Australian Capital Territory Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
BUILDING LEGISLATION AMENDMENT BILL 2007
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Planning)
Building
Legislation Amendment Bill 2007
Contents
Page
Part 1.1 Building
Act 2004 3
Part 1.2 Building
and Construction Industry Training Levy Act 1999 59
Part
1.3 Construction Occupations (Licensing) Act
2004 60
Part
1.4 Construction Occupations (Licensing)
Regulation 2004 62
Part 1.5 Planning
and Development Act 2006 64
2007
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Planning)
Building Legislation
Amendment Bill 2007
A Bill for
An Act to amend legislation relating to building because of the enactment
of the Planning and Development Act 2006, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Building Legislation Amendment Act 2007.
This Act commences on the commencement of the Planning and Development
Act 2006.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
3 Legislation
amended—sch 1
This Act amends the legislation mentioned in schedule 1.
Schedule
1 Legislation
amended
(see s 3)
Part
1.1 Building Act
2004
substitute
7 Meaning of building
(1) In this Act:
building includes—
(a) a structure on or attached to land; and
(b) an addition to a building; and
(c) a structure attached to a building; and
(d) fixtures; and
(e) part of a building, whether the building is completed or
not.
Example of part of
building
footings poured for a building that is being built
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s 132).
(2) However, building does not include—
(a) a vehicle or craft that is not used or adapted for use as a class of
building or structure classified under the building code; or
(b) a transportable building, mobile home, caravan or similar
that—
(i) is not used for long-term habitation; and
(ii) is readily transportable without being disassembled or removed from
associated components including a footing, pier, stump, rigid annexe or an
attached building or similar; or
(c) if on the ground and not inside a building—paving, a driveway or
a road; or
(d) a surface-level carpark that is not inside a building; or
(e) a ground treatment; or
(f) vegetation; or
(g) ground excavations or fillings; or
(h) fittings, other than fittings included in a building—
(i) to make the building comply with the building code; or
(ii) that cause the building to not comply with the building code;
or
(i) fixtures that are not integral to the building, but are fixed to the
building to prevent theft or for some other reason not related to the building;
or
(j) something exempted under the regulations.
Examples—par (h)
1 An existing house was built when there was no requirement for the house
to satisfy any energy efficiency requirements or thermal insulation
requirements. Bulk thermal insulation batts are included in an extension to the
house to comply with the building code’s energy efficiency provisions
which apply to the extension. The opportunity is taken to include batts in the
ceiling of the existing house. The batts sit loosely on the ceiling and are not
fixed to the building.
The batts are part of the extension, because they are regulated under the
building code for the extension. However, they are not part of the existing
house, because they are not fixtures, and are not regulated under the building
code in relation to the existing house, unless they are needed in the existing
house to make the extension comply with the building code.
2 Some light fittings in an office building are fitted with energy
efficient lamps to comply with the energy efficiency provisions of the building
code. The lamps are part of the building. However, other lamps that are not
relied on to comply with the building code are not part of the building unless
another provision brings them within the definition of building
for the Act.
3 An office building has cubicles that are not fixed to the building. The
cubicles have partition walls, are part of the fit-out for the building and are
shown in the building approval. Some cubicles are placed where they obstruct a
fire evacuation path in a way that prevents compliance with the building code.
Those cubicles are part of the building. The others are not unless another
provision brings them within the definition of building for the
Act.
4 A warehouse is being extended. The warehouse stores furniture. Some
partitions for cubicles stored in the warehouse impede fire evacuation paths
relied on for the extension to comply with the fire evacuation provisions of the
building code. The partitions cause the extension to not comply with the
building code. The partitions are stored goods and not fittings, so they are
not part of the building unless another provision of the Act brings them within
the definition of building for the Act.
5 An apartment building has a surface-level carpark, part of which is below
the apartments and part of which is adjacent to the building with no building
above, below or within it. The part of the surface-level carpark below the
apartments is part of the building or a separate building, depending on the
building code. The other part of the carpark is not part of the building unless
another provision of the Act brings it within the definition of
building for the Act.
6 A concrete floor slab for a home is being poured together with a floor
slab for a garage and a surface-level driveway to the garage. The floor slabs
are parts of the building. The surface-level driveway is not part of the
building unless another provision of the Act brings it within the definition of
building for the Act.
(3) To remove any doubt, something is not excluded from the definition of
building only because it is temporary or novel.
Example
a building used in connection with a fair, circus, carnival, celebration,
market, show, concert, display, exhibition, competition, training event,
recreational event or publicity event is not excluded on the basis of its
temporary or novel nature
7A Meaning of site work
In this Act:
site work is development that is—
(a) building work; and
(b) work other than building work that—
(i) physically affects the place (the building site) where
the building work is being carried out; and
(ii) if not carried out at the building site, is carried out near, and
connected with, the building site.
Examples of site work
1 putting up temporary fencing to protect trees growing on a road
verge
2 building a house
3 damaging or removing a significant tree
4 laying paving for driveways and parking areas
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
omit
substitute
Note 1 Exempt building is used to narrow the application of
pt 3, pt 5 and pt 6.
Note 2 A regulation may also exempt a building from the application
of this Act or a part of the Act (see s 152 (1A)).
omit
omit
substitute
(b) the work is not exempt from this subsection under a
regulation.
omit
[1.8] Division
3.2, new note
insert
Note about application—div 3.2
This division applies to building work and other site work.
[1.9] Section
17, definitions of eligible person and government
certifier
substitute
eligible entity, for building work—see section
18.
government certifier, for building work, means an entity that
is appointed under section 20 (4) for the work.
omit everything before paragraph (a), substitute
18 Eligibility for appointment—certifiers and
government certifiers
A licensed construction practitioner (an eligible entity) is
eligible to be appointed certifier or government certifier for building work if
the construction practitioner—
substitute
19 Appointment of certifiers—work not
begun
The owner of land where it is proposed to carry out building work may
appoint an eligible entity as certifier for the work.
Note An appointment must be in writing (see Legislation Act, s
206).
19A Appointment of certifiers—work
begun
(1) This section applies if—
(a) building work has begun on a parcel of land; and
(b) the building work has been carried out in accordance with this
part.
(2) The owner of land may appoint an eligible entity as certifier for the
building work.
19B Automatic suspension
An entity’s appointment as certifier is suspended if the entity stops
being an eligible entity.
19C Ending suspensions
(1) This section applies if an entity’s appointment as certifier is
suspended.
(2) The entity’s suspension ends when—
(a) the entity becomes an eligible entity; or
(b) the entity’s appointment as a certifier ends.
19D Ending appointments
(1) An entity’s appointment as certifier for building work on land
ends if—
(a) the owner of the land revokes the appointment by written notice given
to the entity; or
(b) the entity resigns the appointment; or
(c) the entity’s appointment has been suspended for a single period
of 3 months; or
(d) each of the following apply:
(i) a certificate under part 5 (Building occupancy) is issued for the
building work;
(ii) the certificate is not subject to a condition that requires building
work to be done;
(iii) there is no part of the building work for which a certificate under
part 5 has not been issued; or
(e) it has been 5 years since the certifier was last appointed as
certifier for the building work.
(2) An entity may resign an appointment as certifier only—
(a) with the written approval of the construction occupations registrar;
and
(b) by written notice given to the owner of the land.
(3) The construction occupations registrar may approve the resignation of
the entity as certifier only if satisfied that—
(a) the entity can not exercise the entity’s functions as a
certifier in relation to the building work because of mental or physical
incapacity; or
(b) the entity has arranged for another certifier to take over the
entity’s functions as a certifier in relation to the building work;
or
(c) it is otherwise appropriate to approve the resignation.
