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BUILDING (GENERAL) LEGISLATION AMENDMENT REGULATION 2015 (NO 1) (NO 14 OF 2015)
2015
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
BUILDING (GENERAL) LEGISLATION AMENDMENT REGULATION 2015 (No 1)
Subordinate law SL2015-14
EXPLANATORY STATEMENT
Presented by
Mr Mick Gentleman MLA
Minister for Planning
EXPLANATORY STATEMENT
This explanatory statement relates to the Building (General) Legislation
Amendment Regulation 2015 (No 1), herein referred to as the “amending
regulation”, as presented to the ACT Legislative Assembly. This statement
has been prepared in order to assist the reader of the amending regulation and
to help inform legislative debate on it. This statement does not form part of
the amending regulation and has not been endorsed by the ACT Legislative
Assembly.
This statement is to be read in conjunction with the amending
regulation. It is not, and is not meant to be, a comprehensive description of
the amending regulation. What is said in this statement about a provision is
not to be taken as an authoritative guide to the meaning of a
provision—that is a task for courts.
Background and overview
The amending regulation makes exemptions to compliment recent other
legislative changes to facilitate better regulation of asbestos work on
buildings, and demolition of building that contained loose-fill asbestos,
sometimes referred to as “Mr Fluffy” asbestos buildings, recognising
a nickname of a 1970s ACT installer of loose-fill asbestos.
At the time
of drafting the amending regulation the ACT Government was about to commenced
demolition of the first of up to one thousand Mr Fluffy ACT houses in an
asbestos eradication program. Speculation about the future reach of the program
to home owners who might not want to transfer their premises to the Government
or to not have their home demolished creates incentives for owners to hide the
asbestos status of their home.
An intention of part of the amending
regulations to provide a new warning on plans for future work on Mr Fluffy
houses, and other buildings, or connected buildings, that contained loose-fill
asbestos, to warn of the potential asbestos risk. That will make it difficult
to conceal the asbestos risks associated with doing work on such buildings, and
will help alert workers and building occupants to the hazard.
Other
provisions of the amending regulation are a consequence of a name change to a
prescribed utility services provider, and to cater for new utility operators who
may enter the ACT’s regulated utilities sectors, which has recently been
expanded to include smaller-scale utility service providers than traditionally
regulated under utility licenses under the Utilities Act 2000.
The smaller utilities are now regulated under the Utilities
(Technical Regulation) Act 2014—not under the Utilities Act
2000, which continues to regulate the large utilities.
The amending
regulation also narrows the scope of licensable work for builder’s
licenses, to exclude low risk buildings and structures that are exempt from the
relevant provisions of the Building Act, such as certain fences, small
structures, small retaining walls, etc. Although that has historically been
assumed to be the case, it has not been clear in law.
Part 1
Preliminary
Section 1 Name of regulation
Section 1
of the amending regulation names the amending regulation the
“Building (General) Legislation Amendment Regulation 2015 (No
1)”, so it may be cited by that name.
Section 2 Commencement
Section 2
(1) of the amending regulation stipulates that the amending regulation
commences on the day after its notification day, which means the day after it is
notified on the ACT legislation register; except for sections 9 and 10 of the
amending regulation.
Section 2 (2) stipulates that sections 9 and 10 of the
amending regulation commence on the later of the follow
events—
(a) 1 day after the commencement of section 3 of the
amending regulation; and
(b) the commencement of section 3 of the
Dangerous Substances (Loose-fill Asbestos Eradication) Legislation Amendment
Act 2015.
That delayed commencement of sections 9 and 10 of the
amending regulation is necessary to anticipate the commencement of the
Dangerous Substances (Loose-fill Asbestos Eradication) Legislation Amendment
Act 2015, as sections 9 and 10 of the amending regulation refer to
provisions of that Act. If that Act never commences, then sections 9 and 10 of
the amending regulation will not commence. If that Act commences before section
3 of the amending regulation, then sections 9 and 10 of the amending regulation
will not commence until section 3 of the amending regulation
commences.
Due to the operation of section 75 (1) of the Legislation
Act 2001 (“the Legislation Act”) the naming and commencement
provisions of the amending regulation, at sections 1 and 2, commence
automatically on the day the amending regulation is notified on the ACT
legislation register. A note to that effect is included in section 2 of the
amending regulation.
