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This Bill amends the Building Act.
The purpose of this Bill is to amend the Building Act to provide for the issue of occupancy certification on an expired Building Permit and to create two new categories of occupancy certifications in addition to the existing Occupancy Permit.
The amendments will include:
· provisions to enable the making of an application for a Certificate of Existence to the Building Certifier, the making of a recommendation for that Certificate by the Certifier to the Director of Building Control (the Director) and the granting of the Certificate by the Director.
The amendments are designed to create alternative pathways to building certification while reflecting the true level of compliance achieved by building works.
NOTES ON CLAUSES
Clause 1. Short Title.
This is a formal clause which provides for the citation of the Bill.
The Bill when passed will be cited as the Building Amendment (Occupancy Certification) Act 2016.
Clause 2. Commencement.
This clause provides for the commencement of the Act on a day fixed by the Administrator and notified by publication in the Gazette.
Clause 3. Act amended.
This clause specifies that this Bill amends the Building Act.
Clause 4. Section 4 amended
Definitions have been included to reflect the amendments of this Bill.
Clause 5. Section 38 amended
Amends section 38 to expand the scope of a Building Certifier’s functions to include the granting of a Certificate of Substantial Compliance and the making of recommendations for the granting of a Certificate of Existence.
Clause 6. Section 42 amended
This is a minor drafting matter amending the heading in existing section 42 to clearly reflect the intent of this section and includes other minor amendments to refer to occupancy certifications instead of an Occupancy Permit.
Clause 7. Section 47 amended
This is a minor drafting matter to insert in section 47 an existing definition for “related building application” removed from Section 4.
Clause 8. Part 8 heading amended
Amends the heading in existing Part 8 to reflect the sections inserted under this part to provide for the new categories of occupancy certifications, a Certificate of Substantial Compliance and Certificate of Existence.
Clause 9. Section 65 amended
Amends section 65 to expand the basis for the occupation of a building to include the new categories of occupancy certification, a Certificate of Substantial Compliance and Certificate of Existence.
Clause 10. Part 8, Division 2 heading amended
This is a minor drafting matter to amend the existing heading in Part 8, Division 2.
Clause 11. Section 67 amended
This is a minor drafting matter to amend the heading in existing section 67 to reflect the intent of this section to generally deal with an application for an Occupancy Permit. The removal of the words ‘must be in writing’ is because approved forms are provided for in Schedule 3, which will require the application to be in writing.
Clause 12. Section 68 repealed
This is a minor drafting matter to repeal section 68 and move existing provisions regarding the application of Schedule 3 to a new Division 5 that deals with general matters for occupancy certifications.
Clause 13. Part 8, Division 3 omitted
This is a minor drafting matter to omit the existing heading in Division 3 that has been moved to Part 8, Division 2.
Clause 14. Section 69A repealed
This is a minor drafting matter to repeal section 69A and move the existing documents to accompany an application for Occupancy Permit under 69A(1)(a) to (e) to the Regulations. Existing provisions in 69A(1) and (2) (including the penalty) are moved to the amended section 70.
Clause 15. Section 70 amended
This is a minor drafting matter to amend the heading in existing section 70 to reflect the intent of this section to generally deal with the granting of an Occupancy Permit. This section also retains the provisions under repealed 69A(1) and (2) (including the penalty).
Proposed new subsection 70(2)(c) provides for an application for an Occupancy Permit to be made if the Building Permit is no longer in force. The Building Certifier must determine that essential elements of building works specified in the Building Permit have been completed while this permit was in force. It is intended that Regulations may provide for additional criteria relevant to this application.
Clause 16. Section 71 repealed
This is a minor drafting matter to repeal section 71 and move existing provisions regarding the information to be specified in an Occupancy Permit to a new Division 5 that deals with general matters for occupancy certifications.
Clause 17. Part 8 Divisions 2A and 3 inserted
Division 2A Certificates of Substantial Compliance
Proposed subsection 72A(1) provides for the making of an application for a Certificate of Substantial Compliance by the owner of a building or the owner’s agent. Proposed subsection 72A(2) makes clear that to make an application, the essential elements of building works specified in the Building Permit must be completed while the permit was in force. This section also includes a note to make clear that an application for this certificate may be made before or after the expiry of the Building Permit. Regulations will provide for the building classifications that apply for this level of certification.
