Building Amendment Bill 2012

Extract from Hansard

[COUNCIL — Thursday, 27 September 2012] p6650a-6650a

Hon Kate Doust; Hon Lynn MacLaren; Hon Simon O'Brien

Building Amendment Bill 2012

Second Reading

HON LYNN MacLAREN (South Metropolitan) [2.13 pm]: I also wish to make some comments about the Building Amendment Bill 2012. It is not very long ago that we were considering the Building Bill 2010 and its associated package of bills. The Building Act 2012 has been in operation only since April 2012, and, as is to be expected with reforms of this nature and scale, there have been some teething problems. I understand that following the commencement of the Building Act 2012, there was a steep decline in the number of building applications and permits issued, and that caused cash flow problems in the industry. Minister, can we fix it? Yes, I think we can. Although I commend the minister for his expeditious action in trying to fix the problems that have surfaced, I have some reservations, along with Hon Kate Doust, that maybe that action was a little too expeditious and did not go through the wide and thorough consultation that was called for. In fact, I have learnt just today that it was only on 17 September that some councils got wind of this bill and received the consultation package from the Western Australian Local Government Association. As members know, we are only one week later debating this bill in the upper house. So there has been very little opportunity for councils to comment on the changes proposed by the minister in this bill. I have spoken to only two councils—one in the metropolitan area and one in the regions—about this issue, but I would be surprised if these are isolated cases. I know that the views of WALGA were sought, but WALGA cannot speak for all the councils without consulting them. In fact, even in the two councils that I consulted with, there were different responses to the proposed amendments.

I have some questions that I want to ask the minister and his advisers. In the spirit of what Hon Kate Doust has suggested—namely, that we merely canvass issues during the second reading debate and then allow time during the committee stage for the minister to address those issues—I will take some brief time now to pose my questions. As I have said, I would ask the minister to elaborate on the consultation that was undertaken on this bill. This is the fix-it bill. Because of the concern that I have, just from canvassing the councils that I have canvassed, and from my own analysis of the amendments, I have a terrible sinking feeling that we may be here again soon looking at the Building Amendment Bill part 3, because right now we are dealing with the Building Amendment Bill part 2. But I know that we want to get it right, and I would certainly support getting it right. That does not mean that at this point we do not support the bill. We do support the amendments as proposed. But I have some concerns that I want to flag to the minister.

My concerns are around seven issues. The first is the amendments to section 81, which deal with access to other land. The second is the amendments to sections 39 and 57, which deal with non-application or modification of building standards. The third is the amendment to insert a new section 67(2A), which deals with the ministerial order with regard to signatures that Hon Kate Doust has mentioned. The fourth is the amendment to section 23, which is about “stopping the clock”, and the requests for information. The fifth is the amendments to sections 20(1) and 145A, which are about the powers of public authorities. The sixth is the amendment to section 80(1)(d), which deals with fences. The seventh is a quick question about local government and how this bill will be implemented.

Hon Simon O’Brien: Would you prefer to ask those questions at the committee stage, or do you want me to respond now?

Hon LYNN MacLAREN: The minister can respond at the committee stage, but it might be better if I just outline the issues now.

Hon Simon O’Brien: Okay, and if I can deal with them now, I will.

Hon LYNN MacLAREN: The first issue is access to other land. The bill permits a builder or surveyor to “go onto” adjacent land in certain circumstances, including if the land is “vacant land” or if “any building on that land is vacant”. The term “vacant” is not defined in the bill. We brought up in the briefing the issue that there may be trees or other vegetation on the land. Some people have beautiful bush blocks, and those blocks may be considered “vacant land” but they may want to preserve them just as they are. So I would like the minister to address what is meant by the words “vacant”. I would also like the minister to address what is meant by the words “go onto”. Does it include storing building materials, mixing cement, or stirring up dust? I think that the more explicit we can be on this matter, the more direction builders will have in going forward. We need to make it clear that obviously nearby vacant land should not be impacted negatively. That should be made clear through the second reading debate, because there is no definition of those words in the bill.

