SUMMARYThis paper examines the proposed reforms to building regulation and
certification in the NSW planning system. Commentary from selected stakeholders
provides some analysis of the proposed system; these comments are too complex
and extensive to be encapsulated in this summary. While a broad cross-section
of stakeholders was selected, this paper does not purport to represent all
stakeholder positions on the White Paper and Exposure Bills. Appendices to the
paper contain a summary of the proposed system, a timeline of key building
regulation and certification developments and a summary of the less significant
proposed reforms.
The proposed planning reforms
Proposed reforms to the NSW planning system are set out in a White Paper and
two Exposure Bills – the Planning Bill and the Planning Administration
Bill. The White Paper contains six areas of reform:
(1) Delivery culture;
(2) Community participation;
(3) Strategic planning;
(4) Development assessment;
(5) Infrastructure; and
(6) Building regulation and certification.
Building regulation and certification is a component of the planning system in
which accredited public and private certifiers certify building and subdivision
works throughout the building life cycle, from design through construction to
ongoing compliance for the life of a building. The White Paper contains a broad
suite of reforms, only some of which are included in the Exposure Bills.
[2.1]
The NSW building industry regulatory framework
The NSW building industry regulatory framework is much broader than building
regulation and certification as contained within the NSW planning system. Key
statutes include the Building Professionals Act 2005, Environmental
Planning & Assessment Act 1979 and Home Building Act 1989.
Several different bodies administer the legislation, including the Building
Professionals Board (BPB), NSW Fair Trading and Division of Local Government.
[3.1.1]
Professionals involved in the building industry are either licensed by one
of several NSW administrative bodies or are self-regulated. The administrative
bodies include the BPB, NSW Fair Trading and WorkCover.
In November 2012, the National Occupational Licensing Authority was
established in accordance with the Intergovernmental Agreement for a National
Licensing System for Specified Occupations. This Authority will implement the
National Occupational Licensing System over the next couple of years. The
System will licence a range of professionals including those involved in the
building industry. [3.1.2]
Proposals for a NSW Building Commission
The NSW building industry has been subject to numerous reviews over the past
ten years. Several reviews have concluded that the NSW building regulatory
framework is fragmentary and complex. These reviews, together with several
submissions to the planning reforms, have recommended establishment of a NSW
Building Commission to provide a coordinated and centralised administrative
system for all key building industry groups. [3.2 & 4.6.1]
Overview of building regulation and certification in the current and
proposed planning systems
Aspects of building regulation and certification were first combined with
the planning system by the Environmental Planning & Assessment Amendment
Act 1997. Under the current system, the Environmental Planning &
Assessment Act 1979 (EP&A Act) provides for building and subdivision
certificates to be issued by accredited public and private certifying
authorities (or certifiers). The certificates permit works to be undertaken
and/or certify compliance with regulatory requirements. Certifiers are
accredited by the Building Professionals Board, which is established under the
Building Professionals Act 2005. The White Paper reforms seek to address
criticism of the system that has arisen due to issues with the quality and
safety of buildings. [4.1 & 4.2]
The EP&A Act sets out the responsibilities for ‘certifying
authorities’ and ‘principal certifying authorities’.
Certifying authorities may issue complying development certificates,
construction certificates and compliance certificates. Certifying authorities
may also issue occupation certificates and subdivision certificates where they
have been appointed as the ‘principal certifying authority’ for a
building or subdivision work. Principal certifying authorities inspect building
and subdivision work during the course of construction to ensure it complies
with regulatory requirements. [4.3.1]
In order to reduce consumer confusion regarding the roles of different
certifying authorities, the White Paper proposes to combine the roles of
‘certifying authority’ and ‘principal certifying
authority’. In the new system, building certifiers will certify building
works and subdivision certifiers will certify subdivision works. [4.3.2]
Four ‘Part 4A certificates’ may be issued by certifiers under
the EP&A Act: construction certificates; compliance certificates;
occupation certificates; and subdivision certificates. Certifying authorities
are also able to issue complying development certificates under the Act.
Complying development certificates constitute a development consent for
complying development, a class of development that can be addressed by
specified predetermined development standards. The new system retains these
certificates, with some modifications, and introduces a new certificate to
replace construction certificates for subdivision work – a subdivision
works certificate. [4.4 & 4.5]
The Building Professionals Board (BPB) accredits council certifiers and
private certifiers under the Building Professionals Act 2005 (the BP
Act). Key roles for the BPB include administration of an accreditation scheme,
investigation of complaints against certifiers, and auditing and disciplining
certifiers. The BP Act and the BPB’s accreditation scheme are also
currently being reviewed. [4.6]
Proposed reforms contained in the Exposure Bills
The Exposure Bills only make provision for some of the White Paper reforms.
The most significant of these provisions are contained in the Planning Bill.
These include the following:
· The inclusion of a new legislative object relating specifically to building;
· Merger of the roles of certifying authority and principal certifying
authority;
· Provision for building certifiers and subdivision certifiers;
· Planning approval will focus on planning issues, with building issues left
to the construction approval stage;
· Provision for a new subdivision works certificate;
· Development subject to a complying development certificate will no longer
need a construction certificate and/or subdivision works certificate;
· Occupation certificates will not be issued on an interim basis;
· Instead of an occupation certificate, a compliance certificate
(completion) will be issued for completed building work that cannot be occupied
(e.g. a swimming pool);
· A reduced liability period for residential building work from ten years to
six years; and
· A building manual addressing safety and compliance issues will be prepared
and maintained for certain buildings. [5.0, 6.0 & 7.0]
Proposed reforms only set out in the White Paper
The White Paper reforms not included in the Exposure Bills will presumably
be addressed in either the regulations or the concurrent review of the
Building Professionals Act 2005. The most significant of these include
the following:
· Expansion of the Building Professionals Board’s accreditation scheme to
include additional occupations involved in building design and construction,
including those professionals who design, install, commission and maintain
critical building elements;
· Increased support for certifiers on complex building matters through peer
review and enhanced decision support;
· Strengthened controls on certifiers through stronger disciplinary
guidelines, increased auditing and increased obligations to report
non-compliant building work;
· Improved application, assessment, determination and issue of complying
development certificates and construction certificates; and
· Increased certification of building work throughout the building life
cycle to ensure compliance with the development consent. [5.0, 6.0 &
7.0]