Building surveyors will be appointed by owners only, will be prevented from having conflicts of interest and will have powers to issue stop-work and rectification orders if recommended options for regulatory reform are adopted nation-wide.

Releasing its latest consultation paper, the Australian Building Codes Board has called for feedback on ten recommended options which are expected to form model guidance for states and territories for regulation surrounding the integrity and enforcement powers of private statutory building surveyors.

Under one recommended option, the paper suggests that states and territories enact legislation to require statutory private building surveyors to be engaged by either owners of the property on which construction is taking place or agents who represent owners.

It also proposes that the building surveyor agreements would remain with the owner and would not be able to be novated to other parties such as the builder.

According to the paper, ensuring that statutory building surveyors are appointed by owners will help to avoid conflicts of interest which can occur where surveyors are appointed by builders.

In such situations, surveyors are appointed by those whose work they are required to oversee.

Another recommendation would subject private building surveyors to controls which would help them to avoid conflicts of interest.

In this area, the paper suggests that surveyors be prohibited from carrying out statutory building surveying work in cases where:

  • they have participated in design work for the project in question
  • they have provided advisory building services to the same owner, builder or advisor within a prescribed period, such as the past twelve months; or
  • they have a direct or indirect pecuniary interest in the building work which is being carried out, the land on which building work is being carried out or any contractor who is engaged on the project (including designers).

It also suggests that statutory building surveyors be prohibited from accepting benefits or inducements apart from their payment for surveying work or from knowingly issuing a false or misleading document.

Regarding the prohibition against design work, the paper suggests that this should be modelled on current provisions in New South Wales and Victoria.

These specify that surveyors who perform statutory building surveying work on a project must remain separate from and objective from the design process on that project.

Toward this end, the statutory building surveyor must not have provided advice about how to amend plans or specifications relating to the project and must not have prepared or provided input into supporting documents for performance solutions for the project.

Surveyors may, however, provide preliminary or routine advice, provide advice on deemed-to-satisfy provisions or discuss the concept of performance solutions and which performance requirements are relevant.

According to the paper, the prohibition on surveyors performing design work will help to avoid situations where surveyors are checking their own work.

The prohibition against providing statutory building surveying work where the surveyor has also provided advisory building surveying services, meanwhile, will help prevent conflicts of interest which can occur where surveyors provide both statutory and advisory services to the same client on different projects.

Next, a third recommended option would see private building surveyors given powers to issue rectification orders where non-compliant work is detected during inspections and to issue stop-work orders where non-compliance is detected.

This would occur along the lines of powers given to surveyors in Victoria, under which they may direct builders to fix defective or non-compliant work which is discovered during inspections at the builder’s own cost.

As well as issuing rectification directions, the paper argues that enabling the surveyor to issue stop-work orders provides them with a  further powerful tool to enforce compliance against buildings.

In other recommended options, the paper suggests that jurisdictions enact legislation to ensure that:

  • Statutory building surveyor appointments are documented in writing (with local councils notified) and that the scope of their work covers certain prescribed matters.
  • There are effective controls on the termination of a private building surveyors’ appointment.
  • Building surveyors have clear obligations regarding the checking of compliance certificates which are issued by others before accepting them
  • Building surveyors provide key information to owners, builders and applicants throughout the process.
  • Surveyor decisions are subject to review and approval
  • Surveyors are required to report fraudulent or misleading documents or non—compliant building work to the state or territory government regulator
  • State and territory governments publish strategies to work with and support private building surveyors to assist them to carry out their functions.

The latest paper comes as part of the response to the Shergold Weir report which was prepared for the Building Ministers Forum by Professor Peter Shergold and lawyer Bronwyn Weir and was released in 2018.

Amongst other matters, that report highlighted concerns which have arisen amid the shift to private certification which has occurred over recent decades.

In addition to potential conflicts of interest among private certifiers, this included a lack regulatory oversight of their conduct and function along with an absence of a cohesive and collaborative working relationship between state and local government and private building surveyors.

The paper responds to two recommendations in the report that:

  • each state and territory establish minimum controls to mitigate building surveyor conflicts of interest (Recommendation 9)
  • building surveyors be given greater supervisory and enforcement powers and made to report matters of concern to government authorities (Recommendation 11).

Whilst individual states and territories retain control over building regulations and reform efforts within their jurisdiction, the paper aims to facilitate stakeholder input through public consultation into what is expected to become model guidance surrounding optimal building regulation practice.

Each state and territory will then be able to use this to guide their own reform efforts in a process which is expected to promote greater national consistency in building regulation approaches.

Feedback on the paper is open until Monday April 26.

This will help to inform the final model guidance which will be submitted for ABCB Board and Building Ministers consideration in mid-2021.