Building Act 1975

An Act to regulate building development approvals, building work, building classification, building certifiers and pool safety inspectors, and to provide for particular matters about swimming pool safety and sustainable buildings, and for other purposes

Long title sub 1993 No. 70 s 804 sch

amd 1998 No. 13 s 4

sub 2006 No. 36 s 4

amd 2009 No. 51 s 4; 2010 No. 21 s 4

ch 1 hdg ins 2006 No. 36 s 5

ch 1 pt 1 hdg sub 2006 No. 36 s 5

1Short title

This Act may be cited as the Building Act 1975.

s 1 amd 1998 No. 13 s 5

sub 2006 No. 36 s 5

2Act binds all persons

(1)This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

s 2 prev s 2 om 1998 No. 13 s 6

pres s 2 sub 1978 No. 47 s 4

amd 1981 No. 53 s 4; 1984 No. 45 s 4; 1991 No. 52 s 2.3; 1993 No. 70 s 804 sch; 1994 No. 49 s 6 sch 2; 1994 No. 64 s 293 sch 4; 1997 No. 26 s 57 sch

sub 1998 No. 13 s 7; 2006 No. 36 s 5

3Simplified outline of main provisions of Act

(1)Chapter 2 provides for what building work is assessable development or accepted development for the Planning Act.

(2)Chapter 3 imposes requirements, in addition to those under the Planning Act, for making a building development application.

(3)Chapter 4—

(a)provides for the laws and other documents for the assessment of building development applications; and

(b)provides for who is responsible for carrying out building assessment work for building development applications; and

(c)regulates the assessment and approval of building development applications.

(4)Chapter 5—

(a)provides for the giving of final inspection certificates and other inspection documentation for particular buildings; and

(b)provides for the giving of certificates of classification for other buildings; and

(c)regulates the making of BCA classification or use changes; and

(d)restricts the occupation and use of particular buildings.

(5)Chapter 6—

(a)regulates private certifiers and other building certifiers and the performance of building and private certifying functions; and

(b)regulates the engagement of private certifiers; and

(c)provides for the licensing of, and complaints, investigations, and disciplinary proceedings against, private certifiers and other building certifiers.

(6)Chapter 7 makes provisions about fire safety for budget accommodation buildings.

(7)Chapter 7A makes provision about fire safety for particular residential care buildings.

(8)Chapter 8 provides for matters about swimming pool safety, including the regulation of swimming pool fencing.

(9)Chapter 8A regulates the effect of particular instruments in relation to stated matters for class 1a, 2 or 10a buildings.

(10)Chapter 8B provides for the designation of land as a transport noise corridor for particular building assessment work.

(11)Chapter 9 provides for the giving of show cause and enforcement notices for particular building work.

Note—

The QBCC Act also provides for enforcement action relating to building work.

s 3 prev s 3 om 1991 No. 52 s 2.2

pres s 3 sub 1998 No. 13 s 9

Note—s 3 prev contained definitions for this Act. Definitions are now located in the schedule—Dictionary. Annotations for definitions contained in s 3 are now located in the annotations for the schedule.

amd 2004 No. 53 s 2 sch

sub 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2009 No. 51 s 5; 2010 No. 21 s 5; 2011 No. 27 s 224; 2012 No. 8 s 4; 2016 No. 27 s 37; 2017 No. 29 s 34 sch 1; 2017 No. 43 s 233

ch 1 pt 2 hdg amd 1993 No. 70 s 804 sch

sub 1998 No. 13 s 10; 2006 No. 36 s 5

ch 1 pt 2 div 1 hdg ins 2006 No. 36 s 5

4Definitions

The dictionary in schedule 2 defines particular words used in this Act.

s 4 amd 1984 No. 114 s 5

sub 1993 No. 70 s 804 sch; 1993 No. 76 s 3 sch 1

amd 1995 No. 57 s 4 sch 2

sub 1998 No. 13 s 10

amd 2002 No. 77 s 162

sub 2006 No. 36 s 5

ch 1 pt 2 div 2 hdg ins 2006 No. 36 s 5

5What is building work

(1)Building work is—

(a)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or

(b)excavating or filling—

(i)for, or incidental to, the activities mentioned in paragraph (a); or

(ii)that may adversely affect the stability of a building or other structure, whether on the land on which the building or other structure is situated or on adjoining land; or

(c)supporting, whether vertically or laterally, land for activities mentioned in paragraph (a); or

(d)other work regulated under the building assessment provisions.

(2)For subsection (1)(d), work includes a management procedure or other activity relating to a building or structure even though the activity does not involve a structural change to the building or structure.

Examples—

•a management procedure under the fire safety standard relating to a budget accommodation building

•a management procedure under the fire safety standard (RCB) relating to a residential care building

s 5 prev s 5 om R1 (see RA s 39)

pres s 5 ins 1998 No. 13 s 10

sub 2006 No. 36 s 5

amd 2011 No. 27 s 225; 2016 No. 27 s 38

6What is a building development application

(1)A building development application is—

(a)a development application for a development approval—

(i)if the local government is the assessment manager for the application—to the extent the application is for building work that, under the Planning Act, must be assessed against the building assessment provisions; and

Note—

For the functions of a local government in relation to building development applications, see section 51.

(ii)if a private certifier is the assessment manager for the application—for building work; or

(b)a change application, other than a minor change application, to change a development approval—

(i)if the development approval approves building work—in relation to the building work; or

(ii)otherwise—to approve building work.

(2)However, if a local government is the responsible entity for a change application, the application is a building development application only to the extent the building work mentioned in subsection (1)(b)(i) or (ii) must, under the Planning Act, be assessed against the building assessment provisions.

(3)In this section—

minor change application means a change application for a minor change to a development approval, as defined in the Planning Act.

s 6 prev s 6 om 1993 No. 76 s 3 sch 1

pres s 6 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

sub 2017 No. 12 s 6; 2016 No. 27 s 39 (amd 2017 No. 12 s 63)

7What is building assessment work

Building assessment work is the assessment, under the building assessment provisions, of a building development application for compliance with those provisions.

s 7 prev s 7 om 1993 No. 76 s 3 sch 1

pres s 7 ins 2006 No. 36 s 5

8Who is a building certifier

(1)A building certifier is an individual who, under chapter 6, part 3, is licensed as a building certifier.

(2)A reference to building certifier includes a reference to a private certifier.

(3)In chapter 6, the term also includes a reference to a former building certifier.

s 8 prev s 8 om R2 (see RA s 39)

pres s 8 ins 2006 No. 36 s 5

9Private certifiers and their classes

(1)A private certifier is a building certifier whose licence has, under section 160, private certification endorsement.

(2)A private certifier (class A) is a private certifier whose licence has development approval endorsement.

(3)A private certifier (class B) is a private certifier whose licence does not have development approval endorsement.

s 9 prev s 9 sub 1978 No. 47 s 6

amd 1981 No. 53 s 5; 1984 No. 45 s 6; 1987 No. 69 s 4; 1990 No. 107 s 4.2

om 1993 No. 76 s 3 sch 1

pres s 9 ins 2006 No. 36 s 5

10What is a building certifying function

A building certifying function is doing any of the following—

(a)carrying out building assessment work, other than a part of building assessment work that, under section 46, a referral agency may carry out;

(b)the giving of a certificate (a compliance certificate) in the approved form that, other than for aspects of building assessment work that under section 46 must be assessed by a referral agency, states building work complies with the building assessment provisions;

(c)for a building development approval—inspecting the building work to decide whether to certify the work;

(d)for building work for a single detached class 1a building or a class 10 building or structure, the giving of—

(i)a certificate in the approved form for the stage of the building work that is after excavation of foundation material and before the footings for the building are laid; and

(ii)a certificate (a final inspection certificate) in the approved form for the final stage of the building work;

(e)the giving of a certificate of classification for a building or structure of another class.

s 10 prev s 10 om 1996 No. 76 s 3 sch 1

pres s 10 ins 2006 No. 36 s 5

amd 2016 No. 27 s 40

11Who is the assessment manager for a building development application

(1)Generally, the assessment manager for a building development application is the assessment manager for the application under the Planning Act, section 48(1).

(2)However, if under section 48 a private certifier (class A) is performing functions for the application, the certifier is the assessment manager for the application.

s 11 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 41

12What is the Building Code of Australia (or BCA)

(1)The Building Code of Australia (or BCA) is the edition, current at the relevant time, of the Building Code of Australia (including the Queensland Appendix) published by the body known as the Australian Building Codes Board.

(2)A reference to the code includes the edition as amended from time to time by amendments published by the board.

s 12 prev s 12 amd 1991 No. 52 s 2.14; 1993 No. 70 s 804 sch

sub 1998 No. 13 s 10

om 2006 No. 36 s 5

pres s 12 ins 2006 No. 36 s 5

13What is the Queensland Development Code (or QDC)

(1)The Queensland Development Code (or QDC) is the parts, or aspects of the parts, of the document called ‘Queensland Development Code’ published by the department and stated in schedule 1.

(2)The chief executive may amend the QDC by—

(a)adding another part to it; or

(b)amending or replacing a part, or an aspect of a part, stated in schedule 1 or added under paragraph (a), or any amendment or replacement of the part or aspect.

(3)However, the amendment does not take effect until the chief executive publishes the amendment on the department’s website and a regulation approves the amendment.

(4)The regulation must state the day on which the amendment was published.

(5)A reference to the QDC is taken to include any amendment under subsection (2) that has taken effect.

s 13 prev s 13 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2002 No. 77 s 165

om 2006 No. 36 s 27

pres s 13 ins 2006 No. 36 s 5

14When building work complies with the BCA or QDC

(1)This section applies if in this Act there is a reference to building work complying with—

(a)the BCA or QDC; or

(b)the building assessment provisions to the extent they include the BCA and QDC.

(2)Building work complies with the BCA or QDC (the code) only if it complies with all relevant performance requirements under the code.

(3)For subsection (2), the building work complies with a relevant performance requirement only if it achieves a relevant building solution under the code for the requirement.

(4)For subsection (3), a relevant building solution is achieved for a performance requirement only by—

(a)complying with the following (the relevant requirement)—

(i)if the code is the BCA—the relevant deemed-to-satisfy provisions under the BCA for the performance requirement;

(ii)if the code is the QDC—the relevant acceptable solution under the QDC for the performance requirement; or

(b)formulating an alternative solution that—

(i)complies with the performance requirement; or

(ii)is shown to be at least equivalent to the relevant requirement; or

(c)a combination of paragraphs (a) and (b).

s 14 ins 2006 No. 36 s 5

ch 1 pt 2 div 3 hdg ins 2006 No. 36 s 5

15References to changed BCA or QDC provision

Section 14H of the Acts Interpretation Act 1954 applies to a reference to the BCA or QDC as if the reference were a reference to a law.

s 15 prev s 15 amd 1991 No. 52 s 2.17

om 1998 No. 13 s 11

pres s 15 ins 2006 No. 36 s 5

16Reference in Act to applicants, development, assessment managers, referral agencies, building work or building certifiers

(1)In a provision of this Act about a building development application, a reference to any of the following persons or matters is a reference to the person or matter stated for the referred person or matter—

(a)the applicant—the person who made the application;

(b)building work—building work to which the application relates;

(c)the building—the building to which the application relates;

(d)the development—the development to which the application relates;

(e)the assessment manager—

(i)if the application is a development application—the assessment manager for the application; or

(ii)if the application is a change application—the responsible entity for the application;

(f)a referral agency—a referral agency for the application;

(g)the decision notice—the decision notice for the application.

(2)In a provision of this Act about a building development approval, a reference to any of the following persons or matters is a reference to the person or matter stated for the referred person or matter—

(a)the applicant—the person who applied for the approval;

(b)building work—building work the subject of the approval;

(c)the building—the building the subject of the approval;

(d)the development—the development the subject of the approval;

(e)the building certifier—the building certifier who performed, or is performing, building certifying functions for the relevant building development application or the approval.

(3)In a provision of this Act about a building or building work a reference to any of the following persons or matters is a reference to the person or matter stated for the referred person or matter—

(a)the building development approval—each building development approval to which the building or building work is subject;

(b)the assessment manager—the assessment manager or responsible entity for the building development application for the building development approval to which the building or building work is subject.

s 16 prev s 16 amd 1979 No. 69 s 4 (2); 1984 No. 45 s 16; 1991 No. 52 s 2.18; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

pres s 16 ins 2006 No. 36 s 5

amd 2016 No. 27 s 42

17Reference in Act to local government

In a provision of this Act, a reference to a local government, for any of the following matters, means the local government for the area stated for the matter—

(a)a building or proposed building—the area in which the building is, or is proposed to be, situated;

(b)building work or other work—the area in which the work is, or is proposed to be, carried out;

(c)a building development application or development approval—the area in which the building work is, or is proposed to be, carried out;

(d)a regulated pool—the area in which the pool is situated.

s 17 prev s 17 om 1998 No. 13 s 11

pres s 17 ins 2006 No. 36 s 5

amd 2010 No. 21 s 6

18Reference to local government in provision about building development application

If—

(a)a provision of this Act about a building development application refers to the local government; and

(b)under the Planning Act, an entity other than the local government or a private certifier is the assessment manager;

the provision applies as if the reference to the local government were a reference to the entity.

s 18 prev s 18 amd 1984 No. 114 s 9; 1991 No. 52 s 2.19

om 1998 No. 13 s 11

pres s 18 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 43

19Reference to a proposed building or structure

In this Act—

(a)a reference to a building or structure includes a reference to a proposed building or structure; and

(b)a reference to the owner of a building or structure is a reference to the person who, if the proposed building or structure were completed, would be its owner; and

(c)a reference to the use of a proposed building or structure is a reference to its proposed use on its completion.

s 19 prev s 19 amd 1991 No. 52 s 2.20; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

pres s 19 ins 2006 No. 36 s 5

Notes—

1For the development assessment process under the Planning Act and offences against the Planning Act, including development offences, see the Planning Act, chapters 3 and 5.

