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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Residential Apartment Buildings
(Compliance and Enforcement Powers) Bill
2020
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Meaning of "developer" 3
5 Meaning of "building work" 3
6 Act applies only to residential apartment building work 4
Part 2 Completion of residential apartment building work
7 Notification to Secretary of intended completion of building work 5
8 Notification of change to expected date 5
9 Occupation certificates and strata plan registrations not to occur in
certain circumstances 6
10 Appeals against prohibition orders 7
Part 3 Investigations
Division 1 Preliminary
11 Definitions 8
12 Purposes for which functions under Part may be exercised 8
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Contents
Page
Division 2 Authorised officers
13 Appointment of authorised officers 8
14 Scope of authority 9
15 Identification 9
Division 3 Information gathering powers
16 Exercise in conjunction with other powers 9
17 Power of authorised officers to require information and records 9
18 Power of authorised officers to require answers 9
19 Recording of evidence 10
Division 4 Entry to premises
20 Power of authorised officers to enter premises 10
21 Entry into residential premises only with permission or warrant 10
22 Search warrants 10
23 Provision of assistance to authorised officers 11
24 Powers that may be exercised on premises 11
Division 5 Miscellaneous
25 Taking possession of records to be used as evidence 12
26 Obstruction of authorised officers 13
27 Failure to comply with direction 13
Part 4 Remedial actions
28 Undertakings 14
29 Stop work orders 14
30 Appeals against stop work orders 15
31 Applying for orders to restrain or remedy contraventions 15
32 Complaints and investigations of practitioners 15
Part 5 Rectification of serious defects
Division 1 Building work rectification orders
33 Power to order rectification 16
34 Order may specify standards and building work that will satisfy those
standards 16
35 Giving and taking effect of orders 17
36 Reasons for orders to be given 17
37 Notice to be given to other persons and bodies of order 17
38 Modification of orders 18
39 Period for compliance with order 18
40 Continuing effect of orders 18
41 Occupier of land may be required to permit developer to carry out
work 18
42 Failure to comply with order--carrying out of work by Secretary 18
43 Use of building work rectification orders in proceedings 19
Division 2 Natural justice requirements
44 Notice to be given of proposed order to person who will be subject to
order 19
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Contents
Page
45 Notice to be given to other persons and bodies of proposed order 19
46 Making of written representations 20
47 Consideration of representations 20
48 Procedure after consideration of written representations 20
Division 3 Appeals
49 Appeals concerning orders 20
50 Effect of appeal on order 21
Division 4 Compliance cost notices
51 Compliance cost notices 21
52 Appeals concerning compliance cost notices 21
Division 5 Miscellaneous
53 Combined orders 22
54 Orders may be given to 2 or more persons 22
55 Notice in respect of building work caused to be carried out by more
than 1 developer 22
Part 6 Offences
56 Proceedings for offences 23
57 Penalty notices 23
58 Offences by bodies corporate 24
59 Continuing offences 24
60 Onus of proof regarding reasonable excuse 24
61 Building Commissioner 24
Part 7 Miscellaneous
62 Register of orders 25
63 Delegation 25
64 Disclosure and misuse of information 25
65 Exchange of information 26
66 Personal liability 26
67 Service of documents 27
68 Regulations 27
69 Review of Act 27
Schedule 1 Savings, transitional and other provisions 29
Schedule 2 Amendment of other legislation 31
Page 3
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2020
New South Wales
Residential Apartment Buildings
(Compliance and Enforcement Powers) Bill
2020
Act No , 2020
An Act with respect to compliance with, and the enforcement of, certain building and construction
legislation and codes; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts--
Part 1 Preliminary
1 Name of Act
This Act is the Residential Apartment Buildings (Compliance and Enforcement
Powers) Act 2020.
2 Commencement
This Act commences on 1 September 2020.
3 Definitions
(1) In this Act--
approved plans, in relation to building work, means the following--
(a) approved plans and specifications issued with respect to a construction
certificate or complying development certificate for the building work under
the Environmental Planning and Assessment Act 1979, together with any
variations to those plans and specifications for the purposes of those
certificates effected or approved in accordance with that Act,
(b) regulated designs under the Design and Building Practitioners Act 2020,
(c) any other plans prescribed by the regulations for the purposes of this
definition.
Building Code of Australia has the same meaning as in the Environmental Planning
and Assessment Act 1979.
Building Commissioner means the Building Commissioner referred to in section 61.
building element has the same meaning as in the Design and Building Practitioners
Act 2020, and includes any element of a building that is prescribed by the regulations
for the purposes of this definition.
building product means any product, material or other thing that is, or could be, used
in a building.
building work--see section 5.
building work rectification order--see section 33.
class of building means a building of that class as recognised by the Building Code
of Australia.
completion, in relation to building work, means the date that the occupation
certificate for the building or part of a building to which the building work relates was
issued.
Department means the Department of Customer Service.
developer--see section 4.
expected completion amendment notice--see section 8.
expected completion notice--see section 7.
expected date--see section 7(2).
function includes a power, authority or duty, and exercise a function includes
perform a duty.
occupation certificate means an occupation certificate issued under the
Environmental Planning and Assessment Act 1979.
owners corporation for a strata scheme means the owners corporation for the strata
scheme constituted under the Strata Schemes Management Act 2015.
prohibition order--see section 9.
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 1 Preliminary
residential apartment building means a class 2 building within the meaning of the
Building Code of Australia, and includes any building containing a part that is
classified as a class 2 component, but does not include any building or part of a
building excluded from this definition by the regulations.
Secretary means the Secretary of the Department.
serious defect, in relation to a building, means--
(a) a defect in a building element that is attributable to a failure to comply with the
performance requirements of the Building Code of Australia, the relevant
Australian Standards or the relevant approved plans, or
(b) a defect in a building product or building element that--
(i) is attributable to defective design, defective or faulty workmanship or
defective materials, and
(ii) causes or is likely to cause--
(A) the inability to inhabit or use the building (or part of the building)
for its intended purpose, or
(B) the destruction of the building or any part of the building, or
(C) a threat of collapse of the building or any part of the building, or
(c) a defect of a kind that is prescribed by the regulations as a serious defect, or
(d) the use of a building product (within the meaning of the Building Products
(Safety) Act 2017) in contravention of that Act.
stop work order--see section 29.
strata building means a building containing a lot or part of a lot that is the subject of
a strata scheme.
strata plan has the same meaning as in the Strata Schemes Development Act 2015.
strata scheme has the same meaning as in the Strata Schemes Development Act 2015.
