Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020

Developers are the primary regulated class. Section 4 defines “developer” expansively to capture any person who contracted or arranged for, facilitated or caused building work (directly or indirectly), the land owner at the time of works, the principal contractor under the Environmental Planning and Assessment Act 1979, the strata developer under the Strata Schemes Management Act 2015, or any other prescribed person. Multiple developers may exist for one project; s 7(6) and s 8(6) provide a defence if another developer gave the required notice, while s 55 clarifies that an order need not be served on every developer and that compliance by one does not absolve others from contribution.

Owners corporations for strata schemes receive mandatory notice of prohibition orders (s 9(3)(e)), building work rectification orders (s 37(1)(e)), and proposed orders (s 45(1)(e)). They must then notify lot owners within 14 days (ss 37(2), 45(2)), with a 5 penalty unit maximum for default.

Principal certifiers and councils are both recipients of notices (ss 9(3), 37(1)) and may be directed to refrain from issuing occupation certificates while a prohibition order is in force (s 9(7), 1,000/200 penalty unit maximum). Councils may also be appointed as authorised officers (s 13(c)).

Occupiers of land may be ordered to permit developers to carry out rectification works (s 41), with penalties for refusal.

Authorised officers (including the Building Commissioner under s 61) exercise the investigative and entry powers in Part 3. They enjoy protection from personal liability when acting in good faith (s 66).

Buyers and future owners are indirect beneficiaries; the regime aims to prevent them acquiring buildings with serious defects. The 10-year look-back in s 6(1) aligns with the extended limitation periods introduced by the Design and Building Practitioners Act 2020.

Contractors and subcontractors fall within the investigative scope under s 32(1)(c) and may be the subject of information demands even if not the “developer”.

Developer duties include:

• Giving timely expected completion notices and amendment notices (ss 7, 8).
• Complying with prohibition orders (s 9), stop work orders (s 29), building work rectification orders (s 33(9)), and undertakings (s 28(3)).
• Providing information and records (s 17), answering questions (s 18), and not obstructing authorised officers (s 26).
• Paying levies (s 6A), rectification bonds where required, and compliance costs (s 51).
• Permitting access and enabling works when directed (s 24(3)).

Rights include:

• Receiving reasons for orders (s 36) and natural justice opportunities before a rectification order is made (ss 44–48, unless emergency).
• Appealing prohibition orders (s 10), stop work orders (s 30), rectification orders (s 49), and compliance cost notices (s 52) to the Land and Environment Court within 30 days (or with leave).
• Defences for multiple-developer scenarios (ss 7(6), 8(6)) and reasonable excuse for non-compliance with directions (s 27, onus on defendant per s 60).

Secretary’s duties and powers are largely discretionary but procedurally constrained. The Secretary must maintain a public register (s 62), give notices to multiple stakeholders (ss 9(3), 37(1), 45(1)), consider representations (s 47), and provide certified copies of seized records (s 25(2)). Powers are broad: to impose levies (s 6A), accept undertakings, issue orders, enter premises without warrant in business hours (s 20), destructively test samples (s 24(5)), and recover costs as a debt.

Owners corporations’ rights include receiving timely notice and the ability to make representations before orders are issued.

Penalties are calibrated by seriousness and entity type. Continuing offences attract daily loadings. Examples:

• Failure to give expected completion notice: 3,000 penalty units + 300/day (corporate) or 1,000 + 100/day (individual) (s 7).
• Breach of stop work order: 3,000 + 300/day (corporate) or 1,000 + 100/day (individual) (s 29(8)).
• Non-compliance with building work rectification order: identical loading (s 33(9)).
• Obstruction: 1,000/200 penalty units (s 26).
• Breach of undertaking: 1,500/500 penalty units (s 28(3)).
• Corporate officer accessorial liability where knowing authorisation or permission (s 58).