Section 3 Legislation amended
Section
3
of the amending regulation provides that the amending regulation amends the
two laws listed in that section, being the—
• Building
(General) Regulation 2008; and
• Construction Occupations
(Licensing) Regulation 2004.
Upon commencement of the amending
regulation’s relevant provisions, they will accordingly amend those laws.
The amending regulation will automatically repeal after its commencement, but
its provisions with delayed commencement will continue to have their delayed
effect despite the repeal.
From soon after the respective provisions
commence and take effect, a new republication of the amended laws will be
available. The new republication will feature the amendments made by amending
regulation.
Section 4 Legislation amended
Section 4
of the amending regulation provides that it repeals the legislative
instrument named the Building (General) (Asbestos Handling Occupation and
Qualification) Declaration 2009 (No 1), which has notifiable instrument
number NI2009-317. It is desirable to repeal that instrument because
section 13 of the amending regulation makes a substitution that in effect omits
the only provisions that rely on that instrument, and so the instrument will be
of no effect or purpose after the amendment. Despite who made that instrument,
it can be repealed by the amending regulation.
Part 2 Building
(General) Regulation 2008
Part 2 of the amending regulation amends
the Building (General) Regulation 2008, referred to herein as the
“Building Regulation”.
Section 5 Section 3, note
1
Section 5
of the amending regulation substitutes note 1, in section 3 of the Building
Regulation, with a new note 1, as prescribed in section 5 of the amending
regulation. The main difference between the unamended note 1, and the amended
version, is that the amended version does not contain an example of a definition
with the term ‘ActewAGL Distribution’.
The
substitution of the note is necessary because sections 14 and 16 of the amending
regulation omit from the Building Regulation all definitions of
‘ActewAGL Distribution’. For details of why that
definition is omitted, see the explanation for section 15 of the amending
regulation.
Section 6 New section 6 (3A)
Section 6
of the amending regulation inserts into the Building Regulation, a new
subsection numbered (3A), under section 6, referred to as new ‘section 6
(3A)’. New section 6 (3A) prescribes that subsection (3), under section
6, of the Building Regulation, does not apply to building work mentioned in
schedule 1, part 1.3, item 25A, of the Building Regulation, if the parameters
prescribed at new paragraphs 6 (3A) (a), (b) and (c) are all satisfied. That
new item 25A is inserted by section 13 of the amending
regulation.
Section 6 of the Building Regulation, in part, prescribes
which buildings or building work are exempted from the application of the
Building Act, or from parts of that Act, by referring to exemption schedules in
schedule 1 of the Building Regulation.
Subsection (3), under section 6,
or in other words—section 6 (3), of the Building
Regulations—prescribes the conditions under which a building or building
work mentioned in schedule 1, part 1.3 (other than a building mentioned in item
26) of the Building Regulation are not exempt under section 6. Namely,
exemptions do not apply if building work at the building may
affect—
(a) the structural integrity of any part of a building for
which a certificate under the Act, part 5 (Building occupancy) has been issued;
or
(b) a fire-rated wall, ceiling or floor; or
(c) a ventilation
or air-handling system, fire protection system or other mechanical service;
or
(d) a fire-escape, emergency lift, stairway, exit or passageway to an
exit; or
(e) the natural light or ventilation available to a building for
which a certificate under the Act, part 5 (Building occupancy) has been issued;
or
(f) the building in a way that reduces its compliance with the
building code to a level that is less than the minimum requirements of the
code.
An intention of section 6 of the amending regulation is to ensure
that section 6 (3) of the Building Regulation does not prevent building work
mentioned in schedule 1, part 1.3, item 25A, of the Building Regulation, from
being exempted under section 6 (2) of the Building Regulation, if the parameters
prescribed at new paragraphs 6 (3A) (a), (b) and (c) of that Regulation are all
satisfied.
That is necessary to ensure that the parts of the Building Act
that require a building certifier, building approval, licensed builder,
inspection and certification, etc, do not unduly apply to a licensed asbestos
assessor’s work of merely taking sample of building materials from a
building to test for asbestos content. Such sampling amounts to doing building
work, for the purposes of the Building Act’s section 6, by virtue of the
Building Regulation prescribing at section 5, for the Act’s section 6,
that building work includes building work that involves handling asbestos or
disturbing friable asbestos. Examples in that section 5 include an example of
handling asbestos or disturbing friable asbestos, which includes removal of
asbestos or cutting a hole in sheet of asbestos.