2See chapters 3 and 4 for other provisions for applying for and obtaining a building development approval and for assessing building work.

ch 2 hdg ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

sub 2016 No. 27 s 44

ch 2 note sub 2016 No. 27 s 44

20Building work that is assessable development for the Planning Act

All building work is assessable development, unless the building work is accepted development under section 21(2) or a regulation made under the Planning Act.

s 20 orig s 20 sub 1991 No. 52 s 2.23

om 1998 No. 13 s 11

prev s 20 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2003 No. 53 s 9; 2005 No. 14 s 2 sch

om 2006 No. 36 s 32

pres s 20 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2009 No. 51 s 6; 2016 No. 27 s 45

21Building work that is accepted development for the Planning Act

(1)Subsection (2) applies to the extent a regulation made under the Planning Act prescribes that this Act may declare building work to be accepted development.

(2)Building work is declared to be accepted development for the Planning Act if—

(a)the building work is prescribed by regulation; and

(b)if the regulation states that the building work must comply with the relevant provisions—the building work complies with the relevant provisions for the building work.

(3)Building work that is accepted development under a regulation made under the Planning Act or subsection (2) is accepted building work.

(4)Subsection (2) is subject to section 37.

(5)In this section—

relevant provisions, for building work, means—

(a)

if alternative provisions under section 33, or provisions as varied under section 44 (varied provisions), apply to all or part of the building work—

(i)the alternative provisions or varied provisions; and

(ii)any relevant deemed-to-satisfy provision under the BCA or relevant acceptable solution under the QDC for the work, other than the QDC boundary clearance and site cover provisions; and

(iii)any other building assessment provision applying to the work; or

(b)if no alternative provisions under section 33, or varied provisions, apply to all or part of the building work—

(i)any relevant deemed-to-satisfy provision under the BCA or relevant acceptable solution under the QDC for the work; and

(ii)any other building assessment provision applying to the work.

s 21 prev s 21 om 1998 No. 13 s 11

pres s 21 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2009 No. 51 s 7; 2016 No. 27 s 46

Note—

For the general requirements for development applications and change applications, see the Planning Act, sections 51 and 79.

ch 3 hdg ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

ch 3 note sub 2016 No. 27 s 48

ch 3 pt 1 hdg ins 2006 No. 36 s 5

23Operation of pt 1

This part imposes requirements for documents (supporting documents) that under the Planning Act are given or required to be given for a building development application.

s 23 prev s 23 amd 1991 No. 52 s 2.26

om 1998 No. 13 s 11

pres s 23 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

24Required information for supporting documents

(1)Each supporting document must—

(a)state the following details of the person who prepared them—

(i)the person’s name;

(ii)if the person is a designated person—the person’s registration or licence number as a designated person; or

(b)be accompanied by another document that—

(i)states the information mentioned in paragraph (a); and

(ii)identifies each supporting document.

(2)In this section—

designated person means a person who—

(a)is an architect under the Architects Act 2002; or

(b)is a licensed builder; or

(c)under the Queensland Building and Construction Commission Act 1991, holds a licence of any of the following classes—

(i)building design—low rise;

(ii)building design—medium rise;

(iii)building design—open; or

(d)is a registered professional engineer under the Professional Engineers Act 2002.

s 24 prev s 24 om 1998 No. 13 s 11

pres s 24 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

25General requirements for supporting documents

(1)Each supporting document must on its face demonstrate that the carrying out of the building work will comply with the building assessment provisions.

(2)Each supporting document must state each of the following—

(a)whether any of the following (a relevant authorisation) is necessary for the application—

(i)the consent of a registered easement or statutory covenant holder mentioned in section 65(1);

(ii)a development permit, PDA development permit, preliminary approval or referral agency’s response mentioned in section 83(1);

(b)if the application relates to a relevant authorisation that has not lapsed or been withdrawn—how the application is consistent with the authorisation;

(c)if the application relates to development mentioned in section 84(2)(a)(i) that may affect the position, height or form of the building work—how the building work is consistent with the provisions mentioned in section 84(2)(c)(i);

(d)if the application relates to development mentioned in section 84(2)(a)(ii) that may affect the position, height or form of the building work—how the building work is consistent with the provisions mentioned in section 84(2)(c)(ii);

(e)if the application requires site works—

(i)if they are assessable development—how they comply with the building assessment provisions; or

(ii)if they are accepted building work—their location and type.

s 25 prev s 25 amd 1991 No. 52 s 2.27

om 1998 No. 13 s 11

pres s 25 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 132 sch; 2013 No. 5 s 94 sch; 2017 No. 12 s 7; 2016 No. 27 s 49 (amd 2017 No. 12 s 64); 2019 No. 11 s 6

26Requirements if alternative solution used

If an alternative solution is used in the supporting documents, the documents must—

(a)state—

(i)the performance requirements with which the building work purports to comply; and

(ii)how the building work complies with the performance requirements; and

(b)contain details of—

(i)how the alternative solution is different from the relevant deemed-to-satisfy provisions under the BCA or acceptable solutions under the QDC; and

(ii)inspection or test results and other documents or information relied on to prepare the application.

s 26 prev s 26 sub 1991 No. 52 s 2.28

om 1998 No. 13 s 11

pres s 26 ins 2006 No. 36 s 5

ch 3 pt 2 hdg ins 2006 No. 36 s 5

27Application for building work for budget accommodation building

A building development application for a budget accommodation building must be accompanied by a fire safety management plan that will, after the building work is carried out, comply with the Fire and Emergency Services Act 1990, section 104FC.

s 27 prev s 27 amd 1991 No. 52 s 2.29; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

pres s 27 ins 2006 No. 36 s 5

amd 2014 No. 17 s 184 sch 1pt 2

28Application to build regulated pool

A building development application for the construction of a regulated pool must also be for the construction of barriers, including any fencing, for the pool.

s 28 orig s 28 sub 1978 No. 47 s 8

amd 1984 No. 114 s 10

om 1998 No. 13 s 11

prev s 28 ins 1998 No. 13 s 19

sub 2002 No. 77 s 168

om 2006 No. 36 s 38

pres s 28 ins 2006 No. 36 s 5

sub 2010 No. 35 s 11

29Application must include required site works

A building development application must include any site works that, under the building assessment provisions, must be carried out as part of or for the development.

s 29 orig s 29 amd 1991 No. 52 s 2.30

om 1998 No. 13 s 11

prev s 29 ins 1998 No. 13 s 19

amd 1998 No. 31 s 62

sub 2002 No. 77 s 171

om 2006 No. 36 s 38

pres s 29 ins 2006 No. 36 s 5

ch 4 hdg ins 2006 No. 36 s 5

sub 2016 No. 27 s 50

ch 4 pt 1 hdg ins 2006 No. 36 s 5

amd 2016 No. 27 s 51

ch 4 pt 1 div 1 hdg ins 2006 No. 36 s 5

amd 2016 No. 27 s 52

30Meaning of building assessment provisions

The following laws and other documents are the building assessment provisions—

(a)chapter 3 and this chapter;

(b)the fire safety standard;

(c)the fire safety standard (RCB);

(d)any provisions of a regulation made under this Act relating to building assessment work or accepted building work;

(e)any relevant local law, local planning instrument or resolution made under section 32 or any relevant provision under section 33;

(f)the BCA;

(g)subject to section 33, the QDC.

s 30 orig s 30 amd 1988 No. 52 s 44 sch 3; 1991 No. 52 s 2.31; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

prev s 30 ins 1998 No. 13 s 19

sub 1998 No. 31 s 63; 2002 No. 77 s 173

om 2006 No. 36 s 38

pres s 30 ins 2006 No. 36 s 5

amd 2011 No. 27 s 226; 2012 No. 3 s 6; 2016 No. 27 s 53

31Building assessment provisions are assessment benchmarks for Planning Act

(1)Each of the building assessment provisions is an assessment benchmark for the Planning Act for the assessment of building work that is assessable development under section 20.

(2)However, for the assessment of the building work under the Planning Act, the building assessment provisions are subject to—

(a)how, under this division, the provisions apply to the work; and

(b)any variation of them under division 2.

(3)The effect of a building assessment provision mentioned in section 30(a) to (d), (f) or (g) can not be changed under a local law, local planning instrument or local government resolution.

(4)A local law, local planning instrument or local government resolution must not include provisions about building work, to the extent a building assessment provision mentioned in subsection (3) applies to the building work.

(5)To the extent a local law, local planning instrument or local government resolution does not comply with subsection (4), the local law, local planning instrument or local government resolution is of no effect.

(6)Subsections (3) to (5) are subject to sections 32 and 33.

s 31 orig s 31 amd 1978 No. 47 s 12; 1981 No. 53 s 11; 1984 No. 45 s 22; 1987 No. 69 s 9; 1991 No. 52 s 2.39; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

prev s 31 ins 1998 No. 13 s 19

amd 2002 No. 77 s 174

om 2006 No. 36 s 38

pres s 31 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 7; 2016 No. 27 s 54

32Local laws, local planning instruments and local government resolutions that may form part of the building assessment provisions

A local government may make or amend—

(a)a local planning instrument that designates, for the BCA or QDC, matters prescribed under a regulation; or

Example of a matter that may be prescribed—

designated bush fire prone areas for the BCA

(b)a provision of a local law or planning scheme or a resolution about an aspect of, or matter related or incidental to, building work prescribed under a regulation; or

Examples of aspects that may be prescribed—

swimming pool fencing or land liable to flooding

(c)alternative provisions under section 33.

s 32 orig s 32 amd 1978 No. 47 s 13; 1984 No. 45 s 23; 1987 No. 69 s 10; 1991 No. 52 s 2.40; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

prev s 32 ins 1998 No. 13 s 19

sub 2002 No. 77 s 175

om 2006 No. 36 s 38

pres s 32 ins 1998 No. 13 s 10

sub 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 8

33Alternative provisions to QDC boundary clearance and site cover provisions for particular buildings

(1)This section applies for work (relevant work) that—

(a)is building assessment work or accepted building work; and

(b)is for a single detached class 1 building or a class 10 building or structure located on the same allotment as a single detached class 1 building.

(2)A planning scheme or PDA instrument may include provisions (alternative provisions) that, for relevant work, are alternative or different to the QDC boundary clearance and site cover provisions.

(3)However, a planning scheme or PDA instrument may include alternative provisions only if the provisions are a qualitative statement or quantifiable standard.

(4)If there are alternative provisions for relevant work, the QDC boundary clearance and site cover provisions only apply to the extent the alternative provisions do not apply to the work.

(5)Alternative provisions can not be made other than under a planning scheme or PDA instrument.

(6)In this section—

PDA instrument means a relevant development instrument for a priority development area, made under the Economic Development Act 2012.

qualitative statement means a statement about a performance or outcome sought to be achieved when applicable buildings or structures are completed.

quantifiable standard means a standard that achieves a performance or outcome sought under a qualitative statement.

s 33 prev s 33 amd 1984 No. 45 s 24; 1987 No. 69 s 11; 1991 No. 52 s 2.41; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 33 ins 2006 No. 36 s 5

amd 2012 No. 3 s 9; 2012 No. 43 s 221 sch 1; 2016 No. 27 s 55

34ADecision for building development application that complies with building assessment provisions

(1)This section applies subject to section 83 and the Planning Act, chapter 3.

(2)If the assessment manager for a building development application is satisfied the application complies with the building assessment provisions, the assessment manager must approve the application.

s 34A ins 2009 No. 36 s 872 sch 2

amd 2016 No. 27 s 57

35Relationship between the BCA and the QDC

If the BCA is inconsistent with a part of the QDC, the part prevails to the extent of the inconsistency.

s 35 prev s 35 amd 1981 No. 53 s 12; 1984 No. 45 s 25; 1991 No. 52 s 2.43; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 35 ins 2006 No. 36 s 5

36When building assessment provisions must be applied

(1)This section applies subject to sections 37 and 61.

(2)Building assessment work, other than building assessment work carried out under section 46, must comply with the building assessment provisions in force when the application is approved.

s 36 prev s 36 amd 1991 No. 52 s 2.45; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 36 ins 2006 No. 36 s 5

37Provision for changes to building assessment provisions

(1)This section applies to building work if—

(a)the lawful carrying out of the work starts before a building assessment provision is amended; or

(b)the building development approval was given before a building assessment provision is amended, but the work does not start before the amendment commences; or

(c)a building development application is made for the work before a building assessment provision is amended, but the application is not decided before the amendment commences; or

(d)planning for carrying out the work started before a building assessment provision is amended and the building certifier for the building development approval certifies in writing that—

(i)substantial progress was made on the design of the building, or the design was completed, before the amendment; and

(ii)the design would need to be changed to comply with the amended provision; and

(iii)the changes needed under subparagraph (ii) are not minor changes, having regard to the amendment and the nature of the building work.

Example of a change to a design that is not a minor change—

the removal of floors from a design to comply with an amended building assessment provision requiring the installation of water tanks in a building

(2)Despite the amendment, a building development approval for the work may be given if the approval is given under the building assessment provisions in force immediately before the amendment.

(3)For subsection (1)(a) the work is lawfully carried out if it is carried out under the building assessment provisions in force immediately before the amendment.

(4)For subsections (1) and (3), an amendment of the building assessment provisions includes an amendment of a document adopted by, or to which a reference is made in, any of the provisions.

s 37 prev s 37 sub 1981 No. 53 s 14

amd 1991 No. 52 s 2.58

om 1998 No. 13 s 13

pres s 37 ins 2006 No. 36 s 5

amd 2009 No. 51 s 8; 2016 No. 27 s 58

ch 4 pt 1 div 2 hdg ins 2006 No. 36 s 5

38Applying to vary how particular building assessment provision applies

(1)If—

(a)building work is proposed to be carried out, is being carried out or has been carried out; and

(b)the building work will not, or does not, comply with a provision of any of the building assessment provisions;

a person may apply (the variation application) to the chief executive to vary how the provision applies to the building work.

(2)However, the variation application can not be made if the provision permits an assessment manager to exercise discretion about the matter for which the variation is sought.

Example of a provision mentioned in subsection (2)—

part 3

(3)The variation application must be made in the approved form and be accompanied by the fee prescribed under a regulation.

s 38 prev s 38 amd 1978 No. 47 s 15; 1984 No. 45 s 27; 1991 No. 52 s 2.59; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 38 ins 2006 No. 36 s 5

amd 2016 No. 27 s 59

39Applying for fast-track decision

(1)The applicant under the variation application, may, in the application, ask the chief executive to decide the application within 2 business days after making the application.

