Anywhere, anytime inspections for all phases of multi-unit construction

Most developers are appalled at the exhibits of non-compliant construction our Occupation Certificate Audits have been uncovering since the commencement of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act - RAB Act, in September 2020. Good developers are angry that developers, consultants, builders and certifiers who ignore industry standards continue to do so much harm to the brand of their industry. On a daily basis I am now being approached by developers and builders who recognise it is time to lift their game. Others have not shown much interest and think business as usual will prevail. I expect that readers of today's Sunday Telegraph cover of a project in Strathfield may start to get the message that ignoring the construction reforms in NSW is not an option.

Two stop work orders have been issued on this project. The first by Safework NSW who after multiple attempts to get the builder on this site to lift safety standards were left with no choice but to shut things down. Increasingly all parts of the NSW government and local government network are becoming eyes and ears for the Building Regulator's inspectorate. It is clear that when serious safety breaches are repeated by builders with a culture of little care for making a safe workplace, it is inevitable that the same disregard for compliant building construction will be present. Within 3 days of Safework calling out this project, our building inspectors had attended the project and issued a second stop work order that will need to be resolved once this project is safe to recommence work. This disregard to safety and compliant construction work will have serious consequences for this developer/builder.

There will be much more to this story. It surprises that when I spoke to the Certifier, he was unaware that the project had gone past the street level where he claimed that a staged Construction Certificate was issued for. He undertook to drive by and have a look. When I spoke to the engineer he advised that there were no serious issues that would affect him issuing a structural adequacy certificate. When asked about the notations on his engineering drawings requiring construction in accordance with Australian Standards he claimed that these were quality issues and not his responsibility. I will take this up with him and Engineers Australia. Its time for engineers to step up and be professional.

Ignorance is not a defence, nor is self-election to ignore Australian Standards

Following a recent survey of over 1400 designers and constructors who work on multi-unit residential projects in NSW up to 80-percent claim to be unaware of the Design and Building Practitioners Act (D&BP Act) coming into effect on the 1st July this year. This is despite the representations of almost every industry body who all sit at the policy table negotiating on every aspect of the legislation and companion regulations. It is clearly time to step up the communications that seem to be missing so many players who plead ignorance.

The commencement of Occupation Certificate audits in September last year were enabled by the RAB Act. This act provides the NSW regulator with powers unavailable in any other state. These powers leave little doubt that the NSW government is serious about reform.

Since the RAB Act commenced the focus has been on Occupation Certificates (OC) where once achieved, developers can compel consumers to settle on their off the plan apartment purchasers. The building inspectorate has over 25 new inspectors in the field conducting Occupation Certificate audits, the area we felt was the most pressing starting point to get developer attention i.e. when inspectors discovered potentially serious defects in the key building elements - structure, waterproofing, fire systems, building envelope and services leading to rectification and in some instances prohibition of the issue of Occupation Certificates. Over 25 audits have been commenced for buildings that had yet to achieve completion. A further 10 audits have commenced on buildings which have already achieved completion. More orders are being prepared. 12 developers are being investigated for not advising of pending OC's. Next week, developers on 5 projects that will commence audits in March will be briefed and last week, the 6 April audit targets were selected. By July over 50 projects will have been audited. 200 audits are planned to be completed by late 2022.

Building and maturing new regulatory capability does not happen overnight. We are however committed to get all of the new audit capabilities that will stand up by the end of this year underway. On a monthly basis the supporting infrastructure to target the most risky developments is being developed and becomes more effective. The focus of all audit work will be on compliance with development consents and Australian building standards. Beyond the OC audit program, the following audit programs are being mobilised;

1. Go any where, any time audits - these audits will happen anywhere a multi-unit residential project has commenced in NSW. Selection will be random, some will be the result of tip offs, others based on prior player records and increasingly in collaboration with agencies like Safework as was the case for the Strathfield project in today's media.
2. Design and Declared Design audits - these audits will align with the requirements of the D&BP Act. We are gearing up to audit as many as 15-percent of declared designs from September 2021. In order to build capability prior, we will commence auditing development designs that have Construction Certificates from September 2020 starting this July. The OC audits are pointing to serial designers whose project documentation is inadequate or their involvement in certifying construction compliance seems faulty.
3. As-built and Declared As-Built drawings - these audits align with existing legislation requiring as-built drawings for projects which commenced after the 1st January 2018 and projects that will be captured by the D&BP Act from July 2021. The audit team will aim to initially audit up to 15-percent of drawings that represent completed projects from the 1st September 2020 and onwards. These audits will prioritise the representation of the key building elements in the common property of these projects to observe compliance with their design and the Building Code of Australia. They will follow the making of the project from the Construction Certificate, to the Occupation Certificate and into a buildings early life experience. Audits will also look identify the root cause of any serious defects in buildings where the OC auditors have discovered them.

These audits will start to provide the regulator and industry with an end to end systemic review of where the industry's fault lines are showing up. The intent is to work with developers, designers, contractors, manufacturers, installers, certifiers and educators to target priority strategies to drive more trustworthy building outcomes. The data will also point to those players who should come in for more immediate attention to lift their game. There will be far earlier consequences for those players who do not pay attention to the NSW reforms.

The regulator's work over the next year will create a unique data stream that will be deployed to produce case studies of projects that all can benefit from. Both good and bad. This information will help inform future policy. We are also working with 2 universities to enable this data to be available for a new program of industry doctorates. Here we feel that opportunities should be created for mid-career practitioners to access higher professional qualifications while they remain in the work place and in position to influence industry. Two priority opportunities will be to analyse the types of construction contracts that are being used across the multi-unit market and a second to undertake a study of what happens to certified materials after they leave the manufacturer and get installed into buildings.

Still much more to be done to modernise the NSW construction industry

There are many who have yet to be confronted with their own realities. These include some Tier 1 designers and builders who are out of tune with what is happening on their projects. 2021 will need to be a year of confronting those who seem to ignore of the trail of issues that their lack of attention to compliance or good practice should avoid. While exhibits of serious defects in building elements such as wet areas get easy attention, there are many areas that must be improved. The first of those who should take note are engineers. On every project where we have identified potentially serious structural defects, the engineer is a member of Engineers Australia. When challenged with some of the issues we are observing it seems anyone but them may be responsible - they were not engaged to check this or they could not be there all the time. But they still issued certificates to attest to construction in accordance with their design. Design and Construct contractors are happy to take these certificates and sign off. These contractors need to focus on what their contract obligations require and not just what they want to hear. They need to attend to what they need to hear.

Anywhere any time means just that

Designers, manufacturers, installers and certifiers should anticipate visits to their premises in 2021. We are now using the RAB Act to call in contracts, drawings, specifications and certificates for progress payments to understand how sub-optimal performances are being ordered, managed, claimed and paid for. Developers sell whole apartments to purchasers. They do not sell them in parts. Developers engaging designers and contractors from here on will need to be mindful of the new Design and Building Practitioner's Act. They will need to understand that an untrustworthy designer, contractor or certifier could cost them dearly at the wrong time in the project cycle. Project financiers also taking note along with receiver managers who may need to step into the shoes of a failed developer or builder. They in effect become the builder or developer where projects have not yet reached completion.

2021 is shaping up to be an important year, as the NSW construction landscape reforms to deliver customers more trustworthy building outcomes. Our goal is to rebuild customer confidence and lift investment in new residential development in NSW as soon as possible.