RAB Act – new audit process in action and September 14 deadline
The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act), which we previously discussed here, is now in force, having commenced on 1 September 2020.
The purpose of the RAB Act is to address the issues of non-compliance and serious defects in residential apartment buildings in NSW in an effort to boost public confidence in the NSW building and construction industry.
Additional information has now been provided to industry stakeholders on how the foreshadowed occupation certificate (OC) audit process will work in practice.
We also remind developers of buildings which are within six months of completion that they have up until 14 September 2020 to lodge their expected completion notice, otherwise, they will have to wait until at least 1 April 2021 to apply for their OC.
What’s the purpose of the OC audit process?
The OC audit process has been introduced to:
Applying for an OC
To apply for an OC, the developer must:
How are sites selected for an audit by the Building Commissioner?
Sites will be selected for audit using risk rating tools, whereby all expected completion notices are passed through rating tools and a proportion of the projects that seek to apply for an OC within the following six months are selected.
The key rating tools used for the audit process are the Multi-Party Risk Rating Tool and the Single View of Building.
Sites may also be selected for audit at random. Further sites will be selected using indicators such as reported issues and referrals.
Initially, in September and October 2020, audits will be selected through a manual selection process. From November 2020 to February 2021, the manual selection process will be accompanied by an automated selection process, with the aim being to move to a fully automated selection process from March 2021 onwards.
Being selected for an audit
The developer of the site will receive a letter to their registered address, notifying the developer that the site has been selected for an OC audit and a list of documents that need to be submitted to the Building Commissioner.
The letter will also contain instructions on how to upload the required documents to the NSW Planning Portal, as well as an invitation to a briefing session on the OC audit process.
The letter will also be sent to the builder and certifier, who will also receive invitations to the briefing session.
The OC audit process
The OC audit process begins after the developer uploads the required documents to the nominated portals.
The audit team begins by conducting a desktop review of the documents received, prior to visiting the site. The audit team may require further documents from the developer. The audit team will then spend one to three days onsite for an initial audit, with follow up audits intended to occur over the audit period (dependent on the audit findings).
The focus of the audit team will be on key building areas, including building structure and foundations, waterproofing, fire safety systems, external enclosures and acoustics.
The audit team will issue an initial report, with further reports issued for any subsequent site visits that occur. The developer will receive the report, which will include any recommendations, identified issues and non-compliances, with issues receiving a rating using a red, amber or green rating system.
Conclusion of the audit
The audit process can conclude by one of three ways, namely after:
Urgent steps to be taken
In order to comply with the RAB Act, developers must notify the Secretary within 12 months, but not later than six months, of seeking an OC.
If on 1 September 2020, your building was within six months of completion, you must notify the Secretary within two weeks of 1 September of an intent to seek an OC.
Developers are strongly urged to consider whether they have current projects within six months of completion, for which notification of intent to seek an OC must be made by 14 September 2020. If they do not meet the deadline, they cannot apply for an OC until 1 April 2020.
Authors: Christine Jones, Peter Holt & Rebecca Weakley
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Starting 1 September 2020
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Penrith City Council v Settlers Estate Pty Ltd (No 2) [2020] NSWLEC 128
SEPARATE QUESTION: civil enforcement – whether the construction of a drainage line, culvert and channel were carried out contrary to approval by reason of their location – issues narrowed upon tender of further revised works as executed plan – construction contrary to stage 3 consent and stage 3 roads and drainage construction certificate – construction contrary to controlled activity approvals – separate questions answered in favour of the council – respondents to pay applicant’s costs.
X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181
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Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199
BUILDING AND CONSTRUCTION — Negligence — Miscellaneous forms of negligent conduct — Right of support — Application of Conveyancing Act 1919 (NSW) s 177 and common law — Whether loss of support caused damage to adjoining property.
TORTS — Negligence — Essentials of action for negligence — Whether there was a failure to take reasonable care — Whether any failure caused damage — Assessment of expert evidence.
TORTS — Negligence — Proof of negligence — Res ipsa loquitur.
Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd - Costs [2020] NSWSC 1130
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Samios Plumbing Pty Ltd v John R Keith (NSW) Pty Ltd [2020] NSWSC 1128
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NSW
Acts
Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 No 9
This Act commences on 1 September 2020.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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