Construct NSW Rebuilding consumer confidence in NSW - Clayton Utz David Chandler OAM, NSW Building Commissioner
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Construct NSW Rebuilding consumer confidence in NSW Clayton Utz David Chandler OAM, NSW Building Commissioner 4 September 2020
Introducing the OBC Team
David Chandler,
Commissioner
Legal Director OBC Director
Program Manager Program Manager Program Manager Program Manager Program Manager
Executive
Project Officer Project Officer Project Officer
Assistant
2
Transitional Working Arrangements: OBC & BRD
Department of Customer Service Building Commissioner Oversight Other Departments
Complaints,
Compliance & Centre for Customer,
Investigations & Engagements & Dept of Justice
Dispute WHS/Building Delivery & Fire & Rescue
Enforcement Capability Dept of Planning (Crime
Resolution Confidence Transformation NSW
(Val Griswold) (Andrew Commission)
(Peter Dunphy) (William Murphy)
Gavrielatos)
Inspectorate -
Building,
SafeWork, Investigations and Data Analytics Local
Certifiers, Intel Unit Centre Government
Plumbing, Gas &
Electrical
Strong oversight Revenue NSW
Ministers Delivery
Unit
Medium oversight
The Construct NSW Purpose
Establish appropriate regulatory settings to ensure buildings are safe and secure
throughout their entire useful life
Create an industry-wide culture that is
. customer-focussed, trustworthy and values
quality
Improve the quality and amount of data that is captured and shared throughout the
supply chain
Develop a regulator that is empowered, organised and resourced to be impactive and
efficient
4
The Construct NSW Strategy
• Shifting the focus from looking at the performance of individual players to the quality of the entire
construction team
• The key players on the team are Developers, Builders, Designers, Certifiers, Manufacturers,
Suppliers and Installers. Each player must take responsibility for ensuring quality
• Ultimate responsibility rests with the Developer as they are the principal, and they are selling to
the customer
• All players on the team must be pointing towards the same goal, trustworthy buildings
• The homeowner must be at the centre as they are putting their trust in the team to deliver a safe
and reliable product
• The regulator will be on the building sites (fields) of the most risky teams offering the choice of
lifting performance or leaving the game
• Consumers, finance, insurance, contracts, etc will reinforce the value of trustworthy teams that
produce trustworthy buildings
5
Legislative Reforms - Landscape
6Quick guide – Practitioners and their roles
Part 2 of the D&BP Act – Regulated designs and building work D&BPAct
Part 2
--- Building Work ---
Work involved in, or involved in coordinating or
supervising work involved in, construction of a [Class 2] building
(or alterations, additions, repairs renovations of a [Class 2] building)
Regulated Designs: Building element
Those prepared for a building Fire safety, waterproofing, structural, building
element or performance solution enclosure, mechanical, plumbing, electrical
Design Practitioner Principal Design Building Practitioner Applicant for
Practitioner • Is the head contractor Occupation
• Prepares Regulated Designs
• Optional on each • Must be registered and Certificate
• Must be registered and insured project insured • Gives notices of
• Gives a Design Compliance • Must be intention to apply
Declaration for all designs • Must not commence work
registered and (including variation) until for OC to builder
(including variations) insured design compliance • Passes Building
Note: There are special • Gives a Principal Compliance
provisions for Engineers and declarations received
Compliance • Gives a Building Declaration to
Specialist Practitioners Declaration certifier
Compliance Declaration
and other prescribed
documents
• Gives [as-builts] to
Secretary
Please note this diagram is intended for guidance only. You should refer to the D&BP Act for details.
7Optional slide] - Registered practitioners and what they do
D&BPAct
Design Principal Design Building
Practitioners Practitioners Practitioners
Prepare Coordinate Design A person who agrees under
Regulated Designs Compliance Declarations contract or other arrangement
to do Building Work
Design Given when Regulated
Provides that the design complies with the Building Code
Compliance Design is provided and
and other requirements
Declaration whenever varied
Provides:
Principal • there is a Design Compliance Declaration provided for each
Timing is TBC in
Compliance Regulated Design
Regulations
Declaration • each Design Compliance Declaration is provided by a
Registered Design Practitioner
Building Provides, among other things:
• Building Work is compliant with Building Code Given before OC is applied
Compliance • where not compliant, the steps necessary to ensure compliance for
Declaration • whether the relevant compliance declarations have been obtained
8D&BP Act
Declaration and notice regime (Commencing 1 July 2021) & RAB
Act
Design Declare Build Declare (consolidated) Variations
A Registered Design RDPs provide Design Registered Building If there is a Registered Principal Design Any variations must
Practitioner (RDP) Compliance Practitioner (RBP) can’t Practitioner (RPDP) on the project, then be recorded and/or
prepares Regulated Declarations (DCD) for carry out building work RPDP will provide to the Principal a re-declared.