(4) An appointment that ends under subsection (1) (c) ends on the day
after the end of the 3-month period.
substitute
21 Power to require building
documents
(1) A government certifier appointed for building work may, by written
notice, require the entity that was the certifier (or last certifier) for the
building work to give the government certifier any building document the entity
has in relation to the work within the period stated in the notice.
(2) The period stated in the notice must not be less than 2 weeks after
the day the notice is given.
(3) A person commits an offence if the person contravenes a notice given
to the person under subsection (1).
Maximum penalty: 50 penalty units.
(4) Each partner commits an offence if the partnership contravenes a
notice given to the partnership under subsection (1).
Maximum penalty: 50 penalty units.
(5) It is a defence to a prosecution for an offence against subsection (4)
if the partner proves—
(a) that—
(i) the partner did not know about the contravention of the subsection
involved in the offence; and
(ii) the partner took reasonable precautions and exercised appropriate
diligence to avoid the contravention; or
(b) that the partner was not in a position to influence the partnership in
relation to the conduct involved in the contravention.
(6) An offence against subsection (3) or (4) is a strict liability
offence.
(7) In this section:
building document means a document mentioned in
section 48 (2) (Completion of building work).
substitute
(4) This section does not prevent a certifier from sketching a required
design solution as part of a direction in a notice under
section 44 (2) (a).
substitute
24 Notice of certifier’s appointment or end of
appointment
(1) This section applies if—
(a) a building approval has been issued for building work; and
(b) after the issue, either—
(i) an entity is appointed certifier for the work; or
(ii) an entity’s appointment as certifier for the work
ends.
(2) Within 7 days after the day the entity is appointed or the appointment
ends, the entity must give the construction occupations registrar written notice
of the appointment or end.
Note If a form is approved under s 151 for a notification, the form
must be used.
[1.15] New
sections 25A to 25C
in division 3.3, insert
25A Overview—div 3.3
(1) This division deals with building approvals for building work carried
out on land and how the owner of the land may apply for building
approval.
(2) Section 27 to section 30A affect the issue of building approvals as
follows:
(a) section 27 provides that a certifier must not consider an application
for building approval unless, amongst other things, the accompanying plans
comply with the requirements prescribed by regulation;
(b) section 28 provides that an application for building approval must be
approved if the plans meet each approval requirement under section 29, and deals
with how the approval is given;
(c) section 28A sets out how a building approval is marked on
plans;
(d) section 29 sets out the approval requirements for the plans;
(e) section 30 and section 30A set out when an application for building
approval must be refused.
25B Why are building approvals
necessary?
(1) A building approval is necessary because—
(a) section 42 (1) (d) requires building work to be carried out in
accordance with approved plans (which may have to comply with this Act in
relation to asbestos); and
(b) approved plans are plans that relate to building work for which a
building approval is in effect.
(2) Section 42 provides that building work must not be carried out
except in accordance with the requirements set out in the section.
(3) Not complying with section 42, for example—
(a) is an element of offences against section 42A (Contravention of
requirements for building work involving asbestos) and section 51 (Carrying out
building work in contravention of s 42) ; and
(b) is a ground for giving a notice to a building licensee under section
44 (2) (a) (Stage inspections); and
(c) is a ground for giving a notice to carry out building work under
section 62 (see s 61 (b)).
Note 1 Not complying with s 42 may also be grounds for disciplinary
action under the Construction Occupations (Licensing) Act 2004.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
25C Building approvals apply to building
work
To remove any doubt—
(a) a building approval only relates to building work shown on the
approved plans under the approval, other than building work—
(i) identified in the plans as not forming part of the approval;
and
(ii) on a parcel of land other than a parcel to which the application for
approval relates; and
(b) the issue of a building approval does not indicate that carrying out
work other than building work identified in the plans is consistent with the law
or lease provisions applying to carrying out the work.
Example of work other than building work
shown in approved plans
Approved plans show a multi-unit townhouse development. As well as showing
the townhouse buildings, the plans include landscape plans and structural
engineer’s plans for structural elements, brickwork screen walls, paling
fencing and reinforced concrete pedestrian surface paving. The building
approval only relates to the townhouse buildings (including their structural
elements), the retaining walls, the screen walls and the fencing.
Example of building work on parcel of land
other than parcel to which application relates
1 Approved plans show a shop which is proposed to have an awning over the
footpath in front of the shop. The awning is over unleased territory land,
while the rest of the shop is on leased land. An application for building
approval may only be made by the owner of the parcel of land for approval to
carry out building work on the land. If only the owner of the leased land
applies for building approval and the building approval is issued, the building
approval can relate only to building work on the leased land and not to the
awning. However, if the Territory and the owner of the leased land jointly
apply for building approval and the approval is issued, the approval can relate
to building work on both the awning and the leased land. But, if the Territory
grants the applicant a permit for the awning to be over a public place, the
permit-holder is, under this Act, taken to be the owner and may apply for
building approval for all the building work, including the awning.
2 Approved plans show proposed demolition of a fence and a party wall. The
wall and fence straddle a common boundary shared by 2 land parcels. The
building approval can not operate in relation to only 1 of the parcels. If
building approval is required for the demolition, it must relate to both parcels
of land.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
[1.16] New
sections 26A to 26C
insert
26A Applications for building
approval—certifier may require further information
(1) This section applies if—
(a) the owner of a parcel of land (the applicant) has
applied to a certifier for building approval for building work to be carried out
on the land; and
(b) further information is required for the certifier to be able to decide
the application without personally inspecting the land where the building work
is to be carried out; and
(c) the applicant and the certifier have not agreed that the certifier
will obtain the further information.
(2) The certifier may, by written notice, ask the applicant to give the
certifier stated further information in relation to the application if the
certifier believes on reasonable grounds that the information will help the
certifier to decide the application without personally inspecting the land where
the building work is to be carried out.
Examples of what certifier may ask
for
1 photos, including ground, aerial, or satellite photos of the land or
anything on, over or near the land
2 approval, permission or tenure documents, including leases, licences,
permits, statutory approvals or advices
3 topographical information, including ground surface height contours, for
the land and surroundings
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) To remove any doubt, this section does not entitle a certifier to
require—
(a) photographs to be taken by someone other than the applicant;
or
(b) photographs to be taken using equipment of the applicant’s
choice at or near ground level; or
(c) further information if—
(i) the certifier has, or has reasonable access to, suitable information
that allows the certifier to decide the application without personally
inspecting the land where the building work is to be carried out; or
(ii) a territory law requires the certifier to personally obtain or be
given the information.
Examples of suitable information certifier
has or has reasonable access to
1 The internet website www.actmapi.act.gov.au provides aerial photographs
and topographical information including ground contours for some ACT areas. If
the land to which an application relates is covered by the website, the
photographs and contours have sufficient information, and are accurate and
recent enough, to decide the application in relation to tree and ground-height
related matters, the certifier may not require further information or documents
by way of photographs or topographical information in relation to trees and
ground heights.
2 A certifier may verify land tenure and permit and statutory approval
matters by contacting the statutory custodians of the information to a
sufficient degree to decide the application in relation to those matters. The
certifier may not require further information in relation to those
matters.
3 The land to which an application relates is covered by
www.actmapi.act.gov.au but, because the slope of the land to be built on is
steeper than would be adequately shown on the website, the certifier does not
have suitable information to allow the certifier to decide the application
without personally inspecting the land. Another website has some topographical
information on the land, but it is not of sufficient resolution, or recent
enough, to be relied on by the certifier in relation to ground heights to decide
the application. The certifier may require further information in relation to
ground heights.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) For this section, a certifier that is a partnership inspects land
personally if any partner inspects the land.
