Client Update

Changes to the role and functions of private sector certifiers

Introduction

In 2004 the ACT Government launched the Planning System Reform Project. The stated aim of this reform was to deliver a faster, simpler and more effective system of planning in the ACT. A significant aspect of this reform was to exempt certain kinds of residential development from requiring development approval. This in turn has impacted on the functions of private sector certifiers and necessitated amendments to the Building Act and the introduction of the new Building (General) Regulation 2008 which both came into effect on 31 March 2008.

Consequences and implications of the changes

Prior to the recent planning reform, the approval process for construction work in the ACT could be summarised generally as follows:

• a development application was lodged with the ACT Planning and Land Authority
• once that application was granted, an application for building approval needed to be lodged with a private sector building certifier, and
• building approval was granted by the certifier.

However, under the new Planning and Development Act 2007 (which came into effect on 31 March 2008), single dwellings on new residential land are now exempt from requiring development approval provided the development complies with the relevant rules in the precinct code which apply to the development.

As a consequence of this change, private sector certifiers must now determine whether a development meets the development exemption criteria before issuing a building approval. In other words, the responsibility for confirming that a development meets development approval criteria has in certain circumstances shifted from the Government to the certifier.

What this means is that plans for building approval will need to include sufficient information to enable the certifier to assess whether the work is exempt from requiring development approval. Certifiers must now take all reasonable steps to get the information the certifier reasonably needs to decide the application and also have the power to request that the applicant provide further information to enable them to decide the application. If the further information is not provided in accordance with the request, the certifier may refuse to issue the building approval.

In addition, there are new offences against a certifier if a certifier issues a building approval under the Building Act in contravention of the relevant requirements of the Building Act. For example, a certifier commits an offence under the Building Act if they issue a building approval where the site work proposed in the approved plans requires development approval and there is no development approval for the site work if carried out in accordance with the plans. Certifiers are also now required to notify the planning authority is they suspect site work is being undertaken in contravention of the Planning and Development Act 2007.

The amendments to the Building Act also provide certain referral advice entities prescribed by the Regulation with powers to prevent the approval of a building approval application, and require those entities to be bound by their advice. For example, under the Building Regulation, the demolition of a building to which water or sewerage services are supplied or water meter is connected must be referred to ActewAGL. In such circumstances, a certifier must not issue a building approval if the approval or carrying out work in accordance with the approval would be inconsistent with the advice of ActewAGL. However, entities now must provide their advice within 15 working days after receiving the application, otherwise they are taken to have given advice that supports the application.

Author
Meg Osmond, Senior Associate

NSW 2008 Planning reforms

On 15 May 2008, the NSW Planning Minister Frank Sartor tabled draft legislation in Parliament to bring about significant changes to the planning system in New South Wales. The proposed reforms to the Environmental Planning and Assessment Act 1979 (NSW) and associated legislation have been driven by public concerns about various aspects of the planning system including its inefficiencies and complexities, the cost of legal review and the accountability of private certifiers. Accordingly, the NSW Planning Minister hopes that the draft legislation will help to create a more efficient, transparent and credible planning regime for the State.

The tabling of the legislation follows a lengthy consultation process on the proposed reforms including a public forum, publication of the discussion paper “Improving the NSW Planning System” and the release of three exposure bills on 3 April 2008 (which were open for public comment). In response to feedback from the community and other stakeholders, the draft legislation contains a number of changes from the exposure bills. For example, there is no longer any proposal to allow local government authorities to compulsorily acquire land for urban renewal.

The property and development industry has generally welcomed the proposals for tackling inefficiencies in the system, making decision-making more transparent and improving housing affordability. However, other stakeholders and members of the community have raised concerns that the new legislation would reduce community involvement in development decisions, reduce Councils’ powers and extend existing conflicts of interest in the planning assessment process.

Some of the key reforms contained in the draft legislation include:

• The creation of a Planning Assessment Commission, which will consider approximately 80% of the State significant developments currently determined by the Planning Minister. The Planning Minister would continue to make decisions concerning critical infrastructure projects.
• The establishment of a number of Joint Regional Planning Panels as the consent authorities for regionally significant developments including commercial or retail development worth more than $20 million, residential and mixed use development projects worth more than $50 million and designated development.
• Imposing tougher rules and penalties for accredited certifiers including limiting the total amount of income a certifier can earn in a year from certification work involving the same client, and increasing fines for professional misconduct.
• Having planning arbitrators resolve some development disputes in the first instance (for example, matters concerning commercial or retail premises under nine metres in height or with a gross floor area of less than 2,000 square metres, but excluding bulky goods and licensed premises), ahead of the Land and Environment Court.
• Creating a new regime to regulate developer contributions including ensuring that funds are spent by local councils within a reasonable timeframe and only on “key community infrastructure” such as local roads, bus infrastructure and community facilities.
• Streamlining the plan-making process for local environmental plans by implementing a screening process to determine upfront whether or not a proposal should proceed and setting timeframes for each stage of the plan-making process.
• Preventing strata developers (original owners) from making it a condition of sale that buyers sign over their proxy rights to the developer.

The bills are expected to be debated shortly and the NSW Planning Minister hopes that they will become law by the end of June 2008.

Authors
Geoff Wood, Partner
Laura van Klaveren, Solicitor

A new Home Building Act for NSW on the horizon

A re-write of the Home Building Act 1989 (NSW) has begun.

The re-write aims to make the Act less complex, easier to understand and more user-friendly. The government intends to clarify the structure and objectives of the Act and relevant building work regulations, by grouping relevant provisions together and removing inconsistencies.

In September 2006, the Home Building Licensing Review Report (Moss Report) made 29 recommendations including a recommendation for the Act to be rewritten. The government intends to re-write the Act and in doing so will consider the Moss Report recommendations and the submissions of stakeholders such as the Housing Industry Association, the Master Builders Association, insurers, consumer advocates and other stakeholders involved in residential building work.

Work on the re-write is already under way. An exposure draft is expected to be released during the second half of 2008.

Authors
Barry Casey, Partner
Brandon Yap, Law Graduate

Update - Australian Government Building and Construction - OH&S Accreditation Scheme

In our Autumn 2006 edition of the Construction Update we published an article on “Promoting Building Industry Safety - Australian Government Building and Construction OH&S Accreditation Scheme”.

From 1 October 2007, as a result of amendments to the Building and Construction Industry Improvement Act 2005 (Cwlth), changes have been made to the Scheme, with the result that the information in our 2006 article is no longer current.

Update

Accordingly, by way of brief update, the following features of the Scheme apply as at May 2008:

• the Scheme now applies to directly and indirectly funded Australian Government Building and Construction Projects.

“Directly funded”:

• means a project where an Australian Government agency has responsibility for the project’s funding and development, and
• the threshold for application of the Scheme has been lowered to projects with a value of $3,000,000 or greater.

“Indirectly funded”:

• means a project where an Australian Government agency has contributed funding to a third party (e.g. a State Government) through such things as grants or other funding agreements
• there are two thresholds for indirectly funded projects:

These thresholds only apply to new funding agreements and new grants from 1 October 2007 and do not affect any projects which commenced prior to that date.

Keeping up to date

It is recommended that any persons interested in finding out more about the Scheme and the accreditation process in general should visit the Office of the Federal Safety Commissioner Website at www.fsc.gov.au to ensure they have the most up-to-date information at the time of their enquiry.

Authors
Geoff Wood, Partner
Benjamin Urry, Solicitor