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
4 Meaning of "developer"
For the purposes of this Act, a developer, in relation to building work, means any of
the following persons, but does not include any person excluded from this definition
by the regulations--
(a) the person who contracted or arranged for, or facilitated or otherwise caused,
(whether directly or indirectly) the building work to be carried out,
(b) if the building work is the erection or construction of a building or part of a
building--the owner of the land on which the building work is carried out at
the time the building work is carried out,
(c) the principal contractor for the building work within the meaning of the
Environmental Planning and Assessment Act 1979,
(d) in relation to building work for a strata scheme--the developer of the strata
scheme within the meaning of the Strata Schemes Management Act 2015,
(e) any other person prescribed by the regulations for the purposes of this
definition.
5 Meaning of "building work"
(1) For the purposes of this Act, building work--
(a) means any physical activity involved in the erection of a building, and
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 1 Preliminary
(b) includes work involved in, or involved in coordinating or supervising work
involved in, one or more of the following--
(i) the construction of a building or part of a building,
(ii) the making of alterations or additions to a building or part of a building,
(iii) the repair, renovation or protective treatment of a building or part of a
building.
(2) The regulations may--
(a) prescribe additional work that is building work for the purposes of this Act,
and
(b) exclude work from being building work for the purposes of this Act.
6 Act applies only to residential apartment building work
(1) The exercise of any function under this Act applies only to building work in respect
of a residential apartment building that--
(a) is or was authorised to commence in accordance with a construction certificate
or complying development certificate issued under the Environmental
Planning and Assessment Act 1979, and
(b) has not been completed or has been completed within the period of 10 years
before the exercise of that function.
(2) The regulations may provide that a specified provision, or specified provisions, of
this Act extend to other classes of buildings (within the meaning of the Building Code
of Australia).
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 2 Completion of residential apartment building work
Part 2 Completion of residential apartment building work
7 Notification to Secretary of intended completion of building work
(1) A developer in relation to building work must not cause or permit an application to
be made for an occupation certificate for any part of a residential apartment building
for which the building work is being or was carried out unless, at least 6 months, but
not more than 12 months, before that application is made, the developer notified the
Secretary, or caused the Secretary to be notified, of that proposed application (an
expected completion notice).
(2) The expected completion notice must set out the date that the developer expects to
make the application for the occupation certificate for the building or part of the
building (the expected date).
(3) Despite subsection (1), if, at the commencement of building work for a new building,
the developer expects to make the application for the occupation certificate for the
building or part of the building within less than 6 months, the developer must give
the Secretary, or cause the Secretary to be given, an expected completion notice
within 30 days of the commencement of that building work.
(4) The expected completion notice is to be given in a manner and form approved by the
Secretary.
(5) The regulations may provide that the expected completion notice may be given to
another person in the manner and form prescribed as an alternative to being given to
the Secretary.
(6) If there is more than 1 developer in relation to a residential apartment building, it is
a defence to a prosecution for an offence under this section if the defendant proves
that another developer gave the required expected completion notice to the Secretary
(or other person prescribed under subsection (5)).
Maximum penalty--1,000 penalty units (in the case of a body corporate) or 200
penalty units (in any other case).
8 Notification of change to expected date
(1) If a developer becomes aware that circumstances have changed so that the developer
expects an application for the occupation certificate for a residential apartment
building or part of a residential apartment building to be made on a different date than
the expected date specified in an expected completion notice, the developer must
notify the Secretary of the new expected date (an expected completion amendment
notice).
(2) The expected completion amendment notice must be given--
(a) within 7 days of the developer becoming aware of the change in
circumstances, and
(b) in a manner and form approved by the Secretary.
(3) The regulations may provide that the expected completion amendment notice may be
given to another person in the manner and form prescribed as an alternative to being
given to the Secretary.
(4) This section does not apply if the new expected date is within 60 days of the expected
date specified in the expected completion notice given to the Secretary in relation to
the building work.
(5) A developer may give more than 1 expected completion amendment notice in
accordance with this section and, for the purposes of any subsequent notice, a
reference in this section to the expected date specified in an expected completion
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Part 2 Completion of residential apartment building work
notice is to be taken to be a reference to the new expected date specified in the most
recent expected completion amendment notice given by the developer.
(6) If there is more than 1 developer in relation to a residential apartment building, it is
a defence to a prosecution for an offence under this section if the defendant proves
that another developer gave the required expected completion amendment notice to
the Secretary (or other person prescribed under subsection (3)).
Maximum penalty--500 penalty units (in the case of a body corporate) or 100
penalty units (in any other case).
9 Occupation certificates and strata plan registrations not to occur in certain
circumstances
(1) The Secretary may make an order prohibiting the issue of an occupation certificate
in relation to a residential apartment building and, if relevant, the registration of a
strata plan for a strata scheme in relation to a residential apartment building (a
prohibition order) if any one or more of the following apply--
(a) the expected completion notice required to be given to the Secretary under this
Part was not given or was given less than 6 months before the application for
the occupation certificate was made (unless the expected completion notice
was duly given under section 7(3)),
(b) an expected completion amendment notice of a new expected date required to
be given to the Secretary under this Part was not given or was given less than
6 months before the application for the occupation certificate was made,
(c) the Secretary is satisfied that a serious defect in the building exists,
(d) any building bond required under section 207 of the Strata Schemes
Management Act 2015 in relation to the building has not been given to the
Secretary.
(2) Without limiting subsection (1)(c), the Secretary may be satisfied that a serious
defect in a building exists if--
(a) a building work rectification order has been made in relation to the building
and has not been revoked, or
(b) a development control order under the Environmental Planning and
Assessment Act 1979 relating to defects in building work has been made in
relation to the building and has not been revoked.
(3) If the Secretary makes a prohibition order, the Secretary must give the following
persons notice of the making of the order--
(a) the relevant local council,
(b) if the local council is not the certifier in relation to the building work--the
principal certifier,
(c) a developer in relation to the building work,
(d) if the owner of the land concerned is not the developer--the owner of the land
concerned,
(e) the Registrar-General,
(f) any other person prescribed by the regulations.
(4) A prohibition order remains in force until one of the following occurs--
(a) the order is revoked by the Secretary,
(b) the term (if any) of the order ends.
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Part 2 Completion of residential apartment building work
(5) The Secretary is not required to give notice to a person under subsection (3) if the
Secretary is unable, after making reasonable inquiries, to ascertain the identity of, or
to locate, the person to whom notice would otherwise be required to be given.
(6) An occupation certificate issued in contravention of a prohibition order is invalid.
(7) A principal certifier (other than a council) must not issue an occupation certificate in
contravention of a prohibition order.
Maximum penalty (subsection (7))--1,000 penalty units (in the case of a body
corporate) or 200 penalty units (in any other case).
10 Appeals against prohibition orders
(1) A developer in relation to a residential apartment building to which a prohibition
order applies may appeal against the order to the Land and Environment Court within
30 days of notice of the order being given unless the Court grants leave for it to be
made after that time.
(2) The lodging of an appeal does not, except to the extent that the Land and
Environment Court otherwise directs in relation to the appeal, operate to stay action
on the order appealed against.
