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CLAUSE NOTES
Building Legislation (Miscellaneous Amendments) Bill 2018
Part 1- Preliminary
Clause: 1 Short title
Clause 2: Commencement
Except for Parts 5, 7 and 8, this Bill will apply retrospectively from
1 January 2017 (the date that the Building Act 2016 and amendments to the
Occupational Licensing Act 2005 commenced).
Parts 5, 7 and 8 are to commence on Royal Assent.
Part 2 - Building Act 2016 amended
Clause 3: Principal Act
In this Part, the Building Act 2016 is referred to as the Principal Act.
Clause 4: Interpretation
Amends the definition of “owner” of premises to incorporate situations
where an occupier or tenant of a premises has entered a building work
contract.
They are now also deemed an “owner” for fulfilling their responsibilities
under that contract. Otherwise, an occupier could walk away from a building
work project and leave the property owner to be responsible for the
incomplete or defective work.
Clause 5: All work must comply with Act and National Construction Code
Inserts new subsection 11(5)(c) to provide for transitional arrangements for
the design of work.
If a designer has made substantial progress on preparing a design before an
update or change to the National Construction Code (NCC) took effect, the
design may still be accepted as compliant with the amended Code.
Clause 6: Director of Building Control may make determinations
Amends section 20 so that the Director’s determinations will now cover
“how” work or inspections may be performed.
Inserts a new subsection 20(5) to provide for transitional arrangements for
the design of work.
If a designer has made substantial progress on preparing a design before an
update or change to a Director’s determination took effect, the design may
still be accepted as compliant with the amended determination.
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Clause 7: Minimum standards of design work
Amends section 44 by replacing references to “alternative solution” (which is
no longer used in the National Construction Code) with “performance
solutions”.
The change also clarifies that the designer is to provide to the building
surveyor appropriate assessment methods of that work.
Clause 8: Existing building to be upgraded if altered
Inserts new subsection 53(1A) to exclude “like for like” repair work of
buildings from the operation of section 53, which requires the upgrading of a
building where the performance of new work goes over a threshold amount.
This amendment addresses the issue when repairs are required to return a
building to its former condition as a result of events such as floods, fires or
wind damage.
Inserts new subsection 53(1B) to allow the Director of Building Control to
make determinations regarding the types of buildings that are exempt from
the application of this section and do not require mandatory upgrading.
Clause 9: Adjoining owner may respond to protection work notice
Clarifies the operation of section 79 so that requests for further information
may be made by adjoining owners in relation to building, demolition or
plumbing work.
Clause 10: Certificate of likely compliance (notifiable building work)
Inserts two subsections into section 98 of the Act to clarify that in performing
an assessment of an application for a Certification of Likely Compliance, the
building surveyor is to consider any recommendations or comments received
from a relevant Function Control Authority.
(see also note for Clause 11)
Clause 11: Certificate of likely compliance (notifiable building work) (for certain special-
use buildings)
Inserts a new section 98A into the Act to clarify the roles of Function
Control Authorities during the technical assessment of work for a certificate
of likely compliance.
For example, if new work was on a private hospital, the Department of
Health, which has the function of licensing such premises, is to receive copies
of the plans and it may comment or make recommendations regarding their
appropriateness.
Clause 12: Performing notifiable building work
Amends subsection 99(4) to clarify that owners must apply to the building
surveyor for an extension of approval to perform notifiable building work at
least five business days before their current approval expires.
Inserts new subsection 99(4A) to allow the Director of Building Control the
ability to make a determination that the building surveyor may still accept an
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extension application outside of this timeframe, when special circumstances
exist.
Clause 13: Certificate of completion (notifiable building work)
Inserts new subsections 104(3A) and 104(3B) to allow an owner to make an
application for a certificate of completion in the event that the responsible
person for the work has not provided a standard of work certificate, and an
inspection of the work by the building surveyor shows that it is complete and
compliant.
This change address a problem where the responsible person for work either
is unable to, or will not, issue a standard of work certificate to the owner,
thereby preventing them from legally completing the work. This includes
situations where the responsible person for the work has died, disappeared
or has refused to give that certificate due to a dispute with the owner.
Clause 14: Performing notifiable plumbing work
Amends subsection 110(4) to clarify that owners must apply to the Permit
Authority for an extension of approval to perform notifiable plumbing work
at least five business days before their current approval expires.
