Part 1 Preliminary

1 Short title

This Act may be cited as the Building Act 2016 .

2 Commencement

This Act commences on a day to be proclaimed.

3 Object of Act

The objects of this Act are to –

(a) ensure that –

(i) building work, plumbing work and demolition work, including the design, and maintenance of domestic, commercial and industrial buildings, meets, or exceeds, the minimum national construction standards; and

(ii) building work, plumbing work, demolition work and maintenance work do not negatively affect the health and safety of people; and

(iii) owners, building services providers, practitioners and councils comply with the requirements of this Act and the National Construction Code when performing work, or performing functions and exercising powers, under this Act; and

(b) provide for –

(i) the creation of buildings that are accessible to, and contain facilities for, people with disabilities; and

(ii) the creation of energy-efficient and water-efficient, and sustainable, buildings that minimise impact on the environment; and

(iii) the legal protection of building services providers, practitioners and owners in certain circumstances in respect of work performed in accordance with this Act; and

(c) facilitate and promote cost-effective construction of buildings; and

(d) encourage an efficient, innovative and competitive building industry.

4 Interpretation

(1)  In this Act –[Section 4 Subsection (1) amended by No. 18 of 2021, s. 52, Applied:05 Nov 2021]

[Section 4 Subsection (1) amended by No. 18 of 2021, s. 52, Applied:05 Nov 2021] appeal tribunal means the Tasmanian Civil and Administrative Tribunal;

approved means approved by the Director of Building Control;

as-constructed plans means plans, in a form and containing such details as determined by the Director of Building Control, that specify how work has been constructed under this Act;

authorised person includes –

(a) the Director of Building Control; and

(b) a building surveyor; and

(c) a permit authority; and

(d) [Section 4 Subsection (1) amended by No. 9 of 2023, s. 4, Applied:01 Oct 2024]

(e) any other prescribed person;

builder, in relation to building work or demolition work, means –

(a) a person engaged, to manage or carry out building work or demolition work, by the owner of premises where the work is to be performed; and

(b) if such a person does not exist, the owner of such premises;

building includes –

(a) a building or a proposed building; and

(b) a part of a building or proposed building; and

(c) a structure or a proposed structure; and

(d) a part of a structure or proposed structure;

building administration fee means the fee payable in respect of work under Division 1 of Part 21 ;

building notice means a building notice issued under section 237 ;

building order means a building order served under section 246 , 247 , 248 or 249 ;

building permit means a building permit issued under section 143 ;

Building Regulations means regulations made under this Act that relate to building work or demolition work;

building services provider has the same meaning as in the Occupational Licensing Act 2005 ;

building services work has the same meaning as in the Occupational Licensing Act 2005 ;

building surveyor – see section 28 ;

building work means work consisting of, or relating to –

(a) erecting, re-erecting, constructing, altering, repairing, underpinning, demolishing or removing a building; or

(b) adding to a building; or

(c) excavating, or filling, that is incidental to an activity referred to in paragraph (a) or (b); or

(d) any other prescribed work;

business day means a day that is not a Saturday, a Sunday, a statutory holiday as defined in the Statutory Holidays Act 2000 or a public holiday throughout the State;

certificate of completion includes –

(a) a certificate of completion (notifiable building work); and

(b) a certificate of completion (notifiable plumbing work); and

(c) a certificate of completion (notifiable demolition work); and

(d) a certificate of completion (permit building work); and

(e) a certificate of completion (permit plumbing work); and

(f) a certificate of completion (permit demolition work);

certificate of completion (notifiable building work) means a certificate of completion (notifiable building work) issued under section 104 ;

certificate of completion (notifiable demolition work) means a certificate of completion (notifiable demolition work) issued under section 127 ;

certificate of completion (notifiable plumbing work) means a certificate of completion (notifiable plumbing work) issued under section 115 ;

certificate of completion (permit building work) means a certificate of completion (permit building work) issued under section 153 ;

certificate of completion (permit demolition work) means a certificate of completion (permit demolition work) issued under section 203 ;

certificate of completion (permit plumbing work) means a certificate of completion (permit plumbing work) issued under section 178 ;

certificate of final inspection (building) means a certificate of final inspection (building) issued under section 152 ;

certificate of final inspection (demolition) means a certificate of final inspection (demolition) issued under section 202 ;

certificate of likely compliance includes –

(a) a certificate of likely compliance (notifiable building work); and

(b) a certificate of likely compliance (notifiable plumbing work); and

(c) a certificate of likely compliance (notifiable demolition work); and

(d) a certificate of likely compliance (permit building work); and

(e) a certificate of likely compliance (permit plumbing work); and

(f) a certificate of likely compliance (permit demolition work);

certificate of likely compliance (notifiable building work) means a certificate of likely compliance (notifiable building work) issued under section 98 ;

certificate of likely compliance (notifiable demolition work) means a certificate of likely compliance (notifiable demolition work) issued under section 121 ;

certificate of likely compliance (notifiable plumbing work) means a certificate of likely compliance (notifiable plumbing work) issued under section 109 ;

certificate of likely compliance (permit building work) means a certificate of likely compliance (permit building work) issued under section 134 ;

certificate of likely compliance (permit demolition work) means a certificate of likely compliance (permit demolition work) issued under section 185 ;

certificate of likely compliance (permit plumbing work) means a certificate of likely compliance (permit plumbing work) issued under section 160 ;

certificate of substantial compliance means a certificate of substantial compliance provided under section 257 ;

classification means classification under the National Construction Code;

defective work – see section 207 ;

demolition order means a demolition order under section 267 ;

demolition permit means a demolition permit issued under section 193 ;

demolition work is building work that –

(a) completely, or partially, demolishes a building or structure by pre-planned and controlled methods or procedures; and

(b) does not include the building of any new building or structure, or associated building works;

designer means the person performing design work under this Act;

dilapidated building means a building that, because of neglect, disrepair, defacement or damage, is of an appearance that is unsightly, particularly in comparison with its surroundings;

Director of Building Control means the person appointed under section 15(1) as the Director of Building Control;

emergency order means an emergency order made under section 245 ;

emergency work – see section 214 ;

environmental health officer has the same meaning as in the Public Health Act 1997 ;

essential building services means the features of a building, or the measures in or associated with a building, that are prescribed for the purposes of this definition;

farm building has the same meaning as in the National Construction Code;

fire source feature has the same meaning as in the National Construction Code;

function control authority means an authority that is prescribed for the purposes of this definition;

Fund means the Building Administration Fund continued in force under section 329 ;

[Section 4 Subsection (1) amended by No. 9 of 2023, s. 4, Applied:01 Oct 2024]

hazardous area includes land that has the following attributes or risks:

(a) land that is prone to bushfire, landslip or flooding;

(b) land that is subject to slope instability;

(c) land that is subject to erosion or coastal inundation;

(d) land that is subject to sea level rises or storm surges;

(e) land that is contaminated, filthy or undrainable;

(f) land that has any prescribed attributes or is prone to any prescribed risks;

historic building means a building entered in the Heritage Register under the Historic Cultural Heritage Act 1995 ;

licensed builder, in relation to building work, means –

(a) the holder of a building services licence under the Occupational Licensing Act 2005 that authorises the holder of the licence to perform the building work; or

(b) an owner builder who holds an owner builder permit under that Act that authorises the owner builder to perform the building work;

licensed plumber, in relation to plumbing work, means the holder of a licence under the Occupational Licensing Act 2005 that authorises the holder of the licence to perform the plumbing work;

low-risk building work – see section 91(1)(a) ;

low-risk demolition work – see section 91(1)(c) ;

low-risk plumbing work – see section 91(1)(b) ;

low-risk work includes low-risk building work, low-risk plumbing work and low-risk demolition work;

National Construction Code means the National Construction Code series published by the Australian Building Codes Board, as amended or substituted from time to time;

notice of work means –

(a) in the case of notifiable building work, a notice of work under section 97 ; and

(b) in the case of notifiable plumbing work, a notice of work under section 108 ; and

(c) in the case of notifiable demolition work, a notice of work under section 120 ;

notifiable building work – see section 93 ;

notifiable demolition work – see section 116 ;

notifiable plumbing work – see section 105 ;

notifiable work includes notifiable building work, notifiable plumbing work and notifiable demolition work;

occupancy permit means an occupancy permit issued under section 223 ;

owner, in relation to premises, includes the following persons:

(a) every person who jointly or severally, whether at law or in equity, is entitled to the premises for any estate in freehold in possession;

(b) a person who has contracted to buy the premises;

(c) in the case of premises that are subject to a mortgage, the person for the time being holding the equity of redemption in that mortgage;

(d) in the case of premises held under a tenancy for life, the person who is the life tenant;

(e) in the case of premises held under a lease for a term of not less than 99 years or for a term of not less than such other prescribed period, the person who is the lessee of the premises;

(f) if the premises are Crown land, the Minister, authority or other person responsible for the management of the land;

(fa) [Section 4 Subsection (1) amended by No. 39 of 2018, s. 4, Applied:01 Jan 2017] in the case of premises where defective work is found, an occupier of the premises who has contractually authorised the performance of the building work in those premises –

(i) that was the defective work; or

(ii) that resulted in the discovery of the defective work;

(g) any other person holding a prescribed interest in the premises;

owner builder means the holder of an owner builder permit under the Occupational Licensing Act 2005 ;

party structure includes –

(a) a wall that –

(i) forms part of a building; and

(ii) separates adjoining buildings that belong to different owners or that are occupied by different persons; and

(b) a wall, forming part of a building, that stands –

(i) outside the footings of the building; and

(ii) on lands that belong to more than one owner; and

(c) a wall, partition, arch, floor or other structure separating buildings vertically or horizontally that is approached by a distinct staircase or separate entrance;

performance solution has the same meaning as in the National Construction Code;

permit authority – see section 24 ;

permit building work – see section 128 ;

permit demolition work – see section 179 ;

permit of substantial compliance means a permit of substantial compliance granted under section 260 ;

permit plumbing work – see section 154 ;

permit work includes permit building work, permit plumbing work and permit demolition work;

plumbing installation includes –

(a) a system of water supply; and

(b) a system of sewage or sullage drainage or disposal; and

(c) a system of stormwater drainage, roof drainage or trade waste drainage; and

(d) an on-site system, for the management or re-use of waste water, that is –

(i) a disposal or treatment system servicing one or more blocks; or

(ii) an on-site composting toilet or system; or

(iii) an on-site incinerating toilet; and

(e) any other prescribed system;

plumbing order means a plumbing order served under section 250 ;

plumbing permit means a plumbing permit issued under section 169 ;

Plumbing Regulations means regulations made under this Act that relate to plumbing work;

plumbing work means any work relating to –

(a) installing, altering or maintaining a plumbing installation; or

(b) any other prescribed work;

premises includes –

(a) land or part of land; and

(b) a building; and

(c) any other thing as is prescribed;

protection work – see section 76(1) ;

publish – see section 23 ;

regulations means regulations made under this Act;

reporting authority means a body or organisation prescribed for the purpose of this definition;

required report means a report made by a reporting authority as part of the process of determining an application under this Act;

responsible person – see section 5 ;

special-use building means a building, or a class of buildings, that the Director has determined to be used for a special purpose;

specified means specified by the Director of Building Control;

staged permit means a building permit, plumbing permit or demolition permit that is issued in respect of a stage of work under this Act;

standard of work certificate includes –

(a) a standard of work certificate (notifiable building work); and

(b) a standard of work certificate (notifiable plumbing work); and

(c) a standard of work certificate (notifiable demolition work); and

(d) a standard of work certificate (permit building work); and

(e) a standard of work certificate (permit plumbing work); and

(f) a standard of work certificate (permit demolition work);

standard of work certificate (notifiable building work) means a standard of work certificate (notifiable building work) provided in accordance with section 103 ;

standard of work certificate (notifiable demolition work) means a standard of work certificate (notifiable demolition work) provided in accordance with section 126 ;

standard of work certificate (notifiable plumbing work) means a standard of work certificate (notifiable plumbing work) provided in accordance with section 114 ;

standard of work certificate (permit building work) means a standard of work certificate (permit building work) provided in accordance with section 151 ;

standard of work certificate (permit demolition work) means a standard of work certificate (permit demolition work) provided in accordance with section 201 ;

standard of work certificate (permit plumbing work) means a standard of work certificate (permit plumbing work) provided in accordance with section 177 ;

start-work authorisation means authorisation to start work provided under section 99(1)(c) , section 110(1)(c) or section 122(1)(c) ;

temporary occupancy permit means a temporary occupancy permit issued under section 232 ;

temporary structure includes –

(a) a booth, tent or other temporary enclosure, whether or not part of the booth, tent or temporary enclosure is permanent; and

(b) a temporary seating structure; and

(c) a structure prescribed for the purposes of this definition;

work includes building work, plumbing work and demolition work.

