Building
Regulation' with the term `building assessment provisions'.
91 Amendment of s 6.1.29 (Assessing applications (other than
against the Standard Building Regulation))
Clause 91 amends section 6.1.29 to replace the term `Standard Building
Regulation' in the heading with `building assessment provisions'.
92 Amendment of s 6.1.30 (Deciding applications (other than
under the Standard Building Regulation)
Clause 92 amends section 6.1.30 to replace the term `Standard Building
Regulation' in the heading with `building assessment provisions'.
93 Amendment of sch 8 (Assessable development and self-
assessable development)
Clause 93 amends schedule 8 by replacing references to `Standard Building
Regulation' with `Building Act 1975'.
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94 Amendment of sch 8A (Assessment manager for
development applications)
Clause 94 amends schedule 8A to clarify that in table 1 item 1(a)(ii)
assessable building work under the Building Act 1975 is assessable against
the building assessment provisions.
95 Amendment of sch 10 (Dictionary)
Clause 95 amends schedule 10 (Dictionary)
Clause 95(1) omits the following definitions:
building referral agency, private certifier, replacement private certifier
and Standard Building Regulation.
Clause 95(2) inserts the following definitions:
building assessment provisions see the Building Act 1975, section 5Y(1).
building certifier means an individual who is licensed as a building
certifier under the Building Act 1975. The term includes a reference to a
private certifier and a former building certifier.
Building Code of Australia (BCA) is the edition, current at the relevant
time, of the Building Code of Australia (including the Queensland
Appendix) published by the body known as the Australian Building Codes
Board. It includes the edition as amended from time to time by
amendments published by the board.
building development application means a development application to the
extent it is for building work.
private certifier means a building certifier whose license under the
Building Act 1975 has private certification endorsement under that Act.
private certifier (class A) means a private certifier whose license under the
Building Act 1975 has development approval endorsement under that Act.
Clause 95(3) amends the definition of assessing authority to provide that if
a private certifier (class A) has been engaged to perform private certifying
functions under the Building Act 1975 the private certifier is an assessing
authority.
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Building and Other Legislation Amendment Bill 2006
Part 4 Amendment of Plumbing and Drainage
Act 2002
96 Act amended in pt 4
Clause 96 provides that this part and schedule 2 amend the Plumbing and
Drainage Act 2002.
97 Amendment of s 91 (Applying for chief executive approval)
Clause 97 provides that a person can not apply for a chief executive
approval for a chemical, composting or incinerating toilet. However the
requirements of the compliance assessment process under Part 4 do apply
to chemical, composting and incinerating toilets.
98 Amendment of s 125 (Restriction on building or installing
particular on-site sewerage treatment plant)
Clause 98 clarifies that it is not an offence to build or install an on-site
sewerage treatment plant that consists only of a chemical, composting or
incinerating toilet without a chief executive approval. No application can
be made for chief executive approval for these types of toilets.
99 Amendment of s 128E (Restrictions on operating particular
on-site sewerage treatment plant)
Clause 99 provides that it is not an offence for failure to comply with
conditions of a chief executive approval for a chemical composting or
incinerating toilet. No application can be made for chief executive approval
for these types of toilets.
100 Insertion of new pt 10, div 4
Clause 100 inserts new part 10 division 4 after section 171.
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Building and Other Legislation Amendment Bill 2006
New Division 4 - Transitional provisions for Building
and Other Legislation Amendment Act 2006
New section 172 (Provisions for chemical, composting or
incinerating toilets)
Section 172 provides that an application for chief executive approval for a
chemical, composting and incinerating toilet made before the
commencement of this section is, on the commencement, taken to be a
withdrawn application.
The section also provides that section 125, in force from 1 March 2006 to
the commencement of this section, never applied to an on-site sewerage
treatment plant that consists only of a chemical, composting or incinerating
toilet.
Part 5 Amendment of other Acts
Clause 101 is the authorising section for the schedule that makes
consequential amendment of other Acts.
Schedule Consequential and minor amendments of other
Acts
Brisbane Markets Act 2002
1. In the definition building work in the schedule, paragraph (b) is
substituted to provide for work regulated under the building
assessment provisions under the Building Act 1975, other than IDAS.
Fire and Rescue Service Act 1990
2. In section 104A, in the definitions Building Code of Australia and fire
safety installation, the reference to the `Standard Building Regulation'
is replaced with `Building Act 1975'.
3. In section 104A, the definition Standard Building Regulation 1993 is
omitted.
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Building and Other Legislation Amendment Bill 2006
4. In section 104FB(1), `section 12Q(2)' is replaced with `section
5V'(Application for building work for budget accommodation
building).
Local Government Act 1993
5. In Section 761, in the definition of building certifying function, the
reference to `section 3(1)' is replaced with `section 5C'.
6. In section 807(2), in the definition of building certifier, the reference
to `section 3(1)' is replaced with `section 5C'.
7. In section 1071A(1)(e), the term `, the Integrated Planning Act 1997,
chapter 5, part 3' is omitted.
8. In sections 1096(1)(d) and 1101(2)(a), the term `part 2A' is replaced
with `chapter 7'
Plumbing and Drainage Act 2002
9. In section 62(1), the term `section 57' is replaced with `section 56'.
10. In the schedule, the definition chief executive approval is amended by
replacing "section 91" with "section 91(1)".
11. In the schedule, the definition testing approval is amended by
replacing "section 91(e)" with "section 91(1)(e)".
Private Health Facilities Act 1999
12. In schedule 3, in the definition certificate of classification, the term
`Standard Building Regulation 1993, part 9.' is omitted and replaced
with `Building Act 1975, section 5H'.
Public Health (Infection Control for Personal Appearance
Services) Act 2003
13. In the schedule 2, in the definition Queensland Development Code,
the term `Standard Building Regulation 1993, section 6A' is replaced
with `Building Act 1975, section 5H'.
Queensland Building Services Authority Act 1991
14. In Schedule 2, in the definition of Building Code of Australia, the term
`section 3' is replaced with `section 5G'.
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Building and Other Legislation Amendment Bill 2006
Southern Moreton Bay Islands Development Entitlements
Protection Act 2004
15. In sections 4(a) and 7(2), the reference to `Standard Building
Regulation 1993' is replaced with `Building Act 1975'.
© State of Queensland 2006