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Construction & Major Projects

Focus: WA building regulation – reform around the corner

28 January 2011

In brief: Four Bills, which have been described by the Building Commission of Western Australia as 'the most significant reform to building regulation in Western Australia in 50 years', have been introduced into the WA Parliament. Partner Michael Hollingdale (view CV) and Lawyer Robert Merriam look at the new legislation that will consolidate various functions under the WA Building Commission and create the new position of Building Commissioner.

How does it affect you?

  • The Bills are to be implemented over a 12-month period, beginning in mid-2011.
  • Once implemented, the reforms should create a simpler system for building regulation in Western Australia, largely overseen by the new Building Commissioner and Building Commission. (See New Building Legislation in Western Australia).1

Building Services (Complaint Resolution and Administration) Bill 2010 (WA)

The Building Services (Complaint Resolution and Administration) Bill 2010 (WA) (the Complaint Bill) introduces a two-stage resolution process for building-related disputes that will replace the current Building Disputes Tribunal system. Under the new process, complaints about regulated building services will first be considered by the newly created Building Commissioner. If the Building Commissioner cannot resolve a complaint, it may then be referred to the State Administrative Tribunal (the SAT).

'Regulated building services' include:

  • building services2 provided by a registered person or approved builder-owner;
  • home building work carried out under a contract; or
  • any other service or work prescribed in the regulations.

Complaints that may be made under the Complaint Bill include a complaint by:

  • a consumer or other affected person that a service is not being carried out in a proper or proficient manner or is faulty or unsatisfactory;
  • a consumer or builder regarding a home building work contract; or
  • a consumer or other affected person regarding a disciplinary matter in relation to a builder, painter or building surveyor.

After investigating a complaint, the Building Commissioner may decide to:

  • dismiss the complaint;
  • commence conciliation;
  • deal with the complaint by making particular orders (including interim orders); or
  • refer the complaint to the SAT.

The Explanatory Memorandum of the Complaint Bill contemplates referral to the SAT if:

  • the matter is technically or legally difficult; or
  • the parties are unable to compromise through conciliation.

Matters may also reach the SAT if a person aggrieved by an order of the Building Commissioner chooses to apply for review.

Apart from dealing with disputes, the Building Commissioner may issue non-binding industry codes and standards, separate from those issued under the Building Bill (discussed below), to provide guidance regarding the safe, fair and economical delivery of building services.

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Building Bill 2010 (WA) for building standards

The Building Bill 2010 (WA) (the Building Bill) introduces a new system for the creation of building standards. The Building Bill will require builders, demolition contractors and owners to ensure that buildings and demolition work comply with applicable building standards. The Building Commissioner will be given the power to exempt a specified building or specified demolition work from the application of a building standard.

Observance of standards will be enforced through requirements for permits and certificates. For example, the Building Bill will create a general requirement for owners or occupiers to have an occupancy permit to occupy a building. Single residential and non-habitable buildings will be exempted from this requirement.

Building, demolition, and occupancy permits will not be required if:

  • regulations so provide;
  • the Minister exempts specified kinds of building work, demolition work or building; or
  • the relevant buildings are incidental to:
    • mining operations;
    • exploiting petroleum and other resources; or
    • industrial processing plant,

but excluding buildings:

    • that are residential or recreational facilities;
    • that are normally used by members of the public; or
    • to which members of the public are permitted access.

Another important feature of the Building Bill is that private sector providers will be able to certify compliance with design standards.

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Building Services Levy Bill 2010 (WA)

The Building Services Levy Bill 2010 (WA) allows for a levy to be imposed on persons to whom permits and certificates are granted. This levy will replace the current levy imposed by the Builders' Registration Act 1939 (WA) and will fund the operations of the Building Commission.

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Building Services (Registration) Bill 2010 (WA)

The registration and approval of builders, painters and building surveyors will be consolidated into one system under the Building Services (Registration) Bill 2010 (WA) (the Registration Bill). The Registration Bill will create a new Building Services Board (the BSB) to oversee the new system, which will replace the Builders' Registration Board, the Painters' Registration Board and the Building Surveyors Qualifications Committee.

In practice, the BSB will form part of, and be controlled by, the Building Commission. The BSB will be an agent of the State, and will consist of:

  • an independent chairperson;
  • two consumer representatives; and
  • two members with experience as registered building service providers.

The BSB will have the power to:

  • grant and renew registration;
  • grant owner-builder approval;
  • initiate interim disciplinary orders; and
  • if the Building Commissioner forwards disciplinary matters to it:
    • deal with minor disciplinary matters (with the consent of the relevant service provider); or
    • refer the matter to the SAT.

The Registration Bill will separate service providers into two broad categories:

  • building service practitioners, being individuals who do not contract with others for the provision of building services, who are required to have certain skills, qualifications or experience (eg a builder, painter or building surveyor); and
  • building service contractors,3 being entities that contract with others to provide building services, which are required to have certain contractual capabilities (eg financial capacity or insurance cover).

A building service contractor that is a partnership or company must nominate a person (known as a 'nominated supervisor') who is a registered building service practitioner to supervise and manage all building work carried out by the contractor.

Under the Registration Bill, a fine of up to $25,000 may be imposed on a person carrying out prescribed building services who is not a registered building service contractor. Under the current legislation, an unregistered builder who constructs a building attracts a fine of up to $10,000. The Registration Bill will also require building service contractors to notify the BSB if they experience financial difficulty.

Importantly, the SAT will be given the power to discipline individual officers and partners of companies and partnerships for breaches of the Registration Bill, as well as the relevant companies and partnerships themselves. This is intended to discourage 'phoenix companies' being set up by the same individuals who were instrumental in another company's failure.

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Conclusion

If enacted these Bills would herald a new era of building regulation in Western Australia. Possessing some similarities to regulation models in Queensland4 and New South Wales,5 the proposed changes represent a more efficient and judicious system of building regulation for Western Australia. Regulation of building services and building standards would be overseen by the Building Commissioner. The registration of builders, painters and surveyors would also be streamlined, with all registration issues proceeding directly to the Building Services Board. These two bodies would replace the current Builders' Registration Board, Painters' Registration Board, Building Surveyors Qualifications Committee and the Building Disputes Tribunal. Finally, the proposed amendments contemplate an increased role for the State Administrative Tribunal.

Footnotes
  1. Building Commission of Western Australia, New Building Legislation in Western Australia, which may be accessed through the Legislative Framework page of the Building Commission of Western Australia website.
  2. 'Building services' include building, demolition, painting, plumbing and building surveying work.
  3. Building service contractors can be sole traders (who must also be registered as a building service practitioner), partnerships or companies.
  4. See Building Act 1975 (Qld); and Queensland Building Services Authority Act 1991 (Qld).
  5. See Building Professionals Act 2005 (NSW); Home Building Act 1989 (NSW); and Plumbing Bill 2010.

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