Proposed section 72B(1) provides for the conditions regarding building works to enable a Building Certifier to grant a Certificate of Substantial Compliance. Compared to an Occupancy Permit, which requires a building to be built in accordance with the Building Permit and to comply in all material respects with Regulations, this provision enables certification if building works comply substantially with the Building Permit and or the legislative requirements. The Building Certifier must however determine that the relevant building work is suitable for occupation and meets relevant technical standards. It is intended that Regulations may provide for other criteria that building work must comply with, to enable the issue of this certificate. Schedule 3 item 3 states that the documents to accompany the application made under this section are to be specified in the form approved by the Minister under existing section 167A.
Proposed section 72B(2) contains the process for granting this certificate. The Building Certifier must believe, on reasonable grounds, that the building work is consistent with the prescribed documents that accompany the application.
Proposed subsection 72C describes what a Certificate of Substantial Compliance means. It means that a building or part of a building issued with this level of certification is suitable for occupation and meets the relevant technical standards; however, the building works comply substantially with the Building Permit and or legislative requirements.
Division 3 Certificates of Existence
Proposed subsection 72D(1) provides for the making of an application for a Certificate of Existence by the owner of a building or the owner’s agent. Proposed subsection 72D(2) restricts an application for a Certificate of Existence to building works completed before the Bill commences. Regulations will provide for the building classifications that apply for this level of certification.
Proposed subsection 72D(3) provides for the conditions regarding building works that enable an application for a Certificate of Existence to be made. All building works that required building authorisation under a relevant building law in force in the Territory, at the time building work was carried out, is the first condition. It further specifies that an application can be made for unauthorised building works and works that do not substantially comply with the legislative and or technical requirements.
Proposed section 72E provides for the making of a recommendation for a Certificate of Existence by a Building Certifier to the Director. This section allows the Director to request further information or documentation in order to grant or refuse to grant a Certificate of Existence. Proposed subsection 72E(4) states the conditions under which this is made. The Building Certifier must believe, on reasonable grounds, that the building work is suitable for occupation, complies with the criteria specified by Regulations and is consistent with the prescribed documents that accompany the application. Schedule 3 item 3 provides for these documents to be specified in the application form approved by the Minister under existing section 167A. It is intended that Regulations specify the criteria for this certificate.
Proposed section 72F provides for the conditions that must be fulfilled to enable the Director to grant a Certificate of Existence. It states that the recommendation must include the information and documents required by the Director to make a decision.
Proposed subsection 72G states that a building issued with a Certificate of Existence is suitable for occupation and complies with the criteria prescribed in Regulations.
Clause 18. Section 73 and 75 repealed
This is a minor drafting matter to move the substance of repealed section 73 to Schedule 1 of the Building Act, which relates to matters that may be prescribed by Regulation.
The provisions regarding the application of Schedule 3 in repealed section 75 are also moved to a new Division 5 that deals with general matters regarding occupancy certifications, rather than being repeated in each Division.
Clause 19. Part 8, Division 5 inserted
Division 5 General matters
Proposed section 76A makes clear that a Building Certifier may require, in writing, additional information or documents, and/or ask for an amended application, in order to finalise occupancy certification. As the amendments enable the issue of different levels of certification for existing building works, this section gives the Building Certifier flexibility to adjust application requirements and finalise certification.
Proposed section 76B enables Regulations to prescribe the information to be included in occupancy certification. It is intended for Regulations to prescribe the information relevant to a Certificate of Substantial Compliance and Certificate of Existence. Regulations will prescribe the information relevant to an Occupancy Permit in accordance with repealed section 71.
Proposed section 76C refers to the provisions in existing Schedule 3 that relate to the application and determination of occupancy certifications.
Proposed section 76D enables prosecution of a person to be carried out for offences committed against the Act before occupancy certification was granted.
Clause 20. Section 166AA inserted
Proposed section 166AA provides that If the operation of this Act would, apart from this clause, result in an acquisition of property from a person otherwise than on just terms, then the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.
Clause 21. Section 170 amended
Inserts a note for section 170 to make clear that the application of the existing provisions in this section will be affected by the proposed Part 20.