(2)  For the purposes of this Act, the nature, purpose or use of a building is –

(a) to be determined from the design of the building; or

(b) if the building is suitable for different purposes or uses by its design, to be determined according to its most natural purpose or use as inferred from its design, its situation and the declared intention of the owner at the relevant time.

(3)  For the purposes of this Act –

(a) a reference in this Act to the class of a building is a reference to that class as set out in the National Construction Code; and

(b) if the class of a building is unclear or disputed, the relevant building surveyor for the building must classify it as belonging to the class of building it most closely resembles.

5 Responsible person

(1)  For the purposes of this Act, the responsible person for building work is –

(a) the licensed builder who is intending to perform, or who is performing or has performed, the building work; or

(b) if there is no such licensed builder, the owner of the premises where the building work is to be, is being or has been, performed.

(2)  For the purposes of this Act, the responsible person for plumbing work is –

(a) the licensed plumber who is intending to perform, or who is performing or has performed, the plumbing work; or

(b) if there is no such licensed plumber, the owner of the premises where the plumbing work is to be, is being or has been, performed.

(3)  For the purposes of this Act, the responsible person for demolition work is –

(a) the licensed builder who is intending to perform, or who is performing or has performed, the demolition work; or

(b) if there is no such licensed builder, the owner of the premises where the demolition work is to be, is being or has been, performed.

6 Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

7 Act prevails

This Act prevails over the provisions of any other Act or any regulation, rule, by-law, guidelines, planning instrument, standard, condition, determination, or directive, made under any other Act that relates to the design of any building, building work or plumbing work.

8 Delegation

(1)  [Section 8 Subsection (1) amended by No. 9 of 2023, s. 5, Applied:01 Oct 2024] The Minister may delegate to any person any of the Minister's powers and functions under this Act, other than this power of delegation and the Minister's powers and functions under section 27B .

(2)  The Director of Building Control may delegate to any person any of the Director's powers and functions under this Act, other than this power of delegation.

(3)  [Section 8 Subsection (3) amended by No. 9 of 2023, s. 5, Applied:01 Oct 2024] A council may delegate to any person any of its powers and functions under this Act, other than this power of delegation and its powers and functions as a permit authority.

(4)  [Section 8 Subsection (4) omitted by No. 9 of 2023, s. 5, Applied:01 Oct 2024] .  .  .  .  .  .  .  .  

(5)  A delegation under this section is to be made by instrument in writing.

9 Minister to approve certain statutory rules &c.

(1)  A regulation, or rule or by-law, that relates to the technical requirements of the design or construction of a building, building work or plumbing work must not be made under any Act without the approval of the Minister unless that Act expressly provides to the contrary.

(2)  A regulation, or rule or by-law, that relates to the technical requirements of the design or construction of a building, building work or plumbing work that is not made in compliance with subsection (1) is of no effect.

(3)  A condition that relates to the technical requirements of the design or construction of a building, building work or plumbing work may not be imposed on a permit issued under the Land Use Planning and Approvals Act 1993 without the approval of the Minister unless that Act expressly provides to the contrary.

(4)  A condition that relates to the technical requirements of the design or construction of a building, building work or plumbing work that –

(a) is imposed on a permit issued under the Land Use Planning and Approvals Act 1993; and

(b) has not been approved under subsection (3) as required before it was imposed on the permit –

is of no effect unless the condition has been retrospectively approved by the Minister.

(5)  A person is not guilty of an offence under this Act, or the Land Use Planning and Approvals Act 1993, in relation to any act performed, or failure to act, by the person in accordance with a condition, that is of no effect by virtue of subsection (4) , if the person has not been informed by the Minister in writing that the condition is of no effect.

(6)  The Minister may certify that –

(a) subsection (1) does not apply to a regulation, or rule or by-law, that relates only incidentally to the technical requirements of the design or construction of a building, building work or plumbing work; or

(b) subsection (3) does not apply to a condition, or a class of conditions, that relates to the technical requirements of the design or construction of a building, building work, plumbing work or demolition work, that may be imposed on a permit issued under the Land Use Planning and Approvals Act 1993.

10 Application of Act to accretions from sea

An authorised person may, in performing a function or exercising a power under this Act, perform the function or exercise the power in respect of –

(a) any accretion from the sea, whether natural or unnatural; and

(b) any part of the seashore to the low-water mark; and

(c) any bridge, jetty, wharf, boat-house or other structure; and

(d) any area of the sea in, on, over or under which any building or building work is related to, or affects, any adjacent land.

Part 2 Work to Comply with Act and National Construction Code

11 All work must comply with Act and National Construction Code

(1)  A person performing building work, plumbing work or demolition work must ensure that the work complies with –

(a) this Act; and

(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  The owner of a building where building work, plumbing work or demolition work is being performed must ensure that the work complies with –

(a) this Act; and

(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  A person named on a permit must ensure that all building work, plumbing work or demolition work done under the authority of that permit complies with –

(a) this Act; and

(b) all of the applicable provisions of the National Construction Code, unless otherwise authorised under this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  A building surveyor, as far as is reasonably practicable, is to ensure that all building work and demolition work, in respect of which he or she is engaged as a building surveyor, is performed in accordance with this Act.

Penalty:  Fine not exceeding 100 penalty units.

(5)  For the purposes of this section, a provision of the National Construction Code is not an applicable provision in respect of work if –

(a) the certificate of likely compliance issued in respect of the work was issued before the provision of the National Construction Code was adopted by the State; or

(b) [Section 11 Subsection (5) amended by No. 39 of 2018, s. 5, Applied:01 Jan 2017] the building surveyor, or relevant permit authority, for the work certifies in writing that substantial progress had been made in the design of the work before the provision was adopted by the State; or

(c) [Section 11 Subsection (5) amended by No. 39 of 2018, s. 5, Applied:01 Jan 2017] if the provision of the National Construction Code applies a standard, or requirement, by reference to a document that is subsequently amended – the building surveyor, or relevant permit authority, for the work certifies that substantial progress had been made in the design of the work before the document so applied was amended.

(6)  Nothing in subsection (5) prevents a person from complying with a provision of the National Construction Code that is not an applicable provision by virtue of that subsection.

12 Compliance of existing buildings

A building or structure constructed, or building work, plumbing work or demolition work performed –

(a) before the commencement of this Act; and

(b) in accordance with each relevant Act in force at the time the building or structure was constructed or the work was performed –

is taken to have been constructed, or performed, in compliance with this Act and the applicable provisions of the National Construction Code.

13 National Construction Code may be modified in certain circumstances

(1)  An environmental health officer may determine that a provision of the National Construction Code in relation to food premises be altered in certain circumstances.

(2)  A building surveyor may determine that a provision of the National Construction Code in relation to farm buildings or historic buildings be altered in certain circumstances.

(3)  A determination under subsection (1) or (2) –

(a) must not impose a higher standard than the standard imposed by the provision of the National Construction Code being altered by the determination; and

(b) is to be in accordance with any prescribed requirements; and

(c) is taken to modify the National Construction Code as it applies in the circumstances to which the determination relates.

(4)  A determination under subsection (1) or (2) does not apply to work if –

(a) a certificate of likely compliance has been issued in respect of the work before the determination takes effect; and

(b) the work is completed before that certificate of likely compliance expires.

14 Provisions of other standards

Unless otherwise specified, any provision of a standard, code or guideline in relation to a matter that is dealt with in the National Construction Code applies to a building, or work performed under this Act, only if it is expressly adopted by that Code.

Part 3 Administration

Division 1 Director of Building Control

15 Director of Building Control

(1)  The Minister may appoint a State Service employee, or a State Service officer, as the Director of Building Control.

(2)  A person appointed as Director of Building Control under subsection (1) holds that position in conjunction with his or her State Service employment.

(3)  The Director of Building Control holds office on the terms and conditions specified in his or her instrument of appointment.

16 Functions of Director of Building Control

The Director of Building Control has the following functions:

(a) to advise the Minister in relation to matters arising under this Act and the administration of this Act and on other legislation relating to building, plumbing, demolition and related matters;

(b) to liaise with permit authorities or councils on the functions of the Director of Building Control;

(c) to liaise with the building, plumbing and demolition industries and other interested groups or bodies on matters relating to building, plumbing and demolition;

(d) to liaise with, and represent the State on, any national body established to deal with matters relating to building, plumbing and demolition;

(e) to facilitate training in respect of matters under this Act;

(f) to publish reports and disseminate information on matters relating to building work, plumbing work or demolition work;

(g) to audit the performance of the following in respect of building work, plumbing work or demolition work:

(i) owners;

(ii) owner builders;

(iii) builders;

(iv) building services providers;

(v) plumbers;

(vi) designers;

(vii) building surveyors;

(viii) permit authorities;

(ix) [Section 16 Amended by No. 9 of 2023, s. 6, Applied:01 Oct 2024] .  .  .  .  .  .  .  .  

(x) councils;

(xi) other prescribed persons or prescribed organisations;

(h) to carry out such other functions as are specified in respect of the Director of Building Control under this Act or any other Act;

(i) to carry out such other functions as are determined by the Minister;

(j) to carry out such other functions as are prescribed for the purposes of this section.

17 General powers of Director of Building Control

(1)  The Director of Building Control has the power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of his or her functions.

(2)  For the purposes of this Act and without limiting subsection (1) , the Director of Building Control may –

(a) enter any building, temporary structure or premises where building work, plumbing work or demolition work is being, is to be or has been, performed; and

(b) enter any premises if necessary to perform any function or exercise any power under this Act; and

(c) enter premises where business relating to building, plumbing or demolition is being performed or on which it is believed on reasonable grounds that documents relating to building, plumbing or demolition are kept; and

(d) take photographs, films and video recordings in any premises lawfully entered in the performance of his or her functions under this Act or any other Act; and

(e) require records or documents relating to a building, temporary structure, premises, building work, plumbing work or demolition work to be provided to the Director of Building Control; and

(f) require records required to be kept under this Act to be provided to the Director of Building Control; and

(g) search for, inspect, or require explanation in respect of, any record required to be kept, or provided, under this Act; and

(h) either –

(i) take notes, copies and extracts of or from any record or document provided or made available under this section; or

(ii) remove, and retain in the possession of the Director of Building Control, any record or document provided or made available under this section.