Usually sampling
building materials suspected of being asbestos cement sheet involves scrapping
or cutting a hole in the sheet’s surface, albeit not deeply into the
surface, nor completely through the sheet. Such sampling alters the sheet and
removes asbestos, if the sheet contains asbestos, and thereby amounts to doing
building work for the purposes of section 6 of the Building Act. Therefore, the
parts of the Act that require a building certifier, building approval, licensed
builder, inspection and certification for building work apply to sampling,
unless they are exempted from applying. The cost and time imposts of those
requirements are not justified for merely taking small samples where the
sampling will not be detrimental to the building or occupants.
The
parameters under new section 6 (3A) are intended to ensure the sampling will not
be detrimental to the building or building occupants, by requiring
that—
(a) the building work [ie the sampling of material from the
building] complies with the minimum requirements of the building code [ie the
Building Code of Australia]; and
(b) the building work does not reduce
the thickness of the parent material from which the sample material is removed
by more than 1mm; and
(c) no dimension of the sample material is more than 10mm.
New item 25A has a complimentary safeguard of requiring that the
handling, removing or sampling of the material must be done in accordance with
any code approved under the Work Health and Safety Act 2011 relating to
asbestos. Such codes require such work to be done on the assumption that the
material contains asbestos, even if the material’s asbestos status is not
known.
The following is an example of how new section 6 (3A) of the
Building Regulation is intended to operate. A building has a fire resistant
wall, rated to resist fire and heat for at least 60 minutes. The wall relies on
its non-combustible wall sheeting to help achieve its rating. Substantively
reducing the thickness of the wall sheeting substantively reduces the 60-minute
rating. The building code requires the wall to have not less than a 60-minute
rating. Taking a surface sample of the sheeting by removing material to a
surface depth less than 1mm over an area with a dimension of no more than 10mm
will not reduce the wall’s rating by a demonstrable amount. The sampling
will not cause non-compliance with any provisions of the building code. Section
6 (3) (b) of the Building Regulation ordinarily prevents building work that
affects a fire rated wall from being exempted under schedule 1 of that
Regulation. However, in this case, new section 6 (3A) of that regulation
ensures that section 6 (3) (b) does not apply, because the parameters of new
section 6 (3A) (a) to (c) are satisfied. Therefore, the above-mentioned new
item 25A exempts the sampling of the fire rated wall from the parts of the
Building Act that item 25A prescribes at column 3—namely—
(a)
part 3 (Building work); and
(b) part 5 (Building occupancy);
and
(c) part 6 (Residential buildings—statutory warranties,
insurance and fidelity certificates).
Those part of the Act include the
requirements for a building certifier, building approval, licensed builder,
inspection and certification, etc, all of which are not justified in this
case.
Section 7 Section 6 (5)
Section 7
of the amending regulation omits from section 6 (5) of the Building
Regulation, the bracketed phrase “(other than item 25)”, and
substitutes it with the bracketed phrase “(other than item 25 and
25A)”. That is a consequence of section 13 of the amending regulation
inserting a new item 25A into the Building Regulation’s schedule 1, part
1.3, to exempt certain sampling of building materials for asbestos testing.
Section 6 (5) of the Building Regulation otherwise prevents the exemptions in
that schedule from applying if the building work involves asbestos. The
amendment under section 7 of the amending regulation ensures that the new item
25A exemption for sampling materials for asbestos is not negated by section 6
(5) of the Building Regulation. New item 25A prescribes inherent asbestos risk
safeguards for the sampling it exempts.
Section 8 New
section18A
Section 8
of the amending regulation inserts into the Building Regulation, a new
section numbered 18A, entitled “Building approval
applications—asbestos warning notices—Act, s 152 (3)
(b)”. An overall intent of new section 18A is to require the building
certifier who is assessing an application for building approval, to mark the
building approval plans with a warning that a building shown in the plan, or a
building connected to such a building, might have contained loose-fill asbestos
fibres. Generally, the plans must only be marked that way if the building, or
connected building, is in a prescribed area, and the ACT construction
occupations registrar has advised the certifier in writing that the registrar
has records indicating that the building or connected building contained loose
fill asbestos. However, additionally, the plans must also be marked that way if
the certifier has information that the building or connected building contained
loose-fill asbestos, even if it is not in a prescribed area and even if the
registrar has not advised on the building or has advised that the registrar has
no records of the building having contained asbestos.
