This Practice Note provides guidance on when mandatory notifications must be provided to the relevant building surveyor during building work, to allow inspections to be carried out at mandatory stages. It also defines the roles and responsibilities of practitioners involved in the inspection process that are to be adopted moving forward.
Mandatory notification stages are prescribed stages of building work allowing inspection to verify compliance with the Building Act 1993, (the Building Act), Building Regulations 2018 (the Regulations), and the building permit up to that point.
The figures and context of this Practice Note provide guidance for:
For inspections to occur, the RBS must determine what inspections are required and then list them on the building permit. The builder must notify the RBS upon completion of each mandatory notification stage of work. The RBS is the only person who can cause a person to inspect the building work on their behalf.
Inspections must occur at certain completed stages of building work that has been prescribed by the Regulations, with the RBS having discretion to omit certain stages not relevant to the building works. The applicable mandatory inspection notification stages, as determined by the RBS, are listed on the building permit.
These inspections enable assessment of building work ensuring key structural, safety and amenity matters are compliant up to that stage of work. They also allow an assessment of compliance more broadly against the building permit.
Where directed by the RBS (Section 33(2)), the builder must not continue to carry out relevant work beyond the applicable mandatory notification stage. For example, allowing the relevant work to be covered up and not able to be inspected.
An RBS direction can be instigated from:
If a direction to not continue work is given, the RBS must clearly document this decision and how the advice to the builder was given to ensure they are aware of their responsibilities. This is important as:
| Mandatory notification stage | Regulation |
|---|---|
| The construction of a new building or alteration to an existing building | Regulation 167 |
| The demolition or removal of a building | Regulation 168 |
| The construction of a swimming pool or spa | Regulation 169 |
| Additional mandatory inspections for Class 2, 3, 4, 9a and 9c part of a building | Regulation 172 |
Under Regulation 171, when assessing the building permit the RBS must determine which prescribed mandatory notification stages apply to the building work.
Regulation 170 allows the RBS to omit a mandatory notification stage under Regulation 167 for a new building or alterations to an existing building, if they are not relevant to the building work. Otherwise, all prescribed stages must be specified in the building permit and must be inspected, per Section 34.
If a building permit has multiple types of building work, such as construction of a swimming pool, retaining wall, dwelling and new shed, the building permit must:
Where possible, when listing mandatory inspection stages in the permit, the RBS should use the same terms as in the Regulations. This can be supported by an additional explanation of the works for the builder and owner. This is important for the BPC to take enforcement action against a Section 33 breach.
The RBS should also consider adding a condition to the building permit, providing clear direction or confirmation that the building work must not continue beyond the relevant mandatory notification stage unless authorised by the RBS.
Regulation 167, for construction or alteration of a building, prescribes the stages of building work. It describes the building work part, and not the portion or percentage of the works associated with that part. The Regulation therefore does not provide the RBS discretion, and all work relating to that building part requires notification and subsequent inspection.
In contrast, Regulation 172, for fire and smoke resisting building elements, gives the RBS discretion, by using terms such as in each storey ‘at least one’, when relating to certain elements that must be inspected (a stair shaft, for each storey), depending on the specific element. The discretion available allows for more than the minimum of one.
The RBS must nominate the different construction elements that incorporate in situ reinforced concrete member on the building permit (Regulation 167 (b)). When these elements are included in the design it constitutes a mandatory notification stage for inspection. Some examples prior to pouring concrete include (but are not limited to):
Section 35 provides a general power for an RBS to cause an inspection of the building work at any time, whether or not a mandatory stage has been completed. Accordingly, when assessing the building permit application, the RBS should consider if any additional inspections should occur, beyond the prescribed mandatory notification stages.
If the RBS determines that additional inspections should be undertaken, they can require these as a condition of the building permit. However, these are not defined as mandatory inspection stages under Section 33.
Examples of elements of building work that the RBS may require additional inspections are:
The RBS should discuss any additional inspections with the applicant or the builder for the building permit to confirm the requirement to call for the inspections.
Section 35 may also apply when an RBS has received a complaint or reason to question continued compliance. The RBS is authorised to enter a building or land using their powers of entry under Subdivision 5 of Division 2 of Part 13 of the Building Act, to:
This inspection can be carried out at any reasonable time.
