ARTHUR ROBINSON & HEDDERWICKS. Building Bill EXPLANATORY MEMORANDUM PART I-PRELIMINARY

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1 ARTHUR ROBINSON & HEDDERWICKS LIBRARY Building Bill EXPLANATORY MEMORANDUM PART I-PRELIMINARY Clause 1 states that the purpose of the Bill is to provide for the regulation of building and building standards. Clause 2 provides that the purpose and commencement provisions come into operation on the date of Royal Assent and that the remaining provisions come into operation on 1 March 1995 or some earlier date. Clause 3 provides for the definitions of certain words used in the Act such as "building". The definition of building is not intended to include structures which are not in the nature of buildings such as railway viaducts and roads. Clause 4 sets out the objects of the Act. Clause 5 provides that the Act does not bind the Crown or a public authority except to the extent set out in Division 6 of Part 12 of the Act. That is the Crown or public authority is bound in so far as it is required to comply with building regulations when carrying out building works, and to have a qualified building surveyor certify to that effect. Clause 6 enables the Minister to appoint a day or days on which provisions of the Act dealing with building practitioners apply to all building practitioners or any specified class or category of building practitioners. PART 2-BUILDING STANDARDS Clause 7 enables the Governor in Council to make regulations for the construction, use, maintenance and safety of buildings and the use, maintenance and safety of places of public entertainment. Clause 8 empowers a council to make local laws for and in respect of matters set out in Part 1 of Schedule 1. A local law made for a municipal district is deemed to be a building regulation in force for that particular municipal district. Clause 9 provides for the incorporation of documents by reference in regulations. Clause 10 provides that regulations or amendments to regulations do not apply to the carrying out of building work for which a building permit was in force or substantial design progress made before the regulation or amendment commences. That is unless the relevant building surveyor and the owner of the building agree that it does. Clause 11 sets out the effect of a planning scheme under the Planning and Environment Act 1987 on the building regulations as it regulates the siting of buildings in a municipal district or a part of a municipal district. If there is an inconsistency between the planning scheme and the building regulations then the building regulations, to the extent of the inconsistency, cease to have effect in that municipal district or part while the provision is in force (164) {Rev. No. 6) (922) 1

2 Clause 12 provides for a mechanism for the revocation of regulations related to building under any other Act by the Governor in Council. This is to ensure that there is consistency. Clause 13 states that local laws have no force if they deal with a matter set out in Part 1 of Schedule 1 unless they were made under the powers conferred by the building regulations. Clause 14 provides for the accreditation of building products and construction methods by the Building Regulations Advisory Committee or any other person or body prescribed for the purposes of this clause. Clause 15 provides that relevant building surveyors cannot refuse to approve building work, on the grounds that any building product or construction method is unsatisfactory, if that building product or construction method is accredited by the Building Regulations Advisory Committee or a prescribed person or body. The building regulations may provide for the issue of a certificate of accreditation. PART 3-BUILDING PERMITS Division 1-Building permit required Clause 16 states that building work must not be carried out without a building permit unless that building work is exempted by or under the Act or the regulations. Division 2-Applications for building work Clause 17 sets out who can make an application for a building permit to a municipal building surveyor or to a private building surveyor. Clause 18 states that Schedule 2 applies to an application for a building permit under this Part. Division 3-Decision on building permit Clause 19 sets out the decisions that can be made on an application for a building permit. Clause 20 sets out the types of building permit that can be issued. Clause 21 provides that an occupancy permit is required in respect of building work carried out after the commencement of this section except where the relevant building surveyor considers the work minor, or does not compromise the suitability of the building for occupation or where the work is prescribed building work. The building permit must state whether an occupancy permit is required. Clause 22 provides that a building permit may be issued subject to guarantees or bonds being used to secure the complete and satisfactory carrying out of authorised work. Clause 23 provides that where the relevant building surveyor issues a building permit that differs or fails to implement recommendations of a reporting authority the reporting authority is to be notified and a copy of the building permit is to be given to the reporting authority. 2

3 Clause 24 provides that a relevant building surveyor must not issue a building permit unless he or she is satisfied of certain matters. Clause 25 provides that a relevant building surveyor must notify an applicant of the refusal of the permit and the reasons for that refusal. Division 4-Special provisions Clause 26 provides that applications for building permits for places of prescribed public entertainment must be made to the Commission. The relevant building surveyor is to refer any application received. Clause 27 provides for special provisions in relation to building work covered by the House Contracts Guarantee Act Clause 28 enables a relevant building surveyor to issue a building permit for work that does not comply with building regulations if that work involves a building on the register established under the Historic Buildings Act 1981 or if the building surveyor considers that the building is of special interest. Clause 29 provides that a relevant building surveyor may refuse to issue a building permit for a building if the land concerned could be subdivided otherwise than under the Subdivision Act Division 5-Register and records Clause 30 provides that the relevant building surveyor is to give copies of permits and documents to council. Clause 31 states that a council must keep a register of all building permits given it under this Division. A copy of the register is to be made available by the council for inspection by any person. Clause 32 provides that a council must keep all documents under this Division for the prescribed period and in the prescribed manner. PART 4-INSPECTION OF BUILDING WORK Clause 33 provides that the person who is in charge of building work must inform the relevant building surveyor after the completion of each mandatory notification stage. That person must stop any work on completion of a mandatory notification stage if so directed by the relevant building surveyor. Clause 34 relates to the inspection of building work at mandatory notification stages. Clause 35 provides a relevant building surveyor with general inspection powers over building work. Clause 36 outlines the powers given to a relevant building surveyor to facilitate the carrying out of an inspection. Clause 37 provides the relevant building surveyor with powers to direct the person in charge of building work to carry out work so that it complies with the building permit, the Act or building regulations. 3

