Part 11Building activity and use—special provisions

Part 11—Building activity and use—special provisions Division 1—Preliminary 145—Interpretation In this Part— council means, in relation to any development or building that is not within the area of a council, a person or body, or a person or body of a class, prescribed by the regulations for the purposes of this definition. Division 2—Notifications 146—Notification during building (1) If building work is being carried out within the area of a council, then— (a) a licensed building work contractor who is carrying out the work or who is in charge of carrying out the work; or (b) if there is no such licensed building work contractor, the building owner, must, in accordance with a scheme prescribed by the regulations, notify the council within the prescribed period of the commencement or completion of a prescribed stage of work (a mandatory notification stage). (2) The notification must, if the regulations so require, be accompanied or supported by a statement (a statement of compliance) from a person who holds prescribed qualifications that the building work has been carried out in accordance with the requirements of this Act. (3) Subject to subsection (4), a person who is carrying out building work must, if directed to do so by the council, stop building work when a mandatory notification stage has been reached pending an inspection by an authorised officer who holds prescribed qualifications. (4) An authorised officer must carry out an inspection under subsection (3) within 24 hours after a direction is given under that subsection and, if such an inspection is not carried out within that time, the person may proceed with the building work. Division 3—Party walls and similar matters 147—Construction of party walls (1) If the owner of any land proposes to build a party wall, or to convert an existing structure into a party wall, on any part of the line of junction between the land and adjoining land, the following provisions apply: (a) the owner (being the building owner) must serve notice on the adjoining owner, describing the proposed wall; and (b) if the adjoining owner consents to the building of the party wall, the wall must be built in the position agreed between the two owners; and (c) the cost of building the party wall is to be borne by the 2 owners in due proportion, taking into account the use that is likely to be made of the wall by each owner; and (d) a party wall cannot be built by the building owner without the consent of the adjoining owner; and (e) the owners must create easements of support in respect of the party wall over their respective land and cause the easements to be registered under the Real Property Act 1886 or lodged under the Registration of Deeds Act 1935 (as the case may require) and the building owner is, in the absence of contrary agreement, liable for the expenses of, and incidental to, the registration. (2) Where a party wall was lawfully built before 1 January 1974 and conforms with the law of this State as in force at the time of its erection, either owner may require the adjoining owner to create, and cause to be registered under the Real Property Act 1886 or lodged under the Registration of Deeds Act 1935 (as the case may require), an easement of support over his or her land in respect of the party wall, and the adjoining owner must comply with that requirement. 148—Rights of building owner (1) Subject to obtaining any appropriate approval under this Act (and otherwise complying with this Act), a building owner has the following rights in addition to, and without prejudice to, any rights under any other Act or at common law: (a) a right to make good, underpin or repair any party wall that is defective or out of repair; and (b) a right to pull down and rebuild any party wall that is so defective or out of repair that it is necessary or expedient to pull it down; and (c) a right to raise and underpin a party wall; and (d) a right to pull down a party wall that is of insufficient strength for a proposed building (but the building owner must then rebuild a party wall of sufficient strength); and (e) a right to cut into a party wall; and (f) a right to perform any other work in relation to the party wall prescribed by the regulations. (2) A building owner has a right, by virtue of this subsection— (a) to instal flashings between 2 buildings, including a building on an adjoining allotment; and (b) without limiting paragraph (a), to instal a flashing so that it overlaps a boundary. (3) The building owner is liable to make good any damage to adjacent premises, and the contents of adjacent premises, caused by the exercise of a right under this section. (4) The building owner cannot, except with the consent in writing of the adjoining owner, exercise any right under this section unless, before doing so, he or she has served personally or by post on the adjoining owner a notice in writing stating the nature and particulars of the proposed work and when it is to commence in accordance with any requirements prescribed by the regulations. (5) If a building owner proposes to exercise a right conferred under this section, the adjoining owner may, by notice in writing served personally or by post on the building owner, require the building owner to carry out such other work on, or in relation to, any party wall as may be reasonably necessary for the convenience of the adjoining owner, and the building owner must comply with that requirement except where to do so would cause loss or damage to the building owner, or would cause undue inconvenience or delay. (6) The adjoining owner is liable for all expenses incurred by the building owner under subsection (5). (7) The building owner must, in the exercise of any right under this section, take reasonable steps to protect any adjoining land or premises. (8) A building owner must not exercise any right under this section in such manner, or at such time, as will cause unnecessary inconvenience to the adjoining owner or occupier, and must perform any building work with due diligence. 