After the completion of each mandatory notification stage, the builder must notify the RBS indicating that it is ready for inspection.
Once notified, if the the RBS:
Where a builder engages an endorsed building engineer or other prescribed person to inspect building work they may do so at any time. However, this does not remove the need to notify the RBS of a mandatory inspection stage, nor can it be used in place of a mandatory inspection. Only the RBS can cause the mandatory inspection to take place.
Inspections required under Section 34 or authorised under Section 35 may only be carried out by the RBS, or by a person authorised by the RBS under Section 35B. The RBS has a statutory obligation to ensure that any person conducting inspections on their behalf under Section 35B is appropriately registered.
Accordingly, where the builder proposes to use a person other than the RBS to undertake an inspection, the details of the person must be provided to the RBS for review and approval before the RBS can cause the inspection to be undertaken.
| Offences under the Building Act | Relevant section |
|---|---|
| Failure to notify the RBS of when a mandatory inspection is ready to be inspected | Section 33(1) |
| Failure to stop work when directed | Section 33(2) |
| If a builder engages another person to carry out the inspection instead of making the appointment through the RBS | Section 33 |
These offences will result in the RBS notifying the BPC. The BPC will review the matter and undertake any relevant disciplinary action and/or prosecution. This can include investigations, financial penalties and other measures.
If building work continues and the work cannot be properly inspected, the RBS may cause any building work to be demolished, opened up or cut into or tested where reasonably required to facilitate the carrying out of an inspection under Part 4 of the Building Act.
There can be significant consequences, including discipline or court action, for failure to comply with a DTF, whether by the builder or their subcontractors, and for requesting or receiving payment for any costs arising from rectifying DTF non-compliance. Refer to Practice Note NO-02: Direction to Fix Building Works.
To maintain building safety standards, the RBS has a critical role in ensuring that inspections at mandatory notification stages are carried out in accordance with the legislation.
When notified of the completion of a mandatory notification stage, the RBS may:
The RBS must not cause another person to carry out inspections unless that person is:
The RBS must ensure that all inspections at mandatory notification stages, including reinspection to determine compliance with a DTF, are carried out in person (Section 34). The RBS cannot conduct the mandatory inspection by relying on photographs, drone, video, declarations, or reports. Whilst these may supplement the RBS in determining compliance, an inspection in person must still be undertaken.
Where the building work being inspected is complex, the RBS can cause multiple persons to inspect the building work.
As part of the same mandatory inspection, an endorsed building fire safety engineer may inspect fire and smoke resisting elements and a building inspector may inspect other aspects of the same building work.
Notification of a mandatory inspection stage is not simply an inspection of one specific element. It is to assess overall compliance of the building work with the Act, Regulations and building permit up to that point in time. Therefore, the RBS should consider the suitability of the person who carries out the inspection at the mandatory notification stage to have holistic oversight of compliance.
A pre-slab inspection includes checking the siting of the building, not just the suitability of the founding material or size of the edge/internal beams.
Where the RBS causes a person specified in Section 35B to inspect the work on their behalf, the RBS remains responsible for the proper inspection of the work.
The RBS should:
An endorsed building engineer engaged to carry out inspections for structural matters may not have full appreciation for all building permit or NCC compliance issues that relate to that building element. For instance, an endorsed building engineer may not be suitably qualified to consider the siting or amenity issues that affect compliance during an inspection. The RBS must account for any potential gaps in oversight by engaged parties.
During a frame inspection the engineer may not consider the wall height may be exceeded on boundary, or check sill heights of windows affecting overlooking, fall protection or the amenity requirements for childcare or aged care facilities.
If the RBS believes the building work fails to comply with the Building Act, Regulations, or the building permit following an inspection, they should issue a DTF (where appropriate). Refer to Practice Notes NO-02: Direction to Fix building work and NO-01: Building Notices and Building Orders.
If the non-compliances are resolved in the DTF process, the RBS should then reinspect and record as an approved mandatory inspection stage and the building work is compliant, leaving no doubt that the non-compliances have been resolved.
