New laws - Q&As
When the changes take effect
When does the requirement to retain inspection records commence? And will this apply to all inspection documents (including lapsed approvals)?
Private certifiers are required to keep all inspection documentation for which the certifier is engaged for 7 years (increased from 5 years) after the building work is completed. Inspection documentation means the following documents given for the building work:
- a compliance certificate;
- a notice, given to the builder for the work by or for the building certifier about an inspection of the work;
- a certificate about an inspection under this Act;
- a final inspection certificate;
- a certificate of classification;
- a certificate relating to the inspection of the building work relied on by the relevant building certifier.
Additional certifier inspections
Do additional certification functions relate to all building classes or do they only relate to class 1a and 10 buildings?
These requirements relate to all building classes.
Is a form 16 required for the additional inspections?
It depends on what exactly the additional certifying function is. There is no change to the certification documentation requirements that are to be produced. It is likely that the documentation would be an aspect certificate and possibly any supporting certificates or inspection reports (for example from a competent person).
Form 16 must be used when a building certifier, competent person or a QBCC licensee inspects a stage or aspect of building work and certifies it as satisfactory.
Who is the client, if not the building owner?
The building contractor often engages the certifier on behalf of the building owner. They are considered the client in these circumstances.
A building owner is able to engage a certifier directly if preferred.
Can you give examples of inspections that would be considered additional to ‘mandatory’ inspections, particularly for commercial buildings?
Additional certification functions (inspections) requested under new s143B may be additional to the mandatory standard stage inspections under the Building Regulation and any further inspections required under the building development approval. However, they must still be within the scope of certifying functions. A ‘certifying function’ means a building certifying function relating to compliance of a building with the Building Code of Australia (BCA) or Queensland Development Code (QDC).
Any request for a function that is not a certifying function (e.g. work quality) will not be valid.
The Guidelines for inspection of single detached Class 1a buildings or Class 10 buildings or structures (PDF, 173KB) detail the mandatory standard stage inspections for houses, sheds and garages.
The Guidelines for Inspection of Class 2 to 9 Buildings provides guidance to building certifiers for determining and implementing an inspection schedule for commercial buildings. The guidelines include examples for particular buildings and different risk levels. A building owner may refer to the guidelines to determine if it is appropriate to request additional inspections to those detailed by the certifier in their notice of engagement.
The certifier is already obligated to inspect mandatory staged inspections.
The QBCC have developed a new fact sheet Certification – Building Owner Options which provides further information and answers to common questions on this topic.
The certifier must complete the additional certifying function as requested by the building owner by the agreed day, unless they have a reasonable excuse.
Surely an owner cannot request an inspection that is outside the function of certification, for example an inspection of work quality?
That is correct. The additional certifying functions are limited to certifying functions that relate to the compliance of a building with the Building Code of Australia (BCA) or Queensland Development Code (QDC).
Are additional inspections requested by owners to be considered independent to Aspect Certificates? Which inspection takes precedence if a dispute was to occur?
An owner may now require a building certifier to perform additional certifying functions, such as extra inspections on top of the standard stage inspections normally conducted by a certifier. Refer section 10, definition of building certifying functions within the Building Act.
The decision to pass or fail an inspection has not changed. Subsection 3 of the Building Act provides guidance on the inspection process. Also refer to the Department’s Inspection guidelines for all classes of buildings.
Is there going to be a "guideline" as to what elements may be covered by the additional inspections that may be requested?
There is no guideline for the new additional certification process.
The QBCC have developed a new fact sheet ‘Certification – Building Owner Options’ which provides further information and answers to common questions on this topic.
Who calls the additional inspection and what happens if they fail to notify that the element is ready to inspect?
If the owner of the building (that has not engaged the building certifier directly) requires additional certifying functions to be performed, they can request the additional functions in writing through the client that engaged the certifier.
It is up to the owner to request the performance of an additional certifying function.
If a builder and owner are in dispute. s143B - Scenario: the owner requests additional inspection, the builder controls access to the site, what power of entry does certifier have?
The building owner is required to request the additional certifying functions in writing through the client (the builder) so they will be aware of the request and requirement to provide access.
The client must comply with a request for additional certifying functions and provide a copy of the notice to the building certifier within 5 business days of receipt. Failing to do so is an offence and a penalty (of up to 20 penalty units) may apply.
The certifier is required to perform the certifying function stated in the additional certification notice on or before the agreed day unless they have a reasonable excuse. Without limiting the QBCC’s discretion, a reasonable excuse may include incapacitation, inaccessibility, or unexpected delays in the work to be completed prior to the performance of the additional certifying function.
What happens if what is being requested is outside the certifier’s expertise? Could the certifier, for example, have a third party water-proofer inspect the waterproofing for them?
Certifiers can use a competent person to help them perform an additional certifying function. The Building Regulation prescribes who may be considered a competent person and restrictions that apply.
If a competent person is going to undertake the owner’s requested additional inspections; why is it the certifier needs to engage the competent person?
As is already the case, the Building Regulation allows a building certifier to rely on design or inspection help from other building industry practitioners (‘competent persons’) about an aspect of the building work.
