The Building and Development Certifiers Bill 2018 repeals the Building Professionals Act 2005, Building Professionals Amendment Act 2008, and the Building Professionals Regulation 2007, and forms part of the Government's response to the 2015 Lambert review. The bill clarifies the process required to register as a certifier, and establishes a series of requirements that delineate the responsibilities of that work.
It strengthens the powers of the Secretary of the Department of Finance, Services and Innovation to undertake disciplinary action, to reward certifiers deemed to be low risk with less frequent license renewals, and to suspend or cancel a license approval. Importantly, the bill sets a series of offences and penalties for certifiers who mislead, misuse or fraudulently undertake certification work, including when there is a conflict of interest, when certifiers work without sufficient insurance coverage, and when a certifier does not have the proper registration. Finally, the bill amends the Home Building Act 1989 No. 147 to require building contractors to inform customers about the role of certifiers, and makes it an offence to try to unduly influence the appointment of a building certifier.
There can be no doubt that certifiers play a considerable role in the building and construction industries. For an idea of just how considerable that role is, it is estimated than an average of $4.4 billion worth of development certificates were issued in New South Wales in 2014-15, and that 91 per cent of them were completed by private certifiers. In communities such as those that I represent in the Inner West, more and more landowners choose to utilise certifiers for home renovations and extensions under complying development.
The promise of many certifiers is that applications will be streamlined and expedited and that the pain of applying to labyrinthine council planning departments will be removed with the dash of the pen. In most cases, the system works, simplifying the process of applications and providing oversight and engagement for neighbouring residents. That is the idea, but as too many Inner West residents in my electorate know, it sometimes goes wrong. I am regularly contacted by residents concerned about what they believe to be a lack of accountability in the building industry.
One Marrickville resident visited my office to report issues with his front fence. In the course of their work, the builders next door had splattered the entire fence with concrete and stucco. The resident had tried to fix it by first speaking with the builder, then the owner, then the certifier, then the Building Professionals Board and he had no luck at any turn. An Ashfield resident contacted me about work being undertaken at a nearby site that had led to the flooding of her property. The complaints were met with silence from the registered certifier despite repeated calls. Eventually, they were promised that things would be resolved but nothing happened.
Recently a Haberfield resident contacted me after he decided to install a swimming pool. The family were given the green light by the certifier. He picked the pool and dug the hole in his backyard. The day before the pool was due to arrive, carried by a $2,000-a-day crane that they had hired, the certifier called to say that there was a misunderstanding and that there was no approval for the work. Seven months later, they are still waiting to dip their toes in before Christmas. In the meantime, they have spent thousands of dollars in extra fees to the certifier and a lengthy process to obtain council approvals. This is why they paid the certifier in the first place. Then there are the reports of dodgy deals between major developers and certifiers with white elephants across our suburbs signed off by hand-picked certifiers in cosy deals with developers themselves. I have spoken in this place many times about the need for better regulation of the building construction industry. Too often, our communities are being foisted with development that is entirely unsympathetic to the character of our suburbs and built with substandard materials as the result of cutting corners at every turn.
Frankly, I am sick of seeing buildings that bear no resemblance to the glossy artistic renderings offered in development applications and developer prospectuses, of seeing new buildings which, instead of what is promised in the glossy brochures, have cracked and water-stained facades, to say nothing of mounting defects and structural damage inside. Developers often promise the world, the highest quality materials money can buy, all of which are switched out at the last minute for cheaper options. Brick facades are replaced by concrete and stucco or wooden features are replaced with particle board; mature trees and lush landscapes give way to barren grassy patches; windows with higher efficiency standards are replaced with less efficient options; and decorative elements like canopies, wooden screens and the like are abandoned altogether. The bustling street-side cafes too often are soulless concrete boxes. Left empty, they suck the life out of our streets.
We are forced to accept more and more density in our suburbs without the proper standards to ensure that they are safe and built well. It is no wonder that people doubt that these buildings will still be standing in 10 or 20 years. What state will they be in at that point? What kind of problems are we leaving for our kids? A total of 85 percent of new apartments built in New South Wales since 2000 have had defects, including structural work, plumbing, facades, guttering and roofing, according to the University of New South Wales City Futures Research Centre. Consumers are sick to death of being ripped off by greedy developers and the community is sick of seeing heritage buildings and public places replaced with buildings that are not sympathetic at all to what they want their community to look and feel like. New homeowners, too, have often bought off the plan and they should not be left high and dry by dodgy developers who have cut corners.