26B Contents of request for further
information
(1) A request under section 26A must—
(a) state the period within which the further information asked for must
be provided; and
(b) if the further information is not a document—state that the
further information must be provided in writing; and
(c) state that the applicant need not provide the further information, but
if the applicant fails to provide some or all of the information in accordance
with the request, the certifier may refuse to issue a building approval under
section 28; and
(d) state that, despite the applicant and certifier having previously not
agreed that the certifier would obtain the further information, the applicant
and certifier may agree that the certifier will obtain the
information.
(2) The request may require the applicant to verify all or part of any
information provided by statutory declaration.
(3) The period stated under subsection (1) (a) must be at least
20 working days or, if a shorter period is prescribed by regulation, the
shorter period.
(4) The certifier may, on application before the end of the period stated
under subsection (1) (a), extend the period within which the further information
must be provided once only, for a period not longer than 20 working
days.
Note The certifier may extend the period within which further
information must be provided after the end of the period being extended (see
Legislation Act, s 151C (3)).
26C Applications for building approval—effect
of failure to provide further information
(1) This section applies if—
(a) a certifier has asked for further information under section 26A in
relation to an application; and
(b) the applicant has not provided some or all of the information in
accordance with the request; and
(c) the applicant and the certifier have not agreed that the certifier
will obtain the further information.
(2) The certifier may refuse to issue a building approval under
section 28.
[1.17] Section
27 (1) (b)
substitute
(b) if a regulation requires the advice of an entity to be sought on the
application—the entity’s advice has been sought as prescribed by
regulation; and
[1.18] Section
28 (1) (c)
substitute
(c) section 30 (When building approvals not to be issued—general)
and section 30A (When building approvals not to be issued—advice on
referral) do not prevent the issue of the approval; and
(d) if there is a written agreement between the certifier and applicant
for the payment of an amount for deciding the application and the agreement
states that the amount is to be paid before the application is decided—the
amount has been paid.
substitute
(2) As soon as practicable after receiving the application for building
approval, the certifier must—
(a) take all reasonable steps to get the information the certifier
reasonably needs to decide the application; and
(b) if satisfied on reasonable grounds that the plans meet each applicable
approval requirement under section 29 and is not prevented from being issued
under section 30 or section 30A—
(i) prepare a notice (the building approval certificate)
certifying what approval requirements apply to the application and why the
building approval is not prevented from being issued; and
(ii) issue the building approval and give the building approval
certificate to the applicant.
Note 1 If a form is approved under s 151
for this provision, the form must be used.
Note 2 A fee may be determined under s 150 for this
provision.
(2A) To remove any doubt, a certifier is not required to decide an
application for building approval if the applicant has asked the certifier to
delay making the decision, whether to allow the applicant to negotiate with an
entity to which the application has been referred or for any other
reason.
[1.20] Section
28 (3) to (7)
substitute
28A Marking building approval
(1) If a certifier issues a building approval under section
28—
(a) the approval must be marked on, attached to or partly marked on and
partly attached to, each page of the plans it relates to; and
(b) the certifier must—
(i) initial, date and mark the certifier’s licence number on each
page of the plans; and
(ii) attach each accompanying document to the plans; and
(iii) if the accompanying documents do not include an asbestos assessment
report—attach an asbestos advice to the plans.
Note If a form is approved under s 151 for a building approval, the
form must be used.
(2) However, if, because of the size of the plans, it is impractical to
mark the building approval on each page of the plans, the certifier may, instead
of marking the approval under subsection (1) (a), mark each page of the plans
with—
(a) the certifier’s initials and licence number and the date;
and
(b) an indication that the approval, or part of the approval, is in a
separate document.
(3) Also, if, because of the size of 1 or more of the accompanying
documents (the relevant documents), it is impractical to attach
the relevant documents to the plans, the certifier may, instead of attaching the
relevant documents under subsection (1) (b) (ii), mark each page of the
plans with an indication that the relevant documents are separate.
(4) If the certifier issues the building approval, the certifier
must—
(a) give to the person who applied for the approval a copy
of—
(i) the approval; and
(ii) the relevant plans; and
(iii) if 1 or more of the accompanying documents are not attached to the
plans—the accompanying documents that are not attached; and
(b) not later than 7 days after the day of issue, give to the construction
occupations registrar—
(i) a copy of the approval; and
(ii) the building approval certificate; and
(iii) a copy of the relevant plans; and
(iv) if 1 or more of the accompanying documents are not attached to the
plans—a copy of the accompanying documents that are not attached;
and
(v) if notification of the certifier’s appointment has not
previously been given to the registrar—notification of the
appointment.
Note 1 If a form is approved under s 151 for a notification of
appointment, the form must be used.
Note 2 A fee may be determined under s
150 for this section.
(5) In this section:
accompanying document, in relation to a building approval,
means a document required to accompany the application for the building
approval.
Note Section 26 requires certain documents to accompany applications
for building approval and allows other material required to accompany
applications to be prescribed by regulation.
[1.21] Section
29 (1) (b)
substitute
(b) if the plans are for the erection or alteration of a
building—the building, if erected or altered in accordance with the plans,
will comply with this Act;
(ba) if the plans are for the demolition of a building—demolition in
accordance with the plans will comply with this Act;
[1.22] New
section 29 (1) (f)
insert
(f) if the plans show site work that, if carried out in accordance with
the plans, might be exempt under the Planning and Development Act 2006
from requiring development approval—
(i) the plans show all the information necessary to establish that the
site work will be exempt; or
(ii) development approval for the site work is attached.
Example
Plans show a proposed residence and garage, and development approval has
not been given. The information in the plans in relation to the residence and
garage suggests that the residence and garage might be exempt from the
requirement for development approval.
However, the territory plan sets out other requirements that must be
satisfied before the proposed residence and garage will be exempt from requiring
development approval, for example, requirements in relation to trees, driveways,
car parking, colours and the amount of the land parcel that must not contain
certain buildings.
The plans must show all the information necessary for the certifier to be
satisfied that all the requirements for the proposed residence and garage to be
exempt from requiring development approval have been met, including the
requirements in relation to trees, driveways and other matters related to the
residence and garage in the territory plan.
If development approval is given for the proposed residence and the garage,
then the plans do not need to include the information necessary to establish
that they are exempt from requiring development approval.
Note 1 Section 30 and s 30A prevent building approval from being
given in some cases.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
[1.23] Sections
30 and 31
substitute
30 When building approvals not to be
issued—general
(1) A certifier must not issue a building approval if carrying out the
site work to which the application for the approval relates would result in the
contravention of this Act or any other law in force in the ACT because
of—
(a) the design or siting of a proposed building or a building as proposed
to be altered; or
(b) the material used in the building; or
(c) the proposed use of the building as determined by the class of
building; or
(d) the number of buildings on the land.
Example
Under the Planning and Development Act 2006, s 240 leased land must
not be used for a purpose other than a purpose authorised by the lease. A lease
provides that the leased land may be used only for a single residence.
If an application for building work on the land contains plans for 2
residences in a single building, carrying out the site work will result in a
contravention of the lease and therefore the Planning and Development Act.
Accordingly, a certifier must not issue the building approval.
If an application for building work on the land indicates that 1 room is to
be used for a home office, and part of the lounge room is to contain a bar area,
the building may still be used as a residence and a certifier could issue
building approval, even though conducting a home business may require
development approval.
Note 1 The power to make a statutory instrument includes the power
to amend or repeal the instrument in the same way (see Legislation Act, s
46).
Note 2 A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
Note 3 See the sustainability guidelines made under s 143.
Note 4 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A regulation may prescribe when, apart from this section, a building
approval must not be issued.
