Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW)

Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 No 9 An Act with respect to compliance with, and the enforcement of, certain building and construction legislation and codes; and for other purposes. 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 in which this Act is administered. 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. rectification bond—see section 28. 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 (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, or is required to be authorised by a construction certificate or complying development certificate, 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). 6A Levy may be imposed by Secretary (1) The Secretary may, in accordance with the regulations, impose a levy on a developer in relation to building work. (2) The levy is to be paid into the Fund. (3) The regulations may deal with the imposition of levies, including in relation to the following— (a) the determination of rate of levies, including the charging of interest on unpaid levies, (b) providing for the period within which a levy is payable, (c) describing the grounds on which any particular type of levy may be imposed, (d) the developers or class of developers on which a levy may be imposed, (e) the recovery of levies, (f) the waiver, reduction, postponement or refund of a levy by the Secretary. (4) A levy under this section may be recovered by the Secretary as a debt due to the Crown in a court of competent jurisdiction and must be paid into the Fund. (5) In this section— Fund means the Home Building Administration Fund, established under the Home Building Act 1989, Part 7. 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— (a) for a body corporate—3,000 penalty units and in addition, in the case of a continuing offence, 300 penalty units for each day the offence continues, or (b) otherwise—1,000 penalty units and in addition, in the case of a continuing offence, 100 penalty units for each day the offence continues. 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 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— (a) for a body corporate—500 penalty units and in addition, in the case of a continuing offence, 50 penalty units for each day the offence continues, or (b) otherwise—100 penalty units and in addition, in the case of a continuing offence, 10 penalty units for each day the offence continues. 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, (c1) a rectification bond required under the terms of an undertaking given by the developer relating to the residential apartment building has not been provided to the Secretary, (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, (e) a developer, in relation to building work of the residential apartment building, fails to comply with a direction of an authorised officer under section 17 or 18, (f) other circumstances prescribed by the regulations for the purposes of this section exist. (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. (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. 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, (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 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 2021). 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— (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, (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. 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— (a) for a body corporate—10,000 penalty units and in addition, in the case of a continuing offence, 1,000 penalty units for each day the offence continues, or (b) otherwise—2,000 penalty units and in addition, in the case of a continuing offence, 200 penalty units for each day the offence continues. 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 one or more 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, (c) provide the Secretary with a rectification bond that may be claimed or realised by the Secretary to meet the costs of eliminating, minimising or remediating a serious defect or a potential serious defect in a residential apartment building. (2A) If an undertaking requires a developer to provide a rectification bond, the undertaking must include— (a) the circumstances in which the rectification bond may be claimed or realised, and (b) the procedure for claiming or realising the rectification bond. (2B) A person may carry out work without consent or approval under the Environmental Planning and Assessment Act 197