Inserts new subsection 110(4A) to allow the Director of Building Control the
ability to make a determination that the Permit Authority may still accept an
extension application outside of this timeframe, when special circumstances
exist.
Clause 15: Certificate of completion (notifiable plumbing work)
Inserts new subsection 115(4) to allow an owner to make an application for
a certificate of completion in the event that the responsible person for the
work has not provided a standard of work certificate, and an inspection of
the work by the permit authority shows that it is complete and compliant.
(see also note for Clause 13)
Clause 16: Performing notifiable demolition work
Amends subsection 122(4) to clarify that owners must apply to the building
surveyor for an extension of approval to perform notifiable demolition work
at least five business days before their current approval expires.
Inserts new subsection 122(4A) to allow the Director of Building Control the
ability to make a determination that the building surveyor may still accept an
extension application outside of this timeframe, when special circumstances
exist.
Clause 17: Certificate of completion (notifiable demolition work)
Inserts new subsection 127(3A) to allow an owner to make an application
for a certificate of completion in the event that the responsible person for
the work has not provided a standard of work certificate, and an inspection
of the work by the building surveyor shows that it is complete and compliant.
(see also note for Clause 13)
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Clause 18: Determining application for certificate of likely compliance (permit building
work)
Amends section 132(1) to clarify that the building surveyor is to consider any
recommendations received from a relevant Function Control Authority when
assessing an application for a certificate of likely compliance for permit
building work.
Inserts new subsection 132(1A) to provide that if the design incorporates a
performance solution, the designer is to provide evidence to demonstrate
that the solution is suitable to comply with the National Construction Code,
by way of assessments performed, expert opinions or other information
relating to that design.
Clause 19: Certificate of likely compliance (permit building work) for certain special-use
buildings
Inserts new section 132A to clarify the role of Function Control Authorities
during the technical assessment of work for a certificate of likely compliance.
Clause 20: Granting application for certificate of likely compliance (permit building work)
Amends section 134 to clarify that due to the specific nature of a “Special
Use Building” licensed by a Function Control Authority or any of its
recommendations in relation to a particular project, the usual building
standards in the National Construction Code may need to be modified.
For example, the special requirements of the Health Services Establishments
Code are appropriate for a new hospital operating theatre.
Clause 21: Additional application requirements for performance solutions
Amends section 140(b) to provide that if the building design incorporates a
performance solution, the evidence provided to demonstrate that the
building solution is suitable, is to be included with the documents submitted
with the building permit application.
Clause 22: Determining application for building permit
Omits subsections 141(2) and (3), as these requirements are included in
section 132 as actions required during assessment for a certificate of likely
compliance.
Clause 23: Duration of building permit
Inserts new subsection 146(1A) to clarify that if an application for an
extension of a permit has been lodged, the permit does not expire before
the application is approved.
Clause 24: Extension of duration of building permit
Inserts subsection 147(1A) to clarify that owners must apply to the permit
authority for an extension of a building permit at least five business days
before the current approval expires, unless the Director of Building Control
has made a determination that special circumstances exist.
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Clause 25: Certificate of final inspection (building)
Inserts new subsection 152(1A) to allow an owner to make an application
for a certificate of final inspection in the event that the responsible person for
the work has not provided a standard of work certificate, and an inspection
of the work by the building surveyor shows that it is complete and compliant.
(see also note for Clause 13)
Clause 26: Certificate of completion (permit building work)
Inserts new subsection 153(4) to allow an owner to make an application for
a certificate of completion in the event that the responsible person for the
work has not provided a standard of work certificate, and the certificate of
final inspection has been issued by the building surveyor.
(see also note for Clause 13)
Clause 27: Application for plumbing permit
Inserts new subsection 165(3) to provide that a permit authority may allow
an owner to apply for the certificate of likely compliance and plumbing
permit at the same time.
Clause 28: Duration of plumbing permit
Inserts new subsection 172(1A) to clarify that if an application for an
extension of a permit has been lodged, the permit does not expire before
the application is approved.
Clause 29: Extension of duration of plumbing permit
Inserts subsection 173(1A) to clarify that owners must apply to the permit
authority for an extension of a plumbing permit at least five business days
before the current approval expires, unless the Director of Building Control
has made a determination that special circumstances exist.
Clause 30: Certificate of completion (permit plumbing work)
Inserts new subsection 178(4) to allow an owner to make an application for
a certificate of completion in the event that the responsible person for the
work has not provided a standard of work certificate.