(3) In this section:
design, of a building, includes anything affecting the
appearance of the building.
30A When building approvals not to be
issued—advice on referral
(1) This section applies to an application to a certifier for building
approval if—
(a) a regulation requires the advice of an entity to be sought on the
application; and
(b) the entity’s advice has been sought as prescribed by regulation;
and
(c) issuing the approval or carrying out work in accordance with the
approval would be inconsistent with the advice; and
(d) the entity has not—
(i) withdrawn the advice; or
(ii) changed or added to the advice so that issuing the approval or
carrying out work in accordance with the approval would not be inconsistent with
the advice as changed or added to.
(2) The certifier must not issue the building approval unless satisfied on
reasonable grounds that—
(a) further information or amendments of the application address the
advice of the entity; or
(b) the advice relates to an area other than an area that the entity
giving the advice is authorised by regulation to give advice on.
(3) A regulation may prescribe the following:
(a) when the advice of an entity must be sought on an application to a
certifier for building approval;
(b) anything else in relation to the advice.
31 Application for approval of amended
plans
(1) This section applies if—
(a) a building approval has been issued for building work; and
(b) the owner of the parcel of land where the building work is being, or
is to be, done has amended the plans for the work.
(2) The owner may apply, in writing, to a certifier to approve the amended
plans.
Note If a form is approved under s
151 for an application, the form must be
used.
omit
plans as amended
substitute
amended plans
[1.25] Section
32 (2) (b)
substitute
(b) the application would not be refused because of section 30 (When
building approvals not to be issued—general) or section 30A (When
building approvals not to be issued—advice on referral) if it were an
application for a building approval; and
omit
plans as amended
substitute
amended plans
[1.27] New
sections 32A to 32C
insert
32A Application for approved plans
amendment—certifier may require further information
(1) This section applies if—
(a) the owner of a parcel of land (the applicant) has
applied to a certifier under section 31 to approve amended plans; and
(b) further information is required for the certifier to be able to decide
the application without personally inspecting the land where the building work
is being, or is to be, carried out; and
(c) the applicant and the certifier have not agreed that the certifier
will obtain the further information.
(2) The certifier may, by written notice, ask the applicant to give the
certifier stated further information in relation to the application if the
certifier believes on reasonable grounds that the information will help the
certifier to decide the application without personally inspecting the land where
the building work is being, or is to be, carried out.
(3) To remove any doubt, this section does not entitle a certifier to
require—
(a) photographs to be taken by someone other than the applicant;
or
(b) photographs to be taken using equipment of the applicant’s
choice at or near ground level; or
(c) further information if—
(i) the certifier has, or has reasonable access to, suitable information
that allows the certifier to decide the application without personally
inspecting the land where the building work is to be carried out; or
(ii) a territory law requires the certifier to personally obtain or be
given the information.
Note For examples of suitable information a certifier has or has
reasonable access to, see s 26A (Applications for building
approval—certifier may require further information).
(4) For this section, a certifier that is a partnership inspects land
personally if any partner inspects the land.
32B Contents of request for further
information
(1) A request under section 32A must—
(a) state the period within which the further information asked for must
be provided; and
(b) if the further information is not a document—state that the
further information must be provided in writing; and
(c) state that the applicant need not provide the further information, but
if the applicant fails to provide some or all of the information in accordance
with the request, the certifier may refuse to approve the amended plans to which
the application relates; and
(d) state that, despite the applicant and certifier having previously not
agreed that the certifier would obtain the further information, the applicant
and certifier may agree that the certifier will obtain the
information.
(2) The request may require the applicant to verify all or part of any
information provided by statutory declaration.
(3) The period stated under subsection (1) (a) must be at least
20 working days or, if a shorter period is prescribed by regulation, the
shorter period.
(4) The certifier may, on application before the end of the period stated
under subsection (1) (a), extend the period within which the further information
must be provided once only, for a period not longer than 20 working
days.
Note The certifier may extend the period within which further
information must be provided after the end of the period being extended (see
Legislation Act, s 151C (3)).
32C Approved plans amendment—effect of failure
to provide further information
(1) This section applies if—
(a) a certifier has asked for further information under section 32A in
relation to an application; and
(b) the applicant has not provided some or all of the information in
accordance with the request; and
(c) the applicant and the certifier have not agreed that the certifier
will obtain the further information.
(2) The certifier may refuse to approve the amended plans to which the
application relates.
omit
plans as amended
substitute
amended plans
[1.29] Section
33 (1) (b)
substitute
(b) the certifier must initial, date and mark the certifier’s
licence number on each page of the plans.
substitute
(2) However, if, because of the size of the plans, it is impractical to
mark the amended building approval on each page of the plans, the certifier may,
instead of marking the approval under subsection (1) (a), mark each
page of the plans with—
(a) the certifier’s initials and licence number and the date;
and
(b) an indication that the approval, or part of the approval, is in a
separate document.
substitute
35 Land to be used in accordance with lease and
development approval
The issue of a building approval for building work on a parcel of land does
not authorise—
(a) for land leased from the Commonwealth—use of the land for a
purpose other than that for which the lease was granted; or
(b) use of the land contrary to a provision, covenant or condition of any
lease on the parcel; or
(c) development on the land for which development approval is required
unless there is the required development approval; or
(d) if development on the land requires development
approval—development on the land contrary to a required development
approval.
[1.32] Section
36 (1) (b)
substitute
(b) any development period applying to the building work.
[1.33] New
section 36 (3A)
insert
(3A) To remove any doubt, a building approval, or part of the building
approval, does not operate while the approval or part is suspended.
Note A building approval, or part of the approval, may be suspended
under s 53.
in division 3.3, insert
36A Requirement to give advice in relation to
proposed building work
(1) This section applies if—
(a) an entity’s advice on an application for building approval has
been sought as prescribed under section 27 (1) (b); and
(b) either—
(i) the entity has given advice on the application; or
(ii) has not given advice within the time prescribed for giving the
advice; and
(c) the certifier is required under section 28 to issue a building
approval on the application; and
(d) the certifier issues the building approval; and
(e) the approved plans for the building approval are substantially
consistent with the advice.
(2) For this section, if an entity fails to give advice sought under
section 27 (1) (b) within the time prescribed by regulation in relation to
an application for building approval referred to the entity, the entity is taken
to have given advice that the entity supports the application.
(3) The entity must not act inconsistently with the advice in relation to
the application for building approval unless—
(a) further information in relation to the building work proposed in the
application comes to the entity’s attention (other than information
mentioned in subsection (4)); and
(b) the entity did not have the further information when the entity gave
the advice; and
(c) the further information is relevant to the advice the entity gave;
and
(d) the entity would have given different advice if the entity had the
further information before giving the advice.
(4) Subsection (3) (a) does not apply to further information in relation
to building work proposed in the application for building approval if the
information—
(a) was not required in the building approval application; and
(b) is required by the entity after the application is approved;
and
(c) is consistent in all significant respects with information already
provided by the applicant, except that it is more detailed.
(5) For this section, an entity acts inconsistently with
advice in relation to an application for building approval if—
(a) the advice is that the entity will issue or give an approval or other
thing in relation to the building work; and
(b) the application is approved; and
(c) the entity—
(i) does not issue or give the approval or other thing consistent with the
advice; or
(ii) issues or gives the approval or other thing in a way, or subject to a
condition, that prevents the applicant undertaking the building work
approved.
Example of advice
that the entity will agree to the erection of a building over a buried
sewer main
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(6) Also for this section, an entity acts inconsistently
with advice in relation to an application if—
(a) the advice is that an activity to which the application relates does
not require a particular authorisation (however described); and
(b) the entity prosecutes someone, or takes other compliance action, in
relation to the activity because the activity is carried out without the
particular authorisation.