(2)A request made under subsection (1) must be accompanied by the fee prescribed under a regulation.

(3)The chief executive may grant or refuse the request.

(4)If the chief executive grants the request, the chief executive may, as a condition of granting the request, require the applicant to pay any reasonable additional costs that would be incurred by the chief executive in deciding the variation application within the 2 business days.

s 39 prev s 39 amd 1991 No. 52 s 2.60

om 1998 No. 13 s 13

pres s 39 ins 2006 No. 36 s 5

40Effect of variation application on development assessment process under Planning Act

If the variation application is about building work proposed to be carried out for which work a building development application has been made, the development assessment process under the Planning Act for the building development application—

(a)stops on the day the variation application is received by the chief executive; and

(b)starts again the day the chief executive gives the applicant under the variation application notice under section 43.

s 40 prev s 40 amd 1991 No. 52 s 2.61

om 1998 No. 13 s 13

pres s 40 ins 2006 No. 36 s 5

amd 2016 No. 27 s 60

41Deciding variation application

(1)If the building work is being or is to be carried out by or for someone other than the State, the chief executive must consult with the assessment manager about the variation application before deciding it.

(2)The chief executive may consult with any other person about the variation application before deciding it.

(3)After considering the variation application, the chief executive must decide to vary or refuse to vary how the provision applies to the building work.

(4)The chief executive must decide the variation application within 20 business days after the application is made.

s 41 prev s 41 amd 1991 No. 52 s 2.62; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 41 ins 2006 No. 36 s 5

42Criteria for decision

(1)In making the decision the chief executive must consider all relevant matters, including for example—

(a)whether the building work substantially complies with the other building assessment provisions; and

(b)whether compliance with the provision is unnecessary in the particular circumstances; and

(c)whether the proposed variation is as effective as, or more effective than, compliance with the provision.

(2)However, the chief executive may vary how the provision applies to the building work only if the chief executive considers the general safety and structural standards of the relevant building or structure would not be at risk.

s 42 prev s 42 amd 1981 No. 53 s 15; 1984 No. 45 s 28; 1987 No. 69 s 13; 1991 No. 52 s 2.63; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 42 ins 2006 No. 36 s 5

amd 2016 No. 27 s 61

43Notice of decision

(1)The chief executive must, within 5 business days after deciding the variation application, give the applicant and the assessment manager for the building work notice of the decision.

(2)If the decision is to refuse to vary how the provision applies to the building work, the notice must be an information notice.

Note—

For appeals against a decision for which an information notice must be given under this section, see the Planning Act, section 229.

s 43 prev s 43 amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 43 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 62

44Effect of variation

(1)This section applies if the chief executive decides to vary how the provision applies to the building work.

(2)Subject to any appeal against the chief executive’s decision, the provision, as varied by the decision, applies to the building work.

(3)An assessment manager must not refuse to approve a building development application to which the chief executive’s decision relates only on the ground that the building work does not comply with the provision without the variation.

s 44 prev s 44 sub 1978 No. 47 s 16

om 1998 No. 13 s 13

pres s 44 ins 2006 No. 36 s 5

ch 4 pt 2 hdg ins 2006 No. 36 s 5

ch 4 pt 2 div 1 hdg ins 2006 No. 36 s 5

45Generally a building certifier must assess

Subject to section 46, building assessment work must be carried out by a building certifier.

s 45 prev s 45 amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 45 ins 2006 No. 36 s 5

46Referral agencies may assess application against building assessment provisions

(1)This section applies if, under the Planning Act—

(a)a person is a referral agency for a building development application; and

(b)the person must assess the application against a building assessment provision or part of a building assessment provision.

(2)Only the referral agency may assess the application against the provision or part.

(3)Assessment of the application by the referral agency must be done under the building assessment provisions.

(4)Subject to sections 37 and 61, the assessment must be carried out under the building assessment provisions in force when the assessment is made.

(5)If the referral agency must, under the Planning Act, assess the application against the fire safety standard, the referral agency must appoint or employ a building certifier to carry out the assessment.

Note—

For the referral agencies for building development applications, see the Planning Act, section 54(2).

s 46 prev s 46 amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

pres s 46 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 63

ch 4 pt 2 div 2 hdg ins 2006 No. 36 s 5

47Operation of div 2

(1)This division confers functions on private certifiers for building development applications.

(2)The functions are in addition to the building certifying functions that private certifiers may perform as building certifiers.

(3)The additional functions, together with building certifying functions, are private certifying functions.

s 47 orig s 47 amd 1984 No. 45 s 34; 1987 No. 69 s 14; 1991 No. 52 s 2.64; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

prev s 47 ins 1978 No. 47 s 23

amd 1991 No. 52 s 2.79

sub 1993 No. 70 s 804 sch; 1998 No. 13 s 20

amd 2005 No. 14 s 2 sch

om 2006 No. 36 s 50

pres s 47 ins 2006 No. 36 s 5

48Functions of private certifier (class A)

(1)A private certifier (class A) may—

(a)receive and assess a building development application; and

(b)decide the building development application, and give a decision notice for the application; and

(c)decide whether enforcement action under this Act or the Planning Act ought to be taken for a building development approval granted by—

(i)the private certifier (class A); or

(ii)another private certifier (class A) employed by the same private certifier employer when the decision to take the enforcement action is made.

(2)For section 248, a reference to a local government includes a reference to a private certifier (class A) performing functions under subsection (1)(c).

(3)However, subsections (1)(c) and (2) apply only until the giving of a final inspection certificate for the building work or a certificate of classification for the building.

(4)Despite the Planning Act—

(a)a private certifier (class A) is an enforcement authority for that Act in relation to building work only until a final inspection certificate for the building work, or a certificate of classification for the building, is given; and

(b)after the final inspection certificate or certificate of classification is given, the local government is the enforcement authority for that Act in relation to the building work.

(5)To remove any doubt, it is declared that subsections (1)(c) and (2) do not limit the local government’s functions or powers under this Act or the Planning Act, chapter 5, part 3.

(6)Subsection (7) applies if—

(a)under this section a private certifier (class A) gives a person an enforcement notice under this Act; or

(b)a private certifier (class A) that is an enforcement authority under the Planning Act gives a person an enforcement notice under the Planning Act.

(7)If the person does not comply with the enforcement notice, the private certifier (class A) must give the local government a notice that the person has not complied with the enforcement notice.

s 48 prev s 48 amd 1987 No. 69 s 15; 1991 No. 52 s 2.65

om 1998 No. 13 s 13

pres s 48 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 64 (amd 2017 No. 12 s 64A)

49Functions of private certifier (class B)

A private certifier (class B) may—

(a)receive a building development application; and

(b)carry out all building assessment work for the application other than in relation to the QDC boundary clearance and site cover provisions.

s 49 orig s 49 amd 1981 No. 53 s 17; 1987 No. 69 s 16; 1991 No. 52 s 2.66

om 1998 No. 13 s 13

prev s 49 ins 1991 No. 52 s 2.80

amd 1993 No. 70 s 804 sch; 1998 No. 13 s 21

om 2006 No. 36 s 52

pres s 49 ins 2006 No. 36 s 5

50Restrictions on building certifying functions that a private certifier (class B) can perform

(1)A private certifier (class B) can not give a final inspection certificate or certificate of classification.

(2)A private certifier (class B) can only give a compliance certificate about whether building work complies with the BCA or a provision of the QDC, other than the QDC boundary clearance and site cover provisions.

s 50 ins 2006 No. 36 s 5

ch 4 pt 2 div 3 hdg ins 2006 No. 36 s 5

51Function to act on building development application or development approval unless private certifier (class A) engaged

(1)This section applies if—

(a)a person wishes to make a building development application to the local government; and

(b)if the application were made, it would be a properly made application; and

(c)a private certifier (class A) is not engaged for the application; and

(d)if a private certifier (class B) is engaged for the application—the private certifier (class B) has not entered into an agreement mentioned in section 140(3) for the proposed application.

(2)The local government must do the following—

(a)under the Planning Act, chapter 3, receive, assess and decide the application;

(b)appoint or employ a private certifier or another building certifier to perform building certifying functions for—

(i)the application; and

(ii)if the building development approval applied for is granted—the building work.

Note—

If a private certifier is appointed or employed, the functions can not include private certifying functions that are not also building certifying functions. See section 138.

(3)If—

(a)a private certifier (class A) has granted a building development approval; and

(b)the engagement of a private certifier to inspect and certify the building work is discontinued; and

(c)the building work has not been certified;

the local government for the approval must, if asked in writing by the nominated owner of the building, appoint or employ a building certifier to perform building certifying functions for the building work.

(4)This section is subject to sections 31 and 52.

(5)In this section—

nominated owner, of a building, means the person who, under the most recent building development application for the building, was nominated in the application as the person to receive the inspection documentation for building work for the building.

s 51 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 132 sch; 2016 No. 27 s 65

52Restriction on local government issuing building development approval

The local government for a building development application may issue the building development approval applied for only if—

(a)a local government building certifier has carried out the building assessment work for the application; and

(b)the building certifier is appropriately licensed to carry out the building assessment work.

s 52 ins 2006 No. 36 s 5

53Local government may rely on particular compliance certificates and other documents

(1)This section applies if—

(a)a building certifier gives the local government for a building development application (the original application) a compliance certificate or other document; and

(b)the certificate or other document was made by or given to the building certifier to carry out building assessment work under the original application.

(2)The local government may, in carrying out functions under this Act for the following, accept and, without further checking, rely and act on the certificate or other document—

(a)the original application;

(b)another building development application for all or part of the building work under the original application.

s 53 prev s 53 sub 1991 No. 52 s 2.71

om 1998 No. 13 s 15

ins 1998 No. 13 s 25

om 2006 No. 36 s 56

pres s 53 ins 2006 No. 36 s 5

54Local government may rely on documents private certifier gives it for providing public access

(1)This section applies if—

(a)under this Act, a private certifier gives a document to the local government for a building development application; and

(b)under the Planning Act, section 264, the local government must, or may, keep the document publicly available.

(2)The local government may accept, and without further checking, rely and act on the document for the purpose of making the document publicly available.

s 54 prev s 54 amd 1978 No. 47 s 18; 1993 No. 70 s 804 sch

om 1998 No. 13 s 15

pres s 54 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

sub 2016 No. 27 s 66

ch 4 pt 2 div 4 hdg ins 2006 No. 36 s 5

amd 2016 No. 27 s 67

55Power to decide what stage of development assessment process under Planning Act application process may resume or start

(1)This section applies if—

(a)a private certifier (class A) is engaged to assess or decide a building development application; and

(b)the engagement is discontinued; and

(c)the application has not been decided; and

(d)a new private certifier (class A) is engaged for the application.

(2)This section also applies if—

(a)a building development approval lapses under part 7; and

(b)the owner of the land to which the approval attached immediately before it lapsed makes a new building development application for all or part of the building work under the lapsed approval.

(3)The assessment manager for the application or new application may resume or start the application process at any stage of the development assessment process under the Planning Act the assessment manager considers appropriate.

s 55 ins 2006 No. 36 s 5

amd 2016 No. 27 s 68

ch 4 pt 3 hdg ins 2006 No. 36 s 5

56Building certifier’s discretion—BCA

(1)This section applies for a building certifier carrying out building assessment work for a building development application if—

(a)the BCA allows a discretionary decision about a building design or specification for building work; and

Example of discretionary decision—

the BCA uses the word ‘suitable’ or ‘adequate’

(b)the application proposes the use of the discretion.

(2)The building certifier must—

(a)consider the objectives and functional statements of the BCA in relation to the design or specification; and

(b)decide whether the design or specification complies with—

(i)generally—the BCA; or

(ii)if, for the application, the BCA is varied under part 1, division 2—the BCA as varied.

(3)The building certifier must not make the decision in a way that conflicts with the objectives or functional statements.

s 56 prev s 56 amd 1978 No. 47 s 20; 1981 No. 53 s 18; 1991 No. 52 s 2.73

om 1998 No. 13 s 17

pres s 56 ins 2006 No. 36 s 5

57Building certifier’s or referral agency’s discretion—QDC

(1)This section applies for a building certifier or referral agency carrying out building assessment work for a building development application if—

(a)a part of the QDC applies to the application; and

(b)the part allows a discretionary decision about a building design or specification; and

Example of discretionary decision—

QDC uses the word ‘suitable’ or ‘adequate’

(c)the application proposes the use of the discretion.

(2)The building certifier or referral agency must decide whether the design or specification complies with—

(a)generally—the QDC; or

(b)if, for the application, the QDC is varied under part 1, division 2—the QDC as varied.

s 57 prev s 57 amd 1978 No. 47 s 21; 1991 No. 52 s 2.74

om 1998 No. 13 s 17

pres s 57 ins 2006 No. 36 s 5

amd 2016 No. 27 s 69

58Survey certificate

(1)A building certifier may, before assessing a building development application, require that a cadastral survey, including a survey commonly called in the surveying profession an identification survey, be carried out to show—

(a)the boundaries of the allotment on which the building work is proposed; and

(b)the location of any proposed or existing buildings or structures on the allotment.

(2)The absence of a requirement under subsection (1) does not prevent the requirement being made by a condition of the building development approval, under section 78.

s 58 prev s 58 amd 1991 No. 52 s 2.75

om 1998 No. 13 s 17

pres s 58 ins 2006 No. 36 s 5

59Discretion for building development applications for particular budget accommodation buildings

(1)This section applies to the assessment of a building development application to the extent it is for building work required to ensure the building complies, under section 220, with the fire safety standard.

(2)The decision on the application may be inconsistent with the planning scheme applying to the land on which the building work is to be carried out.

Example—

A desired outcome in the planning scheme is that the building does not affect the amenity and aesthetics of the neighbourhood of the building. An external stairway required under the fire safety standard does not achieve the outcome. The application may be approved despite the inconsistency.

s 59 ins 1998 No. 13 s 10

sub 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2013 No. 5 s 94 sch; 2016 No. 27 s 70

60Building certifier may rely on particular compliance certificates and other documents

(1)This section applies if—

(a)a building certifier has given anyone else a compliance certificate or other document; and

(b)the certificate or other document made by or given to the building certifier is to carry out building assessment work for a building development application (the original application).

