Download Submission - Ku-ring-gai Council

Contact: Anne Seaton
Reference: S07176 2015/140197
11 June 2015
Mr Michael Lambert
Building Professionals Act Review
GPO Box 39
SYDNEY NSW 2001
Dear Sir
Submission on the independent review of the Building Professionals Act 2005
Ku-ring-gai Council welcomes the opportunity to contribute to the review of the Building
Professionals Act and its performance, to identify possible improvements in the general
regulation of building within NSW and the associated certification scheme.
Having reviewed all 33 separate recommendations within the Discussion Paper, the following
comments are made;
1. Consolidation of legislative framework concerning building regulation into one part
of the EP& A Act
Council believes there is merit in consolidating the legislative framework for building sector
regulation into one part of the EP&A Act, expressed in plain English. The current legislative
regime has developed over a number of years and the building regulation components are
fragmented throughout the legislation, making it both difficult to locate and in some cases difficult
to interpret the intent.
2. Proposed legislation to consolidate all existing building legislation into one act
Council does not support the proposal to create a new piece of legislation to cover all building
legislation matters, the preference is for the legislation to be consolidated within one part of the
EP&A Act as proposed under Recommendation 1 above.
3. Proposed consolidation of building regulation administration
Council supports the formation of a special purpose Building Commission whose role would be to
consolidate the responsibilities that are now split across three separate State agencies,
(Department of Planning & Environment, NSW Building Professionals Board and NSW
Department of Fair Trading.) The proposed consolidation would provide both the community and
the industry with clarity in terms of identification of the responsible agency.
A single agency to deal with licencing of builders and other trades, regulation of certifiers,
investigation of complaints in regard to workmanship and on-going consumer protection would be
advantageous.
4. Building Professionals Board governance
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Council’s preference is for the Building Professionals Board to be integrated into the proposed
new state agency. However, if such is not to occur, Council believes it is appropriate for the
Board to be independently funded by the State of NSW and given the authority to employ its own
staff, rather than being reliant on the Department of Environment & Planning.
5. Statutory Board to continue to undertake functions as carried out by Building
Professional Board
Council considers that investigation of consumer complaints and initiation of disciplinary action
should remain the function of a statutory body rather than an advisory body, as this provides the
community with a level of confidence. The auditing function would also be seen as more
independent if undertaken by such a body.
6. Proposed Building Professionals Board / Local Government Reference Group
Council supports the proposal to clarify the roles, protocols and processes regarding the
relationship between private certifiers and Council. This must be underpinned with an appropriate
educational program across the greater community.
Council also seeks reform in terms of cost recovery, in instances where Council is forced to take
on compliance action in cases involving private certifiers.
7. Reporting of non- compliances by certifiers
Council does not believe that every non-compliance uncovered by a certifier needs to be reported
to it. Such a process would be unwieldy in terms of administration. Often non –compliances are
automatically addressed by the certifier with minimal delay.
When non-compliances are more substantial or require escalation due to continued occurrence,
referrals to Council should be accompanied with a robust and thorough report on proposed
management solutions. Councils should also be able to recover all costs associated with such
referrals.
8. Partnership model for certification and regulation enforcement
It is proposed that a partnership model similar to that currently in existence with NSW Food
Authority and local councils be established. Council is concerned that a similar base does not
exist in terms of building certification. Unlike food regulation, which is a shared responsibility
between State and Local governments, building regulation and certification is the responsibility of
both the private sector and local government.
9. Consumer protection within strata and community title developments
Council supports greater consumer protection with the proposed introduction of a defects bond
for all new strata and community title developments. It is suggested that the bond should be held
for a minimum period of three years, with a mandatory defects audit being undertaken within 18
months of occupation of the building.
10. Greater use of e-technology to improve access to information, processing and
management of systems
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Council is supportive of the greater use of e-technology to support systems. Centralised storage
of information would provide accurate data for all parties.
11. Standard forms for development applications, CCs, CDCs and OCs
Establishing a standard format for all development and building applications is supported. This
will allow for efficiency in the lodgement of digital applications. A further advantage is that when
changes to legislation are introduced, one central agency would be responsible for updating
forms and systems across the state; ensuring consistency across NSW.
12. Improving the planning and design approval stage
Council partly supports the recommendation, however believes that limiting development
approval to concept approval does not sufficiently address the responsibilities under Section 79C
of the EP& A Act, whereby Council must be confident that it has considered the proposal in terms
of the likely impacts. Often without appropriate geotechnical, acoustical, traffic and stormwater
details there in no certainty as to what is being consented to or its likely impact.
