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Review of the 2017 Building Act

Local Government Workshops

Report on Workshop Findings October 2016

Table of contents

1. Executive Summary.................................................................................31.1 Overview.............................................................................................31.2 The Workshop process........................................................................31.3 The Issues 2016...................................................................................41.4 In Summary.........................................................................................7

Appendix 1: Outstanding Issues from The Local Government Sector ........8Appendix 2: Comments received from Members during Draft Report Review 24

Acknowledgements

This report was prepared by Claire Lings from Sound Certification, with assistance WALGA Staff.

Acronyms usedDFES: Department Fire and Emergency Services LG: Local GovernmentDFES: Department Fire and Emergency Services WALGA: Western Australian Local Government Association

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1. Executive Summary

1.1 OverviewIn 2012, the Building Act 2011 (the Act) came into force and during the initial years of its implementation the Western Australian Local Government Association (WALGA) compiled a list of issues that could aid in discussions with the Building Commission to ensure Local Governments could implement the Act with clarity and consistency. This list was compiled in the first two years of the Acts operation and the information resulting from discussions with Building Commission with regard to this list was circulated to Local Government Building Surveyors at the time. The list was extensive and therefore not all issues were able to be dealt with. Some items on the list have been resolved over time and with more use of the Act however, some items on this initial list still remain cause for concerns today.

The Building Commission indicated that a review of the Building Act would take place in 2017. As such, WALGA has sought the input of their members at a series of workshops held throughout October 2016 in order that an updated list may be prepared which details the main changes that are needed in the Act in order that Local Governments can move forward with clarity and consistency in the future. This list was circulated to members for comment, so that Local Government can be proactive in informing the review in its early stages.

1.2 The Workshop ProcessThe list of existing “outstanding issues” raised by the sector since the Building Act commenced in 2012 was reviewed and a list commenting on what were still outstanding issues was prepared (refer to Appendix 1).

The workshops were designed to find out more about the key challenges and needs of Local Governments in regard to implementation of the Building Act. Workshops were held in Perth, Bunbury and Albany and contact made with some regional Building Surveying Managers who were unable to attend. At the workshops the existing list was reviewed and comments sought on the outstanding issues. Lists were then compiled to narrow down the main issues to a “top ten” from each group and then come up with some possible solutions to those issues.

These “top ten” lists from each workshop have been collated into the outstanding issues 2016 detailed in this report.Page | 3

1.3 The Issues 2016The issues are presented in summary form below as main issues and then the complete list of issues raised by members at the workshops. These issues are listed according to the frequency with which they were reported at the workshops.

1.3.0 Main Issues- “The top ten”

Clarity of Information Required to Be Submitted to LG:o Certificate of Design Compliance not meeting local requirements (such as flood prone areas finished floor level

requirements)o Certificate of Construction Compliances often being signed as meeting applicable building standards where site

inspections reveal this is not the caseo A minimum standard of documentation needs to be prescribed in the Act so that consistency can happen across Local

Governmentso Building Commission interpretation of Act- be able to put advice in writing to support enforcemento Clarification on Schedule 4 exemptions when Occupancy permits are requiredo Require all documents referenced on the Certificate of Design Compliance to be stamped

Mandatory Inspections:o Inspections and tests required for Class 1 buildings to be included in the Acto Swimming pool barrier inspections should remain the responsibility of Local Governmento Community expectation is that Local Government will be a “back stop” and impartial party in the process- What will be

LG role?o Inspections should be carried out by a suitably qualified person- these inspectors should be registered and independent

of the buildero Mandatory yearly inspections and certification of essential services (such as fire safety services) should be considered

Time frames and Fees:

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o Local Governments need to be able to charge fees for compliance work required when issues arise for privately certified applications-cost recovery

o Fees for Building Approval Certificates should increase to be more of a deterrent o Incomplete certified applications should result in a longer processing time being able to be applied by Local

Governments

Amended Plans:o There needs to be a simplified process in the Act or Regulations and a prescribed formo Require guidance on how to deal with building surveyor sign off on site changes. Should they be included in a

Certificate of Construction Compliance?o Building Commission to give guidance on the definition of minor and major amendments

Bush Fire Prone Areas:o Consistency is required between planning and building requirementso Guidance is required on what will happen once the transitional period for works under $20000 construction cost ends.o Clarification is required for the requirements for shedso More training is needed so that there can be consistency across Local Governments

Infringements:o “On the spot” fines – Infringements are better than going through lengthy Building Order/SAT process which can be

costly and time consumingo Infringement for failure to lodge BA7o Infringement for failure to rectify a non-compliance instead of having to go through a building order processo Increase penalties for unauthorised work

Training:o Training needs in WA needs to analysis to assess current training available and identify training needs.o Development of a standardized WA based training program for Building Surveyorso Funds being made available for Local Governments to offer “cadetship” programs for Building Surveys- access BCITF

funds?o Building Commission to set up a panel of experts to give advice to Local Government

Registration of Technical Specialists:o Technical specialist (such as fire engineers) should be registered with the Building Commission

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o Registration of Energy Assessors, Bush Fire consultants and Access consultants required

DFES Role:o Role of DFES needs to be better definedo Arbitration for where there is a disagreement between Local Government Building Surveyor and opinion of DFESo Process in the Act to enable a submission to DFES where an alternative solution has already been constructed on site

Other Prescribed Approvals:o Other prescribed approvals should be required to be outlined on the Certificate of Design Complianceo Clarification from Building Commission is required on where a planning condition can prevent a Building Permit being

issuedo Copy of planning Approval and details of conditions satisfied to be required to accompany a Certificate of Design

Complianceo Clarity of Regulation 18 and Section S22(2) in relation to compliance with Planning and Development Act

1.3.1 The Complete List

Conflicting technical requirements between Health (Public Building) Regulations 1992 and the BCA. Clarification required within the Act.

Clarification on S20(p) in relation to requirements of Reg 18 for granting a Building permit and the wording “complied” or “is complying with”.

Provide Permit Authorities with more discretionary power with regard to granting of Occupancy Permits and Building Approval Certificates under Section 58(f)

Clarification required on the applicable building standards for change of classification under Regulation 31G. BA7 Notice of Completion- may be better for this to be provided by the private certifier with applicable test

certificates rather than the builder- similar to Occupancy permit process Specific provisions are required in the Building Act in relation to existing building stock and any requirements to

upgrade old building stock to a reasonable standard even if it may comply with the regulations at the time it was built.

Clarification on whether there is a statutory obligation on Local Governments to identify buildings in their municipality which could be considered dangerous or unsafe.

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Require Local Authorities to submit an Inspection Risk Management Plan to the Building Commission on a yearly basis for approval

Planning current decision time under Planning and Development Act should align more closely with Building Act decision timeframes.

Tighter regulations required around temporary Occupancy Permits. Asbestos regulations need to be clearer- should asbestos removal contractor be required to sign the application

form for Demolition Permit Building Commission should develop a checklist of minimum documents required structures classification Strata inclusive of built and survey strata as currently s.50 only covers built strata Stormwater disposal and discharge not adequately covered. Need tighter regulations around this. B20 and BA20a- there are too many interpretations and no clear guidelines Building Services Registration Act – All trades to be registered similar to Tasmanian model More training and clarification on disabled access requirements. Particularly when it comes to fit outs of older

buildings where there is a change of classification.

