Minister: Minister for Housing and Public Works, Minister for Digital Technology and Minister for Sport
Agency: Department of Housing and Public Works


Building Act 1975


Queensland Crest
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

Chapter 1 Preliminary

ch 1 hdg ins 2006 No. 36 s 5

Part 1 Introduction

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

Part 2 Interpretation

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

sub 1998 No. 13 s 10; 2006 No. 36 s 5

Division 1 Dictionary

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

4A[Repealed]

s 4A ins 1991 No. 52 s 2.4

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 8

Division 2 Key definitions

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

11A[Repealed]

s 11A om 1987 No. 69 s 5

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

12A[Repealed]

s 12A om 1991 No. 52 s 2.6

12AA[Repealed]

s 12AA om 1991 No. 52 s 2.6

12B[Repealed]

s 12B sub 1984 No. 45 s 10

amd 1991 No. 52 s 2.7; 1993 No. 70 s 804 sch

om 1998 No. 13 s 10

12BA[Repealed]

s 12BA ins 1991 No. 52 s 2.8

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 10

12C[Repealed]

s 12C sub 1984 No. 45 s 11

amd 1991 No. 52 s 2.9

om 1998 No. 13 s 10

12D[Repealed]

s 12D ins 1981 No. 53 s 6

amd 1984 No. 45 s 12; 1991 No. 52 s 2.10; 1993 No. 70 s 804 sch

om 1998 No. 13 s 10

12E[Repealed]

s 12E orig s 12E ins 1981 No. 53 s 6

amd 1984 No. 45 s 13; 1991 No. 52 s 2.11; 1993 No. 70 s 804 sch

om 1998 No. 13 s 10

prev s 12E ins 2002 No. 7 s 4

om 2006 No. 36 s 11

12F[Repealed]

s 12F orig s 12F ins 1981 No. 53 s 6

amd 1984 No. 45 s 14; 1991 No. 52 s 2.12

om 1998 No. 13 s 10

prev s 12F ins 2002 No. 7 s 4

om 2006 No. 36 s 11

12G[Repealed]

s 12G ins 1981 No. 53 s 6

amd 1991 No. 52 s 2.13

om 1998 No. 13 s 10

12K[Repealed]

s 12K ins 2002 No. 7 s 4

amd 2005 No. 14 s 2 sch

om 2006 No. 36 s 16

12Q[Repealed]

s 12Q ins 2002 No. 7 s 4

amd 2006 No. 11 s 84

om 2006 No. 36 s 22

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

14A[Repealed]

s 14A om 1991 No. 52 s 2.15

14B[Repealed]

s 14B om 1991 No. 52 s 2.15

14C[Repealed]

s 14C om 1991 No. 52 s 2.15

14D[Repealed]

s 14D om 1991 No. 52 s 2.15

14E[Repealed]

s 14E om 1991 No. 52 s 2.15

14F[Repealed]

s 14F om 1991 No. 52 s 2.15

14G[Repealed]

s 14G om 1991 No. 52 s 2.15

Division 3 Other references

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

19A[Repealed]

s 19A ins 1991 No. 52 s 2.21

om 1998 No. 13 s 11

19B[Repealed]

s 19B ins 1991 No. 52 s 2.21

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

19C[Repealed]

s 19C ins 1991 No. 52 s 2.22

om 1998 No. 13 s 11

19D[Repealed]

s 19D ins 1991 No. 52 s 2.22

om 1998 No. 13 s 11

19E[Repealed]

s 19E ins 1991 No. 52 s 2.22

om 1998 No. 13 s 11

Chapter 2 When building work is assessable development or accepted development

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

20A[Repealed]

s 20A om 1991 No. 52 s 2.24

20B[Repealed]

s 20B om 1991 No. 52 s 2.24

20C[Repealed]

s 20C om 1991 No. 52 s 2.24

20D[Repealed]

s 20D om 1991 No. 52 s 2.24

20E[Repealed]

s 20E om 1991 No. 52 s 2.24

20F[Repealed]

s 20F om 1991 No. 52 s 2.24

20G[Repealed]

s 20G om 1991 No. 52 s 2.24

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

22[Repealed]

s 22 orig s 22 amd 1978 No. 47 s 7; 1987 No. 69 s 6; 1991 No. 52 s 2.25; 1995 No. 57 s 4 sch 2

om 1998 No. 13 s 11

prev s 22 ins 2006 No. 36 s 5

amd 2009 No. 36 s 872 sch 2

om 2016 No. 27 s 47

Chapter 3 Additional requirements for building development applications

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

Part 1 Requirements for supporting documents

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, 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—
(i)the application relates to development categorised as accepted development under a planning scheme; and
(ii)the development may affect the position, height or form of the building work;

how the building work is consistent with requirements for the development under the planning scheme;

(d)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)

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

Part 2 Other requirements

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

28A[Repealed]

s 28A orig s 28A ins 1978 No. 47 s 9

om 1998 No. 13 s 11

prev s 28A ins 2002 No. 77 s 169

om 2006 No. 36 s 38

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

29A[Repealed]

s 29A ins 2002 No. 77 s 172

om 2006 No. 36 s 38

Chapter 4 Building assessment provisions and assessing building development applications

ch 4 hdg ins 2006 No. 36 s 5

sub 2016 No. 27 s 50

Part 1 Laws and other documents applying to building work

ch 4 pt 1 hdg ins 2006 No. 36 s 5

amd 2016 No. 27 s 51

Division 1 General provisions about the laws and documents applying to building work

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

30A[Repealed]

s 30A orig s 30A ins 1978 No. 47 s 10

amd 1984 No. 45 s 18; 1991 No. 52 s 2.32; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

prev s 30A ins 2002 No. 77 s 173

om 2006 No. 36 s 38

30B[Repealed]

s 30B orig s 30B ins 1978 No. 47 s 10

sub 1981 No. 53 s 7

amd 1984 No. 45 s 19; 1984 No. 114 s 11; 1987 No. 69 s 7; 1991 No. 52 s 2.33; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

prev s 30B ins 2002 No. 77 s 173 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch

om 2006 No. 36 s 38

30BA[Repealed]

s 30BA ins 1984 No. 114 s 12

sub 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

30BB[Repealed]

s 30BB ins 1984 No. 114 s 12

amd 1991 No. 52 s 2.34; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

30BC[Repealed]

s 30BC ins 1984 No. 114 s 12

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

30BD[Repealed]

s 30BD ins 1984 No. 114 s 12

amd 1991 No. 52 s 2.35

om 1998 No. 13 s 11

30BE[Repealed]

s 30BE ins 1984 No. 114 s 12

om 1993 No. 70 s 804 sch

30BF[Repealed]

s 30BF ins 1984 No. 114 s 12

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

30BG[Repealed]

s 30BG ins 1987 No. 69 s 8

amd 1991 No. 52 s 2.36; amd 1993 No. 70 s 804 sch; 1995 No. 57 s 4 sch 2

om 1998 No. 13 s 11

30BH[Repealed]

s 30BH ins 1991 No. 52 s 2.37

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

30C[Repealed]

s 30C orig s 30C ins 1981 No. 53 s 8

amd 1984 No. 45 s 20; 1984 No. 114 s 13; 1991 No. 52 s 2.38; 1993 No. 70 s 804 sch

om 1998 No. 13 s 11

prev s 30C ins 2002 No. 77 s 173

om 2006 No. 36 s 38

30D[Repealed]

s 30D ins 1981 No. 53 s 9

amd 1984 No. 45 s 21; 193 No. 70 s 804 sch

om 1998 No. 13 s 11

30E[Repealed]

s 30E ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30F[Repealed]

s 30F ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30I[Repealed]

s 30I ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30J[Repealed]

s 30J ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30K[Repealed]

s 30K ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30L[Repealed]

s 30L ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30M[Repealed]

s 30M ins 1993 No. 70 s 804 sch

amd 1995 No. 50 s 3 sch

om 1998 No. 13 s 12

30O[Repealed]

s 30O ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30P[Repealed]

s 30P ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30Q[Repealed]

s 30Q ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30R[Repealed]

s 30R ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30T[Repealed]

s 30T ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30Y[Repealed]

s 30Y ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

30Z[Repealed]

s 30Z ins 1993 No. 70 s 804 sch

om 1998 No. 13 s 12

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

32A[Repealed]

s 32A ins 2002 No. 77 s 175

om 2006 No. 36 s 38

32B[Repealed]

s 32B ins 2002 No. 77 s 175

om 2006 No. 36 s 38

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

34[Repealed]

s 34 orig s 34 amd 1991 No. 52 s 2.42; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

prev s 34 ins 2006 No. 36 s 5

om 2016 No. 27 s 56

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

35A[Repealed]

s 35A ins 1981 No. 53 s 13

amd 1991 No. 52 s 2.44

om 1998 No. 13 s 13

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

36AA[Repealed]

s 36AA ins 1991 No. 52 s 2.47

om 1998 No. 13 s 13

36A[Repealed]

s 36A ins 1984 No. 45 s 26

amd 1991 No. 52 s 2.46

om 1998 No. 13 s 13

36B[Repealed]

s 36B ins 1984 No. 45 s 26

amd 1991 No. 52 s 2.48; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36C[Repealed]

s 36C sub 1991 No. 52 s 2.49

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36D[Repealed]

s 36D ins 1984 No. 45 s 26

amd 1991 No. 52 s 2.50; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36E[Repealed]

s 36E om 1991 No. 52 s 2.51

36F[Repealed]

s 36F ins 1987 No. 69 s 12

amd 1991 No. 52 s 2.52

om 1998 No. 13 s 13

36G[Repealed]

s 36G ins 1987 No. 69 s 12

amd 1991 No. 52 s 2.53; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36H[Repealed]

s 36H ins 1987 No. 69 s 12

om 1998 No. 13 s 13

36I[Repealed]

s 36I ins 1987 No. 69 s 12

amd 1991 No. 52 s 2.54; 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36J[Repealed]

s 36J ins 1991 No. 52 s 2.55

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36K[Repealed]

s 36K ins 1991 No. 52 s 2.55

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36L[Repealed]

s 36L ins 1991 No. 52 s 2.55

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36M[Repealed]

s 36M ins 1991 No. 52 s 2.56

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36N[Repealed]

s 36N ins 1991 No. 52 s 2.56

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 13

36O[Repealed]

s 36O ins 1991 No. 52 s 2.56

om 1998 No. 13 s 13

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

Division 2 Variation of how particular building assessment provisions apply

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

Part 2 Persons responsible for assessing building development applications

ch 4 pt 2 hdg ins 2006 No. 36 s 5

Division 1 Who carries out building assessment work

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

46A[Repealed]

s 46A orig s 46A om 1981 No. 53 s 16

prev s 46A ins 2001 No. 100 s 88

om 2003 No. 64 s 113

46B[Repealed]

s 46B om 1981 No. 53 s 16

46C[Repealed]

s 46C om 1981 No. 53 s 16

Division 2 Functions of private certifiers

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

Division 3 Functions of local government

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

52A[Repealed]

s 52A ins 1991 No. 52 s 2.70

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 15

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

Division 4 Power of particular replacement assessment managers to decide status of development assessment process under Planning Act

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

Part 3 Discretionary matters in the assessment of building development applications

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

Part 4 Requirements for and restrictions on assessing or approving building development applications

ch 4 pt 4 hdg ins 2006 No. 36 s 5

62[Repealed]

s 62 orig s 62 amd 1984 No. 45 s 33

om 1998 No. 13 s 19

prev s 62 ins 2006 No. 36 s 5

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

om 2016 No. 27 s 71

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

63B[Repealed]

s 63B ins 1997 No. 28 s 295 sch 3

om 1998 No. 13 s 19

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

64C[Repealed]

s 64C ins 1991 No. 52 s 2.80

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 20

64D[Repealed]

s 64D ins 1991 No. 52 s 2.80

om 1998 No. 13 s 20

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

66A[Repealed]

s 66A ins 1991 No. 52 s 2.81

om 1998 No. 13 s 23

66B[Repealed]

s 66B ins 1991 No. 52 s 2.81

amd 1993 No. 70 s 804 sch

om 1998 No. 13 s 23

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

Part 5 Conditions of building development approvals

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

Division 1 Conditions taken to be imposed

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

Division 2 Conditions that may be imposed

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

Part 6 Regulation of building assessment work and the issuing of building development approvals by private certifiers

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, all necessary 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 involves building work, a material change of use, reconfiguring a lot and operational work 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 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.
(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 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;
(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), (b) or (c) to be decided is decided.
(4)This section does not limit part 4.
(5)In this section—
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

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

(1)The private certifier must not approve the application if—
(a)the building development application relates to an earlier development approval granted by the local government; 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 application if—
(a)the building development application relates to accepted development under the Planning Act; and
(b)the development may affect the position, height or form of building work; and
(c)a local planning instrument categorised the development as accepted development; and
(d)the application is inconsistent with the local planning instrument.

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.

s 84 ins 2006 No. 36 s 5

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

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

Part 7 Provisions about lapsing of building development approvals and related matters

ch 4 pt 7 hdg ins 2006 No. 36 s 5

Division 1 Building work for demolition or removal

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

Division 2 Other building work

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

Chapter 5 Inspections, building classification and the use of buildings

ch 5 hdg ins 2006 No. 36 s 5

Part 1 Giving of inspection documentation for single detached class 1a buildings and class 10 buildings or structures

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

Part 2 Certificates of classification for other buildings

ch 5 pt 2 hdg ins 2006 No. 36 s 5

Division 1 Preliminary

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

Division 2 Giving of certificate

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

Division 3 Miscellaneous provisions about certificates of classification

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

Part 3 Changes to BCA classification or use within classification

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

Part 4 Restrictions on the use of buildings

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

Part 5 Miscellaneous provisions

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

Chapter 6 Provisions about private certifiers and other building certifiers

ch 6 hdg ins 2006 No. 36 s 5

Part 1 General provisions about building certifiers

ch 6 pt 1 hdg ins 2006 No. 36 s 5

Division 1 Regulation of the performance of building certifying functions

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

Division 2 Code of conduct

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

Division 3 Miscellaneous provisions

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

Part 2 Private certifiers

ch 6 pt 2 hdg ins 2006 No. 36 s 5

Division 1 Regulation of private certifying functions

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

Division 2 Engagement of private certifiers

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

Division 3 Record-keeping and related requirements

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

Part 3 Licensing of building certifiers

ch 6 pt 3 hdg ins 2006 No. 36 s 5

Division 1 Licence levels and their roles

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

Division 2 Applying for and obtaining licence

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

Division 3 Private certification endorsements

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

Division 4 Renewals

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

167Applying for renewal

(1)A building certifier may apply to QBCC to renew the certifier’s licence.
(2)However, the application can not be made—
(a)after the licence expires; or
(b)if the building certifier is, under section 155, not qualified to apply for a licence.
(3)The application must be in the approved form and accompanied by—
(a)the licence fee prescribed under a regulation; and
(b)evidence of the applicant’s identity; and
(c)evidence that the applicant continues to hold accreditation from an accreditation standards body for the level of licence; and
(d)if the applicant’s licence has private certification endorsement and the applicant is applying to continue the endorsement—evidence that the applicant has the insurance for private certification prescribed under a regulation.

s 167 amd 1984 No. 45 s 15

sub 1998 No. 13 s 10; 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch; 2013 No. 38 s 14 sch 1

168Existing licence taken to be in force while application is being considered

(1)If an application is made under section 167 to renew a licence, the licence is taken to continue in force from the day it would, apart from this section, have expired until the application is decided.
(2)Subsection (1) does not apply if the licence is earlier cancelled, suspended or surrendered under this Act.

s 168 ins 2006 No. 36 s 5

169Decision on renewal application

(1)Subject to section 187, QBCC must consider the application and decide to—
(a)renew the licence at the level of licensing for which the applicant applied; or
(b)refuse to renew the licence.
(2)However, QBCC may decide to renew the licence only if it is satisfied the applicant is still a suitable person to hold a licence.

s 169 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

170Steps after making decision

(1)If QBCC decides to renew the licence, it must issue the renewed licence to the applicant.
(2)If QBCC refuses to renew the licence, 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 170 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1; 2014 No. 56 s 68 sch 1

Division 5 Cancellation and suspension of, and other changes to, licences and cancellation of endorsements

ch 6 pt 3 div 5 hdg ins 2006 No. 36 s 5

Subdivision 1 QBCC’s powers

ch 6 pt 3 div 5 sdiv 1 hdg ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

171Power to amend, cancel or suspend licence

(1)QBCC may, on the ground that a building certifier is not a suitable person to hold a licence, do either of the following in relation to the certifier’s licence—
(a)amend it to impose or remove a condition;
(b)cancel or suspend it.
(2)The power under subsection (1) may be exercised at any time after QBCC has complied with subdivision 2.
(3)To remove any doubt, it is declared that QBCC can not, under subsection (1), amend, cancel or suspend the certifier’s licence if QBCC considers the building certifier is not a suitable person to hold a licence because of unsatisfactory conduct or professional misconduct.