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Part 3 Investigations
Part 3 Investigations
Division 1 Preliminary
11 Definitions
In this Part--
authorised officer means--
(a) the Building Commissioner, and
(b) any person appointed under Division 2.
motor vehicle has the same meaning as in the Road Transport Act 2013.
occupier of premises means the person who has the management or control of the
premises.
premises includes--
(a) a building or structure, or
(b) land or a place (whether enclosed or built on or not), or
(c) a mobile plant, motor vehicle, vessel or aircraft.
records includes plans, specifications, maps, reports, books and other documents
(whether in writing, electronic form or otherwise).
specify an act, matter or thing includes--
(a) describe the act, matter or thing, and
(b) specify a class of acts, matters or things.
vessel means any kind of vessel used in navigation.
12 Purposes for which functions under Part may be exercised
(1) An authorised officer may exercise the functions conferred by this Part for 1 or more
of the following purposes--
(a) investigating, monitoring and enforcing compliance with the following in
carrying out building work--
(i) this Act and the regulations,
(ii) the performance requirements of the Building Code of Australia,
(iii) the relevant Australian Standards,
(iv) the relevant approved plans,
(b) investigating whether buildings have serious defects,
(c) obtaining information or records for purposes connected with the
administration of this Act,
(d) enforcing, administering or executing this Act.
(2) In this Part, a reference to an authorised purpose is a reference to a purpose referred
to in subsection (1).
Division 2 Authorised officers
13 Appointment of authorised officers
The Secretary may appoint any of the following persons as an authorised officer for
the purposes of this Part--
(a) an employee of the Department,
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Part 3 Investigations
(b) a person who is an investigator within the meaning of the Fair Trading Act
1987,
(c) a person who is a council investigation officer within the meaning of Division
9.2 of the Environmental Planning and Assessment Act 1979,
(d) a person belonging to a class of persons prescribed by the regulations.
14 Scope of authority
(1) An authorisation of a person as an authorised officer may be given generally, or
subject to conditions, limitations or restrictions or only for limited purposes.
(2) If an authorisation is given subject to conditions, limitations or restrictions or only
for limited purposes, nothing in this Act authorises or requires the authorised officer
to act in contravention of the conditions, limitations or restrictions or for other
purposes.
15 Identification
(1) Every authorised officer is to be provided with an identification card as an authorised
officer by the Secretary.
(2) The Secretary may decide not to issue an identification card to an investigator within
the meaning of the Fair Trading Act 1987 who is appointed as an authorised officer.
(3) In that case, the person's certificate of identification as an investigator is taken to be
the person's identification card as an authorised officer.
(4) An authorised officer must, if requested to do so when exercising a function under
this Act by a person affected by the exercise of the function, produce to the person
the officer's identification card as an authorised officer.
Division 3 Information gathering powers
16 Exercise in conjunction with other powers
A power conferred by this Division may be exercised whether or not a power of entry
under Division 4 is being exercised.
17 Power of authorised officers to require information and records
(1) An authorised officer may, by written notice given to a person, direct the person to
give to the officer or another authorised officer information or records (or both) as
the authorised officer may require for an authorised purpose.
(2) The notice must specify the manner in which information or records are required to
be given and a reasonable time by which the information or records are required to
be given.
(3) The notice may only require a person to give existing records that are in the person's
possession or that are within the person's power to obtain lawfully.
(4) The person to whom a record is given under this Division may take copies of it.
(5) If a record directed to be given under this Division is in electronic, mechanical or
other form, the record must be given in written form, unless the notice otherwise
provides.
18 Power of authorised officers to require answers
(1) An authorised officer may direct a person whom the authorised officer suspects on
reasonable grounds to have knowledge of matters with respect to which information
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Part 3 Investigations
is reasonably required for an authorised purpose to answer questions with respect to
those matters.
(2) An authorised officer may, by written notice, direct a person to attend at a specified
place and time to answer questions under this section if attendance at that place is
reasonably required in order that the questions can be properly put and answered.
(3) An authorised officer may, by written notice, direct a body corporate to nominate, in
writing within the time specified in the notice, a director or other officer of the body
corporate to be the body corporate's representative for the purpose of answering
questions under this section.
(4) Answers given by a person nominated under subsection (3) bind the body corporate.
(5) The place and time at which a person may be directed to attend is to be a place and
time nominated by the authorised officer that is reasonable in the circumstances.
19 Recording of evidence
(1) An authorised officer may cause questions and answers to questions given under this
Division to be recorded if the officer has informed the person who is to be questioned
that the record is to be made.
(2) A record may be made using sound recording apparatus or audio visual apparatus, or
another method determined by the authorised officer.
(3) A copy of the record must be provided by the authorised officer to the person who is
questioned as soon as practicable after it is made.
(4) A record may be made under this section despite the provisions of another law.
Division 4 Entry to premises
20 Power of authorised officers to enter premises
(1) An authorised officer may enter any premises at a reasonable hour in the daytime or
at an hour during which business (including building work) is in progress or is
usually carried on at the premises.
(2) A power to enter premises conferred by this Act authorises entry by foot, vehicle,
vessel or aircraft or by any other means.
(3) Entry to premises may be effected with or without the authority of a search warrant.
(4) When exercising a power of entry under this Division, an authorised officer may be
accompanied by any assistants that the authorised officer considers necessary.
21 Entry into residential premises only with permission or warrant
(1) This Division does not empower an authorised officer to enter a part of premises used
only for residential purposes without the permission of the occupier or the authority
of a search warrant.
(2) This section does not limit entry onto common property under a strata scheme
(within the meaning of the Strata Schemes Development Act 2015) or association
property under a scheme (within the meaning of the Community Land Management
Act 1989).
22 Search warrants
(1) An authorised officer under this Act may apply to an issuing officer for the issue of
a search warrant if the authorised officer believes on reasonable grounds that--
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Part 3 Investigations
(a) a requirement imposed by or under this Act is being or has been contravened
at any premises, or
(b) there is, in or on any premises, a matter or thing that is connected with an
offence under this Act or the regulations.
(2) An issuing officer to whom an application is made may, if satisfied that there are
reasonable grounds for doing so, issue a search warrant authorising an authorised
officer named in the warrant--
(a) to enter the premises, and
(b) to exercise any function of an authorised officer under this Part.
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
(4) Without limiting the generality of section 71 of the Law Enforcement (Powers and
Responsibilities) Act 2002, a police officer--
(a) may accompany an authorised officer executing a search warrant issued under
this section, and
(b) may take all reasonable steps to assist the authorised officer in the exercise of
the officer's functions under this section.
(5) In this section--
issuing officer means an authorised officer within the meaning of the Law
Enforcement (Powers and Responsibilities) Act 2002.
