The Building Act

The Building Act 2011 (WA) (Building Act) and its regulations commence operation on 2 April 2012.  The Building Act is now the primary piece of legislation which governs building works in Western Australia.  The Building Act covers the following:

• permits for building and demolition work;
  
• standards for the construction and demolition of buildings and incidental structures;
  
• the use and maintenance of, and requirements in relation to, existing buildings and incidental structures; and
  
• works which affect or may affect neighbouring land.

One of the most significant changes, particularly for commercial builders, is the implementation of private certification for building permits.  This is designed to streamline the application process, save time and costs and be a more efficient process overall.

There are also significant penalties for breaches of this new Act, generally ranging from fines of $25,000 for a first offence up to $100,000 for a third offence and imprisonment.  Corporations may face penalties up to five times the prescribed fines.

The following is an outline of the key provisions in the Act which commence Monday 2 April 2012.

Part 2 – Building and demolition permits

Building or demolition work will, as a general rule, require a permit under the Building Act.  This is substantially the same as the previous requirement to obtain a building licence.  Serious penalties apply for failure to obtain a permit where one is required.

The main difference now is that builders may make a ‘certified application’ or an ‘uncertified application’.  An uncertified application is similar to the previous application process and is primarily only availably to residential building works (class 1a and 10).  All other building work must follow the certified application process.

A certified application will require builders to engage a licensed surveyor to review relevant documents (such as plans, drawings and planning approvals) and provide a certificate of design compliance.  This certificate (in a prescribed form) is a statement by the surveyor that the building, if constructed in the manner set out in the plans, will comply with building standards (Building Code of Australia (BCA)), and complies with planning, health and Water Corporation requirements.

It is at this stage that a developer/owner will want to ensure they have obtained the relevant planning and development approvals and liaised with the Health Department and Water Corporation with their proposed plans.  Their private surveyor may provide guidance if necessary.

If a builder wishes to deviate from the ‘deemed to comply’ provisions of the BCA, then they will need to produce a technical certificate from an architect or engineer demonstrating that the deviation or alternative solution is appropriate.

Once the certificate of design compliance is obtained, the builder may lodge its certified application to the permit authority (generally, the local council).  The permit authority then needs only to make sure all the required documents have been lodged and then essentially rubber stamps the application.  The permit authority must either approve or reject the certified application within ten business days (previously there was no strict time requirement).  There is also a reduced fee for certified applications, although the developer/owner is also responsible for the costs of the private licensed surveyor.

Part 3 – Building standards

Under the Building Act, all building work must now comply with the applicable building standards.  The prescribed building standards are the Building Code of Australia.  The Building Commissioner may, from time to time, also prescribe other standards which may be relevant to the Western Australian building industry.

Builders must also ensure that the completed building works are built in accordance with the approved building permit, plans and specifications and design certificate.

Serious penalties apply for breach of these requirements.

Part 4 and 5 – Occupancy permits and building approval certificates

An owner or occupier of a completed building must not occupy or use, or permit the occupation or use of, the building unless an occupancy permit is in effect for the building.  An occupancy permit is not required for residential building works (class 1 and 10).

To obtain an occupancy permit, you must first obtain a certificate of construction compliance.  This certificate (provided by a licensed surveyor) confirms that the ‘as constructed’ building has been completed in accordance with the approved building permit, plans and specifications and design certificate.

Serious penalties apply for breach of these requirements.

Part 6 – Work affecting other land

There are now onerous obligations on a person responsible for work (where a permit is in place, then the person named on the permit; otherwise the land owner).  Most significantly, they must ensure that:

• the building works do not encroach beyond the boundaries of the works land without the consent from the person affected;
  
• the works do not adversely affect land beyond the boundary of the works land (this includes affecting natural soil levels, damaging property or reducing structural adequacy of other buildings); and
  
• they do not access any neighbouring land without the consent of the affected land’s owner (or a court order).

Serious penalties apply for a breach of these provisions.

Part 16 – Transitional provisions

Building works, for which building licences have been approved prior to 2 April 2012 will be deemed to be a building permit under the new Act and regime.

For these building works in progress, developers/owners and builders will need to be mindful of the statutory obligations to comply with the building standards (BCA) and the plans and specifications.  This will potentially affect their ability to obtain an occupancy permit upon completion of the works.

Building licence applications that have been lodged, but not yet approved as at 2 April 2012, will be deemed to be an uncertified application under the new Act and regime and accessed accordingly.

Developers/owners and builders will need to be conscious of the new requirements (such as consents for accessing neighbouring land and having deviations from the BCA certified) for these transitional applications.

Comment

The Building Act comprises a new regime for the regulation of building and demolition works in Western Australia.

There are significant statutory obligations on builders and owners when it comes to building standards and works affecting neighbouring land.  The penalties for breaching these obligations are serious and we anticipate heavier fines will be imposed than before.

The new permit process allows for private certification which is designed to facilitate a more efficient approval process and reflect similar private certification processes in the Eastern States.  It carries with it more onerous obligations (such as consents from neighbours and design certificates) to help ensure the finished product is the approved product and of an acceptable standard.

Obtaining consents to access neighbouring land and other consents needed for works affecting other lands may prove to be a time consuming exercise.  Owner includes every registered proprietor and tenants and the only other option (where consent is not provided) is to apply to Court for an order.

Otherwise, for developers and commercial builders, it's fair to say the private certification process is likely to produce a quicker approval process, provided you have obtained relevant planning/development approvals and your plans and specifications have been prepared with sufficient detail to assess if they comply with the building standards (BCA).

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