Is the NSW Building Professionals Act Failing? 2

Thursday, July 2nd, 2015
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As New South Wales reviews its building certification and regulation regime, concern within the state’s building industry is growing that an overly lax regime is leading to defective buildings and allowing people to ‘get away with murder.’

Throughout the state, enormous frustration has been growing over the number of building defects occurring in new housing and apartments. One survey of 1,550 strata title owners, managers and peak bodies undertaken by the University of Sydney in 2012 found that 85 per cent of newly built apartments were defective, and that seven out of 10 owners experienced defects such as water leaks and internal cracks.

Amid a review of the Building Professionals Act which is looking at ways in which the certification and broader building regulation regimes can be improved, industry professionals talk of lax controls and an environment which is a ‘different paradigm’ in terms of building control compared with other states.

An Engineers Australia Multi-disciplinary Committee report released on June 24 claimed the state had Australia’s ‘worst building certification system’ and warned that a major fire in a high rise Sydney apartment was inevitable because the building control system was so poor.

According to that report, fire engineers talk of common problems, including fire separation between apartments, fire gaps not being installed correctly, fire dampers that prevent the spread of smoke often not being installed correctly and electrical installations not being done correctly.

Charles Rickard, owner of RH Consulting Engineers and the head of the Engineers Australia committee, said a lack of clear rules as to what can and cannot be specified and said in the building certificate is allowing for certificates which are issued to contain wording which is unclear and is thus allowing ‘rogues’ to ‘get away with murder.’

“Certification very simply is not working because people are able to get away with being so ill defined in the wording of the certificate,” Rickard said. “So everybody is responsible and no-one’s responsible because the process is not an appropriate process to ensure that when people say, for instance that the fire columns are correct, did anyone actually go and check that the fire columns were put in the building?”

Professor Kim Lovegrove FAIB, founder and Partner at Melbourne-based construction law outfit Lovegrove, Smith & Cotton, says the New South Wales regime represents an ‘altogether different paradigm’ compared with other states. He said surveyors are the only building related profession within the state who are required to be registered with the Building Practitioners Board and to carry professional indemnity insurance.

He says this has led to an absurd situation of surveyors being disproportionately represented as defendants in legal proceedings, as well as a blowout in insurance premiums and long-term questions as to whether or not insurance for surveyors will be viable and available.

“You have got a massive, massive, black hole there that can only partly be covered by accredited certifiers,” Lovegrove said, referring to the issue of liability when building projects go wrong and the lack of compulsory insurance being held to be held by other parties.

“Accredited certifiers are complaining to me left, right and centre that they are just being brought into legal proceedings and they are complaining that premium haemorrhaging is really starting to impact upon the viability and the continued longevity of the profession.

“Those are the signals I am picking up loud and clear. There are building surveyors who are getting very agitated about the amount of money they are paying on their premiums and indeed, whether or not insurance would be available in the long run.”

Lovegrove says mandatory registration with the BPB and insurance should extend beyond surveyors.

“Get your engineers registered, get your commercial builders registered,” he said. “Create a registration class of draftspersons and building designers so they have to be registered too. Get the full suite registered.”

Rickard, on the other hand, wants building governance bodies for each major discipline involved within the construction process (architecture, mechanical engineering, civil/structural/geotechnical engineering, etc.) made up of similar sorts of professionals who currently make up committees of bodies such as Engineers Australia or the Australian Institute of Architects.

Such committees, he said, would have the power to hire and fire certifiers, and would be responsible for setting clear rules as to what is needed within the certification, including the actual words which are used.

Rickard says the entire regulation process within New South Wales has never adjusted to fundamental shifts which took place following the introduction of design and construct type contracts in the 1980s, which saw much of the power shift away from independent designers.

“No one ever sat down and put in place a replacement from the original system which was based around the architect and the independence of the designers,” he said.

“So we have gone from independent designers to a design and construct system, and no one has really sat down and looked at the implications of that and put forward a system to counteract the fact that payment is made by developers and builders but also counteract the fact that builders are now well and truly calling the tune and we have lost the supremacy of the architect to control and make sure things are done as they should.”

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  1. Sam

    Whether you call him/her a certifier, an architect or whatever, the "policeman" left the site with self-certification and the ready acceptance by the whole industry of bits of paper signed by God knows who with God knows what qualifications, accreditations or KNOWLEDGE and nothing has been the same since. Bring back the "policeman"!

  2. charles rickard

    please ask Andrew to ring me…we need to be clear on who he is talking about .
    All discipline accredited certifiers are insured because they are practicing engineers/architects .
    The confusion is between Principal Certifiers[who call themselves accredited certifiers] and Accredited Certifiers for different disciplines.