A self-evident
intention in requiring the plans to be so marked is to warn builders, and other
workers who do work under the building approval plans, of the potential health
risks inherent in working on the building or connected building. Loose-fill
asbestos fibres have been associated with potentially fatal respiratory
diseases.
It is not anticipated that the requirement to mark the plans
will place a substantive additional burden on certifiers, as other provisions
already require the certifier to determine if the building contained asbestos,
and to mark the plans with other building approval
information.
Explanations of the relevant provisions of new section 18A
(1) of the Building Regulation are as follows.
New section 18A (1) of the
Building Regulation provides that new section 18A applies not only to an
application for building approval under the section 26 of the Building Act,
(which is entitled “Building approval applications”), but section
18A also applies to an application for approval of amended plans under section
31 of that Act, (which is entitled “Application for approval of amended
plans”).
New section 18A (2) of the Building Regulation requires
the certifier to decide whether loose-fill asbestos insulation was installed in
a building to which the building work, that is the subject of the application
under the above-mentioned section 26 or 31, is to be done, or to a building
connected to the first-mentioned building.
New section 18A (3) (a) of the
Building Regulation prescribes the circumstances under which the certifier must
decide that loose-fill asbestos insulation was installed in the building or
connected building, for new section 18A (2). An intention is that if the
prescribed applicable parameters exist, the certifier must decide that that
loose-fill asbestos insulation was installed in the building. That is the case
even if there is doubt about the fact that a building or connected building
actually contained such asbestos fibres, and despite the existence of evidence
of that—the certifier must nevertheless mark the plans under new section
18A to avoid contravening that section. That is because respected experts
profess that buildings that may have contained such asbestos fibres could be
thoroughly tested for the presence of such fibres, and despite all test results
indicating a lack of fibre detection, there still could be residual asbestos
fibres impregnated in the building fabric, or sitting loosely in confined spaces
inaccessible to testing.
One of the parameters of new section 18A (3) (a)
is that the building, or connected building, must be in a prescribed area. New
section 18A (6) entitles the ACT constructions occupations registrar to
prescribe the above-mentioned areas. An intention in prescribing such areas is
to reduce the number of instances that the registrar would need to be asked if
the registrar has records of the building containing loose-fill asbestos. That
system of reducing those instances was negotiated at a consultation meeting with
many ACT licensed building surveyors, who are the only entities entitled to be
appointed as building certifier under the Building Act. That system became the
preferred model of the Government official and certifiers at the consultation
meeting.
New section 18A (3) (b) of the Building Regulation prescribes
when the certifier must decide that loose-fill asbestos insulation was not
installed in the building or connected building, for new section 18A (2). An
intention is that if the certifier so decides, they must not mark the plan with
the asbestos warning, as doing so can be detrimental to the building’s
value etc, due to the stigma of loss-fill asbestos buildings being a danger to
health and impractical to remediate. An intention is that if the parameters of
18A are satisfied, the certifier must not mark the plans under new section 18A.
Nevertheless, even if the relevant building is not in a prescribed area, and the
registrar has indicated a lack of records about the building containing
loose-fill asbestos, if the certifier does have any information indicating that
loose-fill asbestos insulation was installed in the building or connected
building, then new section 18A (3) (b) (ii) in conjunction with new section 18A
(3) (a) (B), will require the certifier to decide that the building contained
loose-fill asbestos, and to mark the plans under new section 18A. Failure to so
mark the plans in that case would contravene new section 18A.
Nothing in
new section 18A is intended to require the certifier to undertake research about
the asbestos status or history of a building, other than to examine the
information placed before them in applications for building approval, or
amendments to building approvals, and documents arising from considering such
applications under the Building Act, and making the normal due-diligence checks
expected of a certifier in doing those things, including checking with the ACT
construction occupations registrar for records about asbestos in the
building.