(2)Another building certifier may, in carrying out functions under this Act for the following, accept and, without further checking, rely and act on the certificate or other document—

(a)the original application;

(b)another building development application for all or part of the building work under the original application.

s 60 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

61Alterations to safe existing work may be approved on basis of earlier building assessment provisions

(1)This section applies for a building development application if—

(a)the building work is alterations to an existing building or structure; and

(b)the building certifier is satisfied the general safety and structural standards of the building or structure would not be at risk if the alterations were to be carried out under earlier building assessment provisions.

(2)The building certifier may carry out building assessment work for the application on the basis that the building work is to be carried out under the earlier building assessment provisions.

(3)Subsection (4) applies if the building’s BCA classification as shown on the certificate of classification for the building has changed only because of an amendment to building classifications under the BCA made after the certificate was given.

(4)Without limiting subsection (2), the building certifier may carry out building assessment work for the application on the basis that the building work is to be carried out under the building assessment provisions applying for the BCA classification shown on the certificate of classification.

(5)In this section—

building assessment provisions includes the former Standard Building By-laws and Standard Building Law under this Act and the repealed Standard Building Regulation 1993.

earlier building assessment provisions means the building assessment provisions as they were in force at a particular time before the application was made.

s 61 prev s 61 amd 1984 No. 45 s 32; 1991 No. 52 s 2.76

om 1998 No. 13 s 19

pres s 61 ins 2006 No. 36 s 5

amd 2009 No. 51 s 9

ch 4 pt 4 hdg ins 2006 No. 36 s 5

63Restriction on granting building development approval for budget accommodation building

If a building development application is for a budget accommodation building, the assessment manager must not approve the application unless the assessment manager is satisfied—

(a)the fire safety management plan accompanying the application complies with the Fire and Emergency Services Act 1990, section 104FC; or

(b)the building work involves an alternative solution, for performance requirements under the BCA, that includes a fire safety management procedure as a condition of the occupation and use of the building and the fire safety management plan adequately reflects the procedure.

s 63 ins 2006 No. 36 s 5

amd 2011 No. 27 s 227; 2014 No. 17 s 184 sch 1pt 2

63ARestriction on granting building development approval for residential care building

(1)This section applies to a building development application for building work that includes an alteration to a residential care building to which chapter 7A applies.

(2)The assessment manager must not approve the application unless—

(a)the application also relates to building work (if any) to be carried out to the rest of the residential care building; and

(b)the assessment manager is satisfied that, after the building work is completed, the whole of the residential care building will comply with the fire safety standard (RCB).

(3)In this section—

alteration, to a residential care building, means—

(a)an alteration affecting more than 20% of the floor area of the building; or

(b)an addition of more than 20% to the floor area of the building.

s 63A prev s 63A ins 1991 No. 52 s 2.77

om 1998 No. 13 s 19

pres s 63A ins 2011 No. 27 s 228

64Required report before assessing application for temporary building or structure with special fire service

(1)This section applies to a building development application for a temporary building or structure that is proposed to have a special fire service.

(2)Before carrying out building assessment work for the application, the building certifier must obtain from QFES a report on the suitability of the proposed service.

s 64 ins 2006 No. 36 s 5

amd 2014 No. 17 s 184 sch 1pt 4

65Land subject to registered easement or statutory covenant

(1)This section applies if a building development application is for land subject to—

(a)a registered easement; or

(b)a registered statutory covenant for which the registered holder of the covenant is—

(i)the State; or

(ii)a statutory body representing the State; or

(iii)a local government.

(2)The assessment manager must not approve the application unless each registered holder of the easement or covenant has consented to the building work.

(3)However, subsection (2) does not apply to a building development application for a class 1, 2, 3 or 4 building on land subject to a noise covenant if a building assessment provision is expressed to apply specifically for the reduction in a class 1, 2, 3 or 4 building of noise coming from outside the building.

(4)In this section—

noise covenant means a registered statutory covenant—

(a)for which the registered holder of the covenant is the State; and

(b)for the reduction in a class 1, 2, 3 or 4 building of noise coming from outside the building.

registered means registered under the Land Act 1994 or Land Title Act 1994.

s 65 ins 2006 No. 36 s 5

amd 2009 No. 51 s 10

66Special structures

(1)This section applies to a building development application for a building that, under section 120, is classified as a special structure.

(2)The assessment manager must not approve the application unless the special structure—

(a)complies with the building assessment provisions; and

(b)reasonably provides for all of the following—

(i)the safety of persons using the structure if there is a fire (including, for example, means of egress);

(ii)the prevention and suppression of fire;

(iii)the prevention of the spread of fire;

(iv)the health and amenity of persons using the structure.

s 66 ins 2006 No. 36 s 5

67Temporary building or structures

(1)A building development approval for any temporary building or structure must include a condition that—

(a)limits the period during which the temporary building or structure may remain in place; and

(b)requires removal or demolition of the temporary building or structure at the end of the period.

(2)Subsection (3) applies to a building development application for a temporary building or structure if—

(a)no building assessment provision is expressed to apply specifically to temporary buildings or structures generally or to temporary buildings or structures of the same type as the temporary building or structure; and

(b)the building or structure would not otherwise comply with the building assessment provisions.

(3)The assessment manager must not approve the application unless the building certifier has decided the temporary building or structure—

(a)is structurally sound and capable of withstanding the loadings likely to arise from its use; and

(b)reasonably provides for all of the following—

(i)the safety of persons to be accommodated in the building or structure if there is a fire (including, for example, means of egress);

(ii)the prevention and suppression of fire;

(iii)the prevention of the spread of fire;

(iv)the health and amenity of persons to be accommodated in the building or structure.

s 67 ins 2006 No. 36 s 5

sub 2008 No. 13 s 3

amd 2012 No. 3 s 132 sch

68Particular alterations not permissible

(1)This section applies to a building development application for alterations to an existing building or structure.

(2)However, this section does not apply if—

(a)the alterations are for a budget accommodation building to which chapter 7, part 3 applies; and

(b)the purpose of the alterations is to ensure the building or structure complies with the fire safety standard.

(3)The assessment manager must not approve the application unless the building certifier has decided the alterations do not unduly reduce the following—

(a)the existing level of fire protection for persons accommodated in, or using, the building or structure;

(b)the existing level of resistance to fire of the building or structure;

(c)the existing safeguards against spread of fire to adjoining buildings or structures;

(d)the existing level of emergency egress from the building or structure.

s 68 ins 2006 No. 36 s 5

amd 2012 No. 3 s 132 sch

68AStatement of reasons for approving alternative solution

(1)This section applies if—

(a)an alternative solution is used in the supporting documents for a building development application; and

(b)the assessment manager decides to approve the application on the basis of the alternative solution.

(2)The assessment manager must prepare a written statement of reasons for the decision.

(3)The statement must contain details of—

(a)how the alternative solution is different from the relevant deemed-to-satisfy provisions under the BCA or acceptable solutions under the QDC; and

(b)inspection or test results and other documents or information relied on to make the decision.

s 68A ins 2006 No. 59 s 21

Note—

For general provisions about conditions of development approvals, see the Planning Act, chapter 3, part 3, division 3.

ch 4 pt 5 hdg ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

ch 4 pt 5 note amd 2016 No. 27 s 72

ch 4 pt 5 div 1 hdg ins 2006 No. 36 s 5

69Operation of div 1

(1)This division imposes restrictions and obligations for particular building development approvals.

(2)The restrictions and obligations are taken to be conditions of building development approvals to which they relate.

(3)This division does not limit the conditions that may be imposed under the Planning Act.

(4)If a provision of this division applies to a building development approval, the condition provided for under the provision (an imposed condition) is taken to—

(a)have been imposed on the approval; and

(b)comply with the Planning Act, section 65(1).

(5)The Planning Act, chapter 3, part 5, division 2, subdivision 2 does not apply to an imposed condition.

(6)If there is a conflict between an imposed condition and another condition of a building development approval, the imposed condition prevails to the extent of the inconsistency.

s 69 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 73

70Engineering drawings

(1)This section applies if—

(a)supporting documents for a building development application are in the form of engineer’s drawings or other engineering details; and

(b)the drawings or details were not included with the application; and

(c)the application is approved.

(2)Work on any footings for the building work must not start until the drawings and details for the footings have been approved by the building certifier.

(3)A stage of the building work must not be started until the drawings and details for the stage have been approved by the building certifier.

s 70 ins 2006 No. 36 s 5

71When demolition, removal and rebuilding must start and be completed

(1)This section applies to a building development approval for building work to—

(a)demolish or remove a building or structure; or

(b)rebuild, after removal, a building or structure.

(2)The building work must substantially start within 2 months after the giving of the approval.

(3)Within 1 year after the giving of the approval—

(a)the building work must be completed; and

(b)if the building work is rebuilding, after removal, of a building or structure, either—

(i)if, under the approval or a regulation, the building work must be inspected, a final inspection showing that the building work complies with the approval or regulation is carried out; or

(ii)under chapter 5, a certificate of classification must be given for the building.

(4)The condition under subsection (3) is the demolition/removal completion condition.

(5)However, a person may apply to the local government to approve 1 extension of the period mentioned in subsection (3) for a period of up to 6 months.

(6)The application must be—

(a)made before the end of the period mentioned in subsection (3); and

(b)in writing; and

(c)supported by enough information to enable the local government to decide the application.

(7)A person who makes an application for an extension must, within 5 business days of making the application, give a copy of the application to the assessment manager who gave the building development approval mentioned in subsection (1), unless the local government is also the assessment manager.

(8)The local government may consult with any other entity the local government considers appropriate in deciding the application.

(9)The local government must decide the application within 10 business days after the application is made.

(10)In making a decision about the application the local government may consider all relevant matters, including, for example—

(a)how much building work has been undertaken at the time of the making of the application and whether the building work that has been undertaken is structurally sound; and

(b)any impact the building work may have on the local community if the extension were given or not.

(11)The local government must, within 5 business days after deciding the application, give the applicant and the assessment manager for the building work notice of the decision.

(12)If the decision is to refuse to extend the building development approval, the notice must be an information notice.

Note—

For appeals against a decision for which an information notice must be given under this section, see the Planning Act, section 229.

(13)If the local government grants the application, the building development approval for the building work is taken to have been extended for the period granted by the local government.

(14)Subsection (15) applies if—

(a)an application for an extension is made before the end of the period mentioned in subsection (3); and

(b)the local government has not made a decision about the application before the end of that period.

(15)The building development approval for the building work is taken to have been extended until the earlier of the following events—

(a)the local government notifies the applicant of its decision;

(b)the end of 6 months after the end of the period mentioned in subsection (3).

s 71 prev s 71 amd 1981 No. 53 s 19 (see RA s 39); 1993 No. 70 s 804 sch

om 1995 No. 57 s 4 sch 2

pres s 71 ins 2006 No. 36 s 5

amd 2013 No. 5 s 59; 2016 No. 27 s 74

72Building work in erosion prone area

(1)This section applies to a building development approval for an erosion prone area under the Coastal Protection and Management Act 1995.

(2)All material excavated from land for the building work must be placed, levelled and stabilised against wind erosion—

(a)on the land seaward of the building or structure; or

(b)at another location, stated in the approval, within the erosion prone area.

(3)If the building work includes the erection or alteration of a roof drainage system or stormwater drain for the building or other structure, the system or drain must not be erected or altered in a way that is likely to cause erosion of the area.

(4)However, the conditions under subsections (2) and (3) do not apply if the approval states that the person carrying out the building assessment work for the application is satisfied the conditions are not necessary for coastal management, including, in particular, the prevention of erosion or tidal inundation.

s 72 ins 2006 No. 36 s 5

73Obligation to make current drawing available for inspection

The applicant for a building development approval must ensure 1 legible set of the current drawings for the building is, while the building work is being carried out, available for inspection by anyone who, under an Act, is entitled to inspect the relevant building site.

s 73 prev s 73 om 1990 No. 61 s 8.8(1) 1st sch

pres s 73 ins 2006 No. 36 s 5

74Inspection and testing of special fire service installation

(1)This section applies to a building development approval for a building served by a special fire service.

(2)The person installing the service must—

(a)give QFES—

(i)while the installation of the service is being carried out but before it is finished—a notice to inspect the installation; and

(ii)after the installation of the service but before interior surface finishes are applied—a notice to test the service; and

(b)give a copy of the notices to the assessment manager when they are given to QFES.

(3)QFES may inspect and test the building work only about special fire services.

s 74 prev s 74 om 1990 No. 61 s 8.8(1) 1st sch

pres s 74 ins 2006 No. 36 s 5

amd 2014 No. 17 s 184 sch 1pt 4

75Earthworks and retaining walls

If soil conditions, ground levels, excavation or filling make it necessary to protect land, buildings or structures in the neighbourhood of building work—

(a)retaining walls must be built, or other suitable methods used, to prevent soil movement; and

(b)drainage of the land, buildings or structures must be provided.

s 75 prev s 75 amd 1981 No. 53 s 20

om 1995 No. 57 s 4 sch 2

pres s 75 ins 2006 No. 36 s 5

76Drainage of buildings or land

If a building development approval permits a building or land to be drained, the drainage must be carried out in a way that protects land, buildings and structures in the neighbourhood of the building or land.

s 76 ins 2006 No. 36 s 5

77Building work over existing sanitary drainage

Building work over or adjacent to existing sanitary drainage must comply with the Plumbing and Drainage Act 2018.

s 77 prev s 77 ins 1993 No. 70 s 804 sch

om R1 (see RA s 37)

pres s 77 ins 2006 No. 36 s 5

amd 2018 No. 17 s 197 sch 2

ch 4 pt 5 div 2 hdg ins 2006 No. 36 s 5

78Survey certificate

(1)A building development approval may include a condition that the building certifier must be given a cadastral survey, including a survey commonly called in the surveying profession an identification survey, showing—

(a)the boundaries of the allotment; and

(b)the actual location of the building or structure on the allotment.

(2)A survey under subsection (1) must be given—

(a)as soon as the actual location of the building or structure on the allotment can be established; or

(b)at a later time the building certifier allows.

s 78 ins 2006 No. 36 s 5

79Hazardous buildings

(1)This section applies to a building development approval for a class 5, 6, 7 or 8 building—

(a)with a total floor area greater than 36,000m²; or

(b)for which the building certifier considers special provision should be made to restrict or combat the spread of fire within or from the building because of the purpose or purposes for which the building is being or is to be used.