4 Clause 38 provides for a certificate of final inspection where a certificate of occupancy is not required. PART ~CCUPATION OF BUILDINGS AND PLACES OF PUBLIC ENTERTAINMENT Division l-occupancy permits (Building work) Clause 39 provides that where a building permit states that an occupancy certificate is required an occupancy certificate must be obtained before any person occupies the building or part of the building. Clause 40 provides that occupation must be in accordance with the occupancy permit. Clause 41 provides that an application for an occupancy permit is to be made to the relevant building surveyor. The clause also states who can make the application. Clause 42 provides that Schedule 2 applies to an application for an occupancy permit under this Division. Clause 43 sets out the decisions that can be made on an application for an occupancy permit. Clause 44 provides that an occupancy permit must not be issued unless the building or part is suitable for occupancy. Clause 45 sets out the matters to be specified in the occupancy permit. Clause 46 outlines the effect of the occupancy permit. Clause 47 provides that a reporting authority is to be notified of the issue of a permit where that permit differs from or fails to implement a recommendation of the authority and given a copy of the permit. Clause 48 provides that a relevant building surveyor must notify an applicant of the refusal of a permit and the reasons for that refusal. Division 2-Occupancy permits (places of public entertainment) Clause 49 provides that public entertainment is not to be conducted at places without an occupancy permit. Clause 50 provides that places not be used for a public entertainment without an occupancy permit. Clause 51 provides that a use of a place for public entertainment must be in accordance with the permit. Clause 52 provides that the use of a prescribed temporary structure must be in accordance with a permit. The requirements concerning occupiers are not intended to apply to spectators or other persons attending the entertainment. Clause 53 sets out to whom an application for an occupancy permit can be made. Clause 54 states that Schedule 2 applies to an application for an occupancy permit under this Division. 4

5 Clause 55 provides that a relevant building surveyor must not issue an occupancy permit unless the place to which the permit is to apply is appropriate for the type of entertainment proposed. Clause 56 sets out the decisions which may be made on an application for an occupancy permit. Clause 57 provides for special provisions for prescribed temporary structures. Clause 58 outlines the effect of an occupancy permit. Clause 59 provides for the matters to be specified in an occupancy permit and allows for the issue of a combined permit. Clause 60 provides that a reporting authority is to be notified of the issue of an occupancy permit where that permit differs from or fails to implement a recommendation of the authority and given a copy of the permit. Clause 61 provides that an owner is to notify certain other persons of the existence of an occupancy permit. Clause 62 provides that the relevant building surveyor must notify the applicant of the refusal of the permit and the reasons for refusal. Clause 63 provides for the inspection of places of public entertainment. Division 3-Temporary occupation of buildings Clause 64 enables a person to occupy a building on a temporary basis with the approval of a municipal or private building surveyor. Clause 65 states who can apply for approval under this Division. Clause 66 provides for the form of the application. Clause 67 sets out the decisions which can be made in respect of an application for approval. Clause 68 provides for the form of approval. CLause 69 provides that the relevant building surveyor must notify the applicant of the refusal of approval and the reasons for refusal. Division 4-Amendment and cancellation of permits and approvals CLause 70 empowers a municipal building surveyor to amend a permit or approval. Clause 71 provides for the cancellation of a permit or approval which was obtained by fraud or misrepresentation. Clause 72 provides for the cancellation of an occupancy permit on other grounds. Division 5-Register and records Clause 73 provides that the relevant building surveyor must give to the relevant council copies of certain documents. 5