(3)  If a record or document is retained by the Director of Building Control under subsection (2)(h)(ii) , the Director –

(a) may make copies of the record or document; and

(b) must return the record or document as soon as practicable after the record or document is no longer required by the Director.

18 Director of Building Control may authorise or accredit products

(1)  The Director of Building Control may authorise or accredit a building, or plumbing, product for the purpose of this Act.

(2)  The Director of Building Control may accredit a plumbing installation for use under this Act.

(3)  An accreditation under subsection (1) or (2) may be subject to any condition the Director of Building Control determines.

(4)  The Director of Building Control must publish an accreditation under this section and any condition that applies to the accreditation before the accreditation takes effect.

(5)  A product, or plumbing installation that is accredited or authorised under this section is taken to be an accredited product for the purpose of the National Construction Code.

19 Director of Building Control may make or adopt guidelines

(1)  The Director of Building Control may make guidelines, or adopt existing guidelines, in respect of the following matters:

(a) providing technical guidance as to how to ensure compliance with this Act, the National Construction Code and any other relevant standards or codes;

(b) providing performance criteria for ensuring compliance with this Act, the National Construction Code and any other relevant standards or codes;

(c) providing acceptable standards and tolerances relating to the quality and standards required in relation to work under this Act;

(d) identifying the roles or functions of persons, or classes of persons, while performing work under this Act;

(e) providing guidance on procedures relating to inspections;

(f) such other matters as are prescribed.

(2)  Before making or adopting guidelines under subsection (1) , the Director of Building Control is to consult with such organisations or stakeholders the Director of Building Control considers relevant to the content of the proposed guidelines.

(3)  The Director of Building Control is to ensure that guidelines made, or adopted, under subsection (1)  –

(a) are published before they come into effect; and

(b) remain published while the guidelines remain in effect.

20 Director of Building Control may make determinations

(1)  The Director of Building Control may make a determination in respect of the following matters:

(a) types of building work, plumbing work or demolition work that is low-risk work, notifiable work or permit work;

(b) [Section 20 Subsection (1) amended by No. 39 of 2018, s. 6, Applied:01 Jan 2017] when, where and how partial compliance with the National Construction Code may be consented to under Division 1 of Part 5 ;

(c) hazardous areas and any additional requirements or obligations in respect of the design, assessment, construction, inspection, demolition or maintenance of work, or premises, in those areas;

(d) any matter that is to be determined by the Director of Building Control under this Act;

(e) such other matters as are prescribed.

(2)  Before making a determination under subsection (1) , the Director of Building Control is to consult with such organisations or stakeholders as the Director of Building Control considers relevant to the content of the proposed determination unless the circumstances require immediate action.

(3)  The Director of Building Control is to ensure that a determination made under subsection (1)  –

(a) is published before it comes into effect; and

(b) specifies the period for which the determination is in effect or that the determination is in effect indefinitely; and

(c) remains published while the determination remains in effect.

(4)  A person must comply with a relevant determination published in accordance with subsection (3) .

Penalty:  Fine not exceeding 100 penalty units.

(5)  [Section 20 Subsection (5) inserted by No. 39 of 2018, s. 6, Applied:01 Jan 2017] Despite subsection (4) , a determination of the Director of Building Control made under subsection (1) , or a standard or requirement applied under such a determination by reference to a document, does not apply to work if the building surveyor, or relevant permit authority, for the work certifies in writing that substantial progress had been made in the design of the work –

(a) before the determination was made; or

(b) if the determination applies a standard or requirement by reference to a document that is subsequently amended, before the document so applied was amended.

21 Assistance to Director of Building Control

(1)  The Director of Building Control may make arrangements with the Head of an Agency, within the meaning of the State Service Act 2000 , for employees employed in that Agency to be made available to the Director to enable the Director to perform his or her functions and exercise his or her powers under this Act.

(2)  A person may be made available to the Director of Building Control in conjunction with his or her employment within the State Service.

22 Compliance audit by Director of Building Control

(1)  The Director of Building Control may arrange for an audit to be carried out in respect of the work of any person or body specified in section 16(g) .

(2)  As part of an audit under this section, the Director of Building Control may require, by written notice, a person to provide a record or document, or to make a written statement that is to be produced, at a time and place specified in the notice.

(3)  A person must comply with a written notice given to them under subsection (2) .

Penalty:  Fine not exceeding 100 penalty units.

(4)  If requested to do so by the Director of Building Control, a person must assist in, or cooperate with, an audit under this section as requested.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5)  If a record, document or written statement is provided as part of an audit under this section, the Director of Building Control –

(a) may make copies of the record, document or statement; and

(b) must return the record, document or statement as soon as practicable after the Director has finished with the record, document or statement.

(6)  If, after conducting an audit, the Director of Building Control is satisfied that a person or body whose work is the subject of the audit may be guilty of unsatisfactory professional conduct, or professional misconduct, the Director may refer the matter to the Administrator appointed under the Occupational Licensing Act 2005 as evidence that the person or body is not a fit and proper person for the purposes of that Act.

23 Publication of documents by Director of Building Control

If the Director of Building Control is required to publish a document under this Act, the document is taken to be published if –

(a) the document is made available for viewing by members of the public on a website that is accessible by the public; or

(b) the document is made available for viewing by members of the public by any other means the Director of Building Control considers appropriate.

Division 2 Permit authorities

24 Who is a permit authority

[Section 24 Substituted by No. 9 of 2023, s. 7, Applied:01 Oct 2024]

(1)  Subject to subsection (7) , the council of a municipal area is the permit authority for the municipal area.

(2)  The council of a municipal area must ensure that –

(a) the council is a licensed entity, under the Occupational Licensing Act 2005 , and is authorised under that Act to perform the functions and exercise the powers of a permit authority for the municipal area; and

(b) a function or power of the permit authority for the municipal area is only performed or exercised in respect of the municipal area by –

(i) subject to subsection (8)(a) , the licensed person, within the meaning of the Occupational Licensing Act 2005 , nominated by the council of the municipal area in its capacity as a licensed entity under that Act; or

(ii) a person appointed under subsection (6) as the permit authority for the municipal area; or

(iii) the Director of Building Control, if a notice under subsection (7) is in force in respect of the municipal area; or

(iv) a person authorised to perform the function or exercise the power, in respect of the municipal area, under an order of the Minister made in accordance with section 27B .

Penalty:  Fine not exceeding 500 penalty units.

(3)  Subject to subsection (4) , the performance of a function, or the exercise of a power, of a permit authority in respect of a municipal area is of no effect if it is performed or exercised by a person other than a person referred to in subsection (2)(b) in respect of the municipal area.

(4)  The Director of Building Control may, by notice published in the Gazette, determine that subsection (3) does not apply in respect of the performance of one or more functions, or the exercise of one or more powers, of a permit authority specified in the determination.

(5)  A determination under subsection (4)  –

(a) may relate to the past, or future, performance of one or more functions, or the exercise of one or more powers, of a permit authority; and

(b) if the determination relates to the future performance of a function, or exercise of a power, is to specify the period for which the determination has effect in respect of that function or power; and

(c) is not a determination to which section 20 applies.

(6)  If the council of a municipal area ceases to be a licensed entity under the Occupational Licensing Act 2005 , or there ceases to be a licensed person as required under the Occupational Licensing Act 2005 in respect of the council –

(a) the Director of Building Control may appoint a person as the permit authority, for that municipal area, on the terms and conditions that are specified in the instrument of appointment; and

(b) the council is liable for any reasonable costs that are incurred as a result of the appointment under paragraph (a) unless the Director of Building Control otherwise specifies.

(7)  The Minister may, by notice in the Gazette, appoint the Director of Building Control as a permit authority, for one or more municipal areas, on the terms and conditions specified in the notice, including which functions or powers of a permit authority the Director is appointed to perform or exercise.

(8)  If, under subsection (7) , the Minister appoints the Director of Building Control as the permit authority for one or more municipal areas –

(a) a person employed or engaged by the relevant council of the municipal area may not perform the functions, or exercise the powers, of a permit authority for the municipal area except with the approval of the Minister or the Director; and

(b) the Director may subdelegate one or more functions, or powers, of such a permit authority if the notice under that subsection appointing the Director does not specifically prohibit the subdelegation of the function, or power, by the Director.

25 Functions of permit authorities

(1)  A permit authority has the following functions in respect of building work, plumbing work or demolition work:

(a) to accept applications submitted to it under this Act and, if the application is incomplete, to seek further information before considering the application;

(b) to consider any application submitted to it under this Act within the relevant specified period for the application;

(c) to accept any other documents submitted to it under this Act and seek further information in respect of the document if required;

(d) to ensure that any permit issued by the permit authority is in accordance with this Act;

(e) to comply with this Act when issuing, or refusing to issue, a permit under this Act;

(f) to ensure that work performed under a permit is to be performed by appropriately qualified persons;

(g) if appropriate, to issue a certificate as required under this Act.

(2)  A permit authority has the following general functions:

(a) to make the public aware of the building and plumbing requirements in the State and the application of this Act;

(b) to ensure compliance with this Act as required under this Act;

(c) to keep any registers required to be kept by a permit authority under this Act.

(3)  [Section 25 Subsection (3) inserted by No. 9 of 2023, s. 8, Applied:01 Oct 2024] A permit authority for a municipal area, as far as is reasonably practicable, is to –

(a) ensure that the owners of property within the municipal area are informed of their duties under this Act –

(i) in relation to any building work, plumbing work or demolition work; and

(ii) in maintaining and using a building; and

(b) make itself aware of –

(i) building work, plumbing work or demolition work being performed in the municipal area; and

(ii) the use and occupation of buildings in its municipal area; and

(c) if applicable, ensure that proceedings are instituted against any person or body failing to comply with this Act; and

(d) enforce an order issued by a building surveyor, if appropriate to do so.

26 Powers of permit authority

(1)  A permit authority may –

(a) at all reasonable times, enter any building, temporary structure or premises where building work, plumbing work or demolition work is being, is to be or has been, performed where the permit authority is the relevant permit authority; and

(b) at all reasonable times, enter any building or temporary structure if entry is necessary for the permit authority to perform a function or exercise a power under this Act; and

(c) take photographs, films and video recordings in any premises lawfully entered under this Act; and

(d) require the production of documents or records relating to a building, temporary structure, premises, building work, plumbing work or demolition work; and

(e) require the production of records required to be kept under this Act; and

(f) search for, inspect, or require explanation in respect of, any record required to be kept, or produced, under this Act; and

(g) take notes, copies and extracts of or from any record, document or statement produced or required under this section.

(2)  In performing its functions, or exercising its powers, under this Act, a permit authority has the power to scrutinise documents and ask questions about relevant matters.

27 Records of permit authority

(1)  A permit authority must keep the records set out in Schedule 1 as determined by the Director of Building Control.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A council of a municipal area must retain the records, required to be kept, under Schedule 1 , by the permit authority for the municipal area –

(a) for at least 10 years after the record is made or such other prescribed period; or

(b) if the record is still relevant in respect of the premises to which it relates at the expiry of the period set out in paragraph (a) , until the record is no longer relevant in respect of those premises.

Penalty:  Fine not exceeding 100 penalty units.

(3)  A council may only make information retained under subsection (2) available to the following persons:

(a) the Director of Building Control or other authorised person;

(b) [Section 27 Subsection (3) amended by No. 9 of 2023, s. 9, Applied:01 Oct 2024] an employee of the council, if access to the information is necessary as part of his or her employment;

(c) the owner of premises referred to in the information;

(d) a building surveyor, building services provider, or other licensed practitioner, that has been engaged by an owner of the premises referred to in the information;

(e) any other prescribed person.