1.4 In Summary

It was clear at the workshops that with the introduction of the Building Act 2011 in 2012, the role of Local Government Building Surveyors became uncertain and four years on there is still a need for clarity and consistency throughout the sector. The introduction of the Guide to Building Approvals Process in WA issued in December 2015 by the Building Commission did offer a clearer picture of how the process should work however, there still requires some improvements to be made to ensure a robust system is developed into the future. During the workshop discussions members raised that the Building Commission needs to improve the communication about the interpretation of the Act for the industry. This could be achieved through a commitment to offer written advice to Local Government and the reintroduction of “how to” manuals as discussed during the 2013 review.

Compliance and inspections was strongly discussed at all workshops. Many respondents cited the example of private certifiers who issue Certificates of Design Compliance without the responsibility to ensure compliance once a Building Permit is issued. Many were concerned that the community expectation was that Local Government will carry out this compliance work but with no ability to charge for this service Local Governments were finding it difficult to recover costs. There was strong agreement for the need to introduce a mandatory inspection framework and a Local Government need to be part of the discussion to ensure that any new inspection regime meets the business needs of Local Government and community expectations. It was also suggested that the implementation of infringements for non-compliances may aid in cost recovery for Local Government and that a tightening of the requirements around a BA7 Notice of Completion may aid in greater responsibility on the builder or private Page | 7

certifer.

Another point of discussion that was expressed across all workshops was the need for a registration framework for other professionals in the Industry. Respondents raised concern with the potential level of risk that building surveyors are exposed to in signing off providing permits, which include information provided in good faith by other professional such as energy assessors or BAL assessors. Workshop respondents suggested that a way to mitigate this is to develop a registration process for other professionals in the industry.

One item that was raised in both the Perth and regional workshops with very differing responses at each was the inability of Local Government building surveyors to sign off a CDC in their own municipalities. In regional workshops attendees were clear that they wanted this to remain in the Act however, the attendees at the Perth workshop expressed a wish to be able to sign off on their own buildings. WALGA will be unable to advocate on this issue with such differing opinions of its members.

Appendix 1: Outstanding Issues from the Local Government Sector 2013 with 2016 update shown in red

Section of Act or Regulation,

Manual or other

Comment Action

Act - Part 2 Amended Plans – Change legislation so as to facilitate amended plans being dealt with under an existing valid Building Permit, and clarification on what ‘minor’ variations actually means within this process.

Local governments are all dealing with this issue in different ways as there is no clear process set out in the Act or Regulations. The one option that the Act does provide is that each time an amendment is proposed that is not work that is deemed to be exempt, that the applicant has to submit another application. This is the system also suggested to be applied by the Building Commission Officers. This system is proving to be onerous both for the applicant and the local government, and is why many local governments apply an ad-hoc arrangement.

There also seems to be no reason why local governments could not adopt the same approach as how they operated under the previous Act as the Act also does not seem to suggest that a permit authority can’t accept amended plans after a building permit has been issued, provided the amendment is accompanied by an amended CDC that confirms the changes also comply with the Building Code of

Meeting with the Commission on the 13 May 2013.

To be discussed further with HIA as it is mainly for single residential development.

Possible action by the Building Commission - a new Bulletin to provide more clarity on what constitutes ‘minor’ variations, using examples to guide a LG officer.

Sept 2016- Permit Authority Advice Note issued April 2012 and industry bulletin issued May 2012 about variations and amendments to building work but this did not cover how amended plans should be dealt with. In the Guide to Building Approvals Process in

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Australia. This needs to be clarified so that permit authorities apply a consistent approach to dealing with amendments.

WA issued in December 2015 it states that if amendments are required that are not “minor “then a whole new Building Permit application should be made.

Act – Section 19 Possible restriction of the certificate of design compliance to building matters only. While having merit, this will still require the local government to get their Planning Department to check for compliance with the planning approval, and for the building surveyor to also do their necessary checks, all within a 10 day period. This is why several Councils are insisting upon a clearance process from other Council Departments prior to a certified application being submitted, in order to satisfy the 10 day timeframe.If the previous suggestion is not supported, then current CDC requirements should specifically state which of the local government planning requirements have been addressed, not just that the Planning and Development Act has been compiled with.

Sept 2016- The requirement for a Certifier to state other prescribed approvals on the CDC has been removed. There is now nowhere for the certifier to demonstrate that a Planning Approval has been granted or is not required.

Act – Section 20 Section 20 to be amended to clearly distinguish between certified and uncertified applications and the matters that a local government building surveyor is required to check. This would reduce the conflict between sections 20 and 144 of the Act.

Meeting with the Commission on the 14 June 2013.

Commission advised that the clauses were clear enough to guide the checking process for certified and uncertified. Clause 20(2) was discussed, could the clause be amended to specifically state the (a) to (s) is for uncertified only.

Commission agreed that there may be some confusion in this section and that they would look into this further as part of the next legislative review.

Sept 2016- This has not been amended however it seems that through the process being in place for some time Permit Authorities are quite clear on the number of days required for deciding an application that is either uncertified or certified.

Act – Section 20 Section 20(q) requires that a local government not issue a building permit unless it is satisfied that the building work complies with each provision of a local government policy or requirement, not being a written law, that is prescribed. However the Regulations do not prescribe this and there are different approaches being taken at individual local governments. Regulations on section 20 (q) would assist in this matter.


The Commission discussed this and felt that if they are too prescriptive then it will end up like the Victorian model, where checklists and auditing become the focus.

Considered that it shouldn’t be regulated, but will look into this further as part of the next legislative review.

Sept 2016- This is difficult as there are still different approaches being taken in different Permit Authorities depending on how they treat certified applications and trust that the certifiers have met all the required provisions. Some Council’s check all applications however some just check those that are uncertified. The Guide to Building Approvals Process in WA issued in December 2015 did

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give a clearer process for Permit Authorities to follow.

Act – Section 20 Specify within Legislation the manner by which documents must be identified. It is recommended that all documents be stamped in accordance with an agreed convention/format by the Certifying Building Surveyor. To nominated every document is extremely time consuming, stamping would be quicker, see the proposed change to the Certified Building Permit Application to facilitate this proposal.


The Commission are in the process of developing a Code of Practice for Private Certifiers which should enable this issue to be addressed. The draft code will be circulated to AIBS, WALGA and other stakeholders to provide further guidance in the correct was to identify plans.

Sept 2016- The Commission has developed Quality Assurance check sheets for Private Certifiers to use (released 14 October 2015) but it is not mandatory for certifiers to stamp plans.

Act – Section 20 Since the introduction of the Act some applications have been lodged where people have already commenced building work without approval but have then applied for a building permit. This has presented difficulties in so far as an application for a building permit should be submitted for proposed works only, and an application for a building approval certificate should be submitted where works have already been undertaken. Having regard to Section 20 of the Act an applicant may comply with all matters listed in (1)(a) to (s) and therefore the permit authority "must grant the building permit" notwithstanding that building works have already commenced and should in fact be the subject of an application for a building approval certificate rather than an application for a building permit. Possible suggestion that Section 22(1) be modified to state that a further reason for not granting a building permit would be where building works have already commenced that should be the subject of an application for a building approval certificate. Also recommended that BA1 and BA2 application forms include a statement that the works have not already commenced.