23 Provision of assistance to authorised officers
(1) An authorised officer may direct the owner or occupier of premises, or a person in or
on premises (other than a public place), to provide any reasonable assistance that the
authorised officer specifies for the purposes of exercising the authorised officer's
functions under this Division with respect to those premises.
(2) The direction may be given orally to the person or by written notice served on the
person.
24 Powers that may be exercised on premises
(1) An authorised officer may, at premises lawfully entered, do anything that in the
opinion of the authorised officer is necessary to be done for an authorised purpose,
including (but not limited to) the things specified in subsection (2).
(2) An authorised officer may do any or all of the following--
(a) examine and inspect any thing,
(b) take and remove samples of a thing,
(c) make examinations, inquiries, measurements or tests that the authorised
officer considers necessary,
(d) take photographs or other recordings that the authorised officer considers
necessary,
(e) direct a person to produce records for inspection,
(f) examine and inspect any records,
(g) copy any records,
(h) seize a thing that the authorised officer has reasonable grounds for believing
is connected with--
(i) an offence against this Act or the regulations, or
(ii) a serious defect in a building,
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Part 3 Investigations
(i) move a seized thing from the place where it is seized or leave it at the place
where it is seized and take reasonable action to restrict access to the thing,
(j) direct the occupier of the premises where a thing is seized to retain it at those
premises or at another place under the control of the occupier,
(k) open up, cut open or demolish building work, if the authorised officer has
reasonable grounds for believing that it is necessary to do so because it is
connected with--
(i) an offence against this Act or the regulations, or
(ii) a serious defect in a building,
(l) anything else authorised by or under this Act.
(3) An authorised officer may also direct a developer in relation to building work being
carried out on the premises to do the following--
(a) carry out building work at a specified time or in a specified manner to enable
the authorised officer to exercise a further function under this Part for an
authorised purpose,
(b) carry out specified building work only after giving the authorised officer
notice in advance (as specified in the direction).
(4) The power to examine and inspect a thing includes a power to use reasonable force
to break open or otherwise access a thing, including a floor or wall containing the
thing.
(5) The power to test a thing includes a power to destructively test a thing or a sample of
a thing, if that is a reasonable test in the circumstances.
(6) The power to seize a thing connected with an offence includes a power to seize--
(a) a thing with respect to which the offence has been committed, and
(b) a thing that will afford evidence of the commission of the offence, and
(c) a thing that was used for the purpose of committing the offence.
(7) The power to do a thing under this section includes a power to arrange for that thing
to be done (whether at the premises or elsewhere).
(8) A power to do something under this section with respect to a thing may be exercised
without the consent of the owner of the thing.
(9) In this section, a reference to an offence includes a reference to an offence that there
are reasonable grounds for believing has been committed.
Division 5 Miscellaneous
25 Taking possession of records to be used as evidence
(1) If an authorised officer takes possession of records under this Part for the purpose of
obtaining evidence or protecting evidence from destruction, the records may be
retained by the Secretary until the completion of any proceedings (including
proceedings on appeal) in which they may be evidence.
(2) The person from whom the records are taken must be provided, within a reasonable
time after the records are taken, with a copy of the records certified by an authorised
officer as a true copy.
(3) A copy of records provided under this section is, as evidence, of equal validity to the
records of which it is certified to be a copy.
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26 Obstruction of authorised officers
A person must not obstruct, hinder or interfere with an authorised officer in the
exercise of the authorised officer's functions under this Part.
Maximum penalty--1,000 penalty units (in the case of a body corporate) or 200
penalty units (in any other case).
27 Failure to comply with direction
A person must not, without reasonable excuse, fail to comply with a direction of an
authorised officer made in accordance with this Part.
Maximum penalty--1,000 penalty units (in the case of a body corporate) or 200
penalty units (in any other case).
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Part 4 Remedial actions
Part 4 Remedial actions
28 Undertakings
(1) The Secretary may accept a written undertaking from a developer regarding the
carrying out of building work.
(2) Without limiting subsection (1), the Secretary may accept a written undertaking
given by the developer that the developer will do either or both of the following--
(a) refrain from conduct that constitutes a contravention of this Act or the
regulations,
(b) take action to prevent or remedy a contravention of this Act or the regulations.
(3) A developer who contravenes an undertaking accepted by the Secretary commits an
offence.
Maximum penalty--1,500 penalty units (in the case of a body corporate) or 500
penalty units (in any other case).
29 Stop work orders
(1) The Secretary may, by order in writing given to a developer in relation to building
work (a stop work order), order the developer to ensure that the building work stops
if the Secretary is of the opinion that the building work is, or is likely to be, carried
out in a manner that could result in significant harm or loss to the public or occupiers
or potential occupiers of the building to which the work relates or significant damage
to property.
(2) A stop work order takes effect on the day it is given to the developer or on a later day
specified in the order.
(3) A stop work order may be unconditional or subject to conditions.
(4) The Secretary may, by written notice given to a developer who is subject to a stop
work order, impose a condition on the order or revoke or vary a condition of the
order.
(5) A stop work order remains in force until one of the following occurs--
(a) the order is revoked by the Secretary,
(b) the term (if any) of the order ends,
(c) the period of 12 months from the day on which the order takes effect ends.
(6) If the Secretary makes a stop work order, the Secretary must give the following
persons notice of the making of the order--
(a) the relevant local council,
(b) if the local council is not the certifier in relation to the building work--the
principal certifier.
(7) The Secretary is not required to give notice to a person under subsection (6) if the
Secretary is unable, after making reasonable inquiries, to ascertain the identity of, or
to locate, the person to whom notice would otherwise be required to be given.
(8) A person must not fail to comply with an order in force under this section.
Maximum penalty--3,000 penalty units and in addition, in the case of a continuing
offence, 300 penalty units for each day the offence continues (in the case of a body
corporate) and 1,000 penalty units and in addition, in the case of a continuing
offence, 100 penalty units for each day the offence continues (in any other case).
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30 Appeals against stop work orders
(1) A person given a stop work order may appeal against the order to the Land and
Environment Court within 30 days of the notice of the order being given unless the
Court grants leave for it to be made after that time.
(2) The lodging of an appeal does not, except to the extent that the Land and
Environment Court otherwise directs in relation to the appeal, operate to stay action
on the order appealed against.
31 Applying for orders to restrain or remedy contraventions
(1) The Secretary may apply to the Land and Environment Court for an order to remedy
or restrain a breach of this Act or the regulations or any order under this Act.
(2) The application may be made whether or not proceedings have been instituted for an
offence against this Act or the regulations.
(3) An order may be made without the Secretary being required to show a likelihood of
damage.
(4) If in the opinion of the Court it is desirable to do so, the Court may grant an interim
order pending determination of the application.
(5) When the Secretary applies for the grant of an order under this section, the Court is
not to require the Secretary or another person, as a condition of granting an interim
order, to give an undertaking as to damages.
