Building Act 2000

Building Act 2000

An Act to regulate the construction and maintenance of buildings and building and plumbing matters and to provide for permits, enforcement matters and resolution of disputes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Building Act 2000 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

3.   Interpretation

(1)  In this Act unless the contrary intention appears – [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012]

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] accredited building practitioner means a building practitioner who is accredited under Part 4 and whose accreditation is in force and, for the purposes of Divisions 4 , 5 and 6 of Part 4 , includes a person who was accredited at the time certain building work or associated building work was done, or certain conduct engaged in, by that person;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] accreditation scheme means the accreditation scheme approved under section 19 ;

adequate washing facilities means a bath or shower required and installed in accordance with this Act;

adjoining occupier means an occupier of adjoining property;

adjoining owner means –

(a) the owner of adjoining property; and

(b) the agent of that owner appointed under section 123 ;

adjoining property includes any land that is, or is likely to be, at risk of significant damage from building work;

Advisory Committee means the Building Regulation Advisory Committee established under section 9 ;

alternative solution means an alternative building solution as defined by the Building Code of Australia;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] Appeal Tribunal means the Resource Management and Planning Appeal Tribunal established under the Resource Management and Planning Appeal Tribunal Act 1993 ;

[Section 3 Subsection (1) amended by No. 24 of 2009, s. 6, Applied:01 Jul 2009] approved disposal system means a system approved under any Act for the disposal of sewage, stormwater or trade waste;

approved form means a form approved by the Director;

approved investigator means a person approved under section 34 ;

associated building work means any of the following relating to building work:

(a) designing and documenting;

(b) inspecting, reporting and advising;

(c) making, giving or issuing any permit, certificate, notice, order, decision, determination, accreditation or authorisation under this Act;

(d) accepting any certificate under this Act;

(e) taking any action under this Act;

(f) prohibiting or permitting anything under this Act;

associated plumbing work means any of the following relating to plumbing work:

(a) designing, placing, constructing, altering or maintaining a plumbing installation;

(b) inspecting, reporting and advising;

(c) giving, issuing or making any permit, certificate, notice, order, decision, determination, accreditation or authorisation under this Act;

(d) taking any action under this Act;

(e) prohibiting or permitting anything under this Act;

[Section 3 Subsection (1) amended by No. 20 of 2006, s. 4, Applied:01 Nov 2006]

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] authorised person means –

(a) the Director; and

(b) a relevant building surveyor; and

(c) a relevant permit authority; and

(d) a relevant general manager;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012]

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] builder means –

(a) a person engaged by the owner of land or a building to manage or carry out, or certify, building work on the building and includes a construction manager and a demolisher; or

(b) if such a person does not exist or is unable to be found, the owner of that building;

building includes a proposed building, part of a building, a structure and part of a structure;

building action means –

(a) any action for damages, other than damages for death or bodily injury, incurred as a result of –

(i) [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] defective building work or defective associated building work; or

(ii) [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] defective plumbing work or defective associated plumbing work; or

(b) a counterclaim to such an action;

building certificate means a certificate referred to in section 119 ;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] Building Code of Australia means the code produced by the Australian Building Codes Board comprising –

(a) [Section 3 Subsection (1) amended by No. 20 of 2013, s. 19, Applied:20 Jun 2013] Volume One of the National Construction Code Series including any variations and additions in the Appendix Tasmania set out in the Appendices to that Volume; and

(b) [Section 3 Subsection (1) amended by No. 20 of 2013, s. 19, Applied:20 Jun 2013] Volume Two of the National Construction Code Series including any Tasmania additions set out in Appendix A to that Volume;

building line, in relation to a road, means –

(a) a line determined by by-law or planning instrument –

(i) as a building line; or

(ii) as a building set-back; or

(b) if a line is not so determined, a line which is –

(i) 18 metres from the middle of a highway or a road that is not within a city or town; or

(ii) 9 metres from the middle of a road, other than an alley, that is within a city or town;

building notice means a notice referred to in section 163 ;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] [Section 3 Subsection (1) amended by No. 52 of 2013, s. 4, Applied:19 Nov 2013] building order means an order referred to in section 40(3)(da) or section 170 , 171 , 173 or 173A ;

building owner means an owner who builds or intends to build a party wall or party structure;

building permit means a permit referred to in section 60 ;

building permit levy means a levy referred to in section 270 ;

building practitioner means a person of one of the following categories:

(a) a designer, other than a plumber, who is responsible for the design, documentation or certification of the design or inspection of building work, plumbing work, buildings or plumbing installations;

(b) [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] a building surveyor or building surveyor limited who is responsible for document assessment, certification, determination or inspection of building work or buildings;

(c) a builder who is responsible for the management, carrying out or certification of building work;

building product means any product used in building;

Building Regulations means regulations made under Division 1 of Part 13 ;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] building surveyor means a person engaged by an owner to perform building surveying functions under this Act and includes a building surveyor limited;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] building surveyor limited means a building surveyor whose building surveying functions are limited in accordance with section 51 ;

building system includes a construction method or design;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] building work means work relating to –

(a) erecting, re-erecting, constructing, altering, repairing, underpinning, demolishing or removing a building; or

(b) adding to a building; or

(c) excavating or filling incidental to an activity referred to in paragraph (a) or (b) ; or

(d) any other prescribed work;

certificate of completion (building work) means a certificate of completion referred to in section 112 ;

certificate of completion (plumbing work) means a certificate of completion referred to in section 113 ;

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003]

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] certificate of conformity has the same meaning as in the Building Code of Australia;

certificate of final inspection means a certificate referred to in section 92 ;

certificate of likely compliance means a certificate referred to in section 62 ;

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] certificate of plumbing compliance means a certificate referred to in section 113(3)(b) ;

certificate of substantial compliance means a certificate referred to in section 183 ;

certificate to proceed means a certificate referred to in section 175 ;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] Class 1-9 building means a building with a classification of –

(a) Class 1; or

(b) Class 2; or

(c) Class 3; or

(d) Class 4; or

(e) Class 5; or

(f) Class 6; or

(g) Class 7; or

(h) Class 8; or

(i) Class 9;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] Class 7b farm building means a building which has low human occupancy and –

(a) is associated with, and located on, land devoted to the practice of farming or horticulture; and

(b) is used essentially for –

(i) housing machinery and equipment; or

(ii) livestock; or

(iii) storage of agricultural or horticultural produce or materials;

classification means classification under the Building Code of Australia;

designer means an architect, engineer, draftsperson, building designer or building services designer;

[Section 3 Subsection (1) amended by No. 52 of 2013, s. 4, Applied:19 Nov 2013] dilapidated building means a building that, because of neglect, disrepair, defacement or damage, is of an appearance that is prejudicial to the visual amenity of its surroundings;

[Section 3 Subsection (1) amended by No. 52 of 2013, s. 4, Applied:19 Nov 2013] dilapidated building notice means a notice referred to in section 167B ;

[Section 3 Subsection (1) amended by No. 52 of 2013, s. 4, Applied:19 Nov 2013] dilapidated building report means a report referred to in section 167A ;

Director means the Director of Building Control appointed under section 6 ;

emergency order means an order referred to in section 162 ;

environmental health officer means a person appointed as such under the Public Health Act 1997 ;

essential safety and health features includes –

(a) safety and health equipment; and

(b) components and installations of such equipment;

essential safety and health measures includes –

(a) safety and health strategies; and

(b) management procedures relating to those strategies;

fire source feature means a fire source feature as defined in the Building Code of Australia;

fire upgrading notice means a notice referred to in section 167 ;

fire upgrading report means a report referred to in section 166 ;

function control authority means an authority –

(a) that is required under an Act to –

(i) issue a certificate, licence, registration or permit for a function or operation within a building; or

(ii) inspect or control a function or operation within a building; and

(b) that the Director specifies is a function control authority for the purpose of this Act;

Fund means the Building Administration Fund established under section 271 ;

general manager means a general manager appointed under the Local Government Act 1993 ;

historic building means a building entered in the Heritage Register under the Historic Cultural Heritage Act 1995 ;

inhabit, in relation to a building, means to stay, work, sleep, eat or cook in the building;

insurance includes –

(a) professional indemnity insurance; and

(b) a performance bond; and

(c) a guarantee; and

(d) an indemnity; and

(e) public liability insurance; and

(f) insurance relating to a particular building work or plumbing work; and

(g) insurance taken out by any body or person which relates to the work of a building practitioner; and

(h) any agreement or instrument in the nature of an item set out in paragraphs (a) to (g) ;

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] mandatory notification stage means –

(a) a stage of building work that requires notification to the building surveyor under the Building Regulations; or

(b) a stage of plumbing work that requires notification to the relevant permit authority under the Plumbing Regulations;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] National Construction Code Series means the National Construction Code Series published by the Australian Building Codes Board as amended or remade from time to time;

occupancy permit means a permit that allows the occupancy of a building;

on-site waste water management system means an on-site system for the management of waste water that is –

(a) a disposal or treatment system servicing one or more blocks; or

(b) an on-site composting toilet or system; or

(c) an on-site incinerating toilet;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012]

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] owner includes any one of the following:

(a) in the case of a fee simple estate in land, the person in whom that estate is vested;

(b) a person who has contracted to buy the building or land;

(c) in the case of land that is not registered under the Land Titles Act 1980 and is subject to a mortgage, the person for the time being holding the equity of redemption in that mortgage;

(d) in the case of land held under a tenancy for life, the person who is the life tenant;

(e) in the case of land held under a lease for a term of not less than 99 years or for a term of not less than such other prescribed period, the person who is the lessee of the land;

(f) in the case of land that has not been alienated from the Crown, the Minister, authority or other person responsible for managing the land;

(g) any other person holding a prescribed interest in a building or land;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] owner builder means –

(a) a natural person who is registered under section 30D to manage or carry out work on a Class 1-9 building; and

(b) an owner who manages or carries out building work on a Class 10 building;

party arch means an arch that –

(a) separates adjoining buildings belonging to different owners or occupied by different persons; or

(b) separates a building from a public way or a private way leading to premises in other occupation;

party fence wall means a wall that separates adjoining lands of different owners and standing on lands of different owners that –

(a) is not part of a building; or

(b) does not have footings that project into the land of another owner;

party structure means a party wall, partition, floor or other structure separating vertically or horizontally buildings that is approached by a distinct staircase or separate entrance from without;

party wall means a wall forming part of a building that –

(a) separates adjoining buildings belonging to different owners or occupied by different persons; or

(b) stands to a greater extent than the projection of the footings on lands of different owners;

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003]

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] permit authority means a person or body authorised for that purpose by the council of the municipal area in which the relevant building work, building, plumbing work or plumbing installation is located or, if the council has not made such an authorisation, the general manager of the council;

[Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] permit of substantial compliance means a permit referred to in section 186 ;

permit to proceed means a permit referred to in section 178 ;

[Section 3 Subsection (1) amended by No. 47 of 2005, Sched. 6, Applied:15 Dec 2010] [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012]

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] plumber means a person who holds a licence as a Plumber Practitioner (Certifier) under the Occupational Licensing Act 2005 , authorising him or her to carry out any plumbing work that is prescribed work within the meaning of that Act;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] Plumbing Code of Australia means the Plumbing Code of Australia set out in Volume Three of the National Construction Code Series including any variations or additions in the Tasmania Appendix set out in Appendix A to that Volume;

plumbing installation means –

(a) a system of water supply; or

(b) a system of sewage or sullage drainage or disposal; or

(c) a system of stormwater drainage, roof drainage or trade waste drainage; or

(d) an on-site waste water management system;

plumbing notice means a notice referred to in section 164 ;

plumbing order means an order referred to in section 172 ;

plumbing permit means a permit referred to in section 75 ;

plumbing product means any product used in plumbing work;

Plumbing Regulations means regulations made under Division 2 of Part 13 ;

plumbing work means any work relating to –

(a) installing, altering or maintaining a plumbing installation; or

(b) any other prescribed work;

professional misconduct means unsatisfactory professional conduct that is sufficiently serious as to justify suspension or cancellation of accreditation;

protection work means work that involves taking measures to protect an adjoining property;

public notice means a notice published –

(a) in the Gazette; or

(b) in a daily newspaper circulating generally in the State;

Recorder of Titles means the person appointed as such under the Land Titles Act 1980 ;

reporting authority means a body or person required under the Building Regulations to report on an application for a building permit or an occupancy permit;

required insurance means insurance required under section 48 ;

required report means a report required to be made in respect of a building permit or occupancy permit;

road means any land that is a public road or highway;

[Section 3 Subsection (1) amended by No. 20 of 2006, s. 4, Applied:01 Nov 2006] scheme means the scheme referred to in section 19 ;

sewerage installation means a sewerage installation as defined in the Plumbing Regulations;

[Section 3 Subsection (1) amended by No. 24 of 2009, s. 6, Applied:01 Jul 2009] sewerage system means sewers and sewerage works vested, under any Act, in a regulated entity within the meaning of the Water and Sewerage Industry Act 2008 ;

special plumbing permit means a permit referred to in section 77 ;

special-use building means a building –

(a) in respect of which a function control authority exercises control; and

(b) to which Part H of the Building Code of Australia applies;

specified means specified by the Director;

Tasmanian Plumbing Code means the code issued by the Minister under section 58 ;

temporary occupancy permit means a permit required under section 105 ;

temporary structure includes any –

(a) booth, tent or other temporary enclosure, whether or not a part of the booth, tent or enclosure is permanent; or

(b) temporary seating structure; or

(c) [Section 3 Subsection (1) amended by No. 25 of 2003, s. 4, Applied:04 Jun 2003] other prescribed structure;

testable backflow prevention device means such a device as defined in the Plumbing Regulations;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] unique plumbing product means a plumbing product or drainage product that is –

(a) a prototype; or

(b) made on-site; or

(c) purpose-built and the only one of its type; or

(d) imported from outside Australia for a one-off use; or

(e) determined by the Director to be a unique plumbing product;

unregistrable relocatable building means a relocatable building that –

(a) is not registrable as a motor vehicle or trailer; and

(b) is designed to be moved between sites;

unsatisfactory professional conduct means conduct that –

(a) falls short of a reasonable standard of competence, diligence and integrity; or

(b) only partially fulfils requirements; or

(c) wilfully disregards relevant and appropriate matters; or

(d) [Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] fails to comply with this or any other Act or prescribed law or the accreditation scheme;

[Section 3 Subsection (1) amended by No. 20 of 2012, s. 5, Applied:28 Nov 2012] wet well means a chamber for the collection of stormwater, sewage or wastewater that is fitted with a pumping device to raise the contents to an approved disposal system.

(2)  The nature, purpose or use of a building is to be determined –

(a) from its design; or

(b) if it is suitable for different purposes or uses, according to its most natural purpose or use as inferred from its design, its situation and the declared intentions of the owner when an application is made.

(3)  [Section 3 Subsection (3) inserted by No. 20 of 2012, s. 5, Applied:28 Nov 2012] A reference to the class of a building is a reference to that class as set out in the Building Code of Australia.

4.   Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

5.   Act prevails

[Section 5 Amended by No. 60 of 2004, Sched. 6, Applied:04 Apr 2005] [Section 5 Amended by No. 20 of 2011, Sched. 2, Applied:31 Aug 2011] This Act prevails over the provisions of any other Act or any regulation, rule, by-law, guidelines, planning instrument, standard, condition, determination or directive made under any other Act relating to the design of any building, building work or plumbing work.

5A.   Authorised person may exercise powers in respect of accretions from sea

[Section 5A Inserted by No. 20 of 2012, s. 6, Applied:28 Nov 2012] An authorised person may exercise his or her powers under this Act in respect of –

(a) any accretion from the sea, whether natural or unnatural; and

(b) any part of the seashore to the low-water mark; and

(c) any bridge, jetty, wharf, boat-house or other structure; and

(d) any area of the sea in, on, over or under which any building or building work is related to, or affects, any adjacent land.

PART 2 - Administration

Division 1 - Director of Building Control

6.   Director of Building Control

[Section 6 Amended by No. 25 of 2003, s. 5, Applied:04 Jun 2003] The Minister administering the State Service Act 2000 may appoint a person employed under that Act to be the Director of Building Control and that person holds that office in conjunction with a position or an office under that Act.

7.   General functions of Director

The Director has the following functions:

(a) to advise the Minister about all matters under this Act and the administration of this Act;

(b) to advise the Minister on legislation regarding matters relating to building and plumbing;

(c) to liaise with any permit authority or council on its functions under this Act;

(d) to liaise with the building and plumbing industries and other interested groups or bodies on matters relating to building and plumbing;

(e) to liaise with, and represent the State on, in respect of any matter under this Act, any national body established to deal with matters relating to building and plumbing;

(f) to facilitate training in respect of matters under this Act;

(g) to publish reports and disseminate information on matters relating to building and plumbing;

(h) [Section 7 Amended by No. 20 of 2006, s. 5, Applied:01 Nov 2006] [Section 7 Amended by No. 20 of 2012, s. 7, Applied:28 Nov 2012] to audit the performance of the following:

(i) owners;

(ii) owner builders;

(iii) plumbers;

(iv) building practitioners;

(v) permit authorities;

(vi) general managers;

(vii) councils;

(ha) [Section 7 Amended by No. 20 of 2006, s. 5, Applied:01 Nov 2006] to carry out such other functions as are imposed on the Director under this Act;

(hb) [Section 7 Amended by No. 20 of 2006, s. 5, Applied:01 Nov 2006] to monitor compliance by accredited building practitioners with Part 4 ;

(i) to carry out any other function the Minister determines.

7A.   Powers of Director

[Section 7A Inserted by No. 20 of 2012, s. 8, Applied:28 Nov 2012] The Director has the power to do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of his or her functions under this Act.

8.   Assistance to Director

(1)  [Section 8 Subsection (1) amended by No. 25 of 2003, s. 6, Applied:04 Jun 2003] The Director may make arrangements with the Head of an Agency, within the meaning of the State Service Act 2000 , for employees employed in that Agency to be made available to the Director to enable the Director to perform his or her functions and exercise his or her powers under this Act.

(2)  A person may be made available to the Director in conjunction with a position in the State Service.

Division 2 - Building Regulation Advisory Committee

9.   Advisory Committee

(1)  There is established the Building Regulation Advisory Committee.

(2)  The Advisory Committee consists of –

(a) the Director, who is the chairperson; and

(b) at least 9 other members appointed by the Minister from nominations made under subsection (3) who between them have knowledge and expertise in all of the following areas:

(i) building surveying;

(ii) architecture;

(iii) engineering;

(iv) building;

(v) plumbing;

(vi) local government;

(vii) firefighting and fire safety;

(viii) the interests of the community;

(ix) environmental and public health; and

(c) any other person appointed by the Minister.

(3)  The Minister, by public notice, is to call for nominations for membership of the Advisory Committee.

(4)  Schedule 1 has effect with respect to the membership and meetings of the Advisory Committee.

10.   Functions of Advisory Committee

(1)  The Advisory Committee has the following functions:

(a) to advise the Minister on the administration of this Act;

(b) to advise the Minister in relation to proposed regulations under this Act;

(c) to investigate and report to the Minister on any matter related to this Act that is referred to it by the Minister;

(ca) [Section 10 Subsection (1) amended by No. 20 of 2006, s. 6, Applied:01 Nov 2006] to advise the Minister in relation to a scheme;

(d) any other function the Minister determines in relation to building and plumbing matters;

(e) to advise the Minister in relation to matters relating to the Fund.

(2)  The Advisory Committee may request the Director to make arrangements for the provision of services of a body or person to assist it in performing its functions.

Division 3 - Delegation

11.   Delegation

(1)  The Minister may delegate to any person any of the Minister's powers and functions under this Act, other than this power of delegation.

(2)  The Director may delegate to any person any of the Director's powers and functions under this Act, other than this power of delegation.

(3)  A permit authority may delegate to any person any of its powers and functions under this Act, other than this power of delegation.

(4)  A council may delegate to any person any of its powers and functions under this Act, other than this power of delegation.

(5)  A general manager may delegate to any person any of the general manager's powers and functions under this Act, other than this power of delegation.

PART 3 - Duties of persons

12.   Duties of owners

(1)  The owner of a building who authorises building work in respect of the building, so far as is reasonably practicable, is to ensure that –

(a) any person engaged to carry out the building work and associated building work is an accredited building practitioner if so required under this Act; and

(b) correct information is provided to any person engaged to carry out the building work and associated building work; and

(c) the building or land on which the building work is to be carried out is clearly identifiable; and

(d) provisions for the protection of adjoining property are carried out in accordance with this Act; and

(e) the building is not occupied until an occupancy permit has been issued; and

(f) sufficient information is supplied to the next owner for that owner to maintain the building in accordance with this Act.

(2)  [Section 12 Subsection (2) amended by No. 47 of 2005, Sched. 1, Applied:15 Dec 2010] An owner who engages a person to carry out any plumbing work is to ensure, so far as is reasonably practicable, that the person is a plumber if so required under the Occupational Licensing Act 2005 .

(3)  An owner who engages a person to design plumbing work is to ensure, so far as is reasonably practicable, that the person is –

(a) an accredited building practitioner; or

(b) a plumber.

(4)  The owner of a building, so far as is reasonably practicable, is to ensure that the building is used and maintained for the intended purpose in accordance with this Act.

13.   Duties of designers

A designer is to ensure that –

(a) he or she acts only within the area of his or her competence; and

(b) so far as is reasonably practicable –

(i) the design of the building or plumbing work is in accordance with the standards and requirements of this Act; and

(ii) the documentation relating to the design includes sufficient information for the assessment of the work in accordance with this Act; and

(iii) the documentation relating to the design is sufficiently detailed for a builder or a plumber to carry out the work in accordance with the documents and this Act.

14.   Duties of builders and plumbers

(1)  A builder or plumber is to ensure that he or she acts only within the area of his or her competence.

(2)  A builder who carries out building work or a plumber who carries out plumbing work is to ensure that –

(a) a relevant permit, authorisation or notification is issued for the work before it is commenced; and

(b) any directions under this Act are complied with.

(3)  A builder who carries out building work or a plumber who carries out plumbing work, so far as is reasonably practicable, is to ensure that –

(a) the work is carried out in accordance with the relevant permit or authorisation and this Act; and

(b) the quality of the materials used in the work is in accordance with the relevant permit or authorisation and this Act; and

(c) [Section 14 Subsection (3) amended by No. 20 of 2012, s. 9, Applied:28 Nov 2012] the work is located on land owned by the owner; and

(d) the work is carried out in a manner that does not cause –

(i) a public health risk; or

(ii) a danger to the public; or

(iii) a nuisance to an adjoining owner; or

(iv) damage to infrastructure; and

(e) sufficient information is supplied to the owner for the owner to maintain the building in accordance with this Act.

15.   Duties of building surveyors

(1)  A building surveyor is to ensure that he or she acts only within the area of his or her competence.

(2)  A building surveyor, as far as is reasonably practicable, is to ensure that building work is carried out in accordance with this Act.

16.   Duties of permit authorities

A permit authority who issues a building permit or plumbing permit, so far as is reasonably practicable, is to ensure that –

(a) the permit is in accordance with this Act; and

(b) any required matters are taken into account in accordance with this Act; and

(c) registers are kept in accordance with this Act; and

(d) a certificate of completion (building work) or a certificate of completion (plumbing work) is issued in accordance with this Act.

17.   Duties of reporting authorities

A reporting authority who reports on building work is to ensure that –

(a) it acts only within the area of its competence; and

(b) it reports to the building surveyor on any required matters in relation to permits in accordance with this Act; and

(c) it reports to the building surveyor on any inspections of required matters in accordance with this Act.

18.   Duties of councils

A council of a municipal area, as far as is reasonably practicable, is to –

(a) ensure that the owners of property are informed of their duties under this Act –

(i) in relation to any building work or plumbing work; and

(ii) in maintaining and using a building; and

(b) make itself aware of –

(i) building work and plumbing work; and

(ii) the use and occupation of buildings; and

(c) ensure that proceedings are instituted against any person or body failing to comply with this Act.