Advised that Section 14 provides the words ‘to do’ building works, and when read with Section 51 ‘unauthorized works’ and Section 112 on CBC’s, its provides the scope for a local government to consider issuing a Building Permit even though the works have already started.

If section 22 (1) was altered, as suggested, it would remove the flexibility for a LG to consider an application that already had works started.

Changing the forms was also discussed, the Commission advised that they would look into the forms as part of their review process. However, it was agreed that it may be more appropriate to edit the application guides, to explain to the applicant that if the work has already started then they need to submit an application for a BAC rather than BA01 or BA02.

Sept 2016- This is still unresolved and is handled differently by each Permit Authority.

Act Section 20 BCITF Fee – the Act requires a Permit Authority to confirm proof of payment before issuing a Permit. Some Local Governments are happy to sight just the application form for the BCITF – however, the form doesn’t show “payment”. This requirement is compounded with online applications, particularly where a builder has a monthly billing arrangement with a Council. Some LG’s are requiring evidence of payment to be attached, others aren’t. Verbally the Building Commission will stand by a LG’s line of thinking, but the Building Commission is reluctant to send out a circular or similar to confirm the actual requirement. What is the Building Commission’s intention with respect to payment of the BCITF fee?Further, with today’s technology the CTF go online and accept direct payments. At present they only have two methods which are, cheque and in person. Its about time CTF got with it. If Landgate can issue copies of title and receipts via their web site using a credit card why can’t the CTF? If customers


The Commission is currently pursuing this matter with the CTF in order for a better payment system to be established and for greater clarity on the requirement to submit proof with the application.

Sept 2016- There is now an online payment system that builders can use to pay their levy and then

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could pay directly, this would assist us in reducing our administration costs and wasting unnecessary staff resource time at front counter.

provide the electronic receipt with their building permit application. The CTF has also advised that if there is an adjustment required to the levy (construction cost goes up after the permit is issued and amended plans issued by the LG) then they follow this up with the builder at the end themselves.

Act – Section 20 This matter was raised as an issue before the commencement of the Act and is proving to be an issue that remains unresolved and problematic for both, private building surveyors, applicants and local government. The initial direction of the Act appeared to be strong, in that section 20(1)(n) and (o) required the applicant to be satisfied that a planning approval had been obtained or that it was exempt from needing to be obtained prior to lodging an application. This has since been watered down with changes made to Regulation 20, to set aside this time after an application has been made for local government to sort it out.To date, the general experience for local government has been that most applicants and private building surveyors do little to check that all planning issues have been resolved before submitting their application.Most Planning Schemes also still exempt single dwellings from needing a planning approval provided they comply with the Residential Design Codes. This poses some problems in that the Acceptable Development Criteria provided by the Residential Design Codes are still quite open to different interpretations and are also further complicated by a myriad of DAP’s (detailed area plans) that also provide further changes to the criteria provided by the R-Codes in respect to the placement of houses on properties.This means that again local governments are considered to be withholding building applications unnecessarily, but are also still being expected (as required under sections 20(1)(n) and (o) and 22(2) to undertake this assessment for no prescribed fee, except for when a planning permit is actually required. Representatives of the Building Commission have been advising that a building permit could be issued without checking that all conditions of a planning permit have been complied with. Section 20(1)(o) states that a permit authority must be satisfied “that the applicant has complied, or is complying with each Authority mentioned in paragraph (n)”. This is obviously an interpretational issue that needs to be resolved, as most local governments will err on the side of caution and will not proceed to issue a building permit until all relevant conditions have been complied with.

This whole area of the legislation needs to be cleaned up so that the planning requirements have little room for misinterpretation and stronger legislation is needed as to who is responsible to do what, and more emphasis needs to be replaced back on to the applicant to ensure that all planning issues have been resolved before making the application for a building permit. This could perhaps begin with a shorter and more concise version of the acceptable development criteria of the R-Codes that removed any of the areas where there was room for misinterpretation.

Sept 2016- This is still an ongoing problem for LG and is handled differently in most Council’s. Still needs stronger legislation to tidy up. The latest BA1 form (July 16) includes Part 6 statement by applicant to provide evidence of compliance with approvals given. A tick the box yes/no could be added to this section?

Act – Section 21 Demolition Permits – The process has been overcomplicated. Insurance requirements and proof of notification are confusing people. Have a statutory declaration that demolition contractor must fill in that confirms the services on site and that they have notified the service Agencies. More stringent requirements can be developed for owners/unregistered persons (with Work Safe) demolishing a single house as they are permitted to do.

Sept 2016- This process is still not resolved. Also, a stat dec or similar for asbestos removal requirements would be helpful as most older dwellings would contain some asbestos and the licensed asbestos

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removal company may be different from the demolition contractor. An extra area could be added to the application form to allow the asbestos removal contractor to be nominated.

Act – Section 23 If a local government has been unable to assess an application within the prescribed timeframes, a local government is obliged under section 23(4) to refund the application fee. Under Section 23(6), Local Government may still be obliged to deal with the application for no fee. This also raises the issue that if a local government chooses not to determine the application, on the basis that it has no funds to support providing that continued service, who can the applicant obtain an approval from?If for example, a local government assesses a certified application on the 9th day, and on that day or the day after requests the applicant to submit further information, the local government has to receive the information, assess it and then issue an approval in less than 1 day. Local government still plays a large role in the building approval and compliance process, it is also distinct from other business in that it is responsible to do things under the Act, much of which it is unable to obtain a fee under this act for the service it is required to provide. As with any private business, local government cannot always guarantee a same day approval, due to staff and workload constraints and as such it is unrealistic to expect a local government to lose income for a service it is obligated to provide. Many local governments also close down during the Christmas and New year period, however the definition of working days do not consider days when an rganization closes to the public, only public holidays. Should the definition extend to such occurrences and should it also consider other events when a permit authority has had to close for emergency purposes such as fire, flood and the like.

Workshop with LG Building Surveyors on the 2 July.

Possible solutions Need to check that the claim for a refund is accurate,

which requires accurate record keeping and monitoring of applications.

Allocate a timeline for the request for refund to be lodged – what is an appropriate time? 12 months?

Clarify with the Building Commission Clause 4 (b) Extension of time agreements can assist but merely adds

to LG’s administration time Need to obtain a legal position on whether admin fees

are able to be held by the LG. Possible an admin fee separate to the Building Permit fee

particularly with the significant increase in administrative work needed by the Act.

No punitive fee for the builder/applicant for submitting incomplete applications. Fee for further information requests?

Why is only the LG fee refunded and not the Building Levy fee as well?

It would be better to increase the amount of time allowed for acceptance of the application from the current 12-24 hours allowed depending on post etc. If this was increased to 3 days it would be better as quite often it is the counter or records staff receiving the information and they mostly do not have the knowledge to determine if the application is suitable to accept. If this was increased to 3 days then it would give the application time to get to the appropriate person and respond (i.e. if they are at a meeting or a clerical person is sick for a day).