(6) If the Court is satisfied that a breach has been committed or that a breach will, unless
restrained by order of the Court, be committed, it may make the orders it thinks fit to
remedy or restrain the breach.
32 Complaints and investigations of practitioners
(1) The Secretary may, whether or not the Secretary has received a complaint,
investigate the following--
(a) developers and former developers of residential apartment buildings,
(b) residential apartment buildings,
(c) the carrying out of building work (including, without limitation, building work
carried out by any contractor or subcontractor of a developer),
(d) other matters that may constitute a breach of this Act or the regulations or an
order under this Act.
(2) The Secretary may require that a complaint made to the Secretary about a matter
referred to in subsection (1) be in a form approved by the Secretary.
(3) However, the Secretary is not required to investigate a matter even if a complaint is
made in the approved form.
(4) This section does not limit other powers that the Secretary may have under this Act
or another Act or law to receive a complaint or investigate a matter.
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Part 5 Rectification of serious defects
Part 5 Rectification of serious defects
Division 1 Building work rectification orders
33 Power to order rectification
(1) If the Secretary has a reasonable belief that building work was or is being carried out
in a manner that could result in a serious defect in relation to a residential apartment
building, the Secretary may give an order under this Part to a developer in relation to
building work (a building work rectification order).
(2) A building work rectification order is an order that requires the developer in relation
to building work to carry out building work or refrain from carrying out building
work, or cause building work to be carried out or refrained from being carried out, as
specified in the order to eliminate, minimise or remediate the serious defect or
potential serious defect.
(3) A building work rectification order--
(a) is to be made by notice in writing given to the developer, and
(b) may be unconditional or subject to conditions.
(4) Without limiting subsection (3)(b), a building work rectification order may be
subject to a condition requiring notification to the Secretary of compliance with the
order.
(5) The Secretary may, by written notice given to a developer who is subject to a
building work rectification order, impose a condition on the order or revoke or vary
a condition of the order.
(6) A building work rectification order remains in force until one of the following
occurs--
(a) the order is revoked by the Secretary,
(b) the term (if any) of the order ends.
(7) A person is not required to obtain consent or approval under the Environmental
Planning and Assessment Act 1979 to carry out work in compliance with a
requirement of a building work rectification order.
(8) A building work rectification order cannot be given in respect of the following land
unless the written consent of the Minister has first been obtained--
(a) vacant Crown land within the meaning of the Crown Land Management Act
2016,
(b) Crown managed land within the meaning of the Crown Land Management Act
2016.
(9) A person must not fail to comply with an order in force under this section.
Maximum penalty--3,000 penalty units and in addition, in the case of a continuing
offence, 300 penalty units for each day the offence continues (in the case of a body
corporate) and 1,000 penalty units and in addition, in the case of a continuing
offence, 100 penalty units for each day the offence continues (in any other case).
34 Order may specify standards and building work that will satisfy those standards
(1) The Secretary may give a building work rectification order that does the following
instead of specifying in the order the building work the developer to whom the order
is given must do or refrain from doing--
(a) specifies the standard that the building work concerned is required to meet,
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(b) indicates the nature of the building work that, if carried out, would satisfy that
standard.
(2) An order under this section forms part of the building work rectification order to
which it relates.
35 Giving and taking effect of orders
(1) A building work rectification order is given by serving a copy of the order on the
developer to whom it is addressed and takes effect from the time of service or a later
time specified in the order.
(2) The copy of the building work rectification order is to be accompanied by a notice
stating--
(a) that the developer to whom the order is addressed may appeal to the Land and
Environment Court against the order, and
(b) the period within which an appeal may be made.
Note. Under section 49(2), an appeal must be made within 30 days after the building
work rectification order is given to the developer unless the Land and Environment
Court grants leave for it to be made after that time.
36 Reasons for orders to be given
(1) The Secretary must give the developer to whom a building work rectification order
is addressed the reasons for the order.
(2) The reasons may be given in the building work rectification order or in a separate
instrument.
(3) The reasons must be given when the building work rectification order is given,
except in an emergency. In an emergency, the reasons may be given within 7 days of
giving the order.
37 Notice to be given to other persons and bodies of order
(1) The Secretary must give the following persons notice of the making of a building
work rectification order--
(a) the relevant local council,
(b) if the local council is not the certifier in relation to the building work--the
principal certifier,
(c) if the owner of the land concerned is not the developer to whom the proposed
order is to be directed--the owner of the land concerned,
(d) the Registrar-General,
(e) if the order relates to a strata building--the relevant owners corporation,
(f) any other person prescribed by the regulations.
(2) If an owners corporation is given notice of the making of a building work
rectification order under subsection (1)(e), the owners corporation must give written
notice to the owners of lots in the strata scheme of the receipt of that notice not later
than 14 days after receiving the notice.
Maximum penalty--5 penalty units.
(3) The Secretary is not required to give notice to a person under subsection (1) if the
Secretary is unable, after making reasonable inquiries, to ascertain the identity of, or
to locate, the person to whom notice would otherwise be required to be given.
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38 Modification of orders
The Secretary may, at any time, modify a building work rectification order (including
a modification of the period specified for compliance with the order).
39 Period for compliance with order
(1) A building work rectification order must specify a reasonable period within which
the order must be complied with.
(2) However, a building work rectification order may require immediate compliance in
circumstances which the Secretary believes constitute a serious risk to health or
safety or an emergency.
40 Continuing effect of orders
(1) A building work rectification order that specifies a time by which, or period within
which, the order must be complied with continues to have effect until the order is
complied with even though the time has passed or the period has expired.
(2) This section does not apply to the extent that any requirement under a building work
rectification order is revoked.
41 Occupier of land may be required to permit developer to carry out work
(1) If the Secretary gives a building work rectification order, the Secretary may order the
occupier of any land to permit the developer to carry out specified work on the land,
being work that is, in the Secretary's opinion, necessary to enable the requirements
of this Act or the regulations or of any building work rectification order to be
complied with.
(2) An occupier of land on whom an order under this section is served must, within 28
days after the order is served, permit the developer to carry out the work specified in
the order.
(3) An occupier of land must not, without reasonable excuse, refuse or fail to comply
with an order in force under this section.
Maximum penalty--1,000 penalty units (in the case of a body corporate) or 200
penalty units (in any other case).
(4) If an order under this section is in force, the developer is not guilty of an offence
arising from the developer's failure to comply with the requirements of this Act or
the regulations, or of any building work rectification order, that is caused by the
occupier of the land refusing to permit the developer to carry out the work specified
in the order.
(5) Subsection (4) applies only if the developer satisfies the Court that the developer has,
in good faith, tried to comply with the requirements concerned.
42 Failure to comply with order--carrying out of work by Secretary
(1) If the Secretary gives a building work rectification order, the Secretary may do
anything that is necessary or convenient to give effect to the terms of the order
(including the carrying out of any work required by the order) if the developer to
whom the order was given fails to comply with the terms of the order.