Example of acting
inconsistently
An Act prohibits activity A without an approval. The entity responsible
for administering the Act gives advice sought under s 27 (1) (b) that the
activity (activity B) in the application does not fall within the description of
activity A. The application is approved consistent with the advice. The entity
can not prosecute a person for carrying out activity B in accordance with the
approved application because activity B does fall within the description of
activity A and the person did not have approval.
(7) For this section, an entity acts inconsistently with
advice in relation to an application if the entity—
(a) refuses to do something required to be done by the entity to allow the
applicant to undertake the development approved in the application; or
(b) does something in a way, or subject to a condition, that prevents the
applicant from undertaking the development approved in the
application.
[1.35] Section
42 (1) (e)
substitute
(e) for building work required to be done only by a licensed
builder—
(i) the building work must be carried out by or under the supervision of
the builder mentioned in the building commencement notice; and
(ii) the builder’s licence must authorise the doing of the building
work;
[1.36] Sections
43 and 44
substitute
43 Stages of building work
(1) The regulations may prescribe—
(a) stages of building work; and
(b) for building work done beyond a stage in contravention of this
section—
(i) when further building work is exempted from subsection (2) or (3)
to allow building work to proceed beyond the stage; and
(ii) how the building work may proceed beyond the stage.
Example of regulations with s 43
(3)
A regulation under section 43 (1) (a) prescribes that a stage of building
work is completion of the structural framework before the placement of any
internal lining (the structural framework stage). A licensee in
charge of building a house completes the structural framework for the house, but
attaches plasterboard sheets to the inside of the wall frames without giving the
certifier for the work notice that the structural framework is complete. The
certifier has not inspected the work or given written permission for the work to
proceed, so the licensee has contravened section 43 (3).
If the licensee does further building work on the house, that work would be
beyond the structural framework stage.
A regulation under section 43 (1) (b) may prescribe to the effect
that—
(a) further building work is exempt if the further work is to undo all or
part of the building work that was done beyond the stage, so that the certifier
can inspect the building work for the stage (and give permission for building
work to proceed beyond the stage); and
(b) the building work may proceed if it is otherwise done in
accordance with the Act.
Under the possible regulation, if all or some of the plasterboard sheets
are removed so that the certifier can inspect the structural framework, and the
sheets are removed in accordance with the Act, the removal of the sheets would
not contravene section 43 (3).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A building licensee in charge of building work must not do building
work above dampcourse level (other than further building work exempted under
subsection (1) (b)) unless—
(a) the certifier has received—
(i) a plan (a survey plan) signed by a registered
surveyor stating the position of the building in relation to the
boundaries of the parcel of land where the building is to be erected and stating
the level that the floor or floors of the building will have in relation to a
level stated in the approved plans; or
(ii) another document prescribed under the regulations; and
(b) the certifier is satisfied that the position of the building and the
level of the floor or floors are in accordance with—
(i) the approved plans; and
(ii) the conditions to which any consent or approval mentioned in section
27 (1) (b) is subject.
Maximum penalty: 50 penalty units.
(3) A building licensee in charge of building work that has reached a
stage must not do building work beyond the stage (other than further building
work exempted under subsection (1) (b)) unless—
(a) the licensee has given to the certifier notice that the stage has been
reached; and
(b) the certifier has inspected the building work and given written
permission for the work to proceed.
Maximum penalty: 50 penalty units.
(4) If a building licensee in charge of building work is required under
section 44 (6) to conduct a test, the licensee must, as soon as practicable
after the test is completed, give the person who made the requirement the
written results of the test.
(5) An offence against this section is a strict liability
offence.
44 Stage inspections
(1) If a certifier receives a notice under section 43 (3) (a) for building
work, the certifier must inspect the building work as soon as
practicable.
(2) On, or as soon as practicable (but in any case within 2 working days),
after inspection, the certifier must—
(a) if satisfied on reasonable grounds that the building work does not
comply with section 42 (Requirements for carrying out building work), give the
building licensee in charge of the building work written notice
that—
(i) the work does not comply with section 42; and
(ii) includes directions that are reasonable and appropriate for achieving
compliance; and
(iii) states a reasonable date by which to achieve compliance.
(b) if satisfied on reasonable grounds that building work complies with
section 42—certify that the work complies and give the certificate to the
building licensee in charge of the building work.
(3) A certifier commits an offence if the certifier contravenes
subsection (1) or (2).
Maximum penalty: 10 penalty units.
(4) An offence against subsection (3) is a strict liability
offence.
(5) A certifier must certify that building work complies with section 42
and give the certificate to the building licensee in charge of the building work
if the certifier—
(a) has given a notice mentioned in subsection (2) (a) to the licensee;
and
(b) is satisfied on reasonable grounds that—
(i) the building licensee in charge of the building work has done what is
reasonable and appropriate to achieve compliance (even if what is done is not in
accordance with the directions in the notice); and
(ii) the building work otherwise complies with section 42; and
(c) if a regulation prescribes a procedure to be followed in relation to
the certification—follows the procedure.
(6) A certifier may, by written notice, require the building licensee in
charge of the building work to conduct, on the materials used or to be used in
the work, on the structure of the building, or in relation to anything else
connected with the work, the tests stated in the notice.
[1.37] Section
45 (1) (c)
substitute
(c) tests under section 44 (6).
substitute
(1) This section applies if—
(a) building work appears to have been completed; and
(b) either—
(i) the certifier is satisfied on reasonable grounds that the work has
been completed—
(A) in accordance with this Act; and
(B) in accordance with, or substantially in accordance with, the approved
plans; or
(ii) the certifier is satisfied on reasonable grounds
that—
(A) the work has not been completed in accordance with this Act;
and
(B) the work has been completed in accordance with, or substantially in
accordance with, the approved plans or plans that have been approved plans for
the work, but are no longer approved plans in the circumstances prescribed by
regulation; and
(c) the building as erected or altered is structurally sufficient, sound
and stable for the purposes for which it is to be occupied or used.
(1A) A regulation may prescribe when work is or is not substantially in
accordance with approved plans.
[1.39] Section
48 (2) (b) and (c)
substitute
(b) a copy of the plan or document mentioned in
section 43 (2) (a) (i);
(c) a copy of each certificate issued for the building work under section
44 (2) (b) or (5);
[1.40] Section
48 (2) (e)
substitute
(e) either—
(i) a certificate by the certifier that the building work has been
completed in accordance with this Act and in accordance with, or substantially
in accordance with, the approved plans; or
(ii) if subsection (1) (b) (ii) applies—a certificate prescribed by
regulation;
[1.41] Section
48 (2) (h)
substitute
(h) if, in the certifier’s view, the requirements of section 69 (1),
(2) or (3) (Certificates of occupancy) have been satisfied—written advice
that the registrar would be justified in issuing a certificate of occupancy for
the building under the section;
(ha) if, in the certifier’s view, section 69 (2B)
applies—written advice to that effect;
substitute
50 Notification by certifier of contraventions of
building and development approvals—building work
(1) A certifier commits an offence if—
(a) building work in contravention of a building approval or development
approval comes to the certifier’s attention; and
(b) the certifier is certifier for the building work; and
(c) the certifier does not tell the construction occupations registrar
about the contravention—
(i) if the building work is fundamentally noncompliant—not later
than the next working day after the day the contravention comes to the
certifier’s attention; or
(ii) in any other case—within 5 days after the day the contravention
comes to the certifier’s attention.
Maximum penalty: 5 penalty units.
Note Notice of a contravention given under this section is taken to
be a complaint made under the Construction Occupations (Licensing)
Act 2004, s 117.
