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Building and Other Legislation Amendment Bill (No. 2) 2010
Building and Other Legislation
Amendment Bill (No. 2) 2010
Explanatory Notes for amendments to be
moved during consideration in detail by the
Honourable Stirling Hinchliffe MP
Short Title
The short title of the Bill is the Building and Other Legislation Amendment
Act (No.2) 2010.
Objectives of the Amendments
The objectives of the amendments to be moved during consideration in
detail are set out below.
Enforcement of the sale / lease provisions
· The amendments will transfer part of the responsibility for
enforcement from the Department administering the Act to local
governments who are best placed to conduct physical inspections. The
Department will continue to share with local governments the
enforcement of activities that do not involve physical inspection and
compliance assessing expertise (certificates and immersion incident
reporting). Local governments will assume sole responsibility for
enforcing compliance likely to involve actual physical attendance and
inspection at regulated properties.
Impracticality exemption applications
· The amendments will transfer the responsibility for assessing these
applications from the Department administering the Building Act
1975 (BA) to local governments who are best placed to conduct
physical inspections. In this way, the model for assessing
impracticability exemptions will be consistent with the existing
disability exemption model.
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Building and Other Legislation Amendment Bill (No. 2) 2010
Access to regulated pools to be kept secure
· The amendments will incorporate and clarify the existing offence
provision in section 245 of the BA dealing with the requirement to
keep swimming pool gates securely closed when a pool is not in use.
The new provision will apply to all `regulated pools', which includes
pools associated with hotels, motels, other residential buildings,
caretaker residences, caravan parks and indoor pools. Also, the
amendment will clarify how the newly incorporated provision will
apply to pools in a multiple residential building. The new section will
retain the current section 245T in the Bill as subsection (1) with minor
amendment.
Allocation of funds
· The intention of this amendment in the Bill as drafted was to expand
the range of matters for which the pool safety fund could be used.
However, the scope currently provided in the BA is now considered
adequate for the pool safety purposes for which the fund was
established.
Notification to prospective purchasers
· During consultation on the Bill stakeholders raised concerns that
prospective purchasers could find themselves bound to a contract of
sale, before becoming aware of their obligations regarding
compliance. To address this risk this amendment introduces a narrow
regulation-making power to require pre-contractual disclosure notices
to be provided to any purchasers. This provision will be available in
the event that stakeholder concerns are not addressed by
non-legislative practices, for example inclusion of appropriate clauses
in industry standard documentation.
Display of pool safety certificates
· The Bill, as drafted, obliges individual lot owners in multiple
residential buildings with a shared pool to cause any pool safety
certificate in existence to be conspicuously displayed near the main
entrance to the premises or near each pool gate before entering into an
accommodation agreement. This amendment imposes the obligation
instead on the body corporate, which is best placed to display notices
in the `common area' of a building. Also, to reduce the burden on pool
owners, the requirement may be satisfied by displaying the certificate
near one pool gate rather than every gate.
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Building and Other Legislation Amendment Bill (No. 2) 2010
Pool safety management plans
· The Bill as drafted requires pool safety management plans (which
apply only to exempted tourist resort pools) to include details of
measures the owner intends to implement to `stop' access to pools by
young children unless supervised by an adult. The requirement to
`stop' access is considered to be impractical. For this reason it is
proposed to amend the Bill to allow approval of pool safety
management plans that demonstrate an appropriate level of safety for
young children.
Building certifiers
· Section 289 of the BA (to be introduced into the BA by section 18 of
Building and Other Legislation Amendment Act 2010 - which section
is yet to be commenced) provides that existing licensed building
certifiers are taken to be licensed to perform inspections for the first
year after commencement. The amendments clarify that building
certifiers will not have to undergo further training and examinations in
order to renew their licence following expiry of the first year.
Definition of `member' of a family
· The existing definition of a `member' of a person's family is relevant
to the definitions of `accommodation agreement', `homestay' and
`assisted accommodation agreement'. The amendment clarifies the
definition by including spouses of parents and grandparents.
Indoor swimming pool
· This amendment clarifies that a pool enclosed on all sides by the walls
of a building, one or more of which may contain an external door, is
an `indoor swimming pool'.