Note—

For conduct mentioned in subsection (3), see part 4 (Complaints, investigations and disciplinary proceedings relating to building certifiers).

s 171 ins 2006 No. 36 s 5

amd 2009 No. 24 s 1271; 2013 No. 38 s 14 sch 1

172Power to change licence level

(1)If QBCC is satisfied a building certifier no longer holds accreditation from an accreditation standards body for the level of the certifier’s licence, it may do either of the following in relation to the certifier’s licence—
(a)amend it to impose or remove a condition or change the certifier’s level of licensing;
(b)cancel or suspend it.
(2)The power under subsection (1) may be exercised at any time after QBCC has complied with subdivision 2.

s 172 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch; 2013 No. 38 s 14 sch 1

173Cancellation of endorsement of licence to act as private certifier

If QBCC is satisfied a private certifier does not have the insurance for private certification prescribed under a regulation, it must—
(a)give the certifier a show cause notice that it proposes to cancel the endorsement; and
(b)subject to any submissions made under subdivision 2—amend the licence by cancelling the endorsement.

s 173 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

174Notice of particular events to interstate licensing authorities and other entities

(1)This section applies if any of the following (the event) happens in relation to a building certifier’s licence—
(a)it is cancelled or suspended;
(b)it is amended under this subdivision.
(2)As soon as practicable after the happening of the event, QBCC must give notice of the event to the authority in any other State or New Zealand of which it is aware the building certifier has a licence (however called) that is the same, or substantially the same, as a licence under this part.
(3)Also, QBCC may give notice of the event to all or any of the following—
(a)each accreditation standards body;
(b)any employer of or person who has appointed the building certifier to perform building or private certifying functions;
(c)another entity QBCC reasonably believes needs to know about the event.
(4)A notice under this section may include the information QBCC considers appropriate in the circumstances.

s 174 ins 2006 No. 36 s 5

amd 2008 No. 13 s 2 sch; 2010 No. 21 s 7; 2013 No. 38 s 14 sch 1; 2014 No. 56 s 26

Subdivision 2 Show cause notice procedure

ch 6 pt 3 div 5 sdiv 2 hdg ins 2006 No. 36 s 5

175Show cause notice

(1)If QBCC believes grounds exist to act under subdivision 1, it must, before taking the action, give the relevant building certifier a notice (a show cause notice).
(2)The show cause notice must state each of the following—
(a)the proposed action;
(b)the grounds for taking the proposed action;
(c)the facts and circumstances forming the basis for the grounds;
(d)if the proposed action is to amend the licence—the proposed amendment;
(e)if the proposed action is to suspend the licence—the proposed suspension period;
(f)that the building certifier may, within a stated period (the show cause period), make submissions about why the proposed action should not be taken.
(3)The show cause period must end at least 20 business days after the building certifier is given the show cause notice.
(4)The proposed suspension period may be fixed by reference to the happening of a stated event.

Example—

If the ground for taking the proposed action is a failure to carry out a statutory obligation relating to a building or private certifying functions, the proposed suspension period could be until the obligation is complied with.

s 175 ins 2006 No. 36 s 5

amd 2013 No. 5 s 94 sch; 2013 No. 38 s 14 sch 1

176Submissions about show cause notice

(1)The building certifier may, within the show cause period, make submissions to QBCC about the show cause notice.
(2)QBCC must consider the submissions.

s 176 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

177Decision on proposed action

(1)After considering the submissions for the show cause notice, QBCC must decide whether to take the proposed action.
(2)If the proposed action is to cancel the building certifier’s licence, QBCC may instead decide to suspend it for a stated period.

s 177 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

178Notice and taking effect of decision

(1)If QBCC decides not to take the proposed action, it must give the building certifier notice of the decision.
(2)If QBCC decides to take the proposed action, it must give the building certifier an information notice about the decision.

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.
(3)A decision to take the proposed action takes effect when the information notice is given.

s 178 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

Division 6 General provisions about licences

ch 6 pt 3 div 6 hdg ins 2006 No. 36 s 5

179Register of building certifiers

(1)QBCC must keep a register of building certifiers.
(2)The register may be kept in the way QBCC considers appropriate, including, for example, in an electronic form.
(3)The register must contain the following particulars for each building certifier—
(a)their name, licence number and business contact details;
(b)the following information about their licence—
(i)its day of issue and expiry;
(ii)any endorsements on the licence;
(iii)its level;
(iv)if conditions are imposed on the licence—the conditions;
(c)details of their eligibility for licensing as a building certifier;
(d)if, under section 204(1), QBCC decides the building certifier has engaged in unsatisfactory conduct—
(i)details of the decision; and
(ii)if the decision was that the building certifier has engaged in unsatisfactory conduct—details of the further decision required under section 204(4);
(e)if the tribunal makes an order about the building certifier—details of the order, other than any details identified in the order as details not to be included in the register.
(4)Particulars recorded under subsection (3)(d) must be removed from the register 5 years after they were recorded in the register.
(5)Particulars recorded under subsection (3)(e) must be removed from the register at the end of the period during which the order states the details are to be included in the register.

s 179 ins 2006 No. 36 s 5

amd 2009 No. 24 s 1272; 2013 No. 38 s 14 sch 1

180Access to register

QBCC must—
(a)make the register available for inspection by anyone while its office is open for business; and
(b)give, on payment of any reasonable fee requested by it, anyone who asks for it a copy of all or part of the information held in the register; and
(c)place, on its website, a link to the register.

s 180 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

181Surrendering licence

(1)A building certifier may surrender the certifier’s licence by notice to QBCC.
(2)The surrender takes effect—
(a)on the day the notice is given to QBCC; or
(b)if a later day of effect is stated in the notice—on the later day.
(3)The building certifier must, unless the certifier has a reasonable excuse, return the licence to QBCC within 10 business days after the day the surrender takes effect.

Maximum penalty for subsection (3)—10 penalty units.

s 181 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

182Obtaining replacement licence

(1)A building certifier may apply to QBCC in the approved form for the replacement of the certifier’s licence if it has been damaged, destroyed, lost or stolen.
(2)If QBCC is satisfied the licence has been damaged, destroyed, lost or stolen, QBCC must—
(a)replace it with another licence; and
(b)give the applicant the replacement licence.

s 182 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

183Obligation of building certifier to give notice of change in particular circumstances

(1)This section applies if a building certifier—
(a)changes address; or
(b)holds, in another State or New Zealand, a licence (however called) that is the same, or substantially the same, as a licence under this part and the licence is cancelled or suspended; or
(c)is, after the issuing of the building certifier’s licence under this part, convicted of a relevant offence.
(2)The building certifier must give QBCC notice of the change, cancellation, suspension or conviction within 20 business days after it happened.

Maximum penalty—

(a)if the offence relates to subsection (1)(a)—1 penalty unit; or
(b)if the offence relates to subsection (1)(b) or (c)—40 penalty units.

s 183 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

Division 7 Miscellaneous provisions

ch 6 pt 3 div 7 hdg ins 2006 No. 36 s 5

184Accreditation standards bodies

(1)An accreditation standards body is—
(a)AIBS; and
(b)any other entity prescribed under a regulation to be an accreditation standards body.
(2)An entity may be prescribed under subsection (1)(b) only if it has identifiable competence and expertise in issuing accreditation to building certifiers.

s 184 ins 2006 No. 36 s 5

185Function of accreditation standards body

(1)The function of an accreditation standards body is to issue accreditation to individuals proposing to apply to be building certifiers.
(2)For subsection (1), an accreditation standards body must—
(a)for each level of licensing as a building certifier, set educational and experiential standards approved by the chief executive; and
(b)if the standards are within the scope of the national accreditation framework for building certifiers—ensure the standards comply with the framework; and
(c)establish a professional development scheme approved by the chief executive.
(3)In this section—
national accreditation framework means the framework, as amended from time to time, approved by the body known as the Australian Building Codes Board.

s 185 ins 2006 No. 36 s 5

amd 2008 No. 13 s 8; 2009 No. 51 s 27

186Criteria for deciding suitability of applicants and licensees

(1)This section applies if, under this part, QBCC is considering whether an applicant for, or for the renewal of, a licence or a licence holder is a suitable person to hold a licence.
(2)QBCC must consider each of the following—
(a)whether the applicant or holder has been convicted of a relevant offence;
(b)whether the applicant or holder has previously been refused a licence, or has had a licence suspended or cancelled, under this Act or another relevant Act;
(c)whether the applicant or holder has, under another relevant Act, been disqualified from holding a licence under that Act;
(d)dealings in which the applicant or holder has been involved and the standard of honesty and integrity demonstrated in the dealings;
(e)any failure by the applicant or holder to carry out statutory obligations relating to building or private certifying functions, and the reasons for the failure;
(f)whether the applicant or holder holds a current accreditation issued by an accreditation standards body;
(g)all other relevant circumstances.

s 186 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

187QBCC may seek information from applicants about suitability

(1)This section applies to an application for, or to renew, a licence.
(2)QBCC may, by notice to the applicant, require the applicant to give it, within a stated reasonable period, documents or information QBCC reasonably considers is needed to establish that the applicant is a suitable person to hold a licence.
(3)The applicant is taken to have withdrawn the application if, within the stated period, the applicant does not comply with the requirement.

s 187 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

188Refund of particular licence fees accompanying applications

If an application for, or to renew, a licence is refused or withdrawn, QBCC must refund the applicant the licence fee that accompanied the application.

s 188 ins 2006 No. 36 s 5

amd 2013 No. 38 s 14 sch 1

189Reviews by tribunal of decisions under pt 3

(1)This section applies if a person is given, or is entitled to be given, an information notice about a decision of QBCC under this part.
(2)The person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

s 189 ins 2006 No. 36 s 5

amd 2009 No. 24 s 1273 (amd 2009 No. 48 s 104); 2013 No. 38 s 14 sch 1

Part 4 Complaints, investigations and disciplinary proceedings relating to building certifiers

ch 6 pt 4 hdg (prev pt 5A hdg (orig div 4 hdg)) ins 1998 No. 13 s 19

sub 2002 No. 77 s 176

reloc and renum 2006 No. 36 s 39

Division 1 Complaints

ch 6 pt 4 div 1 hdg ins 2002 No. 77 s 176

190Making a complaint against a building certifier

(1)A person may make a complaint to QBCC about a building certifier if the person believes the building certifier has engaged in unsatisfactory conduct or professional misconduct.
(2)A complaint must—
(a)be in writing; and
(b)contain particulars of the allegations on which it is founded; and
(c)be verified by statutory declaration.
(3)QBCC may require the complainant to give further particulars of the complaint.
(4)QBCC may dismiss any complaint without taking further action under this division if the further particulars are not given or if the complaint or the further particulars are not verified by statutory declaration.
(5)QBCC must not disclose to another person unproved complaints against a building certifier.

s 190 ins 1998 No. 13 s 19

amd 2002 No. 77 s 177; 2013 No. 38 s 14 sch 1

191Building certifier must be advised of complaint

(1)After receiving the complaint, QBCC must, by notice—
(a)inform the building certifier of the nature of the complaint; and
(b)invite the building certifier to make, within the time stated in the notice, representations to QBCC about the complaint.
(2)The time stated in the notice must be at least 5 business days after the notice is given.
(3)If QBCC makes a decision about the complaint under section 204, QBCC must have regard to the representations when making the decision.

s 191 ins 1998 No. 13 s 19

amd 2002 No. 77 s 178; 2006 No. 36 s 40; 2013 No. 38 s 14 sch 1

192QBCC may recommend mediation to resolve complaint

(1)If QBCC considers a complaint about a building certifier is capable of resolution by mediation, QBCC must give the complainant and the building certifier a notice stating—
(a)that QBCC considers the complaint is capable of resolution by mediation; and
(b)attendance at, and participation in, mediation is voluntary; and
(c)that either party may withdraw from the mediation at any time; and
(d)when the mediation ends; and
(e)the effect of giving QBCC a certificate about the mediation.
(2)QBCC may recommend the complainant and the building certifier enter into a process of mediation to resolve the complaint as soon as practicable and before QBCC investigates the complaint.

s 192 ins 2002 No. 77 s 179

amd 2006 No. 36 s 41; 2013 No. 38 s 14 sch 1

193Mediation process

(1)If, at mediation, the parties agree to a resolution to the complaint, the agreement must be signed by, or for, each party and by the mediator (the mediation agreement).
(2)Mediation ends on the earlier of the following—
(a)if a party withdraws from mediation—the day the party withdraws;
(b)if the parties agree the mediation has ended—the day the parties agree mediation has ended;
(c)if there is a mediation agreement—the day the agreement is signed;
(d)unless QBCC extends the period and advises parties in writing of the extension—20 business days after notice is given under section 192.
(3)As soon as practicable after mediation has ended, the mediator must give QBCC a certificate about the mediation in the approved form.
(4)If the parties sign an agreement, the complaint is taken to be withdrawn.

s 193 ins 2002 No. 77 s 179

amd 2006 No. 36 s 42; 2013 No. 38 s 14 sch 1

194Investigation of complaint

(1)This section applies if—
(a)QBCC does not recommend the complainant and the building certifier enter into mediation; or
(b)QBCC recommends the complainant and the building certifier enter into mediation and the complaint is not resolved when the mediation ends.
(2)QBCC must conduct an investigation into the complaint as soon as practicable.
(3)QBCC may deal with 1 or more complaints about a building certifier in the same investigation.
(4)If during an investigation QBCC is satisfied there is a matter about which another complaint could have been made against the building certifier, QBCC may deal with the matter in its investigation as if a complaint had been made about the matter.

s 194 ins 1998 No. 13 s 19

sub 2002 No. 77 s 180

amd 2013 No. 38 s 14 sch 1

Division 2 Investigations

ch 6 pt 4 div 2 hdg (prev div 5 hdg) ins 1998 No. 13 s 19

sub 2002 No. 77 s 181

195QBCC may require documents to be produced

(1)For investigating a complaint or conducting an audit, QBCC may, by notice given to a building certifier, require the building certifier to produce a document to QBCC, or a person authorised by QBCC (an auditor).
(2)The notice may also state—
(a)a time and place by which the document must be produced; or
(b)that the document must be verified by statutory declaration.
(3)The time for compliance stated in the notice must be a reasonable time.
(4)The building certifier must comply with the notice, unless the building certifier has a reasonable excuse.

Maximum penalty for subsection (4)—50 penalty units.

s 195 ins 1998 No. 13 s 19

amd 2002 No. 77 s 182; 2006 No. 36 s 43; 2013 No. 38 s 14 sch 1

196Issue of identity card to auditor

(1)QBCC must issue an identity card to each auditor.
(2)The identity card must—
(a)contain a recent photo of the auditor; and
(b)contain a copy of the auditor’s signature; and
(c)identify the person as an approved auditor under this Act; and
(d)state an expiry date for the card.
(3)This section does not prevent the issue of a single identity card to a person for this Act and other purposes.

s 196 ins 2006 No. 36 s 44

amd 2013 No. 38 s 14 sch 1

197Production or display of identity card

(1)In exercising a power under this Act in relation to another person, an auditor must—
(a)produce his or her identity card for the person’s inspection before exercising the power; or
(b)have the identity card displayed so it is clearly visible to the person when exercising the power.
(2)However, if it is not practicable to comply with subsection (1), the auditor must produce the identity card for the person’s inspection at the first reasonable opportunity.

s 197 ins 2006 No. 36 s 44

198Inspection of documents

An auditor may inspect any document produced to QBCC and copy it or any part of it.

s 198 ins 1998 No. 13 s 19

sub 2002 No. 77 s 183

amd 2013 No. 38 s 14 sch 1

199Power to enter and inspect building site relating to complaint or audit

(1)For investigating a complaint or conducting an audit, an auditor may enter and inspect a building site to which the complaint or audit relates.
(2)The entry and inspection must be—
(a)made with the consent of the person in control of the building site; or
(b)authorised by warrant of a magistrate; or
(c)done when building work is being carried out at the building site.
(3)However, an entry and inspection carried out only under subsection (2)(c) must not include a part of a building in which a person resides.
(4)For the purpose of asking the person in control of the building site for consent to enter, the auditor may, without the person’s consent or a warrant enter the site to the extent that is reasonable to contact the person.
(5)An auditor may apply to a magistrate for a warrant under this section for a particular building site.
(6)The application must be sworn and state the grounds on which it is sought.
(7)If the magistrate requires further information about the grounds on which the warrant is sought, the magistrate must not issue the warrant unless the auditor or some other person has given the information to the magistrate in the form (either orally or by affidavit) that the magistrate requires.
(8)The magistrate may issue the warrant only if the magistrate is satisfied there is a proper reason for entering and inspecting the building site.
(9)The warrant must state—
(a)that the auditor may, with necessary and reasonable help and force, enter and inspect the building site; and
(b)the hours of the day when entry may be made; and
(c)the day (not more than 14 days after the issue of the warrant) on which the warrant ceases to have effect.

s 199 ins 1998 No. 13 s 19

amd 2002 No. 77 s 184; 2006 No. 36 s 45

200Procedure before entry

(1)This section applies if an auditor is, under section 199, intending to enter a building site, other than to the extent mentioned in section 199(4).
(2)Before entering the building site, the auditor must do or make a reasonable attempt to do each of the following things—
(a)identify himself or herself to a person present at the building site who is an occupier of the building site, in the way stated in section 197;
(b)if the entry is being made under a warrant—give the person a copy of the warrant;
(c)tell the person the auditor is, under section 199, permitted to enter the building site;
(d)give the person an opportunity to allow the auditor immediate entry to the building site without using force.
(3)However, the auditor need not comply with subsection (2) if the auditor believes on reasonable grounds that complying with the subsection may frustrate or otherwise prevent the investigation of the complaint or the conduct of the audit.

s 200 ins 2006 No. 36 s 46

201Cooperating with investigation or audit

(1)A building certifier who is being investigated or audited by QBCC must assist in and cooperate with the investigation or audit.
(2)A building certifier engages in professional misconduct if the building certifier, without reasonable excuse—
(a)fails to comply with subsection (1) or section 195; or
(b)misleads or obstructs QBCC in the exercise of any function under this division.

s 201 ins 1998 No. 13 s 19

amd 2002 No. 77 s 185; 2013 No. 38 s 14 sch 1

202False or misleading statements

(1)A person must not, in relation to an investigation or audit under this part, state anything to QBCC that the person knows is false or misleading in a material particular.

Maximum penalty—165 penalty units.

(2)In a proceeding for an offence against subsection (1), it is enough to state that the statement made was, without specifying which, false or misleading.

s 202 ins 2002 No. 77 s 186

amd 2013 No. 38 s 14 sch 1

203False or misleading documents

(1)A person must not, in relation to an investigation or audit under this part, give QBCC a document containing information the person knows is false or misleading in a material particular.

Maximum penalty—165 penalty units.

(2)Subsection (1) does not apply to a person if the person, when giving the document—
(a)tells QBCC, to the best of the person’s ability, how it is false or misleading; and
(b)if the person has, or can reasonably obtain, the correct information—gives the correct information to QBCC.
(3)In a proceeding for an offence against subsection (1), it is enough to state that the document was, without specifying which, false or misleading.

s 203 ins 2002 No. 77 s 186

amd 2013 No. 38 s 14 sch 1

204Decision after investigation or audit completed

(1)After investigating a complaint or conducting an audit, QBCC must decide whether or not the building certifier has engaged in unsatisfactory conduct or professional misconduct.
(2)QBCC must give the building certifier and the complainant (if any) an information notice about the decision taken under subsection (1).