6 Clause 74 provides that a council must keep a register of occupancy permits and temporary approvals. Clause 75 states that a council must keep all documents for a prescribed period and manner. PART 6-PRIVATE BUILDING SURVEYORS Clause 76 sets out the functions for which a private building surveyor may be appointed. Clause 77 outlines additional functions that the private building surveyor may carry out. Clause 78 sets out when and who can appoint a private building surveyor. Clause 79 sets out the circumstances in-which a private building surveyor may not act. Clause 80 states that a private building surveyor must notify the relevant council within 7 days of appointment. Clause 81 sets out in what circumstances a private building surveyor's appointment can be terminated. Clause 82 provides that where the appointment of a private building surveyor has been terminated and the duties are transferred to another building surveyor for completion, the Commission may give written instruction to facilitate the transfer. Clause 83 sets out the effect of transfer of function from one private building surveyor to a second building surveyor. PART 7-PROTECTION OF ADJOINING PROPERTY Clause 84 provides that notice of building work and protection work is to be given to an adjoining owner if protection work is required to be carried out. Clause 85 states that an adjoining owner must respond to the notice by agreeing, disagreeing or asking for more information. Where an answer is not received the owner is deemed to have agreed to the proposed protection work. Clause 86 provides that where there is agreement, the owner may proceed with the protection work after obtaining all the necessary permits and approvals. Clause 87 provides that where an owner disagrees or requests more information a relevant building surveyor must examine and determine the appropriateness or otherwise of the protection work. Clause 88 states that building work must not be carried out until all the protection requirements set out in that clause are met. The protection work must be carried out in the manner required by that clause. Clause 89 sets out a procedure for dealing with emergency protection work for a particular adjoining property. 6

7 Clause 90 provides that in the absence of an adjoining owner or where that adjoining owner is incapable of acting, the owner may apply to the Minister to appoint a person to act for the adjoining owner. Clause 91 provides for the appointment of an agent for the adjoining owner by the Minister. An adjoining owner may revoke the appointment of an agent. Clause 92 provides that the relevant building surveyor must make available for inspection to an adjoining owner any plans, drawings and specifications for the proposed building work. Clause 93 sets out that the owner must arrange insurance cover against damage by the proposed protection work to the adjoining property and other liabilities before commencing any protection work and hold that insurance for 12 months after building work is completed. The insured amount is to be determined in agreement with the adjoining owner or in the event of dispute, determined by the Building Appeals Board. Clause 94 provides that before any protection work, the owner in the company of the adjoining owner must survey the area and take note of any existing cracks and defects in the adjoining property. Clause 95 enables an owner or his or her agent to enter an adjoining owner's property between specified hours to carry out the necessary protection work. The owner is required to give 24 hours notice or other agreed notice. Clause 96 provides that where an adjoining owner has been notified by the owner of the intention to enter to carry out surveyor protection work, the adjoining owner and occupier must not obstruct the owner. Clause 97 enables the adjoining owner to recover from the owner the costs and expenses incurred in supervising the protection work. Clause 98 provides that the owner must compensate the adjoining owner or occupier for any inconvenience, loss or damage suffered in connection with the carrying out of the protection work. Clause 99 provides that the owner's liability for injury arising from the carrying out of the protection work is not affected by this Part. Clause 100 provides for the saving of easements. Clause 101 provides for the lodgement of plans, drawings and specifications with an adjoining owner and relevant building surveyor within 2 months of the protection work being completed. PART 8-ENFORCEMENT OF SAFETY AND BUILDING STANDARDS Division I-Emergencies Clause 102 provides for the making of an emergency order and its service on an owner by a municipal building surveyor, if that surveyor considers that the condition of a building or place of public entertainment is a danger to life or property. Clause 103 sets out the contents of an emergency order. 7

8 Clause 104 provides for the duration of the order. Clause 105 enables a municipal building surveyor to cancel an emergency order. Division 2-Building notices and building orders Clause 106 enables a municipal building surveyor or private building surveyor to issue a building notice on an owner if the building surveyor considers that one of a number of specified situations exists. Clause 107 confines a private building surveyor's power to issue a building notice to a building, land or place in respect of which the private building surveyor has been appointed to carry out a function under the Act. Clause 108 provides for the content and form of a building notice. Clause 109 enables an owner to make representations to the relevant building surveyor on the matters contained in the notice. Clause 110 enables a relevant building surveyor to cancel a building notice. Clause 111 enables a municipal building surveyor or private building surveyor to issue a building order on an owner after the end of the time set by a building notice for making presentations. The building order may prohibit occupation or require the owner to evacuate and or carry out building work. Clause 112 enables a municipal building surveyor or private building surveyor to issue a building order to stop building work. The order may be made without first serving a building notice. Clause 113 enables a municipal or private building surveyor to issue a building order without issuing a building notice if the building work required is of a minor nature. Clause 114 provides for the form and service of a building order. Clause 115 sets out what is to occur if a person does not comply with a building order made by a private building surveyor. Clause 116 enables an owner to request the relevant building surveyor for the amendment or cancellation of a building order if circumstances have changed. Clause 117 provides for the duration of the order. Division 3-General Clause 118 provides for penalties for the contravention of emergency or building orders. Clause 119 provides that a building permit is not required for building work carried out as a requirement of an emergency or building order unless the relevant building surveyor directs that it should. Clause 120 sets out what actions are required to be undertaken following the completion of work required to be carried out by an emergency or building order. 8