The development of standard set of conditions is also partly supported. Such may be appropriate
for certain styles of residential and commercial development, in particular for single dwellings and
smaller retail and commercial uses, however Council does not support the application of
standardised conditions in areas subject to flooding, bushfire, endangered ecological
communities, tree protection, heritage protection or areas that require specialist conditions.
Council also notes that, while there may be some potential for a limited suite of standard
conditions, some flexibility must be retained beyond standard conditions to allow for local
conditions and to ensure amenity is adequately protected.
13. Improving the process of certification to allow commencement of building work
Council supports the standardisation of information to support the CC and CDC processes.
Further, Council supports the proposed removal of the “not inconsistent test” as this has been the
cause of much uncertainty. Removing the ambiguity should lessen the concerns raised by local
communities.
14. Combining the roles of certifying authorities and principal certifying authorities
This proposal is supported. Significant benefit would result by having the entity that approves the
construction document (i.e. certifying authority) also responsible for following through the physical
construction to completion (i.e. PCA). A further benefit would be that this would reduce the
opportunity for blame to be passed on. Only one party will be accountable for the whole job, thus
the process becomes more transparent in terms of responsibility.
15. Separating the assessment of planning requirements from the assessment of
building requirements for CCs and CDCs
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This recommendation is not supported. It is believed that one assessment overing both criteria
may be undertaken by the one entity. The focus should be to review the current controls and to
make them simpler.
16. Regulation of the building construction stage
Council believes that the current problems with the building construction stage regulatory
approach would be better addressed if the builder received the certified plans and CC and CDC
rather than the owner, as often the owner is not concerned with such detail. Further, a copy of the
approved documents must be available on site at all times. If the documents are not available on
request, the builder or principal contractor should receive a penalty infringement notice.
Council also supports the proposal to develop a code of practice or professionals standards
scheme for all classes of certifiers, with practitioners being held accountable for breaches.
Council does not support the proposal to undertake critical stage inspections based on risk. This
allows too much discretion to the individual certifier and results in uncertainty for the community.
The listing of nominated critical stage inspections needs to be expanded to include all major
stages of construction. While certifiers should be permitted to rely on certificates from suitably
qualified professionals such as structural engineers, they should still be required to undertake
inspections at all stages of the development to ensure that works are proceeding in accordance
with the development consent.
Council supports the proposal to replace Interim and Final Occupation Certificates with a new
“Development Completion Certificate.” Persons should not be permitted to occupy a building until
all matters concerning the development have been complied with. Interim Occupation Certificates
continue to present many problems for Council. Allowing persons to occupy a building based
solely on health and safety standards does not address a multitude of planning issues that should
be satisfied including, parking, landscaping privacy controls, acoustics and infrastructure repair.
An improved regime for dealing with missed mandatory inspections and unauthorised work is
welcomed. In this respect, it should be mandatory for the builder or owner to demonstrate
compliance with the Building Code of Australia. Building Certificates are not the best mechanism
for regularising unauthorised work for the following reasons;
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there is no statutory requirement for a Building Certificate to be lodged for unauthorised
work
a Building Certificate is only valid for seven years after which time the council could serve
an Order to have the works removed
a Building Certificate does not follow the same statutory assessment process as a
development application and is not required to be notified to owners of neighbouring
properties; and
Building Certificate may not be issued with conditions
Consideration should be given to mandating the need to lodge a retrospective Development
Application and Construction Certificate so all applications are assessed and determined in the
same manner. Where such approvals are required, there should be an additional financial
disincentive to ensure they are the mechanism of last resort rather than the preferred option.
The proposal to introduce greater financial penalties for unauthorised work is supported. It is
Council’s experience that for the main part monetary penalties act as either a sufficient deterrent
or an appropriate disciplinary tool.
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17. Proposed Building Manual for maintenance of all Class 1b-9 buildings
The proposal to introduce mandatory building manuals for all new Class 1b-9 buildings is
supported. Currently, Council expends many resources in continually educating building owners
of their responsibilities, particularly in regard to the need to supply annual fire safety statements.