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.
(3)If QBCC is aware that the building certifier is employed or has been appointed by someone else to perform building or private certifying functions, it must give the employer or appointor a copy of the notice.
(4)If QBCC decides the building certifier has engaged in unsatisfactory conduct, QBCC must decide to do 1 or more of the following—
(a)reprimand the building certifier;
(b)impose the conditions it considers appropriate on the building certifier’s licence;
(c)direct the building certifier to complete to the satisfaction of QBCC the educational courses stated by QBCC;
(d)direct the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated by QBCC;
(e)require the building certifier to take all necessary steps to ensure the certification of building work—
(i)complies with this Act; or
(ii)for other assessable development related to the building work—is not inconsistent with all other necessary development approvals that apply to the work; or
(iii)for accepted development that may affect the position, height or form of building work—is not inconsistent with the requirements for the self-assessable development;
(f)direct the building certifier to take necessary enforcement action under this or another Act, including, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building work or owner of the building;
(g)if QBCC is satisfied the building certifier is generally competent and diligent—advise the building certifier it does not intend to take any further action.
(5)QBCC must—
(a)give an information notice about its decision under subsection (4) to the building certifier; and

Note—

For reviews of the decision, see the QBCC Act, part 7, division 3.
(b)if the decision is made after investigating a complaint—give the complainant a copy of the notice.
(6)If QBCC decides the building certifier has engaged in professional misconduct, QBCC must apply to the tribunal to start a disciplinary proceeding against the building certifier.
(7)Subsection (4) does not prevent QBCC taking the matter the subject of the investigation into consideration at a later time as part of a pattern of conduct that may result in a disciplinary proceeding against the building certifier.
(8)Subsections (4) and (6) do not prevent QBCC from starting a proceeding to prosecute the building certifier for an offence against this Act.
(9)In this section—
accepted development means development categorised under a local planning instrument as accepted development for the Planning Act.

s 204 ins 1998 No. 13 s 19

sub 2002 No. 77 s 187 (amd 2003 No. 30 s 169 sch 1) (amd 2003 No. 64 s 137)

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 47; 2009 No. 24 s 1274; 2009 No. 36 s 872 sch 2; 2013 No. 38 s 14 sch 1; 2014 No. 56 s 68 sch 1; 2016 No. 27 s 91

205[Repealed]

s 205 ins 1998 No. 13 s 19

sub 2002 No. 77 s 187 (amd 2003 No. 30 s 169 sch 1)

amd 2004 No. 53 s 2 sch; 2005 No. 14 s 2 sch; 2009 No. 24 s 1275; 2013 No. 38 s 14 sch 1

om 2014 No. 56 s 27

Division 3 Show cause notice for disciplinary proceedings

ch 6 pt 4 div 3 hdg (prev div 6 hdg) ins 1998 No. 13 s 19

sub 2002 No. 77 s 188

206Show cause notice

(1)If a local government reasonably believes proper grounds exist for applying to the tribunal to start a disciplinary proceeding against a building certifier, the local government must before making the application give the building certifier a notice (a show cause notice).
(2)The show cause notice must—
(a)state the grounds for making the application; and
(b)outline the facts and circumstances forming the basis for the grounds; and
(c)invite the building certifier to show within a stated period (the show cause period) why the application should not be made.
(3)The show cause period must be a period ending not less than 20 business days after the show cause notice is given to the building certifier.

s 206 ins 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1276

207Representations and decision

(1)The building certifier may make written representations about the show cause notice to the local government in the show cause period.
(2)After considering the representations for the show cause notice, the local government must decide to—
(a)take no further action; or
(b)apply to the tribunal to start a disciplinary proceeding against the building certifier.
(3)The local government must give the building certifier notice of its decision and the reasons for the decision.

s 207 ins 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 48; 2009 No. 24 s 1277

Division 4 Disciplinary proceedings

ch 6 pt 4 div 4 hdg ins 2002 No. 77 s 188

208Tribunal may conduct disciplinary proceeding

(1)The tribunal may, on application by QBCC or the local government, conduct a disciplinary proceeding to decide whether proper grounds for taking disciplinary action against a building certifier are established.
(2)For subsection (1), proper grounds exist for taking disciplinary action if the building certifier has behaved in a way that constitutes professional misconduct.
(3)An application under subsection (1) must be made as provided under the QCAT Act.

s 208 ins 1998 No. 13 s 19

amd 1998 No. 31 s 64

sub 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1278; 2013 No. 38 s 14 sch 1

209Constitution of tribunal for disciplinary proceeding

(1)For a proceeding under section 208, if the president of the tribunal under the QCAT Act considers it appropriate, the president may choose the following persons to constitute the tribunal—
(a)1 legally qualified member under the QCAT Act;
(b)1 senior member or ordinary member who has special knowledge of the building certification industry and the administration of this Act;
(c)1 other senior member or ordinary member.
(2)In this section—
ordinary member means an ordinary member under the QCAT Act.
senior member means a senior member under the QCAT Act.

s 209 ins 1998 No. 13 s 19

sub 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1); 2009 No. 24 s 1279

210Notification of disciplinary proceeding

(1)If QBCC makes the application, QBCC must notify the local government of the application.
(2)If the local government makes the application, it must notify QBCC of the application.
(3)The applicant must file a copy of the notification in the tribunal.

s 210 ins 1998 No. 13 s 19

sub 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1280; 2013 No. 38 s 14 sch 1

211Orders relating to current building certifier

(1)If the tribunal decides that proper grounds exist for taking disciplinary action against a building certifier who is licensed at the time of the decision, the tribunal may make 1 or more of the orders mentioned in subsections (2) to (7).
(2)The tribunal may make an order—
(a)reprimanding the building certifier; or
(b)imposing conditions it considers appropriate on the building certifier’s licence; or
(c)directing the building certifier to complete the educational courses stated in the order; or
(d)directing the building certifier to report on his or her practice as a building certifier at the times, in the way and to the persons stated in the order; or
(e)suspending the building certifier’s licence for the term the tribunal considers appropriate; or
(f)cancelling the building certifier’s licence; or
(g)disqualifying, indefinitely or for a stated period, the building certifier from obtaining a licence as a building certifier from QBCC.
(3)The tribunal may make an order requiring the building certifier—
(a)to ensure the certification of building work complies with, for example—
(i)this or another Act; or
(ii)any relevant development approval; or
(iii)a local planning instrument; or
(b)to direct necessary enforcement action be taken under this or another Act, for example, by requiring the building certifier to issue an enforcement notice to the builder of the building works or owner of the building.
(4)The tribunal may, in relation to building work that is defective or incomplete as a result of the professional misconduct, make an order that the building certifier—
(a)at the building certifier’s cost, have the work rectified or completed by a person who is appropriately licensed; or
(b)pay the complainant or another person an amount sufficient to rectify or complete the work.
(5)The tribunal may make an order imposing a penalty on the building certifier of not more than—
(a)for a first finding of professional misconduct—an amount equivalent to 80 penalty units; or
(b)for a second finding of professional misconduct—an amount equivalent to 120 penalty units; or
(c)for a subsequent finding of professional misconduct—an amount equivalent to 160 penalty units.
(6)If a corporation or local government employed the building certifier to perform building certification work and the corporation or local government did not take all reasonable steps to ensure the building certifier did not engage in professional misconduct, the tribunal may—
(a)make an order under subsection (3) or (4) as if the corporation or local government were the building certifier; or
(b)make an order imposing a penalty on the corporation of not more than—
(i)for a first time that the corporation did not take all reasonable steps—an amount equivalent to 80 penalty units; or
(ii)for a second time that the corporation did not take all reasonable steps—an amount equivalent to 120 penalty units; or
(iii)for a subsequent time that the corporation did not take all reasonable steps—an amount equivalent to 160 penalty units.
(7)The tribunal may make any other order it considers appropriate.
(8)If the tribunal makes an order under subsection (5) or (6)(b), the tribunal must order that the amount be paid to the person bringing the disciplinary proceedings.
(9)The tribunal may make an order under subsection (6) or, if the order affects the corporation or local government, under subsection (7), only if the corporation or local government has been joined as a party to the proceeding.

s 211 ins 1998 No. 13 s 19

sub 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1281; 2013 No. 38 s 14 sch 1

212Orders relating to former building certifier

(1)This section applies if the tribunal decides that proper grounds exist for taking disciplinary action against a former building certifier.
(2)The tribunal may make 1 or more of the orders mentioned in subsections (3) to (8).
(3)The tribunal may make an order requiring the former building certifier to—
(a)have another person who is appropriately licensed take all necessary steps to ensure the certification of building work complies with—
(i)this or another Act; or
(ii)any relevant development approval; or
(iii)a local planning instrument; or
(b)pay the complainant or another person an amount sufficient to complete the certification work.
(4)The tribunal may, in relation to building work carried out that is defective or incomplete as a result of the professional misconduct, make an order that the former building certifier—
(a)at the building certifier’s cost, have the work rectified or completed by a person who is appropriately licensed; or
(b)pay the complainant or another person an amount sufficient to rectify or complete the work.
(5)The tribunal may make an order imposing a penalty on the former building certifier of not more than—
(a)for a first finding of professional misconduct—an amount equivalent to 80 penalty units; or
(b)for a second finding of professional misconduct—an amount equivalent to 120 penalty units; or
(c)for a subsequent finding of professional misconduct—an amount equivalent to 160 penalty units.
(6)If a corporation or local government employed the former building certifier to perform building certification work and the corporation or local government did not take all reasonable steps to ensure the former building certifier did not engage in professional misconduct, the tribunal may—
(a)make an order under subsection (3) or (4) as if the corporation or local government were the building certifier; or
(b)make an order imposing a penalty on the corporation of not more than—
(i)for a first time that the corporation did not take all reasonable steps—an amount equivalent to 80 penalty units; or
(ii)for a second time that the corporation did not take all reasonable steps—an amount equivalent to 120 penalty units; or
(iii)for a subsequent time that the corporation did not take all reasonable steps—an amount equivalent to 160 penalty units.
(7)The tribunal may make an order that the former building certifier must—
(a)not be licensed or re-licensed by QBCC for the period stated in the order; or
(b)never be licensed or re-licensed by QBCC.
(8)The tribunal may make any other order it considers appropriate.
(9)If the tribunal makes an order under subsection (5) or (6)(b), the tribunal must order the amount be paid to the person bringing the disciplinary proceedings.
(10)The tribunal may make an order under subsection (6) or, if the order affects the corporation or local government, under subsection (8), only if the corporation or local government has been joined as a party to the proceeding.

s 212 ins 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1282; 2013 No. 38 s 14 sch 1

213Consequences of failure to comply with tribunal’s orders and directions

The tribunal may, in a disciplinary proceeding against a building certifier, order that the building certifier’s licence be suspended or cancelled if the building certifier fails to comply with an order or direction of the tribunal within the time allowed by the tribunal.

s 213 ins 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1283

214Recording details of orders

An order may state—
(a)the period in which the details of the order are to be included in the register for the person; and
(b)the details of the order, if any, that the tribunal decides are not to be included in the register.

s 214 ins 2002 No. 77 s 188 (amd 2003 No. 30 s 169 sch 1)

amd 2005 No. 14 s 2 sch; 2009 No. 24 s 1284

Chapter 7 Fire safety for budget accommodation buildings

Note—

Chapters 2 and 3 contain special provisions for obtaining building development approval for budget accommodation buildings. See sections 27, 46(4), 59 and 63.

ch 7 hdg ins 2006 No. 36 s 6

Part 1 Interpretation

ch 7 pt 1 hdg (prev pt 2A, div 1 hdg) ins 2002 No. 7 s 4

amd 2006 No. 36 s 7

215Definitions for ch 7

In this chapter—
budget accommodation building see section 216.
BCA ...

s 215 def BCA om 2006 No. 36 s 8 (3)

development application ...

s 215 def development application om 2002 No. 77 s 164

development approval ...

s 215 def development approval om 2002 No. 77 s 164

fire safety standard see section 217(1).
fire safety system, for a building, means the building’s features, and procedures established for the building, providing for all or any of the following—
(a)warning the building’s occupants about a fire emergency;
(b)safe evacuation of the building’s occupants;
(c)extinguishing or restricting the spread of fire in the building.
IPA ...

s 215 def IPA om 2006 No. 36 s 8 (3)

s 215 ins 2002 No. 7 s 4

amd 2006 No. 36 s 8

216Meaning of budget accommodation building

(1)A budget accommodation building is a building—
(a)whose occupants have shared access to a bathroom or sanitary facilities, other than a laundry; and
(b)that provides accommodation of a following type for 6 or more persons—
(i)boarding house, backpacker or other hostel, guesthouse, share-house or similar type accommodation;
(ii)bed and breakfast, farmstay or hotel accommodation;
(iii)accommodation for persons who have an intellectual or physical disability and require full-time or part-time care.
(2)A building is not prevented from being a budget accommodation building under subsection (1) because of—
(a)the fact that none, or only some, of the 6 or more persons mentioned in subsection (1)(b) are provided with food or meals at the building; or
(b)the legal basis, or the absence of any established legal basis, on which the accommodation is provided for the persons; or
(c)the fact that all or some of the persons are provided the accommodation free of charge; or
(d)the fact that all or some of the persons have a right to occupy parts of the building other than parts used to provide the accommodation.
(3)Despite subsections (1) and (2), each of the following is not a budget accommodation building—
(a)a building used as a class 1a building or class 2 building;
(b)a hotel that does not provide accommodation to paying guests;
(c)a motel building in which individual beds can not be let;
(d)a building—
(i)in which an employer provides, under, or as an incident of, an employer–employee relationship, accommodation to persons other than backpackers or fruit pickers; and
(ii)in which no-one is accommodated other than—
(A)a person provided accommodation as mentioned in subparagraph (i); or
(B)the employer; or
(C)the employer’s spouse or other relatives;
(e)a building that is, or forms part of—
(i)a corrective services facility under the Corrective Services Act 2006; or
(ii)a detention centre under the Youth Justice Act 1992;
(f)a facility in which residential care under the Aged Care Act 1997 (Cwlth) is provided by an approved provider under that Act;
(g)a building—
(i)that is, or is located within or is part of, an educational institution; or
(ii)in which an educational institution provides accommodation only for its students;
(h)a class 9a building, other than a building the primary use of which is to provide accommodation (rather than medical supervision) to persons with an intellectual or physical disability;
(i)a building used as a women’s refuge or shelter that is not used for any other type of accommodation;
(j)a building in which the only accommodation provided is to lifesavers;
(k)a building in which the only accommodation provided is recreational accommodation for camps for school groups, girl guides, scouts or similar groups.
(4)For subsection (1)(b), evidence that the building has beds available for use by persons is evidence that it provides accommodation to persons, whether or not the persons are present at the building.
(5)In this section—
bathroom or sanitary facilities, for a building, means—
(a)bathroom or sanitary facilities located in the building; or
(b)bathroom or sanitary facilities located elsewhere that are used in relation to the occupation of the building.

Example for paragraph (b)—

an outhouse used by occupants of the building
class 1a building means a building that, under the 2004 edition of the BCA, part A3.2, is classified as a class 1a building.

Editor’s note—

BCA (2004 edition), part A3.2 (Classifications)—

Class 1a—a single dwelling being—

(i)a detached house; or
(ii)

one or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; ...’

class 2 building means a building that, under the 2004 edition of the BCA, part A3.2, is classified as a class 2 building.

Editor’s note—

BCA (2004 edition), part A3.2 (Classifications)—

Class 2: a building containing 2 or more sole-occupancy units each being a separate dwelling. ...’

class 9a building means a building that, under the 2004 edition of the BCA, part A3.2, is classified as a class 9a building.

Editor’s note—

BCA (2004 edition), part A3.2 (Classifications)—

Class 9a—a health-care building; including those parts of the building set aside as a laboratory; ...’

BCA (2004 edition), part A1.1 (Definitions)—

Health-care building means a building whose occupants or patients undergoing medical treatment generally need physical assistance to evacuate the building during an emergency and includes—

(a)a public or private hospital; or
(b)a nursing home or similar facility for sick or disabled persons needing full-time care; or
(c)a clinic, day surgery or procedure unit where the effects of the predominant treatment administered involve patients becoming non-ambulatory and requiring supervised medical care on the premises for some time after the treatment.’

educational institution means any of the following—
(a)a State educational institution under the Education (General Provisions) Act 2006;
(b)an accredited school under the Education (Accreditation of Non-State Schools) Act 2017;
(c)TAFE Queensland under the TAFE Queensland Act 2013;
(d)a university.
farmstay, for accommodation, means accommodation at a farm for paying guests of the farm.

s 216 ins 2002 No. 7 s 4

sub 2005 No. 23 s 3

amd 2006 No. 29 s 518 sch 3; 2006 No. 39 s 512(1) sch 1; 2006 No. 49 s 54; 2007 No. 53 s 30 sch; 2008 No. 13 s 9; 2009 No. 34 s 45(1) sch pt 1 amdt 4; 2010 No. 21 s 3 sch; 2013 No. 27 s 70 sch 1 pt 2; 2014 No. 25 s 223 sch 1 pt 2; 2017 No. 24 s 202

Part 2 Fire safety standard

ch 7 pt 2 hdg (prev pt 2A, div 2 hdg) ins 2002 No. 7 s 4

amd 2006 No. 36 s 9

217Fire safety standard

(1)The fire safety standard is—
(a)QDC, part MP 2.1; and
(b)any other standard prescribed under a regulation for ensuring that all the occupants of a budget accommodation building may be safely evacuated in the event of a fire in the building.
(2)Without limiting subsection (1), a prescribed standard may provide for all or any of the following for the building—
(a)the allowable number of occupants;
(b)the provision and maintenance of fire safety systems;
(c)training programs for occupants and persons employed in the building about—
(i)fire management and prevention; or
(ii)emergency evacuation.

s 217 ins 2002 No. 7 s 4

amd 2006 No. 36 s 10; 2008 No. 13 s 10

218Guidelines for fire safety standard

(1)The chief executive may issue guidelines about ways of complying with the fire safety standard.
(2)Before issuing the guidelines, the chief executive must consult with any entity the chief executive considers appropriate.

s 218 ins 2002 No. 7 s 4

Part 3 Budget accommodation buildings built, approved or applied for, before 1 January 1992

ch 7 pt 3 hdg (prev pt 2A, div 3 hdg) ins 2002 No. 7 s 4

amd 2006 No. 36 s 12

219Application of pt 3

This part applies to a budget accommodation building only if—
(a)construction of the building started before 1 January 1992; or
(b)construction of the building was—
(i)approved, under this Act, before 1 January 1992; and
(ii)started on or after 1 January 1992; or
(c)an application for approval to construct the building—
(i)was made, under this Act, before 1 January 1992; and
(ii)the approval was given on or after 1 January 1992.

s 219 ins 2002 No. 7 s 4

amd 2006 No. 36 s 13

220Owner must ensure building conforms with fire safety standard

The owner of a budget accommodation building must ensure the building conforms with—
(a)the provisions of the fire safety standard about emergency lighting and early warning systems within—
(i)1 year after the standard commences; or
(ii)the longer period approved for the building under section 221; and
(b)the remaining provisions of the standard within—
(i)3 years after the standard commences; or
(ii)the longer period approved for the building under section 221.

