Page 5588 - Week 14 - Thursday, 30 November 2017
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prospective purchaser and the developer might allow broad variations. Where a purchaser believes that the building is significantly different from the plan they will need to follow the dispute settlement procedures set out in the contract, which may involve civil proceedings.
(2) No, but builders are required to inform EPSDD of changes to Development Approvals (DA).
(3) There is no requirement under building or planning legislation to inform a prospective purchaser of a variation. There may be a requirement within the provisions of the relevant purchase contract.
(4) Any rights the prospective purchaser has in this situation are set out in their contract. The terms of the contract are subject to Australian Consumer Law, and where relevant the applicable common law.
(5) Building Approval (BA) amendments can only be made with the consent of the owner. The owner is defined as the Lessee who is named of the certificate of title for the land. While the apartments are being constructed it is the Lessee who approves amendments and variations to the BA, in most cases the lessee and the developer are the same entity.
A prospective purchaser (as in someone contracting for an off the plan purchase) does not become an owner until the building is completed, strata titled, and settlement is finalised.
(6) Common walls between units/townhouses must meet the requirements of the Building Code of Australia (BCA), also referred to as the National Construction Code. This includes structural sufficiency, fire resistance, and acoustic insulation.
(7) No, EPSDD does not have the power to prosecute a builder for failure to comply with the Building Act 2004 as this power sits with the Construction Occupations Registrar (the Registrar), whose functions were transferred into Access Canberra three years ago.
During 2012 and 2014 when the Registrar was located in EPSDD there was one prosecution (occupational discipline in ACAT) of a builder for non-compliance with the National Construction Code. Between 2015 and to date, Access Canberra has not prosecuted a builder for non-compliance with the National Construction Code. The Registrar has a wide range of other powers with respect to licence holders including the ability to condition licences to control the behaviour of licensees. Prosecutions have limited effect in resolving defects in buildings and are generally used only in cases of persistent non-compliance on the part of the licence holder.
(8) No, EPSDD does not have the power, however EPSDD did have the power prior to creation of Access Canberra. Between 2012 and 2014, occupational discipline was undertaken successfully by the Registrar against one builder, which related to a number of issues including “not building in accordance with approved plans”. Between 2015 and to date, Access Canberra has not prosecuted any builders for “not building in accordance with approved plans”. The Registrar has a wide range of other powers with respect to licence holders including the ability to condition licences to control the behaviour of licensees. Prosecutions have limited effect in resolving defects in buildings and are generally used only in cases of persistent non-compliance on the part of the licence holder.
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