Also there needs to be recognition of some of the informal arrangements between the applicant and the Building Surveyor to agree that the application can go over time (the 10 or the 25). Typically this is because they have not submitted enough information. We don’t want to cancel or refuse it and neither does the applicant due to the hassle. The inflexible structure really baits Council’s into refusing applications for minor reasons just to avoid a possible refund. (A stop the clock agreement form could be developed).

There should be a cap on the time frame after approval that an applicant can ask for a refund. Also there should

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be an ability for the parties to agree that a refund will not be applied for, so that Council’s are not forced down the refusal path to protect themselves from a refund application. (See examples where engineering or planning have held up an application). (Develop a standard no refund agreement form).

Sept 2016- This still needs some work and clarification. It is a common problem and handled differently by different LG’s

Act – Section 24 Provide a Refusal Notice/template

Act – Section 29 Refer to the McLeod’s Legal opinion on S29 of the Act attached to this table, which statesThe enforcement difficulties … could be resolved if s.29 of the Act was amended to include owners as persons who must ensure that a building to which a building permit applies complies with plans and specifications and any conditions specified in the permit.

Meeting with the Commission on the 13 May 2013.Discussions around Home Indemnity Insurance and State Parliaments requirement for owners signatures to be part of the application. Also discussed whether the permit should include to whom the permit is issued to. Building Commission to have further discussions with the State Solicitors Office in regard to the legal advice from McLeod’s. To be considered in any future amendments to the Building Act.

Sept 2016- This is still unresolved and the owner is not required to sign the Building Application form.

Act – Section 33 Section 33 clearly places the obligation on the builder or demolition contractor to give to the permit authority a notice of completion. Notwithstanding this, local governments are concerned that they may be held accountable by landowners to check that they received a Notice of Completion for all jobs.

To date, our experience indicates that local governments are receiving less than 50% of certificates compared with the permit numbers issued. Furthermore the Notices we have been receiving are indicating that work was completed more than 7 days before the Notice is even mailed to the local government.

The point of this is that it may end up adding a significant work load for local government should they be expected to properly administer this function, by having to inspect properties to determine if the building has been completed and then follow up with the builder to get the Notice. It is acknowledged that local governments could prosecute builders and demolition contractors for not submitting the required Notice, local governments would still likely be out of pocket should they be expected to properly administer this function.

If all buildings required a final inspection, as is the case in some other states, for which a fee could be charged, this would enable local governments to deal with this more effectively and perhaps as the Act intended.

Sept 2016- This is still adding significant workload in chasing up those people who do not supply their notice of completion to the LG. It may be able to be dealt with through discussions on mandatory inspections.

Act – Section 39 Exemptions

How to lodge an application to the Commissioner pursuant to Section 39 of the Act for exemption to not apply a building standard. A LG received an applications for works affected by the 100 year flood event, as an older developed area a lot of sites affected by this have been developed prior to the adoption of the current standards and the buildings sit below the flood level. Understandably most persons affected by this when carrying out additions want to develop at a level that is consistent with the existing building. The performance objective of the BCA says waters arising from a 100year storm must not enter the building, consequently there isn’t really any scope to approve this on a performance

Sept 2016- This is still the case- Have there been any change to this? Confirm with WALGA?

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basis either. Under the old Regs the discretion clause was used which basically said if you define works as minor you could choose not to apply parts of the Code, Local Governments no longer have that discretion, the discretion lies solely with the Building Commissioner.When discussed with the Commission they advised the Commissioner didn’t have the discretion to consider such a variation and they went to great effort to urge me to determine the matter at the Local end. McLeods have advised that LG has no legal authority to approve something that departs from the Building Code and the adopted Standards (assuming it cannot be approved on a performance basis) and that only the Commissioner has that discretion under Section 39 of the Act. Section 39(4) says the following; (4) The Building Commissioner must not make a declaration unless satisfied that the declaration would not result in an increased risk to people, property or the environment and that making the declaration —

(a)is in the public interest; or(b)is consistent with the purpose of any other written law or a Commonwealth law.

Interestingly enough the preamble to subsection (4) marries up with the overriding objective of the Building Code, namely the preservation of Life and Property. Given that the specific problem is arguably in conflict with what the preamble states, is not in the public interest (a) or addressed by any other relevant law (b) I can understand the Commissions advice. However, I think what the Commission should be saying is a person has a right to apply but given the implications of subsection (4) they have no chance of getting approval, consequently such an application being made is discouraged.

Act – Section 50 Appears to have some content missing in relation to the process of dealing with existing approved buildings that had been issued Certificate of Classifications under the old system. The current process calls for an application for occupancy permit – strata to be accompanied with a certificate of building compliance. However, this seems onerous in relation to a building built under the old system that was issued with a Certificate of Classifications, which after all under the old system a Certificate of Classifications was more or less a Certificate of Construction Compliance.

Sept 2016- Still some confusion with the requirement for an occupancy permit for old work. This is particularly evident where there is an application for a fitout within an old building. Some LG’s are asking for Occupancy Permits for fitout work but the building commission in their industry bulletin 15/2012 stated that fitouts do not require an occupancy permit where there is a Certificate of Classification for the building under the old system. This is often hard to prove as the availability of records is not always there.

Act – Section 50 and associated forms and permits

‘Occupancy Permit – Strata’ – terminology is misleading. It is an application to strata only and has nothing to do with occupancy. Rename to something like ‘Strata Certificate’ – remove reference to Occupancy Permit. This would remove the confusion where you have to apply for an ‘OP – Strata’ to strata and then need to apply for an ‘OP’ to occupy. Same goes for BAC – Strata and BAC.

Reporting on occupancy permits is creating issues for us as we do this within another application so the days are hard to record.

Built Strata forms should have a different name relating solely to a strata as they currently seem to cause a lots of confusion.

The strata title process is confusing for Building surveyors, let alone applicants, builders and the land surveying industry, especially when a strata also includes unauthorised building work and requires a Occupancy Certificate to be obtained. The Commission need to clarify what forms are required to obtain a strata approval. Having an “Occupancy Permit” and “Occupancy Permit – Strata” and a

Meeting with the Building Commission on the 11 July to discuss the workshop results from the 2 July 2013.

Agreed that the terminology and process was confusing.

Building Commission to prepare a flow chart and info page on the process, providing specific examples to assist (LG’s attending offered to help with the examples, review of the draft document)

This has been clarified by the Commission in there Guide to Building Approvals Process in WA issued in December 2015

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“Building Approval Certificate” and a “Building Approval Certificate – Strata” has created a lot of confusion particularly in the land surveying industry. Example: An owner of a building that is nearing completion and which is also to be Strata titled needs to make an application for Occupancy Permit and application for Occupancy Permit Strata. In order to obtain either of these permits, the owner must obtain a Certificate of Construction Compliance, (CCC). During the assessment of these applications, the Building Surveyor discovers that unauthorised building work has been carried out (such as the installation of a mezzanine in a workshop building). The applicant would then need to obtain an occupancy permit for the unauthorised building work

Problems: Can this be lumped into one application for Occupancy Permit or are the 3 applications

required, or could it be 2 applications? How do you apply the different prescribed fees for each application that may be needed

including the Building Services Levy? Does a new CCC (or in some instances a CBC), need to be obtained in respect to each

application for Occupancy Permit?Recommendation:

The application for Strata clearance needs to be its own application and permit. This application can apply to any class of building and have its own prescribed fee.