(2)The building development approval may include conditions the building certifier considers appropriate about restricting or combating the spread of fire in or from the building.

(3)However, the conditions may be imposed only if the building certifier has consulted QFES about their appropriateness.

s 79 ins 2006 No. 36 s 5

amd 2014 No. 17 s 184 sch 1pt 4

80Alterations to unsafe existing work

(1)This section applies to a building development approval if—

(a)the building work is alterations to an existing building or structure; and

(b)the building certifier decides the building or structure is unsafe or structurally unsound.

(2)The building development approval may include a condition that all, or a stated part, of the building or structure must comply with the building assessment provisions in force—

(a)when the approval was granted; or

(b)at another stated time that the building certifier considers will ensure the building or structure is made safe and structurally sound.

s 80 ins 2006 No. 36 s 5

81Building development approval for particular alterations may require existing building or structure to comply with building assessment provisions

(1)This section applies to a building development approval for alterations to an existing building or structure if—

(a)the total of the following represents more than half the total volume of the existing building or structure, measured over its roof and external walls—

(i)the alterations;

(ii)any previous structural alterations to it approved or completed in the previous 3 years; or

(b)the building certifier has decided the alterations pose a risk—

(i)to the safety of persons accommodated in or using the building or structure; or

(ii)of spreading fire to adjoining buildings or structures.

(2)However, this section does not apply if—

(a)the alterations are for—

(i)a budget accommodation building to which chapter 7, part 3 applies; or

(ii)a residential care building to which chapter 7A, part 4 applies; and

(b)the purpose of the alterations is to ensure the building complies with—

(i)for a budget accommodation building—the fire safety standard; or

(ii)for a residential care building—the fire safety standard (RCB).

(3)The building development approval may include a condition that all, or a stated part, of the existing building or structure must comply with all or a stated part of the building assessment provisions as if it were a new building or structure.

(4)This section does not limit chapter 5, part 3.

s 81 ins 2006 No. 36 s 5

amd 2011 No. 27 s 229

ch 4 pt 6 hdg ins 2006 No. 36 s 5

82Application of pt 6

This part applies if, under section 48, a private certifier (class A) is assessing a building development application or deciding and issuing the decision notice.

s 82 ins 2006 No. 36 s 5

83General restrictions on granting building development approval

(1)The private certifier must not grant the building development approval applied for—

(a)until, under the Planning Act and the Economic Development Act 2012, all necessary development permits and PDA development permits are effective for development, other than building work, that may affect any or all of the following—

(i)the form or location of the building work;

(ii)the use of the building or other structure;

(iii)the assessment of the building development application; and

Example—

A proposal involving building work also involves a material change of use, reconfiguring a lot and operational work under the Planning Act. The material change of use, reconfiguring a lot and operational work are categorised as assessable development under the Planning Act. The private certifier is engaged to carry out building assessment work and decide the building development application. The private certifier must not grant the building development approval applied for until, under the Planning Act, all necessary development permits are effective for—

•the material change of use, which will affect the use of the building or other structure

•reconfiguring the lot, which will affect the location of the building work on the reconfigured lot

•the operational work, other than operational work that does not affect the form or location of the building work or assessment of the building development application, including, for example, landscaping work.

(b)if the building development application is for a development permit that, under the Planning Act, section 73A, does not authorise the carrying out of a part of the building work unless a relevant preliminary approval is in effect for the part—

(i)until the relevant preliminary approval is in effect for the part; or

(ii)until a development permit given by an entity other than a private certifier is in effect for the part; and

Example—

A building development application is made for a development permit for building work that must be assessed against the building assessment provisions and a code in the local government’s planning scheme. The code is not a building assessment provision and none of the referral agencies for the application are required, under the Planning Act, to assess the application against, or having regard to, the code. A private certifier is engaged to assess and decide the building development application. The private certifier must not grant the development permit until either of the following is in effect for the part of the building work that must be assessed against the code—

(a)a preliminary approval given by the local government under the repealed Sustainable Planning Act 2009; or

(b)a development permit given by the local government.

(ba)if the building development application is for a development permit for building work and a part of the building work is PDA-related development that is PDA assessable development—until a PDA development permit is in effect for the part; and

(c)until the building assessment work for the application has been carried out under the building assessment provisions; and

(d)if, under the Planning Act, a referral agency must assess the building work against, or having regard to, a matter relating to the building work—until—

(i)the referral agency has given its referral agency’s response to the private certifier or, if the referral agency does not give a response before the end of the referral agency’s response period for the application, until after the response period has ended; and

(ii)if the referral agency is the local government—any security it has required for the carrying out of the building work has been given; and

(e)if proposed works relating to the development include installing or altering on premises an on-site sewage facility under the Plumbing and Drainage Act 2018—until a permit under that Act has been given for the installation or alteration.

Maximum penalty—165 penalty units.

(2)Subsection (3) applies if the private certifier receives the application before a following application or request is decided—

(a)if subsection (1)(a) applies to the application—a development application for each development permit, or a PDA development application for each PDA development permit, mentioned in the subsection;

(b)if subsection (1)(b) applies to the application—a development application for a preliminary approval or development permit mentioned in the subsection;

(ba)if subsection (1)(ba) applies to the application—a PDA development application for a PDA development permit mentioned in the subsection;

(c)if subsection (1)(e) applies to the application—an application under the Plumbing and Drainage Act 2018 for a permit mentioned in the subsection.

(3)For the development assessment process under the Planning Act, the building development application is taken not to have been received by the private certifier until the day the last or only application or request mentioned in subsection (2)(a) to (c) to be decided is decided.

(4)This section does not limit part 4.

(5)In this section—

PDA assessable development see the Economic Development Act 2012, section 33(3).

PDA development application see the Economic Development Act 2012, schedule 1.

referral agency’s response period, for a building development application, means the period stated in the development assessment rules under the Planning Act for complying with section 56(4) of that Act for the application, including any extension of that period under the rules.

relevant preliminary approval see the Planning Act, section 73A(6).

s 83 prev s 83 ins 1998 No. 13 s 28

om R3 (see RA s 37)

pres s 83 ins 2006 No. 36 s 5

amd 2008 No. 34 s 751 sch 2; 2009 No. 36 s 872 sch 2; 2013 No. 30 s 4; 2017 No. 12 s 8; 2016 No. 27 s 75 (amd 2017 No. 12 s 65); 2018 No. 17 s 197 sch 2; 2019 No. 11 s 7

84Approval must not be inconsistent with particular earlier approvals or accepted development

(1)The private certifier must not approve the building development application if—

(a)the application relates to either or both of the following approvals (each an earlier approval)—

(i)a development approval given by the local government;

(ii)a PDA development approval under the Economic Development Act 2012; and

(b)the earlier approval has not lapsed; and

(c)the application is inconsistent with the earlier approval.

Maximum penalty—165 penalty units.

(2)Also, the private certifier must not approve the building development application if—

(a)the application relates to—

(i)development categorised as accepted development under a local planning instrument; or

(ii)PDA-related development that is PDA accepted development under the Economic Development Act 2012; and

(b)the development may affect the position, height or form of the building work; and

(c)the building work is inconsistent with—

(i)for an application in relation to development mentioned in paragraph (a)(i)—the provisions of the local planning instrument that apply to the development; or

(ii)for an application in relation to development mentioned in paragraph (a)(ii)—the provisions of the relevant development instrument for the priority development area that apply to the development.

Maximum penalty—165 penalty units.

(3)For subsection (1), if the application is a change application, the development approval to which the change application relates is not an earlier development approval.

(4)In this section—

relevant development instrument see the Economic Development Act 2012, schedule 1.

s 84 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 76; 2019 No. 11 s 8

85Additional requirement for decision notice

The private certifier must, when issuing the decision notice, include in the notice information about any requirements the building work must comply with to be categorised as accepted development under the Planning Act.

s 85 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 77

86Requirements on approval of application

(1)If the private certifier approves the application, the certifier must—

(a)within 5 business days, give the local government a copy of each of the following documents identified in the way stated in subsection (2)—

(i)the application;

(ii)the approval documents for the application; and

(b)give the local government the approved form for the documents mentioned in paragraph (a); and

(c)pay the fee fixed by the local government under the City of Brisbane Act 2010 or the Local Government Act 2009 for accepting the application and the approval documents.

Maximum penalty—40 penalty units.

(2)For subsection (1)(a), the documents must be identified by—

(a)marking each of them as documents that relate to the application and that have been approved by the private certifier; or

(b)giving them to the local government with another document that—

(i)identifies each of the documents; and

(ii)states their edition number, if any; and

(iii)states that they relate to the application and that they have been approved by the private certifier.

Note—

For public access to particular documents, see the Planning Act, chapter 7, part 3.

s 86 ins 1998 No. 13 s 10

amd 2005 No. 14 s 2 sch

sub 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2009 No. 17 s 331 sch 1; 2013 No. 5 s 94 sch; 2013 No. 30 s 9 sch 1; 2016 No. 27 s 78

87Local government acknowledgement

The local government must, when the private certifier complies with section 86(1), immediately give the certifier a document acknowledging the fee mentioned in subsection 86(1)(c) has been received.

s 87 ins 2006 No. 36 s 5

88Giving approval documents to applicant

(1)This section applies only if the private certifier approves the application.

(2)The private certifier must not give the applicant any approval documents for the application unless the certifier has complied with section 86(1).

Maximum penalty—50 penalty units.

(2A)Subsection (2B) applies if the application is for building work that is—

(a)the demolition of a building used only or mainly for residential purposes; and

(b)assessable development under a local planning instrument.

(2B)The private certifier must not give the applicant any approval documents for the application before the end of 5 business days after the day the private certifier has complied with all requirements under section 86(1).

Maximum penalty—165 penalty units.

(3)Subsection (4) applies if the private certifier—

(a)receives an acknowledgement under section 87 from the local government for the application; and

(b)has not given the approval documents to the applicant.

(4)The private certifier must give the approval documents to the applicant—

(a)if the application is mentioned in subsection (2A) and the private certifier receives the acknowledgement before the end of the period mentioned in subsection (2B)—within 5 business days after the end of that period; or

(b)otherwise—within 5 business days after receiving the acknowledgement.

Note—

See also section 132.

(5)Subsection (6) applies if the private certifier—

(a)gives the approval documents to the applicant; and

(b)has not received an acknowledgement under section 87 from the local government for the application.

(6)The private certifier must, for at least 5 years after giving the approval documents, keep written evidence that the fee mentioned in section 86(1)(c) for the application was paid to the local government.

Maximum penalty for subsection (6)—20 penalty units.

s 88 ins 2006 No. 36 s 5

sub 2009 No. 51 s 11

amd 2017 No. 12 s 8A

ch 4 pt 7 hdg ins 2006 No. 36 s 5

ch 4 pt 7 div 1 hdg ins 2006 No. 36 s 5

89Application of div 1

This division applies to a building development approval for building work to which the demolition/removal completion condition applies.

s 89 ins 2006 No. 36 s 5

90Currency period under the Planning Act, s 85(1) for building development approval

(1)The period, or extended period, under the demolition/removal completion condition of the building development approval is taken to be, for the Planning Act, the currency period for the approval.

(2)The currency period under subsection (1) may not be extended under the Planning Act.

s 90 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

sub 2016 No. 27 s 79

91Lapsing of building development approval

(1)This section applies despite the Planning Act, section 85.

(2)The building development approval lapses if the demolition/removal completion condition has not been complied with by the end of the period under the demolition/removal completion condition.

(3)However, if section 92 applies, the approval does not lapse until the local government decides not to take any action under that section.

s 91 ins 2006 No. 36 s 5

amd 2016 No. 27 s 80

92Local government may complete particular work if condition not complied with

(1)This section applies if the building development approval lapses and the building work is other than demolition.

(2)The local government may take the action it considers necessary to complete the building work.

(3)If the local government takes action under subsection (2), until the local government completes the action—

(a)the approval is taken not to have lapsed; and

(b)the local government is taken to be the person entitled to the benefit of the approval.

(4)The action is taken to have been authorised under the approval.

(5)In taking the action the local government may use all or part of any security given to it for the carrying out of the building work.

s 92 ins 2006 No. 36 s 5

93Releasing security

(1)The local government may at any time, having regard to the progress of the building work, refund or release part of any security given to it for the carrying out of the building work.

(2)The local government must release all or any remaining part of the security if—

(a)the demolition/removal completion condition is complied with; or

(b)the building development approval lapses.

s 93 ins 2006 No. 36 s 5

ch 4 pt 7 div 2 hdg ins 2006 No. 36 s 5

94Application of div 2

(1)This division applies if a condition of a building development approval requires the development, or an aspect of the development, to be completed by a particular time (the condition time).

(2)However, this division does not apply to a building development approval for building work to which the demolition/removal completion condition applies.

Note—

For general provisions about when a development approval lapses, what conditions may be imposed and when a condition of a building development approval may be amended, see the Planning Act, chapter 3, part 3, division 3 and part 5, division 2, subdivision 2 and division 4.

s 94 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 81

95Reminder notice requirement for lapsing

(1)Despite the Planning Act, chapter 3, part 3, division 3 and part 5, division 4 and the condition, the approval only lapses if—

(a)the assessment manager has, under this section, given the owner of the building a reminder notice about the lapsing; and

(b)the time (the lapsing time) chosen by the assessment manager and stated in the reminder notice for the completion of the development or aspect has passed; and

(c)the development or aspect was not completed before the lapsing time.

(2)The lapsing time may be after, but must not be before, the condition time.

(3)The reminder notice must—

(a)be given no more than 6 months, but at least 3 months, before the lapsing time; and

(b)state each of the following—

(i)the condition;

(ii)the lapsing time;

(iii)that the approval will lapse unless the development or aspect is completed by the lapsing time;

(iv)that if, under the Planning Act, the currency period under the Planning Act, section 85(1) for the building development approval is extended past the lapsing time stated in the notice the lapsing time will, under section 96, be taken to be when the extended period ends.

(4)Only 1 reminder notice may be given under this section.

