On the 30th April 2020 the release of the final report of the Public Accountability Committee, titled ‘Regulation of building standards, building quality, and building disputes’ was tabled with the Clerk of the Parliaments of NSW.
The report and its recommendations are now with the government for consideration. The government is required to respond to the recommendations within six months.
I am proud to have been involved as one of the contributors to this review and that my opinions were included with the final report to the government.
This report highlights the systemic issues plaguing the building and construction industry and the lack of regulation and oversight by the NSW Government. Alongside the deeply concerning issues regarding flammable cladding, private certification, and the role of strata committees in dealing with defective buildings.
The issue of flammable cladding is a major public safety issue. It is widespread and requires urgent attention.
The committee chair, Mr. David Shoebridge noted within his forward to the final report “The response from the NSW Government in addressing the issue of flammable cladding so far is wholly inadequate”.
Lack of direction and leadership surrounding the issues surrounding flammable cladding has had a massive impact on the cost of insuring buildings containing flammable cladding. It is imperative that the NSW Government acts to address the insurance failure, not only in relation to cladding but insurance across the entire building and construction industry.
This report also focuses on the concerns surrounding private certification.
“It is clear that the experiment of the last 20 years with private certification has not worked”, noted Mr. Shoebridge.
Whilst it is clear that the status quo is broken, and that public control of certification needs to be strengthened, however not by reverting back to local councils.
Instead the finding with the final report recommends a further inquiry be planned to review the NSW Government’s reforms into the building and construction industry.
The final issue the committee considered is the role of strata committees in dealing with defective buildings. Given defects are a common issue, particularly in apartment buildings, it is essential that strata committees are given the right tools and support to deal with these complex issues.
The recommendations of the commission were to call for a Strata Commissioner to be appointed to sit within the Building Commission to provide several services to strata committees.
“These problems were created by decades of deregulation by the State Government, which has stepped away from its responsibilities to ensure homes are built to an acceptable standard and are safe for occupation” Mr. Shoebridge noted.
Mr. David Shoebridge MLC, Committee Chair.
Recommendations of the committee that have been outlined within the final report tabled on the 30th April 2020 include:
That the NSW Government introduce and debate the powers bill granting the NSW Building Commissioner new powers to ensure building standards as a matter of urgency when the NSW Parliament is reconvened in May 2020, with a prompt circulation of the proposed bill to members of Parliament.
That the NSW Government resume debate on the Design and Building Practitioners Bill 2019 as a matter of urgency when the NSW Parliament is reconvened in May 2020.
That the NSW Government empowers the NSW Building Commissioner to oversee all licensing inspections, within the newly created Building Commission. Further, that the Building Commission hires additional, specialised inspectors to create a more robust inspection regime for building, electrical, and plumbing work in New South Wales.
That the NSW Government release and act immediately on the advice of the NSW Building Commissioner in relation to flammable cladding, or alternatively explain why it prefers an alternative approach.
That the NSW Government establish a separate division in the Building Commission, modeled on Cladding Safety Victoria, to lead the response to flammable cladding on New South Wales buildings. The cladding division should sit within the Building Commission, as recommended in the first report of this inquiry, and be responsible to the NSW Building Commissioner.
That the NSW Government require property owners, landlords, and real estate agents to disclose whether a building contains flammable cladding, and the progress of any rectification measures, to prospective buyers and tenants within a reasonable timeframe prior to signing contracts and when a property is open for inspection.
That the NSW Government ensures that all buildings designed for public use such as cinemas, shopping centers, universities, hotels, entertainment centers, childcare centers, and hospitals that are assessed as high-risk for flammable cladding are remediated as a priority. Additionally, members of the public entering those buildings should be made aware that a building is high-risk. This might take the form of the compulsory display of a notice to this effect and compulsory notification at the time of booking where possible.
That the NSW Government publishes the specific criteria used to classify buildings as no, low, or high-risk in regard to the flammable cladding.
That the NSW Government provides significant further resources to Fire and Rescue NSW to enable the Fire Safety Branch to respond to the issue of flammable cladding in a timely and comprehensive manner.
That the NSW Government urgently establish an expert panel or panels, similar to the panel established in Victoria, to assess and provide advice free of charge on cladding rectification plans, including what materials homeowners can use to replace flammable cladding.
That the NSW Government adopts a practice where genuine purchasers and potential tenants are able to access information from the cladding register or similar database to clarify the cladding status of their potential future home.
That the NSW Government provides a substantial funding package, proportionate to the Victorian Government’s $600 million packages, to fund the rectification of buildings containing aluminum composite panels and building products that may be banned in the future. The package should be available to homeowners who have already commenced remediation work.
That the NSW Government takes a proactive role in identifying other potentially flammable cladding products on the market and move to ban them or otherwise prevent their unsafe use in the construction industry.
That the NSW Government, through the Building Ministers’ Forum, seeks to amend the National Construction Code to require that building materials do not create a risk of debris falling from a building during fire conditions, including for composite products.
That the NSW Government, through the Building Ministers’ Forum, seeks to ensure mandatory accreditation by the National Association of Testing Authorities, Australia (NATA) for all entities that test building materials.
That the NSW Government undertake a review of the mandatory critical stage inspection regime under the Environmental Planning and Assessment Act 1979 with a view to expanding the number and scope of required inspections undertaken by accredited certifiers.
That the NSW Government consider amending the Environmental Planning and Assessment Act 1979 to require a mandatory inspection two years after a development consent has been issued to ensure that construction is consistent with the approved development application plan and the construction certificate.
That the NSW Government implements the recommendations, where practical, put forward in this report by Mr. Michael Lambert to improve the certification system as soon as possible and no later than within two years. Specifically, the recommendations made by Mr. Lambert to:
• provide practice guides for building certifiers and each other class of certifier of building work, setting out the role and responsibilities to which certifiers are held to account
• undertake a regular audit program of the work of building certifiers
• provide support for certifiers in the form of a help desk and a panel of experts on which they can draw for advice and a Reference Panel for mandatory reviews of select designated complex and higher risk developments
• put in place controls to mitigate conflicts of interest and increase the independence and transparency of engagement of building certifiers and building practitioners
• provide building certifiers with enhanced supervisory powers and mandatory reporting obligations with respect to building non-compliance
• establish and maintain a program of Continuing Professional Development for all building certifiers
• require building certifiers to be members of an approved professional association which is subject to a full professionalisation process oversight by the Professional Standards Authority
• establish a requirement for councils and building certifiers to work together, including a requirement for mandatory reporting to councils by building certifiers of non-compliance and for councils to act on such notices and keep the building certifier informed of developments.
That the Legislative Council’s Public Accountability Committee as part of its foreshadowed inquiry to review the NSW Governments’ reforms into the building and construction industry consider as one of its terms of reference to the strengthening of public control of certification, such as returning certification to local councils.
That the NSW Government review the NSW Civil and Administrative Tribunal dispute resolution process for disputes relating to strata buildings to ensure the tribunal has sufficient enforcement powers and to simplify and streamline the dispute resolution process, and to ensure those tribunal members have the relevant expertise.
Written by Marty Sadlier
Founding Director and Owner at MCG Quantity Surveyors