New section 18A (4) of the Building Regulation requires the
certifier to mark each page of the plans with an asbestos warning notice that
loose-fill asbestos insulation was installed in the building, or connected
building, before issuing an approval of the plans, if the certifier decides
under section 18A that the building or connected building contained
loose-asbestos. New section 18A (4) also includes a note reminding that if a
form is approved under section 151 of the Building Act, for new section 18A (4),
then the form must be used. It is intended that such a form will be approved
for the loose-fill asbestos warning that must be marked on the plans.
New
section 18A (5) of the Building Regulation prohibits the certifier from marking
the plans with an asbestos warning notice that loose-fill asbestos insulation
was installed in the building, or connected building, if the certifier decides
under section 18A that the building or connected building did not contain
loose-asbestos. An intention is that if the certifier so decides, they must not
mark the plans, as doing so can be detrimental to the building’s value
etc, due to the stigma of loose-fill asbestos buildings being a danger to health
and impractical to remediate.
New section 18A (6) of the Building
Regulation entitles the ACT constructions occupations registrar to declare the
above-mentioned prescribed areas. An intention in prescribing such areas is to
reduce the number of instances that the registrar would need to be asked if the
registrar has records of the building containing loose-fill asbestos. At the
time of drafting the amending regulation, the ACT government had a policy
position of not publicising a comprehensive list or map of the location of all
houses it had records of that had contained loose-fill asbestos, to avoid
adverse ramifications for the house owners or occupants. The registrar’s
power to declare prescribe areas is intended to not be inconsistent with that
policy position, such as by prescribing areas that are much larger than the
premises that contained the asbestos. For example, the registrar could declare
a whole suburb, or a suburb other than listed excluded areas, such as
comparatively new areas in suburbs like Macgregor and Lyneham that have newer
and older parts, where the newer parts are generally understood to be too new to
have been affected.
New section 18A (7) of the Building Regulation
stipulates that a declaration of a prescribed area, under new section 18A (6),
is a notifiable instrument. Under the Legislation Act, a notifiable instrument
must be notified on the ACT legislation register, so that it is accessible to
entities subject to the instrument.
New section 18A (8) of the Building
Regulation defines the term “connected building” for
new section 18A. It is intended that if a building is connected to a building
mentioned in new subsection 18A (2) (a), in a way that loose-fill asbestos
fibres could transfer between the buildings, then the first-mentioned building
is a connected building in respect of the second-mentioned
building. It is also intended that such connection could be by way of abutting
the other building, being contiguous with it, or being physically attached or
integrated with it. Otherwise, if the two buildings are completely separated by
an air gap, then the buildings can be taken to be not connected.
It is
intended that such a transfer of asbestos fibres be taken to have been able to
have occurred between a building and a connected building through microscopic
penetrations between the buildings, or during an infrequent event, if such an
event is likely to have taken place. For example, it is often the case that
townhouses and other connected buildings are separated by a firewall that is
common to the townhouses either side of the wall. Even though such walls are
often of masonry, and extend from ground to the underside of the roofing, if
there are even microscopic penetrations through the masonry or other part of the
wall, or if the roofing could slightly lift up in strong wind, then the fibres
could transfer between the buildings through, or over, the fire wall. See
figure 1 below.
Figure 1 Typical cross
section through roof space near common firewall connecting attached
buildings
Roofing, eg tiles straddling fire wall
Fire-resistant
packing, to “seal” top of firewall eg mineral wool
Common
firewall gable, eg brickwork
Strong winds slightly lift
roofing, breaking seal of firewall to roofing, allowing loose-asbestos fibres to
transfer (yellow arrow) over the firewall to the attached
building
Wind uplift
Ceiling
Section 9 New section 18A (3A)
Section 9
of the amending regulation inserts into the Building Regulation, under
section 18A, a new subsection numbered (3A), also known as section 18A (3A).
However, section 2 of the amending regulation provides that section 9 of the
amending regulation, and thereby new section 18A (3A) of the Building
Regulation, has a delayed commencement as explained above for section 2 of the
amending regulation.