(5)Subject to section 96, the assessment manager can not change the lapsing time.

s 95 ins 2006 No. 36 s 5

amd 2006 No. 59 s 22; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 82

96Extension of lapsing time because of application to extend currency period under Planning Act, s 85(1)

(1)This section applies if—

(a)a reminder notice has been given under section 95; and

(b)before the lapsing time stated in the notice, an extension application is made under the Planning Act to extend the currency period under the Planning Act, section 85(1) for the relevant building development approval.

(2)For section 95—

(a)the lapsing time is taken to have been extended until the request has been decided; and

(b)if the currency period is extended past the lapsing time stated in the notice, the lapsing time is taken to be when the extended period ends.

s 96 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 83

97Restriction on private certifier (class A) extending currency period under Planning Act, s 85(1) more than once

(1)This section applies if the assessment manager is a private certifier (class A) and, under the Planning Act, the currency period under the Planning Act, section 85(1) for the building development approval has already been extended.

(2)The private certifier may further extend the period only if the private certifier has consulted with the local government.

(3)Subsection (2) applies despite the Planning Act, chapter 3, part 3, division 3 and part 5, division 4.

s 97 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 84

ch 5 hdg ins 2006 No. 36 s 5

ch 5 pt 1 hdg ins 2006 No. 36 s 5

98Application of pt 1

This part applies to a building certifier for a building development approval who is a local government building certifier or a private certifier (class A), if the building is—

(a)a single detached class 1a building; or

(b)a class 10 building or structure.

s 98 ins 2006 No. 36 s 5

amd 2012 No. 3 s 132 sch

99Obligation to give owner inspection documentation on final inspection

(1)This section applies if at the inspection of the final stage of building work, the building certifier is satisfied, on an inspection carried out under best industry practice, that the work complies with the building development approval.

Note—

For rights of appeal to a development tribunal, see the Planning Act, section 229.

(2)The building certifier must ensure the owner of the building is, within the required period, given—

(a)a final inspection certificate for the building work; and

(b)a copy of any other inspection documentation for inspection of the building work.

Maximum penalty—40 penalty units.

(3)In this section—

required period means the period that ends 5 business days after—

(a)if the inspection documentation includes any certificates relied on by the building certifier—the certifier accepts the certificates; or

(b)otherwise—all of the building work is inspected.

s 99 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 85

ch 5 pt 2 hdg ins 2006 No. 36 s 5

ch 5 pt 2 div 1 hdg ins 2006 No. 36 s 5

100Application of pt 2

This part applies to a building certifier for a building development approval who is a local government building certifier or a private certifier (class A), unless the building is—

(a)a single detached class 1a building; or

(b)a class 10 building or structure.

s 100 ins 2006 No. 36 s 5

amd 2012 No. 3 s 132 sch

101Meaning of substantially completed

(1)A building has been substantially completed when—

(a)all wet areas are waterproof as required under the building assessment provisions; and

(b)reticulated water is connected to and provided throughout the building; and

(c)all sanitary installations are installed as required under the building assessment provisions; and

(d)either—

(i)the local government has issued a final inspection certificate under the Plumbing and Drainage Act 2018 stating the plumbing or drainage work for the building has been finished under that Act; or

(ii)notice of notifiable work carried out for the building has, on the completion of that work, been given to the commissioner under the Plumbing and Drainage Act 2018, section 83(1); and

(e)all fire safety installations are operational and installed as required under the building assessment provisions; and

(f)all health and safety matters relating to the building comply with the building assessment provisions; and

(g)electricity supply is connected to the building to the extent necessary for it to be used under the BCA classification sought; and

(h)the building is weatherproof as required under the building assessment provisions; and

(i)the building is structurally adequate as required under the building assessment provisions; and

(j)all means of access and egress to the building comply with the building assessment provisions; and

(k)if the relevant development approval includes conditions advised or required by a referral agency and the conditions are about the building work for the building—the conditions have been complied with.

(2)In this section—

building includes alterations to all or part of an existing building.

s 101 ins 2006 No. 36 s 5

amd 2013 No. 5 s 60; 2018 No. 17 s 197 sch 2

ch 5 pt 2 div 2 hdg ins 2006 No. 36 s 5

102Obligation to give certificate of classification on inspection after particular events

(1)This section applies if—

(a)the building certifier has inspected the building and—

(i)decided that it has been substantially completed; or

(ii)given written consent to the occupation of part of the building before all of it has been substantially completed; or

(iii)if the development is alterations to an existing building—decided that they have been substantially completed; and

(b)if there is any fire safety installation installed in the building—the applicant has given the building certifier—

(i)a list of all of the installations; and

(ii)drawings showing their location; and

(c)any requirement under the building assessment provisions or a condition of the building development approval for a referral agency inspection of the building has been complied with or has ceased to apply.

(2)The building certifier must, as soon as practicable, ensure the owner of the building is given a certificate of classification by a building certifier that complies with the requirements under section 103 for a certificate of classification (the certificate requirements).

Maximum penalty—20 penalty units.

(3)If a requirement mentioned in subsection (1)(c) applies, the certificate must not be given until the requirement has been complied with or it has ceased to apply.

Notes—

1For rights of appeal to a development tribunal, see the Planning Act, section 229.

2See also section 132.

s 102 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 86

103Certificate requirements

A certificate of classification must—

(a)be signed in the approved form; and

(b)state the building’s classification, having regard to—

(i)the class of the building stated in the decision notice for the development; and

(ii)the use for which the building was designed, built or adapted; and

(c)briefly describe the type of building or the use for which the building was designed, built or adapted, having regard to—

(i)any particular categories of uses under the classification; and

(ii)restrictions about the use of the building under the BCA or QDC; and

Examples of descriptions for paragraph (c)—

•retail showroom for sale of goods

•manufacturing – plastic goods production, not to be used for hazardous processes under the BCA

•motel – sole occupancy units

Example of restriction about the use of a building under the QDC—

a requirement under the QDC for a floating building to be permanently moored and not used for navigational purposes

(d)if a part of the building is classified differently to another part—state the part to which each classification relates; and

(e)if the development uses a building solution under the BCA or QDC and the solution—

(i)restricts the use or occupation of the building—state the restriction; or

(ii)requires a management procedure relating to systems or procedures—state the management procedure; and

(f)if the development uses alternative solutions—state the materials, systems, methods of building, management procedures, specifications and other things required under the alternative solutions.

Examples of possible alternative solution requirements relating to materials—

•a limitation on the use of finishes with fire hazard properties as defined under the BCA

•a prohibition on storing hazardous materials above a stated height

•a limitation on storing or using stated materials

Examples of possible alternative solution requirements relating to systems or procedures—

•a requirement that all of the building’s final exit doors be unlocked before it is occupied on the start of any day

•a requirement to implement stated evacuation strategies or procedures

•a restriction on the number and the distribution of the building’s occupants

•a requirement that evacuation routes be kept clear of fittings and furnishings or be kept sterile

•a prohibition on carrying out any hazardous processes or storage mentioned in BCA, part E1.5, table E1.5, note 3, paragraph (a)

s 103 ins 2006 No. 36 s 5

amd 2008 No. 13 s 4; 2009 No. 51 s 12; 2011 No. 27 s 230

104Interim certificate if building is remote

(1)This section applies if, because of the remoteness of the building’s location, it is not practicable for the building certifier to inspect the building to decide whether it has been substantially completed.

(2)The building certifier may give the owner of the building an interim certificate of classification for the building pending the carrying out of the inspection.

(3)The interim certificate must—

(a)comply with the certificate requirements; and

(b)state that it is an interim certificate; and

(c)state when it will expire under subsection (5).

(4)The interim certificate may be based on information given to the building certifier by or for the owner of the building.

(5)The interim certificate expires when the earlier of the following happens—

(a)the inspection is carried out and the owner is, under section 102, given a certificate of classification;

(b)the end of 6 months after the interim certificate is given;

(c)its cancellation by the building certifier.

(6)For subsection (5)(c), the interim certificate may be cancelled only on the ground that the basis on which it was issued was incorrect.

s 104 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

105Certificates for a building occupied in stages

(1)This section applies if—

(a)the building is unfinished; and

(b)its owner has been given a certificate of classification for part of it; and

(c)the building certifier has consented to the occupation of a further part of the building.

(2)The building certifier must ensure the owner is given a further certificate of classification for the further part.

(3)The further certificate must comply with the certificate requirements.

Note—

See also section 132.

s 105 ins 2006 No. 36 s 5

ch 5 pt 2 div 3 hdg ins 2006 No. 36 s 5

106Term of certificate of classification

A certificate of classification for the building, other than an interim certificate given under section 104, continues in force until and unless it is replaced under section 113.

s 106 ins 2006 No. 36 s 5

107Building certifier’s obligation to give referral agency certificate and other documents

(1)This section applies if—

(a)under a building development approval a referral agency must be given a notice to inspect a building; and

(b)a building certifier gives a certificate of classification for the building.

(2)The building certifier must, within 10 business days after giving the certificate, give the referral agency—

(a)a copy of the certificate; and

(b)a copy of plans and specifications showing the aspects of the completed building work relevant to the agency’s functions as a referral agency, other than plans or specifications given to the agency under the Planning Act, section 63(3); and

(c)if the agency is QFES—

(i)a list of all fire safety installations installed in the building; and

(ii)drawings showing the location of the fire safety installations.

Maximum penalty—40 penalty units.

s 107 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2014 No. 17 s 184 sch 1pt 4; 2016 No. 27 s 87

108Additional obligations if certificate of classification given by private certifier (class A)

If a private certifier (class A) gives a certificate of classification the certifier must—

(a)give the local government for the building development application a copy within 5 business days; and

(b)keep a copy for at least 5 years.

Maximum penalty—40 penalty units.

s 108 ins 2006 No. 36 s 5

108AOwner’s obligations about access to certificate of classification

(1)This section applies to the owner of a building if—

(a)a certificate of classification has been given for the building; and

(b)the certificate was given on or after 1 July 1997; and

(c)all or part of the building is occupied.

(2)If the building is not a class 1a building, the owner must ensure the certificate is conspicuously displayed as near as practicable to the building’s main entrance.

Maximum penalty—165 penalty units.

Notes—

1See, however, section 284 (Transitional provision for s 108A).

2A certificate of classification is not required to be given for a single detached class 1a building or a class 10 building or structure. See section 100.

(3)An authorised officer may require the owner to produce the certificate for inspection at the building.

(4)The owner must comply with the requirement.

Maximum penalty—165 penalty units.

(5)Subsections (3) and (4) do not apply if the certificate is displayed as mentioned in subsection (2).

(6)For subsections (2) to (5), a reference to the certificate includes a reference to a copy of the certificate.

s 108A ins 2008 No. 13 s 5

amd 2009 No. 17 s 331 sch 1; 2011 No. 27 s 231

ch 5 pt 3 hdg ins 2006 No. 36 s 5

amd 2009 No. 51 s 13

109What is a BCA classification or use change to a building

(1)A BCA classification or use change to a building is—

(a)a change to the use for which the building was designed, built or adapted to be used if—

(i)the change of use alters its BCA classification; or

(ii)the change of use does not alter its BCA classification but the new use requires building work to be carried out for the building to comply with any relevant building assessment provisions applying to the new use; or

Example of BCA classification or use change for paragraph (a)(ii)—

a change in the use of a class 7b warehouse to an occupancy of excessive hazard by storing combustible cartons above 4m in height or more than 1,000m³ of combustible cartons

(b)if, under section 103(e), a certificate of classification for the building states a restriction on its use or occupation—a change in circumstances that affects the way the building complies with the restriction.

Example of BCA classification or use change for paragraph (b)—

a change in the nature or quantity of materials displayed, stored or used in a building that increases the risk to life or safety, requiring building work to be carried out to comply with the BCA

(2)However, a BCA classification or use change does not include a change of use that alters a building’s BCA classification if the alteration happens only because of an amendment to building classifications under the BCA made after—

(a)if there is a certificate of classification for the building—the certificate was given; or

(b)otherwise—the building was first used or occupied.

s 109 ins 2006 No. 36 s 5

amd 2009 No. 51 s 14

110Restriction on making BCA classification or use change

The owner of a building must ensure a BCA classification or use change is not made to the building unless—

(a)a building certifier who is either of the following has approved the change and the building as changed complies with the building assessment provisions—

(i)a local government building certifier;

(ii)a private certifier (class A); or

(b)the change has been approved under section 112.

Maximum penalty—165 penalty units.

s 110 ins 2006 No. 36 s 5

amd 2009 No. 51 s 15

111Provision for applying to local government to obtain approval for BCA classification or use change

(1)The owner of a building may apply to the local government for an approval mentioned in section 110(a).

(2)The application must—

(a)be in the approved form; and

(b)include enough information about the proposed change to allow a local government building certifier to comply with the certificate requirements.

(3)The local government building certifier must decide to grant or refuse the approval.

(4)This section does not prevent a private certifier (class A) engaged by the owner from granting an approval mentioned in section 110(a).

(5)Subject to section 112, a local government building certifier or private certifier (class A) must not approve a BCA classification or use change to a building unless the building as changed complies with the building assessment provisions.

(6)Despite subsections (3) and (4), if the building assessment provisions or a condition of a building development approval provide for a referral agency inspection of the building about the BCA classification or use change, the approval must not be granted until the requirement has been complied with or it has ceased to apply.

s 111 ins 2006 No. 36 s 5

amd 2009 No. 51 s 16

112Concessional approval for particular existing buildings

(1)This section applies only to a building in existence before 14 December 1993.

(2)A building certifier who is either of the following may approve a BCA classification or use change for the building or part of the building without the building or part as changed having to comply with the building assessment provisions, other than the BCA, parts E1 and E4—

(a)a local government building certifier;

(b)a private certifier (class A).

(3)However, the change may be approved only if the building certifier considers that the building or part—

(a)will be structurally sound and capable of withstanding the loadings likely to arise from its use under any new BCA classification or use; and

(b)will reasonably provide for—

(i)the safety of persons in the building if there is a fire, including, for example, means of egress; and

(ii)the prevention and suppression of fire; and

(iii)the prevention of the spread of fire.

(4)Also, if the building contains a special fire service the building certifier must not approve the change unless the certifier has first received from QFES a report on the suitability of the service.