Unauthorised building work needs to have its own application and permit. This application can apply to any class of building and have its own prescribed fee.

Occupancy Permits should be applied to all classes of buildings, including Class 1a and while it may not be mandatory for a person to obtain one, if a person does, then the same system as is applied to class 2-9 should be adopted.

Act – Section 54(2) and (3)

Requires that an application for an OP or BAC must be accompanied by a CCC or CBC (whichever is relevant). This does not allow for concurrent submission and assessment of certificate (CBC or CCC) and application for OP or BAC, by LGs – requires that Certificate must be applied for issued first by the LG, and then a separate application be made for OP or BAC – not customer friendly where LG doing both certification and issuing OP or BAC – modify s54(2) and (3) to be able to apply for both to LGs concurrently.

Sept 16-This is carried out concurrently by LG’s now.

Section 80 1. Fences not to be removed without consent, court order or other authority. LG becoming involved in adjoining neighbour disputes when it should be covered by the Dividing Fences Act – this also applies through the ‘Work affecting other land’ provisions (s.76 etc) as LG becomes the ‘enforcer’ if consent is not obtained. Disputes on dividing fences should be handled through the Courts, not by local government.

2. The Commission need to further clarify if and when a BA20 form is required for excavation/retaining works adjacent to a common boundary, i.e. when is the bearing capacity of the adjoining property being affected. This is one area that is highly emotive for adjoining owners for which local governments then have been left with the responsibility to deal with after a building permit has been issued. I.e. In instances where a certifier has not considered it necessary to obtain consent from an adjoining owner, only to find out later that consent perhaps should have been obtained.


1. Advised that infringement fees and processes are being drafted to make it clear that a LG should only be involved in issuing an infringement where consent has not been gained when a fence is removed. All other aspects of the fence removal should then be followed up as part of the Dividing Fences Act. Building Commission to provide clarity on Sections 80(1) and 80(3) for local government and a flyer for LG’s to provide to residents, clearly explaining the level of involvement by a LG in these clauses.

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Meeting with the Building Commission XXXSept 16- Still a major issue for LG and many times customers directed to the Building Commission to discuss the Dividing Fences Act are redirected to the Local Government.

Act – Section 111

1. Remove need for 14 day warning prior to issuing a Building Order.

2. Notice of cessation correct process and fees need to be included as the Act does not allow for any fees.

Meeting with the Commission on the 13 May 2013, regarding the 14 notice: Advised that the Parliamentary Council included this 14 day

requirement, to provide the opportunity for negotiation and rectification of the problem prior to a formal Building Order being issued (ie procedural fairness). Need to provide advice to LG’s on why this was included and how it can be a more positive aspect of the Act, rather than an additional administrative matter. The Building Commission advised that an industry bulletin may be prepared in August 2013 encouraging LG’s to advise the BC of any recalcitrant builders who disregard the 14 day notice/building order.

Notice of CessationSept 16-This is still the case- no fee requirements

Act – Section 129

129. Inspection, copies of permits, building approval certificates in register(1) A permit authority must make the register available for inspection by members of the public during normal office hours.(2) A permit authority may, on application by any interested person and on payment of the prescribed fee, if any, provide to the person a copy of a building permit, a demolition permit, an occupancy permit, a building approval certificate or a building order that is kept in the register.

To tie section 129 to Section 131’s definition of an ‘interested person’


Act – Section 131 and 132

1. Compliance reporting under Section 132 of the Building Act requires additional information to be provided to assist local governments in developing a Compliance Audit program. For example, if a local government had 500 new single dwellings approved within a 12 month period, there needs to be guidance as to what is an acceptable percentage of permits to have inspected and then reported back to the Commissioner.

2. ABS are requesting further information over and above the report provided to them. I believe the Commission needs to consolidate all reporting to be forwarded to the BC and all prescribed parties would then access the BC for whatever they require and are permitted to have of course. In other words the BC should be the only location we L.G. send our Building reports to.


1. Compliance reporting – is part of the Building Commissions upcoming auditing process. Further details should be available in August.

2. The Building Commission are looking into the consolidation of the statistics, with the Commission being the common point for all statistic requests.


Act – Section 143

Section 143 of the Act provides protection against tortious liability for an individual acting in good faith, but this does not currently extend to permit authorities. The Act should also be amendment to provide that local governments are not liable for any errors or omissions in a certificate of design compliance.


Further details and advice to be provide by WALGA to continue this query with the Commission.Sept 2016- This is still the case- Have there been any

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change to this? Confirm with WALGA?Regulations – Section 17

Modify to clarify those circumstances where DFES referral is not required – currently every Class 2 to 9 application is required to be referred to DFES and await comments for 15 days, even though DFES are traditionally not interested in anything less than 500m2

DFES comments process is a real issue.

Building Amendment Regulations (no 2) 2012 20 December 2012

New regulation 15A(1) requires a building surveyor to notify the FES Commission within 10 days of receiving advice about plans and specifications under regulation 18B(1) about any part of the FES Commissioner’s advice not incorporated into the plans and specifications and the reasons for not incorporating that advice. New Regulation 15A(2) requires a permit authority to give the FES Commissioner a copy of any occupancy permit granted.

New Regulation 15A(3) requires a permit authority to give the FES Commissioner a copy of any form of modification of an occupancy permit granted.

Deletes regulation 17, most of the relevant provisions of which have been carried over into new regulation 18A. New regulation 18A(d)(i) carries over provisions from previous regulation 17I(ii) to require the certificate for a Class 2 to Class 9 building to detail any advice given by the FES Commissioner about the plans and specifications. New regulation 18A(d)(ii) carries over provisions from previous regulation 17I(ii) to require the certificate to detail any notification given by the building surveyor to the FES Commissioner under regulation 15A(1).

Amendment on the 21 June 2013 – Deletion of section 23A in the Building Regs – Building Permit no longer required to be submitted to the FES Commissioner.

Future workshop was arranged by WALGA with DFES to present in Sept 2013

Sept 2016-This was clarified in Guide to Building Approvals Process in WA issued in December 2015 however it is still not clear that if the certifier does not receive a response from DFES within 15days and then lodges the application for permit without their comment can the LG still issue the Permit?

Regulations – Section 53

1. Should include an emphasis on the pool owner to require their pool fence/barrier to be certified compliant at least once every 4 years or something to make the pool owner more responsible. Suggestion that Section 53 of the regulations be edited to add in an additional provision (3) to also require the owner to have some responsibility in ensuring that the pool fence is compliant.

2. It would also be beneficial to have some clear and definite wording regarding proposed pools on vacant lots to create some consistency between Permit Authorities.