Designs for the project Regulated Designs without DCDs (ie. can’t Principal Compliance Declaration in
start work without a respect of all DCDs received.
declared design)
design & construction phase
As builts Certify* After applying Apply for OC Declare Pre OC Notices
90 days after OC Certifier can’t After the OC is applied Before or when the RBP provides Before the OC is applied for,
is issued, RBP issue OC for, the applicant must OC is applied for, the the Building the applicant must notify
must lodge without notify the RBP that the applicant must Compliance each RBP of the intention to
regulated designs compliance application has been provide the principal Declaration apply for the OC. Note also
and other docs declarations submitted certifier with the and other docs RAB Act notice requirement
with Secretary BCD (BCD)
completion and post-completion phase
* Also note impact of RAB Act: OC can be withheld if notice not given, serious defects, or no building bond 9Declaration and registration regime – key takeaways D&BP Act
Takeaways Timing
Do you need to be registered? Commences July 2021
Do you meet the qualification requirements? For contracts entered into between June
Check insurance requirements (when 2020 -1 July 2021, regime will apply if the
Regulations released) application for CDC or CC was made after
date prescribed in Regulations
Modify procurement process – time & cost
Modify contract admin processes – deal with
variations
Negotiate contractual protections (upstream Contractual considerations
and downstream) Head Contracts [mention AS4000 model clauses]
[Note other parts of the Acts not mentioned Subcontracts
here – enforcement/duty of care]
Project Delivery Agreements
Consultancy Agreements
Superintendent appointments
10New Rules in NSW for class 2 buildings
Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 ('the RAB')
• Enables the Building Commissioner to delay an occupation certificate from being issued in cases where :
• serious defects are present (s 9 RAB Act)
• if the developer has not given 6 months notice of a proposed application for an occupation certificate (s 9 RAB Act)
• If the as-built drawings and the building bond* not provided if required under the Strata Scheme Management Act 2015 (Part 11)
• Enables documents to be called in, work to be stopped and work to be opened up
• Applies to class 2 building work completed in the last 6 to 10 years
• OC audit inspections piloted from July and powers formally commence on 1 September 2020
Design and Building Practitioners Act 2020 ('the DBP')
• Establishes a registration scheme for designers that requires that designs for certain types of building work be certified for compliance with
building regulations by registered design practitioners
• Establishes a requirement for builders to prepare and declare as-built drawings to reflect the declared designs
• Requires designers and builders to lodge their plans on the NSW e-planning portal
• Registers engineers and practitioners doing other forms of specialist work
• Applies to class 2 building work that has applied for a CC or CDC after 1 July 2021
* i.e. for contracts signed after 1/1/2018) or if required under the Strata Scheme Management Act 2015
11Changing the regulators approach to be one that is
proactive and focusses on effort before completion
Current Approach Future Approach
High effort in the back end from the High effort in the front end resulting
Regulator but this is resulting in low impact in high impact
(Reactive) (Proactive)
High High
Current effort Future effort
Impact
Impact
Low Low
4 Typical completion 6 years 2021 2023 2025
yearsTransforming the industry and the capabilities of
the regulator
Immediate Priorities
Building
Commissioner’s 2022: Review Future
Powers to achieve Operating Model
[DBP Act 2020 s 109]
impact before
designing the future
organisation
Current State
– Analogue
Self-Facing
Industry NSW Building Future State – Digital Facing
Confidence Industry
01/01/2020 01/01/2023 01/01/2025
Largest micro-economic reform of the NSW construction industry ever
13Ratings tools will play a role in the site
selection process
Data source
10%
NSW Fair Trading
Inspection systems
Safe Work NSW
Inspection systems
Cordell Single View of A+ A B C D E
a Building Multi Party
Rating Tool Low Risk High Risk
Rating Rating
(internal) External procurement
(external)
Data source Regulated risk ratings based on Developer, Builder
overlap with and Certifier (multi-party) aggregate of individual risk
Cordell ratings
BRD Intelligence
Data source
NSW Fair Trading Incident BRD Intelligence Data source overlap
system (CAS) with publicly
Safe Work NSW Incident available data
(internal)
system
Cordell, ASIC, ACNC, ATOThe OC Audit process is the first wave to make a
difference for apartment consumers in NSW
OC Audits Declared Designs Declared As-builts
(From 1/9/2020) ( From 1/7/2021) (From 1/7/2021)
Resources
Existing Resources
1/9/20 1/1/21 1/7/21 1/1/22 1/7/22 1/1/23 2025 Date6 Pillars of Construct NSW
16A walk through of the Occupation Certificate Audit process
How do I notify the Secretary of the date I
intend to seek an OC?