149—Power of entry (1) A building owner, or an authorised agent or employee, may, at any reasonable time, enter and remain on the land or premises of the adjoining owner for the purpose of performing any work in accordance with this Division, and may perform any act that the nature of the work requires. (2) The building owner must serve, on the adjoining owner in accordance with the regulations, before entering on the land or premises of the adjoining owner or, in the case of an emergency, as early as possible, notice of intention to enter the land or premises of the adjoining owner, stating the time at which the building owner proposes to enter the land or premises in accordance with any requirements prescribed by the regulations. (3) The building owner, or an authorised agent or employee, accompanied by a member of the police force, may break into the premises of the adjoining owner. 150—Appropriation of expense (1) The expense of building a party wall, or carrying out any work in relation to a party wall, is to be borne in due proportion by the adjoining owners, having regard to the use that each owner is to make of the party wall. (2) The building owner must, within 28 days after the completion of any work in respect of which a contribution is payable by the adjoining owner, serve on the adjoining owner in accordance with the regulations an account showing the cost of the building work and the proportion of that cost that the building owner claims to be payable by the adjoining owner. (3) If after the expiration of 28 days from the service of the account the account remains unpaid, the building owner may, by action in any court of competent jurisdiction, seek a determination of the amount payable to him or her by the adjoining owner, and recover that amount as a debt. Division 4—Classification and occupation of buildings 151—Classification of buildings (1) Subject to this section, a building must have a classification determined in accordance with the regulations. (2) A council may assign to a building erected in its area a classification that conforms with the regulations. (3) If a council assigns a classification under this section, the council must give notice in writing to the owner of the building to which the classification has been assigned, of the classification assigned to the building. (4) Except with the consent of the owner, a classification cannot be assigned to a building erected before 1 January 1974 if, as a result of the classification being assigned to the building, the building could not continue to be used for a purpose for which it was lawfully being used before assignment of the classification. (5) The owner of a building must not permit the building to be occupied unless the building is constructed, maintained and operated in accordance with the classification appropriate to its use. Default penalty: $100. 152—Certificates of occupancy (1) A person must not— (a) occupy a building on which building work is carried out after the commencement of this section unless an appropriate certificate of occupancy has been issued for the building, or the building is of a type excluded by the regulations from the requirements as to certificates of occupancy; or (b) occupy a building in contravention of a certificate of occupancy. (2) A certificate of occupancy will be issued by a council. (3) An application for a certificate of occupancy must— (a) include any information required by the council; and (b) be accompanied by such certificates, reports or other documentation as the regulations may require; and (c) be accompanied by the appropriate fee. (4) The regulations may provide that a report or consent from a prescribed agency or authority must be obtained in accordance with the regulations before the application can be granted (but if a report or consent is not received from the agency or authority within a period prescribed by the regulations, it will be presumed, unless the agency or authority indicates otherwise, that the agency or authority does not desire to make a report or consents (as the case requires)). (5) The council must consider any report supplied under subsection (4) before deciding the application. (6) The council must issue the certificate if it is satisfied (in accordance with procedures set out in the regulations and on the basis of information provided or obtained under this section) that the relevant building is suitable for occupation and complies with such requirements as may be prescribed by the regulations for the purposes of this provision. (7) A certificate of occupancy does not constitute a certificate of compliance with the Building Rules. (8) The regulations may specify the time within which an application should be decided under this section. (9) An application will be taken to have been refused if not decided within the time specified by the regulations. (10) A council which refuses an application must notify the applicant in writing of— (a) the refusal; and (b) the reasons for the refusal; and (c) the applicant's right of appeal under this Act. (11) Any appeal under this section must be commenced within 28 days after a notice is given to the appellant under subsection (10) unless the Court allows an extension of time. (12) A certificate of occupancy may apply to the whole or part of a building. (13) A council may, in accordance with the regulations, revoke a certificate of occupancy in prescribed circumstances. 153—Temporary occupation (1) A person may, with the approval of a council, occupy a building on a temporary basis without a certificate of occupancy. (2) An approval under subsection (1)— (a) may only be given if the council is satisfied that the relevant building complies with any requirements prescribed by a practice direction issued for the purposes of this paragraph; and (b) may be given on such conditions (if any) as the council thinks fit to impose. (3) A council which refuses an application must notify the applicant in writing of— (a) the refusal; and (b) the reasons for the refusal; and (c) the applicant's right of appeal under this Act. (4) Any appeal under this section must be commenced within 28 days after a notice is given to the applicant under subsection (3) unless the Court allows an extension of time. 154—Building certifiers (1) A building certifier may exercise the powers of a council under this Division in relation to— (a) a building owned or occupied by the Crown, or an agency or instrumentality of the Crown; or (b) a building in