9 Clause 121 provides that a municipal building surveyor can cause the work required by an emergency order to be carried out if an owner fails to do so. Clause 122 empowers the Minister to authorise action to be taken by a municipal building surveyor where the Minister considers there is immediate danger. Clause 123 provides that where a municipal building surveyor carries out the work that the relevant council may recover the cost from the owner and apply any bond or guarantee lodged by the owner for that purpose. Clause 124 enables a municipal building surveyor to request assistance of a member of the police force. Clause 125 requires the relevant building surveyor to notify the relevant council of the making of an emergency order, building notice or building order and compliance with, amendment or cancellation of the order or notice. Clause 126 requires that a relevant council keep a register of all the orders and notices given to the council. A copy of the register is to be made available to the public. PART 9-LIABILITY Division 1-Immunity Clause 127 provides immunity for Commissioner and staff of and persons appointed by the Commission and members and staff of and persons appointed by a public authority.. Clause 128 provides immunity for a building surveyor relying on a certificate given by a registered building practitioner. Division 2-Limitation of liability Clause 129 defines "building action" and "building work". The definition of building work is to be read together with the definition of building work in clause 3. Clause 130 outlines the matters that are not affected by the Division. Clause 131 limits the liability of persons jointly or severally liable. The court must give judgment against each defendant held liable for a portion of the total amount of damages, having regard to the extent of the defendant's responsibility for the loss or damage. Clause 132 protects the rights to contribution as apportioned in the judgment by limiting the operations of the Wrongs Act Clause 133 confirms the operations of the Wrongs Act 1958 except as provided in clause 132. Clause 134 limits the time within which building action can be brought. Division 3-Insurance Clause 135 enables the Minister to make an order published in the Government Gazette requiring insurance for classes of building practitioners. 9

10 Clause 136 provides that it is an offence for a building practitioner to work without the required insurance. Clause 137 makes it an offence to claim to be insured when uninsured. PART 100BUILDING APPEALS BOARD AND ITS JURISDICTION Division I-Rights of appeal Clause 138 outlines the situations where an appeal can be made to the Building Appeals Board in relation to building and occupancy permits. Clause 139 provides that an owner may appeal to the Building Appeals Board against a decision relating to the temporary occupation of a building. Clause 140 enables an owner who appoints a private building surveyor or a private building surveyor to appeal to the Building Appeals Board against the Commission's failure, within a reasonable time, or refusal to consent to the termination of the surveyor's appointment. An appeal right is also given where the Commission will not consent to a new building surveyor being appointed to complete a building project. Clause 141 outlines the situations where an owner required to carry out protection work or an adjoining owner can appeal to the Building Appeals Board. Clause 142 outlines the situations where an owner of a building or land may appeal against building notices or orders to the Building Appeals Board. Clause 143 outlines who can appeal to the Building Appeals Board against the decisions of the Building Practitioners Board. Clause 144 provides for appeals against the exercise or non-exercise of discretions under building regulations in certain circumstances to the Building Appeals Board. Division 2-Appeals Clause 145 provides that this Division is additional to the Building Appeals Board's other powers. Clause 146 outlines the effect of decisions under appeal. Clause 147 provides for a fast track process for appeals. Clause 148 provides that an appeal is in the nature of a re-hearing and matters may be raised which were not raised prior to the decision under appeal. Clause 149 provides that the Building Appeals Board must consider and determine an appeal. It also outlines the Board's powers in making that determination. Division 3-Disputes Clause 150 provides that where there is a dispute about inspection of building work, the matter can be referred to the Building Appeals Board. Clause 151 provides that where there is a dispute about emergency protection works, the matter can be referred to the Building Appeals Board. 10

11 Clause 152 provides that where there is a dispute about the nature of insurance cover in relation to protection work, the matter can be referred to the Building Appeals Board. Clause 153 provides that where there is a dispute about survey work in relation to protection work, the matter can be referred to the Building Appeals Board. Clause 154 provides that where there is a dispute about costs and expenses incurred by an adjoining owner in supervising protection work, the matter can be referred to the Building Appeals Board. Clause 155 provides for other disputes between owners and adjoining owners under Part 7 to be referred to the Building Appeals Board. Clause 156 provides that where there is a dispute about an estimate for the purposes of the building permit levy, the matter can be referred to the Building Appeals Board. Clause 157 provides that where there is a dispute about the application and effect of building regulations, the matter can be referred to the Building Appeals Board. Clause 158 provides that where there is a dispute between owners about a party wall, the matter can be referred to the Building Appeals Board. The clause provides that it does not take away from the Subdivision Act Division 4--0ther proceedings Clause 159 enables an adjoining owner to apply to the Building Appeals Board for a determination on the amount of compensation related to protection work. Clause 160 provides for the modification of building regulations and defines what is meant by the term "provision of the building regulations". Division S-Powers concerning disputes and other proceedings Clause 161 outlines the general powers of the Building Appeals Board. Clause 162 outlines the special powers of the Building Appeals Board as regards the modification of building regulations. The provision enables the Building Appeals Board in making its determination of an application to modify the building regulations to require that certain conditions be met including entering into an agreement. Clause 163 sets out what an agreement, required by a determination of the Building Appeals Board, must or may include. Clause 164 enables an agreement to be varied or te"uinated with the approval of the Building Appeals Board. Clause 165 deals with the recording on title of agreements required by determinations of the Building Appeals Board. Division 6-The Building Appeals Board Clause 166 establishes the Building Appeals Board and outlines the constitution of the Board. It also clarifies the circumstances in which a member of the Board can also be a member of other bodies under the Act. 11