(2) Subsection (1) applies whether or not a notice under
section 44 (2) (a) (Stage inspections) has been given in relation
to the matter.
(3) However, subsection (1) does not apply to building work only because
the work does not comply with section 42 (Requirements for carrying out
building work) if—
(a) the building work is not fundamentally noncompliant; and
(b) the certifier gives the building licensee in charge of the building
work written notice that—
(i) the work does not comply with section 42; and
(ii) includes directions that are reasonable and appropriate for achieving
compliance; and
(iii) states a reasonable date by which to achieve compliance.
(c) the certifier is satisfied on reasonable grounds that the building
licensee in charge of the building work has done what is reasonable and
appropriate to achieve compliance (even if what is done is not in accordance
with the directions in the notice).
Example—s (3)
It comes to a certifier’s attention that a builder has done building
work above the dampcourse level without a plan or document mentioned in s 43 (2)
(a). That contravention of this Act must be reported under s (1). Subsection
(3) does not have an effect because the contravention relates to s 43, not s
42.
Note 1 The certifier has the evidentiary burden of establishing the
matters mentioned in s (3) (see Criminal Code, s 58).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) A regulation may prescribe when building work is fundamentally
noncompliant.
(5) An offence against this section is a strict liability
offence.
50A Notification by certifier of possible
noncompliant site work
(1) A certifier must tell the planning and land authority
if—
(a) the certifier suspects that—
(i) site work does not comply with, or is likely to produce a building
that does not comply with, approved building plans; and
(ii) the site work is development requiring development approval;
and
(b) either—
(i) there is no development approval for the site work; or
(ii) if there is development approval in relation to the site
work—the site work has been done, or is likely to be done, in a way that
will not comply with, or is likely to produce a result that will not comply
with, the development approval; and
(c) the certifier is certifier for building work at the land where the
site work has been carried out.
Examples
1 The certifier for building work for a residence on land notices that a
large tree on the land has been removed to build the residence. The approved
plans for the building work indicate that the tree exists and do not indicate
that the tree is to be removed. The certifier suspects that removal of the tree
required development approval and suspects that there is no development approval
for the tree’s removal. The certifier must report the
suspicion.
2 The certifier for building work on a parcel of land notices that formwork
is being set up for a proposed concrete driveway on the same parcel. The
driveway requires development approval because of its location. The certifier
suspects there is no development approval for the driveway. The certifier must
report the suspicion.
Note 1 Notice of a suspicion of noncompliant site work given under
this section is taken to be a complaint made under the Planning and
Development Act 2006, s 333.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) Subsection (1) applies whether or not a notice under
section 44 (2) (a) (Stage inspections) has been given in relation
to the matter.
(3) To remove any doubt, for this section, a certifier is not required
to—
(a) inspect or investigate anything not associated with working out if a
building or building work for which the certifier has been appointed certifier
complies with this Act; and
(b) work out if something complies, or does not comply, with a law other
than this Act (unless this Act requires something to comply with another law);
and
(c) find out whether there is development approval for building
work.
50B Site work without adequate development
approval—people
(1) A certifier who is a person commits an offence if—
(a) the certifier issues a building approval or approves amended plans;
and
(b) the site work proposed in the approved plans requires development
approval; and
Note Approved plans includes
amended plans (see dict).
(c) when the building approval is issued or the amended plans are
approved, there is no development approval for the site work if carried out in
accordance with the plans.
Maximum penalty: 60 penalty units.
Example
Plans for a house show the ground level around the house as relatively flat
and level, and the house being not more than 9m tall at any point. The plans do
not show structural details, but receive development approval for construction
of the house. Structural plans for the house that accompany the application for
building approval show the ground around the house slopes steeply and, because
of this, one end of the house is 10m tall.
If the house is built in accordance with the structural plans, the building
work would not have development approval because the development approval
authorises building work that is 9m tall and the house built in accordance with
the structural plans is 10m tall. If the certifier issues the building
approval, the certifier commits an offence.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A certifier who is a person commits an offence if—
(a) the certifier issues a building approval or approves amended plans;
and
(b) the approved plans are defective because they—
(i) contain information that is false or inaccurate in a material respect;
or
(ii) omit information required to be shown in the plans; and
Note Approved plans includes
amended plans (see dict).
(c) if the plans were not defective, the certifier would have contravened
subsection (1).
Maximum penalty: 60 penalty units.
(3) It is a defence to a prosecution for an offence against subsection (1)
or (2) if the defendant proves that the defendant—
(a) took all reasonable steps to find out whether the site work, if
carried out in accordance with the approved plans, required development
approval; and
(b) was satisfied on reasonable grounds that the development did not
require development approval.
(4) It is a defence to a prosecution for an offence against subsection (2)
if the defendant proves that the defendant—
(a) took all reasonable steps to find out if the approved plans were
defective; and
(b) was satisfied on reasonable grounds that the plans were not
defective.
(5) To remove any doubt, if a building approval indicates that something
is not to have work done in relation to it, or is not part of the building
approval, the certifier does not commit an offence under this section in
relation to the thing.
(6) An offence against subsection (1) or (2) is a strict liability
offence.
50C Site work without adequate development
approval—partners
(1) Each partner commits an offence if—
(a) the partnership is a certifier; and
(b) the certifier issues a building approval or approves amended plans;
and
(c) the site work proposed in the approved plans requires development
approval; and
Note Approved plans includes
amended plans (see dict).
(d) when the building approval is issued or the amended plans are
approved, there is no development approval for the site work if carried out in
accordance with the plans.
Maximum penalty: 60 penalty units.
Example
See example for s 50B (1).
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) Each partner commits an offence if—
(a) the partnership is a certifier; and
(b) the certifier issues a building approval or approves amended plans;
and
(c) the approved plans are defective because they—
(i) contain information that is false or inaccurate in a material respect;
or
(ii) omit information required to be shown in the plans; and
(d) if the plans were not defective, the certifier would have contravened
subsection (1).
Maximum penalty: 60 penalty units.
(3) It is a defence to a prosecution for an offence against subsection (1)
or (2) if the partnership proves that the partnership—
(a) took all reasonable steps to find out whether the site work, if
carried out in accordance with the approved plans, required development
approval; and
(b) was satisfied on reasonable grounds that the development did not
require development approval.
(4) It is a defence to a prosecution for an offence against subsection (1)
or (2) if the partner proves—
(a) that—
(i) the partner did not know about the contravention of the subsection
involved in the offence; and
(ii) the partner took reasonable precautions and exercised appropriate
diligence to avoid the contravention; or
(b) that the partner was not in a position to influence the partnership in
relation to the conduct involved in the contravention.
(5) It is a defence to a prosecution for an offence against subsection (2)
if the partnership proves that the partnership—
(a) took all reasonable steps to find out if the approved plans were
defective; and
(b) was satisfied on reasonable grounds that the plans were not
defective.
(6) To remove any doubt, if a building approval indicates that something
is not to have work done in relation to it, or is not part of the building
approval, the certifier does not commit an offence under this section in
relation to the thing.
(7) An offence against subsection (1) or (2) is a strict liability
offence.
[1.43] New
section 53 (1) (ba)
insert
(ba) in accordance with a building approval that is, or part of which is,
defective because it contains information that—
(i) is false, misleading or inaccurate in a material respect; or
(ii) conflicts with other information in the approval so that carrying out
building work, or site work that materially affects the building work, in
accordance with the approval or part—
(A) is not physically possible; or
(B) is unlikely to be physically possible without amending the building
approval; or
(C) is likely to contravene this Act, another territory law or a condition
of a consent that applies to the building work or a lease, licence, permit or
other authority that applies to the land where the building work is being
carried out; or
[1.44] Section
53 (1) (e) and (f)
substitute
(e) for building work forming part of a development requiring development
approval—without development approval; or
(f) for building work forming part of a development with development
approval—contrary to the approval, or a condition of the approval;
or
[1.45] New
section 53 (2A)
insert
(2A) A stop notice in relation to building work under a building approval
suspends the operation of the building approval—
(a) if the stop notice prohibits the carrying out of any further building
work—in relation to all building work under the approval; or
(b) if the stop notice prohibits the carrying out of stated building
work—in relation to the stated building work.
