The NSW Building Commission’s extraordinary powers – Construction & Planning

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023
(Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it
extraordinary powers to enter construction sites, inspect work and
take away information and materials.

In 2020, the introduction of the Residential Apartment Buildings (Compliance and
Enforcement Powers) Act 2020 (RAB Act) created the NSW
Building Commissioner. The role of the Commissioner is to regulate
the building of residential apartment buildings in NSW. The
Commissioner has been active in exercising his powers. This
includes issuing 10 stop work orders, 16 prohibition orders and 81
rectification orders in NSW to the date of writing.

The new Building Commission is a broader body, formed from parts
of the Department of Fair Trading and the Building
Commissioner’s office. Its role is extended to regulating all
residential building in NSW.

The Amendment Bill added to the
Home Building Act 1989 (NSW) give the Commissioner power
to authorise any person to enter into any residential building
under construction in NSW and to:

• Examine and inspect anything;




• Take and remove samples;




• Make examinations, inquiries, measurements or tests the
  authorised person considers necessary;




• Take photographs or other recordings the authorised person
  considers necessary;




• Direct a person to produce records for inspection;




• Examine and inspect records;




• Copy records; and




• Seize items if the authorised person has reasonable grounds for
  believing it is connected with an offence or a defect in a
  building.

• The Commission can also conduct destructive testing if the
  authorised person has reasonable grounds for believing that it is
  necessary. Developers and builders of residential buildings in NSW
  should anticipate an inspection by the Building Commission during
  construction.

One extraordinary element of this power is that any person
authorised by the Commissioner may enter any buildings or parts of
buildings that aren’t being lived in without a warrant or
justification. These powers to enter and alter private property
without permission extend beyond those currently held by the NSW
Police.

The Commission’s power to issue orders extends to all
residential buildings in NSW. The Commission can issue:

• Stop work orders;




• Prohibition orders; and




• Rectification orders;

Failure to comply with a rectification order will also attract
large maximum penalties of up to $330,000 for a corporation and
$110,000 for an individual.

If you’re currently involved in residential building
and require further advice in relation to the Building
Commissioner’s powers, please contact our Building and Construction
team.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.