How objectives are achieved
Passage of the Bill including the amendments to be moved during
consideration in detail will achieve the Government's policy objectives.
Alternative method of achieving the policy objectives
There are no alternatives to the passage of the Bill including the
amendments to be moved during consideration in detail that would achieve
the Government's policy objectives.
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Building and Other Legislation Amendment Bill (No. 2) 2010
Estimated cost for implementation
There are no additional anticipated financial costs for Government arising
from the amendments including the amendments to be moved during
consideration in detail. Implementation costs will be absorbed within
existing departmental budgets.
Consistency with Fundamental Legislative Principles
The new section 246ATM could potentially raise a concern as to whether
the Bill has sufficient regard to the institution of Parliament in that the
section may not sufficiently subject the exercise of a delegated legislative
power to the scrutiny of the Legislative Assembly. It is submitted that the
delegated legislative power in this case is closely confined by the terms of
the subsection (3) and further that the provision is justified as a significant
consumer protection measure.
The remaining amendments to be moved during consideration in detail are
consistent with Fundamental Legislative Principles.
Consultation
The amendments to be moved during consideration in detail are based upon
ongoing consultation with industry including Hannah's Foundation, the
Local Government Association of Queensland (LGAQ), the Real Estate
Institute of Queensland (REIQ) and the Queensland Law Society (QLS),
the Department of the Premier and Cabinet, the Department of Justice and
Attorney-General and the Department of Employment, Economic
Development and Innovation since the Bill was introduced into the House.
Notes on Provisions
1. Clause 12 (Amendment of s231A (Definitions for ch 8))
Amendment 1 amends clause 12 definition of `member' to change
paragraph (f) to widen the definition to include the spouse of anyone
mentioned in paragraph (b), (c), (d) or (e). As currently drafted the spouse
of a parent or grandparent would not to be included.
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Building and Other Legislation Amendment Bill (No. 2) 2010
2 - 24. Clause 14 (Replacement of Chapter 8, pt 2)
Amendments 2 to 24 amend clause 14 to remove the words "chief
executive" and replace them with the words "local government".
This reflects the fact that applications for impracticality exemptions will
now be made to the relevant local government instead of the chief
executive. These types of applications require consideration of site specific
issues which local governments are best placed to consider.
Related consequential amendments involve:
· Amendment of section 245(2) which reflects the fact that a prescribed
form will not be required and that local government can recover the
reasonable cost of undertaking functions under the BA.
· Inserting a note into section 245C and 245E to clarify that there is a
right of appeal from local government decisions to the building and
development dispute resolution committees.
· Inserting new sections 245F and 245FA to provide that the chief
executive of the Department administering the BA must be given
details of any impracticality exemptions and for local governments to
keep a copy of exemptions granted.
25 - 27. Clause 14 (Replacement of ch 8, pt 2)
Amendments 25 to 27 amend clause 14 to ensure that pool safety
management plans can be approved by the chief executive of the
Department administering the BA in appropriate circumstances.
This involves removing words from sections 245M, 245O and 245Q that
reflect stopping a young child accessing the pool unless the child is
supervised by an adult and replacing them with words that reflect the
policy objective of only approving a pool safety management plan where it
will appropriately provide for the safety of young children in and around
the pool.
28 - 30. Clause 14 (Replacement of ch 8, pt 2)
Amendments 28 to 30 of section 245T incorporate and clarify the existing
offence provision in section 245 of the BA dealing with the requirement to
keep swimming pool gates securely closed when a pool is not in use.
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Building and Other Legislation Amendment Bill (No. 2) 2010
The existing section 245 of the BA applies only to outdoor swimming
pools on residential land, however, the new provision will apply to all
`regulated pools', which includes pools associated with hotels, motels,
other residential buildings, caretaker residences, caravan parks and indoor
pools.
Also, the amendment will clarify how the newly incorporated provision
will apply to pools in a multiple residential building. In such cases the
obligation will fall on the body corporate rather than the `occupier' of the
property.
The new section 245T will retain the current section 245T in the Bill as
subsection (1) with an amendment to include a `reasonable excuse'
defence. This will be consistent with the other two subsections in the new
section 245T.