(4)  A person may make a copy of information made available to the person under subsection (3) on payment of any reasonable fee charged by the council that has made the information available.

27A Director of Building Control may recommend Minister to direct permit authority

[Section 27A Inserted by No. 9 of 2023, s. 10, Applied:01 Oct 2024]

(1)  If the Director of Building Control believes that a permit authority has not satisfactorily performed a function of a permit authority under this Act, the Director may make a recommendation to the Minister under subsection (3) in respect of the permit authority.

(2)  Before making a recommendation to the Minister under subsection (3) in respect of a permit authority, the Director of Building Control must –

(a) notify the permit authority of each of the following:

(i) that the Director of Building Control intends to make a recommendation to the Minister under this section in respect of the permit authority;

(ii) the reasons why the Director of Building Control intends to make such a recommendation;

(iii) that the permit authority is entitled to make submissions to the Director of Building Control against the making of such a recommendation;

(iv) the period within which, and the manner in which, the permit authority may make such a submission to the Director of Building Control; and

(b) consider each submission made to the Director of Building Control by the permit authority, in accordance with the notice under paragraph (a) , before making the proposed recommendation.

(3)  If, after considering the submissions of a permit authority under this section, the Director of Building Control believes that the permit authority has not satisfactorily performed a function of a permit authority under this Act, the Director –

(a) may give a written recommendation to the Minister that the Minister make an order under section 27B in respect of the permit authority; and

(b) is to specify in the written recommendation –

(i) the reasons why the Director of Building Control has made such a recommendation in respect of the permit authority; and

(ii) a summary of the submissions made under this section by the permit authority, if any, in respect of the recommendation.

27B Minister may direct permit authority

[Section 27B Inserted by No. 9 of 2023, s. 10, Applied:01 Oct 2024]

(1)  If the Minister is satisfied that a permit authority has not satisfactorily performed a function, or exercised a power, of a permit authority under this Act, the Minister may direct the permit authority, by order –

(a) if the order relates to the performance of a function, to perform the function within a specified time; or

(b) to carry out such acts as are necessary to enable the specified function to be performed or the specified power to be exercised.

(2)  The Minister may make an order under subsection (1)  –

(a) on the Minister's own initiative, if the Minister is satisfied that the order is necessary –

(i) to protect public health or safety; or

(ii) to prevent significant damage to property; or

(b) in any other case, on the recommendation of the Director of Building Control under section 27A .

(3)  Before making an order under subsection (1) in respect of a permit authority, the Minister may give the permit authority an opportunity to make, in respect of the proposed order –

(a) a written submission to the Minister; or

(b) a submission by such other means as are agreed between the Minister and the permit authority.

(4)  If the Minister makes an order under subsection (1) in respect of the functions or powers of a permit authority and the permit authority fails to comply with the order, the Minister may do either or both of the following:

(a) take such action as the Minister thinks reasonable to ensure that –

(i) the function of the permit authority is performed; or

(ii) the power of the permit authority is exercised;

(b) authorise another person to take such action as the person considers reasonable –

(i) to perform the function, and exercise any relevant power, of the permit authority in accordance with this Act; or

(ii) to carry out such acts as are necessary to enable the function to be performed or the power to be exercised.

(5)  If the Minister, or a person authorised by the Minister, takes an action under subsection (4) in respect of the performance of a function of a permit authority for a municipal area, the Minister may recover from the council of the municipal area, as a debt due and owing, such reasonable costs and expenses as are incurred by the Minister or person in performing the function.

(6)  A permit authority must comply with an order of the Minister made, under subsection (1) , in respect of the permit authority.

Penalty:  Fine not exceeding 500 penalty units.

Division 3 Building surveyor

28 Who is a building surveyor

(1)  A building surveyor is a building services provider who is engaged by the owner of premises to perform or exercise, in respect of the premises, the functions or powers of a building surveyor under this Act.

(2)  A person must not accept an engagement to perform the functions or exercise the powers of a building surveyor, in respect of work performed on premises, if the person –

(a) does not hold a licence under the Occupational Licensing Act 2005 that authorises him or her to perform those functions, or exercise those powers, of a building surveyor; or

(b) has performed, or is required under the Act to perform, the functions or powers of a permit authority in respect of the work; or

(c) has provided professional advice in respect of the work in accordance with section 33 ; or

(d) is the owner of the premises where the work is to be performed; or

(e) was an employee of the owner of the premises immediately before he or she was engaged as a building surveyor for the premises; or

(f) is named, or is to be named, on a permit in relation to the work as the licensed builder or building services provider, or is an employee of the licensed builder or building services provider so named; or

(g) is a private consultant of a person referred to in paragraph (d) or (f) in respect of the work; or

(h) is the employer of a person referred to in paragraph (f) or of persons performing building contracts generally; or

(i) has prepared, or reviewed, the design for the building work or a performance solution proposed as part of the work; or

(j) was employed in the immediately preceding 12-month period by a designer of the work; or

(k) has a direct, or indirect, pecuniary interest in –

(i) the designer of the work; or

(ii) the work or premises where the work is to be performed; or

(iii) any other person associated with the work or premises where the work is to be performed; or

(l) has a potential conflict of interest between his or her functions as a building surveyor and his or her personal or business interests.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  A person must not accept an engagement as a building surveyor unless –

(a) the prospective building surveyor has provided, to the person engaging the person as a building surveyor, a complete schedule of fees that may be charged by the building surveyor in the course of the engagement; and

(b) the person engaging the building surveyor has agreed to that schedule of fees.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  The Minister may, by notice in the Gazette, appoint the Director of Building Control as building surveyor, or to undertake the functions of a building surveyor that are specified in the notice, on the terms and conditions specified in the notice.

29 Person must not act as building surveyor

(1)  A person must not perform any of the functions, or exercise any of the powers, of a building surveyor under this Act in respect of work unless he or she –

(a) is engaged, by the owner of premises where the work is being performed, to perform the functions, or exercise the powers, of a building surveyor in respect of the work; or

(b) is acting in accordance with a notice of the Minister under section 28(4) .

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person engaged as a building surveyor under this Act must not perform any of the functions, or exercise any of the powers, of a building surveyor under this Act that he or she is not authorised to perform or exercise under the Occupational Licensing Act 2005 .

Penalty:  Fine not exceeding 250 penalty units.

30 Functions of a building surveyor

(1)  A building surveyor must perform the following functions in respect of the work for which he or she is engaged as a building surveyor:

(a) within 7 business days after granting, issuing or amending a certificate of likely compliance, a certificate of substantial compliance, an occupancy permit or a temporary occupancy permit, provide the relevant permit authority with –

(i) a copy of the permit or certificate, or the permit or certificate as amended; and

(ii) such other documents, if any, specified by the Director of Building Control;

(b) keep a register, at his or her principal place of business, of –

(i) each certificate or permit granted, or amended, by the building surveyor under this Act; and

(ii) each determination made by the building surveyor in accordance with this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A building surveyor may perform any one or more of the following functions in respect of the work for which he or she was engaged as a building surveyor:

(a) review all documentation submitted as part of an application for a certificate of likely compliance or certificate of substantial compliance;

(b) liaise with statutory reporting authorities, councils, permit authorities and function control authorities as required;

(c) inspect proposed building work on special-use buildings or other specified buildings;

(d) inspect work relating to the re-use, occupancy or re-classification of existing buildings;

(e) give start-work authorisations to responsible persons before work commences;

(f) grant permission to responsible persons to proceed with building work at certain stages;

(g) inspect building work and demolition work and buildings and temporary structures where such work is to be, or is being, performed;

(h) certify the condition of work, or proposed work, in certain circumstances;

(i) issue permits, certificates and other documents as required under this Act;

(j) any other function specified in this Act or required by the Director of Building Control.

31 Powers of building surveyors

(1)  A building surveyor may, at all reasonable times, enter any premises or land –

(a) where there is a building, temporary structure or building work in respect of which he or she has been engaged under this Act as a building surveyor; or

(b) for the purpose of performing a function or exercising a power under this Act.

(2)  A building surveyor has the following powers when acting as a building surveyor:

(a) to issue notices or orders about work started without a permit or start-work authorisation, if required;

(b) to issue notices or orders about non-compliance with the requirements of this Act;

(c) to issue directions, in certain circumstances, to rectify non-compliant work;

(d) to take photographs, films and video recordings in any premises lawfully entered under this Act;

(e) to require the production of documents or records relating to a building, temporary structure, premises or building work;

(f) to require the production of documents or records required to be kept under this Act as if he or she were the owner of the premises in respect of which he or she has been engaged as the building surveyor;

(g) to search for, inspect, or require explanation in respect of, any record required to be kept, or produced, under this Act;

(h) to take notes, copies and extracts of or from any record, document or statement produced or required under this section.

(3)  A person to whom a request of a building surveyor is directed under subsection (2) must not, without reasonable excuse, fail to comply with the request.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

32 Building surveyor must exercise powers

A person engaged to perform the functions, and exercise the powers, of a building surveyor under this Act must, as appropriate, perform those functions and exercise those powers while so engaged.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

33 Building services provider may act as advisor

A building services provider may provide professional advice on issues of a technical or specialised nature in respect of work without being engaged as a building surveyor for the work if –

(a) he or she has not been engaged at any time, by the person seeking the advice, to perform the functions of a building surveyor under this Act in respect of the work; and

(b) another person is to be, or has been, engaged to perform the functions of a building surveyor under this Act in respect of the work.

34 Building surveyor may seek second opinion on performance solution

(1)  If a building surveyor is assessing a performance solution in respect of work, the building surveyor may seek the opinion of another building services provider, who is qualified to review such a performance solution, as to whether both the performance solution and the work –

(a) comply with the relevant performance requirements of the National Construction Code; or

(b) do not comply with those performance requirements.

(2)  The Director of Building Control may determine whether a person, or a class of persons, is qualified to review a performance solution.

35 Only one building surveyor to be engaged for work

(1)  If work is being performed on premises under this Act, the owner of the premises must engage a building surveyor, if required, for the work to be performed in accordance with this Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A person must not engage a person as a building surveyor in respect of work where a building surveyor has previously been engaged in respect of the work unless the previous building surveyor has –

(a) been removed as a building surveyor in respect of work in accordance with section 36 ; or

(b) resigned as building surveyor in respect of the work in accordance with section 37 ; or

(c) referred the work to the new building surveyor in accordance with section 38 .

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

36 Change of building surveyor at owner's request

(1)  Subject to section 38 , a person who engages a building surveyor must not remove that building surveyor from that engagement without the consent of the Director of Building Control.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  The Director of Building Control may consent under subsection (1) to the removal of a person from an engagement as a building surveyor if the Director of Building Control is satisfied on reasonable grounds that –

(a) the person is incapable of performing the functions of building surveyor for which he or she was engaged; or

(b) the person is no longer the building surveyor, or is no longer suitable to be the building surveyor; or

(c) the person is no longer qualified to perform the functions of building surveyor for which he or she was engaged; or

(d) the person has engaged in professional misconduct.

37 Change of building surveyor at building surveyor's request

(1)  Subject to section 38 , a person who has been engaged as a building surveyor by another person must not resign from that engagement without the consent of the Director of Building Control.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  Despite subsection (1) , a person who has been engaged as a building surveyor by another person may resign from that engagement, without the consent of the Director of Building Control, by notice in writing to the other person if it has been at least 3 years since his or her engagement as a building surveyor by that person.