[1.46] Section
53 (3) (a)
substitute
(a) the entity that gave the stop notice cancels the stop notice in
writing signed by the entity; or
substitute
(4) A stop notice may not be issued on a ground mentioned in subsection
(1) (a), (b) or (ba) for work in relation to an exempt building.
(5) To remove any doubt, the ending of a stop work notice ends the
suspension of any building approval suspended because of the stop work
notice.
Note A stop work notice automatically suspends a building approval
(see s (2A)).
[1.48] Section
54 (2), note
substitute
Note 1 A stop work notice suspends a building approval in relation
to all or stated building work under the approval (see s 53 (2A)). This means
that building work that contravenes this Act unless done in accordance with a
building approval contravenes this Act if a stop work notice has suspended the
approval.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
[1.49] New
section 57 (4)
insert
(4) To remove any doubt, the cancellation of a stop work notice ends the
suspension of any building approval suspended because of the stop work
notice.
Note A stop work notice automatically suspends a building approval
(see s 53 (2A)).
[1.50] Section
59 (b) and (c)
substitute
(b) the person by whom the building work mentioned in the notice is being,
or is to be, carried out or, if the building work is being carried out by a
partnership, any partner; or
(c) for a stop notice—
(i) any person carrying out building work mentioned in the notice;
or
(ii) if the building work is being carried out by a partnership, any
partner; or
substitute
(2) The construction occupations registrar may give the owner of the
parcel of land where the building work was carried out, the person by whom the
building work was carried out or, if the work was carried out by a partnership,
any partner a notice requiring the person to give to the registrar the plan or
document mentioned in section 43 (2) (a) (i).
[1.52] Section
61 (e) and (f)
substitute
(e) building work forming part of a development requiring development
approval has been carried out without development approval;
(f) building work forming part of a development with development approval
has been carried out contrary to the approval, or a condition of the
approval;
substitute
64 Compliance with notices under pt
4
(1) A person commits an offence if the person—
(a) is given a notice under this part; and
(b) contravenes the notice.
Maximum penalty: 50 penalty units.
(2) Each partner commits an offence if the partnership—
(a) is given a notice under this part; and
(b) contravenes the notice.
Maximum penalty: 50 penalty units.
(3) An offence against this section is a strict liability
offence.
(4) It is a defence to a prosecution for an offence against subsection (1)
or (2) if the defendant proves that the defendant—
(a) paid a reasonable amount to have the work done by someone else who was
licensed to do the work; and
(b) believed on reasonable grounds that the other person would do the
work.
(5) It is a defence to a prosecution for an offence against subsection (2)
if the partner proves—
(a) that—
(i) the partner did not know about the contravention of the notice
involved in the offence; and
(ii) the partner took reasonable precautions and exercised appropriate
diligence to avoid the contravention; or
(b) that the partner was not in a position to influence the partnership in
relation to the conduct involved in the contravention.
[1.54] Section
65 (2) (b)
substitute
(b) the work is not exempt from this subsection under a
regulation.
substitute
66 Meaning of prescribed
requirements—div 5.1
In this division:
prescribed requirements, in relation to building work,
means—
(a) if the building work involves handling asbestos or disturbing friable
asbestos—the requirements of this Act; or
(b) for any other building work—
(i) the requirements of this Act; or
(ii) the approved plans for the work.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation and the
building code (see Legislation Act, s 104).
66A Prescribed requirements and contraventions of s
43—div 5.1
(1) This section applies to building work undertaken in contravention of
section 43 (Stages of building work).
(2) To remove any doubt, for this division, the building work is not taken
not to comply with the requirements of this Act only because doing the work
contravened section 43 if the work has been allowed to proceed beyond the stage
where the contravention happened in accordance with a regulation under section
43 (1).
[1.56] New
section 67 (2)
insert
(2) To remove any doubt, this section does not limit the matters that the
construction occupations registrar may reasonably have regard to.
omit
relating
substitute
in relation
[1.58] New
section 69 (2A) to (2C)
insert
(2A) The owner of a parcel of land where building work was carried out may
apply for a certificate under subsection (2B).
Note If a form is approved under s 151 for the application, the form
must be used.
(2B) The construction occupations registrar may issue a certificate in
relation to a building that the building as erected or altered is fit for
occupation and use as a building of the class stated in the certificate
if—
(a) the registrar is not satisfied on reasonable grounds that building
work involving the erection or alteration of the building has been completed in
accordance, or substantially in accordance, with the prescribed requirements for
the building work; and
Note Prescribed
requirements—see s 66.
(b) the applicant has completed any certification process prescribed by
regulation in relation to the building or building work; and
(c) the building, or building work, is not excluded by regulation from
this subsection.
(2C) A certificate mentioned in subsection (2B) in relation to a building
must include a statement to the effect that—
(a) the construction occupations registrar is not satisfied on reasonable
grounds that building work involving the erection or alteration of the building
has been completed in accordance, or substantially in accordance, with the
prescribed requirements for the building work; and
Note Prescribed
requirements—see s 66.
(b) the giving of the certificate does not affect the liability of anyone
to comply with the provisions of a territory law (including this Act) in
relation to the building; and
Note See s 68 (Effect of certificates
under div 5.1).
(c) part 6 (Residential buildings—statutory warranties, insurance
and fidelity certificates) may not apply to the building work.
omit
Residential building
substitute
Residential buildings
[1.60] Section
75 (4), definition of qualified licensed construction
practitioner
omit everything before paragraph (a), substitute
(4) In this section:
qualified licensed construction practitioner means an entity
that—
omit
69 (1) or (3)
substitute
69
[1.62] Section
83 (2) (b)
substitute
(b) the work is not exempt from this subsection under a
regulation.
[1.63] Section
84, definition of builder
substitute
builder, in relation to residential building work or a
residential building, means the entity stated to be the builder in the
commencement notice for the building work or building.
omit everything before paragraph (a), substitute
(2) The administrative appeals tribunal must not, in relation to a
proposed building, or a building as proposed to be altered, forming part of a
development—
substitute
(3) If the construction occupations registrar or another entity makes an
appealable decision, the registrar or other entity must give written notice of
the decision to the relevant entity in relation to the decision.
[1.66] New
section 152 (1A)
insert
(1A) A regulation may exempt a building from the application of this Act,
or part of the Act, whether—
(a) directly or by a further instrument; or
(b) conditionally or otherwise.
[1.67] New
section 152 (2) (c)
insert
(c) if an entity’s advice is required to be sought on an application
for building approval—the advice the entity may provide.
Note See s 27 (1) (b).
[1.68] Dictionary,
definition of certifier, paragraph (a)
substitute
(a) for building work—means an entity appointed to act as certifier
under section 19 (Appointment of certifiers—work not begun) or government
certifier under section 20 (Appointment of government certifiers) for the work;
but
[1.69] Dictionary,
new definition of development
insert
development—see the Planning and Development Act
2006, section 7.
[1.70] Dictionary,
new definition of development approval
insert
development approval means development approval under
the Planning and Development Act 2006, chapter 7.
[1.71] Dictionary,
definition of eligible person
substitute
eligible entity, for division 3.2 (Certifiers and government
certifiers)—see section 17.