3. Swimming Pool infringement notice not adequate should be at least $250 not $100.

4. Modified penalty proposed in the drafting instructions (Sept 2013) changing the penalty from $100 to $750.

Sept 16- I believe this has now been amended- Confirm with WALGA?

Schedule 4 of Regulations

Exempted Buildings – More prescriptively define within Schedule 4 of the Building Regulations exempted buildings. Example currently 6m high light poles on a reserve require a building permit) there

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are many other variations on this theme that need to be more clearly defined. Owners Signature

Owner’s signature on applications - Maintain the owner’s details section on the Building Permit Application Forms, remove the

requirement for the owner/s to sign application Forms. This will return the process to that operated for the past 51 years.

- Under S28(1) owners are required to be provided with a copy of the permit – hence if they do not sign the application form then at least they get a copy of the permit for their info

- if not removed, perhaps they could include in the text, “acceptable by fax, email, photo copy of the original signature”.

This matter is proving to be a headache for industry and local government and is slowly being watered down by recent changes to the Building Regulations and Act. Why should it be necessary to have all owners sign an application form, surely one owner is sufficient and if there is a disagreement between owners, they can take independent civil action. The Exemption Order for Class 1 and 10 buildings is assumed to be a quick fix to pander to the concerns raised by the project home builders, but really just serves to add more confusion to the mass of changes already made by the Act rather than provide a clear and concise direction. If an owner’s signature is not required for applications for the Class 1 and 10 building market, then surely it must also be okay for the Class 2-9 building market, and would bring the process back in line with that adopted by the previous Act which rarely, if at all suffered any consequence. There is also concern that owners can hold builders to ransom by not signing applications for occupancy permit in order to withhold a final payment that this permit might often be linked to. There seems no reason why a builder should not be able to submit this application without having to obtain the owner’s consent?

Building Amendment Regulations (no 2) 2012 20 December 2012 and Section 67 Order – clarity on State being an owner, and exemption from owners signatures for Class 1 and 10’s until June 2013 (possible extension to 2013).

Still does not address the concerns about the signatures.

Sept 2016-Industry Bulletin 050/2014 issued December 2014 states that a Ministerial Order that certain owners are exempt from signing the application form is extended until 31 December 2016. Concern about obtaining owners signature has still not been dealt with.

Application Form BA01

Certified Building Permit Application Form – Alter to include a statement/certification from the Building Permit applicant that the CDC and all associated documents certified by the Building Surveyor are attached to the CDC and are submitted with the Certified Building Permit application.

Sept 2016- Point 1 in the BA1 form released July 2016 staes this however there is nowhere for the applicant to tick that they have provided this information.

Application Form BA02

Another issue raised is that Builders are not advising their clients that they are using Private Certification instead of Shire/City/Council for assessment of their applications. This is misleading for clients when there is significant percentage of owners that want the Shire/City/Council to review their plans prior to assessment. NSW had this problem also and introduced into their Regulations that the form had to contain a section where the client had to sign that they gave permission for their application to be assessed by a Private Certifier in lieu of Council. A change on the form would clarify this for owners. (Note that the fees differ greatly in some areas between private certifiers and Permit Authorities)

Sept 2016-This is still the case-no change

Forms Prescribed forms are understood to be a legal document and any time these forms are used, they should be the up to date form. The length and complexity of application forms and permits (has gone from a 1 page document to a 2 - 4 page document and have added considerably to the administration time and costs for Local Government.

The Building Commission have now updated quite a few of these forms and there is no easy way of telling what forms have been used. It is also understood that the forms should not be altered by any party and that forms should be provided with a version Number and date of commencement of use.

It is now understood that there is some loophole under the Interpretations Act where forms can be altered, and that private building surveyors are now using this to alter the forms for their benefit. Local

Sept 2016-Declaration now changed to “Statement by Applicant”Confirm with WALGA if any changes to Interpretations Act have been pursued?

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Government is now left to make sure that the content of the information provided is still consistent with the prescribed form, which adds further time for local governments to assess applications, particularly now that application forms are up to 4 page documents.The Commission should take steps to ensure that it is an offence to alter application forms so that the process of assessing an application remains as simple as possible, and if any application that is submitted using an altered form can simply be rejected, and any applicants continuing to alter forms appropriately be penalised.

The declaration on the application forms also appears to be a waste of time and space as there appears to be no penalties for falsely completing the declaration, and the content of the declaration is often either being misinterpreted or falsely completed.

Manual Correction of the inaccurate statements in the ‘Manual’ as follows: The Proforma Statement on Planning has at the bottom ‘Certified Practicing Planner’ implying that

someone outside of a Local Government is able to sign off on the Planning side of things. This is wrong and needs to be urgently changed to reflect the WA environment as it is.

Page 24 of the Standardized Processing Manual states “ Houses that comply with the acceptable development provisions of the R-Codes do not need local government planning approval”. This statement is incorrect and fails to understand the requirements of a local planning scheme or requirements of detailed area plans (DAP’s). At present the manual implies everything is acceptable without reference to the local planning scheme itself. Suggest the wording should be about the local planning scheme and the exact provisions that have been addresses not just the R-Codes.

Page 24 of the Standardized Processing manual has the following comment “If the application contains a statement by a registered builder, building surveyor, architect, engineer or planner that the proposal complies with the acceptable development provisions of the R-Codes, then the Permit Authority must be satisfied that no planning assessment is required”. This again fails to understand the nature of the R-Codes and local planning policies that legally allow variations to be prepared, ie streetscape policies can be prepared for a specific area, so where the AD provisions may require a 4 m setback and a carport in the front setback area 1.5m from the street, the streetscape policy may require a 6m setback and the carport only 1m in front of the house (example only). Therefore any plan lodged contrary to the streetscape policy will need planning approval. Unless a builder or engineer is aware of these types of policies they aren’t going to know this and they’ll only be looking at the R-Codes. This situation hasn’t changed from the Pre Building Act requirements.

Page 7 of the Standardized Processing manual – the picture is not helpful. No one here can understand the diagram …. Lots of circles and boxes and doesn’t make things any clearer.

Standard Processing manual – still does not provide any advice on how to deal with the submission of amended plans, prior to and post the building permit being issued.

Emailed to Building Commission 5 March 2013

Phone call from BC on the 7 March 2013 to discuss the review of the manuals. Awaiting further advice. Manuals seem to have been removed from the Commissions website (18 June 2013)

Sept 2016- No manuals available on the BC website. Guide to Building Approvals Process in WA issued in December 2015 to deal with process clarification.

Manual Advice received from the Building Commission indicates that local governments cannot refuse to accept an application. on page 6 of the Processing Manual it states “The applicant can choose to lodge or not lodge the application, but the local government must not refuse to accept and application.” This is clearly at odds with the earlier advice that only complete applications should make it past the front counter given the restrictive timeframes. It is up to a local government to decide whether or not there is sufficient information to accept an application, local government should not have to accept half-baked applications in full knowledge that information is missing and that delays will occur. The Building Commission have not been able to advise on which piece of legislation says that local government

Emailed to Building Commission on 5 March 2013. Awaiting formal response. Processing Manual seems to have been removed from the Commissions website (18 June 2013) Sept 2016- Still not resolved and handled differently in different LG’s.