12 Clause 167 makes it an offence for a member or former member of the Board or member or former member of staff to make improper use of information gained by virtue of their position. Clause 168 outlines the role of the Registrar. PART ll-registration OF BUILDING PRACTITIONERS Division I-Registration Clause 169 enables an individual to apply to the Building Practitioners Board for registration as a building practitioner. It also outlines what an application must include. Clause 170 provides that the Building Practitioners Board must register an applicant in each category or class applied for if the applicant has complied with certain requirements. Clause 171 provides for registration to last until cancelled under this Part. Clause 172 provides for the issue of a building practitioner's certificate and its form. It also contains suspension provisions. Clause 173 establishes a Register of Building Practitioners and requires building practitioners to inform the Board of any changes to the details in the register. Clause 174 provides for the suspension of a person's registration by the Board if it becomes aware that the person's required insurance has lapsed. Suspension will last until such time as the person provides evidence to the fact that the appropriate cover has been obtained. Clause 175 outlines the consequences of suspension of registration. Clause 176 provides that the use of specified titles by unregistered persons is an offence and specifies exceptions to that offence. Division 2-Inquiries Clause 177 enables the Building Practitioners Board to appoint a person to do a preliminary assessment of the conduct or ability to practise of a registered building practitioner to determine whether an inquiry is necessary. Clause 178 provides the Building Practitioners Board with the power to conduct an inquiry into the conduct or ability to practise of a registered building practitioner. Clause 179 outlines the actions available to the Building Practitioners Board as a result of the inquiry into the conduct of a registered building practitioner. Clause 180 outlines the actions available to the Building Practitioners Board as a result of the inquiry into the ability to practise of a registered building practitioner. Clause 181 enables the Building Practitioners Board to pay the costs of a registered building practitioner where the finding is favourable. Clause 182 provides for notice of the decision of the Building Practitioners Board with regard to a registered building practitioner. It also provides a mechanism by which the Board can obtain costs. 12

13 Division 3-The Building Practitioners Board Clause 183 provides for the establishment and function of the Building Practitioners Board. Clause 184 provides for the membership of the Building Practitioners Board. Clause 185 enables the Building Practitioners Board to co-opt any person to be a member of the Board to assist in the consideration of a particular matter. Along with the power to appoint, comes the ability to remove the co-opted member from office. Clause 186 enables the Building Practitioners Board to establish and dissolve sub-committees and define their functions, procedure and membership. A member of the sub-committee does not have to be a member of the Board. Clause 187 refers to other provisions of the Bill which relate to the membership and procedure of the Building Practitioners Board. PART I2-BUILDING ADMINISTRATION Division I-Role of Minister Clause 188 enables the Minister to issue guidelines on a number of matters. It also outlines who is to have regard to the guidelines and for what purpose. Clause 189 enables the Minister to delegate any of the Minister's functions under the Act. Clause 190 enables the Minister to declare that for specified building work or a specified building or land the Commission act as a municipal building surveyor. Clause 191 enables the Minister to appoint a person to carry out the administration and enforcement of Parts 3, 4, 5, 7, and 8 and the building regulations in areas outside a municipal district. Clause 192 enables the Minister to appoint the Alpine Resorts Commission to carry out the administration and enforcement of Parts 3, 4, 5, 7, and 8 and the building regulations in an alpine resort. Division 2-The Building Control Commission, the Building Administration Fund and the Building Permit Levy Clause 193 establishes the Building Control Commission. Clause 194 provides for the constitution of the Commission. Clause 195 provides that the Commission is accountable to the Minister. Clause 196 sets out the functions of the Commission. Clause 197 enables the Commission to delegate its powers. Clause 198 provides that the Commission may issue directions to a building surveyor in respect of the timely carrying out of his or her functions under the Act or the regulations. The Commission can also refer matters to the Building Practitioners Board and make recommendations to the person who appointed the building surveyor. 13