PART 4 - Accredited building practitioners

Division 1 - Accreditation scheme

[Division 1 of Part 4 Substituted by No. 20 of 2006, s. 7, Applied:01 Nov 2006]

19.   Approval of scheme

[Section 19 Substituted by No. 20 of 2006, s. 7, Applied:01 Nov 2006]

(1)  The Minister after consulting with the Advisory Committee may, by notice published in the Gazette, approve a scheme for the accreditation of building practitioners.

(2)  A scheme may relate to any of the following:

(a) the accreditation of building practitioners in categories and classes;

(b) the minimum qualifications, experience or competence required for the categories and classes;

(c) a code of conduct with which accredited building practitioners must comply;

(d) a process for dealing with complaints relating to the conduct of accredited building practitioners;

(e) audits of accredited building practitioners;

(f) the requirements for professional development of accredited building practitioners;

(g) any other matter determined by the Minister.

20.   Director to carry out functions in accordance with scheme

[Section 20 Substituted by No. 20 of 2006, s. 7, Applied:01 Nov 2006] The Director is to carry out his or her functions under this Part in accordance with the scheme.

21.   

[Section 21 Repealed by No. 20 of 2006, s. 7, Applied:01 Nov 2006] .  .  .  .  .  .  .  .  

22.   

[Section 22 Repealed by No. 20 of 2006, s. 7, Applied:01 Nov 2006] .  .  .  .  .  .  .  .  

Division 2 - Accreditation

23.   Interpretation

[Section 23 Subsection (1) amended by No. 20 of 2006, s. 8, Applied:01 Nov 2006] [Section 23 Subsection (1) amended by No. 73 of 2004, s. 4, Applied:17 Dec 2004] [Section 23 Subsection (3) amended by No. 47 of 2005, Sched. 1, Applied:15 Dec 2010] [Section 23 Substituted by No. 20 of 2012, s. 10, Applied:28 Nov 2012] In this Division –

accreditation card means an identification card issued under the scheme to an accredited building practitioner by the Director;

accreditation number means a unique personal identification number issued under the scheme to an accredited building practitioner by the Director;

certificate of accreditation means a certificate issued under section 27 by the Director;

use, in relation to practitioner accreditation, includes the use of the personal particulars, accreditation certificate, accreditation number or accreditation card of an accredited building practitioner for the purpose of –

(a) entering into a contract for building work or associated building work; or

(b) managing or carrying out building work or associated building work; or

(c) making an application for a building permit; or

(d) obtaining authorisation to start building work.

23A.   Persons must be accredited for certain work

[Section 23A Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012]

(1)  A person must not manage, carry out or enter into a contract to manage or carry out the work of a building practitioner in connection with building work which requires a building permit, and the cost of which exceeds $5 000, unless the person is –

(a) accredited under this Part in the relevant category and class as specified in the scheme; or

(b) a building practitioner, being a body corporate or partnership, that complies with section 25 ; or

(c) an owner builder registered under section 30D ; or

(d) exempt from accreditation under subsection (2) .

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 250 penalty units; or

(b) a body corporate, a fine not exceeding 750 penalty units.

(2)  The following persons are exempt from accreditation:

(a) a person engaged or employed by a building practitioner body corporate or partnership that complies with section 25 , or an accredited building practitioner or a registered owner builder, to carry out building work on their behalf;

(b) a plumber carrying out or managing the replacement of roof decking which requires a building permit;

(c) a plumber carrying out or managing a class of plumbing work that requires a building permit and is prescribed work under the Occupational Licensing Act 2005 ;

(d) a person carrying out or managing electrical work which is prescribed work under the Occupational Licensing Act 2005 and requires a building permit.

23B.   Persons must not purport to be accredited

[Section 23B Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012] A person who is not accredited under this Part must not purport to be an accredited building practitioner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 250 penalty units; or

(b) a body corporate, a fine not exceeding 750 penalty units.

23C.   Persons must be accredited to do work of building surveyor, &c.

[Section 23C Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012] A natural person must not carry out the work of a building surveyor or a building surveyor limited unless the person is accredited in the relevant category and class as specified in the scheme.

Penalty:  Fine not exceeding 250 penalty units.

23D.   Practitioners must not purport to be accredited in a particular category or class

[Section 23D Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012]

(1)  An accredited building practitioner who is not accredited in a particular category or class must not purport to be accredited in that category or class.

Penalty:  Fine not exceeding 250 penalty units.

(2)  A person must not assist a person who is not accredited in a particular category or class to purport to be accredited in that category or class.

Penalty:  Fine not exceeding 250 penalty units.

23E.   Practitioners must not use another practitioner’s accreditation

[Section 23E Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012] An accredited building practitioner must not use another accredited building practitioner’s accreditation.

Penalty:  Fine not exceeding 250 penalty units.

23F.   Practitioners must not lend or allow use of their accreditation

[Section 23F Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012]

(1)  Except as provided in subsection (2) , an accredited building practitioner must not lend, or allow another person to use, the accredited building practioner's practitioner accreditation.

Penalty:  Fine not exceeding 250 penalty units.

(2)  Subsection (1) does not prohibit the use of practitioner accreditation for the ordinary business activities of a body corporate or partnership in accordance with section 25 .

23G.   Non-accredited persons must not use practitioner accreditation

[Section 23G Inserted by No. 20 of 2012, s. 10, Applied:28 Nov 2012]

(1)  Except as provided in subsection (2) , a person must not use practitioner accreditation unless the person is accredited under this Part.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 250 penalty units; or

(b) a body corporate, a fine not exceeding 750 penalty units.

(2)  Subsection (1) does not prohibit the use of practitioner accreditation for the ordinary business activities of a body corporate or partnership in accordance with section 25 .

24.   Professional misconduct

[Section 24 Substituted by No. 20 of 2012, s. 10, Applied:28 Nov 2012] If an accredited building practitioner commits an offence under this Division, the accredited building practitioner is guilty of professional misconduct.

25.   Bodies corporate and partnerships

[Section 25 Substituted by No. 20 of 2012, s. 10, Applied:28 Nov 2012]

(1)  If a building practitioner is a body corporate (including the Crown) or a partnership, and is responsible for the carrying out or management of building work or associated building work, the person who is to be accredited under this Part is –

(a) a director of the body; or

(b) a partner in the partnership; or

(c) a permanent employee nominated by the body, the Crown or the partners.

(2)  Notwithstanding subsection (1) , a municipal council may engage through a contract for services an accredited building surveyor to perform statutory functions under this Act.

(3)  An accredited building surveyor engaged by a municipal council is not required to be a permanent employee of that council.

26.   Application for accreditation

(1)  [Section 26 Subsection (1) amended by No. 20 of 2006, s. 9, Applied:01 Nov 2006] A person may apply to the Director to be an accredited building practitioner in a particular category and class as specified in the scheme.

(2)  [Section 26 Subsection (2) amended by No. 20 of 2006, s. 9, Applied:01 Nov 2006] The Director may –

(a) grant an application for accreditation with or without conditions; or

(b) refuse to grant the application if satisfied that the applicant –

(i) does not have the qualifications, experience or competence to perform the functions of or to carry out work of an accredited building practitioner as appropriate for the category and class of accreditation applicable to the applicant; or

(ii) is not, or is not likely to be, adequately covered by the required insurance; or

(iia) [Section 26 Subsection (2) amended by No. 20 of 2012, s. 11, Applied:28 Nov 2012] does not satisfy the prescribed personal probity requirements for accreditation; or

(iib) [Section 26 Subsection (2) amended by No. 20 of 2012, s. 11, Applied:28 Nov 2012] has previously had an accreditation as a building practitioner refused, suspended or cancelled, either in Tasmania or another State or a Territory; or

(iii) does not, or is not likely to, meet any requirement of the scheme.

(3)  [Section 26 Subsection (3) amended by No. 20 of 2006, s. 9, Applied:01 Nov 2006] [Section 26 Subsection (3) omitted by No. 20 of 2012, s. 11, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

(4)  [Section 26 Subsection (4) amended by No. 20 of 2006, s. 9, Applied:01 Nov 2006] The Director is to provide the applicant with written reasons for the refusal to grant an application for accreditation.

27.   Certificate of accreditation

(1)  [Section 27 Subsection (1) amended by No. 20 of 2006, s. 10, Applied:01 Nov 2006] The Director is to issue a certificate of accreditation in the approved form to a person who is an accredited building practitioner.

(2)  [Section 27 Subsection (2) omitted by No. 20 of 2006, s. 10, Applied:01 Nov 2006] [Section 27 Subsection (2) inserted by No. 20 of 2012, s. 12, Applied:28 Nov 2012] The Director may cancel a certificate of accreditation if he or she is satisfied that the certificate was obtained by fraud or the making of a false declaration.

(3)  [Section 27 Subsection (3) omitted by No. 20 of 2006, s. 10, Applied:01 Nov 2006] .  .  .  .  .  .  .  .  

28.   Period of certificate

(1)  [Section 28 Subsection (1) amended by No. 20 of 2012, s. 13, Applied:28 Nov 2012] A certificate of accreditation remains in force for a period of one year after the date on which it is issued.

(2)  A certificate of accreditation expires if –

(a) it is not renewed; or

(ab) [Section 28 Subsection (2) amended by No. 18 of 2009, s. 4, Applied:16 Jun 2009] [Section 28 Subsection (2) amended by No. 20 of 2012, s. 13, Applied:28 Nov 2012] the accredited building practitioner does not pay the prescribed annual building practitioner accreditation fee within 28 days after the date it falls due; or

(b) the accredited building practitioner is no longer adequately covered by the required insurance.

29.   Renewal of certificates

(1)  [Section 29 Subsection (1) amended by No. 20 of 2006, s. 11, Applied:01 Nov 2006] An accredited building practitioner may apply to the Director for the renewal of a certificate of accreditation.

(2)  An application for renewal is to be made not earlier than 3 months before the certificate expires.

(3)  [Section 29 Subsection (3) amended by No. 20 of 2006, s. 11, Applied:01 Nov 2006] The Director is to issue a renewal of a certificate of accreditation if satisfied that the applicant –

(a) has complied with this Part; and

(b) is covered by the required insurance; and

(c) [Section 29 Subsection (3) amended by No. 20 of 2012, s. 14, Applied:28 Nov 2012] has undertaken professional development as required by the scheme; and

(d) [Section 29 Subsection (3) amended by No. 20 of 2012, s. 14, Applied:28 Nov 2012] satisfies the prescribed probity requirements for accreditation; and

(e) [Section 29 Subsection (3) amended by No. 20 of 2012, s. 14, Applied:28 Nov 2012] is not subject to the suspension or cancellation of the applicant's accreditation.

Division 3 - Owner builders

[Division 3 of Part 4 Substituted by No. 20 of 2012, s. 15, Applied:28 Nov 2012]

30.   Interpretation of Division

[Section 30 Subsection (1) amended by No. 20 of 2006, s. 12, Applied:01 Nov 2006] [Section 30 Substituted by No. 20 of 2012, s. 15, Applied:28 Nov 2012] In this Division –

building includes all buildings or parts of buildings which together are classified as a single Class 1-9 building.

30A.   Owner to be registered as owner builder in certain circumstances

[Section 30A Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012]

(1)  Subject to subsection (3) , a natural person who is an owner of land or a building where building work is, or is intended to be, carried out or managed by the owner must be registered as an owner builder under section 30D if –

(a) the work requires a building permit; and

(b) the estimated cost of the work exceeds $5 000; and

(c) the work is on a Class 1-9 building, other than a Class 7b farm building.

(2)  If the land or building is jointly owned, all the owners must apply for registration as an owner builder.

Penalty:  Fine not exceeding 100 penalty units.

(3)  Subsection (1) does not apply if the building work is to be managed or carried out by a builder accredited under this Part in the relevant category and class as specified in the scheme.

30B.   Eligibility for registration as owner builder

[Section 30B Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012]

(1)  A person is not eligible to apply for registration as an owner builder if –

(a) the person is not a natural person; or

(b) the person is not an owner or a joint owner of the particular land or building; or

(c) the person is not carrying out or managing, or is not intending to carry out or manage, building work on a particular building or land or is not intending to have that building work carried out or managed on their behalf by another joint owner of that building or land; or

(d) the building work –

(i) does not require a building permit; and

(ii) has an estimated cost which does not exceed $5 000; and

(iii) is not on a Class 1-9 building, or is on a Class 7b farm building; or

(e) the person is carrying on the business of building; or

(f) the person, other than as a builder accredited under the scheme, has already carried out or managed building work on 2 buildings of any classification other than any Class 10 buildings or Class 7b farm buildings, in the last 10 years, not including any years before 1 July 2004; or

(g) the person who is, or will be, responsible for carrying out or managing the building work has not successfully completed an approved owner builder training course within the 12-month period prior to the date of an application for registration as an owner builder.

(2)  If an application is made by more than one person, subsection (1)(g) is complied with if one of the applicants has successfully completed an approved course.

(3)  The Director may, by notice in the Gazette, approve a particular course or courses, or a course or courses provided by a particular person or body, for the purposes of subsection (1)(g) .

(4)  A notice under subsection (3) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

30C.   Application to be registered as owner builder

[Section 30C Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012]

(1)  An application to the Director to be registered as an owner builder is to be made by a building surveyor, in the approved form, on behalf of a person wishing to be registered as an owner builder.

(2)  A person must not make a false declaration in an application for owner builder registration.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

30D.   Granting of registration as owner builder

[Section 30D Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012]

(1)  If the Director is satisfied that an applicant for registration as an owner builder in respect of building work on a particular building or land –

(a) has engaged a building surveyor for the building work and the building surveyor has applied for registration on the applicant’s behalf; and

(b) is eligible to be granted registration as an owner builder –

he or she must grant owner builder registration to the applicant and issue a certificate in the approved form.

(2)  If the Director is not satisfied as set out in subsection (1) , he or she must refuse to grant the application.

(3)  If the Director refuses to grant an application, the Director is to provide the applicant with written reasons for the refusal.

(4)  The Director may cancel an owner builder registration certificate if he or she is satisfied that –

(a) the certificate was obtained by fraud or by making a false declaration; or

(b) the applicant did not manage or carry out any building work to which that registration application related.

30E.   Subsequent building work on a particular building

[Section 30E Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012] Where the Director has granted owner builder registration to a person with regard to building work on a particular building, that person does not need to apply for registration for subsequent building work on that building.

30F.   Special circumstances

[Section 30F Inserted by No. 20 of 2012, s. 15, Applied:28 Nov 2012] Notwithstanding section 30B , the Director, on application by a person who is not eligible to be registered as an owner builder may register the person as an owner builder in respect of particular building work if the Director considers special circumstances exist.

Division 4 - Complaints

32.   Complaints

(1)  [Section 32 Subsection (1) amended by No. 20 of 2012, s. 16, Applied:28 Nov 2012] [Section 32 Subsection (1) amended by No. 20 of 2006, s. 14, Applied:01 Nov 2006] A person or the Crown may make a complaint to the Director in respect of the professional misconduct or unsatisfactory professional conduct of an accredited building practitioner.

(2)  [Section 32 Subsection (2) substituted by No. 20 of 2012, s. 16, Applied:28 Nov 2012] A complaint is to –

(a) be made within 6 years after the commencement of the building work or associated building work to which it relates; and

(b) be in writing; and

(c) contain particulars of the grounds of the complaint; and

(d) be supported by a statutory declaration.

(3)  [Section 32 Subsection (3) amended by No. 20 of 2006, s. 14, Applied:01 Nov 2006] [Section 32 Subsection (3) substituted by No. 20 of 2012, s. 16, Applied:28 Nov 2012] The Director may –

(a) require the complainant to give further particulars of the complaint supported by a statutory declaration; and

(b) undertake preliminary inquiries into the particulars of the complaint.

(4)  [Section 32 Subsection (4) amended by No. 20 of 2006, s. 14, Applied:01 Nov 2006] The Director, by notice in writing sent to the complainant, may dismiss any complaint without investigation if –

(a) further particulars are not given when required; or

(b) the complaint or further particulars are not supported by statutory declaration; or

(c) [Section 32 Subsection (4) amended by No. 20 of 2012, s. 16, Applied:28 Nov 2012] the complaint is vexatious or frivolous; or

(d) [Section 32 Subsection (4) amended by No. 20 of 2012, s. 16, Applied:28 Nov 2012] after preliminary inquiries the Director has determined that the building practitioner has no case to answer.

(5)  [Section 32 Subsection (5) inserted by No. 20 of 2012, s. 16, Applied:28 Nov 2012] A complaint is received by the Director if –

(a) the requirements of subsections (2) and (3) have been met; and

(b) the complaint is not dismissed under subsection (4) .

(6)  [Section 32 Subsection (6) inserted by No. 20 of 2012, s. 16, Applied:28 Nov 2012] If the Director is satisfied that an accredited building practitioner is, or may be, guilty of unsatisfactory professional conduct or professional misconduct, the Director may deal with the matter as if it were a complaint made by a person other than the Director.

33.   Notification to building practitioner

(1)  [Section 33 Subsection (1) amended by No. 20 of 2006, s. 15, Applied:01 Nov 2006] After receiving a complaint, the Director, by written notice, is to –

(a) inform the accredited building practitioner within the specified period of the nature of the complaint; and

(b) [Section 33 Subsection (1) amended by No. 20 of 2012, s. 17, Applied:28 Nov 2012] provide to the accredited building practitioner any relevant documents available under the Right to Information Act 2009 ; and

(c) invite the accredited building practitioner to make, within the period stated in the notice, representations about the complaint.

(2)  The period stated in the notice is to be at least 14 days after the date of the notice.

(3)  Any representation made under subsection (1)(c) forms part of the particulars of the complaint.

Division 5 - Investigations

34.   Approved investigator

[Section 34 Amended by No. 20 of 2006, s. 16, Applied:01 Nov 2006] For the purpose of this Division, the Director may approve a person as an approved investigator on any terms and conditions he or she considers appropriate.

35.   Investigations

(1)  [Section 35 Subsection (1) amended by No. 20 of 2006, s. 17, Applied:01 Nov 2006] The Director or approved investigator is to conduct an investigation into a complaint as soon as practicable after receiving the complaint.

(2)  [Section 35 Subsection (2) amended by No. 20 of 2006, s. 17, Applied:01 Nov 2006] The Director or approved investigator may deal with one or more complaints about an accredited building practitioner in the same investigation.

(3)  [Section 35 Subsection (3) amended by No. 20 of 2012, s. 18, Applied:28 Nov 2012] [Section 35 Subsection (3) amended by No. 20 of 2006, s. 17, Applied:01 Nov 2006] If during an investigation the Director or approved investigator is satisfied there is a matter about which a complaint could have been made against an accredited building practitioner, he or she may investigate the matter as if a complaint had been made about the matter.

(4)  [Section 35 Subsection (4) amended by No. 20 of 2006, s. 17, Applied:01 Nov 2006] The Director or approved investigator is to invite the accredited building practitioner who is the subject of a complaint to make submissions in relation to the complaint.

36.   Production of documents

(1)  [Section 36 Subsection (1) amended by No. 20 of 2006, s. 18, Applied:01 Nov 2006] [Section 36 Subsection (1) substituted by No. 20 of 2012, s. 19, Applied:28 Nov 2012] The Director or approved investigator, by written notice, may require a person, including the Crown, to produce a document relevant to an investigation.

(2)  The notice –

(a) is to state the time by which and place at which the document is to be produced; and

(b) may require the document to be verified by statutory declaration.

(3)  The time specified in the notice is to be a reasonable time.

(4)  [Section 36 Subsection (4) substituted by No. 20 of 2012, s. 19, Applied:28 Nov 2012] A person, including the Crown, must comply with a notice under subsection (1) .

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5)  [Section 36 Subsection (5) amended by No. 20 of 2006, s. 18, Applied:01 Nov 2006] The Director or an approved investigator may –

(a) inspect any document produced under this section; and

(b) copy all or part of the document.

37.   Powers of entry and inspection

[Section 37 Amended by No. 20 of 2006, s. 19, Applied:01 Nov 2006] [Section 37 Substituted by No. 20 of 2012, s. 20, Applied:28 Nov 2012]

(1)  The Director or an approved investigator, at all reasonable times, may –

(a) access any building, temporary structure, building work or plumbing work; and

(b) enter any premises for the purpose of exercising any power or performing any function under this Act.

(2)  An entry under subsection (1) may be carried out in the case of a Class 1 building or a Class 4 building, or a sole occupancy unit in a Class 2 building or Class 3 building –

(a) with the consent of the occupier; or

(b) if authorised by a search warrant under section 38 .

(3)  An entry under subsection (1) may be made to any premises at any time if –

(a) the safety of the public or any occupant is at risk; or

(b) the building or temporary structure is affected by an emergency order.

38.   Warrant

(1)  [Section 38 Subsection (1) amended by No. 20 of 2006, s. 20, Applied:01 Nov 2006] The Director or an approved investigator may apply to a magistrate for a warrant to enter and inspect a specified building.

(2)  A magistrate may require information to be provided orally or by affidavit before issuing the warrant.

(3)  [Section 38 Subsection (3) amended by No. 20 of 2006, s. 20, Applied:01 Nov 2006] A magistrate may issue a warrant if satisfied that there are reasonable grounds for the Director or approved investigator to enter and inspect the building for the purpose of this Act.

(4)  A warrant is to specify –

(a) the building in respect of which it is made; and

(b) the times during which entry and inspection may be made; and

(c) the day on which the warrant ceases to have effect, which is to be not more than 14 days after its issue.

(5)  [Section 38 Subsection (5) amended by No. 20 of 2006, s. 20, Applied:01 Nov 2006] The Director or approved investigator named in the warrant may enter and inspect the specified building using any necessary and reasonable help and force.

39.   Misconduct and offences

[Section 39 Amended by No. 20 of 2006, s. 21, Applied:01 Nov 2006] [Section 39 Substituted by No. 20 of 2012, s. 21, Applied:28 Nov 2012]

(1)  An accredited building practitioner is guilty of professional misconduct if he or she –

(a) fails to assist and cooperate with an investigation; or

(b) misleads or obstructs the Director or an approved investigator in the exercise of any power or performance of any function under this Division.

(2)  A person must not –

(a) assault, delay, obstruct, hinder or impede the Director or an approved investigator in the exercise of any power or performance of any function under this Act; or

(b) forge or counterfeit any written evidence of appointment of an approved investigator; or

(c) make use of any forged, counterfeited or false written evidence of such an appointment; or

(d) impersonate an approved investigator; or

(e) falsely pretend to be an approved investigator.

Penalty:  Fine not exceeding 100 penalty units.

40.   Decision of Director

(1)  [Section 40 Subsection (1) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] An approved investigator is to provide a report of an investigation carried out by him or her to the Director.

(2)  [Section 40 Subsection (2) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] After investigating a complaint or receiving a report from an approved investigator, the Director may decide that the accredited building practitioner to whom the complaint or report relates –

(a) is guilty of unsatisfactory professional conduct; or

(b) is guilty of professional misconduct; or

(c) is not guilty of professional misconduct or unsatisfactory professional conduct.

(3)  [Section 40 Subsection (3) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] If the Director makes a decision under subsection (2)(a) , he or she may –

(a) caution or reprimand the accredited building practitioner; and

(b) [Section 40 Subsection (3) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] impose any condition he or she considers appropriate on the building practitioner's accreditation; and

(c) [Section 40 Subsection (3) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] direct the accredited building practitioner to complete any course or training directed by the Director; and

(d) [Section 40 Subsection (3) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] direct the accredited building practitioner to report on his or her practice as an accredited building practitioner in the manner directed by the Director; and

(da) [Section 40 Subsection (3) amended by No. 20 of 2012, s. 22, Applied:28 Nov 2012] order an accredited building practitioner to carry out work at the accredited building practitioner's expense as if the Director were exercising the powers of a general manager or a building surveyor under section 170(2)(b)(ii) and may issue that order without issuing a prior building notice; and

(db) [Section 40 Subsection (3) amended by No. 20 of 2012, s. 22, Applied:28 Nov 2012] impose reasonable and relevant conditions on an order under paragraph (da) ; and

(e) [Section 40 Subsection (3) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] [Section 40 Subsection (3) amended by No. 20 of 2012, s. 22, Applied:28 Nov 2012] impose a fine not exceeding 100 penalty units.

(3A)  [Section 40 Subsection (3A) inserted by No. 20 of 2012, s. 22, Applied:28 Nov 2012] An order under subsection (3)(da) remains in force until complied with or revoked.