Maximum penalty—165 penalty units.

Note—

The building assessment provisions, other than the fire safety standard, apply in relation to a budget accommodation building to which this part does not apply. See the fire safety standard and chapter 4, part 1. See also section 21 for development that is accepted development for the Planning Act.

s 220 ins 2002 No. 7 s 4

amd 2009 No. 51 s 28; 2016 No. 27 s 92

221Approval of longer period for conformity with fire safety standard

(1)The owner of a budget accommodation building may make written application to the local government to approve a period for the building under section 220(a)(ii) or (b)(ii).
(2)The local government may—
(a)consult with any other entity the local government considers appropriate in deciding the application; and
(b)grant the application only if the local government is satisfied undue hardship would be caused to the building’s occupants if the application were refused.
(3)The local government may grant the application with or without the reasonable conditions the local government considers appropriate.
(4)Within 20 business days after receiving the application, the local government must—
(a)decide the application; and
(b)give the owner an information notice about the decision.
(5)The owner must comply with each condition imposed on the approval.

Maximum penalty for subsection (5)—165 penalty units.

Note—

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

s 221 ins 2002 No. 7 s 4

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 14; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 93

222Advice as to conformity with fire safety standard

(1)The owner of a budget accommodation building may make written application to the local government for advice as to whether the building conforms with the fire safety standard.
(2)Within 20 business days after receiving the application, the local government must—
(a)decide if the building conforms with the fire safety standard; and
(b)give the owner notice of the decision.
(3)If the local government decides the building does not conform with the fire safety standard, the notice must be, or include, an information notice about the decision.
(4)The notice must also state what must be done by the owner to make the building conform with the standard.
(5)The owner must comply with the notice.

Maximum penalty for subsection (5)—165 penalty units.

(6)Subsection (3) does not limit the power of the local government under sections 248 and 249.

s 222 ins 2002 No. 7 s 4

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 15

223Stay of operation of local government decision

The lodging of a notice of appeal about a local government decision mentioned in section 222(3) stays the operation of the decision until—
(a)a development tribunal, on the application of the local government, decides otherwise; or
(b)the appeal is withdrawn; or
(c)the appeal is dismissed.

s 223 ins 2002 No. 7 s 4

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 17; 2009 No. 36 s 872 sch 2; 2016 No. 27 s 94

224Local government decisions

(1)This section applies to a decision made, or notice of which is given, by a local government, after the period stated in section 221(4) or 222(2).
(2)The decision is not invalid merely because it was made, or the notice was given, after the period.

s 224 ins 2002 No. 7 s 4

amd 2006 No. 36 s 18

Part 4 All budget accommodation buildings

ch 7 pt 4 hdg (prev pt 2A, div 4 hdg) ins 2002 No. 7 s 4

amd 2006 No. 36 s 19

225Application of pt 4

This part applies to a budget accommodation building regardless of when it was, or is, built.

s 225 ins 2002 No. 7 s 4

amd 2006 No. 36 s 20

226Obligation about fire safety management plan

(1)This section applies if—
(a)the owner of a budget accommodation building prepares a fire safety management plan for a development application or change application that relates to the building; and
(b)the application is approved.
(2)The owner must ensure the fire safety management plan is updated as soon as practicable, but not later than 1 month, after a change in circumstances affecting the plan’s compliance with the fire safety standard.

Maximum penalty for subsection (2)—100 penalty units.

(3)A change in circumstances mentioned in subsection (2) includes, for example, a change in the fire safety standard.
(4)The owner must ensure the current fire safety management plan is implemented.

Maximum penalty for subsection (4)—100 penalty units.

s 226 ins 2002 No. 7 s 4

amd 2006 No. 36 s 21; 2016 No. 27 s 95

227Accessing fire safety management plan

The owner of a budget accommodation building must ensure a copy of the building’s current fire safety management plan is kept in the building and is available for inspection, free of charge, by occupants and other members of the public whenever the building is open for business.

Maximum penalty—20 penalty units.

s 227 ins 2002 No. 7 s 4

228Random inspection of buildings for which development approval is given

(1)This section applies to a budget accommodation building if—
(a)a development approval is given for building work for the building after the commencement of this section; and
(b)the building work involves an alternative solution for performance requirements under the BCA that includes fire safety management procedures as a condition of the use and occupation of the building.
(2)The local government must, at least once every 3 years, inspect the building to ensure the owner of the building is complying with this part in relation to the building.
(3)An inspection under subsection (2) may be made—
(a)at any time the office of the local government is open for business; and
(b)without notice.
(4)The local government must keep—
(a)a register of all buildings to which subsection (2) applies; and
(b)a record of each inspection it makes under subsection (2); and
(c)for each inspection—details about whether or not the owner is complying with this part.
(5)The local government must not charge a fee for an inspection made under subsection (2).

s 228 ins 2002 No. 7 s 4

sub 2006 No. 11 s 85

amd 2006 No. 59 s 23

Part 5 Miscellaneous

ch 7 pt 5 hdg (prev pt 2A, div 5 hdg) ins 2002 No. 7 s 4

amd 2006 No. 36 s 23

229Obligations of entities about guidelines for fire safety standard and fire safety management plans

(1)In carrying out a function or power conferred on an entity under this Act or another local government Act, the entity must have regard to—
(a)for a matter relating to the fire safety standard—the information in the fire safety standard guidelines; or
(b)for a matter relating to the fire safety management plan—the information in the fire safety management plan guidelines.
(2)In ensuring a budget accommodation building conforms with the fire safety standard, the owner of the building must have regard to the information in the fire safety standard guidelines.
(3)In preparing a fire safety management plan for a budget accommodation building, the owner of the building must have regard to the information in—
(a)the fire safety standard guidelines; and
(b)the fire safety management plan guidelines.
(4)In this section—
fire safety management plan guidelines means the guidelines made under the Fire and Emergency Services Act 1990, section 104FD.
fire safety standard guidelines means the guidelines made under section 218.
local government Act means the City of Brisbane Act 2010 or a Local Government Act within the meaning of the Local Government Act 2009, schedule 4.

s 229 ins 2002 No. 7 s 4

amd 2009 No. 17 s 331 sch 1; 2013 No. 5 s 94 sch; 2013 No. 30 s 9 sch 1; 2014 No. 17 s 184 sch 1pt 2

230Local government’s fire safety record-keeping obligations

A local government must keep the following records until the building to which the record relates is demolished or removed—
(a)for each application made to the local government under section 221—all documents relating to the application;
(b)for each inspection made by the local government under section 228—a record of the inspection.

s 230 ins 2006 No. 36 s 24

231Owner’s fire safety record-keeping obligation

(1)The owner of a budget accommodation building to which section 228 applies must, as required under this section, keep complete and accurate records for the building showing the owner is complying with the fire safety standard.

Maximum penalty—20 penalty units.

(2)The records must include—
(a)if the building work for the building involved an alternative solution for performance requirements under the BCA—the records required under the alternative solution; and

Editor’s note—

BCA, part A1 (Interpretation), section A1.1 (Definitions)—

Alternative Solution means a Building Solution which complies with the Performance Requirements other than by reason of satisfying the Deemed-to-Satisfy Provisions.

(b)if the local government imposes conditions on an approval given under section 221(3)—details of how the building complies with the conditions.
(3)The records must be kept until the building is demolished or removed, unless the owner has a reasonable excuse.

s 231 ins 2006 No. 36 s 24

amd 2006 No. 59 s 24

Chapter 7A Fire safety for residential care buildings built, approved or applied for, before 1 June 2007

ch 7A hdg ins 2011 No. 27 s 232

Part 1 Application of chapter 7A

ch 7A pt 1 ins 2011 No. 27 s 232

231AA Application of ch 7A

(1)This chapter applies to a residential care building only if it is operating as a residential care building on 1 September 2011 and—
(a)construction of the building started before 1 June 2007; or
(b)a building development approval for the construction of the building was given before 1 June 2007 and construction of the building was started on or after 1 June 2007; or
(c)all of the following apply—
(i)a building development application for the construction of the building was made before 1 June 2007;
(ii)a building development approval for the construction of the building was given on or after 1 June 2007;
(iii)construction of the building was started on or after 1 June 2007.
(2)However, this chapter does not apply to a residential care building if—
(a)chapter 7 applies to the building; or
(b)the building complies with QDC, part MP 2.2.

s 231AA ins 2011 No. 27 s 232

Part 2 Interpretation

ch 7A pt 2 hdg ins 2011 No. 27 s 232

231AB Definitions for ch 7A

In this chapter—
assessment category, for an RCB, see section 231AD.
fire safety (RCB) compliance certificate see section 231AI(6).
fire safety standard (RCB) see section 231AE.
RCB means residential care building.
RCB assessment report see section 231AI(1).
RCB assessor see section 231AF.
residential care building see section 231AC.
type A construction means the type of construction referred to as type A construction in the BCA, part C1.
type B construction means the type of construction referred to as type B construction in the BCA, part C1.
type C construction means the type of construction that is neither a type A construction nor a type B construction.

s 231AB ins 2011 No. 27 s 232

231AC What is a residential care building (or RCB)

(1)A residential care building (or RCB) is a building—
(a)that is operated as a place of residence for 6 or more persons; and
(b)where at least 10% of the residents—
(i)need physical assistance in conducting their daily activities; and
(ii)would need physical assistance to evacuate the building during an emergency.
(2)However, none of the following is an RCB
(a)a hospital;
(b)a dwelling in which 2 or more members of a family and not more than 2 other persons would ordinarily be resident;
(c)a building in which only one resident—
(i)needs physical assistance to conduct their daily activities; and
(ii)would need physical assistance to evacuate the building during an emergency.

s 231AC ins 2011 No. 27 s 232

231AD What are the assessment categories for RCBs

The following are the assessment categories for RCBs—
(a)assessment category 1, for an RCB—
(i)of type B construction or type C construction; and
(ii)with a rise of 2 or more storeys;
(b)assessment category 2, for an RCB—
(i)of type A construction; or
(ii)of type B construction or type C construction with a rise of 1 storey.

s 231AD ins 2011 No. 27 s 232

Part 3 Fire safety standard (RCB)

ch 7A pt 3 hdg ins 2011 No. 27 s 232

231AE What is the fire safety standard (RCB)

(1)The fire safety standard (RCB) is—
(a)QDC, part MP 2.3; or
(b)any other standard prescribed under a regulation for ensuring all the residents of an RCB may be safely evacuated in the event of a fire in the RCB.
(2)A prescribed standard may, for fire safety purposes, provide for all or any of the following for the RCB—
(a)the minimum ratio of nominated persons to residents of the RCB;
(b)the provision and maintenance of fire safety systems;
(c)training programs for persons employed in, and residents of, an RCB about—
(i)fire management and prevention; or
(ii)emergency evacuation;
(d)any other matter to provide appropriately for the safety of persons in an RCB.
(3)In this section—
nominated person means—
(a)a person employed in the RCB; or
(b)another person who is able to physically assist a resident to evacuate the RCB during an emergency.

s 231AE ins 2011 No. 27 s 232

Part 3A RCB assessors

ch 7A pt 3A ins 2011 No. 27 s 232

231AF Who is an RCB assessor

Each of the following is an RCB assessor

(a)a building certifier;
(b)a public service employee approved by the chief executive to carry out an assessment of an RCB for this chapter.

s 231AF ins 2011 No. 27 s 232

231AG Chief executive may approve public service employees to assess RCBs

(1)The chief executive may approve a public service employee to carry out an assessment of an RCB for this chapter.
(2)The chief executive may only approve a public service employee if the chief executive reasonably considers the employee has the qualifications, knowledge or experience appropriate for carrying out an assessment of an RCB.

s 231AG ins 2011 No. 27 s 232

Part 4 Assessment of residential care buildings

ch 7A pt 4 hdg ins 2011 No. 27 s 232

231AH Owner must have RCB assessed for assessment category and compliance with fire safety standard (RCB)

(1)The owner of an RCB must, before 1 March 2012, or a later date prescribed under a regulation, ensure the RCB is assessed by an RCB assessor to decide—
(a)the assessment category for the RCB; and
(b)if the RCB complies with the fire safety standard (RCB).

Maximum penalty—165 penalty units.

(2)For the assessment, the owner must give the RCB assessor—
(a)a plan of the RCB drawn to scale; and
(b)the necessary information to enable the assessor to make the assessment.

Example of information—

the usual number of residents in the RCB

s 231AH ins 2011 No. 27 s 232

231AI RCB assessment reports

(1)An RCB assessor who assesses an RCB must, as soon as practicable, give the owner of the RCB and, if the owner is not its operator, the operator a report in the approved form (an RCB assessment report) about the RCB assessor’s decision relating to—
(a)the assessment category for the RCB; and
(b)whether the RCB complies with the fire safety standard (RCB); and
(c)if the RCB does not comply with the fire safety standard (RCB), the way the RCB does not comply, including the provisions of the fire safety standard (RCB) with which the RCB does not comply.
(2)If the RCB does not comply with the fire safety standard (RCB) in relation to sprinklers, the report must also include a statement of—
(a)the parts of the RCB for which requirements under the fire safety standard (RCB) about sprinklers are not met; and
(b)the area of each of those parts, expressed in square metres.
(3)For subsection (2)(a), a part of the RCB may be described by reference to the plan of the RCB given to the assessor by the owner of the RCB under section 231AH(2)(a).
(4)Also, the RCB assessment report must include the following—
(a)a copy of the plan of the RCB given to the assessor by the owner of the RCB under section 231AH(2)(a);
(b)whether the RCB is of type A construction, type B construction or type C construction;
(c)the number of the rise of storeys for the RCB;
(d)the usual number of residents in the RCB according to information given by the owner of the RCB;
(e)any other matter prescribed under a regulation.
(5)The RCB assessment report must be, or include, an information notice about the RCB assessor’s decision.

Note—

For rights of appeal to a development tribunal, see the Planning Act, section 229.
(6)If the RCB assessor decides the RCB complies with the fire safety standard (RCB), the RCB assessor must issue a certificate in the approved form (a fire safety (RCB) compliance certificate) for the RCB.

s 231AI ins 2011 No. 27 s 232

amd 2016 No. 27 s 96

231AJ Further assessment by RCB assessor

(1)This section applies if —
(a)an RCB assessment report (the original report) states that an RCB does not comply with the fire safety standard (RCB); and
(b)after building work necessary to make the RCB comply with the fire safety standard (RCB) is carried out, the owner of the RCB asks an RCB assessor to reassess the RCB; and
(c)the RCB assessor is not the one who gave the original report.
(2)The RCB assessor may, for issuing a fire safety (RCB) compliance certificate or certificate of classification for the RCB, accept and, without further checking, rely on the original report.

s 231AJ ins 2011 No. 27 s 232

231AK When owner must obtain fire safety (RCB) compliance certificate or certificate of classification

The owner of an RCB must, unless the owner has a reasonable excuse, obtain a fire safety (RCB) compliance certificate for the RCB, or a certificate of classification relating to building work done to the RCB to make it comply with the fire safety standard (RCB), by the latest of the following days—
(a)for an RCB with the assessment category 1—
(i)1 September 2014; or
(ii)a day prescribed under a regulation that is later than 1 September 2014; or
(iii)a day approved by a local government under section 231AL that is later than 1 September 2014 but not later than 1 September 2015;
(b)for an RCB with the assessment category 2—
(i)1 September 2016; or
(ii)a day prescribed under a regulation that is later than 1 September 2016; or
(iii)a day approved by a local government under section 231AL that is later than 1 September 2016 but not later than 1 September 2017.

Maximum penalty—165 penalty units.

s 231AK ins 2011 No. 72 s 232

amd 2013 No. 5 s 94 sch

231AL Approval of later day for obtaining fire safety (RCB) compliance certificate or certificate of classification

(1)The owner of an RCB may make written application to the relevant local government to approve a later day for the RCB under section 231AK(a)(iii) or (b)(iii).
(2)However, the application can only be made—
(a)for an RCB with the assessment category 1—before the later of the days mentioned in section 231AK(a)(i) or (ii); or
(b)for an RCB with the assessment category 2—before the later of the days mentioned in section 231AK(b)(i) or (ii).
(3)The local government—
(a)must consult with QFES; and
(b)may—
(i)consult with any entity it considers appropriate in deciding the application; and
(ii)grant the application only if it is satisfied undue hardship would be caused to the occupants of the RCB if the application were refused.
(4)The local government may grant the application with or without the reasonable conditions it considers appropriate.
(5)Within 20 business days after receiving the application, the local government must—
(a)decide the application; and
(b)give the owner an information notice about the decision.
(6)The owner must comply with each condition imposed on the approval.

Maximum penalty—165 penalty units.

Notes—

1This provision is an executive liability provision—see section 257.
2For rights of appeal to a development tribunal, see the Planning Act, section 229.
(7)Within 20 business days after giving an approval, the local government must give the chief executive notice of the approval.

s 231AL ins 2011 No. 72 s 232

amd 2013 No. 51 s 229 sch 1; 2014 No. 17 s 184 sch 1pt 4; 2016 No. 27 s 97

231AM Owner and operator must ensure RCB continues to comply with fire safety standard (RCB)

(1)This section applies if a fire safety (RCB) compliance certificate, or a certificate of classification relating to building work done to an RCB to make it comply with the fire safety standard (RCB), is issued for an RCB.
(2)Unless the person has a reasonable excuse, the owner of an RCB and, if the owner is not its operator, the operator must—
(a)ensure the RCB complies with the fire safety standard (RCB) at all times; and
(b)if any event causes the RCB not to comply—
(i)as soon as practicable, take action necessary to restore compliance; and
(ii)have the RCB assessed by an RCB assessor; and
(iii)obtain a fire safety (RCB) compliance certificate, or a certificate of classification, for the RCB.

