2020 Certification changes for the Building Act 1975

18 September 2020

Changes to the Building Act 1975 commence on 1 October 2020 and affect both residential and commercial contracts.

If the builder engages the private certifier:

• Notice of Engagement and Contact Details:
  • The builder must give the owner’s name and contact details to the private certifier within 10 business days of the engagement commencement (unless it has a reasonable excuse) – $2,669 max penalty
  • The certifier must give the owner notice of the certifier’s name and details of the responsibilities of the certifier in performing the work (in the approved form). The notice is to be given within 15 business days of the engagement commencement (unless the certifier has a reasonable excuse) – $5,338 max penalty
  • The certifier must notify the local government within 15 business days of the engagement (unless it has a reasonable excuse) – $5,338 max penalty
  • The builder must notify the certifier of a change to the owner’s name or contact details within five business days after becoming aware of the change (unless it has a reasonable excuse) – $2,669 max penalty.
• Owner may require additional inspections:
  • Owner may give a notice (additional certification notice) to the builder directing the builder to ask the certifier to perform a certifying function. The additional certification notice must be given within 10 business days of receiving the certifier’s notice discussed above.
    • A “certifying function” means a building certifying function relating to compliance of a building with the Building Code of Australia or the Queensland Development Code. The additional certification notice must provide details of the certifying function to be performed by the certifier and note that the builder must give a copy of the additional certification notice to the certifier within five business days after receiving the notice
  • The builder must give a copy of the additional certification notice to the certifier within five business days after receiving it (unless it has a reasonable excuse) – $2,669 max penalty
  • The certifier must perform the additional certifying functions on or before the agreed day (unless it has a reasonable excuse) – $5,338 max penalty.
    • The “agreed day” is a day, or the way to work out the day, to be agreed by the owner, builder and certifier within 10 business days of receiving the additional certification notice.
    • If the owner, builder and certifier cannot agree on the agreed day, the certifier must nominate a day, or a way to determine the agreed day, within 15 business days after receiving the additional certification notice and tell the builder and owner of the agreed day or way to determine it
  • The owner can withdraw an additional certification notice before the agreed day or if not agreed, then the certifier’s nomination of the agreed day
  • The owner is liable for the reasonable costs of the certifier performing the additional certification functions
  • The certifier must give the builder and the owner copies of all documents relevant to the additional certification function within five business days after performing the function (unless it has a reasonable excuse) – $2,669 max penalty.

It's important that builders do not ignore these new obligations. While the builder must give the additional certification notice to the owner, it is not required by the Act to engage the certifier to carry out the additional certification functions. However, if builders choose to add these additional inspections to their contract with the certifier, it is important that builders continue to comply with their obligations under the contract and Schedule 1B of the Queensland Building and Construction Commission Act 1991.

The additional inspections will be a variation to the certifier’s contract with the builder. Similarly, it will be a variation to the building contract if the builder wants to claim the additional costs incurred for these additional inspections. Under Master Builders’ residential contracts, all variations must be agreed in writing with the owner PRIOR to carrying out the variation work.

Therefore, you must ensure that you give a variation document to the owner as soon as possible after receiving the owner’s additional certification notice and request their written agreement before you direct the certifier to carry out the additional certifying functions. Alternatively, the owner can engage the certifier to carry out the additional certification functions and the agreement to do so will be between the owner and the certifier – not the builder.