Proceedings may be brought in the Local Court (capped at 1,000 penalty units) or Land and Environment Court (full penalties) (s 56). Extended limitation periods apply: 3 years from offence or 2 years from when evidence first came to an authorised officer’s attention (s 56(5)–(7)).

Additional sanctions include publicity orders (s 56A), further compliance orders on conviction (s 56B), and penalty notices (s 57). The Secretary may carry out works and recover costs (s 42), realise rectification bonds, and recover levies as Crown debts (s 6A(4)). Court orders under s 31 can restrain breaches without proving damage.

The Act is expressly complementary. It cross-references the Environmental Planning and Assessment Act 1979 for definitions of approved plans, construction certificates, occupation certificates, principal contractor, and development control orders (ss 3(1), 9(2)(b)). A prohibition order renders an occupation certificate invalid (s 9(6)).

Serious defects expressly incorporate breaches of the Building Code of Australia, Australian Standards, approved plans, and the Building Products (Safety) Act 2017 (s 3(1)). Regulated designs under the Design and Building Practitioners Act 2020 form part of approved plans.

Strata linkages are pervasive: building bonds under s 207 of the Strata Schemes Management Act 2015 must be provided before occupation (s 9(1)(d)); owners corporations receive notices; strata developers are captured in the “developer” definition (s 4(d)); and registration of strata plans can be prohibited (s 9(1)).

The Home Building Act 1989 supplies the Home Building Administration Fund that receives levies (s 6A(5)) and interacts with statutory warranties and the Tribunal’s consideration of rectification orders (s 43).

Investigative powers align with the Law Enforcement (Powers and Responsibilities) Act 2002 for search warrants (s 22(3)–(4)). Information exchange is authorised notwithstanding other secrecy provisions (s 65), and the Privacy and Personal Information Protection Act 1998 is acknowledged in s 65A.

The Act does not displace the statutory duty of care created by Part 4 of the Design and Building Practitioners Act 2020 nor the 10-year limitation extensions; rather, rectification orders must be considered by NCAT in building claims (s 43(1)).

The Act has been substantially amended since commencement on 1 September 2020.

The Building Legislation Amendment Act 2021 (No 21) inserted s 6A (levies), expanded the application of Part 2 during the transitional period, increased certain penalties, and required mandatory delegation of s 9 functions to the Building Commissioner (s 63(2)). These changes responded to industry feedback that notification obligations needed financial teeth and that the regime should apply more flexibly to early-stage projects.

The Building Legislation Amendment Act 2021 (No 23) refined the “serious defect” definition, clarified rectification bond requirements in undertakings (s 28(2A)–(2B)), expanded notice provisions, and introduced publicity orders (s 56A) to name-and-shame non-compliant developers. It also adjusted natural justice procedures (s 45).

The Building and Other Fair Trading Legislation Amendment Act 2022 (No 61) substituted s 62 (register), amended ss 28, 33, 34 to allow undertakings and orders to specify standards rather than prescriptive works, extended the regime to former developers, and added s 65A (research data to universities). These amendments addressed practical difficulties in drafting workable orders and sought to improve data-driven policy making.

The 2024 amendment (No 53) updated cross-references. Each tranche responded to the ongoing cladding, waterproofing and structural defect crisis exposed by the Opal, Mascot and other towers, aiming to accelerate remediation, deter phoenixing, and fund oversight without sole reliance on lot owner litigation.

Although the Act is relatively new, several recurring issues have emerged in Land and Environment Court appeals. Section 49 appeals against rectification orders frequently contest the Secretary’s “reasonable belief” threshold and the breadth of the “serious defect” definition. Courts have emphasised that the power is conditioned on reasonable grounds (s 33(1)) and that natural justice under Division 2 must be real, not perfunctory.

Controversy surrounds the width of “developer” in s 4(a). Land owners who never intended to develop but sold land mid-project have argued they fall outside the mischief; however, the inclusive language “facilitated or otherwise caused (whether directly or indirectly)” has been read broadly. Multiple-developer scenarios generate contribution disputes post-compliance (s 55(2)).