(5)The approval may impose the conditions the building certifier considers necessary about any of the matters mentioned in—

(a)the BCA, part E1 or E4; or

(b)subsection (3).

s 112 ins 2006 No. 36 s 5

amd 2009 No. 51 s 17; 2014 No. 17 s 184 sch 1pt 4

113Obligation of building certifier approving BCA classification or use change to give new certificate of classification

(1)This section applies if a building certifier approves a BCA classification or use change to a building.

(2)The building certifier must ensure the owner of the building is given a certificate of classification for the building that complies with the certificate requirements.

Note—

See also section 132.

(3)The certificate replaces any existing certificate of classification for the building.

s 113 ins 1998 No. 13 s 10

sub 2006 No. 36 s 5

amd 2009 No. 51 s 18

ch 5 pt 4 hdg ins 2006 No. 36 s 5

114No occupation or use of particular buildings without certificate of classification

(1)This section applies if—

(a)the building the subject of a building development approval is not—

(i)a single detached class 1a building; or

(ii)a class 10 building or structure; and

(b)a certificate of classification has not been given for the building.

(2)A person must not occupy or use the building unless the person has a reasonable excuse.

Maximum penalty—165 penalty units.

(3)The owner of the building must, unless the owner has a reasonable excuse, ensure the building is not occupied or used by someone else.

Maximum penalty—165 penalty units.

s 114 ins 2006 No. 36 s 5

114AOwner’s obligation to comply with certificate of classification

(1)This section applies if—

(a)a certificate of classification has been given for a building; and

(b)the certificate states a restriction mentioned in section 103(e) or a requirement of a type mentioned in section 103(f).

(2)The owner of the building must, unless the owner has a reasonable excuse, ensure the requirement or restriction is complied with.

Maximum penalty—165 penalty units.

Note—

This provision is an executive liability provision—see section 257.

s 114A ins 2008 No. 13 s 6

amd 2009 No. 51 s 19; 2013 No. 51 s 229 sch 1

115Compliance with relevant BCA and QDC provisions for occupation and use of building

(1)A person must not, unless the person has a reasonable excuse, occupy or use a building if the building does not comply with the following for the occupation or use—

(a)any relevant BCA provisions for its class of building;

(b)any relevant QDC provisions for the building.

Maximum penalty—165 penalty units.

Note—

This provision is an executive liability provision—see section 257.

(2)Subsection (3) applies if, under a performance requirement for a building under any relevant BCA provisions for its class of building or any relevant QDC provisions for the building, a person must carry out work to maintain the building for occupation and use.

(3)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—165 penalty units.

(4)For subsections (1) and (2), the relevant BCA provisions for the class of building and the relevant QDC provisions for the building are—

(a)if there is a building development approval for the building, the provisions of the BCA for the class and the provisions of the QDC for the building in force—

(i)generally—when the approval was granted; or

(ii)if, under this Act, the provisions as they were in force at an earlier time applied to building assessment work for the approval—at the earlier time; or

(b)otherwise, any provisions of the BCA for the class and the provisions of the QDC for the building in force when building work for the building started.

(5)However, the provisions are subject to—

(a)any variation of them under this Act; and

(b)any local law or local planning instrument that, under this Act, applied to the building work for the building.

(6)To remove any doubt, it is declared that subsections (1) and (2) apply even if a building development approval for the building is contrary to the provisions mentioned in the subsections.

s 115 ins 2006 No. 36 s 5

amd 2009 No. 51 s 20; 2013 No. 5 s 94 sch; 2013 No. 51 s 229 sch 1

116Exception for use of government buildings for emergency

(1)This section applies if—

(a)an emergency situation exists, or is likely to exist, justifying the use of a government building for the situation or likely situation; and

(b)the building is structurally adequate and reasonably suitable for the emergency use; and

(c)the emergency use is, other than for sections 114 and 115, lawful.

Examples of emergency situation—

•a cyclone

•local flooding

•a dangerous situation under the Petroleum and Gas (Production and Safety) Act 2004

(2)For sections 114 and 115, the occupation or use of the government building is a reasonable excuse.

(3)Subsection (2) does not limit what may be a reasonable excuse for section 114 or 115.

(4)In this section—

government building means a building owned or occupied by or for the State, including by State instrumentalities and government owned corporations.

s 116 ins 2006 No. 36 s 5

amd 2009 No. 51 s 21

117Enforcement action required

(1)If there is a contravention of section 114 for a building, the assessment manager must take appropriate enforcement action against its owner.

(2)However, subsection (1) does not apply if the assessment manager is satisfied only building work of a minor nature is needed before a certificate of classification can be given for the building.

(3)If a private certifier (class A) gives the enforcement notice and the owner does not comply with it, the certifier must give the local government notice of that fact.

s 117 ins 2006 No. 36 s 5

118Restriction on use of buildings built on or after 1 April 1976

The owner of a building built after 1 April 1976 must ensure its use complies with its classification as stated in the last certificate of classification for the building.

Maximum penalty—165 penalty units.

s 118 ins 2006 No. 36 s 5

119Further restriction on occupation of building for residential purposes

A person must not use a building, other than a class 1, 2, 3 or 4 building, for residential purposes unless the use is approved by the local government for the building.

Maximum penalty—165 penalty units.

s 119 ins 2006 No. 36 s 5

ch 5 pt 5 hdg ins 2006 No. 36 s 5

120BCA classification as special structure

A building or structure that can not, under the BCA, part A3, be given a BCA classification must be classified as a special structure.

s 120 ins 2006 No. 36 s 5

121Doubtful BCA classifications

(1)This section applies if there is a doubt as to a building’s BCA classification.

(2)The BCA classification must be either of the following classifications a building certifier considers appropriate—

(a)a class of building mentioned in the BCA, part A3;

(b)a special structure.

s 121 ins 2006 No. 36 s 5

122Building certifier’s obligation to give owner inspection documentation if building development approval lapses

If a building development approval lapses, the building certifier must ensure the owner of the building is, within 5 business days after the lapsing, given a copy of the inspection documentation for inspection of the building work.

Maximum penalty—80 penalty units.

Note—

For the lapsing of building development approvals, see chapter 4, part 7 and the Planning Act, chapter 3, part 5, division 4.

s 122 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 88

123Certificate of classification for particular buildings built before 30 April 1998

(1)This section applies to a building if it was built before 30 April 1998.

(2)The owner of the building may apply to the local government for a local government building certifier to give the owner a certificate of classification for the building.

(3)The application must be written and include enough information about the building’s use to allow the local government building certifier to comply with the certificate requirements.

(4)If the application complies with subsection (3), the local government building certifier must ensure the owner is given the certificate of classification that complies with the certificate requirements.

s 123 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

124Building certifier’s obligation to give information notice about particular decisions

(1)This section applies if—

(a)a building certifier to whom part 1 applies decides not to give a final inspection certificate for the relevant building work because the work does not comply with the building development approval; or

(b)a building certifier to whom part 2 applies decides not to give a certificate of classification for the relevant building because the building has not been substantially completed; or

(c)a building certifier decides to refuse an application under this chapter; or

(d)a private certifier (class A) decides to refuse to approve a BCA classification or use change for a client of the certifier; or

(e)under section 112, a building certifier decides to approve a BCA classification or use change with a condition mentioned in section 112(5).

(2)The building certifier must give the applicant or client an information notice about the decision.

(3)For subsection (1), a failure to decide an application within 20 business days is taken to be a decision to refuse the application.

s 124 ins 2006 No. 36 s 5

amd 2009 No. 51 s 22

ch 6 hdg ins 2006 No. 36 s 5

ch 6 pt 1 hdg ins 2006 No. 36 s 5

ch 6 pt 1 div 1 hdg ins 2006 No. 36 s 5

125Person must not perform building certifying functions without licence

A person must not perform a building certifying function unless the person is a building certifier.

Maximum penalty—165 penalty units.

s 125 ins 2006 No. 36 s 5

126Building certifier performing building certifying function must be appropriately licensed

A building certifier must not perform a building certifying function unless the certifier is appropriately licensed to perform the function.

Maximum penalty—165 penalty units.

s 126 ins 2006 No. 36 s 5

127Building certifier’s duty to act in public interest in performing building certifying function

(1)A building certifier who is not a private certifier must, in performing building certifying functions, always act in the public interest.

Notes—

1See also section 132.

2For the corresponding provision for private certifiers, see section 136.

(2)For subsection (1), the occasions when a building certifier does not act in the public interest in performing building certifying functions include, but are not limited to, when the certifier does any of the following—

(a)seeks, accepts or agrees to accept a benefit (whether for the certifier’s benefit or someone else) as a reward or inducement to act other than under this Act;

(b)acts in a way contrary to a function of the certifier under this Act or the Planning Act;

(c)falsely claims to be appropriately licensed to carry out building assessment work of a particular type;

(d)acts outside the scope of the certifier’s powers under this Act or the Planning Act;

(e)contravenes the code of conduct;

(f)acts in a way, in relation to the certifier’s practice, that is grossly negligent or grossly incompetent.

s 127 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 132 sch

128Building certifier must not perform building certifying function if there is a conflict of interest

(1)A building certifier who is not a private certifier must not perform a building certifying function if, in performing the function, the certifier has a conflict of interest.

Note—

See also section 132.

(2)For subsection (1), the occasions when a building certifier has a conflict of interest include, but are not limited to, when the certifier—

(a)is to carry out the building work the subject of the building certifying function; or

(b)is engaged by the owner of the building or the builder to perform a function other than—

(i)a building certifying function; or

(ii)to manage a development application; or

(iii)give regulatory advice about any matter; or

(c)has a direct or indirect pecuniary interest in the building.

(3)In this section—

builder means the person who will be carrying out the building work the subject of the building certifying function.

building work includes—

(a)the preparation of the design of all or part of the building; or

(b)carrying out all or part of building work.

owner means the owner of the building.

the building means the building or structure the subject of building assessment work to be carried out under the building certifying functions.

s 128 ins 2006 No. 36 s 5

ch 6 pt 1 div 2 hdg ins 2006 No. 36 s 5

129Code of conduct

(1)The code of conduct is the document called ‘Code of Conduct for Building Certifiers’ made by the chief executive on 20 October 2003 and tabled in the Legislative Assembly on 14 November 2003, as amended or replaced from time to time under this section.

(2)The chief executive may amend or replace the document mentioned in subsection (1) or any amendment or replacement of it.

(3)However, the amendment or replacement does not take effect until it is approved under a regulation.

(4)A reference to the code of conduct is taken to include any amendment or replacement under subsection (2) that has taken effect.

s 129 ins 2006 No. 36 s 5

130Tabling and inspection of amendment or replacement not part of or attached to regulation

(1)This section applies if—

(a)a regulation made under section 129 approves an amendment or replacement of the code of conduct; and

(b)the amendment or replacement is not part of, or attached to, the regulation.

(2)The Minister must, within 14 sitting days after the regulation is notified, table a copy of the amendment or replacement in the Legislative Assembly.

(3)A failure to comply with subsection (2) does not invalidate or otherwise affect the regulation.

s 130 ins 2006 No. 36 s 5

amd 2013 No. 39 s 110 sch 3pt 2

131Access to code of conduct

The chief executive must make the code of conduct available to the public, as if the code were a document that, under the Planning Act, section 264, the chief executive must keep available for inspection only.

s 131 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2016 No. 27 s 89

ch 6 pt 1 div 3 hdg ins 2006 No. 36 s 5

132Effect of building certifier not complying with Act if no penalty provided

(1)This section applies if—

(a)a building certifier does not comply with a provision of this Act about building or private certifying functions; and

(b)no penalty is stated for the failure to comply.

Examples of provisions mentioned in subsection (1)—

sections 48, 88, 102, 105, 127, 128, 137 and 139

(2)The failure to comply is not an offence.

(3)For the definition of unsatisfactory conduct in schedule 2, the failure is taken to be conduct that is contrary to a function under this Act.

s 132 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

133Additional functions of QBCC for building certification

As well as its functions under the Queensland Building and Construction Commission Act 1991, QBCC has the following functions under this Act—

(a)under part 3, to license individuals as building certifiers and give private certification and development approval endorsements;

(b)to monitor compliance with this chapter by building certifiers;

(c)to carry out audits of building and private certifying functions;

(d)under part 3, to investigate written complaints made to it about alleged unsatisfactory conduct or professional misconduct by building certifiers or former building certifiers;

(e)to take disciplinary action against building certifiers or former building certifiers for unsatisfactory conduct or professional misconduct;

(f)to give the chief executive, at least once each year, a list of building certifiers and a summary of disciplinary action taken against building certifiers;

(g)under part 3, to keep a register of building certifiers.

s 133 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

133ABuilding certifier to have regard to particular guidelines

In performing a function under this Act, including, for example, a building certifying function, a building certifier must have regard to the guidelines made under section 258 that are relevant to performing the function.

s 133A ins 2009 No. 51 s 23

ch 6 pt 2 hdg ins 2006 No. 36 s 5

ch 6 pt 2 div 1 hdg ins 2006 No. 36 s 5

134Restriction on performing functions of private certifier (class A)

A person must not perform a function under section 48 unless the person is a private certifier (class A).

Maximum penalty—165 penalty units.

s 134 ins 2006 No. 36 s 5

135Restriction on private certifier performing functions for building development applications

(1)A private certifier must not perform a private certifying function for a building development application unless the certifier is appropriately licensed to carry out the type of building assessment work required for the application.

Maximum penalty—165 penalty units.

(2)In performing a private certifying function, a private certifier must comply with the building assessment provisions, chapter 5 and this chapter.

Maximum penalty—165 penalty units.

s 135 ins 2006 No. 36 s 5

136Offence for private certifier not to act in public interest in performing private certifying function

(1)A private certifier must, in performing a private certifying function, always act in the public interest.

Maximum penalty—1,665 penalty units.

(2)For subsection (1), the occasions when a private certifier does not act in the public interest in performing a private certifying function include, but are not limited to, when the certifier does any of the following—

(a)seeks, accepts or agrees to accept a benefit (whether for the certifier’s benefit or someone else) as a reward or inducement to act other than under this Act;

(b)acts in a way contrary to a function of the certifier under this Act or the Planning Act;

(c)falsely claims to be appropriately licensed to carry out building assessment work of a particular type;

(d)acts outside the scope of the certifier’s powers under this Act or the Planning Act;

(e)contravenes the code of conduct;

(f)acts in a way, in relation to the certifier’s practice, that is grossly negligent or grossly incompetent.

s 136 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2; 2012 No. 3 s 132 sch

137Private certifier must not perform private certifying function if there is a conflict of interest

(1)A private certifier must not perform a private certifying function if, in performing the function, the certifier has a conflict of interest.