(see also note for Clause 13)
Clause 31: Duration of demolition permit
Inserts new subsection 196(1A) to clarify that if an application for an
extension of a permit has been lodged, the permit does not expire before
the application is approved.
Clause 32: Extension of duration of demolition permit
Inserts subsection 197(1A) to clarify that owners must apply to the permit
authority for an extension of a plumbing permit at least five business days
before the current approval expires, unless the Director of Building Control
has made a determination that special circumstances exist.
Page 5 of 10
Clause 33: Certificate of final inspection (demolition)
Inserts new subsection 202(1A) to allow an owner to make an application
for a certificate of final inspection in the event that the responsible person for
the work has not provided a standard of work certificate, and an inspection
of the work by the building surveyor shows that it is complete and compliant.
(see also note for Clause 13)
Clause 34: Certificate of completion (permit demolition work)
Inserts new subsection 203(4) to allow an owner to make an application for
a certificate of completion in the event that the responsible person for the
work has not provided a standard of work certificate, and the certificate of
final inspection has been issued by the building surveyor.
(see also note for Clause 13)
Clause 35: Interpretation
Amends section 204 to include occupiers or tenants who have a contractual
responsibility for the maintenance of any essential building services in the
premises they lease or occupy, in the definition of “responsible owner”.
Clause 36: Schedule of maintenance
Amends section 206 to allow for the permit authority - plumbing to approve
a schedule of maintenance that relates to maintaining plumbing related
services only (where there has not been any associated building work, or
there is no prior involvement by a building surveyor).
An example is a new or replacement septic tank, and the permit authority
will require that owner to maintain that plumbing installation in proper
working order, as specified in that schedule.
Clause 37: Building notice
Amends section 237 to replace the references to “building” with “premises”.
Clause 38: Plumbing notice
Amends section 238 to replace the references to “building” with “premises”.
Clause 39: Court orders
Amends section 251 to clarify that applications for a court order may be
made to either the Supreme Court or the Magistrates Court.
This amendment addresses a court decision where it was decided that the
Magistrates Court was not a court of competent jurisdiction able to grant an
order under section 251.
Clause 40: Application for certificate of substantial compliance
Omits the unnecessary reference to “prescribed fee” in section 255(2).
“Prescribed fee” clauses were included in the Principal Act by mistake. The
former Building Act 2000 made no provision for council fees. The ability of a
Council to charge a fee for services, including building or plumbing matters, is
not affected by this amendment as the Local Government Act 1993 provides a
Page 6 of 10
general power to councils to charge any necessary fees. There are no
“prescribed fees” in the Building Regulations 2016.
Clause 41: Application for permit of substantial compliance
Omits the unnecessary reference to “prescribed fee” in section 258(2).
Clause 42: Duration of permit of substantial compliance
Inserts new subsection 262(1A) to clarify that if an application for an
extension of a permit has been lodged, the permit does not expire before a
determination has been made.
Clause 43: Extension of duration of permit of substantial compliance
Inserts section 263A to provide that owners can apply for an extension of a
permit of substantial compliance.
Owners must apply to the permit authority for an extension at least five
business days before the current approval expires, unless the Director of
Building Control has made a determination that special circumstances exist.
Clause 44: Appeals relating to Reporting Authority
Inserts new section 280A to provide Reporting Authorities appeal rights,
which were previously provided under the Building Act 2000.
The appeal rights may be exercised in relation to any matter raised in the
required report provided by a Reporting Authority at either the certificate of
likely compliance stage or occupancy permit stage.
Clause 45: Non application of building regulations
Inserts new subsection 288(1)(c) to provide for transitional arrangements for
the design of work. If a designer has made substantial progress on preparing
a design before an update or change to the building regulations took effect,
the design may still be accepted as compliant with the amended regulations.
Clause 46: Non application of plumbing regulations
Inserts new subsection 290(1)(c) to provide for transitional arrangements for
the design of work. If a designer has made substantial progress on preparing
a design before an update or change to the plumbing regulations took effect,
the design may still be accepted as compliant with the amended regulations.
Clause 47: Accrual of cause of action
Amends section 327(7)(b) to provide a 6 years period to commence
building related litigation, to be consistent with the residential work warranty
periods under the Residential Building Work Contracts and Dispute Resolution
Act 2016.
Clause 48: Further amendment of regulations not prevented
Inserts section 330A to clarify that this Bill does not prevent further
amendment of provisions or regulations amended by the Bill.
