Accreditation requirements | Statutory warranties | Insurance | Remedies

In Tasmania the primary legislation regulating the building industry is the Building Act 2000 (Tas) (Building Act) and the Housing Indemnity Act 1992 (Tas) (Housing Indemnity Act).

Accreditation requirements

There have been various changes made to the definitions under the Building Act by the Building Amendment Act 2012 (the Amendment Act) which commenced on 29 November 2012.

The Amendment Act requires that, other than some limited exceptions, persons who 'manage, carry out or enter into a contract to manage or carry out the work of a building practitioner in connection with building work which requires a building permit, and the cost of which exceeds $5,000' must be accredited.

'Builder' now means a person engaged by the owner of land or a building to manage or carry out, or certify, building work on the building and now includes a construction manager and a demolisher.

'Building practitioner', as before, includes a designer, surveyor (or assistant surveyor) or a builder.

Where a building practitioner is a body corporate or partnership, a director, partner or nominated permanent employee may be accredited.

'Building work' means work relating to:

  • erecting, re-erecting, constructing, altering, repairing, underpinning, demolishing or removing a building; or
  • adding to a building; or
  • excavating or filling incidental to an activity referred to in the two paragraphs above; or
  • any other prescribed work (the Regulations to the Building Act state this to include work relating to unregistrable relocatable buildings or shipping containers, fire safety systems, heating/cooling/ventilation systems, passenger lifts and plumbing works).

Persons exempted from accreditation include employees of accredited builders or bodies corporate, plumbers carrying out certain work and persons carrying out certain electrical work.

An application for accreditation and renewal must be submitted to the Director of Building Control.

Offences concerning accreditation

New offences have been brought in with respect to accreditation as part of the Amendment Act. As before, it is an offence for a person who is not accredited to purport to be an accredited building practitioner. However, now persons must be accredited to perform surveyor work. The Amendment Act also provides that it will be an offence to purport to be accredited in a different class, to use another's accreditation, to lend or allow use of one's accreditation, or to use a practitioner's accreditation.

Future of Housing Indemnity Act

The Residential Building Work Quality (Warranties and Disputes) Bill 2012 (Tas) (the Bill) has been passed by the Tasmanian Parliament. The Bill will replace the Housing Indemnity Act. The date of commencement of the Bill is unclear at the time of writing.

The Bill is intended to work alongside the
Building and Construction Industry Security of Payment Act 2009 (Tas) and the Building Act to provide a framework for building in Tasmania.

According to the explanatory materials provided, the benefits of the proposed legislation are expected to be:

  • fairer statutory warranties;
  • less confusion about the contracting processes;
  • fairer contracts and contract administration; and
  • a ‘one stop shop’ alternative dispute resolution service for both contractors and residential home owners.

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Statutory warranties

The Housing Indemnity Act implies warranties in every building work contract. The Bill similarly implies warranties into every building work contract. These include warranties as to the manner in which the work will be performed and the materials to be used.

These statutory warranties cannot be excluded and apply to successors in title.

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The Building Act  requires building practitioners to maintain prescribed insurance, as set out in the Ministerial Order of 30 July 2008 and amended by the Ministerial Order of 11 May 2011.

The current prescribed insurance policies for all builders (for all projects they contract for or work on) will be contract works insurance and public liability insurance. The distinction between domestic and commercial builders has been removed.

If a building practitioner performs work without the prescribed insurance coverage, or falsely maintains that they possess the required insurance coverage, that building practitioner will be liable to pay a penalty and will automatically lose its certificate of accreditation.

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Complaints about building practitioner

Complaints about building practitioners may be made to the Director of Building Control. The Director has broad investigative powers and is empowered to determine whether a building practitioner is guilty of unsatisfactory professional conduct or professional misconduct.

There is a
limitation period of six years within which actions regarding a complaint about a building practitioner can be brought under the Building Act.

Remedies under the Housing Indemnity Act and the Bill

Claims can be made for breach of statutory warranties within six years and six months from completion of the works.

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Updated 11 October 2013