Listening to the Stakeholders: White Paper Reforms and what they could mean for Accredited Certifiers
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
Last month the NSW Government announced a 12 month review process in order to continue to reform the planning system and building regulation, including the Building Professionals Act 2005.
This is important for accredited certifiers, and, while the review is a 12 month process, it shows a willingness to consult widely with the industry and consumers and take careful stock of some of the concerns of accredited certifiers in NSW.
The former NSW treasury secretary has been appointed to carry out the review and it will be the first such time this has occurred since the Building Professionals Act 2005 commenced its operation in 2007.
Terms of reference for the review involve consultation with the community, councils, the building industry, government agencies and education providers. Up for consideration and analysis will be:
- the building reforms proposed in the 2013 Planning Reform White Paper;
- the George Maltabarow report from May 2013 entitled: “Building Certification and Regulation: Serving a new planning system for NSW”;
- recommendations of the Independent Pricing and Regulatory Tribunal (IPRT) to create a single building regulator and apply a ‘best practice’ licensing system.
Section 97 of the Building Professionals Act 2005 enables a review of that Act on occasion, and this review is to determine whether the policy objectives remain valid and whether the laws within the Act remain appropriate for meeting those objectives.
A draft report will be prepared after consultation with stakeholders and consideration by technical panels, and that draft report is expected to be delivered by the Reviewer some time in the first half of 2015.
This draft report will be published online and the Department will invite final written comment from the public for a 28 day period. After the Reviewer has considered all written public comment a final report will be finalised and delivered to the Minister of Planning, with the expected deadline for the final report being 31 October 2015.
When one looks at the Maltabrow report and the White Paper from 2013, and these documents are reference points for the review, it is evident that genuine concerns that have been raised by the industry (and in particular private certifiers) are being taken seriously.
Some of the recommended changes in the Maltabrow report or White Paper that will be considered as part of the review include:
- Better defining and demarcating the respective roles of private certifiers and local Councils, and fostering more co-operation between the two in regard to enforcement of regulations;
- Mandatory initial enforcement action by certifiers but with timely reporting to Councils of such enforcement action taken;
- Requiring Councils to follow up enforcement action where warranted;
- Removal of the March 2013 changes obliging certifiers to apply the “not inconsistent” test to Occupation Certificates as regards both Building Code and Development Consent compliance, as this
expands the risk for certifiers unnecessarily without improving behaviours or leading to greater compliance;
- Removal of the requirement that private and Council certifiers enter into contracts of engagement with owners, and instead changing the development application process so that applicants are given written notification of the need to appoint a PCA and a clear outline of the role and responsibilities of the PCA;
- IPART be requested to determine a guideline range of fees for certification functions on the basis that the services will be discharged rigorously and diligently, to avoid fee competition driving
prices down (leading to the cutting of corners);
- Implementing more dimensions to building certifier regulation rather than just having the current disciplinary model, ie by creating a ‘de-merit’ points system as used in other States and by
lending more resources to guidance and support to certifiers and audits to help improve compliance;
- The development of a more ‘streamlined’ set of regulatory obligations and a formal practice guide for NSW accredited certifiers that is capable of having the force of law;
- Consideration of having accreditation systems for contractors involved in providing compliance certificates for key specialist areas of work such as fire engineering and waterproofing;
- Potentially introducing more stages of mandatory inspections for more complex building projects.
Many of these ideas seem like sensible and in some cases overdue initiatives for reform. In order to promulgate and implement some of these features, it is recommended that 3 expert panels be created to investigate the following areas:
- Panel 1: general overview of the review and tying all threads together to ensure there is a holistic approach;
- Panel 2: an expert panel to define the scope of certification in regard to both BCA and Development Consent compliance. This includes the establishment of a streamlined set of
regulatory duties and a formal practice guide for certifiers consistent with the regulations;
- Panel 3: an expert panel to define the boundaries between private certifiers, local Councils and Council certifiers, in regard to roles and responsibilities. This panel will include
local government representatives and others and will recognise Council’s role as consent authority but exploring systems of better co-operation between Councils and private certifiers.
As stated on page 11 of the Maltabrow report: “A key requirement for improving building regulation and certification is that the roles of all participants are well defined and consistently reflected in the relevant statutes and regulations. Indeed, clarity in specifying roles, or lack of it, was probably the most consistent theme emerging from discussions with stakeholders.”
Some of the themes in the reports and recommendations already before the Reviewer appear to be a step in the right direction, and it is very much a situation of “watch this space” for more developments.
The Lovegrove Smith & Cotton E-Library is a free online resource of articles, which puts a wealth of information at your finger tips. The articles in the E- Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s. To access click here.
© Lovegrove Smith & Cotton 2014