(3B)  [Section 40 Subsection (3B) inserted by No. 20 of 2012, s. 22, Applied:28 Nov 2012] A person who fails to comply with an order under subsection (3)(da) is guilty of professional misconduct.

(4)  [Section 40 Subsection (4) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] If the Director makes a decision under subsection (2)(b) , he or she may –

(a) [Section 40 Subsection (4) amended by No. 20 of 2006, s. 22, Applied:01 Nov 2006] suspend the building practitioner's accreditation for any period he or she considers appropriate; or

(b) cancel the building practitioner's accreditation.

(5)  [Section 40 Subsection (5) inserted by No. 20 of 2012, s. 22, Applied:28 Nov 2012] If the Director considers it to be in the public interest to do so, he or she may publish details of a suspension or cancellation under this section in such a manner as he or she considers will best bring the suspension or cancellation to the attention of persons affected, or likely to be affected, by it.

(6)  [Section 40 Subsection (6) inserted by No. 20 of 2012, s. 22, Applied:28 Nov 2012] A building practitioner subject to an order under subsection (3)(da) must comply with the order.

Penalty:  Fine not exceeding 100 penalty units.

41.   Notice of decision by Director

(1)  [Section 41 Subsection (1) amended by No. 20 of 2006, s. 23, Applied:01 Nov 2006] The Director, by notice in writing served on the complainant and the accredited building practitioner, is to notify –

(a) the decision reached under section 40 ; and

(b) the reason for that decision; and

(c) that an appeal may be made under Division 6 .

(2)  The notice takes effect –

(a) [Section 41 Subsection (2) amended by No. 20 of 2012, s. 23, Applied:28 Nov 2012] if an appeal is made under Division 6 and the Appeal Tribunal makes a decision in accordance with section 40(2)(a) or (b) on the date of that decision; or

(b) if an appeal is not made under Division 6 , at the end of 28 days after the date of service of the notice.

(3)  A person must comply with the notice when it takes effect.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

(4)  [Section 41 Subsection (4) amended by No. 20 of 2012, s. 23, Applied:28 Nov 2012] A person who fails to comply with a notice in respect of a decision under section 40(3)(b) , (c) , (d) , (da) or (e) when it takes effect is guilty of professional misconduct.

Division 6 - Review of Director's decisions

42.   Application for review

[Section 42 Subsection (1) amended by No. 20 of 2006, s. 24, Applied:01 Nov 2006] [Section 42 Subsection (1) amended by No. 25 of 2003, s. 7, Applied:04 Jun 2003] [Section 42 Substituted by No. 20 of 2012, s. 25, Applied:28 Nov 2012]

(1)  A building practitioner may apply to the Appeal Tribunal for the review of any decision or action of the Director under section 26 or 40 .

(2)  A complainant may apply to the Appeal Tribunal for the review of any decision or action of the Director under section 32 .

(3)  An applicant for registration as an owner builder under Division 3 of Part 4 may apply to the Appeal Tribunal for the review of a decision of the Director in relation to the grant or refusal to grant owner builder registration under section 30D for proposed building work.

(4)  An application is to be made within 28 days after the building practitioner, complainant or applicant receives notification of the decision or action to be reviewed.

43.   Review by Appeal Tribunal

[Section 43 Subsection (2) amended by No. 20 of 2006, s. 25, Applied:01 Nov 2006] [Section 43 Substituted by No. 20 of 2012, s. 25, Applied:28 Nov 2012]

(1)  In hearing an application for review in relation to a decision or action of the Director under section 26 ,  30D , 32 or 40 , the Appeal Tribunal may exercise the same powers as if it were the Director.

(2)  Notwithstanding subsection (1) , the Appeal Tribunal may rely on a report relied on by the Director in a matter being reviewed.

44.   Decision of Appeal Tribunal

(1)  [Section 44 Subsection (1) amended by No. 20 of 2012, s. 26, Applied:28 Nov 2012] After hearing an application for review, the Appeal Tribunal may –

(a) [Section 44 Subsection (1) amended by No. 20 of 2006, s. 26, Applied:01 Nov 2006] confirm the decision or action of the Director; or

(b) [Section 44 Subsection (1) amended by No. 25 of 2003, s. 8, Applied:04 Jun 2003] [Section 44 Subsection (1) amended by No. 20 of 2006, s. 26, Applied:01 Nov 2006] in the case of a refusal of the Director to grant an application for accreditation under section 26 or in the case of a decision of the Director under section 40 , quash the decision of the Director and substitute its own decision in accordance with section 26 or section 40 ; or

(ba) [Section 44 Subsection (1) amended by No. 20 of 2012, s. 26, Applied:28 Nov 2012] in the case of a decision by the Director to grant or refuse to grant an application for owner builder registration under section 30D , quash the decision of the Director and substitute its own decision in accordance with that section; or

(c) [Section 44 Subsection (1) amended by No. 25 of 2003, s. 8, Applied:04 Jun 2003] [Section 44 Subsection (1) amended by No. 20 of 2006, s. 26, Applied:01 Nov 2006] in the case of a dismissal of a complaint without investigation under section 32 , quash the decision of the Director and require him or her to investigate the complaint.

(2)  [Section 44 Subsection (2) amended by No. 20 of 2012, s. 26, Applied:28 Nov 2012] [Section 44 Subsection (2) amended by No. 20 of 2006, s. 26, Applied:01 Nov 2006] If the Appeal Tribunal makes a decision in accordance with section 40(2)(a) or (b) , it may direct the Director to take any action specified in section 40(3) or (4) .

(3)  [Section 44 Subsection (3) omitted by No. 20 of 2006, s. 26, Applied:01 Nov 2006] [Section 44 Subsection (3) inserted by No. 20 of 2012, s. 26, Applied:28 Nov 2012] The Director must give effect to a determination of the Appeal Tribunal under this Part.

45.   Notice of decision of Appeal Tribunal

(1)  [Section 45 Subsection (1) amended by No. 25 of 2003, s. 9, Applied:04 Jun 2003] [Section 45 Subsection (1) amended by No. 20 of 2006, s. 27, Applied:01 Nov 2006] [Section 45 Subsection (1) substituted by No. 20 of 2012, s. 27, Applied:28 Nov 2012] The Appeal Tribunal, by service of a notice, is to give a copy of its decision to –

(a) the building practitioner, in respect of a review of a decision under section 32 or 40 ; and

(b) the complainant, in respect of a review of a decision under section 26 ; and

(c) the applicant for owner builder registration, in respect of a review of a decision under section 30D ; and

(d) the Director, in respect of the review of a decision under section 26 ,  30D , 32 or 40 .

(2)  The notice takes effect –

(a) [Section 45 Subsection (2) amended by No. 25 of 2003, s. 9, Applied:04 Jun 2003] if an application for a review is made under section 46 and the Magistrates Court (Administrative Appeals Division) makes a decision in accordance with section 40(2)(a) or (b) , on the date of that decision; or

(b) [Section 45 Subsection (2) amended by No. 25 of 2003, s. 9, Applied:04 Jun 2003] if an application for a review is not made under section 46 , at the end of the prescribed period within the meaning of section 17 of the Magistrates Court (Administrative Appeals Division) Act 2001 .

(3)  A person must comply with the notice when it takes effect.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

46.   Appeal to Court

[Section 46 Substituted by No. 25 of 2003, s. 10, Applied:04 Jun 2003] An aggrieved person may apply under the Magistrates Court (Administrative Appeals Division) Act 2001 for a review of –

(a) [Section 46 Amended by No. 20 of 2012, s. 28, Applied:28 Nov 2012] a decision of the Appeal Tribunal under section 44(1) ; or

(b) [Section 46 Amended by No. 20 of 2012, s. 28, Applied:28 Nov 2012] a direction of the Appeal Tribunal under section 44(2) .

47.   Powers of Court on review

[Section 47 Substituted by No. 25 of 2003, s. 10, Applied:04 Jun 2003]

(1)  In addition to its powers under the Magistrates Court (Administrative Appeals Division) Act 2001 , on the determination of a review the Magistrates Court (Administrative Appeals Division) may –

(a) [Section 47 Subsection (1) amended by No. 20 of 2006, s. 28, Applied:01 Nov 2006] [Section 47 Subsection (1) amended by No. 20 of 2012, s. 29, Applied:28 Nov 2012] impose a fine not exceeding 100 penalty units on the accredited building practitioner; or

(b) order the accredited building practitioner to pay to the complainant or another person any amount that the Court considers appropriate as compensation for any costs in bringing the complaint; or

(c) make any other order that the Court considers appropriate other than an order for compensation for damages.

(2)  [Section 47 Subsection (2) amended by No. 20 of 2006, s. 28, Applied:01 Nov 2006] If, on determination of a review, the Magistrates Court (Administrative Appeals Division) orders the Director to cancel the accreditation of a building practitioner, that Court may order that the building practitioner must not reapply for accreditation by the Director within the period specified in the order.

Division 7 - Insurance

48.   Order requiring insurance

(1)  The Minister, by order published in the Gazette, may –

(a) require accredited building practitioners in particular categories or classes of building practitioners in respect of particular building work or associated building work to be covered by insurance; and

(b) determine the type and amount of such insurance; and

(c) determine the reporting requirements of the insurer; and

(d) [Section 48 Subsection (1) amended by No. 20 of 2012, s. 30, Applied:28 Nov 2012] determine the type and amount of insurance required for owner builders under.

(2)  An order takes effect on a date specified in the order, being a date at least one month after the date of its publication.

(3)  The Minister may amend, vary or revoke an order.

(4)  An order is not a statutory rule within the meaning of the Rules Publication Act 1953 .

49.   Insurance cover

A person is covered by the required insurance if –

(a) the person holds the required insurance; or

(b) the building work carried out by or on behalf of the person is covered by the required insurance; or

(c) the person is not a party to the required insurance but is specified or referred to in that insurance by name or otherwise as a person covered by that insurance.

50.   Offences relating to insurance

(1)  A person must not carry out the work of a building practitioner unless covered by the required insurance.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  [Section 50 Subsection (2) omitted by No. 20 of 2012, s. 31, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

(3)  A person who is not covered by the required insurance must not hold out as being covered by such insurance.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

PART 4A - Audits and Investigations

50A.   Audit by Director

[Section 50A Inserted by No. 20 of 2012, s. 32, Applied:28 Nov 2012]

(1)  The Director may arrange for audits to be carried out of the work of any person or body referred to in section 7(h) .

(2)  A person must not fail to assist in and cooperate with the audit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  If the Director is satisfied that an audit indicates that an accredited building practitioner is or may be guilty of unsatisfactory professional conduct or professional misconduct, the Director may deal with the matter as if it were a complaint made by a person other than the Director.

50B.   Powers of entry of Director during audit or investigation

[Section 50B Inserted by No. 20 of 2012, s. 32, Applied:28 Nov 2012]

(1)  For the purpose of ascertaining whether the provisions of this Act are being, or have been, complied with by a person, the Director, or any person authorised on the Director’s behalf, may –

(a) enter premises where the business is being carried on or on which it is believed on reasonable grounds that records relating to the business are kept; and

(b) require the production of records; and

(c) inspect and require explanations of any record; and

(d) either –

(i) take notes, copies and extracts of or from any record or statement produced or required under this section; or

(ii) remove any such record to the custody and control of the Director.

(2)  Where a record is removed under subsection (1)(d)(ii) , the Director, or any officer authorised on the Director’s behalf –

(a) may make copies of the record; and

(b) must return the record as soon as practicable.

(3)  A person must not –

(a) wilfully delay or obstruct the Director, or any person authorised on the Director’s behalf in the exercise of their powers under this section; or

(b) refuse or fail to produce, or conceal or attempt to conceal, any record or statement the person is required under subsection (1) or (2) to produce; or

(c) refuse or fail to answer a question, or give an explanation, relating to any such record or statement where the question is put to the person, or the explanation is required of the person, by a person entitled to do so; or

(d) in response to a question relating to any such record or statement, give an answer that he or she knows is false or misleading.

Penalty:  Fine not exceeding 500 penalty units.

50C.   Director may require production of records during audit or investigation

[Section 50C Inserted by No. 20 of 2012, s. 32, Applied:28 Nov 2012]

(1)  For the purpose of ascertaining whether the provisions of this Act are being, or have been, complied with, the Director, or any person authorised on the Director’s behalf, may, by instrument in writing, require a person to produce specified records, or records of a specified class or description, to a person at a place and time specified in the instrument.

(2)  Where the Director, or any person authorised on the Director’s behalf, requires production under subsection (1) of a record that is not in writing, or is not written in English, or is not decipherable on sight, the requirement to produce the record is to be taken to be a requirement to produce a statement, written in English and decipherable on sight, containing the whole of the information in the record.

(3)  A person must not refuse or fail to produce any record or statement in accordance with this section.

Penalty:  Fine not exceeding 500 penalty units.

(4)  The Director, or any person authorised on the Director’s behalf, may inspect and take notes, copies and extracts of or from any record or statement produced under this section.

PART 5 - Building surveyors

51.   Exercise of powers by building surveyor

[Section 51 Subsection (1) substituted by No. 25 of 2003, s. 11, Applied:04 Jun 2003] [Section 51 Substituted by No. 20 of 2012, s. 33, Applied:28 Nov 2012]

(1)  A building surveyor engaged by an owner to perform functions and exercise powers under this Act must perform those functions and exercise those powers.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A building surveyor limited must only exercise the powers of a building surveyor under this Act in respect of prescribed buildings or buildings of a prescribed type.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

52.   Exercise of powers prohibited

A building surveyor must not exercise any power under this Act in relation to any building work or building if the building surveyor –

(a) prepared the design of, or an alternative solution for, the building work or building; or

(b) was employed within the previous 12 months by a person who prepared the design of the building work or building; or

(c) has a direct or indirect pecuniary interest –

(i) in the person who prepared the design of the building work or building; or

(ii) in the building work or building; or

(iii) [Section 52 Amended by No. 20 of 2012, s. 34, Applied:28 Nov 2012] in any person associated with the building work or building; or

(d) [Section 52 Amended by No. 20 of 2012, s. 34, Applied:28 Nov 2012] has a potential for a conflict of interest between his or her duties to owners or the public and his or her personal or business interests; or

(e) [Section 52 Amended by No. 20 of 2012, s. 34, Applied:28 Nov 2012] has not been engaged in writing by an owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

52A.   Engagement of building surveyor

[Section 52A Inserted by No. 20 of 2012, s. 35, Applied:28 Nov 2012]

(1)  Where building work that requires the performance of functions by a building surveyor under this Act is to be undertaken, the owner or his or her agent must engage a building surveyor.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  An offer of engagement of a building surveyor is to be in writing, signed by the owner and provided to the building surveyor.

(3)  If the building surveyor wishes to accept an offer of engagement, he or she is to do so in writing provided to the owner within 7 days after receiving the offer of engagement.

53.   Referral to other building surveyors

(1)  A person must not engage a building surveyor in relation to a matter in respect of which another building surveyor has already exercised, refused to exercise or is taken to have refused to exercise any power under this Act unless the matter was referred by that other building surveyor.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A building surveyor may refer a matter to another building surveyor to be dealt with by that other building surveyor if the other building surveyor agrees.

53A.   Building surveyor may resign from engagement

[Section 53A Inserted by No. 20 of 2012, s. 36, Applied:28 Nov 2012]

(1)  A building surveyor who has been engaged by a person may, with the consent of the Director, resign from that engagement at any time.

(2)  A building surveyor may resign from an engagement without the consent of the Director at any time after the expiration of 3 years after his or her engagement.

(3)  Within 7 days after resigning from an engagement under subsection (2) , the building surveyor is to forward to the permit authority copies of all documents relevant to the building work as specified by the Director.

54.   Change of building surveyor

(1)  A person who engaged a building surveyor must not remove that building surveyor from that engagement without the consent of the Director before the building surveyor has exercised all the relevant powers under this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  If a building surveyor resigns from an engagement, dies or becomes incapable for any reason of exercising the powers for which he or she was engaged, the owner, with the consent of the Director, may engage another building surveyor.

PART 6 - Building and plumbing standards

Division 1 - Building standards

55.   Compliance with Building Code

(1)  Building work and the use and maintenance of buildings are to comply with the Building Code of Australia and this Act.

(2)  An environmental health officer, in accordance with the Building Regulations, may determine that any provision of the Building Code of Australia in relation to food premises be altered.

(3)  A building surveyor, in accordance with the Building Regulations, may determine that any provision of the Building Code of Australia in relation to farm buildings or historic buildings be altered.

(3A)  [Section 55 Subsection (3A) inserted by No. 20 of 2012, s. 37, Applied:28 Nov 2012] In determining compliance with the provisions of the Building Code of Australia, a building surveyor is to take into account any variation or non-application of the requirements of that Code following a determination by the Appeal Tribunal under section 218 or 218A .

(4)  [Section 55 Subsection (4) inserted by No. 25 of 2003, s. 12, Applied:04 Jun 2003] Despite subsection (1) , a provision of the Building Code of Australia does not apply to building work –

(a) for which a permit had been granted before the provision was adopted by the State; or

(b) if the building surveyor certifies in writing that substantial progress had been made on the design of the building before the provision was adopted by the State.

(5)  [Section 55 Subsection (5) inserted by No. 25 of 2003, s. 12, Applied:04 Jun 2003] Subsection (4) does not apply to a provision of the Building Code of Australia if the building surveyor and the owner of the land in respect of which building work is carried out agree that the provision applies to the building work.

56.   Evidence of compliance for building products and systems

A building product or building system for which a certificate of conformity is issued is evidence that the building product or building system conforms with the Building Code of Australia.

Division 2 - Plumbing standards

57.   Standards of plumbing work

[Section 57 Substituted by No. 25 of 2003, s. 13, Applied:04 Jun 2003]

(1)  Plumbing work is to comply with the Tasmanian Plumbing Code and this Act.

(2)  Despite subsection (1) , a provision of the Tasmanian Plumbing Code does not apply to plumbing work –

(a) for which a permit had been granted before the provision was adopted by the State; or

(b) if the permit authority certifies in writing that substantial progress had been made on the design of the plumbing installation before the provision was adopted by the State.

(3)  Subsection (2) does not apply to a provision of the Tasmanian Plumbing Code if the permit authority and the owner of the land in respect of which plumbing work is carried out agree that the provision applies to the plumbing work.

58.   Tasmanian Plumbing Code

[Section 58 Substituted by No. 20 of 2012, s. 38, Applied:28 Nov 2012]

(1)  The Minister may issue a code, known as the Tasmanian Plumbing Code, to provide for requirements in respect of –

(a) plumbing work, plumbing installations and plumbing products; and

(b) the testing of plumbing products and plumbing systems.

(2)  The Tasmanian Plumbing Code may adopt all, or any part or parts, of the Plumbing Code of Australia.

59.   Authorisation and accreditation

(1)  The Minister may authorise a plumbing product for the purpose of this Act subject to any condition the Minister determines.

(2)  The Minister may accredit the use of a plumbing system for the purpose of this Act subject to any condition the Minister determines.

PART 7 - Building and plumbing permits

Division 1 - Requirement for building permit

60.   Building permit required

(1)  A person must not carry out any building work unless a building permit is in force that allows the carrying out of that work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  [Section 60 Subsection (2) amended by No. 20 of 2012, s. 39, Applied:28 Nov 2012] Subsection (1) does not apply if the proposed building work –

(a) is exempted under the Building Regulations from the requirement of a building permit; or

(b) [Section 60 Subsection (2) amended by No. 20 of 2012, s. 39, Applied:28 Nov 2012] in the opinion of the building surveyor before building work commences, is either a minor alteration of, or a minor repair to, an existing building and the cost of the work does not, or is estimated to not, exceed $5 000.

(3)  [Section 60 Subsection (3) substituted by No. 20 of 2012, s. 39, Applied:28 Nov 2012] Within a specified period of forming an opinion under subsection (2)(b) , the building surveyor is to notify the permit authority in writing of that opinion and his or her reasons for it.

(4)  [Section 60 Subsection (4) inserted by No. 20 of 2012, s. 39, Applied:28 Nov 2012] Where a building surveyor has formed an opinion that work is minor alterations or minor repairs, he or she may exercise or perform any of his or her powers or functions in relation to inspections of work under Part 8 as if the work were the subject of a building permit.

61.   Building work without permit

If building work in relation to a building or part of a building is carried out without a building permit, a general manager is to take the appropriate action under Part 11 .

Division 2 - Certificates of likely compliance

62.   Certificate of likely compliance required

(1)  [Section 62 Subsection (1) amended by No. 20 of 2012, s. 40, Applied:28 Nov 2012] An owner or agent of the owner, before applying for a building permit, is to obtain a certificate of likely compliance from a building surveyor engaged by the owner or agent.

(2)  [Section 62 Subsection (2) amended by No. 20 of 2012, s. 40, Applied:28 Nov 2012] An application for a certificate of likely compliance is to be accompanied by any document or certificate specified by the Director or required by the building surveyor.

63.   Required report from reporting authority

(1)  A building surveyor is not to grant an application for a certificate of likely compliance for building work in respect of which a report is required in accordance with the Building Regulations until the report is supplied to the building surveyor.

(2)  A building surveyor is taken to have been supplied with a required report if the reporting authority fails to supply it within the period specified.

(3)  A reporting authority is taken to have supplied a report if the report is not supplied within the specified period.

(4)  A building surveyor is not required to implement anything contained in a required report.

(5)  If a building surveyor does not implement anything contained in the required report, the building surveyor is to –

(a) notify the reporting authority; and

(b) provide the reporting authority with –

(i) a copy of the certificate of likely compliance; and

(ii) the reasons for not implementing anything contained in the report.

64.   Referral of documents to function control authority

(1)  If a person makes an application for a certificate of likely compliance to build a special-use building, the building surveyor is to forward copies of the following documents to the relevant function control authority for its information within the specified period:

(a) any document submitted with the application that the building surveyor considers relevant;

(b) a referral in an approved form.

(2)  If the function control authority considers that an alteration is to be made to building work in order to comply with its requirements under any other Act, the function control authority is to notify the building surveyor of that alteration within the specified period.

65.   Special-use buildings

A building surveyor may grant an application for a certificate of likely compliance for building work to a special-use building that does not comply with this Act if –

(a) a function control authority, in exercising a power under any Act, requires that building work to be carried out; or

(b) the function control authority agrees to the building work.

66.   Consideration of application for certificate of likely compliance

In considering an application for a certificate of likely compliance, a building surveyor is to take into account the following matters:

(a) any required reports from a reporting authority;

(b) any certificate provided with the application;

(c) in relation to a special-use building, any notification given by a function control authority;

(d) any building work required to upgrade an existing special-use building by a function control authority;

(e) any standards relating to a food premises required to be altered by an environmental health officer;

(f) any need for standard requirements to be altered for a historic or farm building;

(fa) [Section 66 Amended by No. 20 of 2012, s. 41, Applied:28 Nov 2012] the requirements of this Act and the Building Code of Australia;

(fb) [Section 66 Amended by No. 20 of 2012, s. 41, Applied:28 Nov 2012] any determination made by the Appeal Tribunal under section 218 or 218A ;

(fc) [Section 66 Amended by No. 20 of 2012, s. 41, Applied:28 Nov 2012] a certificate of the responsible designer;

(g) [Section 66 Amended by No. 18 of 2009, s. 5, Applied:16 Jun 2009] any relevant requirements of any permit or consent granted or issued under any other Act.

67.   Granting certificate of likely compliance

(1)  A building surveyor is to grant an application for a certificate of likely compliance within the specified period if –

(a) the application is in accordance with section 62 ; and

(b) satisfied that the building work to which it applies is likely to comply with this Act.

(2)  A certificate of likely compliance may be subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document or certificate referred to in section 62 .

(3)  A building surveyor is not to make any condition that imposes a lesser or greater standard or requirement than that specified in this Act.

(4)  If a building surveyor grants the application, he or she is to issue a certificate of likely compliance in the approved form.

67A.   Certificate of likely compliance not to be dated more than 12 months before application for building permit

[Section 67A Inserted by No. 20 of 2012, s. 42, Applied:28 Nov 2012] A certificate of likely compliance granted under section 67 may not be submitted with an application for a building permit under Division 3 if that certificate was signed more than 12 months before the application for the building permit is made.