(3)  Within 7 business days after resigning from an engagement under subsection (2) , the building surveyor is to –

(a) notify the Director of Building Control and the relevant permit authority of the resignation; and

(b) forward to the relevant permit authority copies of all documents, relevant to the building work, as specified by the Director of Building Control.

38 Change of building surveyor where both parties agree

(1)  Despite sections 36 and 37 , a person who has engaged a building surveyor in respect of work and the building surveyor so engaged may agree that work is to be referred to a new building surveyor.

(2)  An agreement under subsection (1) to refer work to a new building surveyor does not require the consent of the Director of Building Control.

(3)  A building surveyor who has entered into an agreement to refer work under subsection (1) must refer, within the specified period, the work to a new building surveyor who –

(a) has accepted the referral; and

(b) is acceptable to the other parties to the agreement.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  A person who has previously engaged a building surveyor, in respect of work to be referred under this section, must not engage a new building surveyor in respect of work unless the previous building surveyor has referred the work to the new building surveyor under subsection (3) .

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5)  Once a new building surveyor has been engaged in respect of work that is the subject of an agreement under this section, the previous building surveyor is no longer the building surveyor in respect of the work.

39 Transfer of documents in certain circumstances

(1)  If –

(a) the owner of premises has engaged a person as a building surveyor in respect of work at those premises; and

(b) another building surveyor was previously engaged in respect of that work –

the owner may request, in writing, that the previous building surveyor transfer to the new building surveyor, within the period specified in the request, specified documentation held by the previous building surveyor in respect of that work.

(2)  A person who receives a request under subsection (1) must comply with the request.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  If –

(a) a person ceases to act as a building surveyor in respect of work that is yet to be completed at premises; and

(b) the owner of the premises does not engage another person as building surveyor in respect of the work –

the person who has ceased to act as a building surveyor must provide the specified documentation held in respect of the work to the relevant permit authority for the work within 28 days after ceasing to act as building surveyor in respect of the work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

40 Notification of change of building surveyor

A person who engages a new building surveyor in respect of work under this Division –

(a) must notify the relevant permit authority of the details of the building surveyor so engaged and any other prescribed information; and

(b) if requested to do so by the relevant permit authority, is to inform another person as specified of the details of the building surveyor so engaged.

Division 4 Other authorities

41.

[Section 41 Repealed by No. 9 of 2023, s. 11, Applied:01 Oct 2024]

42 Other professionals and experts

A person who is providing a report, certificate or opinion under this Act as a professional, or expert, must ensure that he or she acts only in his or her area of expertise.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

Part 4 Parties to Work

43 Designers

(1)  A person undertaking design work under this Act is to ensure that –

(a) he or she acts only within the area of his or her competence; and

(b) so far as is reasonably practicable –

(i) the design of the building work or plumbing work is in accordance with the standards and requirements of this Act; and

(ii) the documentation relating to the design includes sufficient information for the assessment of the work in accordance with this Act; and

(iii) the documentation relating to the design is sufficiently detailed for a licensed builder or a licensed plumber to perform the work in accordance with the documents and this Act.

(2)  A person must not accept an engagement as a designer in respect of work under this Act if that work requires the person to hold a licence under the Occupational Licensing Act 2005 and the person does not hold such a licence.

Penalty:  Fine not exceeding 250 penalty units.

44 Minimum standards of design work

(1)  A person undertaking design work under this Act is responsible for ensuring that the plans and specifications, or the advice, comprising the design work are sufficient to result in work that is likely to comply with the National Construction Code, if the work is properly completed in accordance with those plans and specifications or that advice.

(2)  [Section 44 Subsection (2) substituted by No. 39 of 2018, s. 7, Applied:01 Jan 2017] If design work under this Act requires a performance solution, a person undertaking the design work is to provide, as part of the design work, a method of assessment to ensure that the performance solution is likely to comply with the National Construction Code if it is properly completed in accordance with the design work.

45 Builders

(1)  A builder is to ensure that he or she acts only within the area of his or her expertise and experience.

(2)  A builder who performs building work is to ensure that –

(a) a relevant permit, authorisation or notification is issued in respect of the work before it is commenced; and

(b) the work is performed in accordance with the relevant permit or authorisation and this Act; and

(c) the quality of the materials used in the work is in accordance with the relevant permit or authorisation and this Act; and

(d) the work is performed on land owned by the owner; and

(e) the work is performed in a manner that does not cause –

(i) a public health risk; or

(ii) a danger to the public; or

(iii) a nuisance to an adjoining owner; or

(iv) damage to infrastructure; and

(f) any directions under this Act in respect of the building work are complied with; and

(g) sufficient information is supplied to the owner for the owner to maintain the building in accordance with this Act.

(3)  A builder intending to perform building work under this Act must hold the relevant licence under this or any other Act, if required, to perform that work.

Penalty:  Fine not exceeding 250 penalty units.

46 Owner builders

In addition to the duties of an owner under section 50 , an owner builder must ensure that he or she holds a permit, if such a permit is required to perform the proposed building work, that authorises the performance of the work intended to be performed by the owner builder.

47 Minimum standards for building work

A builder who performs or supervises building work must ensure that the work is –

(a) performed in accordance with this Act and the National Construction Code; and

(b) complies with this Act, the National Construction Code and any relevant plans and specifications.

48 Licensed plumbers

(1)  A licensed plumber who performs plumbing work is to ensure that –

(a) a relevant permit, authorisation or notification is issued in respect of the work before it is commenced; and

(b) the work is performed in accordance with the relevant permit or authorisation and this Act; and

(c) the quality of the materials used in the work is in accordance with the relevant permit or authorisation and this Act; and

(d) the work is performed on land owned by the owner; and

(e) the work is performed in a manner that does not cause –

(i) a public health risk; or

(ii) a danger to the public; or

(iii) an environmental nuisance within the meaning of the Environmental Management and Pollution Control Act 1994 ; or

(iv) a nuisance to an adjoining owner; or

(v) damage to infrastructure; and

(f) any directions in respect of the plumbing work under this Act are complied with; and

(g) sufficient information is supplied to the owner for the owner to maintain the plumbing work, and plumbing installations, in accordance with this Act.

(2)  A person performing plumbing work under this Act must have the relevant licence, if required, to perform that work.

49 Minimum standards for plumbing work

A plumber who performs or supervises plumbing work must ensure that the work is –

(a) performed in accordance with this Act and the National Construction Code; and

(b) complies with this Act, the National Construction Code and any relevant plans and specifications.

50 Owners

(1)  The owner of premises where building work is performed, or is to be performed, is to ensure that –

(a) any person engaged to perform the building work, or building services work, is qualified to perform the work as required under this Act or any other Act; and

(b) information provided to any person engaged to perform the building work, and any work associated with the building work, is correct to the owner's knowledge; and

(c) the premises where the building work is to be performed are clearly identifiable; and

(d) an adjoining premises is protected in accordance with this Act if required; and

(e) the building is not occupied until an occupancy permit has been issued, if required; and

(f) sufficient information is supplied to another owner of the premises for the other owner to maintain the premises in accordance with this Act.

(2)  An owner of premises where plumbing work is performed, or is to be performed, is to ensure that the person engaged to perform the work is qualified to perform the work as required under this Act.

(3)  An owner of premises where demolition work is performed, or is to be performed, is to ensure that the person engaged to perform the work is qualified to perform the work as required under this Act.

(4)  The owner of premises, so far as is reasonably practicable, is to –

(a) ensure that the premises are used and maintained in accordance with this Act; and

(b) ensure compliance with this Act and any permits issued under this Act in respect of the premises; and

(c) notify the permit authority of any changes to the responsible person or building surveyor if work is to be performed on the premises; and

(d) if a permit has been issued in respect of work to be performed on the premises, ensure that –

(i) the work is completed before the expiry of the permit; or

(ii) the permit is extended or renewed.

51 Change of parties involved in certain building work

(1)  This section applies to premises where a building permit has been issued, or a notice of work has been given, in respect of building work to be performed at the premises.

(2)  The owner of premises to which this section applies must notify the relevant building surveyor in writing, within 14 days after engaging a person as a licensed builder to perform the work, of –

(a) the name and current business address for the licensed builder; and

(b) the licence number, issued under the Occupational Licensing Act 2005 to the licensed builder, under which the work is being performed; and

(c) any other prescribed information.

Penalty:  Fine not exceeding 20 penalty units.

(3)  The owner of premises to which this section applies, who intends to perform the work as an owner builder, must notify the relevant building surveyor in writing of –

(a) the identifying details of the owner builder permit, issued under the Occupational Licensing Act 2005 , under which he or she intends to perform the work; and

(b) any other prescribed information.

Penalty:  Fine not exceeding 20 penalty units.

(4)  If, after a building permit has been granted or a notice of work has been given to a building surveyor, but before the building work is complete –

(a) the owner of the relevant premises where the building work is performed; or

(b) an agent appointed by the owner; or

(c) the designer of the building work; or

(d) the builder of the building work –

ceases to be the owner, agent, designer or builder, as the case may be, or changes his or her name or address, he or she must notify the building surveyor and the permit authority in writing of that change.

Penalty:  Fine not exceeding 20 penalty units.

52 Change of parties involved in certain plumbing work

(1)  If –

(a) a plumbing permit has been issued in respect of permit plumbing work or a notice of work in respect of notifiable plumbing work has been given to a permit authority; and

(b) a licensed plumber is engaged to perform the plumbing work under the plumbing permit or notice of work –

the owner of the premises where the work is, or is to be, performed must, within 14 days after that engagement, give the relevant permit authority written notice of the engagement, including details of the licensed plumber's licence.

(2)  If, after a plumbing permit has been granted or a start work notification in respect of plumbing work has been given to a permit authority, but before the plumbing work is complete –

(a) the owner of the relevant premises; or

(b) an agent appointed by the owner; or

(c) the designer of the plumbing work; or

(d) the licensed plumber responsible for that plumbing work –

ceases to be the owner, agent, designer or plumber, as the case may be, or changes his or her name or address, he or she must notify the permit authority in writing of that change.

Penalty:  Fine not exceeding 20 penalty units.

Part 5 Special Categories of Work

53 Existing buildings to be upgraded if altered

(1)  This section applies to building work performed on a building if, within the previous 3 years, building work has been performed or permitted on more than half of the original volume of the building.

(1A)  [Section 53 Subsection (1A) inserted by No. 39 of 2018, s. 8, Applied:01 Jan 2017] This section does not apply to building work performed on a building if –

(a) the building work is being performed to repair damage to the building –

(i) caused by fire, wind, flood or storm or the subsidence of land, other than a subsidence caused by a failure of the owner or occupier of the building to maintain the land; or

(ii) that has not been caused by an act, or a failure to act, of the owner or an occupier of the building; and

(b) the building work is necessary in order for the building to be made suitable for habitation or safe occupation, or for use for the purposes for which it was being used before the damage referred to in paragraph (a) was caused to the building; and

(c) the building work consists of work to restore the building to the condition it was in before the damage referred to in paragraph (a) was caused to the building; and

(d) the materials, components, installations, and equipment, that are used in the building work are substantially similar to those used, in the part of the building to which the works relate, before the damage referred to in paragraph (a) was caused to the building.

(1B)  [Section 53 Subsection (1B) inserted by No. 39 of 2018, s. 8, Applied:01 Jan 2017] This section does not apply to a building, or a class of buildings, that a determination of the Director of Building Control states are exempt from the requirements of this section.

