Building Commissioner makes first prohibition order under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act
Regular readers will recall our previous discussion on the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act), which has been in force since 1 September 2020, in our June, August or September article, or at one of our webinars.
The RAB Act gives the Building Commissioner power to (among other things) prevent the issuing of occupation certificates or the registration of a strata plan for residential apartment buildings where certain requirements are not met or if there is a serious defect.
A prohibition order “is the ultimate signal to the developer that they must resolve any noncompliance or face never having the building sold or occupied”.
Orders made under the RAB Act are listed on a public register on the NSW Fair Trading website and the Building Commissioner has lost no time in flexing his new powers, with the public register showing a Prohibition Order and a Building Work Rectification Order, each issued in late September in relation to a project in Caringbah South.
Compliance officers conducted an inspection of the residential apartment building in question on 14 September 2020. During the inspection, it was observed that building work carried out had resulted in serious defects in relation to three elements, namely:
Under section 9 of the RAB Act, the Building Commissioner may make an order prohibiting the issue of an occupation certificate or the registration of a strata plan for a residential apartment building if he is satisfied that serious defects exist in the building.
Under section 33 of the RAB Act, if the Building Commissioner has a reasonable belief that building work was or is being carried out in a matter that could result in a serious defect, a building work rectification order may be issued, requiring a developer to carry out or refrain from carrying out building work as specified in the order, to eliminate, minimise or remediate the serious defect or potential serious defect. The Building Work Rectification Order (BWRO) issued by the Building Commissioner on 30 September 2020 was issued in relation to the cladding and waterproofing defects only.
Nature of serious defects
A ‘serious defect’ is defined in section 3 of the RAB Act to include the following (among other things):
In relation to the cladding, the compliance officers found no evidence of cavity flashing discharging from the wall to turn down and over the waterproofing membrane at the planters and adjoining the entire ground floor podium slab area during their inspection. This absence prevents the continuity of the flashing and waterproof membrane installation. The Prohibition Order (PO) indicated that the building work constituted a serious defect due to a failure to comply with the performance requirements of clause 2 of AS 4654.2 and that the defect was attributable to either defective design or defective workmanship, which caused or was likely to cause the inability to inhabit or use the building for its intended purpose or the destruction of the building.
The compliance officers found that insufficient heights for termination of the planter and podium waterproofing had been allowed on the external ground floor podium structural concrete slab including terraces and planter boxes. This was found to constitute a serious defect for the same reasons as the cladding.
In relation to the elevator, the compliance officers observed the unpacking, preparation and component assembly for the elevator installations. The developer, however, was unable to provide clarification of details and the personnel carrying out the work were not elevator installation technicians. A week later, a notice was issued requesting further information relating to the design, certification and installation of the elevators. The information had not been received in its entirety by the date of the PO. The elevator installation was found to be a serious defect due to its failure to comply with the BCA, and the defect was attributable to either defective design or defective workmanship, which caused or was likely to cause the inability to inhabit or use the building for its intended purpose or the destruction of the building.
The PO remains in force until revoked by the Building Commissioner or Secretary. Under the BWRO, the developer was ordered to remediate the cladding and waterproofing defects within 28 days and to notify within two business days of completion. The BWRO remains in force until either complied with or revoked by the Building Commissioner or Secretary.
This first suite of orders sends a message that the Building Commissioner is willing to exercise, and has shown no hesitation in exercising his new powers. In doing so, it is clear that audit inspections will encompass not just an examination of work carried out but also extend to irregularities observed on site in work in progress. The nature of the defects subject of the BWRO confirm that the potential for water penetration in its various forms is one of the main areas of focus in the audit process.
This is a level of regulatory oversight not before seen in the NSW building industry.
Authors: Christine Jones & Rebecca Weakley
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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.