If, and when, section 9 of the amending regulation
commences, the new section 18A (3A) will thereby be inserted into the Building
Regulation, to supplement new section 18A (3). An intention is that where new
sections 18A (3) (a) (B) and 18A (3) (b) mention certifiers having, or not
having, as the case requires, any information indicating that loose-fill
asbestos insulation was installed in the building or connected building, the
certifier must be taken to have that information if the building or connected
building is included on the affected residential premises register
if the register is publicly available. See the explanation for section 10 of
the amending regulation, below, for an explanation for the term
“affected residential premises
register”.
Section 10 Section 18A (8), new definition of
affected residential premises register
Section 10
of the amending regulation inserts into section 18A (8) of the Building
Regulation a definition of the term “affected residential premises
register”, because that term is used in new section 18A (3A) of
the Building Regulation, and it requires a definition. However, section 2 of
the amending regulation provides that section 10 of the amending regulation, and
thereby section 18A (8) of the Building Regulation, has a delayed commencement,
as explained above for section 2 of the amending regulation.
If, and
when, section 10 of the amending regulation commences, the new section 18A (8)
will thereby be inserted into the Building Regulation, to supplement new section
18A (3A).
An intention is that where the term “affected
residential premises register” is mentioned in section 18A of the
Building Regulation, it will refer to the register of that name under the
Dangerous Substances Act 2004, section 47N. However, at the time of
drafting the amending regulation, that section 47N had not
commenced.
Section 11 Section 48
Section 11
of the amending regulation omits section 48 from that regulation. Section
48 is entitled “Occupations and qualifications—handling small
amounts of bonded asbestos—Act, s 152”.
Section 48 prescribes
a power for the construction occupations registrar to declare an occupation for,
and a qualification for, schedule 1, part 1.3, item 25, of the Building
Regulation, which is about handling small amounts of bonded
asbestos.
Omission of section 48 is a consequence of section 13 of the
amending regulation amending the above-mentioned item 25, so that it no longer
refers to such occupations or qualifications. Item 25 is the only provision
that relies on section 48. As explained for section 4 of the amending
regulation, section 4 consequentially repeals the occupation and qualification
declaration instrument made under section 48 of the Building
Regulation.
Section 12 New part 22
Section 12
of the amending regulation inserts into the Building Regulation new part 22,
entitled “Transitional—Building (General) Legislation Amendment
Regulation 2015 (No 1)”.
New part 22 is intended to create a
transitional arrangement to avoid building certifiers having to redo work they
may have already done in relation to assessing an application for building
approval, or for an amendment to a building approval. The arrangement is
intended to provide that the amending regulation’s new section 18A,
entitled “Building approval applications—asbestos warning
notices—Act, s 152 (3) (b)” does not apply to such applications made
to the certifier before the commencement day of the amending regulation.
Section 2 (1) of the amending regulation prescribes that its commencement day is
one day after it is notified on the ACT Legislation Register.
An
intention is that if the application to the certifier is made before that
commencement day, the certifier need not decide if the plans in the application
relate to a building or connected building that contained loose-fill asbestos,
for the purposes of marking plans under new s18A. The certifier will still have
to be concerned about any history of such, or other, asbestos in the building,
as part of complying with other requirements of the Building Act, etc, that deal
with asbestos.
New section 114 of the Building Regulation provides that
new part 22 expires one year after the above-mentioned commencement day, to
serve as a year of reminder of its affect. However, its expiry will repeal it,
and thereby after repeal it will no longer appear in the republished Building
Regulation, but it will continue to have effect after its expiration and repeal
because of section 88 of the Legislation Act. Expiration and repeal of such
provision helps ensure legislation text does not become cluttered with such
provisions, while allowing them to continue to have effect.
Section
13 Schedule 1, part 1.3, item 25
Section 13
of the amending regulation substitutes the Building Regulation’s
Schedule 1, part 1.3, item 25, with a new item of the same number plus a new
item numbered 25A.
The unamended item 25 prescribes an exemption for
handling not more than 10m2 of bonded asbestos, and new item 25
continues to do so.
An intention is that new item 25 is the same as the
unamended item 25, except that the condition of the exemption, prescribed in
column 4 of item 25, is that handling must be in accordance with the Work
Health and Safety Act 2011. Whereas previously the conditions were
that—
(a) handling must be carried out by person
who—
(i) works in an occupation declared by construction
occupations registrar under section 48; and
(ii) has qualification
declared by construction occupations registrar under section 48;
and
(b) handling must be in accordance with asbestos removal
code.