(2)  If building work to which this section applies is performed on an existing building, the owner of the building must ensure that the entire building, as part of that building work, is brought into compliance with this Act and the applicable provisions of the National Construction Code.

(3)  The building surveyor, engaged in respect of building work to which this section applies, may consent to partial compliance with the applicable provisions of the National Construction Code in respect of the work if the building surveyor is satisfied that the partial compliance is appropriate, after taking into account –

(a) the structural adequacy of the existing building; and

(b) the requirements necessary to make reasonable provision for –

(i) the amenity of the building and the safety and health of the people using, or intending to use, the building; and

(ii) appropriate measures to ensure that fire cannot spread to, or from, any adjoining building; and

(c) whether the building is a historic building.

(4)  The relevant building surveyor must not consent to partial compliance under subsection (3) in respect of building work on an existing building to which this section applies, if that work involves the extension of the existing building –

(a) where the floor area of the extension exceeds –

(i) 25 percent of the floor area of the building before the commencement of the extension; or

(ii) 1 000 square metres; or

(b) that a determination of the Director of Building Control makes ineligible for partial compliance under this section.

(5)  Nothing in this Act requires a building that is not the subject of work under this Act to be upgraded to comply with the National Construction Code unless the building is the subject of a notice, or an order, under Part 18 .

54 Alteration to existing exits and paths to exits

(1)  If proposed building work is to adversely affect any exit, or path of travel to an exit, in an existing Class 2, 3, 4, 5, 6, 7, 8 or 9 building, the building must comply with Section D of Volume One of the National Construction Code or such other provision, or standards, as may be prescribed.

(2)  The relevant building surveyor for the building work referred to in subsection (1) may consent to partial compliance with the requirements of that subsection, if the building surveyor is satisfied that the partial compliance is appropriate, after taking into account –

(a) the structural adequacy of the building; and

(b) the requirements necessary to make reasonable provision for –

(i) the amenity of the building and the safety and health of the people using, or intending to use, the building; and

(ii) appropriate measures to ensure that fire cannot spread to, or from, any adjoining building; and

(c) whether the building is a historic building.

55 Change of building use or building classification

(1)  In this section –

change of use, in respect of the use of an existing building, includes the re-use of a building where a function control authority is required, under another Act, to provide new registration, licensing or approval for that use.

(2)  A person must not cause the change of the use of an existing building, whether erected before or after the commencement of this Act, if the new use requires –

(a) a change of classification of the building; or

(b) the building to comply with different requirements within its existing classification –

and the building does not comply with this Act or the relevant provisions of the National Construction Code in respect of the changed use.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  If a change of the use of a building referred to in subsection (2) does not require permit building work or notifiable building work to be performed before the change of use, the person intending to change the use of the building must obtain a new occupancy permit for the building before changing its use.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  A building surveyor may consent to partial compliance with this Act in respect of an application for an occupancy permit that relates to a change of use of a building if the building surveyor is satisfied that the partial compliance is appropriate after taking into account –

(a) the amenity of the building and the safety and health of the people using, or intending to use, the building; and

(b) the risk of the spread of fire to, or from, the building and any adjoining building.

56 Party walls

(1)  An owner of property who intends to build a party wall on the boundary of adjoining premises is to give written notice to the owner of the adjoining premises of –

(a) [Section 56 Subsection (1) amended by No. 17 of 1996, Applied:19 Mar 2020] the intention to build the party wall; and

(b) the details of the wall that is intended to be built, including proposed materials and dimensions.

(2)  If the owner of the adjoining premises consents to the building of the party wall –

(a) the wall is to be built in the position on the boundary of the adjoining premises as agreed in writing by both parties; and

(b) the costs incurred are payable as agreed in writing by both parties; and

(c) if the party wall is to be built on land registered under the Land Titles Act 1980, an instrument creating an easement of support in respect of the wall is to be prepared, executed and registered as agreed by both parties.

(3)  An owner of property must not build a party wall on the boundary of adjoining premises if the owner of the adjoining premises –

(a) does not consent to the building of the wall; or

(b) does not agree with who is to be liable for the costs for building the wall; or

(c) if the party wall is to be built on land registered under the Land Titles Act 1980, does not agree to the preparation, execution or registration of the instrument creating an easement of support in respect of the wall as required under subsection (2)(c) .

(4)  The owner of premises who builds a party wall in accordance with this section is the owner of the party wall until –

(a) if the owner of the adjoining premises is liable for any of the costs associated with building the wall, those costs are paid; and

(b) if the party wall is built on land registered under the Land Titles Act 1980, either party applies to the Recorder of Titles under the Land Titles Act 1980 for a memorandum to be entered into the Register maintained under that Act to show the party wall on both certificates of title.

57 Party structures

(1)  An owner of premises, on which there is a party structure, may do any of the following work in relation to the party structure:

(a) make good, or repair, the party structure;

(b) pull down and rebuild the party structure;

(c) raise and underpin the party structure;

(d) perform any other necessary works incidental to the connection of the party structure to any adjoining building, structure or premises.

(2)  Before any work specified in subsection (1) is performed on premises, an owner of the premises must notify each owner of adjoining premises to the party structure in writing, at least 6 weeks before beginning to perform the work, stating –

(a) the nature and particulars of the proposed work; and

(b) the proposed program for performing the proposed work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  An owner of premises must not commence any work specified in a notice under subsection (2) more than 6 months after the notice has been given unless the owner has given a new notice to each owner of adjoining premises to the party structure under that subsection.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  An owner of premises on which there is a party structure must ensure that, when performing work specified in subsection (1) , he or she does not unnecessarily inconvenience an owner of adjoining premises to the party structure.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

58 Rights of adjoining owners

(1)  After receiving a notice under section 57(2) , an owner of adjoining premises may request, in writing to the owner performing the work, that the works –

(a) be performed in a different manner as specified in the written request; or

(b) be performed under a different program as specified in the written request.

(2)  The owner of the premises where the work is to be performed must comply with a written request under subsection (1) if to do so will not –

(a) inconvenience the owner; or

(b) cause unnecessary inconvenience or delay.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

59 Reply to notices

If a person who receives a notice under this Division does not respond in respect of the notice within the relevant period, the person is taken to have agreed to the matters specified in the notice.

60 Work on party structures to be performed if agreed

An owner of premises on which there is a party structure must not perform work on the party structure unless all owners of adjoining premises to the party structure have agreed, or are taken to have agreed, to the work.

61 Entry to premises

(1)  For the purpose of performing any work referred to in this Part, an owner performing the work may –

(a) enter and remain on any land between 8 a.m. and 6 p.m. or at other agreed times; and

(b) perform any necessary work for that purpose.

(2)  Before entering any adjoining premises for the purpose of this section, the owner must give –

(a) at least 14 days' notice to the occupier and owner of the adjoining premises; or

(b) in the case of emergency, any notice as is reasonably practicable.

(3)  In taking any action under this Division, a person, without doing any unnecessary damage, may remove any furniture or fittings or do any other thing that may be necessary to perform that work.

62 Expenses payable by owners

(1)  Any expenses incurred in taking any action under this Division are payable by the owner and the owner of adjoining premises in due proportion, taking into account the use that each owner makes or may make of the structure.

(2)  Within one month after the completion of any work, the owner is to give the owner of adjoining premises an account in writing specifying the expenses incurred.

(3)  An owner of adjoining premises is liable for all expenses incurred by the owner in relation to any additional work performed by the owner at the request of the owner of adjoining premises.

(4)  An amount payable to the owner under this section is recoverable in a court of competent jurisdiction as a debt due by the owner of adjoining premises to the owner.

63 Liability not affected

Any liability of a person to an owner or occupier of adjoining premises because of any protection work carried out continues, but the person may complete the protection work without being subject to proceedings for an injunction.

64 Saving for easements

The provisions of this Part do not affect the right of any person to –

(a) preserve any right in respect of a party wall that is demolished or rebuilt; or

(b) take any necessary steps for that purpose.

65 Resolution of differences

A difference arising between an owner and an owner of adjoining premises in respect of any matter arising out of work to which this Part relates, on application by either owner, may be heard and determined by the appeal tribunal.

66 Interpretation

In this Division –

A landslip area means an area of land declared under Part 9A of the Mineral Resources Development Act 1995 to be an A landslip area;

B landslip area means an area of land declared under Part 9A of the Mineral Resources Development Act 1995 to be a B landslip area.

67 Works in hazardous areas

A person must not perform work, or intend to perform work, in a hazardous area if the person knows, or reasonably ought to know, that the work will aggravate an attribute, or risk, of the land that resulted in the land being a hazardous area.

Penalty:  Fine not exceeding 300 penalty units.

68 Works in landslip areas

(1)  A person must not erect, alter or add to a building in an A landslip area unless authorised under this Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A person must not erect, alter or add to a building in a B landslip area unless authorised under this Act.

Penalty:  Fine not exceeding 100 penalty units.

69 Compensation not payable for certain damage to buildings erected in known landslip areas

(1)  In this section –

landslip order means an order under section 161B(1) of the Mineral Resources Development Act 1995 ;

registered means registered in accordance with section 161C of the Mineral Resources Development Act 1995 ;

revocation order means an order under section 161D(1)(a) of the Mineral Resources Development Act 1995 .

(2)  Once a landslip order declaring an area of land to be an A landslip area or B landslip area has been registered, no compensation or other relief is payable for any damage caused by earth movement to any building that is erected during the registration period in that area of land.

(3)  For the purposes of subsection (2) , the registration period is the period that commences on the day on which the landslip order is registered and ends on the day on which a revocation order in respect of that landslip order is registered.

70 Works on contaminated or undrainable premises

(1)  [Section 70 Subsection (1) amended by No. 9 of 2023, s. 12, Applied:01 Oct 2024] A person must not perform any building work on land that, in the opinion of the environmental health officer, is contaminated, unhealthy and not suitable for the purpose until the land is cleaned or remedied to the satisfaction of the permit authority of the municipal area in which the land is situated.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  [Section 70 Subsection (2) amended by No. 9 of 2023, s. 12, Applied:01 Oct 2024] A person must not perform any building work on land unless the surface of the land is capable of being drained into an existing stormwater drain or channel or other suitable outlet, to the satisfaction of the permit authority of the municipal area in which the land is situated.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

71 Works on or around building line

(1)  In this section –

| building line, in relation to a public street, means – | | (a) a line determined by a by-law or planning instrument – | | (i) as a building line; or | | (ii) as a building set-back; or | | (b) if a line is not so determined, a line which is – | | (i) 18 metres from the centre of a highway or a public street that is not within a city or town; or | | (ii) 9 metres from the middle of a public street, other than an alley, that is within a city or town; | | public street has the same meaning as in the Traffic Act 1925. |

(2)  A person must not erect a building between the building line and the boundary of a public street.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  For the purpose of determining fire protection requirements under the National Construction Code, the area between the building line and the boundary of a public street is not a fire source feature under the National Construction Code if buildings do not, and cannot lawfully, exist in that area.

72 Works that amend existing building boundary

(1)  In this section –

strata title means a property title held under the Strata Titles Act 1998 .

(2)  A person intending to change the boundary of an allotment, or of a strata title, of an existing building must obtain a building permit and perform work under this Act if the change would, without performing the work –

(a) have an adverse effect on the safety, health and amenity of persons accommodated in, or using, the existing building; or

(b) increase the risk of the spread of fire between adjacent buildings or from a fire source feature.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

(3)  Despite subsection (2) , a person must not change the boundary of an allotment, or of a strata title, of an existing building so that the building no longer complies with the provisions of this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

73 Works involving, or in proximity of, existing drains

(1)  [Section 73 Subsection (1) amended by No. 9 of 2023, s. 13, Applied:01 Oct 2024] A person must not perform any building work over an existing drain or within one metre from the edge of an existing drain measured horizontally, unless the owner of the building obtains written consent from the permit authority for the municipal area where the work is performed.