What do I need to do if the
Is your planning application in the NSW Planning
date changes?
Portal?
Your Notice should be lodged in the NSW Planning Portal
ePlanning
or
If your planning application is not in the NSW Planning If circumstances change and the
Portal? expected completion date has moved,
Your Notice should be lodged on the Fair Trading website. you must amend your expected
completion date within 7 days.
Note: Councils and Principal Certifying Authorities (PCAs) in the Sydney Metropolitan, Illawarra, Central Coast and Newcastle areas commenced using the ePlanning Digital Services
from 1 July 2020, and must process all planning applications this way from 31 December 2020 18How is a site chosen for an OC Audit?
Sites are selected for audit Other sites may be selected
using risk ratings tools
or
All notifications are passed through various ratings tools. A small percentage of random sites will be selected for
They have been designed to select a proportion of the audit.
projects that seek to apply for an OC within the next 6 Further sites will be selected using indicators such as
months. reported issues and referrals.
The OC Audit Process is not an approvals process. It does not infer that no further issues remain. It
seeks to test the compliance processes and assurances or Builders and DevelopersHow do I know if I have been selected for an
OC Audit?
Developer receives a letter The letter notifies the developer that You will be invited to a briefing
its site has been selected for audit session to learn more about the OC
Audit process
The letter also contains:
• A list of documents that must be supplied to the
The letter is sent to the developers registered Building Commissioner
address. The developer, builder and certifier will be invited to
• Instructions on how to upload these documents
this session. These sessions will be normally
to the ePlanning portal
A copy of the letter will be also sent to the builder conducted by the Building Commissioner with Audit
and the certifier • An invitation to attend a briefing session Team members present.What does the OC Audit process look like?
Developer uploads documents to the Audit Team Spends 1-3 Days Onsite for Initial Audit Report Issued
nominated portals the Initial Audit (Further reports will be issued for
Follow-up audits are intended to occur over subsequent visits)
the audit period depending on audit findings
A list of required documents will be provided to the The audit team will spend time on each site. They As audits are completed, the developer will be sent
developer. will initially focus on key areas of a building an audit report. Reports will provide
(structure & foundations, waterproofing systems, recommendations, issues identified, non-
The Audit Team will conduct a desktop review of fire safety systems, external enclosures and compliances found, and issues found will be rated
acoustics). using a Red / Amber / Green dashboard system.
these documents before they visit the site.
Other elements may be added from time to time. Audit teams will be available to discus audit reports.
Further documents may be requiredHow and when does the OC Audit process
end?
Audit is completed following A Stop Work Order, Prohibition Order,
Audit is completed following the
satisfactory the rectification of any or Building Work Rectification Order
issue of a favourable final report
defects and/or non-compliances is Complied with
or or
If there is no rectification action required, the audit If defects or non-compliances are identified, the site
team will complete their audit. may not be able to continue their OC application
until these issues are rectified. For a variety of reasons, an order may be issued.
The OC application process will continue – with the Once an order has been issued, the OC process
next requirement being the lodgement of the strata The developer will be required to demonstrate to will be unable to complete until the order has been
the audit team that issues have been satisfactorily complied with.
bond and as-built drawings.
rectified.Questions?
This is a unique
opportunity for all
industry players to
think about how they
can participate in
building confidence in
the NSW construction
industry.
buildingcommissioner@customerservice.nsw.gov.au
Direct contact: Emily Leung
emily.leung@customerservice.nsw.gov.au 23You can also read
