We have all seen the horror of people forced to evacuate their homes in towering ‘skyscrapers’ due to serious and often irreparable defects. Countless people suffering financial and personal loss years down the track because unbeknown to them, the building that their apartment is in is uninhabitable and unsafe. The New South Wales State Government has taken proactive legislative measures to prevent this pain and suffering.
The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (the ‘Act’) provides the New South Wales Department of Customer Service with powers to rectify any issues of non-compliance and serious defects in residential apartment buildings. The Act, which commenced on 1 September 2020, hopes to introduce a thorough framework for the construction industry whereby the public are provided with safe apartment living.
Powers of the Secretary
The Act grants the Secretary of the Department of Customer Service with the following powers:
- the ability to issue stop work orders in respect of residential apartment buildings where evidence of non-compliance by builders, contractors and developers can be established;
- the ability to issue work rectification orders to developers if the Secretary reasonably believes that the construction could or has resulted in serious defects; and
- the ability to grant authorised officers investigation powers to undertake testing of the building and other works.
The conferred powers from the Act applies to completed, current and proposed apartment projects. Importantly, the investigation and building work rectification orders may be exercised up to 10 years after an occupation certificate was issued to an apartment building, meaning that developers may be required to rectify serious defects and building non-compliance retrospectively.
Under the Act, ‘serious defects’ include:
- the use of any building products prohibited under the Building Products (Safety) Act 2017 (NSW);
- a defect attributable to a failure to comply with requirements under the Building Code of Australia, relevant Australian Standards or the relevant approved plans by an authority; and
- any defect likely to prevent habitation or use of the building for its intended purpose.
Notification of Occupation Certificate
The Act also introduced the requirements of developers to notify the Secretary prior to applying for an occupation certificate for a development at least 6 months, but not more than 12 months, prior to applying for that occupation certificate. This notice is then required to be amended within 7 days of the developer becoming aware of a change in the application time for the occupation certificate. The purpose of this notification is to provide the Department of Customer Service with ample time to investigate and inspect the building prior to an occupation certificate being issued.
If notice is not provided in accordance with the Act, or serious defects are found during inspection by the Department, the Secretary can issue prohibition orders which prevent an occupation certificate being issued.
It is clear that the Act will have serious impacts for both purchasers and developers alike.
For developers of residential apartment buildings, obtaining occupation certificates is one of the most crucial steps in eventually selling properties. Developers will now be required to pay additional care and attention to not only the construction of their development, but also the notification and compliance requirements introduced under the Act.
For prospective purchasers and current owners of residential apartments, the Act will aim to ensure a heightened level of safety and attention to your residing premises. It is important to consider however that the new requirements of developers may lead to unforeseen and unexpected delays in completion of your apartment. Whilst this is a small price to pay for safety and the longevity of your home, it is an important consideration.
Should you be a party that may be impacted by the new implications of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), please contact our Property Law Department by phoning 02 4626 5077 to ensure your rights and obligations are being protected and upheld.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.