14 Clause 199 provides special powers to the Commission as a municipal building surveyor or relevant building surveyor. Clause 200 provides that the Commission must establish a Building Administration Fund. The provision also outlines what must be paid into and out of the fund. Clause 201 provides for the payment of a building permit levy of cents in every dollar of the cost of building work for which a building permit is sought. Clause 202 requires the Commission to keep proper accounts and records of its financial operations and position. Clause 203 provides for the Commission to prepare an annual report containing a report of its operations and a financial statement for the financial year. The annual report must be prepared in the manner specified and submitted to the Minister who then causes it to be laid before both Houses of Parliament. Clause 204 requires the auditing of the Commission's financial statements by the Auditor-General and for the costs and expenses of the audit to be paid to the Consolidated Fund. Clause 205 provides for the appointment of a Registrar of the Building Appeals Board and a Registrar of the Building Practitioners Board, as well as other staff and persons necessary for the purposes of the Act. The staff may be public servants or employees or contractors of the Commission. Division 3-The Building Advisory Council Clause 206 provides for the establishment of the Building Advisory Council. Clause 207 provides for the constitution of the Council and its procedures. Clause 208 outlines the functions of the Building Advisory Council. Division 4-Building Regulations Advisory Committee Clause 209 establishes the Building Regulations Advisory Committee. Clause 210 outlines the membership and procedures of the Building Regulations Advisory Committee. Clause 211 outlines the functions of the Committee which include advising the Minister on draft regulations prepared under the Act. Division ~Role of councils Clause 212 provides for a council to be responsible for the administration of specified provisions of the Act and the building regulations in its municipal district. Clause 213 enables regional corporations set up under section 196 of the Local Government Act 1989 to exercise functions of councils under this Act. Clause 214 provides for a council to be able to enter into an agreement with another council or the Commission for the carrying out of the functions of a municipal building surveyor under this Act for the first council. 14

15 Clause 215 enables a council to enter into an agreement with a private building surveyor to carry out the functions of a municipal building surveyor of the council. Clause 216 provides, that for functions carried out outside the municipal district (except for another council), the council must not charge less than what it costs to carry out those functions. Division 6-The Crown and public authorities Clause 217 outlines the extent to which the Crown and public authorities are bound by the Act. Clause 218 provides that the Crown or a public authority is not required to apply for a building permit or occupancy permit. However, there is a requirement that where building work is to be carried out for a Department or public authority then all plans drawing and specifications must be certified by a building surveyor and provided to a council as if the Department or public authority had to apply for a permit. Clause 219 provides that municipal building surveyors are not required to inspect building work carried out by or on behalf of a Department or public authority. Clause 220 enables the Minister of Finance to prepare and publish guidelines for buildings owned by the Crown or a public authority (other than a council). These guidelines may apply to new or existing buildings. Clause 221 provides for the functions of a building surveyor under this Act in relation to building work carried out by or on behalf of the Crown or a public authority, to be carried out by a building surveyor authorised by the Crown or that public authority. PART 13-GENERAL ENFORCEMENT PROVISIONS Division I-Powers of Minister in relation to councils Clause 222 provides the Minister with the power to direct a council or a municipal building surveyor, by order, to carry out the given functions under the Act or regulations, if the Minister considers that they have not satisfactorily carried them out. Clause 223 provides that the Minister or a designated person must hear the council before the Minister makes such an order. Clause 224 outlines the effect of failure to comply with an order. For example the Minister may authorise any person to carry out the function and then direct the council to pay the costs, charges and expenses of that person. Clause 225 outlines the powers of the Minister and authorised person in the situation where the Minister has authorised a person to carry out the functions of a council. Clause 226 provides that the Minister may seek a review or mandamus under the Administrative Law Act 1978 where a council fails to carry out or cause the carrying out of a function in accordance with an order. Clause 227 provides that this Division does not affect any other powers. 15

16 Division 2-Powers of entry Clause 228 provides a definition of "authorised person" for this Division. Clause 229 provides for powers of entry to carry out the functions under the Act or regulations. Clause 230 specifies how much notice an authorised person must give an occupier. Clause 231 empowers an authorised person to enter a building or land at any time in the case of an emergency. Clause 232 outlines what an authorised person who enters a building or land may do. Clause 233 enables an authorised person to request the assistance of a member of the police force. Clause 234 provides a penalty for impersonating an authorised person. Division 3-Evidence and notices Clause 235 sets out what is evidence that a person is the owner or occupier of land in any legal proceedings under the Act or regulations. Clause 236 provides for the service of documents. Clause 237 provides that documents to be served on the Building Practitioners Board or Building Appeals Board must be taken to have been served if served on the Registrar of the relevant Board. Clause 238 provides that a building surveyor may rely on a certificate received from a registered building practitioner stating that building work complies with the provisions of the Act or regulations. Clause 239 provides that a certificate from the Registrar of the Building Practitioners Board is proof that a building practitioner is or is not registered. Clause 240 enables an owner to appoint an agent to act on behalf of the owner. That authority must be in writing. Division 4-Offences and penalties Clause 241 outlines who can bring a proceeamgs for an offence under the Act or regulations and provides for the period within which a proceeding under the Act or regulations may be brought. Clause 242 provides for the application of penalties depending on who prosecuted the offence. Clause 243 provides for offences by those responsible for bodies corporate. Clause 244 provides that it is an offence to obstruct without reasonable excuse the carrying out of a function under the Act. 16