Example of event causing RCB not to comply—

a change in the operation of the RCB including, for example a change to the ratio of staff to residents

Maximum penalty—165 penalty units.

s 231AM ins 2011 No. 72 s 232

Part 5 General

ch 7A pt 5 hdg ins 2011 No. 27 s 232

231AN General obligations of operator of RCB

(1)This section applies if the owner of an RCB is not its operator.
(2)The operator must—
(a)give the owner reasonable access to the RCB to enable the owner to comply with the owner’s obligations under this chapter; and
(b)give the owner the necessary information, including, for example, plans of the RCB, the owner requires to comply with the owner’s obligations under this chapter; and
(c)do anything else that is reasonably required to enable the owner to comply with the owner’s obligations under this chapter.

Maximum penalty—165 penalty units.

s 231AN ins 2011 No. 27 s 232

amd 2013 No. 5 s 94 sch

231AO Owner must give RCB assessment report to chief executive and local government

(1)Subject to subsection (2), the owner of an RCB must give an RCB assessment report for an RCB to the chief executive and the relevant local government within 10 business days after receiving the report, unless the owner has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)However, if the RCB assessor who gave the owner the RCB report is not a private certifier, the owner need not give a copy of the RCB report to—
(a)if the RCB assessor is a local government building certifier—the local government; or
(b)if the RCB assessor is approved under section 231AF(b)—the chief executive.

s 231AO ins 2011 No. 27 s 232

231AP Owner must give fire safety (RCB) compliance certificate to chief executive and local government

(1)If an owner of an RCB is given a fire safety (RCB) compliance certificate for the RCB, the owner must, within 10 business days, give a copy of the certificate to each of the following, unless the owner has a reasonable excuse—
(a)the chief executive;
(b)the relevant local government;
(c)if the owner is not its operator, the operator.

Maximum penalty—50 penalty units.

(2)If an owner of an RCB is given a certificate of classification relating to building work done to the RCB to make it comply with the fire safety standard (RCB), the owner must, within 10 business days, give a copy of the certificate to the chief executive, unless the owner has a reasonable excuse.

Maximum penalty—50 penalty units.

s 231AP ins 2011 No. 27 s 232

231AQ Obligations about access to fire safety (RCB) compliance certificate

(1)An authorised officer may require the owner of an RCB and, if the owner is not its operator, the operator to produce for inspection, the fire safety (RCB) compliance certificate, if any, for the RCB at the RCB.
(2)The owner or the operator of the RCB must comply with the requirement, unless the owner has a reasonable excuse.

Maximum penalty—50 penalty units.

(3)For subsection (1), a reference to the fire safety (RCB) compliance certificate includes a reference to a copy of the certificate.

Note—

For an owner’s obligation to produce a certificate of classification see section 108A.

s 231AQ ins 2011 No. 27 s 232

Chapter 8 Swimming pool safety

ch 8 hdg ins 2006 No. 36 s 25

amd 2009 No. 36 s 872 sch 2

sub 2010 No. 21 s 8

ch 8 note om 2010 No. 21 s 8

Part 1 Interpretation

ch 8 pt 1 hdg ins 2010 No. 21 s 9

231ADefinitions for ch 8

In this chapter—
accommodation agreement
1Accommodation agreement means any of the following—
(a)a residential tenancy agreement within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008, section 12;
(b)a rooming accommodation agreement within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008, section 16;
(c)a homestay or assisted accommodation agreement;
(d)an agreement, other than an agreement mentioned in subparagraph (a), (b) or (c), under which a person gives to someone else a right to occupy premises in exchange for money or other valuable consideration.

Example for subparagraph (d)—

letting a motel or hotel room
2Paragraph 1(d) applies—
(a)whether or not the right is a right of exclusive occupation; and
(b)whether the agreement is—
(i)wholly in writing, wholly oral or wholly implied; or
(ii)partly in a form mentioned in subsubparagraph (i) and partly in 1 or both of the other forms.
3The term does not include an agreement between members of a family under which a member of the family gives to another member money or other valuable consideration for a right to occupy that other member’s residence.

s 231A def accommodation agreement ins 2010 No. 35 s 12 (2)

amd 2012 No. 3 s 132 sch

complying pool means a regulated pool that—
(a)complies with the pool safety standard; or
(b)if an exemption is in effect under section 245B for the regulated pool—complies with the pool safety standard to the extent the exemption does not apply.

s 231A def complying pool sub 2010 No. 35 s 12 (1)–(2)

homestay or assisted accommodation agreement
1Homestay or assisted accommodation agreement means—
(a)an agreement under which accommodation is provided at a person’s residence to a student who is enrolled to study or train at an educational institution in a State, if—
(i)the student pays the person for the accommodation; and
(ii)under the agreement, accommodation is also provided to a young child who is a dependant of the student; or
(b)an agreement under which accommodation is provided to a person, free of charge, by a following entity at premises owned or operated by the entity—
(i)a charity registered under the Collections Act 1966;
(ii)a public sector entity;
(iii)a local government.
2Paragraph 1 applies whether the agreement is—
(a)wholly in writing, wholly oral or wholly implied; or
(b)partly in a form mentioned in subparagraph (a) and partly in 1 or both of the other forms.
3The term does not include an agreement between members of a family under which a member of the family gives to another member money or other valuable consideration for a right to occupy that other member’s residence.

s 231A def homestay or assisted accommodation agreement ins 2010 No. 35 s 12 (2)

member ...

s 231A def member ins 2010 No. 35 s 12 (2)

om 2011 No. 27 s 233

pool immersion incident means an event involving the immersion or partial immersion of a young child under water in a swimming pool, if because of the immersion or partial immersion—
(a)the child has died; or
(b)the child has been deprived of air and the health or wellbeing of the child has been adversely affected.

s 231A def pool immersion incident ins 2010 No. 35 s 12 (2)

pool safety inspection function see section 231C.
pool safety standard see section 231D.
pool safety standard application day, for a regulated pool, means—
(a)for a pool situated on common property or a common property lot under an Act mentioned in schedule 2, definition owner, of a regulated pool, paragraphs (a) to (e) and for use by occupiers of a building subject to that Act—the earliest of the following days to happen—
(i)if the building, or a part of the building, is sold and a pool safety certificate is not in effect for the pool at settlement under the contract of sale for the building or part—the day that is 90 days after the day of settlement;
(ii)if an accommodation agreement is entered into for the building, or a part of the building, and a pool safety certificate is not in effect for the pool when the agreement is entered into—the day that is 90 days after the day the agreement is entered into;
(iii)the day a pool safety certificate is first in effect for the pool;
(iv)the day that is 5 years after the 2010 Act commencement day; or
(b)for a pool situated on a part of a building mentioned in paragraph (a), other than a shared pool—the earliest of the following days to happen—
(i)if the part of the building is sold and a pool safety certificate is not in effect for the pool at settlement under the contract of sale for the part—the day that is 90 days after the day of settlement;
(ii)the day an accommodation agreement is entered into for the part of the building;
(iii)the day a pool safety certificate is first in effect for the pool;
(iv)the day that is 5 years after the 2010 Act commencement day; or
(c)for a pool situated on a moveable dwelling or the site in a moveable dwelling park where the dwelling is situated, or on a manufactured home in a residential park or on the site in the park where the manufactured home is situated—the earliest of the following days to happen—
(i)if the moveable dwelling or manufactured home is sold and a pool safety certificate is not in effect for the pool at settlement under the contract of sale for the moveable dwelling or manufactured home—the day that is 90 days after the day of settlement;
(ii)the day an accommodation agreement is entered into for the moveable dwelling or manufactured home;
(iii)the day a pool safety certificate is first in effect for the pool;
(iv)the day that is 5 years after the 2010 Act commencement day; or
(d)for a pool situated on a moveable dwelling park (other than on moveable dwelling premises on the park) or on the common areas of a residential park—the earliest of the following days to happen—
(i)if the moveable dwelling park or residential park is sold and a pool safety certificate is not in effect for the pool at settlement under the contract of sale for the moveable dwelling park or residential park—the day that is 90 days after the day of settlement;
(ii)if an accommodation agreement is entered into for any moveable dwelling situated on the moveable dwelling park, or any manufactured home situated in the residential park, and a pool safety certificate is not in effect for the pool when the agreement is entered into—the day that is 90 days after the day the agreement is entered into;
(iii)the day a pool safety certificate is first in effect for the pool;
(iv)the day that is 5 years after the 2010 Act commencement day; or
(e)if paragraphs (a) to (d) do not apply—the earliest of the following days to happen—
(i)if the building on the regulated land where the pool is situated is sold and a pool safety certificate is not in effect for the pool at settlement under the contract of sale for the building—the day that is 90 days after the day of settlement;
(ii)the day an accommodation agreement is entered into for the building;
(iii)the day a pool safety certificate is first in effect for the pool;
(iv)the day that is 5 years after the 2010 Act commencement day.

s 231A def pool safety standard application day ins 2010 No. 35 s 12 (2)

regulated land
1Regulated land is land on which any of the following is constructed or is to be constructed—
(a)a class 1, 2, 3 or 4 building;
(b)a moveable dwelling park;
(c)a residential park.
2The term includes land adjacent to the land and—
(a)in the same ownership as the land; or
(b)used in association with the land.

s 231A def regulated land amd 2010 No. 35 s 12 (3)–(4)

regulated pool see section 231B.
shared pool
1If the residents of 2 or more dwellings constructed, or to be constructed, on regulated land have, or will have, a right to use a regulated pool situated on the land, the pool is a shared pool.
2For paragraph 1—
(a)the resident of a dwelling is the person who is the owner or occupier of the dwelling or has a right to use the dwelling; and
(b)a dwelling includes—
(i)a moveable dwelling in a moveable dwelling park; and
(ii)a manufactured home on a site in a residential park.
3The term includes a regulated pool situated on land on which a class 3 building is, or is to be, constructed.

s 231A def shared pool amd 2010 No. 35 s 12 (5)–(6)

s 231A ins 2010 No. 21 s 9

231BWhat is a regulated pool

(1)A regulated pool
(a)is a swimming pool situated on regulated land; and
(b)includes the barriers for the pool.
(2)The barriers for the pool include any of the following—
(a)the fencing for the pool;
(b)the walls of a building enclosing the pool;
(c)another form of barrier mentioned or provided for in the pool safety standard.

Example—

Under QDC, part MP3.4, a canal, lake, river, creek, stream, pond, ocean or dam may, in particular circumstances, form part of a barrier.
(3)Despite subsection (1), other than in part 2A a regulated pool does not include a swimming pool situated on either of the following if an approved pool safety management plan is in force for the pool—
(a)common property in a class 3 building, including a class 3 building that is to be constructed;
(b)land adjacent to land on which a class 3 building is, or is to be, constructed and that is—
(i)in the same ownership as the building; or
(ii)used in association with the building.
(4)Also, a regulated pool does not include a public pool.
(5)In this section—
public pool means a swimming pool open to the public, whether or not on payment of money, and operated by a local government or other statutory body under the Statutory Bodies Financial Arrangements Act 1982.

s 231B ins 2010 No. 21 s 9

amd 2010 No. 35 s 13; 2011 No. 1 s 143; 2011 No. 27 s 215

231CWhat is a pool safety inspection function

A pool safety inspection function is doing any of the following—
(a)inspecting a regulated pool to decide whether to give a certificate (a pool safety certificate) that states the pool is a complying pool;
(b)carrying out minor repairs relating to a regulated pool arising from an inspection of the pool under paragraph (a);
(c)the giving of a pool safety certificate for a regulated pool;
(d)the giving of a nonconformity notice for a regulated pool.

s 231C ins 2010 No. 21 s 9

231DWhat is the pool safety standard

(1)The pool safety standard is—
(a)QDC, part MP3.4; and
(b)any other standard prescribed under a regulation for ensuring the safety of persons using a regulated pool.
(2)Without limiting subsection (1), a prescribed standard may provide for both or either of the following for the pool—
(a)the form of a resuscitation sign and the way it must be displayed;
(b)the requirements for devices used for recirculation of water in the pool.

s 231D ins 2010 No. 21 s 9

Part 2 Compliance with pool safety standard and other matters about pool safety

ch 8 pt 2 hdg ins 2010 No. 21 s 9

sub 2010 No. 35 s 14

ch 8 pt 2 note ins 2010 No. 21 s 9

om 2010 No. 35 s 14

Division 1 Compliance with pool safety standard

ch 8 pt 2 div 1 hdg ins 2010 No. 35 s 14

232Compliance with pool safety standard—regulated pool

(1)The owner of a regulated pool must ensure—
(a)the pool complies with the pool safety standard for the pool; and
(b)all barriers for the pool are kept in good condition.

Maximum penalty—165 penalty units.

Note—

This provision is an executive liability provision—see section 257.
(2)However, if the regulated pool is in existence on the 2010 Act commencement day, subsection (1)(a) does not apply to the owner of the pool until the pool safety standard application day for the pool.

Note—

For the application of subsection (1) to particular pools constructed before the 2010 Act commencement day, see section 291.
(3)Also, if an exemption under division 3 or 4 is in effect for a regulated pool, subsection (1)(a) does not apply to the owner of the pool to the extent the exemption applies.

s 232 ins 2003 No. 53 s 5

amd 2006 No. 36 s 26; 2010 No. 21 s 3 sch

sub 2010 No. 35 s 14

amd 2013 No. 51 s 229 sch 1

Division 2 Requirements about constructing regulated pool

ch 8 pt 2 div 2 hdg ins 2010 No. 35 s 14

233Constructing regulated pool—requirement for warning sign

(1)This section applies to each relevant person for a regulated pool, other than a portable swimming pool.
(2)The relevant person must ensure that, before construction of the pool starts, a warning sign, complying with the requirements for a warning sign prescribed under a regulation, is displayed on the land on which the pool is situated in the way prescribed under a regulation.

Maximum penalty—20 penalty units.

(3)The relevant person must ensure the warning sign is displayed until a building certifier has provided a certificate in the approved form stating the pool is a complying pool.

Maximum penalty—20 penalty units.

(4)In this section—
portable swimming pool means a swimming pool that is designed to be readily assembled by hand and moved from place to place.
relevant person, for a regulated pool, means—
(a)the person who is or is to become the owner of the pool; or
(b)the builder of the pool.

s 233 ins 2003 No. 53 s 5

sub 2010 No. 35 s 14

amd 2011 No. 27 s 233

234Constructing regulated pool—requirement for compliance with pool safety standard

(1)This section applies to a person if—
(a)a regulated pool has been constructed or is being constructed; and
(b)the pool has not been filled with water to a depth of 300mm or more; and
(c)the person—
(i)is, or is to become, the owner of the pool; or
(ii)has contracted with the owner to carry out the construction of the pool.
(2)The person must, unless the person has a reasonable excuse, ensure that, before the pool is filled with water to a depth of 300mm or more, a building certifier has provided a certificate in the approved form stating the pool is a complying pool.

Maximum penalty—165 penalty units.

s 234 ins 2003 No. 53 s 5

sub 2010 No. 35 s 14

Division 3 Exemptions from compliance with pool safety standard—disability

ch 8 pt 2 div 3 hdg ins 2010 No. 35 s 14

Subdivision 1 Applying for exemption and deciding application

ch 8 pt 2 div 3 sdiv 1 hdg ins 2010 No. 35 s 14

235Application for exemption—disability

A person may apply to the local government for an exemption under this division from complying with a part of the pool safety standard relating to barriers for a regulated pool if the person is—
(a)the owner of the pool; or
(b)if the pool is still to be constructed—the person who is to be the owner of the pool.

s 235 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2002 No. 77 s 166

sub 2003 No. 53 s 6; 2010 No. 35 s 14

236Requirement for further information

The local government may require the applicant to give the local government medical evidence to support the application.

s 236 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12; 2003 No. 53 s 6; 2010 No. 35 s 14

237Decision on application

(1)The local government must consider the application and, within 5 business days after the application is made—
(a)grant the exemption; or
(b)refuse to grant the exemption.
(2)The local government may grant the exemption only if it is satisfied that—
(a)a person with a disability is, or is to become, an occupier of land on which the regulated pool is situated; and
(b)it would be physically impracticable for the person, because of the person’s disability, to access the pool if it had barriers complying with the pool safety standard.
(3)The local government may grant the exemption on the reasonable conditions it considers necessary or desirable to prevent a young child accessing the pool.
(4)If the exemption is granted on conditions, the applicant must comply with each condition of the exemption.

Maximum penalty for subsection (4)—165 penalty units.

(5)The local government may only exempt a person from complying with a part of the pool safety standard to the extent reasonably necessary to allow a person mentioned in subsection (2) to access the pool.

s 237 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2000 No. 4 s 94 sch

sub 2003 No. 53 s 6; 2010 No. 35 s 14

238Notice of decision

(1)If the local government decides to grant the exemption, it must give the applicant written notice of the exemption.
(2)If the local government decides to refuse to grant the exemption or impose conditions on the exemption, the local government must give the applicant an information notice about the decision.

