Role of NSW Building Commission
20 November 2024 in Building and Construction Law | 4 min read | skip to FAQsThis article examines the role of the newly formed Building Commission NSW. The Commission is a new regulator within the building and construction industry that has the intended purpose of improving building quality in NSW.
The Office of the Building Commissioner will assume some roles relating to construction that are currently managed by NSW Fair Trading and oversee an expansive range of elements within the building industry. These include builders, homeowners, architects and designers, developers, building tradespeople, product safety, strata schemes, environmental planning, building certifiers, payment for construction and services. The Commission aims to be a proactive regulator, using data and industry led initiatives to reduce costs and increase value in the building industry in NSW. We outline the scope of this and focus on how the Commission relates to home building construction, NCAT and fair trading.
Details of the NSW Building Commission.
In late 2023, the NSW Government passed the Building Legislation Amendment Act 2023 No. 44 (NSW) (Amendment Act), which established the NSW Building Commission. The Commission is responsible for the regulation of laws applying to home builders, developers, residential building tradespeople, design and building practitioners, certifiers, businesses and others within the sector.
How the Commission relates to Home Building
With respect to the overseeing of residential construction in tandem with the Home Building Act 1989 (NSW)), the Amendment Act grants the NSW Building Commission, including any authorised person, the power to enter any residential home under construction or where construction work is being undertaken to
- Examine, inspect and observe anything within the site
- Select and remove samples;
- Request and copy records for inspection;
- Take photographs or videos;
- Seize items where there are grounds to believe it is connected to an offence or defect.
Post inspection of the site, the Commission has the power to issue stop work orders, prohibition orders, and/or rectification orders, with significant penalties for non compliance.
Whilst these powers are expansive and invasive, they aim to both increase the overall quality of residential building projects and the standard to which builders operate, whilst consequentially minimising defects and illegal construction activities. With this in mind, parties to building projects should anticipate inspections by the Commission at some point throughout their project.
How does the role of the Commission Differ from NCAT?
The New South Wales Civil and Administrative Tribunal (NCAT) hears matters and resolves building and construction related disputes between parties, including those between homeowners and builders. NCAT operates similarly to a Court, whereby it issues binding decisions and orders, and can enforce orders for rectification, contract enforcement, or compensatory remedies. NCAT functions as a judicial body making judgment with regard to disputes referred to NCAT by one of the parties and therefore addresses matters arising from works previously performed. In contrast, the Commission will have a more proactive role, aiming to intercept and prevent any issues from arising from the very inception of a building project, through diverse yet thorough oversight, legislation, and compliance-based activities.
How the Commission relates to Fair Trading NSW
Historically, Fair Trading NSW has held the power to operate, in a limited capacity, within the building and construction industry. With the introduction of the Building Commission NSW, responsibility for certain key areas will shift from Fair Trading to the Commission. These functions include:
- Inspections of building quality and compliance with laws and regulations;
- Licensing of tradespeople, design specialists, and certifiers;
- Processing complaints regarding home building and licensed tradespeople;
- Ongoing review and development of policy and reform of building laws in NSW.
How does the role of the Commission Differ from Fair Trading?
As mentioned above, certain powers historically held by Fair Trading pertaining to building and construction have been transferred to the Commission. Notwithstanding this, Fair Trading is still relevant to the industry and will continue to play a vital role. The Commission has assumed an industry-wide regulatory and oversight role that will be complemented by Fair Trading. In a general sense, Fair Trading will remain a valid and effective source of relief and protection for those suffering as a result of building and construction related issues, however the Commission will be the primary body with regard to compliance and prevention.
Current Laws that the Commission will Oversee
The laws that the Commission oversees in its regulatory operations include:
- Architects Act 2003 No 89 (NSW)
- Building and Development Certifiers Act 2018 No 63 (NSW)
- Building and Construction Industry Security of Payment Act 1999 No 46 (NSW)
- Building Products (Safety) Act 2017 No 69 (NSW)
- Design and Building Practitioners Act 2020 No 7 (NSW)
- Environmental Planning and Assessment Act 1979 No 203 (NSW)
- Gas and Electricity (Consumer Safety) Act 2017 No 15 (NSW)
- Home Building Act 1989 No 147 (NSW)
- Plumbing and Drainage Act 2011 No 59 (NSW)
- Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 No 9 (NSW)
- Strata Schemes Development Act 2015 No 51 (NSW)
How can BSM Sydney Lawyers assist you?
Navigating the changes that the introduction of the Commission brings can be challenging, and knowing which body is best suited to deal with your dispute or individual issue can be confusing. The expert Building and Construction lawyers at Brander Smith McKnight law firm Sydney have over 30 combined years experience in construction and are acknowledged as industry experts. Our construction lawyers can assist with correspondence, applications, and any matters arising from construction disputes, building design, planning, safety and certification issues, environmental planning, residential apartments and strata. Our building and construction lawyers have experience at all levels of the construction industry from home owners through to multi-million dollar projects. We pride ourselves on working hard and achieving the best possible outcome for all of our clients. The building contract lawyers at BSM Lawyer Sydney offer a free 20-minute initial consultation where we can provide information and discuss your needs.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
What is the NSW Building Commission?
The Building Commission is a new regulator within the construction industry, established in late 2023 which aims to improve building quality in NSW. It is responsible for the regulation of laws applying to a wide range of building related industries including home builders, developers, home building tradespeople, architects and building designers and certifiers. It takes over some of the functions that Fair Trading NSW covered with respect to the construction industry. It is envisaged to have a pro-active role, preventing building problems through oversight, legislation and compliance based activities. BSM Construction Lawyer Sydney are familiar with the new legislation and can provide legal advice on any matters involving the Building Commission.
How does the Building Commission affect Home Building?
The Commission is able to enter any home building site and inspect, remove samples, take photos/videos, inspect records and seize suspicious items. They have the power to issue stop work orders, prohibition orders, rectification orders and significant penalties for non-compliance. BSM Construction Lawyers Sydney are able to provide legal assistance to you.
What roles has the Building Commissioner taken from Fair Trading NSW?
- Inspections of buildings and compliance with regulations.
- Licensing of tradespeople, designers and certifiers.
- Processing complaints regarding home building and licensed tradespeople.
BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Elizabeth DonoghueBachelor of Laws with First Class Honours I Bachelor of Business I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileElizabeth holds a Bachelor of Business and a Bachelor of Laws with First Class Honours from the University of Wollongong. Elizabeth achieved outstanding results across both of her university degrees and was recognised with the Dean's Merit Award for academic excellence. She has a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice as a legal practitioner in the Supreme Court of NSW and the High Court of Australia. Elizabeth is a valued member of the building and construction and property dispute teams. She is known for her passion for law, strong organisational and communication skills, meticulous attention to detail and proactive approach to her work. Elizabeth has extensive knowledge and experience of legislation relating to building and construction.