relation to which the building certifier has issued a building consent; or (c) a building in circumstances prescribed by the regulations. (2) For the purposes of the operation of subsection (1)— (a) a reference in this Division to a council will be taken to include a reference to a building certifier acting under subsection (1); and (b) a decision of a building certifier under this Division has the same effect and is subject to appeal in the same way as a decision of the council that would otherwise be exercising the relevant function under this Division; and (c) a building certifier is subject to the same duties and requirements as the council that would otherwise be exercising the relevant function under this Division. Division 5—Emergency orders 155—Emergency orders (1) An authorised officer may make an emergency order under this section if the authorised officer is of the opinion that the order is necessary— (a) because of a threat to safety arising out of the condition or use of a building or an excavation; or (b) because of a threat to any State heritage place or local heritage place. (2) However, the power conferred by subsection (1)(a) may only be exercised by an authorised officer who holds prescribed qualifications. (3) An emergency order may require the owner of any building or land to do any 1 or more of the following things: (a) evacuate the building or land; (b) not to conduct or not to allow the conduct of a specified activity or immediately terminate a specified activity; (c) carry out building work or other work. (4) An emergency order may also prohibit the occupation of a building or land or the use of a building or land for a specified activity, or an activity of a specified class. (5) If an owner fails to carry out work as required by an emergency order, the council may cause the necessary work to be carried out. (6) The reasonable costs and expenses incurred by the council (or any person acting on behalf of the council) under this section may be recovered by the council as a debt due from the owner. (7) If an amount is recoverable from a person by the council under this section— (a) the council may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate on the amount unpaid; and (b) the amount together with any interest charge so payable is, until paid, a charge in favour of the council on any land owned by the person. (8) On completion of any work required to be carried out by an emergency order, the owner must notify the authorised officer in writing. Maximum penalty: $2 000. (9) An order under this section must be given in writing unless the authorised officer considers that urgent action is required, in which case it may be given orally. (10) If the direction is given orally under subsection (9), the authorised officer who gave the direction must confirm the direction by notice in writing by 5 pm on the next business day. (11) An appeal against an order under this section must be commenced within 14 days after the order is given to the appellant unless the Court allows a longer time for the commencement of the appeal. (12) Subject to an order of the Court to the contrary, the operation of an order under this section is not suspended pending the determination of an appeal. (13) A person who contravenes or fails to comply with an order under this section is guilty of an offence. (14) It is a defence to a prosecution under subsection (13) if the defendant satisfies the Court that he or she was unaware of the fact that an activity in respect of which the offence arose was the subject of an order under this section. (15) In this section— building includes a building in the course of construction; excavation includes a well or hole. Division 6—Swimming pool and building safety 156—Designated safety requirements designated owner means— (a) in relation to a swimming pool— (i) if the swimming pool is a fixture to, or forms part of, land—the owner of the land; (ii) in any other case—the owner of the structure that constitutes the swimming pool; and (b) in relation to a building—the owner of the building; prescribed event means an event or circumstance prescribed by the regulations as constituting a prescribed event for the purposes of this section. (2) Without limiting any provision of the Building Code or a Ministerial building standard, the regulations may specify requirements that are to apply in relation to designated safety features for swimming pools or buildings. (3) In particular, the regulations may— (a) require a designated owner of a swimming pool or building to ensure that designated safety features are installed and maintained in accordance with prescribed requirements; and (b) require the owner of an existing swimming pool or building— (i) to ensure that designated safety features are installed, replaced or upgraded before, or on the occurrence of, a prescribed event; or (ii) to install, replace or upgrade designated safety features within a prescribed period. (4) A person who contravenes, or fails to comply with, a requirement under this section (including a requirement prescribed by the regulations) is guilty of an offence. Maximum penalty: $15 000. (5) The Commission may issue a practice direction that requires councils to carry out inspections of swimming pools and buildings to ascertain compliance with this section. (6) A practice direction may make different provision in relation to different councils (or groups of councils). (7) A council must comply with the requirements of a practice direction as it relates to the council. (8) Nothing in this section limits a power under another section to take action in relation to the safety of any place or building. 