Note—

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

s 238 ins 2003 No. 53 s 6

sub 2010 No. 35 s 14

amd 2016 No. 27 s 98

239Notice of exemption to be given to QBCC commissioner

(1)The local government must give the QBCC commissioner notice of each exemption granted under this division.
(2)The notice must—
(a)be given to the QBCC commissioner within 10 business days after the exemption is granted; and
(b)state the address, and real property description, of the land on which the regulated pool to which the exemption relates is situated.

s 239 ins 2003 No. 53 s 6

amd 2006 No. 36 s 27A

sub 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

240Application of pool safety standard under exemption

If the local government grants the exemption, the pool safety standard continues to apply for the regulated pool to the extent the exemption does not apply.

s 240 ins 2003 No. 53 s 6

sub 2010 No. 35 s 14

Subdivision 2 Ending and revocation of exemptions

ch 8 pt 2 div 3 sdiv 2 hdg ins 2010 No. 35 s 14

241When exemption ends

The exemption ends if—
(a)the applicant stops being the owner of the regulated pool; or
(b)the person because of whom the exemption was granted is no longer an occupier of the land on which the pool is situated; or
(c)it would no longer be physically impracticable for the person because of whom the exemption was granted to access the pool if it complied with the pool safety standard.

s 241 ins 2003 No. 53 s 6

amd 2005 No. 14 s 2 sch; 2006 No. 36 s 28; 2009 No. 36 s 872 sch 2

sub 2010 No. 35 s 14

242Local government may revoke exemption

(1)This section applies if—
(a)a local government has, under section 237, granted an applicant an exemption; and
(b)the local government is satisfied 1 or more of the following applies—
(i)the decision on the application for the exemption was based on a false or misleading particular given by the applicant;
(ii)the exemption has ended under section 241;
(iii)the exemption was subject to conditions and there has been a contravention of a condition.
(2)The local government must give the applicant a show cause notice inviting the applicant to show cause why the decision should not be revoked.
(3)After considering any representations made to it under the show cause notice, the local government may, by a further notice (a revocation notice) given to the applicant, revoke the decision previously given.
(4)The revocation notice must be, or be accompanied by, an information notice about the decision to give the notice and state—
(a)that the applicant must ensure the pool has, around the pool, barriers complying with the pool safety standard; and
(b)the day by which the applicant must comply with the notice.

Note—

For rights of appeal to a development tribunal, see the Planning Act, section 229.
(5)The applicant must comply with the revocation notice.

Maximum penalty for subsection (5)—165 penalty units.

(6)If the applicant fails to comply with the revocation notice, the failure is taken to be a failure to take action under the Local Government Act 2009, section 142 or the City of Brisbane Act 2010, section 132.
(7)In this section—
show cause notice means a show cause notice under section 247(1).

s 242 ins 2003 No. 53 s 6

amd 2006 No. 36 s 29; 2009 No. 17 s 331 sch 1

sub 2010 No. 35 s 14

amd 2012 No. 5 s 94 sch; 2016 No. 27 s 99

243Notice of revocation to be given to QBCC commissioner

(1)If the local government gives a person a revocation notice, the local government must give the QBCC commissioner notice of the revocation notice.
(2)The notice must—
(a)be given to the commissioner within 10 business days after the revocation notice is given; and
(b)state—
(i)the day the revocation notice was given; and
(ii)the address, and real property description, of the land on which the regulated pool to which the revocation notice relates is situated.

s 243 ins 2006 No. 36 s 30

amd 2009 No. 36 s 872 sch 2; 2010 No. 21 s 3 sch

sub 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

Subdivision 3 Miscellaneous

ch 8 pt 2 div 3 sdiv 3 hdg ins 2010 No. 35 s 14

244Keeping copy of exemption

(1)The local government must keep a copy of each exemption it grants under this division.
(2)The local government must—
(a)keep the copy while the exemption is still in force and for at least 5 years after the exemption is no longer in force; and
(b)make the copy available for inspection and purchase as if it were a document that, under the Planning Act, the local government must make available for inspection and purchase.

s 244 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2002 No. 7 s 5; 2003 No. 53 s 7; 2006 No. 36 s 31

sub 2010 No. 35 s 14

amd 2016 No. 27 s 100

Division 4 Exemptions from compliance with pool safety standard—impracticality

ch 8 pt 2 div 4 hdg ins 2010 No. 35 s 14

Subdivision 1 Applying for exemption and deciding applications

ch 8 pt 2 div 4 sdiv 1 hdg ins 2010 No. 35 s 14

245Application for exemption—compliance impracticable

(1)The owner of a regulated pool may apply to the local government for an exemption under this division from complying with a part of the pool safety standard relating to barriers for the regulated pool.
(2)The application must be accompanied by enough details to—
(a)identify the part of the pool safety standard for which the owner is seeking the exemption; and
(b)show compliance with the part of the pool safety standard is not practicable.

s 245 ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12; 2010 No. 35 s 14

245ARequirement for further information

The local government may require the owner to give the local government further information to establish that compliance with the part of the pool safety standard is not practicable.

s 245A ins 2010 No. 35 s 14

245BDecision on application

(1)The local government must consider the application and decide to—
(a)grant the exemption; or
(b)refuse to grant the exemption.
(2)In deciding the application, the local government may consider the following—
(a)whether compliance with the part of the pool safety standard may require the owner to—
(i)move or demolish a building or part of a building; or
(ii)change the location or size of the regulated pool; or
(iii)remove vegetation protected from removal under an Act or a local law;
(b)the cost of the barriers or work required to ensure the pool complies with the part of the pool safety standard, having regard to the nature of any existing barriers for the pool;
(c)other matters the local government considers relevant.
(3)The local government may grant the exemption on the reasonable conditions it considers necessary or desirable to prevent a young child accessing the pool.
(4)If the exemption is granted on conditions, the owner of the regulated pool must comply with each condition of the exemption.

Maximum penalty for subsection (4)—165 penalty units.

Note—

This provision is an executive liability provision—see section 257.
(5)The local government may only exempt a person from complying with a part of the pool safety standard to the extent reasonably necessary in the circumstances to overcome the impracticality associated with compliance with the part.
(6)The local government is taken to have refused to grant the exemption if the local government does not decide the application within the decision period.

s 245B ins 2010 No. 35 s 14

amd 2013 No. 51 s 229 sch 1

245CNotice of decision and application of pool safety standard under exemption

(1)If the local government decides to grant an exemption under this division the local government must give the applicant written notice of the exemption.
(2)If the local government decides to refuse to grant the exemption or impose conditions on the exemption, or the application is taken to be refused under section 245B(6), the local government must give the applicant an information notice about the decision.

Note—

For rights of appeal to a development tribunal, see the Planning Act, section 229.
(3)If the local government grants an exemption for a regulated pool under this division, the pool safety standard continues to apply for the pool to the extent the exemption does not apply.

s 245C ins 2010 No. 35 s 14

amd 2016 No. 27 s 101

245DContinuation of exemption

(1)An exemption for a regulated pool under this division continues to apply to the pool unless the exemption is revoked under subdivision 2.
(2)If the exemption is granted on conditions, the conditions are binding on the successors in title to the owner of the regulated pool to whom the exemption was granted.

s 245D ins 2010 No. 35 s 14

Subdivision 2 Revocation of exemptions

ch 8 pt 2 div 4 sdiv 2 hdg ins 2010 No. 35 s 14

245ELocal government may revoke exemption

(1)This section applies if—
(a)the local government has, under this division, granted an exemption; and
(b)the local government is satisfied 1 or more of the following applies—
(i)the decision on the application for the exemption was based on a false or misleading particular given in the application;
(ii)the exemption was subject to conditions and there has been a contravention of a condition.
(2)The local government must give the owner of the regulated pool a show cause notice inviting the owner to show cause why the decision should not be revoked.
(3)After considering any representations made to it under the show cause notice, the local government may, by a further notice (a revocation notice) given to the owner, revoke the decision previously given.
(4)The revocation notice must be, or be accompanied by, an information notice about the decision to give the notice and state—
(a)that the owner must ensure the pool has, around the pool, barriers complying with the pool safety standard; and
(b)the day by which the owner must comply with the notice.

Note—

For rights of appeal to a development tribunal, see the Planning Act, section 229.
(5)The owner must comply with the revocation notice.

Maximum penalty for subsection (5)—165 penalty units.

(6)In this section—
show cause notice means a show cause notice under section 247(1).

s 245E ins 2010 No. 35 s 14

amd 2016 No. 27 s 102

Subdivision 3 Miscellaneous

ch 8 pt 2 div 4 sdiv 3 hdg ins 2010 No. 35 s 14

245FNotice of exemption or revocation to be given to QBCC commissioner

(1)The local government must give the QBCC commissioner notice of each exemption granted under this division.
(2)If the local government gives a person a revocation notice, the local government must give the commissioner notice of the revocation notice.
(3)A notice under subsection (1) or (2) must—
(a)be given to the commissioner within 10 business days after the exemption is granted or revocation notice is given; and
(b)state all of the following—
(i)the address, and real property description, of the land on which the regulated pool to which the exemption or revocation notice relates is situated;
(ii)for a notice about a revocation notice—the day the revocation notice was given.

s 245F ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

245FA Keeping copy of exemption

(1)The local government must keep a copy of each exemption it grants under this division.
(2)The local government must—
(a)keep the copy while the exemption is still in force and for at least 5 years after the exemption is no longer in force; and
(b)make the copy available for inspection and purchase as if it were a document that, under the Planning Act, the local government must make available for inspection and purchase.

s 245FA ins 2010 No. 35 s 14

amd 2016 No. 27 s 103

Division 5 Reporting, and giving notice of, pool immersion incidents

ch 8 pt 2 div 5 hdg ins 2010 No. 35 s 14

245G Requirement to report pool immersion incident

(1)A person in charge of a hospital must, under subsection (2), unless the person has a reasonable excuse, notify the chief executive (health) if an examination of a young child by a doctor in the hospital indicates that the child has been involved in a pool immersion incident.

Maximum penalty—20 penalty units.

(2)The notice must—
(a)be given to the chief executive (health) within 5 business days after the examination happened; and
(b)include the following information to the extent the person has it—
(i)the name and date of birth of the young child;
(ii)the day the examination happened;
(iii)the address of the child’s parents;
(iv)the address where the pool immersion incident happened.
(3)The notice may include other information about the pool immersion incident the person in charge of the hospital considers relevant.
(4)In this section—
person in charge, of a hospital, means—
(a)for a public sector hospital under the Hospital and Health Boards Act 2011—the person responsible for the day-to-day operation and control of the hospital; or
(b)for a private health facility under the Private Health Facilities Act 1999—the licensee of the private health facility.

s 245G ins 2010 No. 35 s 14

amd 2011 No. 32 s 332 sch 1pt 2 (amd 2012 No. 9 s 47)

245H Disclosure of information about pool immersion incident

(1)This section applies if a health professional reasonably believes that a young child has been involved in a pool immersion incident.
(2)The health professional may give the chief executive (health) any relevant information about the young child’s condition and the incident.
(3)The health professional is not liable, civilly, criminally, or under an administrative process, for giving the information under subsection (2).
(4)Also, merely because the health professional gives the information, the health professional can not be held to have—
(a)breached any code of professional etiquette or ethics; or
(b)departed from the accepted standards of professional conduct.
(5)Without limiting subsection (3) or (4), if the health professional would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the health professional—
(a)does not contravene the Act, oath or rule of law or practice by giving the information; and
(b)is not liable to disciplinary action for giving the information.
(6)In this section—
health professional means any of the following—
(a)a person who is a health professional under the Hospital and Health Boards Act 2011;
(b)an ambulance officer under the Ambulance Service Act 1991;
(c)another person prescribed under a regulation for this section who, as part of the person’s profession or occupation, performs functions relating to the health of others.

s 245H ins 2010 No. 35 s 14

amd 2012 No. 3 s 132 sch; 2011 No. 32 s 332 sch 1pt 2 (amd 2012 No. 9 s 47)

245IGiving notice of pool immersion incidents

(1)If the chief executive (health) receives a pool immersion notice, the chief executive (health) must, within 5 business days after receiving it, give notice of the pool immersion incident to which it relates to—
(a)the QBCC commissioner; and
(b)the local government for the area in which the incident happened; and
(c)the family and child commissioner.
(2)However, if the chief executive (health) receives more than 1 pool immersion notice about the same pool immersion incident, the chief executive (health) need only give notice under subsection (1) for the first pool immersion notice received about the incident.
(3)The notice given under subsection (1) must state the information included in the pool immersion notice.
(4)In this section—
family and child commissioner means the principal commissioner under the Family and Child Commission Act 2014.
pool immersion notice means notice of a pool immersion incident given to the chief executive (health) under—
(a)the Ambulance Service Act 1991, section 23; or
(b)section 245G.

s 245I ins 2010 No. 35 s 14

amd 2014 No. 27 s 52 sch 1pt 2; 2014 No. 56 s 28

Division 6 Pool safety management plans for particular pools

ch 8 pt 2 div 6 hdg ins 2010 No. 35 s 14

Subdivision 1 Preliminary

ch 8 pt 2 div 6 sdiv 1 hdg ins 2010 No. 35 s 14

245JApplication of div 6

This division applies to the owner of a swimming pool that is situated on—
(a)common property in a class 3 building, including a class 3 building that is to be constructed; or
(b)land adjacent to land on which a class 3 building is, or is to be, constructed and that is—
(i)in the same ownership as the building; or
(ii)used in association with the building.

s 245J ins 2010 No. 35 s 14

sub 2011 No. 1 s 144

245K Requirement to have pool safety management plan

The owner must, by the day that is 6 months after the 2010 Act commencement day, have a plan (a pool safety management plan) approved under this division for the swimming pool, unless a pool safety certificate is in effect for the pool.

Maximum penalty—165 penalty units.

s 245K ins 2010 No. 35 s 14

245L Requirement to comply with approved pool safety management plan

If the owner has an approved pool safety management plan for the swimming pool, the owner must comply with the plan.

Maximum penalty—165 penalty units.

Note—

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

s 245L ins 2010 No. 35 s 14

amd 2013 No. 51 s 229 sch 1; 2014 No. 56 s 28

Subdivision 2 Approval, and duration, of pool safety management plans

ch 8 pt 2 div 6 sdiv 2 hdg ins 2010 No. 35 s 14

245M Application for approval

(1)The owner must apply to the QBCC commissioner for approval of its pool safety management plan for the swimming pool.
(2)The application must—
(a)be in the approved form; and
(b)be accompanied by—
(i)the proposed pool safety management plan; and
(ii)the fee prescribed under a regulation.
(3)The proposed pool safety management plan must include details of the measures (the pool safety measures) the owner intends to implement under the plan to appropriately provide for the safety of young children in and around the pool, including, for example, providing for an on-site lifeguard for the pool.

s 245M ins 2010 No. 35 s 14

amd 2011 No. 1 s 145; 2014 No. 56 s 68 sch 1

245N Requirement for further information

The QBCC commissioner may, by notice given to the owner, require the owner to give the commissioner further information about the pool safety management plan, including, for example, information about the pool safety measures under the plan.

s 245N ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

245O Decision on application

(1)The QBCC commissioner must consider the application and, within 20 business days after receiving it, decide to—
(a)approve the pool safety management plan; or
(b)refuse to approve the plan.
(2)In deciding the application, the commissioner must have regard to—
(a)the pool safety management plan and any information about the plan given to the commissioner under section 245N; and
(b)the guidelines, if any, made by the commissioner about preparing a pool safety management plan.
(3)The commissioner must not approve the pool safety management plan unless satisfied the pool safety measures under the plan appropriately provide for the safety of young children in and around the pool.
(4)Within 5 business days after deciding the application, the commissioner must give the owner—
(a)if the decision is to approve the pool safety management plan—notice of the approval; or
(b)if the decision is to refuse to approve the pool safety management plan—an information notice about the decision.

s 245O ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

245P Duration of plan

An approved pool safety management plan has effect for 1 year after the day it is approved, unless it is sooner cancelled under this division.

s 245P ins 2010 No. 35 s 14

Subdivision 3 Cancellation of approval and amendment of approved pool safety management plan

ch 8 pt 2 div 6 sdiv 3 hdg ins 2010 No. 35 s 14

245Q Cancellation or amendment

(1)This section applies if the QBCC commissioner is satisfied the pool safety measures under the owner’s approved pool safety management plan no longer appropriately provide for the safety of young children in and around the pool.
(2)The commissioner may, by notice given to the owner—
(a)cancel the approval for the plan; or
(b)require the owner to amend the plan in the way stated in the notice.
(3)However, before acting under subsection (2), the commissioner must—
(a)give the owner a notice (a show cause notice) stating each of the following—
(i)the proposed action the commissioner is considering taking under subsection (2);
(ii)the grounds for taking the proposed action;
(iii)the facts and circumstances forming the basis for the grounds;
(iv)if the proposed action is to require the owner to amend the plan—the proposed amendment;
(v)that the owner may, within a stated period (the show cause period), make submissions to the commissioner about why the proposed action should not be taken; and
(b)consider any submissions made to the commissioner under paragraph (a)(v).
(4)The show cause period must end at least 20 business days after the owner is given the show cause notice.
(5)If, after complying with subsection (3), the commissioner decides not to take the proposed action, the commissioner must give the owner notice of the decision.
(6)If, after complying with subsection (3), the commissioner decides to take the proposed action, the commissioner must give the owner an information notice about the decision.

s 245Q ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

245R When decision has effect

(1)A decision to cancel an approved pool safety management plan takes effect when the information notice about the decision is given to the owner.
(2)If the QBCC commissioner decides to require the owner to amend an approved pool safety management plan, the plan is taken to have been amended—
(a)in the way stated in the notice given under section 245Q(2)(b); and
(b)when the information notice about the decision is given.

s 245R ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

Subdivision 4 Appeals

ch 8 pt 2 div 6 sdiv 4 hdg ins 2010 No. 35 s 14

245S Appeals to development tribunal of decisions under div 6

(1)This section applies if the owner is given under this division an information notice about a decision of the QBCC commissioner.
(2)The owner may, within 20 business days after the information notice is given, appeal the decision to a development tribunal.

s 245S ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1; 2016 No. 27 s 104

Division 7 Miscellaneous

ch 8 pt 2 div 7 hdg ins 2010 No. 35 s 14

245T Access to regulated pool to be kept secure

(1)A person who opens a gate or door giving access to a regulated pool must, unless the person has a reasonable excuse, ensure the gate or door is securely closed while the gate or door is not in use.

Maximum penalty—165 penalty units.

(2)The owner of a regulated pool that is a shared pool must, unless the owner has a reasonable excuse, ensure that any gate or door giving access to the pool is kept securely closed at all times when the gate or door is not in use.

Maximum penalty—165 penalty units.

(3)The occupier of premises on which there is a regulated pool that is not a shared pool must, unless the occupier has a reasonable excuse, ensure that any gate or door giving access to the pool is kept securely closed at all times when the gate or door is not in use.