31. Clause 14 (Replacement of ch 8, pt 2)
Amendment 31 inserts a new section 245UA, where the chief executive of
the Department administering the BA may by notice inform local
government if it comes to the Department's attention that a regulated pool
may be unsafe.
This information may be derived from the pool register or from matters
brought before the PSC and must include information about the location of
the regulated pool.
32 - 33. Clause 16 (Insertion of new s246ADA)
Amendments 32 and 33 amend s246ADA to clarify which notices require
the local government to undertake an inspection of a regulated pool
including the notice provided for under the newly inserted s245UA and any
necessary enforcement action. The amendments also clarify that a fee can
not be charged to inspect a regulated pool after the local government
receives a pool immersion or pool safety complaint notice.
34 - 35. Clause 21 (Insertion of new ch 8, pt 4, divs 3-5)
Amendment 34 amends new section 246ATH. That section, as drafted,
obliges individual lot owners in multiple residential building with a shared
pool to cause any pool safety certificate in existence to be conspicuously
displayed near the main entrance to the premises or near each pool gate
before entering into an accommodation agreement. The amendment
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Building and Other Legislation Amendment Bill (No. 2) 2010
imposes the obligation instead on the body corporate, which is best placed
to display notices in the `common area' of a building. Also, to reduce the
burden on pool owners, the amendment makes it clear that the requirement
may be satisfied by displaying the certificate near one pool gate rather than
every gate
Amendment 35 also makes minor editorial amendment to section 246ATL.
It also inserts new section 246ATM (Prescribed notification requirements).
This section applies to a proposed sale of a regulated property and gives a
head of power for a regulation to be made to prescribe requirements for
notification by the owner.
A regulation may prescribe that the owner of a regulated property is
required to notify prospective purchasers before the sale that a pool safety
certificate will not be in effect prior to settlement and the purchaser will be
required to obtain one within 90 days of settlement.
This will help avoid the potential concern that purchasers may enter into a
contract of sale unaware until they receive a notice from the seller that a
pool safety certificate will not be provided prior to the settlement of the
contract and the pool may not comply with the pool safety standard.
It is envisaged that the notice could be contained in the contract of sale or
other suitable document, as this should be drawn to the purchaser's
attention before the contract is signed.
36. After clause 22
Amendment 36 amends section 246BH (Who may apply) and section
246BI (Requirements for application) to allow a building certifier to apply
to become a pool safety inspector without having to undergo further
training and examinations in order to obtain a licence.
Building certifiers are deemed already qualified and licensed to perform
inspections for the first year.
37. Clause 25 (Amendment of s246FD (Payment from fund))
Amendment 37 omits clause 25 so that the current s.246FD in the BA will
remain unchanged.
The intention of this amendment was to expand the range of matters for
which the pool safety fund could be used. However, the scope currently
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Building and Other Legislation Amendment Bill (No. 2) 2010
provided in the BA is considered adequate for the pool safety purposes for
which the fund was established.
38. Clause 27 (Amendment of s256 (Prosecution of offences))
Amendment 38 amends section 256 to clarify that the Department
administering the BA will continue to share with local governments the
enforcement of activities that do not involve physical inspection and
compliance assessing expertise (e.g. certificates and immersion incident
reporting). Also, the Department administering the BA will share
enforcement of activities relating to pool safety management plans with
local governments.
Local governments will assume sole responsibility for enforcing
compliance likely to involve actual physical attendance and inspection at
regulated properties.
39 - 40. Clause 32 (Amendment of sch 2 (Dictionary))
Amendments 39 and 40 amend clause 32, definition of an `indoor
swimming pool'. This amendment will remove an ambiguity in the current
definition. The ambiguity arises because the phrase `if the pool is, under
usual ways of entering or leaving the building, only accessible from the
inside of the building' could potentially apply both to pools within a
building and those located on a deck or roof or the building. The intent is
that those words only apply to pools located on a deck or roof of the
building.
This amendment will make it clear that a pool enclosed by walls (for
example three external and one internal wall) and having doors in an
external wall would be regarded as an indoor pool.
© State of Queensland 2010
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