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cannot refuse to accept an application. Furthermore their “checklist” can’t be relied upon, the document implies that if an applicant submits the minimum information it is sufficient, but it’s clearly not sufficient, it does not require elevations detail and generally some sort of termite treatment would be required.

Other Local (and State), government is quite distinct from other developers and private owners in that they are a public entity, always under public scrutiny, and will always remain in place. This means that if a public building is found to be in breach of any requirement, the local (or state) government would have to fix any compliance issue. The removal of this ability for Local Government to be able to continue to do deal with these matters has added to the City’s Costs and times to deal with these matters.

Many of Local Government projects are community facilities, such as toilet blocks and shade structures in parks and the like, for which private building surveyors are not that interested, and if they were, would expect to be paid an unrealistic fee for. It seems illogical given that local governments still need to employ a building surveyor, that that building surveyor cannot provide this assessment and service for the local government.

It may be more understandable for the larger projects, and local government may still choose to have such projects certified externally, but it is recommended that at the very least provisions be made for local governments to be able to certify their own work as they do in other states, or at least allow them to certify some works perhaps limited by contract value or type.

Sept 2016- Still not resolved

Other One issue that seems to appear constantly in commercial applications is the provisions for access and facilities for people with disabilities and compliance with the BCA but more particularly the Premises Standard. There appears to be a number of certified building permit applications which allow concessions or exemptions for providing access for people with disabilities and the application of the Premises Standard can also be interpreted quite liberally. It is not clear as to whether a local authority could be held liable if a complaint was registered under the Premises Standard and found to be valid. Would the local authority be held liable if it approved a certified building permit which was later determined to be non-compliant with the Premises Standard?


Other There is some confusion as to whether a Building Permit can have conditions imposed. Advice from the sector indicates that placing conditions on a Building Permit strengthens the compliance/enforcement process when and if required. The opposite should be said of placing no conditions on a Permit, how much more difficult it would be to enforce compliance not taking in to account the added costs incurred by Permit Authorities to pursue such avenues and may be cost prohibitive.Enforcement of compliance of building works will be limited by the lack of content (conditions) on Building Permits and the fact that no certificate or permit clearly states who they are “issued” to, the owner should be included on the permit issued.


Other Business Unit Clearances are the best way to enable us to provide the turnaround times and quality customer service expected of us. We are NOT in the business of keeping fees and refusing applications.


Other 10 days too short for certified when you ask for extra info. Once they provide the info we should have an additional 5 days.


Other The register for all types of permits how do we provide this as it has not been prescribed yet. Building Commission to become the holder/portal of all statistics sent in from LG’s to prevent duplication of effort for every LG.

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New committee has been established to consider and prepare the data collection requirements.

Sept 2016-Confirm with WALGA if any changes

Building Services (Registration) Act 2011

Under the applicable legislation, a Level 1 Building Surveyor is able to certify all buildings, whereas a Level 2 Building Surveyor is restricted to being authorised to certify buildings not exceeding 2000 m2 and not exceeding 3 storeys. While this restriction may have merit for new buildings, the advice received from the Building Commission is that Level 2 Building Surveyors are not able to certify proposed minor additions/building works to a building that either exceeds 2000m2 or exceeds 3 storeys. To use an example, in the case of a standard shopping centre which would exceed 2000m2, a proposal to undertake building works for a shop fit out of a single tenancy cannot be certified by a Level 2 Building Surveyor, as notwithstanding that the building works may typically be less than 100m2, the total floor area of the building exceeds 2000m2. In the case of a proposal to enclose a balcony of a single unit in a 15 storey building, a Level 2 Building Surveyor cannot certify this work.This is inefficient for local governments in so far as these minor building works can only be certified by certain qualified staff. Based upon the experience so far of a number of Local Government Building Surveyors being poached by private certification companies, particularly Level 1 Building Surveyors, there is likely to be an increasing reliance upon Level 2 Building Surveyors to certify plans. A suggestion would be that the restriction on Level 2 Building Surveyors relate to the nature of the proposed building works rather than the size or height of the existing building ie. regardless of the size or height of an existing building, Level 2 Building Surveyors be authorised to certify proposed building works which either do not exceed 3 storeys or 2000m2.

Sept 2016- Confirm with WALGA if any changes

Clarification of terminology

Possible confusion in the terms used and cross referencing the terminology, as follows: -

Description of building work for which building permit is not required1. Construction, erection, assembly or placement of a freestanding Class 10a building that —(a) has a floor area not exceeding 10 m2; and(b) is no more than 2.4 m in height; and(c) is not located in wind region C or D as defined in AS 1170.2.2. Renovation, alteration, improvement, repair or maintenance of a building or incidental structure if the building work —(a) will not adversely affect the structural soundness of the building or incidental structure and does not include —(i) an increase or decrease in the floor area or height of the building or incidental structure; or(ii) underpinning or replacement of footings; or(iii) the removal or alteration of any element of the building or incidental structure that is contributing to the support of any other element of the building or incidental structure;and(b) is done using materials commonly used for the same purpose as the material being replaced; and(c) will not change the use or classification of the building or incidental structure; and(d) will not adversely affect the safety and health of the occupants or other users of the building or incidental structure or of the public; and (e) will not affect the way in which the building or incidentalstructure complies with each building standard that applies to the building or incidental structure; and

Building Regulations 2012 Building work that does not require building permit Schedule 4 cl. 2

Emailed to Building Commission 1 March 2013

Email response provided by the Commission on 11 March 2013.

As discussed, it assists in interpreting the legislation if the Act and Regulations are read in order. For example the definitions would be referred to before the section of the Act and then lastly the applicable Regulations.

In this regard the Renovation, alteration, improvement, repair or maintenance of a building or incidental structure is “building work” for the purposes of obtaining a building permit. The regulations provide an exemption to a building permit in the following circumstances:

As stated in (2) I acknowledge that the Act and regulations can be difficult to read and hope this clarifies things for your member.

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Item Description of building work for which building permit is not required(f) is not work of a kind to which section 76, 77, 78 or 79 relates; and(g) is not subject to an order, agreement or permit under the Heritage Act.3. Construction, erection, assembly or placement of a temporary office, shed or sanitary facility to be used by a builder in connection with building work carried out on the land on which the office, shed or sanitary facility is, or is proposed to be, located.

Part 2 — Building and demolition permitsDivision 1 — Building or demolition permit generally required for building or demolition work9. No building work without a building permitA person must not do building work unless —(a) a building permit is in effect for the building work; or(b) a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or(c) the work is done in accordance with a building order; or (d) the work is done in the course of taking action under section 118(2).

Building Act 2011 Part 1 Preliminary s. 3building work means —(a) the construction, erection, assembly or placement of a building or an incidental structure; or(b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or(c) the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or(d) the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or(e) site work on any land for the purposes of, or required because of, work of a kind mentioned in —(i) paragraph (a), (b), (c) or (d); or(ii) paragraph (a) or (b) of the definition of

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Section 29 - LEGAL ADVICE – McLeod’s Barristers and Solicitors

Immunity for Owners Who Build Contrary To Approved Plans And SpecificationsPrior to the commencement of the Building Act 2011 (Act), owners of land on which buildings were erected pursuant to a building licence were required to ensure the building complied with the plans and specifications approved by the local government and any conditions imposed by the local government in relation to that building licence. That is no longer the case.