Maximum penalty—165 penalty units.

s 245T ins 2010 No. 35 s 14

245U Interference with barriers for regulated pools

(1)A person must not wilfully interfere with a barrier for a regulated pool to which the pool safety standard applies in a way that renders the pool noncompliant with the standard.

Maximum penalty—165 penalty units.

(2)Subsection (1) does not apply to a person—
(a)carrying out fencing work under part 2A, division 3; or
(b)attaching a thing to the barrier if attaching the thing does not unreasonably and materially alter or damage the barrier; or
(c)altering a wall of a building along a common boundary.
(3)In this section—
fencing work see the Neighbourhood Disputes Act, section 16.

s 245U ins 2010 No. 35 s 14

amd 2011 No. 25 s 105 sch 1pt 2

sub 2011 No. 27 s 216

245UA QBCC commissioner may give local government information about regulated pools

(1)This section applies if the QBCC commissioner reasonably suspects the fencing or other barriers for a regulated pool do not comply with the requirements of this Act for the fencing or barriers.
(2)The commissioner may, by notice given to the local government, inform the local government of the commissioner’s suspicions.
(3)The notice must include information about the location of the regulated pool.

s 245UA ins 2010 No. 35 s 14

amd 2014 No. 56 s 68 sch 1

245V When particular local government exemptions about requirements for pool fencing end

(1)This section applies to a local government pool fencing exemption in force for a regulated pool immediately before the day (the relevant day) the owner of the pool must, under this Act, ensure the pool complies with the pool safety standard.
(2)On and from the relevant day for the regulated pool, the local government pool fencing exemption is taken to have no force or effect in relation to the pool.
(3)Subsection (2) applies despite any other Act or law.
(4)In this section—
local government pool fencing exemption
1A local government pool fencing exemption, for a regulated pool, means an exemption, whether partial or otherwise, from compliance with any requirements under a local law or a law of the State about fencing of the pool, if the exemption—
(a)was lawfully given by a local government; and
(b)is in force immediately before the relevant day for the pool.
2However, the term does not include an exemption mentioned in paragraph 1, to the extent the exemption—
(a)applies to a particular occupier of land on which a swimming pool is situated; and
(b)was given solely on the basis of the occupier’s inability to access the pool because of the occupier’s disability; and
(c)is in force immediately before the relevant day for the regulated pool.

s 245V ins 2010 No. 35 s 14

245W When particular local law has no force or effect for regulated pool

(1)This section applies to a provision of a local law to the extent it regulates pool safety matters for a regulated pool.
(2)On the day the owner of the regulated pool must, under this Act, ensure the pool complies with the pool safety standard, the provision of the local law, to the extent it regulates pool safety matters, is taken to have no force or effect in relation to the pool.
(3)In this section—
pool safety matters, for a regulated pool, means—
(a)the construction or maintenance of barriers for the pool; or
(b)a matter for ensuring the safety of persons using a regulated pool and prescribed under section 231D(1), definition pool safety standard, paragraph (b).

s 245W (prev s 246) ins 1993 No. 70 s 804 sch

sub 1998 No. 13 s 12

amd 2003 No. 53 s 8; 2006 No. 59 s 25

sub 2010 No. 35 s 14

renum 2011 No. 27 s 217

Part 2A Neighbours’ rights and responsibilities for particular dividing fences

ch 8 pt 2A hdg ins 2011 No. 27 s 218

Division 1 Introduction

ch 8 pt 2A div 1 hdg ins 2011 No. 27 s 218

245X Overview

(1)A sufficient dividing fence is required between 2 parcels of adjoining land if an adjoining owner requests a dividing fence.

Note—

For the responsibilities of neighbours for dividing fences generally, see the Neighbourhood Disputes Act, chapter 2.
(2)This part—
(a)modifies the responsibilities of neighbours under the Neighbourhood Disputes Act in relation to a dividing fence, or a part of a dividing fence, forming part of a pool barrier; and
(b)provides for a pool owner to construct a pool barrier along the common boundary of adjoining lands.
(3)This part encourages neighbours to attempt to resolve a dividing fence issue informally.
(4)However, if neighbours can not resolve a dividing fence issue, the dispute may be taken to QCAT for resolution.

s 245X ins 2011 No. 27 s 218

Division 2 Interpretation

ch 8 pt 2A div 2 hdg ins 2011 No. 27 s 218

245XA Definitions for pt 2A

In this part—
adjoining land see the Neighbourhood Disputes Act, section 15(3).
adjoining owner see the Neighbourhood Disputes Act, section 15(1) and (2).
dividing fence see the Neighbourhood Disputes Act, section 12.
fence see the Neighbourhood Disputes Act, section 11.
fencing work see the Neighbourhood Disputes Act, section 16.
neighbouring pool, for an adjoining owner, means a regulated pool situated on the adjoining land.
notice of proposed fencing work means a notice under section 245XM.
owner, for land, see the Neighbourhood Disputes Act, section 14.
pool barrier means a barrier for a regulated pool.

Note—

For this part a regulated pool includes other particular swimming pools. See section 231B(3).
pool owner means an owner of land on which there is, or is proposed to be, a regulated pool.
proposed regulated pool means a swimming pool, the construction of which has not been completed, and may not have been started, but for which the relevant person has a building development approval.
special purpose fence means a dividing fence constructed according to a specific design, or using specific materials or dimensions, for the purpose of being an acoustic barrier or complying with any of the following—
(a)a development approval;
(b)a condition of a licence granted by a statutory authority;
(c)an order of a court or tribunal;
(d)an obligation under an Act.

Example—

an enclosure for a regulated dog under the Animal Management (Cats and Dogs) Act 2008
sufficient dividing fence see the Neighbourhood Disputes Act, section 13.

s 245XA ins 2011 No. 27 s 218

Division 3 Rights and responsibilities of pool owners and their neighbours for particular dividing fences

ch 8 pt 2A div 3 hdg ins 2011 No. 27 s 218

245XB Right to construct pool barrier along common boundary

(1)This section applies if—
(a)there is no dividing fence between 2 parcels of adjoining land; and
(b)there is, or is proposed to be, a regulated pool on only 1 of the parcels that will have part of its pool barrier along the common boundary between the parcels.
(2)The pool owner may construct part of the pool barrier along the common boundary if—
(a)the pool owner and adjoining owner have agreed about carrying out the fencing work; or
(b)QCAT has ordered that the fencing work be carried out.
(3)Also, the pool owner may construct part of the pool barrier along the common boundary without the adjoining owner having agreed to the carrying out of the fencing work if—
(a)the pool barrier will, when complete, comply with the pool safety standard; and
(b)the part of the pool barrier along the common boundary will, when complete, be a sufficient dividing fence; and
(c)the pool owner gives the adjoining owner a notice of proposed fencing work at least 14 days before the proposed fencing work is carried out.

s 245XB ins 2011 No. 27 s 218

245XC Walls on common boundary

(1)This section applies if—
(a)there is a wall of a building along the common boundary of 2 parcels of adjoining land; and
(b)there is, or is proposed to be, a regulated pool on the adjoining land without the building.
(2)A pool owner may use any part of the wall as part of a pool barrier that would, without alteration, comply with the pool safety standard.

Note—

The pool owner would need to construct a separate barrier for any part of the wall that does not comply with the pool safety standard. For example, a window in the wall.
(3)However, despite any right of a pool owner under this division, the wall may not be altered, demolished or replaced without the agreement of the owner of the adjoining land on which the building is located.

s 245XC ins 2011 No. 27 s 218

245XD Right to alter or replace existing dividing fence for the purpose of a pool barrier

(1)This section applies if—
(a)there is a dividing fence (the existing dividing fence) between 2 parcels of adjoining land; and
(b)there is, or is proposed to be, a regulated pool on only 1 of the parcels that will use all or part of the dividing fence to form part of the barrier for the regulated pool.
(2)The pool owner may alter or replace all or part of the existing dividing fence if—
(a)the pool owner and adjoining owner have agreed about carrying out the fencing work; or
(b)QCAT has ordered that the fencing work be carried out.
(3)The pool owner may alter or replace all or part of the existing dividing fence without the adjoining owner having agreed about carrying out the fencing work if—
(a)the new fence will, when complete, form part of the barrier for the regulated pool that complies with the pool safety standard; and
(b)the new fence will, when complete, be a sufficient dividing fence; and
(c)the new fence is constructed using similar materials and colours to those of the existing dividing fence if the use of the materials would not prevent compliance with paragraph (a) and (b); and

Note—

Some of the materials acceptable as constituting a sufficient dividing fence would not comply with the pool safety standard.
(d)the pool owner gives the adjoining owner a notice of proposed fencing work at least 14 days before the proposed fencing work is carried out.
(4)Also, if the existing dividing fence is a special purpose fence, the new fence must—
(a)continue to serve the particular purpose that the existing fence serves; and
(b)comply with all the requirements applying to the existing dividing fence, including, for example, requirements about the design of the fence, the materials to be used in the fence or the dimensions of the fence.
(5)Also, if the existing dividing fence is more than 1.8m in height, the new fence must, despite subsection (3)(b), be the same height as the existing dividing fence but otherwise be a sufficient dividing fence.
(6)In this section—
new fence means a fence that has been altered or is a replacement of an existing fence.

s 245XD ins 2011 No. 27 s 218

amd 2013 No. 5 s 94 sch

245XE Right to construct part of the barrier for 2 neighbouring pools along the common boundary or alter or replace existing fence

(1)This section applies if—
(a)there is, or is proposed to be, a regulated pool on each of 2 parcels of adjoining land; and
(b)each regulated pool will use the same part, along the common boundary, of a barrier for a regulated pool.
(2)Either pool owner may—
(a)construct, along the common boundary, the part of the barrier for the pools; or
(b)alter or replace an existing dividing fence to form part of the barrier for the pools; or
(c)attach a thing to the barrier that does not unreasonably and materially alter or damage the fence.
(3)However, a pool owner may act under subsection (2)(a) or (b) only if—
(a)both pool owners have agreed about carrying out the fencing work; or
(b)QCAT has ordered that the fencing work be carried out.
(4)Before carrying out fencing work mentioned in subsection (2)(a) or (b), a pool owner must give the other pool owner a notice of proposed fencing work, unless QCAT has ordered that the fencing work be carried out.
(5)If, within 1 month after the notice is given, the pool owners have not agreed about the proposed fencing work to be carried out or their contributions to the proposed fencing work, either pool owner may, within 2 months after the notice is given, apply to QCAT for an order under section 245XQ.

s 245XE ins 2011 No. 27 s 218

amd 2013 No. 5 s 94 sch

245XF Limited right of neighbour to alter or replace part of pool barrier along a common boundary

(1)This section applies if—
(a)there is part of the barrier for a regulated pool along the common boundary between 2 parcels of adjoining land; and
(b)the part of the barrier is for a regulated pool on only 1 of the parcels.
(2)The neighbour, or another person on behalf of the neighbour, may alter or replace the part of the barrier only if—
(a)the adjoining owner and the pool owner have agreed about carrying out the fencing work; or
(b)QCAT has ordered that the fencing work be carried out.
(3)Also, the neighbour may attach a thing to the part of the barrier that does not unreasonably and materially alter or damage the barrier.
(4)Before carrying out fencing work mentioned in subsection (2), the neighbour must give the other pool owner a notice of proposed fencing work, unless QCAT has ordered that the fencing work be carried out.
(5)If, within 1 month after the notice is given, the neighbour and pool owner have not agreed about the proposed fencing work to be carried out or their contributions to the proposed fencing work, the neighbour or pool owner may, within 2 months after the notice is given, apply to QCAT for an order under section 245XQ.
(6)To remove any doubt, it is declared that subsection (2) or (3) does not alter or otherwise affect a pool owner’s obligation under section 232(1).
(7)In this section—
neighbour means an owner or lessee of adjoining land on the opposite side of the common boundary from adjoining land with a regulated pool.

s 245XF ins 2011 No. 27 s 218

amd 2013 No. 5 s 94 sch

245XG Right to enter adjoining land to carry out fencing work

(1)A person may enter land owned by another person (the other owner) if—
(a)the person has agreed with the other owner to carry out fencing and allow access to the land; or
(b)QCAT has ordered that the fencing work be carried out by the person and that access be granted to the land.
(2)At least 14 days before entering the other owner’s land, the person must give the other owner, and any lessee of the land that the person is aware of, a notice of proposed fencing work.
(3)An employee or agent of the person may enter the land if the person complies with subsection (2).
(4)The person or the person’s employee or agent may enter the other person’s land only at a reasonable time and only to a reasonable extent needed to carry out the fencing work.
(5)This section does not authorise entry to a dwelling on the land.

s 245XG ins 2011 No. 27 s 218

245XH Apportioning cost of constructing etc. dividing fence forming part of a pool barrier

(1)This section applies to carrying out relevant fencing work in relation to a dividing fence forming part of a pool barrier along the common boundary between 2 parcels of adjoining land.
(2)If the dividing fence forms part of a barrier for a regulated pool on only 1 parcel of adjoining land—
(a)to the extent the work is attributable to a pool owner complying with section 232(1), the cost of carrying out the work is to be borne solely by the pool owner; and
(b)to the extent the work is not attributable to a pool owner complying with section 232(1), the cost of carrying out the work is to be borne equally by the pool owner and adjoining owner.
(3)However, the entire cost of a pool owner carrying out the following fencing work is to be borne solely by the pool owner—
(a)altering or replacing a special purpose fence; or
(b)altering or replacing a dividing fence to which section 245XD(5) applies.

Note—

Section 245XD(5) applies to an existing fence more than 1.8m in height.
(4)If the dividing fence forms part of a barrier for a regulated pool on each of the 2 parcels of adjoining land—
(a)to the extent the work is attributable to both pool owners complying with section 232(1), the cost of carrying out the work is to be borne equally by both pool owners; and
(b)to the extent the work is not attributable to both pool owners complying with section 232(1) but is attributable to 1 of the pool owners (the remaining owner) complying with section 232(1), the cost of carrying out the work is to be borne solely by the remaining owner; and
(c)to the extent the work is not attributable to either pool owner complying with section 232(1), the cost of carrying out the work is to be borne equally by both pool owners.
(5)Despite subsection (2) or (4), if the relevant fencing work is altering or maintaining only 1 side of the dividing fence, the cost of carrying out the work is to be borne solely by the owner of the land on that side of the dividing fence.
(6)Despite subsections (2) to (5), if the dividing fence is damaged or destroyed by an act or omission to which section 245XJ applies, the cost of restoring the dividing fencing is to be borne solely by the owner who, under that section, is responsible for the damage or destruction.
(7)In this section—
relevant fencing work means any of the following—
(a)constructing a dividing fence forming part of a pool barrier;
(b)altering or replacing a dividing fence along a common boundary to create a dividing fence forming part of a pool barrier;
(c)maintaining a dividing fence forming part of a pool barrier.

s 245XH ins 2011 No. 27 s 218

amd 2013 No. 5 s 94 sch

245XI Attaching things to a dividing fence forming part of a pool barrier

(1)An owner, or a person who has entered the owner’s land with the owner’s express consent, must not, without the consent of the adjoining owner, attach a thing to a dividing fence forming part of a pool barrier that unreasonably and materially alters or damages the fence.

Examples of an attachment—

carport, shade sails, lattice work, canvas, signs
(2)However, subsection (1) does not apply if the thing was attached to the fence to make the fence comply with the pool safety standard.
(3)If an owner does not comply with this section, the adjoining owner may—
(a)apply to QCAT for an order requiring the owner to remove the thing attached and restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached; or
(b)carry out urgent fencing work under section 245XK to restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached.

s 245XI ins 2011 No. 27 s 218

245XJ Negligent or deliberate act or omission

(1)This section applies if, whether before or after the commencement of this section, a dividing fence forming part of a pool barrier is damaged or destroyed by a negligent or deliberate act or omission of—
(a)an owner of land; or
(b)a person who has entered the owner’s land with the owner’s express consent, whether written or oral.
(2)The owner must restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.

Note—

If the owner does not comply with subsection (2), the adjoining owner may give the owner a notice under section 245XM or carry out urgent fencing work under section 245XK.

s 245XJ ins 2011 No. 27 s 218

245XK Urgent fencing work

(1)This section applies if all or part of a dividing fence forming part of a pool barrier is damaged or destroyed and, in the circumstances, urgent fencing work is required.
(2)If it is impracticable to give a notice under section 245XM, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.

Note—

Contribution from an owner to the cost of the urgent fencing work may be obtained after giving a notice to the owner under section 245XN.
(3)The cause of the damage or destruction does not affect the operation of this section.
(4)However, if the dividing fence is damaged or destroyed in a way that renders a regulated pool, that uses the fence to form part of its pool barrier, noncompliant with the pool safety standard—
(a)urgent fencing work is taken to be required; and
(b)it is taken to be impracticable to give notice under section 245XM.

s 245XK ins 2011 No. 27 s 218

Division 4 Process for obtaining contribution and resolving disputes

ch 8 pt 2A div 4 hdg ins 2011 No. 27 s 218

Subdivision 1 Introduction

ch 8 pt 2A div 4 sdiv 1 hdg ins 2011 No. 27 s 218

245XL Overview

(1)Adjoining owners are encouraged to attempt to resolve issues about fencing work to avoid a dispute arising.
(2)If an owner wants an adjoining owner to contribute to fencing work under this part, the owner must give the adjoining owner a notice under subdivision 2.
(3)QCAT resolves disputes between adjoining owners if the dispute arises about carrying out fencing work for a dividing fence forming part of a pool barrier.

Note—

See division 5 for the process for dealing with unauthorised fencing work.

s 245XL ins 2011 No. 27 s 218

Subdivision 2 Notices

ch 8 pt 2A div 4 sdiv 2 hdg ins 2011 No. 27 s 218

245XM Notice of proposed fencing work

(1)If an owner must give notice of proposed fencing work under division 3, the notice must be in the approved form and state the following—
(a)a description of the fencing work proposed to be carried out, including the design, dimensions and materials to be used;
(b)if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence;

Note—

A dividing fence must ordinarily be constructed on the common boundary.
(c)if entry is needed to an adjoining owner’s land—
(i)a description of the parts of the land to which entry is proposed; and
(ii)the proposed times of entry.
(2)Subsections (3) and (4) apply if—
(a)an owner may, under this part, seek a contribution from another owner for carrying out fencing work; and
(b)the owner proposes to seek the contribution from the other owner.
(3)The notice must also state the following—
(a)the estimated cost of the fencing work to be carried out including the cost of labour and materials;
(b)the proposed proportions of contribution.