(2) If the Secretary takes action under this section to give effect to a building work
rectification order by demolishing a building or part of a building, the Secretary may
remove any materials concerned.
(3) Materials removed that are not saleable may be destroyed or otherwise disposed of.
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(4) Any expenses incurred under this section by the Secretary, together with all
associated costs, may be recovered by the Secretary in any court of competent
jurisdiction as a debt due to the Secretary by the person required to comply with the
order.
(5) The expenses are to be reduced by the amount of any proceeds of any sale under this
section.
(6) Nothing in this section affects the owner's right to recover any amount from any
lessee or other person liable for the expenses concerned.
(7) The recovery of costs and expenses by the Secretary under this section does not
include the costs and expenses of court proceedings, but nothing in this section
prevents the Secretary from receiving costs as between party and party in respect of
those proceedings.
43 Use of building work rectification orders in proceedings
(1) A building work rectification order must be considered by the Civil and
Administrative Tribunal for the purposes of determining a building claim under Part
3A of the Home Building Act 1989 and by any other court in proceedings relating to
the building work the subject of the order, if the order is brought to the attention of
the Tribunal or the court in the proceedings.
(2) Nothing in this section binds the Tribunal or court.
Division 2 Natural justice requirements
44 Notice to be given of proposed order to person who will be subject to order
(1) Before giving a building work rectification order, the Secretary must give notice to
the person to whom the proposed order is directed of the following--
(a) the intention to give the order,
(b) the terms of the proposed order,
(c) the period proposed to be specified as the period within which the order is to
be complied with,
(d) that the person to whom the order is proposed to be given may make written
representations to the Secretary as to why the order should not be given or as
to the terms of or period for compliance with the order.
(2) The notice may provide that the written representations are to be made to the
Secretary on or before a nominated date, being a date that is reasonable in the
circumstances.
(3) The Secretary is not required to comply with subsection (1) if the Secretary believes
there is a serious risk to public safety or it is an emergency.
45 Notice to be given to other persons and bodies of proposed order
(1) The Secretary must give the following persons notice of the Secretary's intention to
make a building work rectification order--
(a) the relevant local council,
(b) if the local council is not the certifier in relation to the building work--the
principal certifier,
(c) if the owner of the land concerned is not the developer to whom the proposed
order is to be directed--the owner of the land concerned,
(d) the Registrar-General,
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(e) if the order relates to a strata building--the relevant owners corporation,
(f) any other person prescribed by the regulations.
(2) If an owners corporation is given notice of the Secretary's intention to make a
building work rectification order under subsection (1), the owners corporation must
give written notice to the owners of lots in the strata scheme of the receipt of that
notice not later than 14 days after receiving the notice.
Maximum penalty--5 penalty units.
(3) The Secretary is not required to give notice to a person under subsection (1) if the
Secretary is unable, after making reasonable inquiries, to ascertain the identity of, or
to locate, the person to whom notice would otherwise be required to be given.
46 Making of written representations
A person who is given notice under this Division of the intention to give a building
work rectification order may make written representations concerning the proposed
order in accordance with the notice.
47 Consideration of representations
The Secretary is required to consider any written representations made under this
Division.
48 Procedure after consideration of written representations
(1) After considering any written representations made concerning the proposed
building work rectification order, the Secretary may determine--
(a) to give an order in accordance with the proposed order, or
(b) to give an order in accordance with modifications made to the proposed order,
or
(c) not to give an order.
(2) If the determination is to give a building work rectification order in accordance with
modifications made to the proposed order, the Secretary is not required to give notice
under this Division of the proposed order as so modified.
Division 3 Appeals
49 Appeals concerning orders
(1) A developer who is given a building work rectification order may appeal to the Land
and Environment Court against the order.
(2) The appeal may only be made within 30 days after the building work rectification
order is given to the developer unless the Court grants leave for it to be made after
that time.
(3) On hearing an appeal, the Court may--
(a) revoke the building work rectification order, or
(b) modify the building work rectification order, or
(c) substitute for the building work rectification order any other order that the
Secretary could have given, or
(d) find that the building work rectification order is sufficiently complied with, or
(e) make any order with respect to compliance with the building work
rectification order as the Court thinks fit, or
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(f) make any other order with respect to the building work rectification order as
the Court thinks fit.
50 Effect of appeal on order
If an appeal is duly made to the Land and Environment Court against a building work
rectification order, the appeal does not effect a stay of the order.
Division 4 Compliance cost notices
51 Compliance cost notices
(1) If the Secretary gives a building work rectification order to a developer, the Secretary
may at that time or at a later date serve a compliance cost notice on the developer.
(2) A compliance cost notice is a notice in writing requiring the developer on whom it
is served to pay all or any reasonable costs and expenses incurred by the Secretary
(including remuneration and other staff expenses) in connection with--
(a) monitoring action under the building work rectification order, and
(b) ensuring that the building work rectification order is complied with, and
(c) the investigation that lead to the giving of the building work rectification
order, and
(d) the preparation of the building work rectification order, and
(e) any other matters associated with the building work rectification order.
(3) A compliance cost notice is to specify the amount required to be paid and a
reasonable period within which the amount is to be paid or, if the regulations
prescribe the period to be allowed for payment, that period.
(4) The Secretary may recover any unpaid amounts specified in a compliance cost notice
as a debt in a court of competent jurisdiction.
(5) If the developer on whom a compliance cost notice is served complies with the notice
but was not the developer who was responsible for the situation giving rise to the
issue of the notice, the cost of complying with the notice may be recovered by the
developer who complied with the notice as a debt in a court of competent jurisdiction
from the developer who was responsible.
(6) The regulations may make provision for or with respect to the following--
(a) the issue of compliance cost notices,
(b) the form of compliance cost notices,
(c) limiting the amounts that may be required to be paid under compliance cost
notices or the matters in respect of which costs and expenses may be required
to be paid under those notices.
52 Appeals concerning compliance cost notices
(1) A person on whom a compliance cost notice is served under this Division may appeal
against the notice to the Land and Environment Court within 30 days after the notice
is served on the person unless the Court grants leave for it to be made after that time.
(2) If an appeal is lodged against a building work rectification order in relation to which
a compliance cost notice has been issued--
(a) an appeal may be lodged against the compliance cost notice in the same way
as, and at the same time as, the appeal against the building work rectification
order concerned, and
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Part 5 Rectification of serious defects
(b) the Court may deal with the appeal against the compliance cost notice at the
same time as it deals with the appeal against the building work rectification
order.
(3) On hearing an appeal against a compliance cost notice, the Court may--
(a) revoke the notice, or
(b) modify the notice, or
(c) make any other order with respect to the notice as the Court thinks fit.
Division 5 Miscellaneous
53 Combined orders
The Secretary may include 2 or more building work rectification orders in the same
instrument.
54 Orders may be given to 2 or more persons
If appropriate in the circumstances, a building work rectification order may direct 2
or more people as follows--
(a) to do the thing specified in the order jointly,
(b) to both or all refrain from doing the thing specified in the order.
55 Notice in respect of building work caused to be carried out by more than 1 developer
(1) If there are 2 or more developers in relation to building work--
(a) a building work rectification order in respect of the building work is not
invalid merely because it was not given to all of those developers, and
(b) any of those developers may comply with a building work rectification order
without affecting the liability of the other developers to pay for or contribute
towards the cost of complying with the order.
(2) Nothing in this Division affects the right of a developer to recover from any other
developer all or any of the expenses incurred by the developer in complying with a
building work rectification order.
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Part 6 Offences
Part 6 Offences
56 Proceedings for offences
(1) Proceedings for an offence against this Act may be taken before the Local Court or
before the Land and Environment Court in its summary jurisdiction.
(2) Proceedings for an offence against the regulations may be taken before the Local
Court.
(3) If proceedings for an offence against this Act are brought in the Local Court, the
maximum monetary penalty the Court may impose in respect of the offence is,
despite any other provisions of this Act, 1,000 penalty units or the maximum
monetary penalty provided by this Act in respect of the offence, whichever is the
lesser.
(4) If proceedings for an offence against this Act are brought in the Land and
Environment Court in its summary jurisdiction, the Court may impose a penalty not
exceeding the maximum penalty provided by this Act in respect of the offence.
(5) Despite the Criminal Procedure Act 1986 or any other Act, proceedings for an
offence against this Act or the regulations may be commenced not later than--
(a) 3 years after the date alleged to be the date on which the offence was
committed, or
(b) after the end of that period, with the leave of the court, if the proceedings are
commenced not later than 2 years after the date on which evidence of an act or
omission constituting the alleged offence first came to the attention of an
authorised officer.
(6) If subsection (5)(b) is relied on, the court attendance notice or summons commencing
proceedings must contain particulars of the date on which evidence of an act or
omission constituting the alleged offence first came to the attention of the authorised
officer and need not contain particulars of the date on which the offence was
committed.
(7) The date on which evidence first came to the attention of an authorised officer is the
date specified in the court attendance notice or application, unless the contrary is
established.
57 Penalty notices
(1) A penalty notice officer may issue a penalty notice to a person if it appears to the
officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is
prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note. The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish
to have the matter determined by a court, the person may pay the amount specified in the
notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount
prescribed for the alleged offence by the regulations (not exceeding the maximum
amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under,
this or any other Act relating to proceedings that may be taken in respect of offences.
(6) In this section--
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penalty notice officer means any of the following persons designated by the
Secretary as a penalty notice officer for the purposes of this section--
(a) a member of staff of the Department,
(b) a person prescribed by the regulations.
58 Offences by bodies corporate
(1) If a body corporate contravenes, whether by act or omission, a provision of this Act
or the regulations, each person who is a director of the body corporate or who is
concerned in the management of the body corporate is taken to have contravened the
same provision if the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision pursuant to
subsection (1) whether or not the body corporate has been proceeded against or been
convicted under that provision.
(3) Nothing in this section affects any liability imposed on a body corporate for an
offence committed by the body corporate against this Act or the regulations.
59 Continuing offences
(1) A person who is guilty of an offence because the person fails to comply with a
requirement made by or under this Act or the regulations (whether the requirement
is imposed by a notice or in any other way) to do or cease to do something, or cause
something to cease, (whether or not within a specified period or before a particular
time)--
(a) continues, until the requirement is complied with and despite the fact that any
specified period has expired or time has passed, to be liable to comply with the
requirement, and
(b) is guilty of a continuing offence for each day the contravention continues.
(2) This section does not apply to an offence if the relevant provision of this Act or the
regulations does not provide for a penalty for a continuing offence.
(3) This section does not apply to the extent that a requirement of a notice is revoked.
60 Onus of proof regarding reasonable excuse
In any proceedings for an offence against a provision of this Act or the regulations,
the onus of proving that a person had a reasonable excuse (as referred to in the
provision) lies with the defendant.
61 Building Commissioner
A Building Commissioner is to be employed under the Government Sector
Employment Act 2013.
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Part 7 Miscellaneous
Part 7 Miscellaneous
62 Register of orders
The Secretary is to--
(a) keep a register containing--
(i) copies of all prohibition orders, building work rectification orders and
stop work orders in force, and
(ii) other information prescribed by the regulations, and
(b) cause the contents of the register to be made publicly available for inspection
free of charge by the public on the Department's website.
63 Delegation
The Secretary may delegate the exercise of any function of the Secretary under this
Act (other than this power of delegation) to--
(a) the Building Commissioner and any other person employed in the Department,
or
(b) an employee of Fire and Rescue NSW, or
(c) an employee of a council who is an authorised person under the Local
Government Act 1993, or
(d) any person, or any class of persons, authorised for the purposes of this section
by the regulations.
64 Disclosure and misuse of information
(1) A person must not disclose any information obtained in connection with the
administration or execution of this Act unless that disclosure is made--
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any disciplinary or legal proceedings arising out of this Act
or of any report of those proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
(2) A person acting in the administration or execution of this Act must not use, either
directly or indirectly, information acquired by the person in that capacity, being
information that is not generally known but if generally known might reasonably be
expected to affect materially the market value or price of any land, for the purpose of
gaining either directly or indirectly an advantage for the person, or a person with
whom the person is associated.
(3) A person acting in the administration or execution of this Act, and being in a position
to do so, must not, for the purpose of gaining either directly or indirectly an
advantage for the person, or another person with whom the person is associated,
influence the giving of any order under this Act.
(4) In this section, a person is associated with another person if the person is the spouse,
de facto partner, sibling, parent or child of the other person.
Maximum penalty--50 penalty units.
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65 Exchange of information
(1) The Secretary may provide information to a relevant agency that is reasonably
necessary for the purposes of enabling or assisting the relevant agency to regulate or
take other action in respect of one or more of the following--
(a) developers and former developers of residential apartment buildings,
(b) residential apartment buildings,
(c) the carrying out of building work (including, without limitation, building work
carried out by any contractor or subcontractor of a developer),
(d) prohibition orders,
(e) building work rectification orders,
(f) other matters prescribed by the regulations.
(2) A relevant agency may provide information to the Secretary that is reasonably
necessary for the purposes of enabling or assisting the Secretary to exercise the
Secretary's functions under this Act.
(3) Without limiting subsection (1), the Secretary may enter into an arrangement (an
information sharing arrangement) with a relevant agency for the purposes of
sharing or exchanging information held by the Secretary or the agency.