Page 7 of 10
Clause 49: Transitional and Savings Provisions
Amends Clause 6 of Part 3 of Schedule 2 of the Act to extend the expiry
date of certain existing building and plumbing permits that were transitioned
into the Act, until 1 July 2020.
Part 3 - Building Regulations 2016 amended
Clause 50: Principal Regulations
Clause 51: Temporary structures
Inserts subparagraph 4(da) to prescribe temporary swimming pools and their
childproof safety barriers as temporary structures, which may be required to
be subject to a temporary occupancy permit before their erection.
Clause 52: Director of Building Control may make determinations
Inserts subparagraph 8(ja) to allow the Director of Building Control to make
a determination regarding processes for the rectification of defective or non-
compliant work.
Part 4 - Occupational Licensing (Building Services Work) Regulations 2016 amended
Clause 53: Principal Regulations
Clause 54: Prescribed criteria
Amends regulation 9(2)(e) by clarifying the number of owner builder permits
that are permitted to be applied for in any ten-year period, and when that
period starts.
Clause 55: Building services work
Amends Schedule 1 by removing the monetary value limit for Low Risk work
of less than $20,000.
Part 5 - Occupational Licensing (Building Services Work) Regulations 2016 further amended
Clause 56: Principal Regulations
Clause 57: Schedule 2 (Fees)
Amends Schedule 2 to provide for an application fee for owner builder
permits relating to certain outbuildings, sheds or similar non-habitable
structures that are too large to be included in the category of Low Risk
Work by an owner.
Part 6 - Occupational Licensing Act 2005 amended
Clause 58: Principal Act
In this Part, the Occupational Licensing Act 2005 is referred to as the Principal
Act.
Clause: 59: Certain organisations may apply for building services licence
Page 8 of 10
Amends section 37C to clarify that the Crown is an organisation that may
apply for a licence to perform building services work.
Inserts subsection 37C(6) to clarify that an organisation performing building
services work does not have to hold an “entity licence” under section 37C if
each person managing or carrying out the work (whether a director, a
partner, or an employee) already has a licence as a building services provider.
Clause 60: Offences
Amends subsections 38(7) and (38(8) to clarify that these offences relates to
all “building services work” (including construction, design and assessment of
work).
Clause 61: Schedule 2 - Occupations Trades and Callings to Which this Act Applies
Amends clause 4, Part 4 by clarifying that providing authorisation or approval
of “demolition work” is prescribed work that requires a licence.
Part 7 - Occupational Licensing Act 2005 further amended
Clause 62: Principal Act
Clause 63: Obligation to hold building services licence
Amends section 22A to clarify that persons entering a contract to manage or
perform building services work are required to hold a building services
licence.
Clause 64: Building work for which an owner builder permit may be issued
Amends section 29A to provide a power for the Administrator of
Occupational Licensing to make a determination concerning owner builder
work, including the types of buildings or building work that require an owner
builder permit.
Clause 65: Determination of application
Amends subsection 34(1) to clarify what matters the Administrator of
Occupational Licensing may take into consideration when making a decision
to refuse an application for a contractor licence.
Clause 66: Determination of application
Amends subsection 37(1) to clarify what matters the Administrator of
Occupational Licensing may take into consideration when making a decision
to refuse an application for a contractor licence.
Clause 67: Determination of application
Amends subsection 37B to clarify that the Administrator of Occupational
Licensing has a discretion to issue or refuse an application for a building
services provider licence.
Clause 68: Registers
Omits unnecessary reference to demerit points in subsection 49(4)(e).
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Clause 69: Infringement Notices
Omits unnecessary reference to demerit points in subsection 62(3).
Clause 70: Part 6, Division 5 repealed
Repeals provisions relating to demerit points.
Part 8 - Residential Building Work Contracts and Dispute Resolution Regulations 2016 amended
Clause 71: Principal Regulations
Clause 72: Fees (for adjudication panel)
Amends regulation 7 to correct an incorrect reference to the Principal Act.
Clause 73: Penalties
Amends Schedule 1 to correct incorrect references to the Principal Act.
Part 9 - Urban Drainage (General) Regulations 2016 amended
Clause 74: Principal Regulations
Clause 75: Interpretation
Amends regulation 3 to remove the reference to the repealed Building Act
2000.
Part 10 - Miscellaneous
Clause 76: Expiry of Act
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