Section 29 of the Building Act 2011Pursuant to s.29 of the Act, where a building permit is issued for the construction of a building, the person named as the builder on the permit must ensure the building is completed in accordance with the plans and specifications and that the building otherwise complies with the building permit and any conditions specified therein. There is no obligation on the owner of the building to ensure compliance. This creates a number of difficulties for local governments.

Enforcement difficultiesFirst, local governments are no longer able to take action against the owner of a building which has been constructed contrary to approved plans or otherwise than in accordance with conditions. As a result, local government are no longer able to prosecute the person who stands to benefit from the breach. That is significant from an enforcement perspective given that departures from approved plans and failure to comply with conditions almost always occur at the direction of an owner.Second, a local government may be unable to prosecute the builder named on the permit for a breach of s.29 of the Act if the person named as the builder on the

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permit was not the person who actually carried out the work. That may occur, for example, where the owner chooses to engage a different builder afterthe permit has been issued. In those circumstances, the person named as the builder on the permit will not have committed any offence under s.29 if that person did not carry out the building work and had no knowledge the building work was being carried out, in accordance with the permit or otherwise. In that situation, the local government would not be able to prosecute anyone for the offence because the only person who can commit the offence under s.29 is the person named as the builder on the building permit.Finally, a builder will probably have a complete defence to a charge of failing to comply with a condition imposed under a building permit where the owner of the property refuses to allow the builder back onto the property to carry out the necessary works to comply with the condition. In those circumstances, the condition would most likely be considered unenforceable and invalid because it would be impossible for the builder to comply with the condition without committing an offence of trespass.

Reform of s.29 and alternative enforcement optionsThe enforcement difficulties described above could be resolved if s.29 of the Act was amended to include owners as persons who must ensure that a building to which a building permit applies complies with plans and specifications and any conditions specified in the permit. While the shortcomings of s.29 do not prevent a local government from giving a building order under s.110 of the Act requiring an owner to alter a building so that it complies with the approved plans or in accordance with conditions of a building permit, the failure of s.29 to apply to owners removes a significant deterrent to owners contemplating building contrary to the requirements of a building permit. This should be of significant concern to local governments as it is the owner of a buildingwho has the ultimate control over how the building is constructed.Please contact Peter Gillett on 9424 6229 or [email protected] if you have any queries regarding the issues raised in this Update.

Appendix 2: Comments received from Members in Draft Report Review

Comment regarding the ability of a Local Government to sign-off on work being undertaken by the Local Government. WALGA indicates previously in the report that it will not be able to advocate either way because opinion is divided (final paragraph item 1.4). A suggestion is that a ceiling should be set (e.g. where the value of works is less than say $50,000 or even $20,000), whereby the Building Surveyor can assess plans and issue a CDC, for minor works.

Clarification required on section 69 of the Act – what is “substantial”. The way this part of the Act reads all temporary buildings that are accessible to the public require a building permit, but they have to be substantial. This part of the Act really does require clarification as this could be interpreted to apply to any tent, marque or shade structure for events such as fetes etc.

The Building Commission have adopted the view that any transportable building can be moved onto a lot and is not a building unless it is being used for some purpose such as residing, storing goods etc. This is not in keeping

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with the intent of the Act and it gives an individual an “out" with respect to relocating a transportable, without approval, to a lot. They can basically say “I’m storing it there” and the Building Commission’s view is that it is then not Building Work. This position would technically mean that every transportable building is not building work because it isn’t being used for its intended purpose until it is finished. The difficulties for Local Government are obvious, as whilst a second hand building, for example, may have required a Demolition Permit to be removed from one site, the Building Commission’s current position is that a Permit is not required for its relocation to another site. As indicated I don’t believe this is what the legislation states, nor was it the intent. I do believe the state needs legal advice on the matter and, in due course, the Act will need some clarification on the subject.

The Regulations were also amended in 2014 to include provisions relating to maintenance for Class 2-9 buildings (Section 48A). There are similar regulations in other states and these should include Class 1b residential buildings. The regulations whilst imposing obligations on owners do not impose any obligation to prepare an annual essential safety measures report in accordance with the regulations. This means that very little will actually be getting done by the industry to ensure compliance, and it will only be when an emergency situation arises that anyone will be called to account. In some states where the annual report is required the local government can call on the report at any time to assess compliance. This in turn puts the onus back on the industry to ensure compliance, rather than the local government to determine whether the various safety measures are being properly addressed by an owner with no obviously documented evidence from the owner as to what is being done.

In an outer metro local authority a lot of time is spent helping Owner Builders who, in most cases, are unaware and don’t know how to get the information for a Building Application. This work is carried out as free consultation. It would be helpful for Local Governments to have the ability to charge a consultancy fee in the fee structure to cover such circumstance based on the extra time spent on the application at an hourly rate.

The Building Act needs some provision and mechanism for the assessment and approval of temporary structures which may be occupied by the public. The majority of these structures are tents, marquees or the like or scaffold type grandstand structures which were manufactured many years ago to no particular standard. These temporary structures do not comply with the building standards in various areas such as disabled access, energy efficiency and fire hazard properties. The structures are normally only in position for a number of days so to require a registered builder or a CDC for these structures is not practical. There needs to be some risk management procedure which is recognised which can be used to establish that the temporary structures are safe to occupy and suitable for their intended use without full compliance with current building standards.

Occupancy Permit - Strata should be renamed so that it does not get confused with a normal Occupancy Permit.

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Retrospective Approval requirements for DFES referral: No requirements are in place under Section 51 to 55 of the Act which then leaves the Certifier to their own means and in isolation to state that all relevant Building Standards are satisfied. The Permit Authority may forward information to DFES, but no lawful requirement is in place for this to be undertaken and no mandatory inspection for either the Permit Authority, or DFES is required where unapproved buildings works are undertaken that increases the floor area above 500m2.

If the section prohibiting Local Governments from doing the CDC for Shire/City owned buildings is to remain then the Building Commission needs to set up a panel that can process them for LG. Paying outside Building Surveyors to do them adds to project costs and more often than not the time taken to process these CDC’s is far too long.

Mandatory Inspections: Local Government is in the best position to execute this function as there is no conflict of interest.

Infringements: Non-compliant pool barriers should be included in infringements. This could reduce the number of times Local Government needs to inspect a site.

The Building Standard suite shall be made accessible to the Industry no further monopoly by Sai Global) Architectural drawings containing location of essential fire services for certain class of buildings shall be provided

to DFES for Comment before a Planning Approval Application is lodged To WAPCA or Local Authorities (minimum setbacks, location of Fire Hydrants…Pumps…)

There is a general consensus that the legislation should once more include minimum requirements for building permit applications. i.e. Site classification, site plan, floor plan, elevations etc

Requirement for the r28 inspection & r29 certification why can’t this be part of the BA7? Also in r29(1)(d) what is the qualification needed? Clarification is required.

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