68.   Refusing certificate of likely compliance

(1)  A building surveyor is to refuse an application for a certificate of likely compliance if the building work is not likely to comply with this Act.

(2)  A building surveyor is not to refuse an application for a certificate of likely compliance on the grounds that any building product or building system is unsatisfactory if a certificate of conformity is in force in respect of that building product or building system.

(3)  A building surveyor, by notice in writing, is to notify an applicant of –

(a) the refusal to grant the application for a certificate of likely compliance; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

(4)  The building surveyor is to provide a copy of the notice of refusal to the permit authority.

Division 3 - Applications for building permits

69.   Application for building permit

(1)  An owner, or an agent of an owner, of a building or land may apply to a permit authority for a building permit –

(a) for building work in respect of that building or land; and

(b) for a stage of the building work.

(2)  A person acting as an agent of an owner must not make an application under subsection (1) on behalf of the owner unless authorised to do so in writing by the owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  A permit authority is not required to inquire whether a person is authorised to make an application under subsection (1) .

70.   Form of application for building permit

(1)  An application for a building permit is to be –

(a) in an approved form; and

(b) accompanied by any specified documents; and

(c) accompanied by a certificate of likely compliance; and

(d) accompanied by any fees required by the permit authority.

(2)  A permit authority may require the applicant, within a specified period, to –

(a) provide the specified documents and certificate of likely compliance; or

(b) amend the application.

(3)  If an applicant fails to comply with a requirement under subsection (2) , the permit authority may treat the application as having lapsed.

71.   Consideration of application for building permit

[Section 71 Amended by No. 18 of 2009, s. 6, Applied:16 Jun 2009] [Section 71 Substituted by No. 20 of 2012, s. 43, Applied:28 Nov 2012]

(1)  In considering an application for a building permit, a permit authority is to take into account the following matters:

(a) the stability of the site;

(b) the provision of water to the site;

(c) the means of road access to the site;

(d) any relevant requirements of any permit or consent granted or issued under any other Act;

(e) any relevant provisions of this Act or the Building Regulations.

(2)  For the purposes of performing its functions under subsection (1)(d) , a permit authority may rely on any permit or consent as having been validly granted or issued under the provisions of the relevant Act and is not required to make further enquiries.

72.   Granting building permit

(1)  A permit authority is to grant an application for a building permit within the specified period if –

(a) the application is in accordance with section 70 ; and

(b) satisfied as to the matters referred to in section 71 .

(2)  A building permit is subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document or certificate referred to in section 70(1) .

(3)  If a permit authority grants the application, it is to –

(a) issue a building permit to the applicant in the approved form; and

(b) provide a copy of the building permit to the building surveyor.

73.   Refusing building permit

(1)  A permit authority is to refuse an application for a building permit in respect of any building work if –

(a) it is not in accordance with section 70 ; or

(b) it is not satisfied as to the matters referred to in section 71 .

(2)  A permit authority, by notice in writing within the specified period, is to notify an applicant of –

(a) the refusal to grant the application for a building permit; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

74.   Conditions of building permit binding

(1)  An owner must comply with any condition of a building permit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person's successors in title are bound by any conditions relating to a building permit.

Division 4 - Requirement for plumbing permit

75.   Plumbing permit required

(1)  A person must not carry out any plumbing work unless a plumbing permit is in force that allows the carrying out of that work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  Subsection (1) does not apply if the plumbing work is exempted under the Plumbing Regulations from the requirements of a plumbing permit.

76.   Plumbing work without permit

If plumbing work is carried out without a plumbing permit, a general manager is to take the appropriate action under Part 11 .

77.   Special plumbing permit

A plumber must not carry out any of the following plumbing work, or cause or permit any of the following plumbing work under his or her control to be carried out, without a special plumbing permit:

(a) the installation of a fixture or appliance that –

(i) [Section 77 Amended by No. 24 of 2009, s. 7, Applied:01 Jul 2009] discharges waste into an approved disposal system; and

(ii) is located on a floor of a building or structure wholly or partly below ground level;

(b) the installation of a sanitary or food waste disposal unit;

(c) the installation of drainage from a polluted area or a swimming pool;

(d) the installation of an inlet for a sewerage installation at a level that is lower than 150 millimetres above the declared flood level for the land on which the sewerage installation is located;

(e) the installation of an on-site waste water management system;

(f) the installation of a testable backflow prevention device;

(g) the connection of an unregistrable relocatable building to a water supply or sewerage system;

(h) the installation of trade waste drainage;

(i) [Section 77 Amended by No. 24 of 2009, s. 7, Applied:01 Jul 2009] the discharge of trade waste into an approved disposal system, other than a sewerage system;

(j) [Section 77 Amended by No. 20 of 2012, s. 44, Applied:28 Nov 2012] plumbing work involving the retention of an existing plumbing product or material that does not comply with the Plumbing Regulations;

(k) [Section 77 Amended by No. 20 of 2012, s. 44, Applied:28 Nov 2012] the installation of a greywater diversion device;

(l) [Section 77 Amended by No. 20 of 2012, s. 44, Applied:28 Nov 2012] the installation of a recycled water system;

(m) [Section 77 Amended by No. 20 of 2012, s. 44, Applied:28 Nov 2012] the installation of a unique plumbing product;

(n) [Section 77 Amended by No. 20 of 2012, s. 44, Applied:28 Nov 2012] the installation of a wet well used to transfer sewage or stormwater from land or a building to an approved disposal system.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

Division 5 - Applications for plumbing permits

78.   Application for plumbing permit

(1)  An owner, or an agent of an owner, of a building or land may apply to a permit authority for a plumbing permit –

(a) in respect of that building or land; and

(b) for a stage of plumbing work.

(2)  A person acting as an agent of an owner must not make an application under subsection (1) on behalf of the owner unless authorised to do so in writing by the owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  A permit authority is not required to inquire whether a person is authorised to make an application under subsection (1) .

79.   Application for special plumbing permit

(1)  An owner, or an agent of an owner, of a building or land may apply to a permit authority for a special plumbing permit.

(2)  A person acting as an agent of an owner must not make an application under subsection (1) on behalf of the owner unless authorised to do so by the owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  A permit authority is not required to inquire whether a person is authorised to make an application under subsection (1) .

80.   Form of application for plumbing permit

(1)  An application for a plumbing permit or special plumbing permit is to be –

(a) in an approved form; and

(b) accompanied by any specified documents; and

(c) accompanied by any fee required by a permit authority.

(2)  A permit authority may require the applicant, within the specified period, to –

(a) provide the specified documents; or

(b) amend the application.

(3)  If an applicant fails to comply with a requirement under subsection (2) , a permit authority may treat the application as having lapsed.

81.   Consideration of application for plumbing permit

[Section 81 Amended by No. 20 of 2012, s. 45, Applied:28 Nov 2012] In considering an application for a plumbing permit or special plumbing permit, a permit authority is to take into account any relevant provision of this Act and the Plumbing Regulations or any determination made by the Appeal Tribunal under section 218 or 218A .

82.   Granting plumbing permit

(1)  A permit authority is to grant an application for a plumbing permit or special plumbing permit within the specified period if –

(a) the application is in accordance with section 80 ; and

(b) satisfied that the relevant provisions of the Plumbing Regulations are complied with.

(2)  A plumbing permit or special plumbing permit is subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document referred to in section 80(1)(b) .

(3)  If a permit authority grants the application, it is to issue a plumbing permit or special plumbing permit to the applicant in the approved form.

83.   Refusing plumbing permit

(1)  A permit authority is to refuse an application for a plumbing permit or special plumbing permit in respect of any plumbing work if the work is not likely to comply with the Act.

(2)  A permit authority, by notice in writing within the specified period, is to notify an applicant of –

(a) the refusal to grant the application for a plumbing permit or special plumbing permit; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

84.   Conditions of plumbing permit binding

(1)  An owner must comply with any condition of a plumbing permit or special plumbing permit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person's successors in title are bound by any conditions relating to a plumbing permit or special plumbing permit.

(3)  A special plumbing permit is cancelled if a person or his or her successor in title fails to comply with any condition.

PART 8 - Building work, plumbing work, inspection, occupation and completion

Division 1 - Carrying out work and authorisation

85.   Carrying out building work

(1)  Subject to subsection (2) , a person must carry out any building work in accordance with this Act and the building permit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person may carry out building work that varies from the certificate of likely compliance –

(a) [Section 85 Subsection (2) amended by No. 20 of 2012, s. 46, Applied:28 Nov 2012] if the building work is likely to affect any matter referred to in section 71 , with the written consent of the building surveyor and the permit authority; or

(b) [Section 85 Subsection (2) amended by No. 20 of 2012, s. 46, Applied:28 Nov 2012] in any other case, with the written consent of the building surveyor.

(3)  [Section 85 Subsection (3) inserted by No. 20 of 2012, s. 46, Applied:28 Nov 2012] The consent of a building surveyor under subsection (2)(a) or (b) may only be given if –

(a) amended design documentation has been submitted to the building surveyor as if it were an application for a certificate of likely compliance under Division 2 of Part 7 ; and

(b) the building surveyor has certified the amended design documentation as complying with the Act and the building permit.

(4)  [Section 85 Subsection (4) inserted by No. 20 of 2012, s. 46, Applied:28 Nov 2012] A copy of any consent under subsection (2) is to be provided by the person carrying out or managing the building work to the owner within 7 days after the consent is granted.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5)  [Section 85 Subsection (5) inserted by No. 20 of 2012, s. 46, Applied:28 Nov 2012] If the building surveyor has consented to building work that varies from the certificate of likely compliance, the building surveyor is to provide to the permit authority, accompanying the certificate of final inspection, a certified copy of the architectural drawings of the as-constructed building work and any certificates relied on in giving his or her consent to a variation from the certificate of likely compliance.

86.   Carrying out plumbing work

(1)  Subject to subsection (2) , a person must carry out any plumbing work in accordance with this Act, the plumbing permit and the special plumbing permit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person may carry out plumbing work that varies from the plumbing permit or special plumbing permit with the consent of the permit authority.

87.   Starting building or plumbing work

(1)  Any building work or plumbing work is to be started within the specified period.

(2)  If building work or plumbing work is not started within the specified period, the building permit or plumbing permit in respect of that work lapses.

(3)  A person must not start –

(a) any plumbing work, or cause or permit any plumbing work under his or her control, to be started without an authorisation to start work under the Plumbing Regulations; or

(b) [Section 87 Subsection (3) amended by No. 20 of 2012, s. 47, Applied:28 Nov 2012] any building work, or cause or permit any building work under his or her control, to be started before notifying, and receiving the authorisation of, the building surveyor in accordance with the Building Regulations.

Penalty:  In the case of –

(a) [Section 87 Subsection (3) amended by No. 20 of 2012, s. 47, Applied:28 Nov 2012] a natural person, a fine not exceeding 250 penalty units; or

(b) [Section 87 Subsection (3) amended by No. 20 of 2012, s. 47, Applied:28 Nov 2012] a body corporate, a fine not exceeding 750 penalty units.

(4)  [Section 87 Subsection (4) omitted by No. 20 of 2012, s. 47, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

(5)  Subsection (3) does not apply if –

(a) the plumbing work is required in an emergency situation; and

(b) the plumber obtains the authorisation on or before the first working day following the day on which the plumbing work is started.

(6)  [Section 87 Subsection (6) inserted by No. 20 of 2012, s. 47, Applied:28 Nov 2012] A notification under subsection (3)(b) is to be made –

(a) by a builder accredited under Part 4 who is engaged by the owner; or

(b) if an owner builder has been registered under Part 4 for that particular work, by a person who has been registered as an owner builder; or

(c) if the particular work is not required under Part 4 to be managed or carried out either by an accredited builder or by a registered owner builder, by the owner.

(7)  [Section 87 Subsection (7) inserted by No. 20 of 2012, s. 47, Applied:28 Nov 2012] A building surveyor is not to give authorisation to start work in accordance with the Building Regulations unless –

(a) the notification under subsection (3)(b) identifies who is the responsible builder for the work; and

(b) the building surveyor is satisfied that the work will be carried out in a manner that is likely to comply with Part 4 of the Building Regulations.

Penalty:  Fine not exceeding 10 penalty units.

(8)  [Section 87 Subsection (8) inserted by No. 20 of 2012, s. 47, Applied:28 Nov 2012] If a building surveyor's authorisation is given orally, the building surveyor must confirm the authorisation in writing within 7 days.

Penalty:  Fine not exceeding 10 penalty units.

(9)  [Section 87 Subsection (9) inserted by No. 20 of 2012, s. 47, Applied:28 Nov 2012] Within the specified period after receiving notification under subsection (3) , the building surveyor is to provide to the relevant permit authority a copy of the start work notice and his or her authorisation.

Division 2 - Inspections

88.   Notification during building or plumbing work

(1)  A builder carrying out building work for which a building permit has been issued must –

(a) notify the building surveyor within the specified period before completion of each mandatory notification stage of that work; and

(b) stop carrying out that work or any part of that work on completion of a mandatory notification stage until permitted to proceed under the Building Regulations.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

(2)  A plumber carrying out plumbing work for which a plumbing permit is issued must –

(a) notify the permit authority within the specified period before completion of each mandatory notification stage of that work; and

(b) stop carrying out that work or any part of that work on completion of a mandatory notification stage until permitted to proceed under the Plumbing Regulations.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

89.   Inspections

(1)  On being notified that a mandatory notification stage in respect of any building work is to be completed, the building surveyor may inspect or cause to be inspected the building work within the specified period.

(2)  A building surveyor may inspect or cause building work for which a building permit has been issued to be inspected at any time, whether or not a mandatory notification stage has been completed.

(3)  On being notified that a mandatory notification stage in respect of any plumbing work is to be completed, the permit authority may, within the specified period, inspect or cause to be inspected the plumbing work.

(3A)  [Section 89 Subsection (3A) inserted by No. 20 of 2012, s. 48, Applied:28 Nov 2012] On being notified that a mandatory notification stage in respect of plumbing work incorporating the installation of a greywater reuse system, a greywater diversion system or a recycled water system is to be completed, the permit authority must, within the specified period, inspect or cause to be inspected the plumbing work.

(4)  A permit authority may inspect or cause plumbing work for which a plumbing permit has been issued to be inspected at any time, whether or not a mandatory notification stage has been completed.

90.   Powers in relation to inspections

(1)  A building surveyor, in accordance with the Building Regulations, may cause any building work to be demolished, opened, cut into or tested if it is reasonably required to facilitate an inspection under this Act.

(2)  A permit authority, in accordance with the Plumbing Regulations, may cause any plumbing work to be demolished, opened, cut into or tested if it is reasonably required to facilitate an inspection under this Act.

91.   Directions relating to building and plumbing work

(1)  After inspecting the building work, a building surveyor may direct the builder to carry out the building work so that it complies with the building permit issued in respect of the building work.

(2)  After inspecting the plumbing work, a permit authority may direct the plumber to carry out the plumbing work so that it complies with the plumbing permit issued in respect of the plumbing work.

(3)  A direction may be given orally or in writing.

(4)  A person who gives an oral direction is to confirm it in writing within the specified period to the person to whom it was given.

(5)  If a person fails to comply with a direction under subsection (1) , the building surveyor may –

(a) serve a building notice under Division 2 of Part 11 ; and

(b) take any other appropriate action under this Act.

(6)  If a person fails to comply with a direction under subsection (2) , the permit authority may –

(a) serve a plumbing notice under Division 2 of Part 11 ; and

(b) take any appropriate action under this Act.

92.   Certificate of final inspection

(1)  A building surveyor is to issue a certificate in an approved form on completion of the final inspection following the final mandatory notification stage of the building work if satisfied that –

(a) the building work is completed; and

(b) all directions given under this Act in respect of the building work have been complied with; and

(c) [Section 92 Subsection (1) amended by No. 20 of 2012, s. 49, Applied:28 Nov 2012] the building work is in compliance with this Act, in so far as it is reasonably practicable to inspect.

(2)  A building surveyor is to –

(a) issue the certificate of final inspection to the owner or an agent of the owner; and

(b) provide a copy of it to the permit authority and the builder.

Division 3 - Occupancy permits

93.   Occupancy permit required

(1)  A person must not occupy a building in respect of which building work is being or has been carried out unless –

(a) an occupancy permit is in force in respect of that building; or

(b) the Building Regulations provide that an occupancy permit is not required for that building.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  If building work is carried out to refurbish a building, an owner must obtain a new occupancy permit on completion of the refurbishment even though the building was occupied during refurbishment.

Penalty:  Fine not exceeding 50 penalty units.

(3)  If the use of a building changes, a person must not occupy the building unless a new occupancy permit is in force before the commencement of the new use.

Penalty:  Fine not exceeding 50 penalty units.

94.   Application for occupancy permit

(1)  An owner, or an agent of the owner, of a building may apply to –

(a) the building surveyor who granted a certificate of likely compliance for a permit to occupy that building or part of that building; or

(b) another building surveyor engaged under section 54 .

(2)  An owner, or an agent of the owner, of a building for which a change of use is proposed and in respect of which building work is not being carried out may apply to a building surveyor for a new occupancy permit.

(3)  A person acting as an agent of an owner must not make an application under subsection (1) unless authorised to do so in writing by the owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(4)  The building surveyor is not required to inquire whether a person is authorised to make an application under subsection (1) .

95.   Form of application for occupancy permit

(1)  An application for an occupancy permit is to be –

(a) in an approved form; and

(b) accompanied by any documents and information the building surveyor requires.

(2)  The building surveyor may require an applicant, within the specified period –

(a) to provide additional information and documents; and

(b) to amend the application.

(3)  If an applicant fails to comply with a requirement under subsection (2) , the building surveyor may treat the application as having lapsed.

96.   Required report from reporting authority

(1)  The building surveyor is not to grant an application for an occupancy permit in respect of which a report is required in accordance with the Building Regulations until the report is supplied to the building surveyor.

(2)  The building surveyor is taken to have been supplied with a required report if the reporting authority fails to supply it within a specified period.

(3)  A reporting authority is taken to have supplied a report if the report is not supplied within the specified period.

97.   Consideration of application for occupancy permit

In considering an application for an occupancy permit, the building surveyor is to take into account a required report.

98.   Granting occupancy permit

(1)  The building surveyor is to grant an application for an occupancy permit within the specified period if –

(a) the application is in accordance with section 95 ; and

(b) [Section 98 Subsection (1) amended by No. 20 of 2012, s. 50, Applied:28 Nov 2012] the building surveyor is satisfied that the building or part of the building is suitable for occupation and adequate provision for smoke alarms, sanitation and water supply is made.

(2)  An occupancy permit is subject to any relevant and reasonable condition that does not impose a lesser or greater standard or requirement than that required by this Act.

(3)  The building surveyor is not required to implement anything contained in a required report.

(4)  If the building surveyor does not implement anything contained in that report, the building surveyor is to –

(a) notify the reporting authority; and

(b) provide the reporting authority with –

(i) a copy of the occupancy permit; and

(ii) the reasons for not implementing anything contained in the report.

99.   Refusing application for occupancy permit

(1)  The building surveyor is to refuse an application for an occupancy permit in respect of a building if –

(a) [Section 99 Subsection (1) amended by No. 20 of 2012, s. 51, Applied:28 Nov 2012] it is not in accordance with section 95 ; or

(b) [Section 99 Subsection (1) amended by No. 20 of 2012, s. 51, Applied:28 Nov 2012] satisfied that the building is not suitable for occupation or that adequate provision for smoke alarms, sanitation and water supply has not been made.

(2)  The building surveyor, by notice in writing within the specified period, is to notify an applicant of –

(a) the refusal to grant the application; and

(b) the reasons for that refusal; and

(c) the right of an appeal under this Act.

100.   Issue of occupancy permits

(1)  If the building surveyor grants an application for an occupancy permit, the building surveyor is to issue an occupancy permit to the applicant.

(2)  An occupancy permit is to –

(a) be in an approved form; and

(b) state the use or uses to which the building may be put; and

(c) state the conditions of the permit.

(3)  The building surveyor is to provide a copy of the occupancy permit to the builder.

(4)  An owner, in accordance with the Building Regulations, must display an occupancy permit in respect of a building in a prominent place in the building.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

101.   Conditions of occupancy permit binding

(1)  A person and his or her successors in title are bound by any conditions relating to an occupancy permit.

(2)  An occupancy permit is cancelled if –

(a) a person uses the building for a use –

(i) other than that stated in the occupancy permit; or

(ii) to which the building may not be put; and

(b) a person or his or her successor in title fails to comply with any condition of the occupancy permit.

102.   Notification to permit authority

[Section 102 Substituted by No. 20 of 2012, s. 52, Applied:28 Nov 2012]

(1)  A building surveyor who issues an occupancy permit must –

(a) notify the permit authority in writing within the specified period; and

(b) provide it with a copy of the permit.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(2)  Where a reporting authority has provided a required report, the building surveyor is to provide a copy of the occupancy permit for the building or part of the building to the reporting authority within the specified period.

103.   Occupation in contravention of occupancy permit

A person must not occupy a building in contravention of the occupancy permit in respect of that building.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units and a further fine not exceeding 2 penalty units for each day during which the offence continues; or

(b) a body corporate, a fine not exceeding 500 penalty units and a further fine not exceeding 10 penalty units for each day during which the offence continues.

104.   Period of occupancy permit

An occupancy permit in respect of a building remains in force until –

(a) another occupancy permit in respect of the building is issued; or

(b) it is cancelled.

Division 4 - Temporary occupancy permit

105.   Temporary occupancy

A person must not occupy an existing building or a temporary structure in respect of which an occupancy permit is not, or is not likely to be, issued unless –

(a) a temporary occupancy permit is in force in respect of that building or temporary structure; or

(b) the Building Regulations provide that a temporary occupancy permit is not required for that building or temporary structure.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

106.   Application for temporary occupancy permit

(1)  An owner, or an agent of the owner, of an existing building or temporary structure may apply to the general manager for a temporary occupancy permit to occupy the building or temporary structure.

(2)  A person acting as an agent of an owner must not make an application under subsection (1) on behalf of the owner unless authorised to do so in writing by the owner.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  The general manager is not required to inquire whether a person is authorised to make an application under subsection (1) .

107.   Form of application for temporary occupancy permit

An application for a temporary occupancy permit is to be –

(a) in an approved form; and

(b) [Section 107 Amended by No. 25 of 2003, s. 14, Applied:04 Jun 2003] accompanied by any specified documents and any documents and information the general manager requires.

108.   Granting temporary occupancy permit

(1)  A general manager may grant an application for a temporary occupancy permit if satisfied that the building or temporary structure is suitable for occupation.

(2)  If a general manager grants the application, he or she is to issue an occupancy permit to the applicant in the approved form.

(3)  A permit is subject to any reasonable and relevant conditions.

109.   Cancellation of temporary occupancy permit

A general manager may cancel a temporary occupancy permit if –

(a) the building or temporary structure is unsafe or unhealthy; or

(b) any condition of the permit is not complied with.

110.   Refusing application for temporary occupancy permit

(1)  A general manager must refuse an application for a temporary occupancy permit if satisfied that the building or temporary structure is not suitable for temporary occupation.

(2)  A general manager, by notice in writing within the specified period, is to notify an applicant of –

(a) the refusal to grant the application; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

111.   Notification to permit authority

A general manager who issues a temporary occupancy permit is to –

(a) notify the permit authority in writing; and

(b) provide it with a copy of the temporary occupancy permit.

Division 5 - Completion of building and plumbing work

112.   Completion of building work

(1)  Building work is to be completed within the specified period.

(2)  An owner or agent of the owner is to obtain a certificate of completion (building work) within the specified period.

(3)  A permit authority is to issue a certificate of completion (building work) if satisfied that –

(a) if required, an occupancy permit has been issued; and

(b) a certificate of final inspection has been provided; and

(ba) [Section 112 Subsection (3) amended by No. 20 of 2012, s. 53, Applied:28 Nov 2012] a certificate of completion (plumbing work) has been provided; and

(c) [Section 112 Subsection (3) amended by No. 24 of 2009, s. 8, Applied:01 Jul 2009] all conditions of the building permit have been met; and

(d) [Section 112 Subsection (3) amended by No. 24 of 2009, s. 8, Applied:01 Jul 2009] where required under the Water and Sewerage Industry Act 2008 , a certificate of water and sewerage compliance (building) has been issued under section 56TD of that Act in relation to the relevant building work.

