Australia: NSW con­struc­tion indus­try reform - residential apartment buildings

The NSW Build­ing Com­mis­sion­er, David Chan­dler OAM, is at the ready with 'boots on the ground', to 'rid the indus­try of dan­ger­ous builders, devel­op­ers and cer­ti­fiers' and improve con­sumer con­fi­dence in the buy­ing of res­i­den­tial apart­ments in NSW with the com­mence­ment on 1 Sep­tem­ber 2020 of the Res­i­den­tial Apart­ment Build­ings (Com­pli­ance and Enforce­ment Pow­ers) Act 2020 ¹ (RAB Act).

If you are a devel­op­er of a 'res­i­den­tial apart­ment build­ing' you need to be aware of your oblig­a­tions under the RAB Act. Mr Chan­dler has made it clear in recent inter­views ² the he is going to 'fix the prob­lem'.

What you need to know?

• The RAB Act com­mences on 1 Sep­tem­ber 2020
• The NSW Build­ing Com­mis­sion­er and his team are 'at the ready' to imple­ment the pow­ers grant­ed under the RAB Act
• If you are a 'devel­op­er' ³ as defined under the RAB Act and you are per­form­ing 'build­ing work' ⁴ on a 'res­i­den­tial apart­ment build­ing' ⁵ that was or is 'autho­rised to com­mence with a con­struc­tion cer­tifi­cate or com­ply­ing devel­op­ment cer­tifi­cate issued under the Envi­ron­men­tal Plan­ning and Assess­ment Act 1979, and has not been com­plet­ed or has been com­plet­ed with­in the peri­od of 6 years before the exer­cise of that func­tion...' ⁶ (being a func­tion under the RAB Act), the reform will impact you
• At least 6 months (but no ear­li­er than 12 months) before you cause or per­mit an occu­pa­tion cer­tifi­cate appli­ca­tion to be made, you must noti­fy the Sec­re­tary of that pro­posed appli­ca­tion ⁷
• If the cir­cum­stances change, and the date of an appli­ca­tion for an occu­pa­tion cer­tifi­cate changes, you must noti­fy the Sec­re­tary of the 'new expect­ed date' ⁸
• If you fail to give noti­fi­ca­tion of the pro­posed appli­ca­tion for an occu­pa­tion cer­tifi­cate, the Sec­re­tary is sat­is­fied that a 'seri­ous defect in the build­ing exists' or you have failed to pay any build­ing bond required under s207 of the Stra­ta Schemes Man­age­ment Act 2015 – the Sec­re­tary 'may make an order pro­hibit­ing the issue of an occu­pa­tion cer­tifi­cate' ⁹

Pow­ers of the Secretary

• Infor­ma­tion gath­er­ing pow­ers with the pow­er to direct the pro­vi­sion of infor­ma­tion or records¹⁰
• Entry to premis­es by autho­rised offi­cers, with or with­out the author­i­ty of a search war­rant, for the pur­pos­es of exam­i­na­tion, inspec­tion, tak­ing sam­ples, pho­tographs, record­ings, tak­ing pos­ses­sion of records to be used as evi­dence, etc¹¹
• The issu­ing of stop work orders and rec­ti­fi­ca­tion orders ¹²
• Action may be tak­en if orders are not com­plied with includ­ing the issu­ing of a com­pli­ance cost notice which includes a notice to the devel­op­er to pay all or any rea­son­able costs and expens­es incurred by the Sec­re­tary in con­nec­tion with the build­ing work rec­ti­fi­ca­tion order¹³
• Penal­ty notices may be issued for a penal­ty notice offence¹⁴

Pro­ceed­ings for Offences and Rights of appeal

• a devel­op­er who is giv­en a build­ing work rec­ti­fi­ca­tion order may appeal to the Land and Envi­ron­ment Court of NSW¹⁵
• pro­ceed­ings for an offence under the RAB Act may be tak­en before the Local Court or the Land and Envi­ron­ment Court in its sum­ma­ry juris­dic­tion¹⁶

Footnotes

¹https://legislation.nsw.gov.au/#/view/act/2020/9

² 60 Min­utes 'Buy­ers Beware'

³ sec­tion 4

⁴ sec­tion 5

⁵ 'res­i­den­tial apart­ment build­ing means a class 2 build­ing with­in the mean­ing of the Build­ing Code of Aus­tralia, and includes any build­ing con­tain­ing a part that is clas­si­fied as a class 2 com­po­nent, but does not include any build­ing or part of a build­ing exclud­ed from this def­i­n­i­tion by the regulations'

⁶ sec­tion 6

⁷ sec­tion 7(1) with the 'Sec­re­tary' being the Sec­re­tary of the Depart­ment of Cus­tomer Service

⁸ sec­tion 8

⁹ sec­tion 9(1) with the Sec­re­tary being poten­tial­ly sat­is­fied a 'seri­ous defect' is in exis­tence in the cir­cum­stances as described under s9(2)

¹⁰ Part 3, Divi­sion 3

¹¹ Part 3, Divi­sion 4

¹² Part 4 and Part 5

¹³ see Part 5 Divi­sion 4

¹⁴ see Part 6

¹⁵ see Part 5 Divi­sion 3

¹⁶ see Part 6

For further information please contact:

Helen Kowal, Partner
Phone: +61 2 9777 8321
Email: hek@swaab.com.au

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.