157—Fire safety (1) An authorised officer who holds prescribed qualifications or a member of an appropriate authority may, at any reasonable time, enter and inspect any building for the purpose of determining whether the fire safety of a building is adequate. (2) An authorised officer who holds prescribed qualifications must conduct an inspection of a building under subsection (1) at the request of an appropriate authority or a fire authority. (3) If an appropriate authority is satisfied that the fire safety of a building is not adequate, the appropriate authority may cause a notice to be served on the owner of the building. (4) A notice under subsection (3) may— (a) require the owner to report to the appropriate authority on the work or other measures necessary to ensure that the fire safety of the building is adequate; or (b) in the case of an emergency— (i) require the owner to carry out a program of work, or to take any other measure, to overcome any fire hazard; or (ii) require the evacuation of the building; or (iii) prohibit the occupation or use of the building or a part of the building until the appropriate authority is satisfied that the fire hazard no longer exists; or (iv) require the owner to take such other action prescribed by the regulations. (5) A report under subsection (4)(a) must be provided to the appropriate authority within 2 months, or within such longer period as the appropriate authority may allow. Maximum penalty: $2 500. (6) The owner may, during the period referred to in subsection (5), make representations to the appropriate authority about the fire safety of the building and the work or other measures to be carried out or taken. (7) An appropriate authority may, after receiving a report under subsection (4) (or, in the event of a failure to provide a report in accordance with this section), by notice given to the owner of the building— (a) require the owner to seek an appropriate development authorisation under this Act and, if granted, to carry out a program of work or to take other measures to ensure that the fire safety of the building is adequate; or (b) prohibit the occupation or use of the building or a part of the building until the appropriate authority is satisfied that any fire hazard no longer exists; or (c) require the owner to take such other action prescribed by the regulations. (8) On completion of any work required to be carried out by a notice under this section, the owner must notify the appropriate authority in writing. Maximum penalty: $2 500. (9) An appropriate authority may, at the request of the owner, vary a notice under this section or may, on its own initiative, revoke a notice if satisfied that it is appropriate to do so. (10) An appeal against a notice under this section must be commenced within 14 days after the notice is given unless the Court allows longer time for the commencement of the appeal. (11) Subject to any order of the Court to the contrary, the operation of a notice under this section is not suspended pending the determination of an appeal. (12) A person who contravenes or fails to comply with a notice under subsection (4)(b) or (7) is guilty of an offence. (13) This section does not authorise any action inconsistent with the Heritage Places Act 1993 or a provision of the Planning and Design Code that relates to heritage. (14) Any action taken under this section should seek to achieve (in the following order of priority)— (a) firstly, a reasonable standard of fire safety for the occupiers of the relevant building; (b) secondly, the minimal spread of fire and smoke; (c) thirdly, an acceptable fire fighting environment. (15) No matter or thing done or omitted to be done by an appropriate authority in good faith in connection with the operation of this section subjects the authority to any liability. (16) For the purposes of this section, an appropriate authority is a body established by a council, or by 2 or more councils, under subsection (17) and designated by the council or councils as an appropriate authority under this section. (17) The following provisions apply with respect to the establishment of an appropriate authority: (a) the appropriate authority will be constituted of— (i) a person who holds prescribed qualifications in building surveying appointed by the council or councils; and (ii) an authorised officer under Part 3 Division 5 or section 86 of the Fire and Emergency Services Act 2005 who, depending on the location of the council area or areas, has been approved by the Chief Officer of the relevant fire authority to participate as a member of the appropriate authority; and (iii) a person with expertise in the area of fire safety appointed by the council or councils; and (iv) if so determined by the council or councils—a person selected by the council or councils; (b) the council or councils may specify a term of office of a member of the appropriate authority (other than a member under paragraph (a)(ii)); (c) the office of a member of the appropriate authority (other than a member under paragraph (a)(ii)) will become vacant if the member— (i) dies; or (ii) completes a term of office and is not reappointed; or (iii) resigns by written notice addressed to the council or councils; or (iv) is removed from office by the council or councils for any reasonable cause; (d) deputy members may be appointed; (e) subject to a determination of the council or councils—the appropriate authority may determine its own procedures (including as to quorum). (18) A member of an appropriate authority who has a personal interest or a direct or indirect pecuniary interest in any matter before the appropriate authority (other than an indirect interest that exists in common with a substantial class of persons) must not take part in any deliberations or decision of the authority in relation to that matter. Division 7—Liability 158—Negation of joint and several liability in certain cases (a) building work is defective; and (b) the defect or defects arise from the wrongful acts or defaults of 2 or more persons; and (c) those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and (d) an action is brought against any 1 or more of those persons to recover damages for that damage or loss, the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss. (2) An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section. 159—Limitation on time when action may be taken (1) Despite the Limitation of Actions Act 1936, or any other Act or law, no action for damages for economic loss or rectification costs resulting from defective building work (including an action for damages for breach of statutory duty) can be commenced more than 10 years after completion of the building work. (2) This section does not affect an action to recover damages for death or personal injury resulting from defective building work. (3) The period prescribed by subsection (1) cannot be extended.