Posted on August 28, 2015 by

Reform of Building Regulation and Certification

This week the former NSW Treasury Secretary, Michael Lambert, released his Draft Report as part of the independent review of the Building Professionals Act 2005 (Draft Report).

The release of the Draft Report follows the period of consultation with stakeholders from both the public and private sectors on the discussion paper released in May this year.

Of the many recommendations made, the Draft Report regrettably does not propose changes to the current law regarding Construction Certificates (CCs) that have been issued inconsistently with a development consent. This omission was foreshadowed by the earlier discussion paper (see the earlier post A Missed Opportunity to Deal with Validity of Construction Certificates). By contrast, the Draft Report flags this issue as being better suited to a more specific and detailed review.

Now available for public comment until September, the Draft Report is intended for final submission in October.

What the Draft Report Does Say

The Draft Report sets out a reform agenda with the objective of identifying problems with the current system for building regulation and certification and making recommendations for a more effective system.

In summary, the Draft Report recommends reforms to building regulation and certification as follows:

• Establish a clear principles-based legislative framework and a more flexible and responsive regulatory approach (achieved by a new “Building Act” or a new section of the Environmental Planning & Assessment Act 1979 which consolidates building control provisions);
• Establish an Office of Building Regulation which combines the licensing of building practitioners and accreditation of certifiers under the authority of one statutory authority;
• Develop an information systems strategy which ensures access to and transparency of information regarding building regulation, and more efficient processing of building approvals;
• Enhance the accountability of certifiers to act in the public interest;
• Establish a partnership model between the State and local government, involving input from industry, which can develop, implement and monitor a protocol governing the relationship between, and respective roles and responsibilities of private certifiers and local councils;
• Establish a best-practice building regulation and certification process, with prioritisation of reform of the fire safety regulation system and certification of waterproofing;
• Progress the professionalisation of certifiers through an improved education and training program;
• Apply a broader range of possible sanctions for non-performing certifiers, including penalty infringement notices and demerit points;
• Enhance the coverage of professional indemnity insurance for certifiers; and
• Adequate resourcing for the Office of Building Regulation, the Builders Professional Board and local government with respect to building compliance, with an appropriate mixture of funding from general revenue, fines and industry funding.

What the Report Does Not Say

The Draft Report recognises the concerns raised in many submissions on behalf of Councils in relation to the issue of CC’s that are inconsistent with a development consent.

This issue is discussed in our earlier posts Decision on invalidity of inconsistent construction certificates will not be overturned by the High Court, Construction certificates – inconsistency with DA held not to effect validity and Inconsistency between Construction Certificates and Development Consents.

Nonetheless, the Draft Report calls for a separate and comprehensive inquiry into this issue, shifting responsibility to the Department of Planning and Environment (Department) to “determine whether it is necessary to effect legislative change or have the process of issuing CCs clarified” (see pg. 196).

Despite not taking the initiative in proposing changes to the legal consequences for the issuing of an inconsistent CC, the Draft Report nonetheless refocuses attention towards this issue, and indicates objections to the current law within local government.

It remains to be seen whether the Department will progress reforms in the area of inconsistent CC’s.