Clause 22. Part 20 inserted
Part 20 Transitional matters for Building Amendment (Occupancy Certification) Act 2016
The repeal of existing 194 is a minor drafting matter as this section has already expired.
Proposed section 194 includes the definitions relevant to Part 20. It includes a definition for repealed Act occupancy applications as certificates of occupancy made under section 40 of the repealed Building Act 1983.
Proposed section 195 permits Building Certifiers to determine an application for certification for building works approved and commenced under the repealed Act, despite the transitional provisions in existing section 170. Applications that are in progress before commencement and applications made after commencement may be assessed for an Occupancy Permit, Certificate of Substantial Compliance or Certificate of Existence (noting that only the Director may issue Certificates of Existence, but on recommendation from a Certifier). Proposed section 196(4) enables an application to be determined based on the requirements of the Building Permit granted for the work, and the technical and legislative requirements at the time the permit was valid.
Proposed section 196 refers to the transfer of certification functions for building works approved and commenced under the repealed Act. This replicates the existing provisions in existing sections 39 and 44 to apply to the repealed Act as the transitional provisions in existing section 170 only permits the Director to issue certification for building works under the repealed Act. The consent of the current Building Certifier dealing with an application for certification must be obtained before engaging a new certifier. Alternatively, the current Building Certifier must obtain the consent of the new certifier in order to refer an existing application for certification. This section also enables a Building Certifier to make a recommendation to the Director to grant or not to grant a type of occupancy certification after considering the application and assessing the relevant building work.
Proposed section 197 deals with an existing application for an Occupancy Permit for building works approved under the current Act not yet determined on commencement. An Occupancy Permit, Certificate of Substantial Compliance or Certificate of Existence may be granted.
Proposed section 198 deals with building works issued with an approved insurance policy before 1 January 2013. Building works may be covered for non-compliance with the National Construction Code of Australia if an Occupancy Permit or a Certificate of Substantial Compliance is granted after commencement. The period of cover for the building work will commence either on the day the initial Building Permit granted for the work ceased to be in force, or on the day that the Building Certifier determined building works to have been completed, whichever occurs first.
Proposed section 199 deals with offences under the specific sections amended by the Bill committed before or after commencement. This is standard current drafting practice where a Bill amends penalty provisions. It makes it clear that offences committed prior to the commencement of the amending Act must be prosecuted in accordance with the provision in force immediately prior to commencement of the amending Act.
Clause 23. Schedule 3 amended
This clause includes minor drafting matters. The heading in existing schedule 3 has been amended to refer to occupancy certifications.
This clause also amends item 9 in existing Schedule 3, which is a provision that relates to the determination of applications for Building Permits and occupancy certifications. This item will enable Regulations to prescribe a time for the Director to determine an application for a Certificate of Existence. It also states that the Director is taken to have refused an application if no decision is made within this period. Proposed item 9(5) in Schedule 3 makes clear that the Building Certifier or Director must not grant occupancy certification if building works contravene legislation relevant to building works, such as disability access provisions and other relevant laws in force in the Northern Territory.
Existing Schedule 3, item 10 inserts a requirement for the Director to notify an applicant for a Certificate of Existence if the application is refused or if the certification is granted subject to conditions.
A subsection to existing Schedule 3, item 11 will include a requirement for the Director to inform the relevant reporting or consent authority regarding a decision to grant a Certificate of Existence.
Additional subsections to existing Schedule 3, item 12 will be inserted to enable an owner or owner’s agent to appeal against a refusal to grant or against a condition imposed on an approval to occupy a building on a temporary basis or a Certificate of Existence.
Clause 24. Act further amended
This is a formal clause that provides for further amendments to the Building Act in the Schedule to this Bill. The amendments ensure that current drafting style is used, inconsistencies are corrected and new terminologies are used. The main amendments include the use of the term “occupancy certifications” and including the term “builders declaration” instead of “declaration”.
Clause 25. Consequential amendments
This clause makes consequential amendments to the Local Government (Darwin Parking Local Rates) Regulations and the Unit Titles Act.
Clause 26. Repeal
This clause repeals the Building Amendment Act 2005.
Clause 27. Expiry of Act
This is a formal clause that provides for the amending Act to expire on the day after it commences.