18. Reform of fire protection certification and revised role for NSW Fire and Rescue
Council supports the proposal to expand the accreditation scheme to suitably qualified and
experienced persons for specialist design, installation, commissioning and maintenance of fire
safety services. However, expanding the role of NSW Fire and Rescue is only supported if a
guarantee to supply sufficient resources to the organisation is provided.
19. Increasing supply of certifiers to service NSW
Council acknowledges the current shortage of suitably qualified persons to undertake certifying
services in NSW. Council supports the proposal to expand the scope of accreditation to all key
players within the building construction industry, as many elements of development require
specialist certification. Council is supportive of more responsibility being placed upon the builders,
key designers and installers.
20. Professional development of certifiers
Council believes that the pathway to allow a certifier to progress from A4 to A1 accreditation
needs support and development. The pathways to increased certification levels are currently
unclear, with the ability to gain field experience being limited.
Before the advent of private certification, local councils were able to provide such pathways, with
much skill and support in-house to provide training. However, in the current climate the majority
of certifiers are employed in the private sector and there no longer appears to be any structure
suitable to support ongoing professional development, including on-site mentoring.
As with many professions, tertiary qualifications alone do not guarantee all the necessary skills to
undertake this crucial community safety role.
21. Changes to professional qualifications for accreditation system
Council makes no specific comment in regard to this area. Tertiary institutions are believed to be
more appropriate organisations to comment on this area of proposed reform.
22. Evidence based framework for review of accreditation scheme
Council makes no specific comment in regard to this area. Other agencies and industry bodies
are believed more appropriate organisations to comment on this area of proposed reform.
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23. Transparency of certifiers
Council believes that there is a widespread lack of confidence within the community in the current
certification system and this, in part, is due to the inconsistent approach among certifiers.
Certifiers need to have their roles and responsibilities clearly defined and documented.
24. Certifier panels for Council
Council continues to experience many issues in regard to the inconsistent approach of individual
private certifiers. The preferred solution to this problem is the complete 100% return of all
certification services to local councils. This would also address the current issue of community
ignorance in regard to certification and the unclear delineation of responsibility that now occurs
between private providers and councils, particularly when non compliances occur.
The suggestion of a local panel of certifiers to service a given LGA is supported as a secondary
solution. The local panel approach has many advantages; in so far as the local practitioners
would be more familiar with the council’s local planning rules and policies. Nomination to a panel
would need to be transparent, it is suggested such nomination would be by way of formal
application and interview process.
25. Expanded program of audits and investigation duties by BPB
Council supports the proposal to increase the responsibility of the BPB or similar agency to
undertake audits and pro-active investigation of matters regarding certifiers. Proactive action
should not be limited to desk top audits but should include practical on site investigations.
26. Proposed demerit point system and penalty infringement notice system for
disciplining certifiers
Council supports this proposed punitive measure, but also believes that the BPB or similar
agency also has a key role in educating and improving the performance of certifiers.
27. Proposed on-line system for lodgement of complaints against certifiers
Council supports any proposal to streamline the current paper-based system which is so
cumbersome that it often acts as a deterrent to lodging a complaint. A system that captures all
the history on certifiers would prove far more beneficial for property owners wishing to select a
certifier to best service their needs.
28. Proposed advisory hot line to support certifiers
The privatisation of certifiers and shifting of the majority of certification services to the private
sector from local government has generally removed the opportunity for peer review and advice.
The proposal to establish a centralised hot-line to support certifiers is seen as a positive step.
29. Competitive neutrality
Council does not believe that full competitive neutrality will ever be achieved, particularly having
regard to local difficulties especially in regard to regional councils. Other organisations may be
better placed to comment.
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30 & 31. Certifiers insurance
Council believes that other agencies and industry groups may be best placed to comment on this
recommendation.
32. Swimming pool accreditation
Council is supportive of the proposal to simplify the requirements for swimming pool fencing by
moving from regulation under three different standards to just one. However, appropriate
timeframes for compliance must be offered to property owners, with some allowance still provided
for sites that have particular physical constraints that do not allow for strict compliance.
33. Recovery of costs for Council and State via levy on Development Applications and
Complying Development Certificates
Increasingly, local government is being called on to undertake additional functions and it is critical
that it be provided with appropriate funding to ensure sufficient resources to meet community
expectations. A levy on every Development Application and Complying Development Certificate
is considered as an appropriate and equitable means of addressing the cost burden. It appears to
be a simple proposal that the community could understand and industry could implement.
Council looks forward to the next phase of the review process.
Yours faithfully
John McKee
General Manager
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