Those conditions were rendered obsolete as follows. With effect
from 1 January 2015, the Dangerous Substances (Asbestos Safety Reform)
Legislation Amendment Act 2014, amended a suite of ACT laws, including the
Construction Occupations (Licensing) Act 2004, the Building Act,
and the Building Regulation, to in effect remove the main licensing and
regulation of asbestos-related work from those Acts and regulations and to
provide for their licensing and main regulation in ACT Dangerous Substances laws
and Work Health and Safety laws. In doing so, doing exempt building work under
the exemption provided for by the above-mentioned item 25, generally became
licensable work under Work Health and Safety laws, making the above-mentioned
conditions about occupations and qualifications redundant.
New item 25A
creates a new exemption for building work that is the handling or removing of
material, installed on a building, to sample for asbestos. Column 2 of new item
25A, describes that work, in an abbreviated form. Column 3 of new item 25A
prescribes the parts of the Building Act that the sampling is exempted from
as—
(a) part 3 (Building work); and
(b) part 5 (Building
occupancy); and
(c) part 6 (Residential buildings—statutory
warranties, insurance and fidelity certificates).
Those part of the Act
include the requirements for a building certifier, building approval, licensed
builder, inspection and certification, etc, all of which are not justified in
the case of sampling in accordance with the exemption conditions prescribed in
column 4 of new item 25—
(a) no dimension of the material is more
than 100mm; and
(b) handling, removing or sampling material must be in
accordance with any code approved under the Work Health and Safety Act
2011 relating to asbestos.
Recent consultation with a number of
licensed asbestos assessors indication that the 100mm limit on sample size would
be adequate in all cases.
Note that section 6 (3) of the Building
Regulation will prevent the new exemption at new item 25A from applying to
building work that affects prescribed critical aspects of the building, such as
fire rated elements. However, new section 6 (3A) can ensure section 6 (3) does
not unduly prevent the exemption from applying, if the parameters of new section
6 (3A) are satisfied. One such parameter is that no dimension of the sampled
material is more than 10mm. In that case, compliance with new 6 (3A) has a much
smaller limit on sample size than new item 25A—10mm verses 100mm—to
mitigate undue detrimental effects that taking a larger sample could have on
critical parts of the building, such as a fire wall.
Sections 14 to
16
Sections 14 to 16 of the amending regulation respond to a change
in name of a component of “ActewAGL Distribution”, which changed
name to “Icon Water”. In order to avoid having to make similar
changes in future and to cater for other utilities entering the regulated
utility sector, sections 14 to 16 in effect—
• substitute all
retained references to “ActewAGL Distribution” with a generic
descriptor of the relevant utility under the Utilities Act 2000 or the
Utilities (Technical Regulation) Act 2014; and
• consequentially omit definitions of “ActewAGL
Distribution”.
Part 3 Construction Occupations
(Licensing) Regulation 2004
Part 3 of the amending regulation amends
the Construction Occupations (Licensing) Regulation 2004; explained as
follows.
Section 17 New part 1A
Section 17
of the amending regulation inserts into the Building Regulation a new
part numbered “part 1A” entitled “Work in construction
occupation”. That new part 1A only contains new section 4A of the
Building Regulation, which is entitled “Construction occupation of
builder—excluded work—Act, s 6 (3) (b)”.
An intention
is to prescribe under new section 4A, work that is excluded from the
construction occupation of a builder, for the purposes of section 8 of the
Construction Occupations (Licensing) Act 2004, which is entitled
“What is a builder?”
Section 6 (3) (b) of that Act provides a
power for a regulation to exclude work from a construction occupation. Section
8 of that Act provides that a builder is an entity that provides, has provided
or proposes to provide a building service, and that a building service is the
doing or supervising of building work; where the term “building
work” has the same meaning as in section 6 of the Building Act.
An
intention is to use that regulation power to prescribe that building work in
relation to an exempt building, or exempt building work, exempted under the
Building Regulation, is work that is excluded from the construction occupation
of a builder, for the purposes of Construction Occupations (Licensing) Act
2004, section 8. An intended outcome is that exempted building work, or
work on an exempt building, not require a builder’s licence. That has
historically been the accepted practice, but it has not been clear in the
law.
