12 June 2015
To whom it may concern;
I thank the Building Professionals Board for taking submissions to the Independent Review of the Building Professional Act 2005.
After being present at the BPB presentation on the 5 June 2015 for both the Certifiers and Stakeholders session and the Council Stakeholders session I have come away disinherited with the changes you are proposing to the profession that I am employed in.
I am an A1 Council Certifier, who started in the industry as an administration officer, completed my traineeship; I have worked in two states and multiple local government areas, both rural and city.
I was working as an administration officer in June 1998 when the Environmental Planning and Assessment Act and Regulation was amended and become effective and the confusion of legislation and roles in subsequent years that followed.
My experience is varied, and I have continued to choose to work in local government for reasons of professional satisfaction. The choice is certainly not for the financial remuneration or the workload involved.
Whilst I as I mentioned my career has been within local government and I have not worked in the private certifying industry, I have formed strong relationships with many good private certifiers, further I am frequently manage outcomes for problems arising from privately certified developments as a all Council staff who work in the Development Services area .
I am concerned for my future as Council Accredited Certifier, as if I was to walk out of Council and into the private sector I would need to start my career as a A4 certifier and take over 4 years to achieve a A1 Certification, not to mention my qualifications that I have achieved along the way in may not be considered suitable. I welcome a review of the current arrangements, and feel that there are significant improvements that can be made and positive changes are welcome.
I left the Council Stakeholder session disheartened as unlike the first session there appeared to be note taking by the Building Professional Board representatives’ from the comments made by those participating. During the Council Stakeholder session there was a significant change in attitude towards the Council representatives participating, there was no note taking, shutting down of discussion points and interaction was discouraged.
I would like to discuss further the issues identified in the Council Stakeholders handout provided.
Issue 1
Less than ideal working relationship between private certifiers and council including a lack of defined protocol for interaction and limited enforcement powers of private certifies; confusion for the community and cost of compliance function for Councils
There needs to be a holistic approach to the working relationship between both private certifiers and council.
The us and them mentality needs to be removed from conversations from the top down, including the Department of Planning, BPB, Local Government, Private Certifiers, Educational providers and developers before with we can see an improvement in the working relationship.
The lack of protocol comes from the lack or conflicted view of the role of PCA in who has rights, the person who has engaged them or the public interest as defined in the Code of Conduct.
Development monitoring is the current role of the any certifier; it is difficult to understand why there is any confusion. The Code of Conduct for Certifiers specifies their key role is to act in the public interest. The Certifier (either council or private) should not only check for BCA compliance, but must ensure development standards and controls are upheld in the interest of the community.
Cost recovery is a significant barrier for Council’s. .Ongoing revenue losses have occurred to Councils with the introduction of private certification and the removal of other income generating sources such as POPEs. This has affected Council staffing numbers and priorities. Greater penalties as a disincentive are good, but the higher the penalty the more chance of them being court elected. Councils rarely are reimbursed for true staff an solicitor costs and in many instances, the magistrate will issue a Section 10. Some Councils prefer not to impose penalties
Issue 2 Lack if full accountability by private certifiers for action in the public interest
The role of a private certifier and council are very different when it comes to public interest.
Council Certifiers in assessing applications makes a decision that are influenced by their community, their council direction, and relevant planning documents, they are then accountable within their local community and the wider community that the decisions made are the best for the public interests.
A Certifier’s decisions are influenced by a person/organisation that has engaged them to undertake a role in exchange for payment. A persons best interest may be profit, desire to achieve an outcome that is what they want, generally any outcome that is not in the public interest.
Decision making is based on the future earning potential they may receive from a developer that
Currently there is a Code of Conduct that outlines the behaviour and standards for all certifiers it covers the following:
acting in the public interest regarding the interests of the client and others not misinforming, or otherwise misleading treatment of others duty of care making decisions and taking actions protecting and using information acting within competence the proper exercising of power gifts and benefits bias
Acting the public interest is the first topic in the list covered. Writing another document such as a practise guide will be useless if the current guides and legislation are not followed.
Given the BPB currently undertakes no training or education for these in the industry they represent one suggestion would be that the BPB should actively undertake education and training of all those accredited in maintaining the code of conduct in relation to Code of Conduct, this could be include in our ongoing continuing professional development as additional development
It was discussed that an active on-site risk based audit program should be undertaken, it is unclear who is to undertake active on-site risk based assessment, Most Council have regulatory areas that take action in relation to non-compliances with Development Consent issues, this area is generally funded from within Council. Is the Building Professionals Board prepared to expand their staff to undertake this role if they are to suit both Council and Private Certifiers? Or is there an expectation that Council based Certifiers will become the auditor of private certificates to ensure that they can act in the public interest. I chose my profession, I love working as a Council Certifier I have no want to become an auditor to Private Certifiers who are unable to follow the number one item in our Code of Conduct which is act in the public interest.
Issue 3
Excessive detail required at the DA stage of building design, duplicating the construction stage
Generally I agree with this statement, there are differences across council in relation to the information required.
The level of information provided needs to ensure that the consent authority is able undertake an assessment of the application.
