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NSW planning reforms: building regulation and certification

NSW planning reforms: building regulation and certification

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No 09/2013 by Daniel Montoya

This 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]