(4) Under an information sharing arrangement, the Secretary and the relevant agency
are, despite any other Act or law, authorised--
(a) to request and receive information held by the other party to the arrangement,
and
(b) to disclose information to the other party.
(5) Subsection (4) applies only to the extent that the information is reasonably necessary
to assist in the exercise of functions of the Secretary under this Act or the functions
of the relevant agency.
(6) This section does not--
(a) require the Secretary to provide information to a relevant agency only in
accordance with subsection (1), or with an information sharing arrangement,
where that information can otherwise be lawfully provided, or
(b) limit the operation of another Act or law under which a relevant agency is
authorised or required to disclose information to another person or body.
(7) In this section--
relevant agency means any of the following--
(a) a government sector agency,
(b) other persons or bodies prescribed by the regulations.
66 Personal liability
(1) A matter or thing done or omitted to be done by the following persons does not, if the
matter or thing was done or omitted to be done in good faith for the purpose of
exercising a function under this Act, subject the person or person so acting personally
to any action, liability, claim or demand--
(a) the Secretary,
(b) an authorised officer,
(c) a person acting under the direction of the Secretary or an authorised officer.
(2) However, that liability attaches instead to the Crown.
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 7 Miscellaneous
67 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be given
to any person may be given by any of the following methods--
(a) in the case of an individual--by personal delivery to the person,
(b) by post to the address specified by the person for the service of documents of
that kind,
(c) in the case of an individual who has not specified any address--by post to the
residential or business address of the person last known to the person serving
the document,
(d) in the case of a corporation--by post to the registered office or any other office
of the corporation or by leaving it at the office with a person apparently over
the age of 16 years,
(e) by email to an email address specified by the person for the service of
documents of that kind,
(f) by any other method authorised by the regulations for the service of
documents of that kind.
(2) Nothing in this section affects the operation of any provision of a law or of the rules
of a court authorising a document to be served on a person by any other method.
(3) In this section, give includes serve or send.
68 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
(2) Without limiting subsection (1), the regulations may make provision with respect to
the following--
(a) prohibition orders and building work rectification orders,
(b) notices and notifications under this Act,
(c) appeals,
(d) the keeping of records for the purposes of this Act,
(e) the keeping of registers for the purposes of this Act,
(f) the fees payable under this Act or the regulations and the refund, reduction or
waiver of any fees.
(3) A regulation may apply, adopt or incorporate a publication as in force at a particular
time or as in force from time to time.
(4) A regulation may create an offence punishable by a penalty not exceeding 200
penalty units in the case of a body corporate or 100 penalty units in any other case.
69 Review of Act
(1) The Public Accountability Committee of the Legislative Council is to review this
Act--
(a) to consider the functions exercised or delegated by the Secretary, and
(b) to determine whether the policy objectives of the Act remain valid and
whether the terms of the Act remain effective for securing those objectives,
and
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Part 7 Miscellaneous
(c) to consider the desirability of establishing an independent NSW Building
Commission to instead exercise the regulatory and oversight functions under
this Act and other Acts relating to the construction of buildings.
(2) The review is to be undertaken as soon as possible after 30 March 2022.
(3) A report on the outcome of the review is to be tabled in the Legislative Council by
30 June 2022 (or by a later day determined by the Committee).
(4) The Minister is to table in the Legislative Council a written response to the report
within 3 months after the tabling of the report.
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision has effect despite anything to the contrary in this Schedule. The
regulations may make separate savings and transitional provisions or amend this
Schedule to consolidate the savings and transitional provisions.
(3) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(4) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as--
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
Part 2 Provisions consequent on enactment of this Act
2 Transitional period
In this Part, transitional period means the period of 6 months beginning on the
commencement of this Part.
3 Existing building work
(1) Section 7 does not apply to an application for an occupation certificate for any part
of a residential apartment building made during the transitional period.
(2) A developer in relation to building work must not, during the transitional period,
cause or permit an application to be made for an occupation certificate for any part
of a residential apartment building for which the building work is being or was
carried out unless the developer notified the Secretary, or caused the Secretary to be
notified, of that proposed application within 14 days after the commencement of this
Part.
(3) Sections 7-9 apply to a developer making an application for an occupation certificate
during the transitional period--
(a) as if references in those provisions to notice under section 7 were a reference
to notice under subclause (2), and
(b) as if the references in those provisions to the notice being given less than 6
months before the application for the occupation certificate was made were a
reference to the notice being given within 14 days after the commencement of
this Part, and
(c) with all other necessary modifications.
4 Meaning of "building element" during transitional period
(1) During the transitional period, building element includes the following--
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Schedule 1 Savings, transitional and other provisions
(a) the fire safety systems for a building within the meaning of the Building Code
of Australia,
(b) waterproofing,
(c) an internal or external load-bearing component of a building that is essential
to the stability of the building, or a part of it (including but not limited to
in-ground and other foundations and footings, floors, walls, roofs, columns
and beams),
(d) a component of a building that is part of the building enclosure,
(e) those aspects of the mechanical, plumbing and electrical services of a building
that are required to achieve compliance with the Building Code of Australia,
(f) other things prescribed by the regulations for the purposes of this clause.
(2) The regulations may exclude things from being building elements for the purposes
of the Act during the transitional period.
(3) In this clause--
above grade wall means a wall above the level of the ground surrounding a building.
below grade wall means a wall below the level of the ground surrounding a building.
building enclosure means the part of the building that physically separates the
interior environment of the building from the exterior environment, including roof
systems, above grade and below grade walls (including windows and doors).
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Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 [NSW]
Schedule 2 Amendment of other legislation
Schedule 2 Amendment of other legislation
2.1 Conveyancing (Sale of Land) Regulation 2017
Schedule 3 Prescribed warranties
Insert after clause 13B--
13C A building work rectification order (within the meaning of Part 5 of the
Residential Apartment Buildings (Compliance and Enforcement Powers) Act
2020) that is in force.
2.2 Land and Environment Court Act 1979 No 204
[1] Section 18 Class 2--local government and miscellaneous appeals and applications
Insert in appropriate order in the section--
(l) proceedings under sections 10, 30, 49 and 52 of the Residential
Apartment Buildings (Compliance and Enforcement Powers) Act 2020.
[2] Section 20 Class 4--environmental planning and protection, development contract
and strata renewal plan civil enforcement
Insert in appropriate order in section 20(1)--
(dea) proceedings under section 31 of the Residential Apartment Buildings
(Compliance and Enforcement Powers) Act 2020,
[3] Section 21 Class 5--environmental planning and protection summary enforcement
Insert in appropriate order in the section--
(hfb) proceedings for an offence under the Residential Apartment Buildings
(Compliance and Enforcement Powers) Act 2020,
2.3 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search warrants under other Acts
Insert in alphabetical order--
Residential Apartment Buildings (Compliance and Enforcement Powers) Act
2020, section 22
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