Note—

See also section 132.

(2)For subsection (1), the occasions when a private certifier has a conflict of interest in performing a private certifying function include, but are not limited to, when the certifier—

(a)is to carry out the building work the subject of the building certifying function; or

(b)is engaged by the owner of the building or the builder to perform a function other than—

(i)a building certifying function; or

(ii)to manage a development application; or

(iii)give regulatory advice about any matter; or

(c)has a direct or indirect pecuniary interest in the building.

(3)In this section—

builder means the person who will be carrying out the building work the subject of the private certifying function.

building work includes—

(a)the preparation of the design of all or part of the building; or

(b)carrying out all or part of building work.

owner means the owner of the building.

the building means the building or structure the subject of building assessment work to be carried out under the private certifying function.

s 137 ins 2006 No. 36 s 5

ch 6 pt 2 div 2 hdg ins 2006 No. 36 s 5

138Power to contract to perform private certifying functions

(1)Subject to sections 140 and 141—

(a)a private certifier may enter into a contract to perform private certifying functions; and

(b)a person or public sector entity (a private certifier employer) who employs private certifiers may enter into a contract to provide the services of any of the private certifiers to perform private certifying functions for others.

(2)However, a local government can not enter into a contract mentioned in subsection (1)(b).

(3)Subsection (2) does not prevent a local government from performing functions required of it under section 51.

(4)A contract made under subsection (1) is an engagement of the private certifier or certifiers who, under the contract, are to perform private certifying functions.

(5)The person for whom private certifying functions are agreed to be performed under an engagement of a private certifier is the certifier’s client.

s 138 ins 2006 No. 36 s 5

139General restrictions on private certifier entering into engagement

A private certifier must not enter into an engagement as a private certifier if, under the engagement, the certifier is to perform private certifying functions that, if performed, will, or are likely to, contravene section 136 or 137.

Note—

See also section 132.

s 139 ins 2006 No. 36 s 5

140Restriction on engagement of private certifier (class B)

(1)This section applies to any of the following persons (the service provider) who proposes to enter into an engagement of a private certifier for a building development application—

(a)a private certifier (class B);

(b)a private certifier employer who does not employ any private certifier (class A).

(2)The service provider must not enter into the engagement unless the service provider has disclosed in writing to the proposed client that the private certifier proposed to be engaged can not decide whether to grant or refuse a development approval for the application.

Maximum penalty—20 penalty units.

(3)If the engagement is entered into, the service provider may enter into a written agreement with any of the following persons to decide whether the development approval is to be granted or refused—

(a)a private certifier (class A);

(b)a private certifier employer who employs a private certifier (class A).

s 140 ins 1998 No. 13 s 10

amd 2002 No. 77 s 163

sub 2006 No. 36 s 5

141Requirements for engagement of private certifier

(1)An engagement of a private certifier must be written and state the fees payable by the client to the certifier or, for an engagement of a private certifier employer, the employer.

(2)The mere making of a building development application to a private certifier does not, of itself, constitute an engagement of the certifier by the applicant.

s 141 ins 2006 No. 36 s 5

142Engagement of private certifier (class A) taken to include inspection and certification

If a private certifier (class A) is engaged to assess a building development application, the certifier is taken to have also been engaged to inspect and certify building work authorised by a development approval issued because of the application.

s 142 ins 2006 No. 36 s 5

143Notice of engagement to local government

If a private certifier is engaged by a client to perform private certifying functions for a building or building assessment work, the certifier must, within 5 business days after the engagement starts—

(a)give notice of the engagement to the local government; and

(b)if the owner of the building is not the client or the applicant under the relevant building development application, give the owner notice of—

(i)the private certifier’s name; and

(ii)the details, in an approved form, of the responsibilities of the private certifier performing the work.

Maximum penalty—40 penalty units.

s 143 ins 2006 No. 36 s 5

144Restriction on discontinuing engagement

(1)This section applies if—

(a)a party to an engagement of a private certifier may, under the engagement, discontinue it; and

(b)the party takes whatever action is required under the engagement to discontinue it.

(2)The discontinuance does not take effect until all other parties to the engagement have been given notice in the approved form of the discontinuance.

(3)The private certifier must, within 5 business days after the discontinuance takes effect under subsection (2), give the local government a copy of the notice.

s 144 ins 2006 No. 36 s 5

145Effect of transfer of functions for building development approval to local government or replacement private certifier

(1)This section applies if, for building work authorised by a building development approval, the engagement of a private certifier (the original certifier) is discontinued and—

(a)a replacement private certifier (the replacement) is engaged to inspect and certify the work; or

(b)if a replacement private certifier has not been engaged under paragraph (a)—a local government building certifier for the approval (also the replacement) must, under section 51, inspect and certify the work.

(2)The replacement is not liable for building certifying functions performed by the original certifier.

(3)The replacement may, in performing building certifying functions for the approval, accept and, without further checking, rely and act on any inspection documentation given by or for the original certifier.

s 145 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

146Agreed fee recoverable despite valid refusal of particular actions

(1)This section applies if—

(a)a client engages a private certifier to perform a private certifying function and the certifier has carried out work under the engagement; and

(b)the certifier has refused to do any of the following for the work because the building assessment provisions or an assessment benchmark under the Planning Act has not been complied with, or for another valid reason—

(i)approve a building development application;

(ii)issue a building development approval;

(iii)give a certificate of classification;

(iv)certify building work.

(2)The client must, despite the refusal, pay the private certifier the fee for the work agreed to under the engagement with the certifier.

s 146 ins 2006 No. 36 s 5

amd 2016 No. 27 s 90

ch 6 pt 2 div 3 hdg ins 2006 No. 36 s 5

147Building development applications and approval documents

(1)This section applies if—

(a)a private certifier is engaged for a building development application; and

(b)the building development approval applied for is granted.

(2)The private certifier must, for at least 5 years from the relevant day, keep a copy of the application and the approval documents for the application.

Maximum penalty—20 penalty units.

(3)In this section—

relevant day means—

(a)for a private certifier (class A)—the later of the following days—

(i)the day a final inspection certificate for the building work or a certificate of classification for the building is given;

(ii)if the approval for the building work lapses—the day the approval lapsed; or

(b)for a private certifier (class B)—the day the private certifier gave the compliance certificate for the building work.

s 147 ins 2006 No. 36 s 5

amd 2012 No. 3 s 132 sch

148Obligation to give inspection documentation to owner of building

(1)This section applies if the engagement of a private certifier for building work is discontinued before the giving of a final inspection certificate for the relevant building work or a certificate of classification for the relevant building.

(2)The private certifier must, within the following period, give the owner of the building a copy of the inspection documentation for inspection of the building work—

(a)if the inspection documentation includes a certificate relied on by the private certifier—within 5 business days after the certifier accepts the certificates;

(b)otherwise—within 5 business days after the engagement is discontinued.

Maximum penalty—80 penalty units.

s 148 ins 2006 No. 36 s 5

149Obligation to give inspection documentation and any reminder notice to local government

(1)A private certifier must give the local government a copy of all inspection documentation prepared by or for the certifier for building work within 5 business days after the earlier of the following to happen—

(a)the giving of a final inspection certificate for the building work or a certificate of classification for the relevant building;

(b)the discontinuance of the engagement of the private certifier;

(c)the lapsing of the building development approval.

Maximum penalty—40 penalty units.

(2)However, if the inspection documentation includes certificates relied on by the private certifier, subsection (1) does not apply until 5 business days after the certifier has accepted all the certificates.

(3)If the building development approval lapses, the private certifier must, within 5 business days after the lapsing, also give the local government a copy of the relevant reminder notice given under section 95.

Maximum penalty—40 penalty units.

s 149 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch

150Obligation to keep inspection documentation

A private certifier must keep all inspection documentation for building work for which the certifier is engaged for at least 5 years after the building work is completed.

Maximum penalty—20 penalty units.

s 150 ins 2006 No. 36 s 5

ch 6 pt 3 hdg ins 2006 No. 36 s 5

ch 6 pt 3 div 1 hdg ins 2006 No. 36 s 5

151Levels

QBCC must, in exercising its power under division 2 to issue a licence to a building certifier, issue the licence at 1 of the following levels—

(a)building certifier–level 1;

(b)building certifier–level 2;

(c)building certifier–level 3.

s 151 ins 2006 No. 36 s 5

amd 2012 No. 3 s 10; 2013 No. 38 s 14 sch 1

152Role of building certifier–level 1

A building certifier–level 1 may perform building certifying functions for all classes of buildings and structures.

s 152 ins 2006 No. 36 s 5

amd 2012 No. 3 s 11

153Role of building certifier–level 2

A building certifier–level 2 may only—

(a)without the supervision of a building certifier–level 1—perform building certifying functions on buildings and structures having a rise of no more than 3 storeys and a total floor area no more than 2,000m²; or

(b)under the supervision of a building certifier–level 1—help in assessing and inspecting all classes of buildings and structures.

s 153 ins 2006 No. 36 s 5

amd 2012 No. 3 s 12

154Role of building certifier–level 3

A building certifier–level 3 may only perform building certifying functions on class 1 buildings or class 10 buildings or structures.

s 154 ins 2006 No. 36 s 5

amd 2008 No. 13 s 7

sub 2009 No. 51 s 24; 2012 No. 3 s 13

ch 6 pt 3 div 2 hdg ins 2006 No. 36 s 5

amd 2010 No. 35 s 10 sch

155Who may apply

(1)An individual may apply to QBCC for a licence at the level of building certifier–level 1 or building certifier–level 2 only if the individual holds a current accreditation issued by an accreditation standards body.

(2)An individual may apply to QBCC for a licence at the level of building certifier–level 3 only if—

(a)the individual holds a current accreditation issued by an accreditation standards body; and

(b)either—

(i)the individual holds, or has previously held, a licence at, or equivalent to, that level; or

(ii)both of the following apply—

(A)the individual has at least 1 year’s experience carrying out level 3 work under the supervision of a person licensed as a building certifier–level 1 or a building certifier–level 2;

(B)the period of experience mentioned in subsubparagraph (A) was completed not more than 2 years before the application for the licence is made.

(3)In this section—

level 3 work means work usually carried out by a building certifier–level 3 working as a building certifier–level 3.

s 155 ins 2006 No. 36 s 5

amd 2009 No. 51 s 25; 2012 No. 3 s 14

sub 2013 No. 5 s 61

amd 2013 No. 38 s 14 sch 1

156Requirements for licence application

The application must—

(a)be in the approved form; and

(b)state the level of licence applied for; and

(c)be accompanied by each of the following—

(i)the application fee prescribed under a regulation;

(ii)the licence fee for the licence prescribed under a regulation;

(iii)evidence of the applicant’s identity;

(iv)a copy of the applicant’s certificate of accreditation from an accreditation standards body for the level of licence applied for.

s 156 ins 2006 No. 36 s 5

157Decision on licence application

(1)Subject to section 187, QBCC must consider the application and decide to—

(a)license the applicant at the level of licensing for which the applicant applied; or

(b)refuse to license the applicant.

(2)However, QBCC may decide to license the applicant only if it is satisfied the applicant is a suitable person to hold a licence.

(3)QBCC may impose conditions on the licence.

s 157 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

158Steps after making decision

(1)If QBCC decides to license the applicant, it must issue the licence to the applicant.

(2)If QBCC decides to refuse to license the applicant or to impose conditions on any licence issued to the applicant, it must give the applicant an information notice about the decision.

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.

s 158 ins 2006 No. 36 s 5

amd 2010 No. 21 s 3 sch; 2013 No. 38 s 14 sch 1; 2014 No. 56 s 68 sch 1

159Duration of licence

Subject to section 168, a licence remains in force for 1 year, unless it is earlier cancelled, suspended or surrendered under this Act.

s 159 ins 2006 No. 36 s 5

ch 6 pt 3 div 3 hdg ins 2006 No. 36 s 5

160Endorsements

Subject to section 163, QBCC may endorse on a building certifier’s licence that the certifier may—

(a)perform building certifying functions as a private certifier (a private certification endorsement); and

(b)if the licence has a private certification endorsement—perform the function under section 48 of issuing building development approvals (a development approval endorsement).

s 160 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

161Who may apply for endorsement

(1)A building certifier may apply for a private certification or development approval endorsement at any time.

(2)A person who has applied for a licence may, together with or after the making of the licence application, apply for a private certification or development approval endorsement on the licence if it is issued.

s 161 ins 2006 No. 36 s 5

162Requirements for endorsement application

The application must be in the approved form and accompanied by the fee prescribed under a regulation.

s 162 ins 2006 No. 36 s 5

163Restrictions on making endorsement

(1)A private certification endorsement may be made only if the applicant has the insurance for private certification prescribed under a regulation.

(2)A development approval endorsement may be made only if the applicant has satisfactorily completed the course, prescribed under a regulation, about issuing building development approvals.

s 163 ins 2006 No. 36 s 5

amd 2009 No. 51 s 26; 2012 No. 3 s 15

164Notice of refusal

If QBCC decides to refuse the application, it must give the applicant an information notice about the decision.

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.

s 164 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1; 2014 No. 56 s 68 sch 1

ch 6 pt 3 div 4 hdg ins 2006 No. 36 s 5

165Notice of expiry of licence

(1)QBCC must, at least 20 business days before each building certifier’s licence expires, give the certifier notice of the expiry.

(2)The notice must state—

(a)the day the licence will expire; and

(b)that, if the building certifier wishes to renew the licence, the certifier must, on or before the expiry day—

(i)apply to renew the licence; and

(ii)pay the licence fee prescribed under a regulation for the period of the renewed licence; and

(c)how to apply to renew the licence.

s 165 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

166Automatic expiry on failure to apply for renewal

(1)If a building certifier does not apply to renew the certifier’s licence on or before the day the licence expires, the licence expires at the end of the day.

(2)Subsection (1) applies whether or not QBCC has complied with section 165 in relation to the expiry.

s 166 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1