Adequate detail is needed to ensure that the building design works, is able to function, be able to achieve compliance with relevant planning compliance, engineering requirements and meet the requirements of the Building Code of Australia, where this detail is not provided, the general result is ongoing requests to amend the Development Consent by Section 96 applications, which is then time consuming for both all parties involved.
Issue 4
Council prescribing building standards in excess of BCA
Council is asked to assess and determine and application on the information provided, where their officers are no the Certifiers, the Consent issued is then provided to the Private Certifier which might be a set of plans, and conditions and they are asked to engaged to issue the Construction Certificate.
Council in determining an application is unable to nominate the Class of Building for the building works proposed as a result Council is unable to impose revenant conditions for essential fire services for the use of the building.
This is critical to the end result and function of the building, especially where council and private certifiers have a difference in opinion for the class of building. Two examples include:
Example 1 A farm building used for the packaging of vegetables, repair works to machinery and preparation of machinery for planting etc; in the assessment undertaken by the Consent Authority, it was revealed that there are employees that would not familiar to the building and further the building is greater than 500m2.
The Consent Authority cannot impose a class of building such as Class 8 or onerous in consent. We can impose conditions related to commercial use and the need for essential fire services. The private certifier then classes the building and in accordance with the current legislation can then decide if the conditions are relevant and determine the class of building.
They then can decide to class the building as a Class 10a building, such a class of building does not require the installation of any essential fire services
To argue that the imposition of conditions which directly relate to the use of the building and provide protection of employees is not in the public interest where an incident occurs that a person that is an employee is significantly affected.
Example 2
Residential accommodation for more than 12 persons (was used for a persons of a religious order which including visitors). The Consent Authority was unable to condition a class of building, when the construction certificate was done the building was classed as a class 1a, had council determined the class of building based on its use, and provided relevant appropriate conditions the building would have been classes as a class 3 building by Council the required essential services would be been conditioned.
Issue 5
Lack of consistency across councils with respect to DA conditions and lack of clarity and conditions
There is no objection to standardised conditions sets and even consent formats, but this should not take away the ability for the Consent Authority to use, non-standard conditions which will be still be required to be added from time to time dependent on the proposal and associated issue given that local area matters that may not be covered by standard conditions.
It should be noted that NSW Planning has a history of producing standard documents such as certificates, contracts, etc that have irrelevant or insufficient wording. There are many examples available as public documents and include CDC conditions that do not cover specific issues such as BASIX commitments and pool fencing legislation.
Issue 6 Lack of clarity about the role of the Occupation Certificate
The lack of clarity comes from the legislation surrounding Occupation Certificates, their issue and use.
The Environmental Planning and Assessment Regulations only ask that the works completed are not inconsistent with the development consent in force if it was issued on or after March 2013. The only other consideration is for the certifier is to ensure that building will not constitute a hazard to the health or safety of the occupants of the building.
During the stakeholder sessions, the discussion turned to the introduction of a Development Completion Certificate be introduced, expanding the Occupation Certificate to be all inclusive will have reduce the need for a Development Completion Certificate
There are significant concerns allowing occupation but linking home insurance, as raised during the stakeholder sessions, this will allow for the insurance industry to become a vocal member of an already regulated system.
Issue 7
Frequent unauthorised work, ie work that is not subject to a DA or CDC
The current system of Building Certificates issued under Section 149 of the EP&A Act, generally works but has limited powers, this includes where Council needs to direct works to be removed, works to be undertaken or bought up to compliance with current requirements.
Allowing certifiers to retrospectively approve unauthorised works for their clients will potentially lead to corrupt activities or favours for regular or large clients. This already occurs to some extent in the industry and should be prevented, not encouraged.
The issue of retrospective Construction Certificates contradicts the merit of a Construction Certificate under the Act, which is that when built in accordance with the plans and specifications that a building will be compliant with the BCA.
Issue 8
Lack of ready access to information on developments both for the community and for Councils and the Government
Council is subject to meeting the requirements of the Government Information (Public Access) Act 2009. As a result a significant amount of information is available on line, information made publically available this includes Councils own development assessment process and information provided by Principal Certifiers that is associated to the development. Whilst the information isn’t on a central data base which is across the state it is, it is a mandatory requirement to make such information publically available.
Application of e-Technology is currently being undertaken by the electronic housing codes but limitations include where other state government bodies such as Sydney Water do not have updating mapping.
Further experience has showed where centralised data basses such as the Department of Local Governments Swimming Pool Register, is cumbersome, repetitive and time consuming to use.
Issue 9
Lack of information in an accessible form for complex buildings
A building manual for complex buildings is good practice, the review has provided no comment on who will have the responsibility of such a manual in both ensuring that it is available, the those undertaking installation or inspecting of fire services or how such an manual will be kept up to date.
Would it be considered onerous to impose conditions in a development consent by the Consent Authority for such a manual to be produced ? further given that the nominated Certifier is ensure that the appropriate class is nominated for the works and have the ability to decide if the Consent Authorities conditions are valid, how can it assured that such a document is produced,
Thank you for taking the time in reading my submission, I do hope that more interest is taken in the Council Stakeholder submissions than was taken of those attending the Council Stakeholder sessions on the 5 June 2015.
Regards
Emma Strickland