Note—

An adjoining owner may contribute by a payment of an amount or provision of labour or materials.
(4)The notice must be accompanied by a copy of at least 1 written quotation stating the estimated cost of the fencing work to be carried out.

s 245XM ins 2011 No. 27 s 218

amd 2013 No. 5 s 94 sch

245XN Notice to contribute for urgent fencing work

(1)This section applies if—
(a)an owner carried out urgent fencing work under section 245XK; and
(b)an adjoining owner is responsible for all or some of the costs of carrying out the fencing work under section 245XH.
(2)The owner may require the adjoining owner to contribute the adjoining owner’s share of any reasonable cost incurred for the urgent fencing work by giving a notice to the adjoining owner.
(3)Reasonable costs incurred for urgent fencing work may include the cost of using a temporary fence as part of a pool barrier if use of the temporary fence was reasonable in the circumstances.
(4)The notice must—
(a)be in the approved form; and
(b)state the following—
(i)a description of the fencing work carried out, including the design, dimensions and materials used;
(ii)the reason urgent fencing work was required;
(iii)if a temporary fence was used—the reason for using the temporary fence;
(iv)any cost incurred for the fencing work;
(v)the proposed contributions for the fencing work; and
(c)include a receipt for the cost incurred for the fencing work.
(5)If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 245XQ.

s 245XN ins 2011 No. 27 s 218

Subdivision 3 Resolving disputes

ch 8 pt 2A div 4 sdiv 3 hdg ins 2011 No. 27 s 218

245XO Jurisdiction

(1)QCAT has jurisdiction to hear and decide any matter arising under this part.
(2)If there is more than 1 fence on the boundary of adjoining land, QCAT may decide which of the fences is the dividing fence for this part and order the removal of the other fence or fences.
(3)If there is a fence other than a dividing fence on adjoining land, QCAT may order that it be removed if QCAT considers its removal is necessary to allow fencing work for a dividing fence.

s 245XO ins 2011 No. 27 s 218

245XP Representation

Without limiting the QCAT Act, section 43, in a proceeding under this part an adjoining owner may be represented by a real estate agent.

Note—

The QCAT Act, section 43 allows a person to be represented by someone else if the person has impaired capacity or the person has been given leave by QCAT.

s 245XP ins 2011 No. 27 s 218

245XQ Orders about carrying out fencing work

(1)QCAT may, for an application about fencing work for a dividing fence forming part of a pool barrier, decide and order 1 or more of the following—
(a)the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land;
(b)the fencing work to be carried out, including the kind of dividing fence involved and any access to land for carrying out the fencing work;
(c)the way in which contributions for the fencing work are to be apportioned or reapportioned or the amount that each adjoining owner is liable to pay for the fencing work if the order is consistent with section 245XH;
(d)the part of the dividing fence to be constructed or repaired by either adjoining owner;
(e)when the fencing work is to be carried out;
(f)any other work to be carried out that is necessary to carry out the fencing work ordered including work for a retaining wall;
(g)that a fence has been used, or could lawfully be used, as a dividing fence forming part of a pool barrier;
(h)the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence forming part of a pool barrier caused by the other adjoining owner or a person mentioned in section 245XJ(1)(b);
(i)that an adjoining owner remove a thing attached to a dividing fence and restore the fence;
(j)the amount of compensation payable to an adjoining owner for the removal of a fence under section 245XO(3);
(k)whether or not a dividing fence forming part of a pool barrier would comply with the pool safety standard;
(l)any other matter necessary for the administration of this part.
(2)The occupation of land on either side of a dividing fence forming part of a pool barrier, as a result of an order that fencing work is to be carried out on a line other than on the common boundary of the adjoining land, does not affect the title to, or possession of, the land.

s 245XQ ins 2011 No. 27 s 218

245XR Matters for QCAT consideration

In deciding an application under this part QCAT may consider all the circumstances of the application, including the following—
(a)any existing or previously existing dividing fence;
(b)the purposes for which the 2 parcels of adjoining land are used, or intended to be used;
(c)the kind of dividing fence normally used in the area;
(d)whether the dividing fence is capable of being maintained by the adjoining owners;
(e)any policy adopted, or local law made, about dividing fences by a local government for the area where either parcel of land is situated;
(f)any requirement for fencing work in a development approval for the land of either adjoining owner;
(g)any written agreement made between the adjoining owners for the purposes of this part;
(h)the pool safety standard.

s 245XR ins 2011 No. 27 s 218

245XS Application for order in absence of adjoining owner

(1)An owner may apply to QCAT for an order, in the absence of the adjoining owner, authorising the carrying out of fencing work, including the way in which contributions for the work are to be apportioned.
(2)An order may be made under subsection (1) only if QCAT is satisfied that the owner could not locate the adjoining owner after making all reasonable inquiries.

Examples of reasonable inquiries—

searching the electoral roll or telephone directory
making inquiries with immediate neighbours, tenants, real estate agents and the local government about where the adjoining owner is
(3)An owner who carries out fencing work authorised by an order under this section and who later locates the adjoining owner may—
(a)give a copy of the order to the adjoining owner; and
(b)after 1 month from the day of giving a copy of the order, recover from the adjoining owner the adjoining owner’s contribution as stated in the order.
(4)The adjoining owner given a copy of an order under subsection (1) may, within 1 month after being given the copy, apply to QCAT for a variation of the order and QCAT may vary the order in any way it considers appropriate.
(5)This section continues to apply to the owner or adjoining owner even if, after the order was made, the owner or the adjoining owner stopped owning the relevant parcel of land consisting of the adjoining land.

s 245XS ins 2011 No. 27 s 218

Division 5 Process for dealing with unauthorised fencing work

ch 8 pt 2A div 5 hdg ins 2011 No. 27 s 218

245XT Unauthorised fencing work

An owner is taken to have carried out fencing work for a dividing fence forming part of a pool barrier without authorisation unless—
(a)the adjoining owners have agreed under this part about the fencing work being carried out; or
(b)QCAT has ordered that the fencing work be carried out; or
(c)the fencing work is carried out under division 3.

s 245XT ins 2011 No. 27 s 218

245XU Application before unauthorised fencing work

(1)This section applies if an owner believes on reasonable grounds that an adjoining owner intends to carry out fencing work for a dividing fence forming part of a pool barrier without authorisation.
(2)The owner may apply to QCAT for an order preventing the adjoining owner from carrying out the fencing work.
(3)The owner must give the adjoining owner a copy of the application at least 1 day before the application is heard.

Note—

Under the Acts Interpretation Act 1954, section 38(3), if the day before the application is heard falls on a day that is not a business day, the last day for giving a copy of the application is taken to be the next earlier business day.
(4)On application under this section, QCAT may make an order preventing the adjoining owner from demolishing, or tampering with, the dividing fence.

s 245XU ins 2011 No. 27 s 218

245XV Application after unauthorised fencing work

(1)This section applies if an owner carried out fencing work for a dividing fence forming part of a pool barrier without authorisation.
(2)The adjoining owner, for whom the dividing fence forms part of a pool barrier, may apply to QCAT for an order requiring the owner to rectify the dividing fence.
(3)The adjoining owner must give the owner a copy of the application at least 3 days before the application is heard.
(4)On application under this section, QCAT may make an order requiring the owner to—
(a)rectify the fencing work; and
(b)bear the costs of the rectification.

s 245XV ins 2011 No. 27 s 218

Division 6 Process if common boundary not agreed

ch 8 pt 2A div 6 hdg ins 2011 No. 27 s 218

245XW Process if common boundary not agreed

(1)This section applies if adjoining owners do not agree on the position of the common boundary for the purposes of carrying out fencing work under this part.
(2)An owner may give a notice to the adjoining owner, or the adjoining owner’s agent, of the owner’s intention to have the common boundary defined by a cadastral surveyor engaged by the owner.
(3)If an adjoining owner is given a notice under subsection (2), the adjoining owner may, within 1 month after the notice is given—
(a)have the common boundary defined by a cadastral surveyor engaged by the adjoining owner and give the owner written advice of the common boundary as defined by the cadastral surveyor; or
(b)give the owner written advice of the common boundary as defined by the adjoining owner if the adjoining owner is satisfied of the accurate position of the common boundary.
(4)Unless an owner who has given notice under subsection (2) receives advice under subsection (3)(a), the owner may have the common boundary defined by a cadastral surveyor engaged by the owner.
(5)If the common boundary defined by a cadastral surveyor engaged by the owner under subsection (4) is in about the same position as the position defined by the adjoining owner in an advice under subsection (3)(b), the adjoining owner is not liable for any of the reasonable cost of engaging the cadastral surveyor.
(6)If subsection (5) does not apply—
(a)adjoining owners are each liable for half the reasonable cost of engaging a cadastral surveyor under this section to define the position of the common boundary; and
(b)if 1 adjoining owner pays the entire cost, the half payable by the other adjoining owner is recoverable as a debt by the first adjoining owner.
(7)In this section—
cadastral surveyor means a person registered as a cadastral surveyor under the Surveyors Act 2003.

s 245XW ins 2011 No. 27 s 218

Division 7 General

ch 8 pt 2A div 7 hdg ins 2011 No. 27 s 218

245XX Measurement of the height of a dividing fence or pool barrier

If a provision of this part relates to the height of a dividing fence or pool barrier, the height of the fence or barrier is to be measured using—
(a)for a provision that relates to a regulated pool on only 1 of 2 parcels of adjoining land—the side of the fence or barrier on the adjoining land with the regulated pool; or
(b)for a provision that relates to a regulated pool on each of 2 parcels of adjoining land—the shorter side of the fence or barrier.

s 245XX ins 2011 No. 27 s 218

245XY Substantial compliance is adequate

Substantial compliance with any agreement, notice or order mentioned in this part is adequate for this part.

s 245XY ins 2011 No. 27 s 218

245XZ Giving documents

(1)A document may be given to a person under this part in the following ways—
(a)leaving it with someone who is apparently an adult living at the relevant address;
(b)if there is no-one at the relevant address—leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention;
(c)if the relevant address is within a building or area to which the person who gives the document has been denied access—leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention;
(d)posting it to the relevant address.
(2)In a proceeding relating to this part, evidence of giving a document may be given orally or by affidavit.
(3)For this section, a justice may take and receive an affidavit whether or not any matter to which the affidavit relates is pending in any court or QCAT.
(4)If there are 2 or more joint owners of land and a person can not locate every owner, the document is taken to have been given to all joint owners if the person gives the document to at least 1 of the joint owners under this section.
(5)This section does not limit the operation of the Acts Interpretation Act 1954, part 10.
(6)In this section—
document means a notice or a copy of an order under this part.
relevant address, for a person to be given a document, means the person’s usual or last known place of residence or business and includes the person’s address as provided by a local government from its records.

s 245XZ ins 2011 No. 27 s 218

246 Descriptions in notice

A description of land or a fence, line or boundary in a notice under this part is adequate if it allows no reasonable doubt about which land, fence, line or boundary is stated or if it is shown that the person given the notice knew the relevant land, fence, line or boundary.

s 246 ins 2011 No. 27 s 218

Part 3 Inspections of regulated pools and the giving of pool safety certificates

ch 8 pt 3 hdg ins 2010 No. 21 s 10

Division 1 Inspections of regulated pools by pool safety inspectors

ch 8 pt 3 div 1 hdg ins 2010 No. 21 s 10

246A[Repealed]

s 246A ins 2009 No. 51 s 29

om 2012 No. 8 s 6

246AA Obligation to give pool safety certificate on inspection in particular circumstances

(1)This section applies if a pool safety inspector inspects a regulated pool and the inspector is reasonably satisfied the pool is a complying pool.
(2)The pool safety inspector must, within 2 business days after the inspection, give the owner of the pool a pool safety certificate for the pool.
(3)The pool safety inspector must not refuse to give a pool safety certificate for the pool only on the ground that—
(a)there is no development approval to carry out building work that is the construction of, or alteration to, the pool (the pool work); or
(b)the pool work does not comply with the development approval for the pool work.

s 246AA ins 2010 No. 21 s 10

246AB Nonconformity notice

(1)This section applies if a pool safety inspector inspects a regulated pool (an initial inspection) and the inspector is not satisfied the pool is a complying pool.

Note—

Under section 246BE, if a pool safety inspector inspects a regulated pool that is not a complying pool, the inspector may, in particular circumstances, carry out minor repairs relating to the pool before giving a pool safety certificate for the pool.
(2)Subject to subsections (3) and (4), the pool safety inspector must, within 2 business days after the inspection, give the owner of the pool a notice (a nonconformity notice) stating—
(a)the pool is not a complying pool; and
(b)how the pool is not a complying pool; and
(c)what must be done to make the pool a complying pool; and
(d)that the owner may ask the pool safety inspector to reinspect the pool within 3 months after the giving of the nonconformity notice (the reinspection period); and
(e)that it is an offence for the owner to ask, in the reinspection period, a person other than the following to inspect the pool for the giving of a pool safety certificate for the pool—
(i)if the owner initially asked the local government to inspect the pool—the local government;
(ii)if the owner initially asked the pool safety inspector to inspect the pool—the pool safety inspector; and
(f)that the pool safety inspector must notify the local government if the owner does not ask the pool safety inspector to reinspect the pool within the reinspection period.
(3)The pool safety inspector is not required to give the owner of the pool a nonconformity notice if, within 2 business days after the initial inspection—
(a)the pool safety inspector reinspects the pool and is reasonably satisfied the pool is a complying pool; or
(b)the owner and the pool safety inspector agree that the inspector will carry out particular minor repairs to make the pool a complying pool and, within 20 business days after the making of the agreement—
(i)the inspector carries out the minor repairs; and
(ii)on reinspection of the pool, the inspector is reasonably satisfied the pool is a complying pool.
(4)If, within 2 business days after the initial inspection—
(a)the owner of the pool and the pool safety inspector agree that the inspector will carry out particular minor repairs to make the pool a complying pool; and
(b)within 20 business days after the making of the agreement—
(i)the pool safety inspector has not carried out the repairs; or
(ii)on reinspection of the pool, the inspector is not reasonably satisfied the pool is a complying pool;

the pool safety inspector must, within a further 2 business days, give the owner a nonconformity notice for the pool.

(5)A nonconformity notice must include an information notice about the decision.

s 246AB ins 2010 No. 21 s 10

amd 2011 No. 27 s 219

246AC Steps after nonconformity notice

(1)This section applies if a pool safety inspector gives the owner of a regulated pool a nonconformity notice for the pool.
(2)If, within the reinspection period, the owner asks the pool safety inspector to reinspect the pool, the pool safety inspector must reinspect the pool within 5 business days after the request or the longer period that the owner and inspector agree.
(3)Sections 246AA and 246AB apply to the reinspection of the pool.
(4)If the owner fails to ask the pool safety inspector to reinspect the pool within the reinspection period, the inspector must, within 5 business days after the end of the reinspection period—
(a)notify the local government of the failure; and
(b)give the local government a copy of the nonconformity notice.

Note—

See also section 246BD (Effect of pool safety inspector not complying with Act if no penalty provided).
(5)The owner of the pool may, in the reinspection period, ask only the following person to inspect the pool for the giving of a pool safety certificate for the pool—
(a)if the owner initially asked the local government to inspect the pool—the local government;
(b)if the owner initially asked the pool safety inspector to inspect the pool—the pool safety inspector.

Maximum penalty—50 penalty units.

(6)Subsection (5) does not apply if—
(a)the owner of the pool, by written request to the QBCC commissioner, asks the commissioner to allow a person other than the person mentioned in subsection (5) to reinspect the pool for the giving of a pool safety certificate for the pool; and
(b)the commissioner gives the owner of the pool a notice agreeing to the request.

s 246AC ins 2010 No. 21 s 10

amd 2014 No. 56 s 68 sch 1

246ACA Special provision for pool inspection in remote areas

(1)If a pool safety inspector is engaged to inspect a regulated pool situated in a remote area, the pool safety inspector—
(a)need not carry out an on-site inspection of the pool; and
(b)may, for this Act, inspect the pool by using documents or any technology allowing the pool safety inspector to satisfy himself or herself about whether the pool is, or is not, a complying pool.
(2)In this section—
prescribed local government means a local government prescribed under a regulation for this section.
remote area means a part of the area of a prescribed local government that the local government—
(a)is satisfied is a remote area for this section because of its remoteness from the business premises of persons who perform pool safety inspection functions; and
(b)has by resolution declared to be a remote area for this section.

s 246ACA ins 2010 No. 35 s 15

246AD Record-keeping requirements for inspections

(1)This section applies if a pool safety inspector inspects a regulated pool under this part.
(2)The pool safety inspector must, for at least 5 years from the day the pool is inspected, keep a record of the inspection, including any pool safety certificate and nonconformity notice given, unless the inspector has a reasonable excuse.

Maximum penalty—20 penalty units.

s 246AD ins 2010 No. 21 s 10

Division 2 Functions of local government for inspections of regulated pools

ch 8 pt 3 div 2 hdg ins 2010 No. 21 s 10

246ADA Requirement to inspect particular pools

(1)This section applies if a local government receives for a regulated pool—
(a)notice of a pool immersion incident under section 245I; or
(b)a pool safety complaint notice; or
(c)a notice under section 245UA.
(2)The local government must, as soon as practicable after receiving the notice, inspect the regulated pool for compliance with—
(a)if under this Act the owner of the pool must ensure the pool complies with the pool safety standard for the pool—the pool safety standard; or
(b)otherwise—the fencing standards for the pool.
(3)However, the local government need not, under subsection (2), inspect a regulated pool for which the local government has received a pool safety complaint notice if the local government reasonably considers the complaint is vexatious.
(4)The local government must not charge a fee for an inspection under subsection (2) relating to a notice mentioned in subsection (1)(a) or (b).
(5)If, after the inspection, the local government is satisfied the pool does not comply with the pool safety standard or fencing standards for the pool (the relevant standards), the local government must take necessary enforcement action to ensure the pool complies with the relevant standards.
(6)In this section—
fencing standards, for