Penalty:  Fine not exceeding 50 penalty units.

(2)  [Section 73 Subsection (2) amended by No. 9 of 2023, s. 13, Applied:01 Oct 2024] The permit authority may impose any reasonable condition on written consent given under subsection (1) .

(3)  [Section 73 Subsection (3) amended by No. 9 of 2023, s. 13, Applied:01 Oct 2024] The permit authority may require an owner of a building to give a written undertaking not to hold the council liable for damage or inconvenience arising from the building work performed in accordance with the written consent of the permit authority under this section.

74 Works involving, or in proximity of, service easements

A person must not perform any building work over or within a service easement unless the person obtains written consent to do so from the person on whose behalf the service easement was created.

Penalty:  Fine not exceeding 50 penalty units.

Part 6 Protection Work

75 Interpretation

In this Part –

adjoining owner includes –

(a) the owner of adjoining premises; and

(b) the State Service Agency, council or other organisation responsible for the management of the adjoining premises; and

(c) a person appointed by the Director of Building Control as agent for such an owner under section 78 ;

adjoining premises means premises adjoining relevant premises;

protection work notice means a notice under section 77 ;

relevant premises means the premises where building work, plumbing work or demolition work is to be performed.

76 Protection work

(1)  Before any building work, plumbing work or demolition work is performed under this Act, work (protection work) must be performed to protect –

(a) adjoining premises; and

(b) persons at the premises of the work or at the adjoining premises; and

(c) members of the public that may be at, or near, the premises of the work.

(2)  The following persons must ensure that all appropriate protection work is performed before commencing any building work, plumbing work or demolition work under this Act:

(a) the owner of the premises where the building work, plumbing work or demolition work is to be performed;

(b) the responsible person for the building work, plumbing work or demolition work;

(c) the person engaged by the owner to manage the building work, plumbing work or demolition work on behalf of the owner.

(3)  The regulations may prescribe protection work that must be performed in prescribed circumstances.

(4)  This Part is in addition to any requirement under this Act, or any other Act, in relation to protection of workers or the public.

77 Notice of proposed protection work

(1)  Before performing protection work at relevant premises, the owner of the relevant premises must notify each of the following persons of the proposed protection work:

(a) each adjoining owner;

(b) if building work or demolition work is to be performed at the relevant premises, the building surveyor engaged in respect of the building work or demolition work;

(c) if plumbing work is to be performed at the relevant premises, the relevant permit authority.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A notice under subsection (1) is to –

(a) be in an approved form; and

(b) include details of the proposed building work, plumbing work or demolition work to be performed at the relevant premises; and

(c) include details of the protection work to be performed in respect of the proposed building work, plumbing work or demolition work, including –

(i) the nature and particulars of the protection work; and

(ii) the proposed program for undertaking the protection work, including its duration; and

(d) if building work or demolition work is to be performed at the relevant premises, the name of the relevant building surveyor; and

(e) if plumbing work is to be performed at the relevant premises, the name of the relevant permit authority for the plumbing work.

78 Absent or incapable adjoining owner

(1)  The owner of relevant premises may apply to the Director of Building Control for the appointment of a person as agent for an adjoining owner if –

(a) the owner of the relevant premises is unable to find an adjoining owner to notify in accordance with section 77 ; or

(b) an adjoining owner notified in accordance with section 77 is not capable of representing himself or herself for the purposes of this Part.

(2)  An application under subsection (1) is to –

(a) be in writing; and

(b) specify the reasons for the application; and

(c) contain such information as is specified by the Director of Building Control.

(3)  If satisfied after receiving an application under subsection (1) that an adjoining owner is unable to be found or is not capable of representing himself or herself, the Director of Building Control may appoint a suitable person to act as the agent for the adjoining owner for the purposes of this Part.

(4)  If the Director of Building Control appoints a person as an agent under this section, the Director of Building Control is to notify the person in writing of –

(a) the appointment; and

(b) the nature of the duties to be performed as agent under the appointment; and

(c) the fees that may be payable to the agent by the adjoining owner for the performance of those duties; and

(d) any other terms and conditions the Director of Building Control thinks appropriate.

(5)  If the Director of Building Control appoints a person as an agent under this section –

(a) the Director of Building Control is to notify the owner of the relevant premises of the appointment of the agent; and

(b) the owner of the relevant premises must notify the agent in accordance with section 77 .

(6)  The appointment of an agent under this Part is according to the terms and conditions, including the payment of fees, as are specified by the Director of Building Control in the instrument of appointment.

(7)  Nothing in this section prevents an adjoining owner from appointing, on his or her own initiative, an agent to act on his or her behalf for the purpose of this Part.

79 Adjoining owner may respond to protection work notice

(1)  An adjoining owner who receives a protection work notice may, within the prescribed period after receiving the notice, notify the owner of the relevant premises that the adjoining owner –

(a) agrees to the proposed protection work as specified in the notice; or

(b) disagrees with all, or part, of the proposed protection work as specified in the notice and, if relevant, specifies changes to be made to the proposed protection work; or

(c) requests further information in respect of the proposed protection work.

(2)  [Section 79 Subsection (2) substituted by No. 39 of 2018, s. 9, Applied:01 Jan 2017] If an adjoining owner requests further information under subsection (1)(c) , the owner of the relevant premises must –

(a) forward the request to –

(i) if the protection work relates only to plumbing work, the relevant permit authority; or

(ii) in any other case, the relevant building surveyor; and

(b) if the person receiving the request under paragraph (a) determines that the request is reasonable, provide the adjoining owner with the further information requested within the specified period; and

(c) if the person receiving the request under paragraph (a) determines that the request is not reasonable, notify the adjoining owner of that determination within the specified period.

(3)  If further information is provided under subsection (2)(b) , the adjoining owner must notify the owner of the relevant premises that the adjoining owner –

(a) agrees to the proposed protection work as specified in the notice and detailed in the further information; or

(b) disagrees with all, or part, of the proposed protection work as specified in the notice and, if relevant, specifies changes to be made to the proposed protection work.

(4)  If a request for further information was refused under subsection (2)(c) , the adjoining owner must notify the owner of the relevant premises that the adjoining owner –

(a) agrees to the proposed protection work as specified in the notice and detailed in any further information; or

(b) disagrees with all, or part, of the proposed protection work as specified in the notice and, if relevant, specifies changes to be made to the proposed protection work.

(5)  An adjoining owner who –

(a) receives a protection work notice; and

(b) fails to respond in respect of the notice within the prescribed period after receiving the notice, or such further period as is specified in this section –

is taken to have agreed to the proposed protection work as specified in the notice.

80 Protection work to be performed if agreed

An owner of relevant premises must not perform protection work, or allow protection work to be performed, in respect of the relevant premises unless all adjoining owners have agreed, or are taken to have agreed, to the protection work.

81 Effect of disagreement in relation to proposed protection work

(1)  If an adjoining owner notifies the owner of relevant premises that the adjoining owner disagrees with all, or part, of the proposed protection work, the owner of the relevant premises must –

(a) if the protection work relates to –

(i) building work or demolition work to be performed at the relevant premises, refer the matter to the building surveyor engaged in respect of the work; or

(ii) plumbing work to be performed at the relevant premises, refer the matter to the relevant permit authority; and

(b) inform the adjoining owner of the referral.

(2)  If a disagreement in relation to proposed protection work is referred to a building surveyor under subsection (1)(a)(i) , the building surveyor –

(a) may request any additional information from the owner of the relevant premises, or the adjoining owner, that the building surveyor thinks relevant; and

(b) is to provide a copy of any additional information received under paragraph (a) to the owner of the relevant premises and the adjoining owner; and

(c) is to make a determination as to how, and what type of, proposed protection work is to be performed.

(3)  If a disagreement in relation to proposed protection work is referred to a permit authority under subsection (1)(a)(ii) , the permit authority –

(a) may request any additional information from the owner of the relevant premises, or the adjoining owner, that the permit authority thinks relevant; and

(b) is to provide a copy of any additional information received under paragraph (a) to the owner of the relevant premises and the adjoining owner; and

(c) is to make a determination as to how, and what type of, proposed protection work is to be performed.

(4)  A person who makes a determination under subsection (2)(c) , or subsection (3)(c) , is to give a written copy of that determination to the owner of the relevant premises and each adjoining owner.

82 Carrying out protection work

A person carrying out protection work must carry out the protection work –

(a) as agreed under section 79 or as determined under section 81 ; and

(b) in accordance with this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

83 Insurance cover

(1)  An owner of relevant premises must ensure that he or she obtains insurance as required under subsection (2) in respect of the protection work before performing protection work, or allowing protection work to be performed, in respect of the relevant premises.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  Insurance obtained in respect of protection work –

(a) must be for an amount that is not less than the amount agreed by the owner of the relevant premises and the adjoining owners; and

(b) must cover damage by the proposed protection work to adjoining premises; and

(c) must cover any liability likely to be incurred, in respect of the protection work, to the adjoining owner and members of the public; and

(d) must not expire until at least 12 months after the completion of the protection work.

(3)  For the purposes of subsection (2)(a) , an adjoining owner is taken to agree to an amount of insurance if –

(a) the owner of the relevant premises notifies the adjoining owner in writing of the amount of insurance proposed to be obtained in respect of the protection work; and

(b) the adjoining owner fails to respond to the owner of the relevant premises, in respect of the written notification referred to in paragraph (a) , within the prescribed period.

(4)  An owner of relevant premises is to provide each adjoining owner with a copy of the insurance policy with each adjoining owner.

84 Condition of adjoining premises

(1)  Before carrying out protection work or allowing protection work to be carried out, an owner of relevant premises must –

(a) make a full and adequate assessment of each adjoining premises with the adjoining owner; and

(b) make a record of all existing cracks and defects in the adjoining premises.

(2)  A record under subsection (1)(b) must be signed by the owner of the relevant premises and the adjoining owner as an agreed record of the condition of the adjoining premises.

(3)  A record under subsection (1)(b) is taken to be signed by an adjoining owner if –

(a) the owner of the relevant premises provides the record to the adjoining owner; and

(b) the adjoining owner fails to sign the record and return it to the owner of the relevant premises within the prescribed period; and

(c) the owner of the relevant premises –

(i) signs and dates a copy of the record; and

(ii) specifies in writing, on the copy of the record, the date on which the adjoining owner was provided with the record under paragraph (a) ; and

(iii) provides the adjoining owner with a copy of the copy so signed and annotated.

(4)  A record under subsection (1)(b) signed in accordance with subsection (2) , or taken to be signed in accordance with subsection (3)  –

(a) is admissible as evidence in proceedings under this Act relating to the adjoining premises; and

(b) is evidence of the condition of the adjoining premises at the time the record was made.

85 Entry to carry out protection work

(1)  An owner of relevant premises must give at least 72 hours' notice, or such other agreed period of notice, of the intention to enter adjoining premises, including any building or structure on the premises, to perform the agreed protection work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(2)  For the purpose of carrying out any agreed protection work, a person may –

(a) enter adjoining premises between 8 a.m. and 6 p.m. or at such other times as may be agreed between the parties; and

(b) without doing any unnecessary damage, remove any furniture or fittings, or do any other thing, that may be necessary to perform the protection work.