Section 77 of the Building Act provides that the land must not be “adversely affected”. But I want to be clear about whether this will provide sufficient protection. Will it, for instance, preclude a builder from leaving behind rubbish and builder’s rubble? Where are the provisions to say that if an owner or an occupier objects to the access, the builder or surveyor will leave the land forthwith, unless access is pursuant to a court order? Where are the provisions to say that the land must be left in the same, or in better condition, than the condition it was in when the builder or surveyor went onto it, and how will this be evidenced? I am sure the minister can guess that people are concerned about the impact of building activities near their properties, whether or not they are living on those lands. I would also like the minister to explain what is meant by the words in section 81(7) of the Building Act 2011 —

A person who is entitled to go onto land under an order under section 86(2)(e) or (f) may remove furniture and fittings that would otherwise impede the work or the survey.

Must the furniture and fittings be replaced if they are removed? If they are damaged, must they be repaired or compensation paid? The Occupiers’ Liability Act 1985 might be relevant to that answer. How does the Building Amendment Bill 2012 affect that act? Under the Occupiers’ Liability Act, an occupier of a premises has a duty of care to ensure that persons coming onto the premises are reasonably safe when using them. There is an exclusion of liability for trespassers, but entry onto the premises is authorised by the act. A worker or surveyor, who are not trespassers, are not covered by that act and are not necessarily deemed to have willingly assumed all risks of entry under the Occupiers’ Liability Act. An unintended consequence of this amending bill may be that if a worker is injured on the adjacent land by stepping into a pothole, tripping on something or hitting his head on a fitting, for instance, liability may arise under the Occupiers’ Liability Act. That may be contrary to common sense. I can see that the minister is a bit bemused by that. As we know, the law and common sense are sometimes strangers. When we amend an act of this type without widespread consultation with local governments, surveyors and building officers, we can expect things like this to crop up. Therefore, it is important to specify at this stage of the debate whether these issues are serious.

The second matter I want to question the minister about is the non-application or modification of the building standards as specified in sections 39 and 57 of the Building Act. The explanatory memorandum makes it clear that section 39 allows the Building Commissioner to modify the way a building standard applies or to declare that a particular building standard does not always apply; but it does not explain why this is necessary. There are five questions about the modification of the building standards that I canvassed in the briefings that I had. Can the minister explain why and give examples of when the Building Commissioner might choose to not apply or modify a building standard? Is this a right that may be exercised at the sole discretion of the Building Commissioner, or do guidelines apply? What safeguards are there to ensure that the building standards are not compromised? In other words, does the commissioner have to give reasons for his decision in the interests of transparency? Finally, is there a right of appeal? We did say that these are unprecedented powers, so we need to be very clear about their range.

Proposed section 57(3) states —

A certificate of building compliance ... must state that the building or incidental structure substantially complies with each applicable building standard.

That is concerning, partly because “substantially” is not defined, which might lead to major variations and interpretation, and partly because it may be a lowering of the bar when complying with building standards.

The next section I will deal with is ministerial orders regarding signatures. Hon Kate Doust expressed her concerns about that and I put on the record that I share her concerns. I commend the government for resisting the pressure from the building industry to remove the requirement of section 16(b) that an application must be signed by the owner of the land on which the building or incidental structure is to be located. Every owner should have the right to either consent to or refuse work, or proposed work, to be done on their property. If the estranged partner of a person who co-owns the property wants to build a swimming pool, for instance, but the co-owner did not want that to happen, the estranged partner can build it without the co-owner’s consent. That was one of the provisions in the Building Bill 2010 that we believed was a very good reform.

I can understand the imperative to find a solution to deal with an owner who cannot be found to provide the relevant signature. Members can see how that might happen because of fly in, fly out workers and property owners who are living overseas. However, I am not entirely convinced that proposed section 67(2A) provides a solution. This amendment was described to me as a rapid response mechanism to deal with an emergency. However, nothing in the proposed section limits the powers to be given to the minister in any way. The minister should exercise the exemption provided for in sections 16(b) and (c) only if the owner cannot be found or other pressing circumstances dictate that the consequences of holding up a development are more serious than proceeding without the permission of the owner. If the owner objects to the exemption order, will that be sufficient to cause the minister to revoke or amend the order under section 67(2)?