Even though a building certifier can rely on a certificate from a competent person when approving or inspecting building work, they are ultimately responsible for ensuring the building work complies with the Building Act.
What if a defect is found during the additional inspection requested by the owner?
As is already the case under the Building Regulation, if the stage of work being inspected does not comply with the building development approval, the inspecting person must give the builder a non-compliance notice (form 61) explaining how it does not comply. The new provision also requires the certifier to give the client and the owner copies of all documents relevant to the additional certifying function within 5 business days of performing the function.
Does the owner being able to lodge the request for additional inspections up to 30 business days after their engagement mean that a certifier can’t issue a Decision Notice prior to that?
No, the additional certification notice ability does not impact the existing requirements and timeframes for certifying functions.
Is it mandatory for certifiers to carry out additional inspection requested by the owner?
Yes, it is an offence for a certifier not to perform the certifying function stated in the additional certification notice on, or before, the agreed day.
However, the QBCC will not penalise certifiers in circumstances where the certifier has a reasonable excuse. Without limiting the QBCC’s discretion, a reasonable excuse may include incapacitation, inaccessibility, or unexpected delays in the work to be completed prior to the performance of the additional certifying function.
Can we refuse to undertake the additional inspections, if requested by the owner?
No, it is an offence for a certifier not to perform the certifying function stated in the additional certification notice on or before the agreed day. However, the QBCC will not penalise certifiers in circumstances where the certifier has a reasonable excuse.
Without limiting the QBCC’s discretion, a reasonable excuse may include incapacitation, inaccessibility, or unexpected delays in the work to be completed prior to the performance of the additional certifying function.
Note: If the owner, certifier and client do not agree on what that day should be, the certifier may (within 15 business days of receiving the notice) tell the owner and client how the agreed day is to be determined.
If a certifier considers they do not have the expertise to perform the additional certifying function, it is recommended that the certifier nominates a way to determine the agreed day, contingent on timeframes for the certifier to enlist a competent person for inspection help.
Can the owner waive their right to request additional inspections? Or can they be asked to do so?
The owner has a discretion about whether they request additional certification functions to be formed. However, should a building owner elect not to make the request within the legislated timeframes, they are unable to change their mind later in the build.
Can an owner make multiple requests for additional certifying functions?
Yes, however the owner may only request the additional certifying function/s within 10 business days of being advised of the certifier’s engagement.
Who does the certifier notify if they are not provided with the owner’s details?
The certifier should speak to the client if they haven't received the required details. The certifier can remind the client that they are required provide notification to the certifier of the owner’s name and contact details within 10 business days after the certifier is engaged.
If the client has not provided a certifier with the owner’s details, the certifier can notify the QBCC, using a notification of offence form.
If an owner requests an additional inspection, what is stopping the builder from continuing work and ignoring the request because the inspection was not agreed to with the builder on site?
Additional certifying functions must be requested by the owner within 10 business days of being advised of the certifiers engagement.
The builder who engaged the certifier must provide a copy of the owner’s request to the certifier within 5 business days of receiving it from the owner.
Failing to provide the request to the certifier is an offence and a penalty may apply, unless the builder has a reasonable excuse. Wilfully ignoring the request is not a reasonable excuse.
Who is required to pay any extra costs associated as a consequence of an additional inspection? For example engineer inspections or rectification work. Is a certifier able to insist on payment prior to performing an additional inspection?
The building owner is liable for the reasonable costs of the additional certifying functions. Usual business practices can be used and agreements made with the building owner.
What is to stop a Certifier from pricing themselves out of the additional inspection request by an owner by charging high inspection fees?
The new provision for additional inspections does not prescribe or influence payment terms for the performance of those additional inspections. However, the legislation states that the building owner is liable for the reasonable costs associated with the additional certifying functions.
What if the owner does not agree with the engagement and cost of the agreement of the certifier? Section 143B(5) states that the certifier must do the additional functions. Is non-agreement of engagement terms "reasonable grounds" for not complying?
In regards to the additional certifying function that an owner may request, the owner is liable for the reasonable costs of that additional function. It is up to the certifier and owner to agree upon the additional certifying function to be carried out.
It is expected that, if payment terms cannot be agreed, then the parties would not be able to establish an ‘agreed day’ for the additional function to be completed by (although the certifier will still need to nominate a way of determining the agreed day).
Without an ‘agreed day’, there is no penalty for a certifier not performing the function.
It is recommended that an agreed day is not finalised until other terms have been established and agreed to. The engagement agreement becomes an essential document in that it will provide the terms and conditions for which a certifier will conduct their services and at what cost.
How do local government certifiers cover off on fees if they were to require a third party competent person (i.e. water-proofer) given that local governments do not have a notice of engagement and cannot contract these third party inspecting persons?
The Building Act provides that a building development application can be made to the local government and if it is made the local government is required to receive, assess and decide the application and appoint or employ a private certifier or another building certifier to perform the building certifying functions.
Does the certifier have to advise the owner of this ability to request additional certifying functions that is now available to them?