(4)  [Section 112 Subsection (4) substituted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] A building permit and a permit to proceed are valid for a period of 2 years commencing from the date on which they are granted.

(5)  [Section 112 Subsection (5) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] A permit of substantial compliance is valid for a period of 12 months commencing from the date on which it is granted.

(6)  [Section 112 Subsection (6) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] The permit authority may extend either period referred to in subsection (4) or (5) on application by the owner or his or her agent before the expiration of the permit.

(7)  [Section 112 Subsection (7) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] Before making a decision to extend a period under subsection (6)  –

(a) the permit authority is to request the relevant building surveyor to provide, within a specified period, advice regarding the current status of the building work; and

(b) the building surveyor is to provide the advice to the permit authority within the specified period.

(8)  [Section 112 Subsection (8) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] The permit authority may impose any reasonable and relevant conditions on an extension under subsection (6) to ensure that building work is completed in accordance with current Building Code of Australia standards as soon as practicable.

(9)  [Section 112 Subsection (9) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] The permit authority is to provide the building surveyor with a copy of any conditions imposed under subsection (8) within the specified period.

(10)  [Section 112 Subsection (10) inserted by No. 20 of 2012, s. 53, Applied:28 Nov 2012] A certificate of completion (building work) is to be in an approved form.

113.   Completion of plumbing work

(1)  Plumbing work is to be completed within the specified period.

(2)  An owner or agent of the owner is to obtain a certificate of completion (plumbing work) within the specified period.

(3)  [Section 113 Subsection (3) amended by No. 25 of 2003, s. 15, Applied:04 Jun 2003] [Section 113 Subsection (3) substituted by No. 24 of 2009, s. 9, Applied:01 Jul 2009] A permit authority is to issue a certificate of completion (plumbing work) if –

(a) the authority –

(i) [Section 113 Subsection (3) amended by No. 20 of 2012, s. 54, Applied:28 Nov 2012] is satisfied, after inspection, that the completed plumbing work complies with this Act; or

(ii) [Section 113 Subsection (3) amended by No. 20 of 2012, s. 54, Applied:28 Nov 2012] accepts a certificate from a plumber certifying that the plumbing work complies with this Act; and

(b) where required under the Water and Sewerage Industry Act 2008 , a certificate of water and sewerage compliance (plumbing) has been issued under section 56TD of that Act in relation to the plumbing work.

(3A)  [Section 113 Subsection (3A) inserted by No. 20 of 2012, s. 54, Applied:28 Nov 2012] In every year in which a permit authority accepts certificates under subsection (3)(a)(ii) , it must, at each mandatory notification stage, inspect, or cause to be inspected, at least 20% of the work for which certificates would otherwise be accepted.

(4)  [Section 113 Subsection (4) substituted by No. 24 of 2009, s. 9, Applied:01 Jul 2009] The permit authority is to refuse to issue a certificate of completion (plumbing work) if –

(a) [Section 113 Subsection (4) amended by No. 20 of 2012, s. 54, Applied:28 Nov 2012] it is not satisfied that the plumbing work complies with this Act; or

(b) [Section 113 Subsection (4) amended by No. 20 of 2012, s. 54, Applied:28 Nov 2012] it is satisfied that a certificate of water and sewerage compliance (plumbing) has been refused under section 56TD of the Water and Sewerage Industry Act 2008 in relation to the plumbing work; or

(c) [Section 113 Subsection (4) amended by No. 20 of 2012, s. 54, Applied:28 Nov 2012] it is satisfied that such a certificate is required but has not been provided.

(5)  A certificate of completion (plumbing work) is to be in an approved form.

(6)  [Section 113 Subsection (6) inserted by No. 25 of 2003, s. 15, Applied:04 Jun 2003] A certificate of plumbing compliance is to –

(a) be in an approved form; and

(b) be accompanied by any specified documents.

114.   Defective plumbing work

A person who carried out plumbing work or under whose control plumbing work was carried out must make good a defect in the plumbing work at his or her own expense if –

(a) the defect is found within one year after the day on which the certificate of completion (plumbing work) was issued for the plumbing work; and

(b) [Section 114 Amended by No. 20 of 2012, s. 55, Applied:28 Nov 2012] the permit authority certifies that the defect is due to an omission, faulty workmanship or the use of a defective or unauthorised material, fitting or plumbing product.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 20 penalty units; or

(b) a body corporate, a fine not exceeding 100 penalty units.

PART 9 - Existing buildings

Division 1 - General provisions

115.   Construction of existing buildings

A building constructed before the commencement of this Act in accordance with any relevant Act or any relevant provision of any Act relating to buildings is taken to be constructed in accordance with this Act.

115A.   Change to existing building boundary

[Section 115A Inserted by No. 20 of 2012, s. 56, Applied:28 Nov 2012]

(1)  Notwithstanding section 115 , a person must not change the boundary of an allotment or strata title of an existing building so that the building no longer complies with the provisions of this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person must obtain a building permit and carry out building work if a change to an allotment or strata title boundary of an existing building would –

(a) have an adverse effect on the safety, health and amenity of persons accommodated in, or using, the existing building; or

(b) increase the risk of the spread of fire between adjacent buildings or from a fire source feature.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

(3)  In this section –

strata title means a property title held under the Strata Titles Act 1998 .

116.   Habitation of certain buildings

A person, without the consent of the general manager, must not inhabit a building that is not built as a dwelling for a period exceeding one month.

Penalty:  Fine not exceeding 50 penalty units.

117.   Change of use

(1)  A person must not change the use of a building, whether erected before or after the commencement of this Act, if the new use –

(a) requires a change of classification of the building; or

(b) would have to satisfy different requirements within the same classification.

(2)  Subsection (1) does not apply if the building complies with this Act in respect of the changed use.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  A person must obtain –

(a) a building permit if the change of use requires building work to be done; or

(b) a new occupancy permit for the building for the changed use if building work is not required.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(4)  A building surveyor may consent to a departure from the requirements of this Act in respect of an application that relates to a change of use of a building if of the opinion that an adverse effect is not likely on –

(a) the safety, health and amenity of persons accommodated in or using the building; or

(b) the risk of the spread of fire between adjacent buildings or from a fire source feature.

(5)  A building surveyor is not to grant a new occupancy permit without the agreement of the relevant function control authority if –

(a) the permit is in respect of a special-use building; and

(b) the building does not conform with the requirements of Part H of the Building Code of Australia.

(6)  The re-use of a building for which a new registration, licensing or approval is required by a function control authority is taken to be a change of use of the building for the purpose of this section.

118.   Restriction on use of land

Except with the consent of the general manager, a person must not erect a fence, building or any other structure so as to restrict the use, in connection with a building, of any unoccupied area of the land on which it is built.

Penalty:  Fine not exceeding 50 penalty units.

119.   Building certificates

(1)  Any of the following persons may apply to a general manager for a building certificate certifying that the general manager does not intend to take any action under this Act in relation to a building:

(a) the owner of the building;

(b) the purchaser of the building;

(c) any other person who is authorised by the owner or purchaser of the building to apply for the certificate.

(2)  An application for a building certificate is to be made under the Building Regulations.

120.   Maintenance of certain features

(1)  [Section 120 Subsection (1) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] An owner or occupier of a building, in accordance with the Building Regulations, must maintain –

(a) [Section 120 Subsection (1) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] any prescribed essential safety and health features of the building; and

(b) [Section 120 Subsection (1) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] any prescribed essential safety and health measures necessary to ensure the safety of persons using the building; and

(c) [Section 120 Subsection (1) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] any other prescribed features or measures.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  [Section 120 Subsection (2) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] An owner or occupier of a building that includes any prescribed essential safety and health features and measures must publicly display an annual statement in accordance with the Building Regulations that the features and measures –

(a) have been assessed by an appropriately qualified person; and

(b) [Section 120 Subsection (2) amended by No. 20 of 2012, s. 57, Applied:28 Nov 2012] are performing to a standard to which they were originally required to perform.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  [Section 120 Subsection (3) inserted by No. 20 of 2012, s. 57, Applied:28 Nov 2012] In this section –

owner includes a body corporate formed under the Strata Titles Act 1998 .

Division 2 - Protection of adjoining properties

121.   Notice of proposed building work

(1)  An owner who is required by the Building Regulations to carry out protection work must notify the adjoining owner and the building surveyor of the proposed building work and the proposed protection work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

(2)  The notice is to –

(a) be in the approved form; and

(b) include details of the proposed building work as at the date of the notice; and

(c) include details of the proposed protection work setting out –

(i) the nature and particulars of the protection work; and

(ii) the proposed program for undertaking the protection work.

122.   Absent or incapable owner

(1)  If the adjoining owner is unable to be found or is incapable of acting in the matter, the owner may apply to the Minister for the appointment of a person to act as an agent for the adjoining owner during the adjoining owner's absence or incapacity.

(2)  The application is to –

(a) be in writing; and

(b) specify –

(i) the circumstances of the case; and

(ii) the grounds of the application.

123.   Appointment of agent for adjoining owner

(1)  If the Minister is satisfied that the adjoining owner is unable to be found or is incapable of acting in the matter, the Minister may appoint a suitable person to act as the agent of the adjoining owner for the purpose of this Division.

(2)  The appointment of an agent is subject to any terms and conditions relating to the duties and the payment of fees and any other matters the Minister considers appropriate.

(3)  The Minister is to notify an agent in writing of –

(a) the appointment; and

(b) the nature of the agent's duties; and

(c) any fees to be paid to the agent by the adjoining owner; and

(d) any other terms and conditions of the appointment.

(4)  The Minister is to notify the owner of the appointment of the agent.

124.   Adjoining owner to reply

(1)  An adjoining owner, within the specified period after receiving notice of proposed building work and proposed protection work, is to notify the owner that he or she –

(a) agrees to, or disagrees with, the details of the proposed protection work; or

(b) requests changes to be made.

(2)  An adjoining owner who fails to respond within the specified period is taken to have agreed to the proposed protection work.

125.   Effect of agreement

An owner may proceed to carry out protection work only if the adjoining owner agrees or is taken to have agreed to the proposed protection work.

126.   Effect of disagreement

(1)  If an adjoining owner notifies the owner that he or she disagrees with the proposed protection work, the owner must –

(a) refer the matter to a building surveyor; and

(b) notify the adjoining owner of the referral.

(2)  On receiving the referral, the building surveyor is to –

(a) examine the proposal for protection work; and

(b) determine if the proposed protection work is appropriate.

(3)  The building surveyor may make any inquiries and require any additional information to be provided by the owner or adjoining owner in order to make the determination.

(4)  The building surveyor is to provide a copy of any additional information provided by a person under subsection (3) to the other person.

(5)  The building surveyor is to give the owner and the adjoining owner notice in writing of his or her determination.

(6)  The building surveyor is not required to give any person a hearing.

127.   Work not to be carried out in certain cases

An owner must not carry out any building work until –

(a) the adjoining owner agrees or is taken to have agreed to the proposed protection work; or

(b) in the case of a disagreement, a building surveyor determines that the proposed protection work is appropriate; or

(c) [Section 127 Amended by No. 20 of 2012, s. 58, Applied:28 Nov 2012] in the case of an appeal in relation to the proposed protection work, the appeal is determined by the Appeal Tribunal.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

128.   Inspection of plans

If a notice of proposed building work is issued, a building surveyor is to make available for inspection to an adjoining owner, on request, any drawings and specifications of the proposed building work that are in his or her possession or control.

129.   Emergency protection work

(1)  A building surveyor, by notice in writing, may require an owner to carry out emergency protection work specified in that notice in respect of an adjoining property if of the opinion that there is, or there is likely to be, a danger to life or property.

(2)  An owner must comply with the notice.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  The provisions of sections 124 , 125 , 126 and 127 do not apply to any protection work carried out under subsection (1) .

(4)  The building surveyor must notify the permit authority of a requirement made under subsection (1) .

130.   Protection work

Any protection work must be carried out –

(a) in accordance with –

(i) any agreement under section 124 ; or

(ii) any requirements of a building surveyor under section 129 ; or

(iii) [Section 130 Amended by No. 20 of 2012, s. 59, Applied:28 Nov 2012] any determination of the Appeal Tribunal in respect of the matter; and

(b) as quickly as practicable in the circumstances; and

(c) in accordance with this Act.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

131.   Insurance cover

(1)  A person, before commencing any protection work, must enter into a contract of insurance with an insurer in respect of –

(a) damage by the proposed protection work to the adjoining property; and

(b) any liability likely to be incurred to the adjoining owner and members of the public.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  The contract of insurance is to be for an amount agreed to by the parties.

(3)  The contract of insurance is to –

(a) contain a provision prohibiting cancellation or withdrawal; and

(b) be lodged with the adjoining owner before the commencement of the protection work; and

(c) be renewed or extended so as to expire 12 months after the protection work is finished.

132.   Record of condition of adjoining property

(1)  An owner, before carrying out any protection work and accompanied by the adjoining owner, is to make –

(a) a full and adequate survey of the adjoining property; and

(b) a record of all existing cracks and defects in the adjoining property.

(2)  The record is to be signed or otherwise acknowledged as an agreed record of the condition of the adjoining property before the commencement of any protection work.

(3)  The record is –

(a) admissible in evidence in any proceedings relating to the adjoining property; and

(b) evidence of the condition of the adjoining property at the time the record was made.

133.   Entry to carry out protection work

(1)  For the purpose of carrying out any protection work, an owner may –

(a) enter into the adjoining property or the airspace above any adjoining property between the hours of 8 a.m. and 6 p.m. or at other agreed times; and

(b) carry out any necessary work for that purpose.

(2)  The owner must give not less than 24 hours' notice or any other agreed notice of the intention to enter the adjoining property for the purpose of carrying out any protection work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(3)  In carrying out any protection work, a person, without doing any unnecessary damage, may remove any furniture or fittings or do any other thing that may be necessary to carry out the protection work.

134.   Offence by adjoining owner

An adjoining owner or adjoining occupier must not –

(a) refuse to admit anyone in accordance with any notice or agreement for the purpose of carrying out any survey or protection work; or

(b) obstruct or hinder the carrying out of the survey or protection work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 50 penalty units; or

(b) a body corporate, a fine not exceeding 250 penalty units.

135.   Lodgment of plans

(1)  An owner must serve on the adjoining owner and a building surveyor, within the specified period after the completion of the protection work, a complete set of drawings and specifications showing the protection work carried out.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(2)  The building surveyor, within the specified period, is to give a copy of the complete set to the permit authority.

136.   Expenses of adjoining owner

(1)  Any costs and expenses necessarily incurred by an adjoining owner in ensuring that the protection work is carried out as agreed are payable by the owner as agreed to between the parties.

(2)  [Section 136 Subsection (2) amended by No. 20 of 2012, s. 60, Applied:28 Nov 2012] If there is no agreement as to the amount of costs and expenses necessarily incurred, each party may apply to the Appeal Tribunal to hear and determine the matter under Part 12 .

(3)  The costs and expenses payable to an adjoining owner are recoverable in a court of competent jurisdiction as a debt due by the owner to the adjoining owner.

137.   Compensation

(1)  An owner is to compensate an adjoining owner or adjoining occupier for any inconvenience, loss or damage suffered in carrying out protection work.

(2)  [Section 137 Subsection (2) amended by No. 20 of 2012, s. 61, Applied:28 Nov 2012] An adjoining owner or adjoining occupier who suffers any inconvenience, loss or damage may apply to the Appeal Tribunal to determine the amount of any compensation payable.

(3)  Any amount of compensation payable to an adjoining owner or adjoining occupier is recoverable in a court of competent jurisdiction as a debt due by the owner.

Division 3 - Party walls and structures

138.   Party walls

(1)  An owner who proposes to build a party wall on the boundary of an adjoining property is to give written notice to the adjoining owner describing the proposed party wall.

(2)  If the adjoining owner consents to the building of a party wall, the wall is to be built –

(a) half on the land of the owner and half on the land of the adjoining owner; or

(b) in any other position the owner and the adjoining owner agree.

(3)  Any expense incurred in building the party wall is payable by the owner and the adjoining owner as agreed.

(4)  If a party wall is built on land under the Land Titles Act 1980 , an instrument creating an easement of support in respect of the party wall is to be prepared, executed and registered as agreed.

(5)  The owner is not to build a party wall if the adjoining owner –

(a) does not consent to it; or

(b) does not agree as to the payment of expenses; or

(c) does not agree as to the preparation, execution or registration of the instrument under subsection (4) .

139.   Ownership of party wall

(1)  If an adjoining owner is liable to contribute to the expenses incurred in building a party wall, the owner has sole possession of the party wall until the adjoining owner pays the due contribution.

(2)  If the party wall is on land under the Land Titles Act 1980 , the right conferred on the owner is not available against the proprietor of an interest registered after the right arose unless the owner gives the prescribed notice under that Act.

(3)  On receipt of the prescribed notice, the Recorder of Titles is to enter a memorandum in the Register.

(4)  Until a memorandum is entered, the party wall is excluded from the certificate of title of the adjoining owner and included in the certificate of title of the owner.

(5)  On the production to the Recorder of Titles of sufficient evidence of payment or release of the contribution, the Recorder of Titles is to cause a memorandum to that effect to be entered in the Register.

140.   Party structures

(1)  An owner may do any of the following in relation to party structures that are defective or out of repair:

(a) make good or repair;

(b) pull down and rebuild;

(c) raise and underpin;

(d) perform any other necessary works incidental to the connection of a party structure with any adjoining building or structure.

(2)  An owner must not do anything specified in subsection (1) in a manner or at a time that causes unnecessary inconvenience to an adjoining owner or adjoining occupier.

(3)  An owner who lays open a part of the adjoining property must, at his or her own expense, make and maintain a proper hoarding and shoring to protect the adjoining property.

141.   Notice of proposed work

(1)  An owner, except with the consent in writing of an adjoining owner or adjoining occupier, must not do anything specified in section 140 unless the owner has served on the adjoining owner or adjoining occupier at least 6 weeks beforehand a notice stating –

(a) the nature and particulars of the proposed work; and

(b) the proposed program for undertaking the proposed work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A notice under subsection (1) is effective only if the work to which it relates is begun within 6 months after service of the notice.

142.   Rights of adjoining owner

(1)  If an owner proposes to do anything specified in section 140 , an adjoining owner, by notice in writing, may require the owner to build on any party structure affected any works reasonably required for the convenience of the adjoining owner.

(2)  The owner must comply with the notice if the execution of the specified works is not likely to be detrimental to the adjoining owner or cause unnecessary inconvenience or unnecessary delay.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

143.   Reply to notices

If a person does not consent to a notice under this Division within the specified period, the person is taken to have dissented and a difference is taken to have arisen between the owners.

144.   Entry to premises

(1)  For the purpose of carrying out any work referred to in this Division, an owner may –

(a) enter and remain on any land between the hours of 8 a.m. and 6 p.m. or at other agreed times; and

(b) carry out any necessary work for that purpose.

(2)  Before entering any premises for the purpose of this section, the owner must give –

(a) 14 days' notice to the adjoining occupier and adjoining owner; or

(b) in the case of emergency, any notice as is reasonably practicable.

(3)  In carrying out the work, a person, without doing any unnecessary damage, may remove any furniture or fittings or do any other thing that may be necessary to carry out that work.

145.   Expenses payable by owners

(1)  Any expenses incurred in taking any action under section 140(1) are payable by the owner and adjoining owner in due proportion, taking into account the use that each owner makes or may make of the structure.

(2)  Within one month after the completion of any work, the owner is to give the adjoining owner an account in writing specifying the expenses incurred.

(3)  An adjoining owner is liable for all expenses incurred by the owner in relation to any additional work requested by the adjoining owner.

(4)  An amount payable to the owner under this section is recoverable in a court of competent jurisdiction as a debt due by the adjoining owner to the owner.

146.   Saving for easements

The provisions of this Division do not affect the right of any person to –

(a) preserve any right in respect of a party wall that is demolished or rebuilt; or

(b) take any necessary steps for that purpose.

147.   Differences

[Section 147 Amended by No. 20 of 2012, s. 62, Applied:28 Nov 2012] A difference arising between an owner and an adjoining owner in respect of any matter arising out of work to which Division 2 or 3 of this Part relates, on application by the owner or adjoining owner, may be heard and determined by the Appeal Tribunal.

PART 10 - Restrictions on buildings

Division 1 - Landslip areas

148.   Interpretation

[Section 148 Substituted by No. 24 of 2003, Sched. 1, Applied:04 Jun 2003] In this Division –

A landslip area means an area of land declared under Part 9A of the Mineral Resources Development Act 1995 to be an A landslip area;

B landslip area means an area of land declared under Part 9A of the Mineral Resources Development Act 1995 to be a B landslip area;

[Section 148 Amended by No. 20 of 2012, s. 63, Applied:28 Nov 2012] building does not include part of a building;

[Section 148 Amended by No. 20 of 2012, s. 63, Applied:28 Nov 2012] insubstantial building means a building that has a total floor area not exceeding 25 square metres and is not more than one storey high;

landslip area means an area of land declared under Part 9A of the Mineral Resources Development Act 1995 to be an A landslip area or a B landslip area.

149.   

[Section 149 Repealed by No. 24 of 2003, Sched. 1, Applied:04 Jun 2003] .  .  .  .  .  .  .  .  

150.   Effect of order in A landslip area

(1)  A person must not erect, alter or add to a building in an A landslip area except in accordance with subsection (2) .

Penalty:  Fine not exceeding 100 penalty units.

(2)  The Minister, on the recommendation of a general manager, may permit a person to –

(a) erect, in an A landslip area –

(i) a shed; or

(ii) [Section 150 Subsection (2) amended by No. 20 of 2012, s. 64, Applied:28 Nov 2012] an insubstantial building; or

(b) carry out building work, other than erections, in respect of a building in an A landslip area; or

(c) erect a building within the boundaries of a wharf in an A landslip area.

151.   Effect of order in B landslip area

(1)  A person must not erect, alter or add to a building in a B landslip area except in accordance with the Building Regulations.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A person must not store in a B landslip area –

(a) more than 10 000 litres of water; or

(b) any explosive, flammable liquid or other dangerous substance.

Penalty:  Fine not exceeding 100 penalty units.

152.   Activities prohibited in landslip areas

(1)  A person who erects, alters or adds to a building in a landslip area must not aggravate any existing landslip conditions.

Penalty:  Fine not exceeding 100 penalty units.

(2)  Except in accordance with the Building Regulations, a person must not, in a landslip area –

(a) excavate or deposit material; or

(b) use earthmoving or vibrating compaction equipment; or

(c) remove any vegetation.

Penalty:  Fine not exceeding 100 penalty units.

153.   

[Section 153 Repealed by No. 24 of 2003, Sched. 1, Applied:04 Jun 2003] .  .  .  .  .  .  .  .  

154.   Compensation not payable for certain damage to buildings erected in known landslip areas

[Section 154 Substituted by No. 24 of 2003, Sched. 1, Applied:04 Jun 2003]

(1)  In this section –

Act means the Mineral Resources Development Act 1995 ;

landslip order means an order under section 161B(1) of the Act;

registered means registered in accordance with section 161C of the Act;

revocation order means an order under section 161D(1)(a) of the Act.

(2)  Once a landslip order declaring an area of land to be an A landslip area or B landslip area has been registered, no compensation or other relief is payable for any damage caused by earth movement to any building that is erected during the registration period in that area of land.

(3)  For the purposes of subsection (2) , the registration period is the period that commences on the day on which the landslip order is registered and ends on the day on which a revocation order in respect of that landslip order is registered.

Division 2 - Building line

155.   Building between building line and boundary

A person must not erect a building between the building line and the boundary of a road.

Penalty:  Fine not exceeding 100 penalty units.

156.   Fire source feature

For the purpose of determining fire protection requirements under the Building Code of Australia, the area between a building line and the boundary of a road is not a fire source feature under that Code if buildings do not or cannot exist in that area.

Division 3 - Site restrictions

157.   Contaminated or undrainable sites

(1)  A person must not carry out any building work on land that, in the opinion of the environmental health officer, is contaminated, unhealthy and not suitable for the purpose until the land is cleaned or remedied to the satisfaction of the general manager.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not carry out any building work on land unless the surface of the land is capable of being drained into an existing stormwater drain or channel or other suitable outlet, to the satisfaction of the general manager.

Penalty:  Fine not exceeding 50 penalty units.

158.   Requirement for effluent disposal

A person must not erect or place on land a building that contains habitable rooms or from which effluent normally flows unless –

(a) effluent from the building can be drained into a sewerage system to the satisfaction of the general manager; or

(b) a special plumbing permit is issued for an on-site waste water management system in respect of the building.

Penalty:  Fine not exceeding 50 penalty units.

159.   Land subject to flooding

A person must not erect or place a building containing habitable rooms on land subject to flooding unless the floor level of each habitable room in the building is 300 millimetres or more above the prescribed designated flood level for that land.

Penalty:  Fine not exceeding 50 penalty units.

160.   Protection of existing drains

(1)  A person must not carry out any building work over an existing drain or within one metre from the edge of an existing drain measured horizontally unless the owner of the building obtains written consent from the general manager.

Penalty:  Fine not exceeding 50 penalty units.

(2)  The general manager may impose any reasonable condition on permission given under subsection (1) .

(3)  The general manager may require an owner of a building to give a written undertaking not to hold the council liable for damage or inconvenience arising from the building work carried out pursuant to this section.

161.   Protection of service easements

A person must not carry out any building work over or within a service easement unless the person obtains written consent from the appropriate authority to do so.

Penalty:  Fine not exceeding 50 penalty units.

PART 11 - Enforcement

Division 1 - Emergency orders

162.   Emergency order

(1)  A general manager may make an emergency order if of the opinion that a threat to life may arise out of the condition or use of a building or temporary structure.

(2)  An emergency order may –

(a) require an owner or an occupier of a building or temporary structure to –

(i) evacuate the building or temporary structure; or

(ii) stop work or to carry out building work or other work; and

(b) prohibit the occupation of a building or temporary structure.

(3)  An emergency order is to –

(a) be in an approved form; and

(b) contain any specified matter.

(4)  A person must comply with an emergency order.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(5)  A general manager may revoke an emergency order if the circumstances giving rise to the making of the order have changed.

(6)  A general manager is to provide a copy of an emergency order to the permit authority within 7 days of making the order.

Division 2 - Notices, orders and fire reports

163.   Building notices

(1)  A general manager is to issue a building notice to the owner of a building or temporary structure if –

(a) building work is carried out on the building without a building permit; or

(b) building work is carried out on a temporary structure in contravention of –

(i) the permit; or

(ii) this Act; or

(c) the use of the building or temporary structure contravenes this Act; or

(d) the building or temporary structure –

(i) is unfit for use or occupation; or

(ii) is a danger to users of the building or temporary structure or to users of adjoining land; or

(e) the essential health and safety features of the building are not maintained in accordance with the Building Regulations.

(2)  A building surveyor, if of the opinion that any circumstance specified in subsection (1) exists in respect of any building work for which the building surveyor has been engaged, is to issue a building notice to –

(a) the owner of a building or temporary structure in relation to which the building surveyor is carrying out work; or

(b) the builder carrying out any building work.

(2A)  [Section 163 Subsection (2A) inserted by No. 18 of 2009, s. 7, Applied:16 Jun 2009] If a building surveyor is of the opinion that any building work for which he or she has been engaged is being carried out on a building in contravention of this Act or the permit, the building surveyor is to issue a building notice to –

(a) the owner of the building; or

(b) the builder carrying out the building work.

(2B)  [Section 163 Subsection (2B) inserted by No. 18 of 2009, s. 7, Applied:16 Jun 2009] A general manager may perform any of the duties of a building surveyor under subsection (2) or (2A) if the building surveyor resigns, dies or becomes incapable, for any reason, of performing those duties.

(3)  A building notice is to require the owner or builder to show cause within the specified period –

(a) why occupation of the building or structure should not be prohibited; or

(b) why the owner or builder should not do either or both of the following things:

(i) evacuate the building or temporary structure;

(ii) carry out building work or other work specified in the notice.

(4)  A building notice is to be in an approved form.

(5)  [Section 163 Subsection (5) inserted by No. 20 of 2012, s. 65, Applied:28 Nov 2012] Where a building surveyor issues a notice to an owner under this section, the building surveyor is to provide a copy of the notice to the relevant builder.

(6)  [Section 163 Subsection (6) inserted by No. 20 of 2012, s. 65, Applied:28 Nov 2012] Where a building surveyor issues a notice to a builder under this section, the building surveyor is to provide a copy of the notice to the relevant owner.

164.   Plumbing notice

(1)  A general manager is to issue a plumbing notice to an owner of land if plumbing work is carried out on the land without a plumbing permit.

(2)  A permit authority, if plumbing work in respect of which it has authority contravenes this Act, is to issue a plumbing notice to –

(a) [Section 164 Subsection (2) amended by No. 20 of 2012, s. 66, Applied:28 Nov 2012] the owner of the land; and

(b) the person carrying out plumbing work in respect of which the permit authority has issued a plumbing permit.

(3)  A plumbing notice is to require the owner or person to show cause within the specified period why plumbing work or other work specified in the notice should not be carried out.

(4)  A plumbing notice is to be in an approved form.

165.   Fire hazards

A building or temporary structure is a fire hazard if –

(a) it has –

(i) insufficient means of escape for its occupants in the event of fire; or

(ii) insufficient measures to manage smoke hazard; or

(iii) [Section 165 Amended by No. 20 of 2012, s. 67, Applied:28 Nov 2012] insufficient measures to detect fire and to alert occupants; or

(iv) [Section 165 Amended by No. 20 of 2012, s. 67, Applied:28 Nov 2012] insufficient measures to suppress and fight fires; or

(v) [Section 165 Amended by No. 20 of 2012, s. 67, Applied:28 Nov 2012] insufficient fire compartmentation or fire separation; and

(b) the general manager considers it presents a risk to life or property.

166.   Fire upgrading report

(1)  If a general manager is of the opinion that a building or temporary structure may be a fire hazard, the general manager –

(a) may inspect the building or temporary structure; and

(b) is to prepare a report on the matter.

(2)  A fire upgrading report is to state –

(a) whether or not the building or temporary structure is a fire hazard; and

(b) a program for work to overcome any fire hazard; and

(c) the specified period and manner in which representations may be made; and

(d) any other specified matter.

(3)  A general manager may obtain a statement as to any matter relating to a fire upgrading report from any relevant reporting authority.

167.   Fire upgrading notice

(1)  A general manager is to issue a fire upgrading notice to an owner if a fire upgrading report states that a fire hazard exists.

(2)  A fire upgrading notice is to –

(a) require the owner to show cause within the specified period why the owner should not carry out the program of work specified in the fire upgrading report; and

(b) be accompanied by a copy of the fire upgrading report.

167A.   Dilapidated building report

[Section 167A Inserted by No. 52 of 2013, s. 5, Applied:19 Nov 2013]

(1)  If a general manager is of the opinion that a building may be a dilapidated building, the general manager –

(a) may inspect the building; and

(b) is to prepare a report on the matter.

(2)  A dilapidated building report is to state –

(a) whether or not the building is a dilapidated building; and

(b) the building work, or other work, that the general manager considers is required in order for the building to cease to be a dilapidated building; and

(c) any other matter the general manager is of the opinion is relevant.

(3)  A general manager may obtain from any building practitioner, or other person the general manager thinks fit, a statement as to any matter relating to a dilapidated building report.

167B.   Dilapidated building notice

[Section 167B Inserted by No. 52 of 2013, s. 5, Applied:19 Nov 2013]

(1)  A general manager may issue a dilapidated building notice to an owner of a dilapidated building if a dilapidated building report states that the building is a dilapidated building.

(2)  A dilapidated building notice issued to an owner of a dilapidated building is to –

(a) require the owner to show cause, in the manner and within the period specified in the notice, why the owner should not carry out the building work, or other work, specified in the dilapidated building report; and

(b) be accompanied by a copy of the dilapidated building report.

168.   Representations relating to notices

(1)  A person to whom a notice is issued under this Division may make representations to the person who issued the notice about any matter contained in the notice.

(2)  Representations are to be made in the manner, and within the period, stated in the notice.

169.   Revocation of notices

A person who issued a notice under this Division may revoke the notice if satisfied that it is appropriate to do so after –

(a) considering any representations made under section 168 ; or

(b) receiving any other information.

170.   Building orders

(1)  [Section 170 Subsection (1) substituted by No. 18 of 2009, s. 8, Applied:16 Jun 2009] If a person does not revoke a building notice the person, after the end of the period for making representations, is to serve a building order on the person who was issued with the notice.

(2)  A building order may –

(a) prohibit the occupation of a building or temporary structure; and

(b) [Section 170 Subsection (2) amended by No. 20 of 2012, s. 68, Applied:28 Nov 2012] require the person on whom it is served to do either or both of the following:

(i) [Section 170 Subsection (2) amended by No. 20 of 2012, s. 68, Applied:28 Nov 2012] evacuate the building or temporary structure to which the order relates;

(ii) [Section 170 Subsection (2) amended by No. 20 of 2012, s. 68, Applied:28 Nov 2012] carry out building work or other work; and

(c) [Section 170 Subsection (2) amended by No. 20 of 2012, s. 68, Applied:28 Nov 2012] require the owner or any other person to stop building work; and

(d) [Section 170 Subsection (2) amended by No. 20 of 2012, s. 68, Applied:28 Nov 2012] where an inspection direction under section 91 that has been served on a builder has not been complied with, require the builder to carry out building work or other work as specified in the inspection direction.

(2A)  [Section 170 Subsection (2A) inserted by No. 20 of 2012, s. 68, Applied:28 Nov 2012] A building order under subsection (2)(d) may be served without first issuing a building notice.

(3)  [Section 170 Subsection (3) amended by No. 18 of 2009, s. 8, Applied:16 Jun 2009] A building order requiring building work or other work to be carried out may be served without first issuing a building notice if the general manager or building surveyor is of the opinion that the work required to be done by the building order is of a minor nature.

(4)  An order under subsection (2)(c) may be made if, in the opinion of the general manager or building surveyor, the building work –

(a) contravenes this Act; or

(b) is a danger to the public; or

(c) affects the support of any adjoining property.

(4A)  [Section 170 Subsection (4A) inserted by No. 20 of 2012, s. 68, Applied:28 Nov 2012] An order under subsection (2)(c) may be served without first issuing a building notice if the general manager or building surveyor is of the opinion that a person may undertake or permit further building work which would make compliance with an order more difficult or impossible.

(5)  An order under subsection (2)(c) may be served on any person apparently in charge of a site on which the building work is being carried out and the owner.

(6)  A building order is to be in an approved form.

(7)  A person must not fail to comply with a building order.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

171.   Building order relating to work without permit

(1)  In addition to a building order under section 170 , a general manager is to serve a building order on an owner of land on which building work is carried out without a permit if the general manager does not revoke a building notice in respect of that building work.

(2)  A building order in respect of building work carried out without a building permit is to require the owner at the owner's choice –

(a) to demolish the building work or building; or

(b) if the building work is not completed, to obtain the following:

(i) a certificate to proceed;

(ii) a permit to proceed;

(iii) an occupancy permit;

(iv) a certificate of final inspection;

(v) a certificate of completion (building work); or

(c) if the building work is already completed, to obtain the following:

(i) a certificate of substantial compliance;

(ii) a permit of substantial compliance;

(iii) an occupancy permit, if required;

(iv) a certificate of final inspection;

(v) a certificate of completion (building work).

(3)  A building order under this section may be –

(a) a separate building order; or

(b) combined with a building order under section 170 .

172.   Plumbing orders

(1)  [Section 172 Subsection (1) amended by No. 20 of 2012, s. 69, Applied:28 Nov 2012] If a general manager or permit authority does not revoke a plumbing notice, they are to serve a plumbing order on the person who was issued with the notice or, if that person cannot be found –

(a) the owner; or

(b) a person apparently in charge of a site on which the plumbing work is being carried out.

(2)  A plumbing order may require the owner to carry out plumbing work or other specified work.

(3)  [Section 172 Subsection (3) amended by No. 20 of 2012, s. 69, Applied:28 Nov 2012] A plumbing order requiring plumbing work or other work to be carried out may be served without first issuing a plumbing notice if a permit authority is of the opinion that the plumbing work or other work required to be done by the plumbing order is of a minor nature.

(4)  A plumbing order is to be in an approved form.

(5)  A person must not fail to comply with a plumbing order.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

173.   Building order relating to fire hazards

(1)  In addition to a building order under section 170 , a general manager is to serve a building order relating to a fire hazard on the owner if the general manager does not revoke a fire upgrading notice.

(2)  A building order relating to a fire hazard –

(a) is to direct an owner of the building or temporary structure to carry out a program of work; and

(b) may contain any other specified matter.

(3)  A building order under this section may be –

(a) a separate building order; or

(b) combined with a building order under section 170 .

173A.   Building order relating to dilapidated building

[Section 173A Inserted by No. 52 of 2013, s. 6, Applied:19 Nov 2013]

(1)  A general manager is to serve a building order relating to a dilapidated building on an owner of the building if the general manager does not revoke a dilapidated building notice issued in relation to the building.

(2)  A building order relating to a dilapidated building is to direct an owner of the building to carry out the building work, or other work, that the general manager considers is required in order for the building to cease to be a dilapidated building.

(3)  A building order under this section may be –

(a) a separate building order; or

(b) combined with another building order.

174.   Notifying permit authority

A person who serves a building order or plumbing order must provide a copy of the order to the relevant permit authority within the specified period.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

175.   Application for certificate to proceed

(1)  An owner, before applying for a permit to proceed, is to obtain a certificate to proceed from a building surveyor.

(2)  An application for a certificate to proceed is to be accompanied by any documents or certificates required by the building surveyor.

(3)  On receiving an application for a certificate to proceed, a building surveyor is to proceed as if it were an application for a certificate of likely compliance.

(4)  In considering the application, the building surveyor is to take into account the matters referred to in section 66 .

(5)  The provisions of sections 63 , 64 , 65 and 66 apply to an application for a certificate to proceed as if it were an application for a certificate of likely compliance.

176.   Granting certificate to proceed

(1)  A building surveyor is to grant an application for a certificate to proceed within the specified period if –

(a) the application is in accordance with section 175 ; and

(b) satisfied that the building work already completed –

(i) substantially complies, or may be made to comply, with this Act; or

(ii) does not comply with this Act but that the non-compliance is not detrimental to the safety and health of any occupants or future occupants of the building; and

(c) satisfied that building work not yet completed is likely to comply with this Act.

(2)  A certificate to proceed is subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document or certificate referred to in section 175 .

(3)  If a building surveyor grants the application, he or she is to issue a certificate to proceed in the approved form.

177.   Refusing certificate to proceed

(1)  A building surveyor is to refuse an application for a certificate to proceed if not satisfied as to the matters specified in section 176(1) .

(2)  A building surveyor is not to refuse an application for a certificate to proceed on the grounds that any building product or building system is unsatisfactory if a certificate of conformity is in force in respect of that building product or building system.

(3)  A building surveyor, by notice in writing, is to notify an applicant of –

(a) the refusal to grant the application for a certificate to proceed; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

(4)  The building surveyor is to provide a copy of the notice of refusal to the permit authority and the general manager.

178.   Application for permit to proceed

(1)  An owner is to apply to a permit authority for a permit to proceed with building work in respect of which a building order under section 171 relates.

(2)  An application for a permit to proceed is to be –

(a) in an approved form; and

(b) accompanied by any specified documents; and

(c) accompanied by a certificate to proceed; and

(d) accompanied by any fees required by the permit authority.

(3)  A permit authority may require the applicant, within a specified period, to –

(a) provide the specified documents and certificate to proceed; or

(b) amend the application.

(4)  If an applicant fails to comply with a requirement under subsection (3) , the permit authority may treat the application as having lapsed.

179.   Consideration of application for permit to proceed

[Section 179 Amended by No. 18 of 2009, s. 9, Applied:16 Jun 2009] [Section 179 Substituted by No. 20 of 2012, s. 70, Applied:28 Nov 2012]

(1)  In considering an application for a permit to proceed, a permit authority is to take into account the following matters:

(a) the stability of the site;

(b) the provision of water to the site;

(c) the means of road access to the site;

(d) any relevant requirements of any permit or consent granted or issued under any other Act;

(e) any relevant provisions of this Act or the Building Regulations.

(2)  For the purposes of performing its functions under subsection (1)(d) , a permit authority may rely on any permit or consent as having been validly granted or issued under the provisions of the relevant Act and is not required to make further enquiries.

180.   Granting permit to proceed

(1)  A permit authority is to grant an application for a permit to proceed within the specified period if –

(a) the application is in accordance with section 178 ; and

(b) satisfied as to the matters referred to in section 179 .

(2)  A permit to proceed is subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document or certificate referred to in section 178(2) .

(3)  [Section 180 Subsection (3) substituted by No. 20 of 2012, s. 71, Applied:28 Nov 2012] If a permit authority grants the application, it is to –

(a) issue a permit to proceed to the applicant in the approved form; and

(b) provide a copy of the permit to proceed to the building surveyor.

181.   Refusing permit to proceed

(1)  A permit authority is to refuse an application for a permit to proceed in respect of any building work if –

(a) it is not in accordance with section 178 ; or

(b) a certificate to proceed is not in force in respect of that building work.

(2)  A permit authority, by notice in writing, is to notify an applicant of –

(a) the refusal to grant the application for a permit to proceed; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

182.   Conditions of permit to proceed binding

(1)  An owner must comply with any condition of a permit to proceed.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person's successors in title are bound by any conditions relating to a permit to proceed.

(3)  A permit to proceed is cancelled if a person or his or her successor in title fails to comply with any condition.

183.   Application for certificate of substantial compliance

(1)  An owner, within the specified period, may apply to a building surveyor for a certificate of substantial compliance in respect of completed or substantially completed building work to which a building order under section 171 relates.

(2)  An application for a certificate of substantial compliance is to be –

(a) in an approved form; and

(b) accompanied by any specified documents.

(3)  A building surveyor may require the applicant, within a specified period, to –

(a) provide the specified documents; or

(b) amend the application.

(4)  The provisions of sections 63 , 64 , 65 and 66 apply to an application for a certificate of substantial compliance as if it were an application for a certificate of likely compliance.

184.   Granting certificate of substantial compliance

(1)  A building surveyor is to grant an application for a certificate of substantial compliance within the specified period if –

(a) the application is in accordance with section 183 ; and

(b) satisfied that the completed building work to which it applies –

(i) substantially complies, or may be made to comply, with this Act; or

(ii) does not comply with this Act but that the non-compliance is not detrimental to the safety and health of any occupant or future occupant of the building.

(2)  A certificate of substantial compliance may be subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document referred to in section 183 .

(3)  A building surveyor is not to make any condition that imposes a greater standard or requirement than that specified in this Act.

(4)  If a building surveyor grants the application, he or she is to issue a certificate of substantial compliance in the approved form.

(5)  An owner must comply with any condition of a certificate of substantial compliance.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

185.   Refusing certificate of substantial compliance

(1)  A building surveyor is to refuse an application for a certificate of substantial compliance if the building work is not likely to comply with this Act.

(2)  A building surveyor is not to refuse an application for a certificate of substantial compliance on the grounds that any building product or building system is unsatisfactory if a certificate of conformity is in force in respect of that building product or building system.

(3)  A building surveyor, by notice in writing, is to notify an applicant of –

(a) the refusal to grant the application for a certificate of substantial compliance; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

(4)  The building surveyor is to provide a copy of the notice of refusal to the permit authority and the general manager.

186.   Application for permit of substantial compliance

(1)  An owner, within the specified period, may apply to a permit authority for a permit in respect of completed or substantially completed building work to which a building order under section 171 relates.

(2)  An application for a permit of substantial compliance is to be –

(a) in an approved form; and

(b) accompanied by any specified documents; and

(c) accompanied by a certificate of substantial compliance; and

(d) accompanied by any fees required by the permit authority.

(3)  A permit authority may require the applicant, within a specified period, to –

(a) provide the specified documents and certificate of substantial compliance; or

(b) amend the application.

(4)  If an applicant fails to comply with a requirement under subsection (3) , the permit authority may treat the application as having lapsed.

187.   Consideration of application for permit of substantial compliance

[Section 187 Amended by No. 18 of 2009, s. 10, Applied:16 Jun 2009] [Section 187 Substituted by No. 20 of 2012, s. 72, Applied:28 Nov 2012]

(1)  In considering an application for a permit of substantial compliance, a permit authority is to take into account the following matters:

(a) the stability of the site;

(b) the provision of water to the site;

(c) the means of road access to the site;

(d) any relevant requirements of any permit or consent granted or issued under any other Act;

(e) any relevant provisions of this Act or the Building Regulations or the Plumbing Regulations.

(2)  For the purposes of performing its functions under subsection (1)(d) , a permit authority may rely on any permit or consent as having been validly granted or issued under the provisions of the relevant Act and is not required to make further enquiries.

188.   Granting permit of substantial compliance

(1)  A permit authority is to grant an application for a permit of substantial compliance within the specified period if –

(a) the application is in accordance with section 186 ; and

(b) satisfied as to the matters referred to in section 187 .

(2)  A permit of substantial compliance is subject to –

(a) any relevant and reasonable condition; and

(b) any condition specified in a document or certificate referred to in section 186(2) .

(3)  [Section 188 Subsection (3) substituted by No. 20 of 2012, s. 73, Applied:28 Nov 2012] If a permit authority grants the application, it is to –

(a) issue a permit of substantial compliance to the applicant in the approved form; and

(b) provide a copy of the permit of substantial compliance to the building surveyor.

189.   Refusing permit of substantial compliance

(1)  A permit authority is to refuse an application for a permit of substantial compliance in respect of any building work if –

(a) it is not in accordance with section 186 ; or

(b) a certificate of substantial compliance is not in force in respect of the completed or substantially completed building work.

(2)  A permit authority, by notice in writing, is to notify an applicant of –

(a) the refusal to grant the application for a permit of substantial compliance; and

(b) the reasons for the refusal; and

(c) the right of an appeal under this Act.

190.   Conditions of permit of substantial compliance binding

(1)  An owner must comply with any condition of a permit of substantial compliance.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(2)  A person's successors in title are bound by any conditions relating to a permit of substantial compliance.

191.   Demolition order

(1)  A council may serve an order to demolish building work to which a building order under section 171 relates on the owner if –

(a) the owner fails to comply with –

(i) the building order; or

(ii) any condition of a permit to proceed; or

(iii) any condition of a permit of substantial compliance; or

(b) a building surveyor refuses to issue a –

(i) certificate to proceed; or

(ii) certificate of substantial compliance; or

(c) a permit authority refuses to issue a –

(i) permit to proceed; or

(ii) [Section 191 Subsection (1) amended by No. 20 of 2012, s. 74, Applied:28 Nov 2012] permit of substantial compliance; or

(d) [Section 191 Subsection (1) amended by No. 20 of 2012, s. 74, Applied:28 Nov 2012] an appeal has not been instituted in respect of the building order.

(2)  A council is to serve an order to demolish building work to which a building order under section 171 relates on the owner if satisfied that the building work –

(a) does not comply with this Act; and

(b) is detrimental to the safety and health of any occupant or future occupant of the building or the public.

(3)  The council or a person doing the work on its behalf may enter onto land and demolish any building work in respect of which an order to demolish is served if –

(a) at least 21 days have expired since the day of service of the order; and

(b) the building work is not demolished; and

(c) an appeal has not been instituted in respect of the order.

(4)  An order to demolish may require the owner to clean up the site to the satisfaction of the building surveyor within the specified period.

(5)  An order to demolish is to be in an approved form.

192.   Failure to comply with building or plumbing order

(1)  [Section 192 Subsection (1) amended by No. 20 of 2012, s. 75, Applied:28 Nov 2012] If a person fails to comply with a building order made by a building surveyor, the building surveyor is to refer the matter to the permit authority and the general manager.

(1A)  [Section 192 Subsection (1A) inserted by No. 20 of 2012, s. 75, Applied:28 Nov 2012] The general manager is to take all reasonable steps to enforce a building order referred to in subsection (1) on the person who has failed to comply.

(2)  [Section 192 Subsection (2) amended by No. 20 of 2012, s. 75, Applied:28 Nov 2012] If a person fails to carry out any work required by an emergency order, a building order or plumbing order, the work may be carried out by the council.

(3)  In carrying out any work under subsection (2) , the council may –

(a) enter on the land where the work is to be done with the appropriate equipment; and

(b) exclude other persons from the place where the work is being done; and

(c) if anything is to be altered, determine the form of the alteration so far as it was not previously specified; and

(d) if anything is to be taken down, demolished or removed, determine in what condition the remainder is to be left; and

(e) carry away to some convenient place any materials removed; and

(f) sell any materials so carried away and deduct the proceeds from the cost of the work.

193.   Possession of building

(1)  If any occupier of a building or temporary structure fails to allow any person to do work under section 192 , a council may take proceedings under the Justices Act 1959 to obtain possession of the building or temporary structure.

(2)  On the hearing of a complaint, the justices may order the occupier to give the council possession of the building or temporary structure within a specified period.

(3)  If a person fails to comply with an order under subsection (2) , the justices or one of them who made the order may issue a warrant authorising police officers to –

(a) enter into the building or temporary structure by force if necessary and with any assistance they consider necessary; and

(b) eject any person from the building or temporary structure; and

(c) deliver possession of the building or temporary structure to the council.

(4)  A council may remain in possession of a building or temporary structure pursuant to a warrant until the work is completed.

194.   Purchasing buildings and materials

(1)  A council which demolishes a building pursuant to section 192(2) may –

(a) sell the building for removal; or

(b) after demolishing the building, sell the materials on the site for removal.

(2)  A council may grant the purchaser of a building under subsection (1)(a) all the powers it has under section 192 .

(3)  The rights of the purchaser of a building may be –

(a) protected by caveat under the Land Titles Act 1980 , if the land is subject to that Act; or

(b) registered under the Registration of Deeds Act 1935 as if the deed by which they were granted were a judgment.

(4)  [Section 194 Subsection (4) amended by No. 2 of 2011, Sched. 1, Applied:30 Jan 2012] The rights of the purchaser of materials are to be created by a security interest registrable under the Personal Property Securities Act 2009 of the Commonwealth.

(5)  A purchaser who fails to remove a building or materials within a reasonable period is liable to the occupier of the building in damages for the use and occupation of the land.

(6)  A council is to pay the owner of the building or materials sold under subsection (1) the balance of any proceeds of the sale after deducting any reasonable expenses incurred by it.

(7)  Any money not claimed within one year after a sale of a building vests in the council.

195.   Endorsements on certificates

[Section 195 Amended by No. 20 of 2012, s. 76, Applied:28 Nov 2012] Any building certificate, occupancy permit or certificate of completion (building work), or a certificate issued under section 337 of the Local Government Act 1993 , in respect of building work to which a building order served under section 171 relates is to be endorsed to the effect that it was not the subject of the normal application, permit and inspection procedures under this Act.

Division 3 - General matters

196.   Orders to be made within certain period

A council, general manager, permit authority or building surveyor is not to serve an order under this Part requiring a person to demolish or alter any work done in contravention of this Act 12 months or more after becoming aware of the contravention.

197.   Recovery of costs

[Section 197 Substituted by No. 20 of 2012, s. 77, Applied:28 Nov 2012]

(1)  The cost of carrying out any work not done by an owner as required under this Part is a debt payable by the owner and recoverable in a court of competent jurisdiction.

(2)  If a person fails to carry out the work required by any order under this Part within a specified time, the council may enter land or a building and perform the required work and may recover its expenses as a charge on the land and recoverable as if it were rates or charges under the Local Government Act 1993 .

198.   Police assistance

A general manager may request the assistance of a police officer –

(a) in evacuating a building or temporary structure in accordance with an emergency order; or

(b) in removing any person from a building or temporary structure in respect of which an emergency order or a building order is being carried out.

199.   Notification of completion of work

(1)  An owner, by notice in writing, must notify the completion of any work carried out under an emergency order, a building order or a plumbing order to the general manager, building surveyor or permit authority, as appropriate.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 10 penalty units; or

(b) a body corporate, a fine not exceeding 50 penalty units.

(2)  After inspecting the completed work, the general manager, building surveyor or permit authority, as appropriate, is to –

(a) notify the owner that the order has been complied with; or

(b) require the order to be complied with.

200.   Amendment or revocation of building order

(1)  [Section 200 Subsection (1) amended by No. 52 of 2013, s. 7, Applied:19 Nov 2013] An owner who is required to comply with a building order served after the issue of a fire upgrading notice, or a dilapidated building notice, if there is a change in circumstances after the original fire upgrading notice or dilapidated building notice, may request the general manager to amend or revoke the building order.

(2)  A general manager may –

(a) refuse to amend or revoke the building order; or

(b) [Section 200 Subsection (2) amended by No. 52 of 2013, s. 7, Applied:19 Nov 2013] issue an amended fire upgrading notice or amended dilapidated building notice; or

(c) [Section 200 Subsection (2) amended by No. 52 of 2013, s. 7, Applied:19 Nov 2013] revoke the fire upgrading notice or dilapidated building notice.

(3)  A general manager is taken to have refused a request under this section if action was not taken under subsection (2) within the specified period.

201.   Compliance with regulations

(1)  A person who carries out work in accordance with an emergency order is not required to obtain a building permit or comply with the Building Regulations unless the general manager or building surveyor otherwise directs.

(2)  A person who carries out work in accordance with a building order must comply with the Building Regulations unless the general manager or building surveyor otherwise directs.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(3)  A person who carries out work in accordance with a plumbing order must comply with the Plumbing Regulations unless the permit authority otherwise directs.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

202.   Duration of order

An emergency order, a building order or a plumbing order remains in force until –

(a) it is complied with; or

(b) [Section 202 Amended by No. 20 of 2012, s. 78, Applied:28 Nov 2012] it is revoked.

PART 12 - Appeals

Division 1 - .  .  .  .  .  .  .  .  

[Division 1 of Part 12 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012]

203.   

[Section 203 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

204.   

[Section 204 Amended by No. 24 of 2009, s. 10, Applied:01 Jul 2009] [Section 204 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

205.   

[Section 205 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

206.   

[Section 206 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

207.   

[Section 207 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

208.   

[Section 208 Subsection (1) amended by No. 25 of 2003, s. 16, Applied:04 Jun 2003] [Section 208 Repealed by No. 20 of 2012, s. 79, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

Division 2 - Matters for Appeal Board

209.   Appeal relating to building and plumbing permits

[Section 209 Amended by No. 20 of 2012, s. 80, Applied:28 Nov 2012] An applicant for a building permit, plumbing permit, special plumbing permit, permit to proceed or permit of substantial compliance may appeal to the Appeal Tribunal against–

(a) the refusal or failure of a permit authority to grant the application; or

(b) any condition of the permit.

210.   Appeal relating to occupancy permit

(1)  [Section 210 Subsection (1) amended by No. 20 of 2012, s. 81, Applied:28 Nov 2012] An applicant for an occupancy permit may appeal to the Appeal Tribunal against –

(a) the refusal or failure of a building surveyor to grant the application; or

(b) any condition of the occupancy permit.

(2)  [Section 210 Subsection (2) amended by No. 20 of 2012, s. 81, Applied:28 Nov 2012] A reporting authority, in relation to any matter relevant to its report in respect of an occupancy permit, may appeal to the Appeal Tribunal against –

(a) the decision of the building surveyor to grant the occupancy permit; or

(b) any condition of the permit.

211.   Appeal relating to orders

[Section 211 Amended by No. 20 of 2012, s. 82, Applied:28 Nov 2012] An owner of a building, temporary structure or land affected by an emergency order, a building order or plumbing order may appeal to the Appeal Tribunal against –

(a) the order; or

(b) a failure to notify under section 199(2)(a) .

212.   Appeal relating to temporary occupancy permit

[Section 212 Amended by No. 20 of 2012, s. 83, Applied:28 Nov 2012] An applicant for a temporary occupancy permit may appeal to the Appeal Tribunal against –

(a) the refusal or failure of a general manager to grant the application; or

(b) any condition of the temporary occupancy permit.

213.   Appeal relating to protection work

[Section 213 Amended by No. 20 of 2012, s. 84, Applied:28 Nov 2012] An owner or the adjoining owner may appeal to the Appeal Tribunal against the determination of a building surveyor in relation to any protection work not carried out under an emergency order.

214.   Appeal relating to building surveyor

(1)  [Section 214 Subsection (1) amended by No. 20 of 2012, s. 85, Applied:28 Nov 2012] [Section 214 Subsection (1) substituted by No. 25 of 2003, s. 17, Applied:04 Jun 2003] An owner of a building or land, or a building practitioner engaged by such an owner, may appeal to the Appeal Tribunal against the exercise of, or failure to exercise, any power by a building surveyor under this Act in relation to that building or land.

(2)  [Section 214 Subsection (2) amended by No. 20 of 2012, s. 85, Applied:28 Nov 2012] A reporting authority, in relation to any matter relevant to its report in respect to the issue of a certificate of likely compliance by a building surveyor, may appeal to the Appeal Tribunal against –

(a) the decision of the building surveyor to issue a certificate of likely compliance; or

(b) any condition of the certificate.

215.   Appeal relating to permit authority

[Section 215 Amended by No. 20 of 2012, s. 86, Applied:28 Nov 2012] [Section 215 Substituted by No. 25 of 2003, s. 18, Applied:04 Jun 2003] An owner of a building or land, or a plumber engaged by such an owner, may appeal to the Appeal Tribunal against the exercise of, or failure to exercise, any power by a permit authority under this Act in relation to that building or land.

216.   Appeal against change of building surveyor

[Section 216 Amended by No. 20 of 2012, s. 87, Applied:28 Nov 2012] [Section 216 Substituted by No. 25 of 2003, s. 18, Applied:04 Jun 2003] An owner of a building or land, or a building surveyor engaged by such an owner, may appeal to the Appeal Tribunal against a decision made under section 54 .

217.   Appeal relating to fire regulations

[Section 217 Amended by No. 20 of 2012, s. 88, Applied:28 Nov 2012] [Section 217 Substituted by No. 25 of 2003, s. 18, Applied:04 Jun 2003] An owner of a building or land may appeal to the Appeal Tribunal against the exercise of any power under the General Fire Regulations 2000 , or any regulations made in substitution for those regulations, in relation to that building or land.

Division 2A - [Division 2A of Part 12 Heading inserted by No. 20 of 2012, s. 89, Applied:28 Nov 2012] Application of regulations

218.   Application of regulations

(1)  [Section 218 Subsection (1) amended by No. 20 of 2012, s. 90, Applied:28 Nov 2012] A person may apply to the Appeal Tribunal to determine whether any provision of the Building Code of Australia or the Tasmanian Plumbing Code applies or may be modified in respect of any building work or plumbing work that is proposed to be undertaken by the person.

(1A)  [Section 218 Subsection (1A) inserted by No. 20 of 2012, s. 90, Applied:28 Nov 2012] An application must not be made under this section in relation to an access provision of the Building Code of Australia, within the meaning of section 218A .

(2)  [Section 218 Subsection (2) amended by No. 20 of 2012, s. 90, Applied:28 Nov 2012] Before determining a matter under this section relating to building work or a building, the Appeal Tribunal is to –

(a) notify the Director, any reporting authority affected and the relevant building surveyor; and

(b) seek any submission from the Director, reporting authority and building surveyor.

(3)  [Section 218 Subsection (3) amended by No. 20 of 2012, s. 90, Applied:28 Nov 2012] In determining a matter under this section relating to plumbing work or plumbing installation, the Appeal Tribunal is to –

(a) notify the Director and any relevant permit authority; and

(b) seek any submission from the Director and the permit authority.

(4)  [Section 218 Subsection (4) amended by No. 20 of 2012, s. 90, Applied:28 Nov 2012] In determining a matter under this section, the Appeal Tribunal is to take into account –

(a) any relevant provisions of this Act, regulations, codes or standards; and

(b) any submission made under subsection (2) or (3) .

(5)  [Section 218 Subsection (5) amended by No. 20 of 2012, s. 90, Applied:28 Nov 2012] The Appeal Tribunal may –

(a) determine that a provision be modified as directed if satisfied that the modification is reasonable and not detrimental to the public interest; or

(b) determine that a provision does not apply if satisfied that the provision –

(i) is inappropriate in the circumstances; and

(ii) is not detrimental to the public interest; or

(c) impose any relevant condition.

218A.   Application for modification of regulations relating to access for persons with disabilities

[Section 218A Inserted by No. 20 of 2012, s. 91, Applied:28 Nov 2012]

(1)  An application may be made to the Appeal Tribunal for a determination that an access provision of the Building Code of Australia –

(a) does not apply; or

(b) applies with the modifications or variations specified in the application –

to a building, or land on which a building is to be constructed, specified in the application.

(2)  The application may be made by –

(a) the owner of the building or land; or

(b) a lessee of the building, who proposes to have, or is having, building work carried out in respect of the building; or

(c) any person acting on behalf of a person referred to in paragraph (a) or (b), other than the relevant building surveyor.

(3)  An application must be made on the ground that compliance with the access provisions of the Building Code of Australia would impose unjustifiable hardship on the applicant.

(4)  Before determining a matter under this section relating to disability access, the Appeal Tribunal is to notify, and seek submissions from –

(a) the Director; and

(b) any affected reporting authority; and

(c) the relevant building surveyor.

(5)  In determining whether compliance with an access provision of the Building Code of Australia would impose unjustifiable hardship on the applicant, the Appeal Tribunal must take into account the objects of the Disability Discrimination Act 1992 of the Commonwealth and all relevant circumstances of the particular case, including the following:

(a) any additional capital, operating or other costs, or loss of revenue, that would be directly incurred by, or be reasonably likely to result from, compliance with the provision;

(b) any reductions in capital, operating or other costs, or increases in revenue, that would be directly achieved by, or be reasonably likely to result from, compliance with the provision;

(c) the extent to which the construction of the building has been or will be financed by government funding;

(d) the extent to which the building –

(i) is used for public purposes; and

(ii) has a community function;

(e) the financial position of the applicant;

(f) any effect that compliance with the provision is reasonably likely to have on the financial viability of the applicant;

(g) any exceptional technical factors (such as the effect of load-bearing elements on the structural integrity of the building) or geographic factors (such as gradient or topography) affecting a person's ability to comply with the provision;

(h) financial, staffing, technical, information and other resources reasonably available to the applicant, including any grants, tax concessions, subsidies or other external assistance provided or available;

(i) whether the cost of alterations to make any premises accessible is disproportionate to the value of the building, taking into consideration the improved value that would result from the alterations;

(j) benefits reasonably likely to accrue from compliance with the provision, including benefits to persons with disabilities, to building users or to other affected persons, or detriment likely to result from non-compliance;

(k) detriment reasonably likely to be suffered by the applicant, building developer, or building manager, or by persons with disabilities or other building users, including in relation to means of access, comfort and convenience, if compliance with the provision is required;

(l) if detriment under paragraph (k) involves loss of heritage significance, the extent to which the heritage features of the building are essential, or merely incidental, to the heritage significance of the building;

(m) any evidence regarding efforts made in good faith by the applicant or a person required to comply with the provision, including consulting access consultants or the relevant building surveyor;

(n) whether the applicant has given an action plan (within the meaning of Part 3 of the Disability Discrimination Act 1992 of the Commonwealth) to the Australian Human Rights Commission under section 64 of that Act, the terms of the action plan and any evidence of its implementation;

(o) the nature and results of any processes of consultation, including at local, regional, State, national, international, industry or other level, involving or on behalf of the applicant, a building developer, building manager or the relevant building surveyor and persons with disabilities, about means of achieving compliance with the provision, including in relation to the factors listed in this subsection.

(6)  If a substantial issue of unjustifiable hardship is raised having regard to the factors mentioned in subsection (5) , the Appeal Tribunal must consider the following additional factors:

(a) the extent to which substantially equal access to public premises is or may be provided otherwise than by compliance with the access provisions of the Building Code of Australia;

(b) any measures undertaken, or to be undertaken, by, on behalf of or in association with a person or organisation in order to ensure substantially equal access.

(7)  A determination under this section must provide for compliance with the access provisions of the Building Code of Australia to the maximum extent not involving unjustifiable hardship.

(8)  For the purposes of this section, unjustifiable hardship is to be interpreted and applied having due regard to the rights and interests of all relevant parties.

(9)  In this section –

access provisions of the Building Code of Australia means a performance requirement –

(a) that is contained in Section D, Part E3 or Part F2 of the Building Code of Australia Volume One; and

(b) in respect of which there is an equivalent performance requirement contained in the Access Code within the meaning of the Disability (Access to Premises - Buildings) Standards 2010 of the Commonwealth;

building developer means a person with responsibility for, or control over, the design or construction of the building;

building manager means a person with responsibility for, or control over, the management of the building.

Division 3 - Procedures

219.   Form of applications

[Section 219 Substituted by No. 20 of 2012, s. 92, Applied:28 Nov 2012]

(1)  An application to the Appeal Tribunal is to be –

(a) in the approved form; and

(b) made within the specified period; and

(c) accompanied by the prescribed fee.

(2)  The Appeal Tribunal may extend the specified period referred to in subsection (1) if it considers it appropriate.

220.   

[Section 220 Repealed by No. 20 of 2012, s. 92, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

221.   

[Section 221 Repealed by No. 20 of 2012, s. 92, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

222.   

[Section 222 Repealed by No. 20 of 2012, s. 92, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

223.   

[Section 223 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] [Section 223 Repealed by No. 20 of 2012, s. 92, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

224.   Onus of proof in certain case

In any appeal relating to a building order in respect of a fire upgrading notice, a general manager or building surveyor is to prove that –

(a) the order ought to be confirmed; or

(b) the order has not been complied with.

225.   

[Section 225 Repealed by No. 20 of 2012, s. 93, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

226.   

[Section 226 Repealed by No. 20 of 2012, s. 93, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

227.   

[Section 227 Repealed by No. 20 of 2012, s. 93, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

228.   

[Section 228 Repealed by No. 20 of 2012, s. 93, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

229.   

[Section 229 Repealed by No. 20 of 2012, s. 93, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

PART 13 - Regulations

Division 1 - Building Regulations

230.   Building Regulations

(1)  The Governor may make regulations establishing standards and requirements relating to buildings and the carrying out of building work.

(2)  Standards established by the Building Regulations may be expressed –

(a) in terms of performance; or

(b) in terms of types of materials or methods of construction; or

(c) in any other terms.

(3)  The Building Regulations may make provision in relation to the following matters:

(a) the design, documentation, assessment, construction and inspection relating to building work;

(b) the use, inspection and maintenance of buildings;

(c) the limitations and restrictions applicable to building work and buildings;

(d) the safety measures and precautions in relation to building work and buildings;

(e) protection work;

(f) the environmental efficiency of buildings;

(g) access to, and egress from, buildings;

(h) heating appliances;

(i) matters relating to a permit under this Act relating to a building or building work.

(4)  The Building Regulations may adopt by reference the Building Code of Australia, any standards, rules, codes and specifications of bodies specified in that Code and any other standards, rules, codes and specifications.

231.   Application of Building Regulations

The Building Regulations may provide that any or all of the regulations apply to any existing building, whether or not building work is being, or is proposed to be, carried out on that building.

232.   Non-application of Building Regulations

(1)  A provision of the Building Regulations does not apply to any building work –

(a) for which a building permit is granted before the provision commences; or

(b) if the building surveyor certifies in writing that substantial progress was made on the design of the building before the provision commences.

(2)  Subsection (1) does not apply if the building surveyor and the owner of land in respect of which building work is to be carried out agree that a provision of the Building Regulations applies to the building work.

Division 2 - Plumbing Regulations

233.   Plumbing Regulations

(1)  The Governor may make regulations establishing standards and requirements relating to plumbing work and plumbing installations.

(2)  Standards established by the Plumbing Regulations may be expressed –

(a) in terms of performance; or

(b) in terms of types of materials or methods of construction; or

(c) in any other terms.

(3)  The Plumbing Regulations may provide for the following matters:

(a) the design, documentation, assessment, construction, inspection and testing relating to plumbing work and plumbing installation;

(b) the use of materials, products and systems;

(c) the use, maintenance, management and rectification of plumbing work and plumbing installation;

(d) the limitations and restrictions applicable to plumbing work and plumbing installation;

(e) matters relating to plumbing permits and special plumbing permits.

(4)  The Plumbing Regulations may adopt by reference the Tasmanian Plumbing Code and any of the standards, rules, codes and specifications of bodies specified in that Code.

233A.   Non-application of Plumbing Regulations

[Section 233A Inserted by No. 25 of 2003, s. 19, Applied:04 Jun 2003]

(1)  A provision of the Plumbing Regulations does not apply to any plumbing work –

(a) for which a plumbing permit is granted before the provision commences; or

(b) if the permit authority certifies in writing that substantial progress was made on the design of the plumbing installation before the provision commences.

(2)  Subsection (1) does not apply if the permit authority and the owner of land in respect of which plumbing work is to be carried out agree that a provision of the Plumbing Regulations applies to the plumbing work.

Division 3 - General provisions

234.   General provisions

(1)  Regulations made under this Act may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.

(2)  Regulations made under this Act may –

(a) authorise any matter to be determined, applied or regulated by a person or body specified in the regulations; and

(b) be made subject to conditions or so as to apply differently according to matters, limitations or restrictions specified in the regulations.

(3)  If a regulation requires anything to have certain qualities, the Minister may publish the trade names of things which, according to tests by competent persons, appear to have those qualities.

(4)  Any thing, the trade name of which is published under subsection (3) , is to be treated as having the qualities required for the purposes of the regulation in respect of which it is published.

235.   Fees

(1)  Regulations made under this Act may prescribe fees payable –

(a) in respect of any application, authorisation, accreditation, referral, permit or appeal; or

(b) for any other matter or service provided under this Act.

(2)  Regulations made under this Act may provide for a minimum or maximum amount of fees.

236.   Exemptions

Regulations made under this Act may exempt –

(a) building work or class of building work from any or all provisions of the regulations; or

(b) any person or class of person from any or all provisions of the regulations; or

(c) any building or class of building from any or all provisions of the regulations; or

(d) any plumbing work or class of plumbing work from any or all provisions of the regulations.

237.   Savings and transitional

(1)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act.

(2)  Regulations under subsection (1) may take effect from the commencement of this Act or on a later day.

238.   Approval of Minister

(1)  A regulation, rule or by-law relating to the design of buildings, building work or plumbing work must not be made under any Act without the approval of the Minister unless that Act expressly provides to the contrary.

(2)  A regulation, rule or by-law relating to the design of buildings, building work or plumbing work that is not made in compliance with subsection (1) is of no effect.

(3)  The Minister may certify that a regulation, rule or by-law relates only incidentally to the design of buildings, building work or plumbing work and does not require approval under this section.

PART 14 - Miscellaneous

Division 1 - Offences

239.   Offences by bodies corporate

(1)  If a body corporate contravenes a provision of this Act, a person who is concerned in, or takes part in, the management of the body corporate is taken to have contravened that provision.

(2)  It is a defence in proceedings under subsection (1) for a person to prove that –

(a) the body corporate contravened the provision without the person's knowledge; or

(b) the person was not in a position to influence the conduct of the body corporate in relation to its contravention of the provision; or

(c) the person, if in that position, attempted to prevent the contravention by the body corporate.

(3)  A person may be convicted of a contravention of a provision of this Act whether or not the body corporate has been convicted of its contravention.

(4)  This section does not affect a liability imposed on a body corporate for an offence committed by it against a provision of this Act.