If a builder fails to comply with a written DTF, following reinspection, the RBS should record that the mandatory inspection stage has not been approved and include details of the non-compliant building work.
The RBS has a statutory responsibility to notify the BPC where a builder does not comply with Section 33. Refer to statutory referrals for inspection notifications.
The RBS also must keep suitable records of inspections, and other compliance matters. Refer to RBS record-keeping.
Persons who may carry out an inspection of building work on behalf of an RBS are set out in Section 35b. This person must be either an appropriately registered building surveyor or building inspector, or a prescribed person under Regulation 174.
It is an offence for a person to carry out work as an inspector if they are not appropriately registered and authorised to carry out that work. The inspector can only undertake the inspection if authorised by the RBS and must act on behalf of the RBS and under their direction.
The inspector must not approve variations to the building permit or approve works that do not comply with the Building Act, Regulations and building permit.
An endorsed building engineer must understand the scope for a request or engagement to carry out an inspection, for any type of building work.
A builder or owner may request an inspection for due diligence or quality control, or to request direction for any queries arising from the engineering design. An inspection of this type is not within the scope of this practice note.
Any directions given by the engineer that leads to a variation to the endorsed plans and building permit, are not authorised and cannot proceed without first obtaining approval from the RBS through an amendment to the building permit.
An endorsed building engineer can only carry out inspections as prescribed by Regulation 174, in relation to the prescribed class of building work and prescribed classes of persons.
Where the RBS causes or agrees to an endorsed building engineer to carry out inspections:
Any Regulation 126 certificate of compliance for building work (domestic construction) must be signed by the person who carried out the inspection (in person) and who is an endorsed building engineer registered in the category for the prescribed class of works.
Regulation 174 prescribes the classes of inspections (regardless of building classification) and prescribed classes of persons to carry out the inspections for building work relating to:
Section 33(3) requires that where the RBS becomes aware of any non-compliance with sub-Sections (1) or (2), they must notify the BPC. The BPC expects that this notification is done promptly, to enable action to be taken against the builder at that stage, and to prevent future harm to building occupants.
This includes situations where the builder directly engages a person other than the RBS to inspect the building work at mandatory notification stages (for example an endorsed building engineer) without prior agreement by the RBS. The RBS is responsible for oversight of compliance for the building work at that point in time and should be reasonably satisfied of compliance, or otherwise must carry out appropriate enforcement action.
Failure to promptly notify the BPC is in contravention of Section 33 and may be considered as not acting in the public interest, not acting impartially or independently or having a conflict of interest. This may be considered a failure by the RBS to comply with the Building Surveyor Code of Conduct (Section 177D) which may also attract disciplinary action (Section 179(1)(b)).
An RBS that does not notify the BPC of Section 33 breaches until after building occupancy, is likely to have their conduct assessed for disciplinary action, because their actions may have put future building occupants at risk.
To assist the RBS to make Section 33 referrals, the BPC has developed webforms accessible within the Building Activity Management System (BAMS) for Section 33(1) and Section 33(2). This webform is the approved form that must be used by the RBS.
The webform has been designed to make it easier for the RBS to include the relevant information and documentation to help the BPC to support the RBS to enforce compliance. Refer to using the referrals portal.
Certain information needs to be included in the referral to enable BPC enforcement action. The RBS must also submit a clear statement about how they became aware of the mandatory inspection stage, any inspections, or directions given. This helps the BPC to establish that a breach has occurred and to enable action against the builder.
Refer to statutory referrals for inspection notifications for details required in statements, and material to be provided with the referral. This can include building permit documentation, linking the permit stages to the Regulations stages, enforcement actions taken with evidence of the service they provided, and relevant notices related to designated building surveyors under Section 80, 80A(3) or 80A(4).
An e-learning module has been developed to support the RBS in the referral process and making statements in the referral form.
The RBS remains responsible for the compliance matters under the building permit and their engagement, regardless of the referral to the BPC. This includes continuing to take required enforcement action such as issuing a DTF. The BPC will support the RBS by engaging with the builder to support co-operation with the RBS and to consider appropriate action against the builder. This can include disciplinary actions, issuing a caution, or for more serious offences, such as prosecution.