I cannot help feeling that we are developing a very cumbersome and labour-intensive process to solve the problem. It lacks transparency and a clear rationale. It may serve for the time being—I recognise that—but I hope that in due course there is a better and more measured way of dealing with this issue. Maybe we could educate the players in the industry to ensure that they obtain the owner’s consent in the early stages of the development process, and that if an owner is not likely to be available throughout the development, a power of attorney can be provided to the builder at the outset. I did not canvass these solutions with the advisers when I had my briefing and I am just throwing these ideas out there as a potential solution. I have not consulted widely with the industry on that either. If the minister could explain the constraints around these powers, that would be great.

Section 23 relates to requests for information and stopping the clock. The provisions for stopping the clock apply, as is logical, to both certified and uncertified applications. There may be a problem, however, when a local government is under pressure to process a large volume of applications. If the local government manages to look at a certified application only on day 5 when the clock is ticking and raises a few informal inquiries initially but these are not satisfactorily answered, the local government may have to resort to a formal request after a couple of days have slipped away. If the formal request elicits an incomplete or unsatisfactory response, or if the council requests a modification, it is then included in a new application with other modifications that require assessment, and the time frame may well be exceeded. In my view, there should be a procedure by which the builder and local government can agree to an extension of time so that they do not fall foul of section 23(3). If a permit authority has not made a decision in the time allowed, it is considered to have been refused and the application or demolition permit will not be granted. This could be contrary to the wishes of all the parties and would result in a waste of time, effort and money. Surely there must be a pragmatic approach to this problem, one that takes into account the reality that sometimes, notwithstanding the good faith and best efforts of all parties involved, it will not be possible to meet the tight timeframe for approval. Perhaps that was canvassed in the working party; if so, perhaps the minister can shine some light on why that kind of consent to extend the time will become allowable under the act and clarify why we are moving in this particular direction.

I refer to the powers of public authorities under proposed sections 20(1) and 145A. It appears that by virtue of the insertion of proposed section 20(1)(iiia), a local government may be both a builder under section 16(c) and the permit authority that approves the application. I think we discussed this in our briefing. On the face of it, that could give rise to a conflict of interest. While I understand that this will streamline the approval and execution of minor developments, such as a shed on council land, should there not be more stringent controls for more complex developments, such as a recreation centre or a town hall, to make sure that the building complies with the applicable building standards? The minister may have an easy answer for that, but the bill does not appear to differentiate between minor and major developments when local government is the developer.

I turn to proposed section 80(1)(d). Under this proposed section, fences may be removed without the consent of an adjoining owner if the removal is required for the construction of a close wall and a building permit for the close wall is in effect. A “close wall” is defined as a wall that is so close to the boundary that it is not reasonably practicable to build a separate dividing fence along the boundary. That is something that we face more and more as our suburbs become more dense. The aphorism that “good fences make good neighbours” is often quoted; indeed fence disputes are often heated, prolonged, expensive and ugly. In the debate on the Building Bill 2011, there was headline news about a resident who reported the overnight disappearance of his fence as theft to the police. I fear that proposed section 80(1)(d) may lead to similar problems. For instance, the amendment should at least address such issues as what happens to a fence on either side of a close wall—perhaps the definition of “close wall” should include a fence—and whether the builder must ensure that the close wall is in keeping with the existing fence on either side. Will the Dividing Fences Act apply and alleviate such problems? If we could put that on the record, it would clarify the situation.

When the Building Bill was debated in 2010, the Western Australian Local Government Association raised concerns about how the legislation would interface with other approvals, such as planning, R-codes, heritage and health requirements. This in turn raised concerns about the increased potential for disjointed applications, inefficiencies in referrals, adverse health, heritage and amenity outcomes, and a general lack of integration within the approvals process. There is a push from some parts of the building industry for further privatisation, even to the extent of moving away from the enforcement and inspection regime provided by local government. I hope this push will be resisted.

In conclusion, I confirm that in the interests of addressing the obvious problems that have arisen, and subject to the reservations I have expressed, the Greens (WA) support the bill. I am in favour of not only streamlining the approvals processes, but also the efficiencies and savings that that will lead to. I hope that this will lead to the provision of more affordable housing. However, the bill addresses the short-term problems with short-term solutions when what we need are long-term solutions. I commend all those involved for working towards those long-term solutions and fixing the problems that the sector identified after the passage of the first bill. I hope the minister understands that the purpose of my questions today was to finetune the bill so that it is an effective instrument for the new process we are putting through—working together, they can get the job done!