Australia: Planning Law Perspectives

Building and Construction Alert: 23 September 2013
Last Updated: 24 September 2013
Article by David Nicholls and Adam Carlton-Smith

Issue 1

Welcome to the first issue in a rolling series of Alerts offering planning law perspectives on issues relevant to the building and construction industry.

Overhaul of the Building Services Authority and Reform of Building Regulations

On 22 August 2013, the Queensland Building Services Authority Amendment Bill 2013 (QBSA Amendment Bill) was passed by State Parliament, having been introduced to State Parliament on 5 June 2013.

The Minister for Housing and Public Works introduced the QBSA Amendment Bill to State Parliament with the comment "Ultimately we want to see fewer disputes, fewer cases going to QCAT and faster resolution of those disputes that do arise."

The purpose of the QBSA Amendment Bill is to amend the Queensland Building Services Authority Act 1991 (QBSA Act) in order to establish the Queensland Building and Construction Commission (Commission) in place of the existing Building Services Authority (Authority).

Replacement of the QBSA

The replacement and overhaul of the QBSA responds to recommendations handed down in November last year following a Parliamentary Inquiry into the operation and performance of the QBSA.

The major difference between the Authority and the Commission is in relation to the governance arrangements. The Commission will have a seven member professional governing Board (with a maximum three year term of appointment) which will report to the Minister for Housing and Public Works on matters of performance and on issues affecting the building industry and consumers. Appointments to the Board are said to be based on a person's ability to make a contribution to the effective and efficient performance of the Commission's functions. The QBSA Amendment Bill also provides for the appointment of a commissioner by the governing Board who will act as a chief executive and will replace the existing general manager.

It is proposed that the structure of the Commission will include licensing, dispute resolution and Home Warranty Scheme management divisions which are separate from each other in order to improve governance.
The transitional provisions for the QBSA Amendment Bill propose that on the transfer day:

  1. The Commission stands in the place of the Authority for a range of administrative matters, including any direction, notice, demand, certificate, licence, approval, decision, policy or action of the Authority; and
  2. The Commission stands in the place of the Authority for any unresolved applications made under the QBSA Act to the former Authority or by the Authority to the Queensland Civil and Administrative Tribunal.
  3. There will be substitution of the Commission for the former Authority in all legal proceedings.

Ten Point Action Plan

The QBSA Amendment Bill represents only the first stage of reforms proposed and sets in motion the first two points of the "Ten Point Action Plan" (Action Plan) tabled by the Minister for Housing and Public Works on 5 June 2013.
Points three to ten of the Action Plan are measures including improved accountability of certification of building work; a review of licensing, education, training and compliance; a review of current domestic building contracts; and an expanded licensing role of the Commission. Such actions are to be implemented progressively by the new Commission in consultation with industry and stakeholders.

Action points five and nine warrant further consideration.

Action point five reads as follows:

"5. Review licensing, education, training and compliance."

In its response to the Parliamentary Inquiry, the Queensland Government recorded its support for the QBCC to audit the current disciplinary regime for licensees. Audit findings may lead to reforms regarding the current demerit points system and could lead to possible strengthening of penalties where appropriate.

Action point nine reads as follows:

"9. Review the role of private certifiers with emphasis on probity, conflicts of interest, quality and an appropriate penalty regime for failure to perform."

It is apparent that this action is aimed towards achieving the desired outcome of promoting confidence in the industry. It can be expected that this action point will involve examining the process of appointing private certifiers and clarifying the defined role and responsibilities of private certifiers contained in the QBSA Act and Regulation.

The Parliamentary Inquiry Report recommended a system whereby licensees who construct, and certifiers who approve, unlawful or defective work are held accountable and can be made responsible for rectification of the works. For example, where a building is structurally unsound or built partially outside the property boundary. Achieving this end will necessitate a review of the design, construction and approval process as well as inspection requirements.

An Implementation Committee will be responsible for the implementation of all items in the Action Plan and the composition of this committee is proposed to include the Department of Housing and Public Works (as chair) with input from industry experts and stakeholder government departments.

Status of the Bill

The QBSA Amendment Bill was given Royal Assent on 29 August 2013 becoming Act No 38 of 2013 and will commence on a date yet to be proclaimed. The Commission is expected to be in place by the beginning of 2014.

The progress of the QBSA reforms needs to be carefully monitored. As part of enacting reforms to deliver the heralded aims of "fewer building defects and disputes", there may be significant changes to the building law and regulatory framework.

Indeed, one further reform to streamline building disputes was the subject of new legislation introduced to State Parliament on 10 September 2013. That legislation proposes an amendment to the QBSA Bill to allow the Building Services Authority to continue to act in respect of a dispute (for instance, to issue rectification notices or to direct that an insurance claim be paid out) notwithstanding that QCAT proceedings have been commenced.

In our next installment in this series, we discuss building certifiers and the Court's declaratory jurisdiction, with particular analysis of the Court's decision in Stevenson Group Investments v Nunn and Ors [2012] QPELR 392.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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David Nicholls
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