Stop work orders (s 29) have been challenged on proportionality grounds where the risk is said to be overstated. The non-suspension of orders pending appeal (ss 10(2), 30(2), 50) has produced urgent interlocutory applications.

The interaction with NCAT proceedings under s 43 has led to arguments that a rectification order creates a de facto presumption of defect, notwithstanding the express statement that the Tribunal is not bound. Information-gathering powers under ss 17–18 have been tested against self-incrimination concerns, although the Act contains no express use-immunity provision beyond the general law.

Public register inclusion of undertakings (s 62(2)) has raised reputational damage arguments, particularly where an undertaking is accepted without admission. No superior court appellate decisions have yet settled these points, but the volume of first-instance appeals indicates ongoing tension between swift regulatory intervention and procedural fairness.

Most practitioners miss that the “developer” net in s 4(a) catches indirect facilitators — including project managers, financiers who step in, or even landowners who approve plans — unless expressly excluded by regulation. A landowner who sells to a developer mid-construction can still be captured if they “caused” the work by obtaining the initial development consent.

The 10-year look-back in s 6(1) runs from completion (defined by occupation certificate date), not practical completion or strata registration. This creates unexpected exposure for buildings completed in 2015 or later.

Section 28 undertakings containing rectification bonds are enforceable as offences (s 28(3)) yet also create a contractual security interest. The circumstances for calling on the bond must be spelled out; vague drafting risks Court scrutiny on appeal.

Natural justice is excluded only for “serious risk to public safety or emergency” (s 44(3)). Regulators sometimes over-use this carve-out; an order issued without notice can be struck out even if a serious defect exists.

Compliance cost notices (s 51) can capture the Secretary’s own staff time and are recoverable as debts. Developers who comply with an order issued to another co-developer may still face a notice and must then sue for contribution (s 51(5)).

The register under s 62 is not limited to current orders; spent orders can remain visible, affecting financing and insurance. Section 65A now permits de-identified data to be shared with universities, raising subtle confidentiality issues for ongoing investigations.

Finally, s 43 requires NCAT and courts to “consider” a rectification order but does not bind them. However, in practice an un-appealed order carries significant evidentiary weight, often shifting the onus in defect litigation.

Developers should implement a governance protocol that triggers an expected completion notice as soon as the construction certificate is issued or, at latest, within 30 days of commencement if the project is fast-track (s 7(3)). Maintain a rolling 6–12 month forecast and diarise the 7-day amendment obligation under s 8(1). Where multiple developers exist, obtain written agreements allocating notification responsibility and retain evidence for the s 7(6) defence.

Engage independent building consultants early to audit against the four limbs of “serious defect” in s 3(1). If a potential defect is identified, consider a voluntary undertaking under s 28 before the Secretary acts; include a detailed rectification bond mechanism that limits call triggers to objective criteria (e.g. un-appealed rectification order).

For rectification orders, treat the 30-day appeal window (s 49(2)) as immovable absent leave. If an order specifies a performance standard rather than works (s 34), submit the expert report within the compliance period; late submission itself constitutes non-compliance.

Maintain comprehensive records of all building elements (fire safety, waterproofing, load-bearing components per the transitional definition in Sch 1 cl 4) to respond to s 17 notices within the stipulated reasonable time. Train site personnel on authorised officer entry rights and the obligation to provide reasonable assistance (s 23).

Owners corporations should establish a standing instruction to forward Secretary notices to lot owners within 14 days and to consider making representations under s 46. Certifiers must embed prohibition order checks before issuing occupation certificates.

All parties should monitor the public register (s 62) and the Department’s approved forms for notices. Because levies under s 6A can be imposed by regulation on classes of developers, factor potential levy exposure into project budgeting. Finally, obtain specific legal sign-off on any proposed sale or strata registration where an expected completion notice has not been given at least six months earlier; the invalidity consequence under s 9(6) is absolute.