[1.72] Dictionary,
new definition of information
insert
information includes documents.
[1.73] Dictionary,
new definition of land
insert
land includes—
(a) a place under, on or above the ground; and
(b) a place in relation to which a permit has been granted under the
Roads and Public Places Act 1937; and
(c) land, a building or a structure, the use of which is authorised by a
licence under the Planning and Development Act 2006, part 9.11
(Licences for unleased land).
[1.74] Dictionary,
definitions of Land Act and lease
substitute
lease—see the Planning and Development Act 2006,
section 227.
[1.75] Dictionary,
definition of owner
substitute
owner, of land, means—
(a) if the land is held under a lease from the Commonwealth for a term of
years—the lessee; or
(b) if the land is subdivided under the Unit Titles Act
2001—
(i) if building work has been, is being or is to be carried out on the
land for the owners corporation—the owners corporation; or
(ii) if building work has been, is being or is to be carried out on the
land for the proprietor of a unit—the proprietor; or
(iii) in any other case—the owners corporation; or
(c) if the land is occupied under a tenancy from the Territory or the
Commonwealth—the occupier; or
(d) if the land is subject to a permit under the Roads and Public
Places Act 1937—the permit-holder; or
(e) if the land is subject to a licence under the Planning and
Development Act 2006, part 9.11 (Licences for unleased land)—the
licensee; or
(f) if the Territory carries out or proposes to carry out building work on
the land—the Territory; or
(g) if the Commonwealth carries out or proposes to carry out building work
on the land—the Commonwealth.
[1.76] Dictionary,
new definition of site work
insert
site work—see section 7A.
[1.77] Dictionary,
definition of stage
substitute
stage, of building work, means a stage prescribed under
section 43 (1) (a).
Part
1.2 Building and Construction Industry
Training Levy Act 1999
[1.78] Section
15, definition of exempt work, paragraph (c), note
omit
[1.79] Section
15, definition of exempt work, paragraphs (d) to (f)
substitute
(d) building work in relation to a building to which the Building Act
does not apply because that Act exempts the building from the application of
that Act; or
Note 1 A reference to an Act includes a
reference to the statutory instruments made or in force under the Act, including
any regulation (see Legislation Act, s 104).
Note 2 See the Building Act, s 152 (1A).
(e) building work to which the Building Act, part 3 (Building work) does
not apply because of that Act, section 15 (Application of pt 3 to building
work).
Part
1.3 Construction Occupations
(Licensing) Act 2004
[1.80] New
section 34 (3)
insert
(3) To remove any doubt, the registrar is not prevented from deciding that
it is appropriate to make a rectification order in relation to a construction
service only because the registrar, planning and land authority, a certifier or
another entity has—
(a) given a certificate, or approval, in relation to—
(i) the construction service under an operational Act; or
(ii) the place where, or the territory lease under which, the service took
place under the Planning and Development Act 2006; or
(b) otherwise endorsed the service under an operational Act or the
Planning and Development Act 2006.
[1.81] New
section 36 (3)
insert
(3) However, the registrar need not consider whether the registrar,
planning and land authority, a certifier or other entity has—
(a) given a certificate, or approval, in relation to—
(i) the construction service under an operational Act; or
(ii) the place where, or the territory lease under which, the service took
place under the Planning and Development Act 2006; or
(b) otherwise endorsed the service under an operational Act or the
Planning and Development Act 2006.
[1.82] New
section 117 (2)
insert
(2) Notice of a contravention given under the Building Act 2004,
section 50 (Notification by certifier of contraventions of building and
development approvals—building work) is taken to be a complaint made under
this section.
substitute
(2) However, the registrar—
(a) may accept a complaint for consideration even if it does not comply
with subsection (1); and
(b) must accept a complaint for consideration even if it does not comply
with subsection (1) if the complaint is notice given under the Building Act
2004, section 50 (Notification by certifier of contraventions of building
and development approvals—building work).
[1.84] New
section 120 (4)
insert
(4) To remove any doubt, this section also applies to a complaint that is
a notice given under the Building Act 2004, section 50 (Notification by
certifier of contraventions of building and development approvals—building
work).
[1.85] New
section 122 (2)
insert
(2) To remove any doubt, this section also applies to a complaint that is
a notice given under the Building Act 2004, section 50 (Notification by
certifier of contraventions of building and development approvals—building
work).
[1.86] New
section 123 (1) (c)
insert
(c) if the complaint was a notice given under the Building
Act 2004, section 50 (Notification by certifier of contraventions of
building and development approvals—building work) and the registrar is
satisfied it should be referred to the planning and land authority—refer
the complaint to the planning and land authority.
[1.87] New
section 123 (3)
insert
(3) The registrar refers a complaint to the planning and development
authority by giving the authority—
(a) a copy of the complaint or a summary of the information provided in
the complaint; and
(b) any information relating to the complaint that the registrar considers
may be helpful to the authority; and
(c) a statement about why the registrar considers that the authority is
more appropriate to deal with the complaint than the registrar.
Part
1.4 Construction Occupations
(Licensing) Regulation 2004
[1.88] Schedule
2, part 2.2, item 2.2.1, column 2
omit
s 28 (5)
substitute
s 28A (4)
[1.89] Schedule
2, part 2.2, item 2.2.3, column 2
omit
s 28 (3) or (4)
substitute
s 28A (1) or (2)
[1.90] Schedule
2, part 2.2, item 2.2.7, column 2
substitute
fail to comply with Building Act 2004, s 44 (2) (a)—certifier
satisfied that building work not compliant with Building Act 2004,
s 42, but did not give licensee in charge of building work written notice
in accordance with s 44 (2) (a)
[1.91] Schedule
2, part 2.2, item 2.2.7, column 3
substitute
failure to give written notice in accordance with Building Act 2004,
s 44 (2) (a)
[1.92] Schedule
2, part 2.2, item 2.2.8, column 2
substitute
fail to comply with Building Act 2004, s 44 (2) (b)—building
work complied with Building Act 2004, s 42, but certifier did not certify
compliant or give certificate of compliance to licensee in charge of
work
[1.93] Schedule
2, part 2.2, item 2.2.9, column 2
substitute
fail to comply with Building Act 2004, s 50—certifier failed
to notify registrar of contravention of building approval or development
approval in accordance with s 50
[1.94] Schedule
2, part 2.2, item 2.2.9, column 3
substitute
failure to notify registrar of known contravention of building approval or
development approval
Part
1.5 Planning and Development Act
2006
[1.95] New
section 333 (2)
insert
(2) The following are taken to be complaints made under this
section:
(a) notice of a contravention given under the Building Act 2004,
section 50A (Notification by certifier of possible noncompliant site
work);
(b) a complaint referred to the planning and land authority under the
Construction Occupations (Licensing) Act 2004, section 123 (Action
after investigating complaint).
substitute
(2) However, the planning and land authority—
(a) may accept a complaint for consideration even if it does not comply
with subsection (1); and
(b) must accept a complaint for consideration even if it does not comply
with subsection (1) if the complaint is notice given under the Building Act
2004, section 50A (Notification by certifier of possible noncompliant site
work).
[1.97] New
section 336 (4)
insert
(4) To remove any doubt, this section also applies to a complaint that is
a notice given under the Building Act 2004, section 50A (Notification by
certifier of possible noncompliant site work).
[1.98] New
section 339 (2)
insert
(2) To remove any doubt, this section also applies to a complaint that is
a notice given under the Building Act 2004, section 50A (Notification by
certifier of possible noncompliant site work).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2007.
2 Notification
Notified under the Legislation Act on 2007.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2007
[Index]
[Search]
[Download]
[Related Items]
[Help]