17 Clause 245 makes it an offence to give to a registered building practitioner or for a registered building practitioner to receive, a benefit to influence the carrying out of the practitioner's functions under the Act. Clause 246 provides that it is an offence to make false or misleading statements. Clause 247 provides that a person must not contravene provisions in the Act dealing with pecuniary interest. Clause 248 provides that it is an offence to act on behalf of an owner without written authorisation to do so. Clause 249 requires an owner builder to provide a report from a prescribed registered building practitioner to a purchaser of a building. Clause 250 gives a right to an owner to carry out required work on occupied land. The owner is to give written notice to the occupier stating particulars of the work and requiring the occupier to permit the owner or another person to enter in order to carry out the work. The owner may obtain a court order to enforce this right. Clause 251 provides that an occupier or registered mortgagee may carry out work or that thing required under the Act or regulations if an owner fails to do so. Expenses necessarily incurred in such an action may be recovered from the owner by various means. Clause 252 enables the Commission to apply to the Magistrates Court for a warrant if a person refuses to vacate a building or place when required to do so by an order under the Act. The warrant directs and authorises a person to enter a building or place with such assistance as is necessary to evict all persons at the time occupying the building or place. Clause 253 sets out what additional orders may be made by the court. Division 5-Building infringements Clause 254 defines for this Division "authorised officer" and "prescribed offence". Clause 255 provides for building infringements. It enables an authorised officer to serve an infringement notice on an owner or occupier or a person carrying out building work if that officer has reason to believe that the person has committed a prescribed offence in respect of a building or land. Clause 256 outlines what additional steps may be required to be taken to expiate a prescribed offence. Clause 257 allows for the withdrawal of building infringement notices except in certain circumstances. Clause 258 sets out what a person is required to do to expiate an offence. If an offence has been expiated then no further proceedings can be taken and no offence may be regarded as having been recorded. Clause 259 provides for proceedings where a building infringement notice has been served. 17

18 PART 14-GENERAL Clause 260 limits the jurisdiction of the Supreme Court in respect of entertaining actions referred to in clause 128 or clause 10 of Schedule 4 and to ensure that proceedings are determined in accordance with clauses 129 to 134. Clause 261 sets out the general regulation-making powers of the Governor in Council. Clause 262 provides for additional powers as to regulations such as imposing penalties not exceeding 10 penalty units for a contravention of the regulations. Clause 263 provides that Schedule 4 has effect as regards the transitional provisions. Clause 264 provides for consequential amendments to be made to other specified Acts as set out in Schedule 5. SCHEDULES SCHEDULE 1 BUILDING REGULATIONS Sets out matters for which building regulations can be made and provides a procedure for disallowance of amendments to the Building Code of Australia which are included in building regulations. SCHEDULE 2 PROCEDURES FOR BUILDING PERMITS AND OCCUPANCY PERMITS Clause 1 provides for the form of the application for a building permit or occupancy permit. Clause 2 enables the relevant building surveyor to request more information before the relevant building surveyor deals with the application. The clause also provides that the prescribed time in which a relevant building surveyor is to decide on an application ceases to run until the additional information is provided. Clause 3 provides that an application may be refused if the additional information requested is not provided. Clause 4 provides that a reporting authority must be consulted by the relevant building surveyor before making a decision on an application, if the regulations or any other Act require it. Clause 5 enables an applicant for a permit to request a report or consent from a reporting authority. If a request has been made the applicant must notify the relevant building surveyor and supply a copy when response is received. If the applicant obtains a report or consent then the relevant building surveyor need not do so. Clause 6 outlines what can occur if a reporting authority (other than a council or council officer) fails to supply a report or consent. 18

19 Clause 7 provides that a relevant building surveyor must consider any report of a reporting authority befote deciding on an application. Further, if the recommendation is from a prescribed reporting authority in relation to a prescribed matter then the relevant building surveyor is required to implement the recommendations in deciding the application. SCHEDULE 3 MEMBERSHIP AND PROCEDURE OF BOARDS PART I-MEMBERSHIP Clause 1 provides for the term of appointment of members of a Board under the Act. Clause 2 provides that a member of a Board, who is not a member of the public service, is entitled to remuneration and travelling or other allowances as fixed by the Minister. Clause 3 outlines how a vacancy can occur on a Board. Clause 4 states what Parts of the Public Sector Management Act 1992 apply to a member of a Board. Clause 5 enables the Minister to appoint an acting member to replace a member who is unable to perform the duties of his or her office. An acting member has all the functions of the member on behalf of whom he or she is acting. Clause 6 outlines a member's responsibility as regards pecuniary interests. Clause 7 provides that membership of a Board is not to be taken as holding an office or place of profit under the Crown for the purposes of the Constitution Act PART 2-GENERAL PROCEDURE Clause 8 provides that the Building Appeals Board may sit in panels. Provisions pertaining to a Board also apply to a panel unless otherwise provided in the Schedule. Clause 9 provides that decisions of a Board are not invalidated because certain matters have occurred such as a vacancy in its membership. Clause 10 outlines what constitutes a quorum and who is to chair a meeting of a Board. It also provides that the procedures of a Board are at its discretion, subject to this Act and regulations. Clause 11 provides for the authentication of documents required or authorised to be prepared by a Board. PART 3-PROCEEDINGS BEFORE me BUILDING APPEALS BOARD Clause 12 provides for additional powers of the Building Appeals Board. Clause 13 sets out how to commence proceeding before the Board. It also outlines what a document commencing proceedings is to contain. 19

