The NSW Building Commissioner, David Chandler OAM, is at the ready with 'boots on the ground', to 'rid the industry of dangerous builders, developers and certifiers' and improve consumer confidence in the buying of residential apartments in NSW with the commencement on 1 September 2020 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020[1] (RAB Act)..

If you are a developer of a ‘residential apartment building’ you need to be aware of your obligations under the RAB Act.  Mr Chandler has made it clear in recent interviews[2] the he is going to ‘fix the problem‘.

What you need to know?

• The RAB Act commences on 1 September 2020
• The NSW Building Commissioner and his team are ‘at the ready’ to implement the powers granted under the RAB Act
• If you are a ‘developer‘[3] as defined under the RAB Act and you are performing ‘building work’[4] on a ‘residential apartment building’[5] that was or is ‘authorised to commence with a construction certificate or complying development certificate issued under the Environmental Planning and Assessment Act 1979, and has not been completed or has been completed within the period of 6 years before the exercise of that function…’[6] (being a function under the RAB Act), the reform will impact you
• At least 6 months (but no earlier than 12 months) before you cause or permit an occupation certificate application to be made, you must notify the Secretary of that proposed application[7]
• If the circumstances change, and the date of an application for an occupation certificate changes, you must notify the Secretary of the ‘new expected date’[8]
• If you fail to give notification of the proposed application for an occupation certificate, the Secretary is satisfied that a ‘serious defect in the building exists’ or you have failed to pay any building bond required under s207 of the Strata Schemes Management Act 2015 – the Secretary ‘may make an order prohibiting the issue of an occupation certificate’[9]

Powers of the Secretary

• Information gathering powers with the power to direct the provision of information or records[10]

• Entry to premises by authorised officers, with or without the authority of a search warrant, for the purposes of examination, inspection, taking samples, photographs, recordings, taking possession of records to be used as evidence, etc[11]

• The issuing of stop work orders and rectification orders [12]

• Action may be taken if orders are not complied with including the issuing of a compliance cost notice which includes a notice to the developer to pay all or any reasonable costs and expenses incurred by the Secretary in connection with the building work rectification order[13]
• Penalty notices may be issued for a penalty notice offence[14]

Proceedings for Offences and Rights of appeal

• a developer who is given a building work rectification order may appeal to the Land and Environment Court of NSW[15]
• proceedings for an offence under the RAB Act may be taken before the Local Court or the Land and Environment Court in its summary jurisdiction[16]

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By Helen Kowal, Partner, Prop­er­ty, Plan­ning & Projects, Stra­ta, Swaab 

I pride myself on listening to the client, thinking outside the square and finding a solution that meets the client’s needs. I conduct proceedings in the NSW Civil and Administrative Tribunal, Supreme Court of New South Wales, Local Court of New South Wales and in the Land and Environment Court of New South Wales. With a legal career spanning over 25 years in general practice, for the past decade I have specialised in building, construction, strata and property. I have worked for many owners corporations, developers and builders in all facets of building and construction law in all jurisdictions. EXPERIENCE: • Acting for owners corporations, owners and builders in building defect claims under the Home Building Act 1989 in NCAT and Supreme Court of NSW • Acting for developers, owners corporations and lot owners at the forefront of strata renewal legislation introduced in November 2016 • Acting for owners corporations and owners in strata disputes arising under the Strata Schemes Management Act 2015 • Negotiation and drafting of building contracts, project management and superintendent agreements • Acting in boundary and development matters including easements, crane and ground anchor licence deeds, boundary, tree and fencing disputes and planning issues.

[1] https://legislation.nsw.gov.au/#/view/act/2020/9

[2] 60 Minutes ‘Buyers Beware’

[3] section 4

[4] section 5

[5] ‘residential apartment building means a class 2 building within the meaning of the Building Code of Australia, and includes any building containing a part that is classified as a class 2 component, but does not include any building or part of a building excluded from this definition by the regulations’

[6] section 6

[7] section 7(1) with the ‘Secretary’ being the Secretary of the Department of Customer Service

[8] section 8

[9] section 9(1) with the Secretary being potentially satisfied a ‘serious defect’ is in existence in the circumstances as described under s9(2)

[10] Part 3, Division 3

[11] Part 3, Division 4

[12] Part 4 and Part 5

[13] see Part 5 Division 4

[14] see Part 6

[15] see Part 5 Division 3

[16] see Part 6