2020 was an unusual year in so many ways. 

Steadily, as the world was dealing with Covid-19, the NSW Government moved forward with its reform package for the NSW construction industry.

Back in 2019, frustrated in my profession as to how many building defects appear in multi-storey residential buildings shortly after construction leading to multi-millions of dollars being spent on remedial repairs, I spent the year interviewing expert building consultants as to their views on the state of play in construction and hearing their opinions as to how things could be done better.

Upon hearing of the proposed ‘reform package’ issued by the Government in early 2019, I was sceptical.  How long would the reform take?  Would it actually even happen?

The Government had proposed reform many times before, conducting enquiries and making promises with little or no effect on how buildings were being built.  To all appearances, the media onslaught following Opal and Mascot Towers appears to have been enough for the Government to realise that it had to pay attention and take steps to re-instate some consumer confidence in the residential market.

David Chandler, the NSW Building Commissioner, appears to be going from strength to strength in his journey to ‘rid the industry’ of risky builders and developers.  No-one can say Mr Chandler is not passionate and intent on his quest…issuing stop work orders on sites where there is a blatant disregard for safety and compliant construction work, issuing rectification orders for hundreds of bathrooms after proceeding to dismantle already constructed bathrooms and stepping up audits of many multi-unit residential building projects throughout the state.

After finally being given the power to actually take enforcement action and bring penalty proceedings[1] against those ‘risky’ builders and developers, David Chandler appears intent on trying his best with the resources he has been given, to achieve “building better”.

Mr Chandler has recently stated ‘ignorance is not a defence, nor is self-election to ignore Australian Standards’[2].

You have previously heard my views on the inherent problems with the Australian Standards and the fact that many building issues arise, simply because builders just don’t know how to ‘build’ properly.  I still believe that this is going to be one of the biggest hurdles to overcome.  Yes, builders, developers, engineers and designers may be taken to task over not designing, or building in compliance with the Australian Standards, but if the Australian Standards are lacking, will the end result change?

This is our goal isn’t it, to build better buildings?

There is undoubtedly a lot of learning to be done by July 2021 when the Design and Building Practitioners Act 2020 kicks into gear.[3]  Practitioners must declare that their buildings comply with the Building Code of Australia and builders must build in accordance with the design.  Developers are also being asked to consider the major issues that may affect the completion of their projects.[4]

The further proposed audits to be conducted by David Chandler and his team as a part of this process, are set ‘to identify the root cause of any serious defects in buildings where the OC auditors have discovered them’.[5]  This promisingly may lead to the major overhaul of the Australian Standards that is, in my view, paramount.

There is still a push for the affordable distribution of all Australian Standards to all building practitioners, suggested perhaps to be an initiative as a part of the licencing requirements under the DBP Act – it may be easier to comply with something if you are actually able to review a copy of what it is you are to comply with – just a thought!

Above all,  it is comforting that Mr Chandler is listening, seeking input and help from all facets of the industry to put his powers to the best possible use!

 By Helen Kowal, Partner, Construction and Strata, Swaab

[1] Residential Apartment Buildings (Compliance and Enforcement) Powers Act 2020 (RAB Act)

[2] LinkedIn article published by David Chandler on 31 January 2021

[3] Whilst Part 4 of the Design and Building Practitioners Act 2020 commenced on 11 June 2020 (DBP Act), the majority of provisions introducing design compliance, licencing and registration are yet to come into effect.

[4] Tied in with the RAB Act and discussed in the Construct NSW e:newsletter published on 9 January 2021 by the Office of the NSW Building Commissioner including safe work practices, pre-completion notice requirements, appropriate contracts being in place, proper valuation of progress claims, prompt uploading of required OC documentation and ensure availability and accessibility to design drawings and specifications which are to be consistent with the project’s development consent.

[5] refer footnote 2