20 Clause 14 sets out who is a party to a proceeding. Clause 15 sets out how the Building Appeals Board is to conduct its proceedings. Clause 16 provides that a determination by the Building Appeals Board must be in writing and a copy provided to each party to the proceeding. A party to the proceeding can, within a specified time, request reasons for the decision. Clause 17 provides that parties to the proceedings must bear their own costs unless otherwise provided in the determination. Clause 18 enables the Building Appeals Board to make a determination correcting the specified errors in an earlier determination. The powers of the Board in this respect may be exercised on behalf of the Board. Clause 19 provides for how the determinations of the Board are enforced. SCHEDULE 4 TRANSITIONAL PROVISIONS Clause 1 provides for the meaning of various terms and words used in this Division. Clause 2 provides for general transitional provisions as a consequence of the passing of this legislation. Clause 3 sets out the new references in place of superseded references. Clause 4 provides for the disbandment of bodies under the old Act. Clause 5 provides that officers under the old Act who are members of staff remain members of staff within the meaning of the Public Sector Management Act 1992 after the commencement of the section, on the same terms and conditions. Clause 6 provides that the Commission can continue and complete any matter of a continuing nature commenced under the old Act by the Director of Building Control. Clause 7 provides that directions made under the old Act concerning the administration of the Act have effect as if they were directions under the Act. Clause 8 enables building approvals and building permits under the previous legislation to have effect as if they were permits under the new legislation. Clause 9 outlines what the requirements are before a building can be constructed if the building approval was applied for under the old Act. It sets out the sections of the old Act which are to apply to certain actions relating to determination of building approvals and appeals. Clause 10 continues the immunity under sections 22 and 80 of the old Act. Clause 11 saves and extends the life of building regulations made under the old Act until 1 July 1995 unless sooner revoked and provides that amendments to the Building Code of Australia must be tabled in Parliament. Clause 12 provides that certificates of occupancy issued under the old Act or any corresponding previous enactments are deemed to be considered as occupancy permits 20

21 under this Act and may"be varied or cancelled accordingly. It also provides a mechanism for dealing with certain building work not completed at the commencement of this clause. Clause 13 saves instruments and other matters under the building regulations under the old Act. Clause 14 provides that Division 2 of Part 9 does not apply to building work started before the commencement of this section. Clause 15 saves the Health (Public Buildings) Regulations 1985 even though section 200 of the Health Act 1958 is repealed. Clause 16 provides that where there is a right to take proceedings before a Building Referees Board but proceedings have not commenced, the proceedings may be commenced or continued, as the case may be, before the Buildings Appeals Board. If proceedings have commenced they must be completed by the Referees Board. Clause 17 provides that this Act applies to variation and release of an agreement made in accordance with a determination under the old Act as if it were made by this Act. Clause 18 provides that accreditation by the Building Control Accreditation Authority is deemed to be accreditation by the Building Regulations Advisory Committee for the purposes of the Act. A pending application made to the Building Accreditation Authority is deemed to have been made to the Building Regulations Advisory Committee. Clause 19 provides that a person with a current certificate of qualification as a building surveyor issued under the old Act is deemed to be registered under this Act. In the same way a building inspector is deemed to be a registered building inspector. However these persons must apply for building practitioner's certificates. This certificate is issued free of charge for the first 12 months in recognition of the change from lifetime registration to annual certificates. Clause 20 provides that where the Building Qualifications Board had begun a hearing but not made its determination at the commencement of this section, it can continue to do so. Where it had nor begun to hear a proceeding, the Building Practitioners Board may hear and determine the proceedings in accordance with the old Act. Clause 21 provides for an exemption from the offence provisions relating to people who practise as building practitioners when unregistered. An approval under section 127A (2) (d), of the old Act has effect as an exemption from that offence. Clause 22 provides that Part VIII of the old Act continues to apply where a joint report or fire protection notice has been issued or an order made under that Part. It further provides for when that saving ceases to apply. Clause 23 provides for Part IX of the old Act to continue to apply to specified arbitration matters until completed. Clause 24 provides savings for approvals for temporary public buildings issued under Part IX of the Health Act Clause 25 provides that a delegation by a council under the old Act has effect as if made under the Local Government Act

22 Clause 26 clarifies doubt about whether certain provisions of the new Act are re-enactments of provisions of the old Act. SCHEDULE 5 CONSEQUENTIAL AMENDMENTS The Schedule sets out which Acts are to be consequentially amended. By Authority L. V. North, Government Printer Melbourne 22