Its not just Universities who will need to lift their game to rebuild confidence

There are fewer that 60 working days until the NSW Residential Apartment Building (Compliance and Enforcement Powers) Bill comes into effect on the 1st September 2020. There are 270 working days until the NSW Design and Building Practitioner's Bill should come into effect on the 1st July 2021. There has been a lot said about the requirements for Developers to engage properly qualified and accredited designers to prepare declared designs and to engage their contractors with the obligation to prepare declared as-built drawings and manuals. But the most immediate aspect that developers should look out for is that their contractors today, are delivering projects in accordance with approved designs and the Building Code of Australia. Most will be on top of this, others will not be so prepared.

This week the construction education sector was put on notice that future graduates should be under no doubt that they will need to place a high value on their integrity going forward. There was in depth conversations about what this meant for all the professions. The new digital capabilities of the regulator in NSW were also discussed. In future all construction professionals and practitioners who must be accredited and licensed in NSW will have a digital twin. It will follow them wherever they work and whatever projects they build. My recent article discussing the cost shifting that has occurred across the board in construction education was coincidently reinforced by Professor Martin Loosemore in the FifthEstate.

The key takeout here, is understand what is compliant and what is not. Stop the cost shifting. This is not about more red tape - its about getting it right from the start.

The next frontier to re-build construction confidence in NSW are non-compliant and or improperly labeled materials and their compliant installation

Since taking up the role as NSW Building Commissioner I have had a continuous feed of concerned players pointing out non-compliant materials and or improper labelling. I have been amassing a portfolio of photos I have taken of unclear product labelling and non-compliant installations. A manufacturer's certificate that claims compliance does not mean that the installed product meets the criteria of asserted testing and compliance with Australian Standards. Often a lack of design and materials specifications by a Developer's designers opens up the field for cost cutting, short cuts and simply non-compliant work.

Developers, designers and contractors cannot contract out of compliance with the law. The example below is now being followed up by my office. I am told that one of the larger project home builders is inserting this specification or condition in their contracts. As it turned out, this matter had been previously pointed out to me prior to a recent visit to one of the major building materials outlets where I had purchased this very product. It does not comply in NSW. Nor did a number of other products that I purchased and had investigated.

For those who have not read the NSW Residential Apartment Building (Compliance and Enforcement Powers) Bill this may be a good time to do so. The office of the Building Commissioner (OBC) has now started appointing the first of the Occupation Certificate auditors. We have been able to select from a deep pool of subject matter experts with considerable experience. They will be tasked with taking deep dives into all of the product certifications that have been incorporated into the projects they will audit. It will no longer be acceptable for a builder or certifier to simply hand up an unvalidated product compliance certificate or to assume it has been installed correctly. They will require assurance evidence.

I have several shopping visits scheduled to a number of electrical and plumbing outlets. And I will visiting more projects to observe what materials are and how they are being installed.

It's no good government relations lobbyists asking what is the Building Commissioner up to? They had better check-in with me directly and agree what they will do.

I have been working with a major industry association to navigate some of these issues. I am keen to find a way forward that minimises disruption. But I will not back off. These discussions have been going on for some months. On the 25th May I wrote to the CEO;

I understand that Gabby O’Dwyer – Government Relations at Bunnings has made representations to the Minister’s Office to enquire as to the background of my recent store visit.

At our meeting with Neil Hockley following my visit we made the purpose of that visit clear and left it on the table for Bunnings to come back with a way forward.

Our goal was a constructive solution to the matters raised.

Exhibits of my concerns were provided. 

As NSW Building Commissioner my task is to oversee the compliant construction of buildings in NSW and as such the materials that are incorporated. My recent site visits indicate that there are many at best poorly labelled materials being used and most likely materials that do not comply with Australian Standards. In many cases the users of these materials plead ignorance as to their compliance and proper use. 

Further, when self-performing unsophisticated parties are undertaking construction work like home building or renovation that should comply with the building regulations, their task is made more challenging when they do not have clear labelling at store. This is not just a Bunnings issue.

When dwellings are on-sold with non-compliant work/materials, subsequent purchasers are potentially placed at risk.

As discussed with Neil Hockley, I am looking to have non-compliant and poorly labelled materials replaced with products that comply.

Working through this matter should be done constructively as you have previously proposed. That is my preference. I have made my position clear on this. Perhaps you may speak to Neil and discuss how he would like to proceed.

This matter remains on the table. Notwithstanding, the duty to ensure that compliant materials are used and properly incorporated into buildings coming up for an Occupation Certificate remains with the builder. It would be helpful if they could refer to clear design and specifications that may not have been provided at tender, but this does not diminish their obligations. Builders are required to build in accordance with Australian Standards period. And certifiers are required to fulfil their public duty (yes they are public officers under their enabling legislation) to verify compliance. That is not a tick box task. Excuses that non-compliant material should have been stopped at a factory or at a border will not wash. In many cases builders actually import those materials and fabrications, or they offer alternatives. These must also comply. And those alternatives must be application relevant.

Developers should now pay close attention to the certifiers they engage

A known cohort of certifiers have left a trail of shocking building outcomes behind them. The NSW Building Regulator is now pressing to bring these players to account. Some will lose their accreditation. While that process takes place it is possible to check out certifier track records. We will be deploying a multi-party risk rating tool to identify the most risky developer, builder and certifier combinations from the 1st September this year. Lousy certifiers will be in this mix. This is a risk management initiative to enable the regulator to target the most at risk projects. Here I want to stress that it is my belief that the risky player cohorts are in the vast minority And increasingly, the more trustworthy players want the most risky to either lift their game or get out of the industry. Infact there is a growing disquiet amongst the good players that association with the risky players by inclusion in a well regarded industry association is no longer viable. I believe that time has come.

Some who ignore these winds of change should do so with their eyes wide open. Recently a certifier who has left many poor projects in his wake, lost accreditation some months before a project reached the Occupation Certificate stage. A new certifier was appointed. We have met, and I asked how prior work that may have been certified by the discredited certifier may be handled. His answer was that he would take all prior inspections on face value. This is unacceptable. The new certifier must demonstrate that the project is compliant before an Occupation Certificate can be issued. We tested one area of the work - wet areas. The previous certifier had allegedly inspected and signed off on 20 bathrooms. There are no available records of which bathrooms or what was observed. The only choice in my view is to dig up a random sample of bathrooms to determine compliance and go from there. We start that this week.

We will keep readers informed. Light must be shone on what we find and this should inform the market. Our job is to demonstrate to consumers that the game has changed in NSW. The consequences of not getting it right have now become clear. This is not a heavy handed play. It will only involve the most risky players. Infact this approach will be a light regulatory touch for the good players. We are moving away from one size fits all governance.

We will now start to bring forward regular case studies showing what we have found

Readers should follow these reports on my Building Commissioner site. There is one taking shape just now. There are many fingers in this pie. They have caused these owners untold grief and expense. I travelled to northern NSW this week to see the matter first hand. I will be calling out all of the players who have contributed to this situation. The most egregious part of this story will be the builder and engineers that let these customers down, and their associations who have stood by and done nothing to bring their members to account.

Imagine this. A house contracted to be built with piered foundations. None were installed. I am currently gathering all of the facts here and will then call out all the fingers in this pie. Here are two images to suggest what is coming. I inspected for all piers in the yellow zone.

Watch this space.

As always, if readers want to contact me then please do so via the Building Commissioner link below. And I want to acknowledge the growing number of certifiers, contractors and suppliers who have had enough and are sharing with the OBC important intel. Thank you.