I note the recent reporting of apartment owners in Castle Hill who were granted an interim occupancy order, only to find blocked exits, half-finished paint jobs and construction crews on site on moving day. Currently developers are able to self-select the certifiers tasked with signing off on their projects. That is inherently flawed and clearly leaves open the door to bad practices at best and collusion at worst. I note that the Minister raised this as one of the primary rationales behind the bill when he said:
It's ridiculous that developers can choose their own certifiers. While there are many good certifiers in NSW, we have to get rid of any crooks, cowboys and shonks in the industry.
It is clear that people have lost faith in the current system. The Government has released an options paper that offers three options to resolve this issue. One option it proposes is a rotating system or lottery whereby developers are matched with three possible certifiers at random and permitted to choose from the three. The Government also proposes a cab rank type system whereby developers are matched with the next available certifier in the queue against selection criteria. The third option is limiting the amount of time that developers can work with a certifier to three years. The options paper is open for consultation until the end of the month.
To me all these options seem reasonable. This poses the real question as to why we are debating the bill here today. Is it the case that the Minister cares so little about the consultation that he is prepared to rush it through and rewrite the Act without this information, or is he happy to leave this critical element of the reform hanging? The closest the bill comes is to prohibit contractors from unduly influencing or attempting to influence the appointment of a certifier in the proposed section 11C in division 1A. If the purpose of the bill is to strengthen the quality of certifiers, it is clear that much more work has to be done to ensure this result. It clearly would have been better to have considered all the feedback from the relevant stakeholders rather than debating this bill today. It is also clear that much more must be done to strengthen the powers to enforce certification standards. Local councils and their peak body, Local Government NSW, have persistently raised concerns with the Department of Fair Trading's Building Professionals Board. In its submission to the Government, Local Government NSW raised issues with the lack of teeth by the Building Professionals Board. It said:
LGNSW has maintained for some time that many of the problems with building certification and regulation stem largely from the unclear roles and responsibilities of all players, but also from a lack of regulatory clout and oversight of the entire process by the BPB.
Clearly, the bill promises to simplify and clarify the complaints process by investing greater responsibility and powers in the Secretary of the Department of Finance, Services and Innovation.
The bill introduces a show-cause approach, whereby the secretary can demand a certifier prove why action should not be taken, and to act immediately in the event if there is a risk to public safety. I note that bodies like Local Government NSW have also signalled support for the introduction of new offences and greater penalties and fines. I am of the strong view that anything that enhances oversight and accountability for building certifiers is a good thing. However, I reiterate the concerns raised by Local Government NSW in its submission that it is unclear as to whether councils or individual members of the public can initiate the complaints process. I seek clarification from the Minister given the large number of constituents who have raised with me and my office the lack of responsiveness of the Building Professionals Board.
I conclude by drawing the attention of the House to a recent article in theSydney Morning Herald by Ross Taylor, Managing Director of Ross Taylor and Associates waterproofing consultants. He notes in response to the bill:
The recently announced proposed overhaul of certifiers won't make much difference to the quality of buildings. The fundamental flaw in the concept of certifiers is that their role is to check paperwork and not to check actual construction as it goes up. The amount of visits and time on site actually verifying the construction is very limited. The so-called overhaul does little to change this.
I support the bill as a step in the right direction but it is clear that it must go much further if it is to meet the intent and recommendations of the Lambert review. It is right that we break down the cosy relationship between certifiers and dodgy developers. It is right that we create stronger accountability by increasing penalties and introducing new offences to protect consumers. It is right, too, that we work to improve the complaints process so that the community can have a greater say about development in their neighbourhood. But I call on the Minister to give this new regime teeth by bringing forward a more detailed discussion about the options that he has in his paper. I call on the Minister to empower consumers by providing better information about developers from whom they are buying and by working towards greater oversight of building quality overall.