86 Offence to prevent protection work

A person must not –

(a) prevent a person intending to perform agreed protection work from entering adjoining premises in relation to which notification has been given under section 77 ; or

(b) obstruct or hinder a person performing the protection work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

87 Plans of protection work

(1)  After protection work is completed, the owner of relevant premises must serve a complete set of drawings and specifications, showing the protection work carried out, on –

(a) each adjoining owner; and

(b) if building work or demolition work is to be performed at the relevant premises, the relevant building surveyor; and

(c) if plumbing work is to be performed at the relevant premises, the relevant permit authority.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A building surveyor who receives a complete set of drawings and specifications under this section must provide a copy of those drawings and specifications to the relevant permit authority.

88 Expenses of adjoining owner

(1)  Any costs and expenses necessarily incurred by an adjoining owner in assessing proposed protection work, and in ensuring that the protection work is carried out as agreed, are payable by the owner of the relevant premises as agreed between the parties.

(2)  If there is no agreement between the parties in respect of the payment of costs and expenses, each party may apply to the appeal tribunal to hear and determine the matter.

(3)  The costs and expenses payable to an adjoining owner are recoverable in a court of competent jurisdiction as a debt due by the owner of the relevant premises to the adjoining owner.

89 Compensation

(1)  An owner of relevant premises is to compensate an adjoining owner, or any other person, for any inconvenience, loss, or damage, suffered as a result of the protection work that has been performed.

(2)  An adjoining owner, or other person, who suffers any inconvenience, loss, or damage, as a result of protection work that has been performed may apply to the appeal tribunal to determine the amount, if any, of compensation payable.

(3)  An amount of compensation payable under this section is recoverable in a court of competent jurisdiction as a debt due by the owner of the relevant premises.

90 Failure to perform adequate protection work

The owner of relevant premises must ensure that all protection work agreed under section 79 , or determined under section 81 , is –

(a) performed in accordance with the National Construction Code; and

(b) performed and completed as agreed or determined.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

Part 7 Low-risk Work

91 Low-risk work

(1)  For the purposes of this Act, the Director of Building Control may determine that –

(a) specified building work, or a specified class of building work, is low-risk building work; and

(b) specified plumbing work, or a specified class of plumbing work, is low-risk plumbing work; and

(c) specified demolition work, or a specified class of demolition work, is low-risk demolition work.

(2)  Despite subsection (1) , work is not low-risk work if any part of the work is –

(a) notifiable work; or

(b) permit work; or

(c) emergency work.

92 Application of Act to low-risk work

Unless otherwise specified –

(a) the relevant provisions of the National Construction Code apply to low-risk work; and

(b) this Act applies to low-risk work.

Part 8 Notifiable Building Work

93 Notifiable building work

(1)  For the purposes of this Act, the Director of Building Control may determine that specified building work, or a specified class of building work, is notifiable building work.

(2)  Despite subsection (1) , building work is not notifiable building work if any part of the building work is –

(a) emergency work; or

(b) building work that is performed as part of work performed under an emergency order or a building order.

94 Requirements for notifiable building work

Notifiable building work must be –

(a) designed by a designer; and

(b) performed in accordance with this Act by a licensed builder who is licensed to perform the building work; and

(c) inspected in accordance with this Act by a building surveyor.

95 Building surveyor to be engaged in respect of notifiable building work

The owner of the premises where notifiable building work is proposed to be performed must engage a building surveyor in respect of the work before the notifiable building work commences.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

96 Notification before performing notifiable building work

A person must not perform notifiable building work unless he or she ensures that –

(a) a notice of work has been given under section 97 to the building surveyor engaged in respect of the work; and

(b) the building surveyor engaged in respect of the work has issued a certificate of likely compliance (notifiable building work) in respect of the work; and

(c) the work to be performed is the same as, or not materially different from, the work specified in that certificate of likely compliance (notifiable building work); and

(d) the work is to be performed by, or under the supervision of, the responsible person for the work.

Penalty:  Fine not exceeding 100 penalty units.

97 Notice of work

(1)  A responsible person for proposed notifiable building work must provide a notice of work to the relevant building surveyor that specifies the proposed notifiable building work to be performed.

(2)  A notice of work is to –

(a) be in an approved form; and

(b) include the prescribed information.

(3)  A responsible person for notifiable building work must provide a new notice of work to the relevant building surveyor –

(a) if the work to be performed is materially different from the work specified under the previous notice of work; or

(b) if the responsible person for the notifiable building work is to change, before the responsible person changes.

98 Certificate of likely compliance (notifiable building work)

(1)  On receipt of a notice of work under section 97 , a building surveyor is to take into account each of the following matters in relation to the proposed notifiable building work specified in the notice of work:

(a) whether the work is entirely within the definition of notifiable building work;

(b) the protection work that has been, or is to be, performed in respect of the work;

(c) any documents provided to the building surveyor with the notice of work;

(ca) [Section 98 Subsection (1) amended by No. 39 of 2018, s. 10, Applied:01 Jan 2017] if the premises where the work is performed includes a special-use building that is regulated under this Act by a function control authority in its capacity as a function control authority, any recommendation of the function control authority made in respect of the premises under section 98A ;

(d) any further information requested under subsection (2) ;

(e) any other permits, consents, or orders, in place or required under any Act in respect of the proposed work or the premises where the work is to be performed;

(f) any documents relied on by the designer of the work;

(g) any other prescribed matter.

(2)  A building surveyor may request further information in respect of a notice of work.

(3)  After taking into account the matters specified in subsection (1) in respect of notifiable building work, a building surveyor may issue a certificate of likely compliance (notifiable building work) if satisfied that –

(a) the work is not permit building work; and

(b) in the opinion of the building surveyor, all appropriate protection work has been performed in respect of the notifiable building work; and

(c) the work is likely to comply with this Act.

(3A)  [Section 98 Subsection (3A) inserted by No. 39 of 2018, s. 10, Applied:01 Jan 2017] Subsection (3)(c) does not apply in relation to work if –

(a) the premises where the work is performed includes a special-use building that is regulated under this Act by a function control authority in its capacity as a function control authority; and

(b) the work is to be performed in accordance with the recommendations of the function control authority made in respect of the premises under section 98A ; and

(c) the building surveyor is satisfied that any non-compliance with the Act is not detrimental to the safety and health of any occupant, or any future occupant, of the building.

(4)  Within 7 business days after issuing a certificate of likely compliance (notifiable building work), the building surveyor who issued the certificate must forward a copy of the certificate to the relevant permit authority.

(5)  A building surveyor may refuse to issue a certificate of likely compliance (notifiable building work) –

(a) until all fees required to be paid to the building surveyor in respect of the work have been paid; or

(b) for any other reason that is reasonable in the circumstances.

(6)  If a building surveyor refuses to issue a certificate of likely compliance (notifiable building work) under this section, he or she must notify the person responsible for the work, in writing, of the refusal and the reason for the refusal.

(7)  A certificate of likely compliance (notifiable building work) is to be in an approved form.

(8)  A certificate of likely compliance (notifiable building work) expires 12 months after it has been issued.

98A Certificate of likely compliance (notifiable building work) for certain special-use buildings

[Section 98A Inserted by No. 39 of 2018, s. 11, Applied:01 Jan 2017]

(1)  On receipt of a notice of work under section 97 that relates to the performance of proposed notifiable building work on a special-use building that is regulated under this Act by a function control authority in its capacity as a function control authority, a building surveyor is to provide, within the specified period, the relevant function control authority with –

(a) a copy of the notice of work for the proposed notifiable building work; and

(b) any other specified documents relating to the proposed notifiable building work.

(2)  Within the specified period after receiving the information referred to in subsection (1) in respect of proposed notifiable building work, the function control authority may make recommendations to the relevant building surveyor for alterations to be made to the proposed work, or the premises where the work is to be performed, to ensure that the work or premises comply with this Act or any other Act.

99 Performing notifiable building work

(1)  A person must not perform any notifiable building work, or cause or permit any notifiable building work to be performed, unless he or she –

(a) is satisfied that a certificate of likely compliance (notifiable building work) is in force in respect of the work; and

(b) has notified the relevant building surveyor that he or she intends to start the notifiable building work; and

(c) has been provided with authorisation to start the work, and a unique authorisation number for the work, by the building surveyor.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A person must perform any notifiable building work in accordance with –

(a) the most recent notice of work provided in respect of the work to the relevant building surveyor; and

(b) the certificate of likely compliance (notifiable building work) provided in respect of the work.

Penalty:  Fine not exceeding 100 penalty units.

(3)  If a responsible person for notifiable building work ceases to be the responsible person for the work –

(a) the work must stop; and

(b) the person who is to become the new responsible person for the work must notify the relevant building surveyor of that fact before permitting the work to be performed.

(4)  [Section 99 Subsection (4) amended by No. 39 of 2018, s. 12, Applied:01 Jan 2017] If notifiable building work has not been completed within 2 years after the authorisation to start the work was provided by a building surveyor under subsection (1)(c) , the responsible person for the work must obtain, from the relevant building surveyor at least 5 business days before the expiry of that period, written approval to continue with the notifiable building work after the expiry of that period.

Penalty:  Fine not exceeding 100 penalty units.

(4A)  [Section 99 Subsection (4A) inserted by No. 39 of 2018, s. 12, Applied:01 Jan 2017] If the Director of Building Control has determined that special circumstances exist, a building surveyor may give written approval under subsection (4) whether or not that approval is given at least 5 business days before the expiry of the period specified in that subsection.

(5)  The written approval of the building surveyor under subsection (4) is to specify one further period in which the notifiable building work must be completed.

(6)  If a building surveyor provides a written approval under subsection (4) , he or she is to forward a copy of the written approval to the relevant permit authority.

100 Inspection of notifiable building work

(1)  For the purpose of ensuring compliance with this Act, a building surveyor responsible for notifiable building work may, in accordance with any guidelines specified by the Director of Building Control, inspect notifiable building work being performed.

(2)  A building surveyor may inspect notifiable building work more than once, if those inspections are within the guidelines specified by the Director of Building Control.

101 Directions relating to non-compliant notifiable building work

(1)  After inspecting notifiable building work under section 100 , a building surveyor may direct the responsible person for the work to perform the building work so that it complies with –

(a) the certificate of likely compliance (notifiable building work) issued in respect of the work; and

(b) the notice of work given in respect of the work.

(2)  A direction under subsection (1) may be given orally or in writing.

(3)  A person who gives an oral direction under subsection (1) is to confirm it in writing, to the person to whom it was given, within the prescribed period.

(4)  If a person fails to comply with a direction under subsection (1) , the building surveyor may –

(a) issue a building notice under section 237 in respect of the work specified in the direction; and

(b) take any other appropriate action under this Act.

102 Completion of notifiable building work

(1)  A responsible person for notifiable building work must notify the relevant building surveyor for the work when the work is completed.

Penalty:  Fine not exceeding 100 penalty units.

(2)  After receiving notification under subsection (1) , the building surveyor is to specify, to the responsible person for the notifiable building work, when the completed work is to be inspected by the building surveyor.

(3)  The responsible person for the notifiable building work must, unless it is unreasonable in the circumstances –

(a) ensure that the work is accessible and ready to be inspected at the time specified by the building surveyor; and

(b) be present, or ensure that a qualified representative of the responsible person is present, at the work during the inspection.

(4)  A representative under subsection (3)(b) is a qualified representative if –

(a) he or she is qualified to perform or rectify, without supervision, the notifiable building work that is being inspected; and

(b) the person performing the inspection is satisfied of those qualifications.