The Building Regulation provides for such exemptions under one or
more of the following provisions:
• section 7 (Minister may exempt
buildings—Act, s 152 (2))
• schedule 1, part 1.2 (Exemption
from application of Act)
• schedule 1, part 1.3 (Exemption from
part of Act).
New section 4A (1) of the Construction Occupations
(Licensing) Regulation 2004 provides the abovementioned exclusion for a
Minister’s exemption under section 7 of the Building Regulation, but only
for the stated period mentioned in the Minister’s exemption, and subject
to any condition mentioned in the exemption. Such a condition could state that
the exempted work must be done, or supervised by the holder of a builder’s
licence that authorises the work, despite the intent of the Construction
Occupations (Licensing) Act 2004 being to exclude such work from the scope
of the construction occupation of “builder”.
It is envisaged
that despite the more subordinate nature of a Minister’s exemption than
section 8 of the Construction Occupations (Licensing) Act 2004, because
the Minister’s exemption is made under the Building Regulation, its
ability to be conditional upon the exempted work being done or supervised by a
licensed builder, for example, will not be fettered by that Act’s section
8 otherwise excluding the work from requiring a licence under that Act. That is
to say that the Building Regulation’s power to require a licence, through
a condition of a Minister’s exemptions, will not be fettered by the
Construction Occupations (Licensing) Act 2004, section 8, despite the
latter relying on that exemption to otherwise provide to the
contrary.
New section 4A (2) of the Construction Occupations
(Licensing) Regulation 2004 provides the abovementioned exclusion for
exempted work or buildings under schedule 1, part 1.2 of the Building
Regulation, subject to any applicable conditions under column 3 for that part.
It is envisaged that the Building Regulation’s power to require a builders
licence, through such a condition, will not be fettered by the Construction
Occupations (Licensing) Act 2004, section 8, despite the latter relying on
that exemption to otherwise provide to the contrary.
New section 4A (3)
of the Construction Occupations (Licensing) Regulation 2004 provides the
abovementioned exclusion for exempted work or buildings under schedule 1, part
1.3 of the Building Regulation, subject to any applicable conditions under
column 4 for that part. It is envisaged that the Building Regulation’s
power to require a builders licence, through such a condition, will not be
fettered by the Construction Occupations (Licensing) Act 2004, section 8,
despite the latter relying on that exemption to otherwise provide to the
contrary.
Regulatory Impact Statement—regulatory burden and
compliance cost reductions
Nothing in the amending regulation is likely
to impose appreciable costs on the community, or a part of the community, than
before the amending regulation is made. Therefore, section 34 of the
Legislation Act does not require that a regulatory impact statement be prepared
for the amending regulation.
Much of the amending regulation either does
not relate to regulatory burdens, or reduces regulatory burden, and thereby
reduces compliance costs, by creating new exemptions from regulatory
requirements. However, section 8 of the amending regulation codifies a
requirement for certifiers to decide if relevant buildings contained loose-fill
asbestos, and if so to mark building plans with an asbestos warning. Part 3 of
the Building Act already requires certifiers to determine if such buildings
contain asbestos and to ensure respective asbestos removal plans etc are
adequate. That existing determination requirement is satisfied by asking the
construction occupations registrar’s delegates about records they have
about such buildings. Part 3 of the Building Act also requires certifiers to
mark relevant plans with a building approval, if the plans are approved by the
certifiers. So, in practice, section 8 of the amending regulation will merely
require the certifier to:
• ensure that the requests that they
already are required to make to the registrar about asbestos, also specifically
ask about loose-fill asbestos ever being in the building, or a connected
building; and
• if the registrar’s subsequent advice is that
the registrar has records that either building had contained loose-fill
asbestos, the certifier merely must mark the plans to that effect, as part of
marking them with their building approval.
Recent consultation with many
certifiers indicted that they did not expect that such requirements would add
appreciable time or costs to the plan approval services they provide, and that
the new requirement will identify the areas where certifiers need to concentrate
their efforts on loose-fill asbestos premises, rather than regarding all older
suburbs as potentially affected.
Considering the above, nothing in the
amending regulation is likely to impose appreciable costs on the community, or a
part of the community, than before the amending regulation is made, and much of
the regulation will reduce regulatory burden and thereby reduce compliance
costs.