(5)  For the purpose of this section, the following persons are persons who are concerned in, or take part in, the management of a body corporate:

(a) a director of the body corporate;

(b) a secretary of the body corporate;

(c) a person involved in managing the affairs of the body corporate, by whatever name called;

(d) a receiver and manager of property of the body corporate;

(e) an administrator of a deed of arrangement executed by the body corporate;

(f) a liquidator of the body corporate appointed in a voluntary winding-up of the body corporate;

(g) a trustee or other person administering a compromise or arrangement made between the body corporate and another person or other persons.

239A.   Prosecution of offences

[Section 239A Inserted by No. 20 of 2012, s. 94, Applied:28 Nov 2012] Proceedings for an offence against this Act or the regulations are to be commenced by an authorised person within 2 years after the date on which evidence of the alleged offence first came to the attention of the authorised person.

240.   False and misleading statements

A person, in providing any information, statement, report or document under this Act, must not –

(a) provide it knowing it to be false or misleading; or

(b) omit any matter knowing that without that matter the information, statement, report or document is false or misleading.

Penalty:  In the case of –

(a) [Section 240 Amended by No. 20 of 2012, s. 95, Applied:28 Nov 2012] a natural person, a fine not exceeding 100 penalty units; or

(b) [Section 240 Amended by No. 20 of 2012, s. 95, Applied:28 Nov 2012] a body corporate, a fine not exceeding 500 penalty units.

241.   Offences relating to authorised persons

A person must not –

(a) assault, delay, obstruct, hinder or impede an authorised person in the exercise of any function or performance of any power under this Act; or

(b) forge or counterfeit any written evidence of appointment of an authorised person; or

(c) make use of any forged, counterfeited or false written evidence of such an appointment; or

(d) impersonate an authorised person; or

(e) falsely pretend to be an authorised person.

Penalty:  Fine not exceeding 100 penalty units.

242.   Offences relating to building surveyors

(1)  A building surveyor must not demand or receive any payment, gratuity or gift in consideration of doing or omitting to do anything relating to the exercise of any power under this Act, other than payment for services rendered under this Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  A person must not give any payment, gratuity or gift to a building surveyor in consideration of doing or omitting to do anything relating to the exercise of any power under this Act, other than payment for services rendered under this Act.

Penalty:  Fine not exceeding 100 penalty units.

Division 2 - Infringement notices

243.   Infringement notices

(1)  An authorised person, other than a building surveyor or a permit authority, may serve an infringement notice on a person if of the opinion that the person has committed a prescribed offence.

(2)  An infringement notice –

(a) is not to relate to 4 or more offences; and

(b) is not to be served on a person under the age of 16 years.

(3)  [Section 243 Subsection (3) inserted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] An infringement notice is to be in accordance with section 14 of the Monetary Penalties Enforcement Act 2005 .

244.   

[Section 244 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

245.   

[Section 245 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

246.   

[Section 246 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

247.   

[Section 247 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

248.   Payments to council or Consolidated Fund

Any payments made in respect of an infringement notice –

(a) [Section 248 Amended by No. 25 of 2003, s. 20, Applied:04 Jun 2003] are payable to a council if the notice was served by the general manager; or

(b) in any other case, are payable into the Consolidated Fund.

249.   

[Section 249 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

250.   

[Section 250 Repealed by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] .  .  .  .  .  .  .  .  

Division 3 - Liability

251.   Immunity from liability

(1)  [Section 251 Subsection (1) amended by No. 20 of 2012, s. 96, Applied:28 Nov 2012] The Minister, the Director, a member of the Advisory Committee, a councillor, an employee of a council or a person acting under the direction of the Minister, the Director, a member of the Advisory Committee or a council is not personally liable for an honest act done or omission made in the exercise or purported exercise of a power or in the performance or purported performance of a function under this Act.

(2)  [Section 251 Subsection (2) amended by No. 20 of 2012, s. 96, Applied:28 Nov 2012] A permit authority or a building surveyor or a person acting on behalf of a permit authority or building surveyor, in relying on the action, advice, certificate issued under section 266 or certificate of another person exercising a power or performing a function, is not liable for an honest act done or omission made in exercising any power or performing any function under this Act.

(3)  A permit authority is not liable for an honest act done or omission made by a building surveyor under this Act.

(4)  [Section 251 Subsection (4) amended by No. 20 of 2006, s. 29, Applied:01 Nov 2006] An approved investigator is not personally liable for an honest act done or omission made in the exercise or purported exercise of a power or in the performance or purported performance of a function under this Act.

252.   

[Section 252 Repealed by No. 16 of 2006, s. 4, Applied:01 Nov 2006] .  .  .  .  .  .  .  .  

253.   

[Section 253 Repealed by No. 16 of 2006, s. 4, Applied:01 Nov 2006] .  .  .  .  .  .  .  .  

254.   Liability not affected

Any liability of a person to an adjoining owner or adjoining occupier because of any protection work carried out continues but the person may complete the protection work without being subject to proceedings for an injunction.

255.   Limitation on taking building action

A building action cannot be brought after a period of 10 years starting on the date on which the cause of the action first accrues, whether or not the cause accrues before or after the commencement of this Act.

256.   Accrual of cause of action

(1)  A cause of a building action for any building work or associated building work in respect of a building accrues –

(a) [Section 256 Subsection (1) amended by No. 20 of 2012, s. 97, Applied:28 Nov 2012] on the date on which an occupancy permit in respect of that building is issued; or

(b) [Section 256 Subsection (1) amended by No. 20 of 2012, s. 97, Applied:28 Nov 2012] if that permit is not issued –

(i) on the date of the first occupation of the building; or

(ii) 2 years after the issue of a building permit relating to that building, if the building is not occupied; or

(c) [Section 256 Subsection (1) amended by No. 20 of 2012, s. 97, Applied:28 Nov 2012] if the building is occupied and there is no occupancy permit, on the date on which the work is completed.

(2)  A cause of a building action for any plumbing work or associated plumbing work accrues –

(a) on the date on which a certificate of completion (plumbing work) is issued; or

(b) if that certificate is not issued –

(i) on the date of the first use of the plumbing installation; or

(ii) 2 years after the issue of a plumbing permit relating to that plumbing work, if the plumbing installation is not used.

257.   Relationship to other law

The provisions of this Division do not affect the operation of any law that enables a person to take action against another person even though judgment has previously been recovered against that other person.

Division 4 - Authorised persons

258.   Access to and entry into premises

[Section 258 Substituted by No. 20 of 2012, s. 98, Applied:28 Nov 2012]

(1)  An authorised person, at all reasonable times may –

(a) access any building, temporary structure, building work or plumbing work; and

(b) enter any premises for the purpose of exercising any power or performing any function under this Act.

(2)  An entry under subsection (1) may be carried out in the case of a Class 1 building or a Class 4 building, or a sole occupancy unit in a Class 2 or Class 3 building –

(a) with the consent of the occupier; or

(b) in accordance with a search warrant.

(3)  An entry under subsection (1) may be carried out to any premises at any time if –

(a) the safety of the public or any occupant is at risk; or

(b) the premises are affected by an emergency order.

259.   Powers of authorised persons

An authorised person may –

(a) [Section 259 Amended by No. 20 of 2012, s. 99, Applied:28 Nov 2012] demand that an owner, occupier or building manager of any building or land produce any records relating to the building or land, or to any building work, plumbing work or plumbing installation in respect of that building or land; and

(b) search for, inspect, take extracts from and make copies of those records; and

(c) make any inquiry the person considers necessary relating to any building work or building.

260.   Delegation of powers

(1)  An authorised person, by instrument in writing, may delegate any or all of the powers specified in this Division, other than this power of delegation, to another person.

(2)  A person, before exercising any power delegated under subsection (1) , must produce evidence of his or her identity and the delegation if requested to do so.

Penalty:  Fine not exceeding 10 penalty units.

Division 5 - Evidence

261.   Evidentiary provisions

(1)  [Section 261 Subsection (1) amended by No. 20 of 2012, s. 100, Applied:28 Nov 2012] The production in any proceedings of a document purporting to be a copy of a determination made by the Appeal Tribunal under this Act is conclusive evidence of the due making and existence of the determination.

(2)  A court is to take judicial notice of any notice, order or direction given under this Act.

262.   Evidence of occupancy permit

An occupancy permit issued in respect of a building is not evidence that –

(a) the building to which it applies complies with this Act; or

(b) a function control authority has given permission for the building to be used for a particular purpose.

263.   Evidence of final inspection

A certificate of final inspection is not evidence that the building or building work to which it applies complies with this Act.

264.   Evidence of compliance

In any proceedings relating to protection work, a statement of the building surveyor as to whether or not the provisions of any Building Regulations or any drawings or specifications have been complied with is conclusive.

265.   Authentication of documents

[Section 265 Amended by No. 20 of 2012, s. 101, Applied:28 Nov 2012] A document requiring authentication by the Appeal Tribunal is sufficiently authenticated without the seal of the Appeal Tribunal if it is signed by the chairperson of the Appeal Tribunal.

266.   Reliance on certificate issued by specialist or other person

[Section 266 Substituted by No. 20 of 2012, s. 102, Applied:28 Nov 2012]

(1)  A permit authority, building surveyor or general manager may rely on a certificate issued by a person who is not the responsible designer and who is –

(a) a specialist with qualifications as prescribed; or

(b) another person with qualifications as prescribed.

(2)  A certificate may certify that the following types of work comply, or are likely to comply, with the Act:

(a) design;

(b) document assessment;

(c) inspection or reporting;

(d) [Section 266 Subsection (2) amended by No. 20 of 2013, s. 20, Applied:20 Jun 2013] testing of components or of a building system or plumbing system.

(3)  The certificate may relate to –

(a) a building; or

(b) building work; or

(c) plumbing work; or

(d) a plumbing installation; or

(e) a temporary structure.

(4)  For the avoidance of doubt, subsection (1) does not impose a requirement on the accredited building practitioner responsible for the design or building work or plumbing work to issue a certificate.

267.   Evidence relating to infringement notice

Evidence of the service, acceptance or withdrawal of an infringement notice is not admissible in any proceedings for the offence to which the notice relates.

Division 6 - General matters

268.   Heating appliances

A person must not install a stove, heater or any similar appliance which burns oil or solid fuel unless that installation is carried out in accordance with the Building Code of Australia and the Building Regulations.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 20 penalty units; or

(b) a body corporate, a fine not exceeding 100 penalty units.

269.   

[Section 269 Repealed by No. 20 of 2012, s. 103, Applied:28 Nov 2012] .  .  .  .  .  .  .  .  

270.   Building permit levy

(1)  [Section 270 Subsection (1) substituted by No. 25 of 2003, s. 21, Applied:04 Jun 2003] A levy is payable to the permit authority in respect of building work, and related plumbing work, the estimated total cost of which is more than –

(a) the prescribed amount; or

(b) if no amount is so prescribed, $5 000.

(2)  A building permit levy is payable –

(a) [Section 270 Subsection (2) amended by No. 20 of 2012, s. 104, Applied:28 Nov 2012] by the applicant for the building permit, permit to proceed or permit of substantial compliance; and

(b) [Section 270 Subsection (2) amended by No. 20 of 2012, s. 104, Applied:28 Nov 2012] before a building permit, permit to proceed or permit of substantial compliance is issued; and

(c) at a prescribed amount.

(3)  [Section 270 Subsection (3) amended by No. 20 of 2012, s. 104, Applied:28 Nov 2012] In applying for a building permit, permit to proceed or permit of substantial compliance, an applicant is to supply the following:

(a) the contract price for the building work, including the cost of labour and materials;

(b) [Section 270 Subsection (3) amended by No. 20 of 2012, s. 104, Applied:28 Nov 2012] if there is no contract price, a statement by the building surveyor of the estimated cost of the building work, including the cost of labour and materials.

(4)  The Director may recover money payable as a building permit levy as a debt due in a court of competent jurisdiction.

(5)  [Section 270 Subsection (5) inserted by No. 20 of 2012, s. 104, Applied:28 Nov 2012] Before the issue of a certificate of completion of building work, the owner or his or her agent must notify the permit authority, if the actual cost of the work exceeds by an amount of $25 000 or more the contract price or the statement by the building surveyor of the estimated cost of the work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(6)  [Section 270 Subsection (6) inserted by No. 20 of 2012, s. 104, Applied:28 Nov 2012] Before the issue of a certificate of completion of building work, the owner or his or her agent may notify the permit authority, if the actual cost of the work was less than, by an amount of $25 000 or more, the contract price or the statement by the building surveyor of the estimated cost of the work.

(7)  [Section 270 Subsection (7) inserted by No. 20 of 2012, s. 104, Applied:28 Nov 2012] If the permit authority is satisfied that the actual cost of the building work on completion varies by an amount of $25 000 or more from the contract price or the estimated cost –

(a) the permit authority is to refund to the owner an amount equal to the excess levy paid; or

(b) the owner must pay to the permit authority an amount equal to the additional levy that would have been payable if the contract price or the estimated cost of that work had been the actual cost of that work.

Penalty:  In the case of –

(a) a natural person, a fine not exceeding 100 penalty units; or

(b) a body corporate, a fine not exceeding 500 penalty units.

(8)  [Section 270 Subsection (8) inserted by No. 20 of 2012, s. 104, Applied:28 Nov 2012] An amount owed under subsection (7)(b) is a debt payable by the owner and recoverable in a court of competent jurisdiction.

270A.   Offence for non-payment of levy

[Section 270A Inserted by No. 20 of 2012, s. 105, Applied:28 Nov 2012]

(1)  The owner must ensure that building work is not commenced before the levy due in respect of that work under section 270(1) has been paid.

Penalty:  Fine not exceeding 200 penalty units.

(2)  A penalty imposed under subsection (1) does not affect the liability of an owner or applicant for payment of the levy.

271.   Establishment of Building Administration Fund

(1)  The Minister is to establish a Building Administration Fund.

(2)  A permit authority –

(a) may retain a specified percentage of any building permit levy paid; and

(b) is to forward the balance to the Director or other specified body for payment into the Fund.

(3)  The funds of the Fund are to be applied –

(a) for the administration of this Act; and

(b) for any other purpose relating to building and plumbing matters the Minister determines.

272.   Records of levy payments

A permit authority is to –

(a) keep records of building permit levies it receives and forwards to the Director; and

(b) make those records available for inspection by the Director.

273.   Additional orders

(1)  [Section 273 Subsection (1) amended by No. 20 of 2012, s. 106, Applied:28 Nov 2012] The Director or a general manager may apply to a court for an order in relation to a contravention or likely contravention of –

(a) this Act; or

(b) a notice, order or determination under this Act.

(2)  The court, if satisfied that a contravention has been or is likely to be committed, may make any one or more of the following orders:

(a) an order to restrain the contravention or other conduct by the person by whom the contravention is committed or is likely to be committed;

(b) an order requiring building work or plumbing work to be carried out;

(c) an order requiring the payment of money into court in respect of any building work or plumbing work carried out or to be carried out by the permit authority;

(d) any necessary ancillary orders.

(3)  An application for an order under this section –

(a) may be made during proceedings for an offence under this Act; and

(b) [Section 273 Subsection (3) amended by No. 20 of 2012, s. 106, Applied:28 Nov 2012] must not be made in relation to a matter that is subject to an appeal to the Appeal Tribunal that has not been finally disposed of.

(4)  An order may be made under this section instead of, or in addition to, any other order or penalty imposed in proceedings under this Act.

274.   Provisions of other standards

Any provision of any standard, code or guideline in relation to a matter that is dealt with in the Building Code of Australia applies to a building or building work only if it is expressly adopted by that Code.

275.   Defence of compliance

In an action for negligence relating to the construction or alteration of buildings or plumbing installations or relating to building work or plumbing work, it is a defence to prove compliance with standards in force at the time of that construction, alteration or work, unless the building, plumbing installation, building work or plumbing work was required to be upgraded under another Act and was not so upgraded.

276.   Building compliance with Act

(1)  A building or building work complies with this Act if it complies with the performance requirements of the Building Code of Australia.

(2)  Compliance with the performance requirements of the Building Code of Australia is satisfied if –

(a) a building permit is issued; and

(b) a certificate of completion (building work) is issued.

277.   Plumbing compliance with Act

(1)  Plumbing work or a plumbing installation complies with this Act if it complies with the performance requirements of the Tasmanian Plumbing Code.

(2)  Compliance with the performance requirements of the Tasmanian Plumbing Code is satisfied if –

(a) a plumbing permit or special plumbing permit is issued; and

(b) a certificate of completion (plumbing work) is issued.

278.   Registers

(1)  A permit authority is to keep a register for each of the following:

(a) building permits issued by it;

(b) plumbing permits issued by it;

(c) special plumbing permits issued by it;

(d) certificates of final inspection received by it;

(e) occupancy permits received by it;

(f) temporary occupancy permits received by it;

(g) certificates of completion issued by it;

(h) [Section 278 Subsection (1) amended by No. 20 of 2012, s. 107, Applied:28 Nov 2012] building orders received by it or issued by the general manager;

(i) plumbing orders issued by it;

(j) emergency orders received by it;

(k) [Section 278 Subsection (1) amended by No. 20 of 2012, s. 107, Applied:28 Nov 2012] permits to proceed issued by it;

(l) [Section 278 Subsection (1) amended by No. 20 of 2012, s. 107, Applied:28 Nov 2012] permits of substantial compliance issued by it.

(2)  A register kept by a permit authority is to –

(a) contain any information the Director determines; and

(b) be in an approved form; and

(c) be made available for inspection at any reasonable time.

(3)  The Director is to keep –

(a) a register of accredited building practitioners; and

(b) a register of owner builders.

279.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Infrastructure, Energy and Resources; and

(b) the department responsible to the Minister for Infrastructure, Energy and Resources in relation to the administration of this Act is the Department of Infrastructure, Energy and Resources.

280.   Transitional and savings provisions

Schedule 3 has effect in respect of transitional and savings provisions.

280A.   Savings and transitional provisions consequent on the Building Amendment Act 2012

[Section 280A Inserted by No. 20 of 2012, s. 108, Applied:28 Nov 2012] Schedule 3A has effect.

281.   Acts repealed

(1)  The Town Building Act 1962 is repealed.

(2)  The Building (Action Limitation) Act 1997 is repealed.

282.   

The amendment effected by this section has been incorporated into the authorised version of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

283.   Statutory Rules rescinded

The Statutory Rules specified in Schedule 4 are rescinded.

SCHEDULE 1 - Membership and meetings of advisory committee

Section 9(4)

1.   Interpretation

In this Schedule,

member means a member of the Advisory Committee.

2.   Term of office

A member is to be appointed for a period, not exceeding 3 years, specified in the member's instrument of appointment.

3.   Holding other office

The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office is not disqualified from –

(a) holding that office and also the office of a member; or

(b) accepting any remuneration payable to a member.

4.   Conditions of appointment

(1) A member is entitled to be paid any remuneration and allowances the Minister determines.

(2) A member holds office on any conditions specified in the instrument of appointment.

5.   Resignation

A member may resign by signed notice given to the Minister.

6.   Removal from office

(1) The Minister may remove a member from office if the member –

(a) is absent from 3 consecutive meetings of the Advisory Committee without the permission of the Advisory Committee; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or

(d) is convicted of an offence against this Act.

(2) The Minister may remove a member from office if satisfied that the member is –

(a) physically or mentally incapable of continuing as a member; or

(b) unable to perform adequately or competently the functions of the member's office.

7.   Filling of vacancies

If the office of a member becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.

8.   Defect not invalidate appointment

An appointment of a person as a member is not invalid merely because of a defect or irregularity in relation to the appointment.

9.   Convening of meetings

(1) The chairperson of the Advisory Committee, after giving each member reasonable notice –

(a) may convene a meeting at any time; and

(b) must convene a meeting if requested to do so by the Minister.

(2) If the chairperson is absent or otherwise unable to perform the duties of the office, a meeting may be convened, after reasonable notice of the meeting has been given of the meeting, by a person authorised by the Advisory Committee to do so.

(3) The Advisory Committee is to determine what is reasonable notice for the purpose of this clause.

10.   Presiding at meetings

(1) The chairperson presides at all meetings of the Advisory Committee at which he or she is present.

(2) If the chairperson is not present at a meeting of the Advisory Committee, a member chosen by the members present at the meeting is to preside.

11.   Quorum and voting at meetings

(1) A quorum at any duly convened meeting of the Advisory Committee is at least half the number of its members.

(2) At a meeting of the Advisory Committee –

(a) the member presiding has a deliberative vote only; and

(b) a question is decided –

(i) by a majority of votes of the members present and voting; or

(ii) in the negative if there is an equality of votes of the members present and voting.

12.   Conduct of meetings

(1) Subject to this Act, the Advisory Committee may regulate the calling of, and the conduct of business at, its meetings as it considers appropriate.

(2) The Advisory Committee may permit members to participate in a particular meeting or all meetings by –

(a) telephone; or

(b) video conference; or

(c) any other means of communication approved by the Advisory Committee.

(3) A member who participates in a meeting under a permission granted under subclause (2) is taken to be present at the meeting.

SCHEDULE 2

[Schedule 2 Repealed by No. 20 of 2012, s. 109, Applied:28 Nov 2012]

SCHEDULE 3 - Transitional and savings

Section 280

1.   Interpretation

In this Schedule –

commencement day means the day on which section 280 commences;

repealed building regulations means regulations made under section 15 of the repealed Part;

repealed Part means Part 2 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;

repealed plumbing regulations means regulations made under section 16 of the repealed Part.

2.   Proceedings

Any proceedings instituted under the repealed Part but not determined before the commencement day may, after that day, be continued under that Part until determined.

3.   Appeals

Any appeal made under the repealed Part but not determined before the commencement day may, after that day, be continued under that Part until determined.

4.   References

A reference lodged under the repealed Part and not determined before the commencement day may, after that day, be continued under that Part until determined.

5.   [Schedule 3 Amended by No. 24 of 2003, Sched. 1, Applied:04 Jun 2003] .  .  .  .  .  .  .  .  

6.   Permits

(1) A plumbing permit in force under the repealed plumbing regulations immediately before the commencement day is, on that day, a plumbing permit under this Act.

(2) A building permit in force under the repealed building regulations immediately before the commencement day is, on that day, a building permit under this Act.

(3) A special connection permit in force under the repealed plumbing regulations immediately before the commencement day is, on that day, a special plumbing permit under this Act.

7.   Certificates

(1) A certificate of occupancy in force under the repealed building regulations immediately before the commencement day is, on that day, an occupancy permit.

(2) A certificate of completion relating to building work in force under the repealed Part immediately before the commencement day is, on that day, a certificate of completion (building work).

(3) A certificate of completion relating to plumbing work in force under the repealed plumbing regulations immediately before the commencement day is, on that day, a certificate of completion (plumbing work).

(4) An authorisation to start work relating to plumbing in force under the repealed plumbing regulations immediately before the commencement day is, on that day, an authorisation to start work under this Act.

(5) A building certificate relating to a building in force under the repealed building regulations immediately before the commencement day is, on that day, a building certificate under this Act.

(6) A certificate of material compliance relating to a building in force under the repealed building regulations immediately before the commencement day is, on that day, a certificate of substantial compliance.

8.   Consents and approvals

Any consent or approval in force under the repealed Part immediately before the commencement day continues, on and after that day, subject to the same terms and conditions.

9.   Orders and notices

Any order or notice in force under the repealed Part immediately before the commencement day continues in force on and after that day until it expires or is withdrawn, expired, revoked or quashed under that Part.

SCHEDULE 3A - Savings and Transitional Provisions consequent on the Building Amendment Act 2012

[Schedule 3A Inserted by No. 20 of 2012, s. 110, Applied:28 Nov 2012]

Section 280A

1.   Interpretation

In this Schedule –

amending Act means the Building Amendment Act 2012 ;

Appeal Board means the Building Appeal Board as in existence immediately before the commencement day;

commencement day means the day on which sections 109 and 110 of the amending Act commence.

2.   Immunity from liability for members of Appeal Board

Section 251 , as in force immediately before the commencement day, applies to a member of the Appeal Board in respect of any thing done or omission made before that day as if that section had not been amended by the Building Amendment Act 2012 .

3.   Matters before Appeal Board to continue

Any matter before the Appeal Board immediately before the commencement day that had not been determined by that day is to continue to be heard and determined by the Appeal Board in accordance with this Act, as in force immediately before the commencement day.

SCHEDULE 4 - Statutory Rules rescinded

Section 283