The certifier or client may wish to discuss these matters with the owner at the start of a certifier engagement. However, this is not mandatory. The QBCC and Department of Housing and Public Works will communicate the changes broadly.
There is new information on the QBCC website and a new factsheet is available for further information on the changes that affect building owners: https://www.qbcc.qld.gov.au/building-or-renovating/requesting-documentation-additional-inspections.
Is there a standard form or template that the certifier is required to use in providing a written response for the owner’s inspection request?
There is no particular template or form that a certifier must use. The legislation states that the building certifier must give the owner and client, within 5 business days after performing the certifying function, copies of all documents relevant to that function, unless the certifier has a reasonable excuse.
Requesting/providing and keeping inspection documents
Do requirements for inspection documents relate to all building classes or do they only relate to class 1a and 10 buildings?
These requirements relate to all building classes.
Can you confirm that the requests for additional inspection documentation (s124a) only applies to mandatory inspections as prescribed under the Building Act and Reg?
The request must relate to inspection documents for a certified stage of work other than the final stage. The provision does not distinguish between mandatory inspections and additional inspections.
If certifiers are governed under the Building Act and by the QBCC in QLD, why do they need to also belong to AIBS or RICS?
RICS and AIBS are standards bodies with separate functions to the QBCC, including establishing industry accreditation standards and professional development schemes.
Applicants applying for or renewing a licence as a building certifier in Queensland must first obtain a Certificate of Accreditation from an approved Accreditation Standards Body (RICS or AIBS) before applying to QBCC for a licence.
The Certificate of Accreditation is confirmation that an individual has the competence, ethical standing and up-to-date knowledge needed to act as a building certifier.
In relation to amendment of s155, are the requirements for qualifications and experience to be prescribed by regulation available for review, prior to 1 October 2020?
The alternate qualification pathway provisions are not commencing on 1 October 2020.
These amendments will allow for a regulation to prescribe prerequisite qualifications and experience for applicants, other than an accreditation issued by RICS or AIBS. For the time being, a person may only apply for a building certifier licence (level 1 or 2) if they hold an accreditation issued by RICS or AIBS.
Industry stakeholders will be given forewarning of any proposed regulations and when these amendments will be commencing.
Auditing and compliance
Is there a proposal for an Audit program?
There are ongoing audit programs that the QBCC runs for building certification work.
Why doesn't the QBCC audit the information lodged with local authorities by private certifiers to verify what documentation has been lodged? Particularly in relation to inspection documentation.
The QBCC has existing information sharing arrangements with a local government authorities to help the QBCC and/or the local government to perform their functions.
There are ongoing audit programs that the QBCC runs for building certification work.
Are there new requirements for disengagement?
There is no change to the requirements for disengagement of a certifier. A Form 22 – Notice of Discontinuance of Engagement is required to disengage a Building Certifier.
Will there be any changes to applications requiring the owner’s consent for a building application who is not the applicant?
There is no change to the requirements for lodgement of building applications.
There are new notification requirements that apply for building certifiers:
- A private certifier must give the local government a notice of engagement when they are engaged by the owner or the building development applicant.
- A private certifier must give the owner notice of their contact details and responsibilities, and the local government a notice of engagement when they are engaged by someone who is not the owner or building development applicant.
Would an email to the owner with an attached Form 18 satisfy the owner notification of the certifier’s details and responsibilities?
Notices are to be in writing as defined by the Planning Act. The giving of a notice can be by various forms of communication, e.g., email, post or the like.
Have there been any changes to liability time frames for certifiers. For example 10 years?
No, there are no changes to the liability timeframes for certifiers. There are however changes to the timeframes for when a complaint against a certifier can be made to the QBCC (unless the conduct has caused, or may cause, significant financial loss or other serious harm).
A complaint about the conduct of a building certifier must be made within the following timeframes:
- for building work under a development approval - within 7 years of the final inspection certificate / certificate of occupancy, or lapsing of the approval (whichever is earlier)
- for building work under a development application – within 1 year of a private certifier being engaged (or the local government receiving the application)
- for conduct that has caused significant financial loss or serious harm – no time limit
for all other cases – within 1 year of the complainant becoming aware of the conduct.
Are certifiers required to inspect workmanship of contractors? Should we?
A building certifier is not responsible for quality control or making sure a builder complies with their contract. However, the building certification process generally involves independently checking and approving work to ensure it complies with the safety, health, amenity and sustainability standards specified in the legislation and building codes.
Is the Certifier required to administer Builder Tolerances Defects in Construction?
The contractor and owner share the responsibility for ensuring building work meets an acceptable standard of quality and finish.
Building certification (i.e. inspection) involves independently checking and approving building work to ensure it complies with the safety, health, amenity and sustainability standards specified in legislation and building codes.
Are there any changes which actually assist Certifiers?
The amendments to the Building Act further strengthen the existing certification functions and inspection process and improve professional standards and compliance in the certification sector.
When will the new Form 21/11 be available? Will the form 11 be changing to reflect the terminology change?
All required forms for the Building Act are available on the Business QLD website: