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Building Act 2002 (NI)

  • Act Applied Law - C2018Q00054
  • In force - Superseded Version
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Act No. 5 of 2002
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 30 Oct 2018
Start Date 29 Sep 2018
End Date 12 Aug 2019

 

NORFOLK                            ISLAND

 

Building Act 2002

No. 5, 2002

Compilation No. 3

Compilation date:                              29 September 2018

Includes amendments up to:            Norfolk Island Continued Laws Ordinance 2015
(No. 2, 2015)

 


 

NORFOLK                            ISLAND

 

BUILDING ACT 2002

 

TABLE OF PROVISIONS

PART 1  —  PRELIMINARY

         1.      Short title

         2.      Commencement

         3.      The Crown and the Administration

         4.      Application of other laws

         5.      Interpretation

PART 2  — NORFOLK ISLAND BUILDING CODE

         6.      Regulation to provide for Norfolk Island Building Code

         7.      Adoption of Australian Building Code or other standards in Norfolk Island Building Code

         8.      Public access

PART 3 – BUILDING ACTIVITY APPROVAL PROCESS

Division 1 – Building applications

         9.      Applicants

       10.      Application process

       11.      Resumption of application by owner

       12.      Effect of change of ownership

       13.      Amendment of application

       14.      Withdrawal of application

       15.      Building application in relation to existing building or structure

       16.      Matters to be considered

       17.      Deciding building applications

       18.      Staged development

       19.      Notice of decision to applicants

       20.      Public inspection of decision and accompanying documents

       21.      Time limits for dealing with applications

Division 2 – Modifications to building approvals

       22.      Modifications only if building activity remains substantially the same

       23.      Applications for modification of building approvals

       24.      Application process

       25.      Withdrawal of building approval modification application

       26.      Deciding building approval modification applications

       72.      Notices to applicants

       28.      Chief Executive Officer may approve minor adjustments

Division 3 - Miscellaneous

       29.      Effect of approval

       30.      Revocation of approval

       31.      When building approval lapses

PART 4 – REGULATION OF BUILDING ACTIVITIES

Division 1 – Carrying out building activities

       32.      Building activities to comply with building approval, etc

       33.      Requirements for carrying out building work

       34.      Notification when stages reached

       35.      Accreditation of building products, etc

       36.      Effect of accreditation

Division 2 – Occupation or use of premises

       37.      Compliance declaration and occupancy certificate required before occupation or use of premises

       38.      Compliance declaration

       39.      Responsibility for  compliance declaration

       40.      Occupancy certificate

       41.      Effect of occupancy certificate

Division 3 – Offences about certificates and compliance declarations

       42.      False certificates and declarations

PART 5 – ADMINISTRATIVE REVIEW

       43.      Reviewable decision

       44.      Review

PART 6 – ENFORCEMENT

Division 1 – Sanctions

       45.      Compliance order for unapproved building activity

       46.      Compliance with compliance orders

       47.      Restitution by Administration

       48.      Court may prohibit carrying out of building work for persistent offender or for serious offence

       49.      Register of compliance orders and court orders

       50.      Documentary evidence

       51.      False information

       52.      Obstruction of officials

       53.      Powers of entry

       54.      Entry orders

       55.      Search warrants

       56.      Inspection of places

Division 2 – Offences

       57.      Failure to help authorised officer

       58.      Failure to give information

PART 7 - MISCELLANEOUS

       59.      Delegation by Minister

       60.      Delegation by Chief Executive Officer

       61.      Authorised officers

       62.      Protecting officials from liability

       63.      Regulations

       64.      Effect of documents being “available for public inspection”

PART 8 – REPEALS AND SAVINGS

       65.      Repeal of Building Act 1996

       66.      Building approvals under the Building Act 1996

       67.      Building applications pending under the Building Act 1996


 

NORFOLK                            ISLAND

Building Act 2002

 

An Act in association with the Planning Act 2002 to provide for controls on building activity and the use of buildings, and for related purposes.

 

part 1  —  Preliminary

 

Short title

      1.         This Act may be cited as the Building Act 2002.

Commencement

      2.         (1)        Section 1 and this section commence on the day on which this Act is notified in the Gazette.

                  (2)        The remaining provisions commence on a day, or respective days, fixed by the Administrator by notice in the Gazette.

The Crown and the Administration

      3.         (1)        This Act binds the Crown and the Administration.

                  (2)        Nothing in this Act makes the Crown or the Administration liable to be prosecuted for an offence.

Application of other laws

      4.         Nothing in this Act limits or derogates from the operation of any other enactment.

Interpretation

      5.         (1)        In this Act, unless the contrary intention appears —

“alteration”, in relation to a structure, includes an addition or extension;

“authorised officer” means a person appointed as such under section 61;

“building” includes —

(a)        a structure on or attached to land; and

(b)        an addition to a building; and

(c)        a structure attached to a building; and

(d)       a part of a building;

“building activity” means —

(a)        the construction of a structure;

(b)        the alteration of a structure;

(c)        the demolition of a structure;

(d)       the removal, or the removal and relocation, of a structure;

(e)        earthworks in excess of 50 m2 or 50 m3,

but not an activity declared to not be a building activity in the Regulations;

“building application” means an application under Part 3 for approval of a building activity;


“building approval” means an approval under Part 3 of a building activity;

“building approval modification application” means an application to modify a building approval under section 23;

“Building Code of Australia” means the Building Code of Australia prepared and published by the Australian Building Codes Board as amended from time to time;

“building work” means the actual physical work for or in connection with the construction, erection, alteration, demolition or removal of —

(a)        a building or structure; or

(b)        plumbing, gasfitting or drainage services, whether or not connected to a building, other than services carried out by or on behalf of the Administration relating to the mains sewer facility as defined in the Environment Act 1990;

“carry out”, in relation to building work, includes to cause to be carried out;

“classification” means the classification for the time being of buildings and structures as prescribed by the Building Code of Australia (BCA 96), Volume 1, Part A3;

“compliance order” means a notice given under section 45;

“construction” includes erection;

“development approval” means a development approval under the Planning Act 2002;

“earthworks” means the excavation, removal, shifting or depositing of earth, topsoil, spoil or fill;

“Norfolk Island Building Code” or “the Code” means the Code established by section 6, as amended from time to time;

“Norfolk Island Plan” means the Norfolk Island Plan established by the Planning Act 2002;

“occupancy certificate” in relation to a building or part of a building, means an occupancy certificate issued under section 40 in relation to the building or part of a building and in force;

“owner”, in relation to land means –

(a)        a person in whom is vested a freehold estate in the land; or

(b)        a lessee of the land under a Crown lease; or

(c)        a sublessee of the land under a Crown lease, if –

(i)         the sublease is for a term of 5 years or more; and

(ii)        the sublease is approved under the Crown Lands Act 1996; or

(d)       a person to whom a right to the grant of a Crown lease has been granted under the Crown Lands Act 1996; or

(e)        a lessee of the land under a lease for a term of 5 years or more registered under the Conveyancing Act 1913 or the Land Titles Act 1996; or

(f)        a sublessee of the land under a sublease for a term of 5 years or more registered under the Conveyancing Act 1913 or the Land Titles Act 1996; or

(g)        in relation to unleased Crown land – the Crown;

“prescribed fee” means a fee prescribed under the Regulations for the purpose of the provision in which the expression occurs;

“prescribed standards” means the standards for the construction, alteration, demolition or removal of structures prescribed or adopted by the Norfolk Island Building Code;

“structure” includes —

(a)        a building, wall or fence; and

(b)        a mobile structure,

but not anything prescribed not to be a structure by the Regulations;

“substantially completed” , in relation to a building, means completed to a stage at which the building can reasonably be used for the purpose for which the building approval for the building was granted and in accordance with the building’s classification under its building approval;

“this Act” includes the Regulations.

                  (2)        For the definition “substantially completed” in subsection 5(1), the Chief Executive Officer may by instrument publish guidelines for determining whether a building has reached a stage at which the building can reasonably be used for the purpose for which the building approval for the building was granted and in accordance with the building’s classification under its building approval.

                  (3) The guidelines may include criteria which may be considered in making a determination such as whether –

(a)        reticulated water is connected to and provided throughout the building; and

(b)        sanitary installations are installed as required and are operational; and

(c)        electrical wiring has been completed and electricity supply connected to the building; and

(d)       the building is structurally adequate; and

(e)        the internal wall and ceiling have been lined.

                  (4)        An instrument published under subsection 5(3) is a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.

Part 2  — NORFOLK ISLAND BUILDING CODE

Regulation to provide for Norfolk Island Building Code

      6.         (1)        The Regulations shall provide for a Norfolk Island Building Code by prescribing or adopting standards for the construction, alteration, demolition and removal of structures consistent with the objects of the Planning Act 2002 in relation to building activities.

                  (2)        The prescribed standards may include different standards for different building activities.

Adoption of Australian Building Code or other standards in Norfolk Island Building Code

      7.         (1)        The Norfolk Island Building Code may adopt as prescribed standards all or part of —

(a)        the Building Code of Australia, as in force at a particular time, or as in force from time to time, with such modifications and additions (if any) as are specified in the Regulations; and

(b)        any code, standard or other document prepared or issued by the Standards Association of Australia or any other authority or body, whether or not an Australian authority or body as in force at a particular time, or as in force from time to time, with such modifications and additions (if any) as are specified in the Regulations.

                  (2)        A code, standard or other document adopted under this section may require anything referred to in the code, standard or other document to be in accordance with any other code, standard or document referred to in the code, standard or other document.

Public access

      8.         The Norfolk Island Building Code, including codes, standards and other documents adopted by the Code, shall be available for public inspection.

PART 3  —  BUILDING ACTIVITY APPROVAL PROCESS

Division 1  —  Building applications

Applicants

      9.         (1)        A building application for building approval may be made by —

(a)        the owner of the land to which the application relates;

(b)        another person with the owner’s permission.

                  (2)        A building application by a person with the permission of the owner of the relevant land shall be accompanied by written confirmation signed by the owner that permission has been granted to the person to make the application.

Application process

      10.       (1)        A building application shall be made to the Chief Executive Officer.

                  (2)        The application shall be accompanied by —

(a)        such documents as the Chief Executive Officer requires; and

(b)        the information (if any) prescribed by the regulations; and

(c)        the prescribed fee (if any) for an application of that type; and

(d)       if the building application is submitted by a person who is not the owner of the relevant land – the written confirmation mentioned in subsection 9(2); and

(e)        where applicable, a copy of the relevant development approval.

                  (3)        The Chief Executive Officer may, if the Chief Executive Officer considers it reasonable in the circumstances—

(a)        waive the requirement that an applicant provide any of the information referred to in paragraph 10(2)(b); or

(b)        require an applicant to provide relevant information or documents alternative or additional to the information or documents referred to in paragraphs 10(2)(a) and 10(2)(b) by sending written notice to the applicant.

                  (4)        A requirement under paragraph 10(3)(b) shall be made within 14 days of receipt of the application.

                  (5)        A prescribed fee under paragraph 10(2)(c) may include an amount for inspections of the building work for the building activity under the building approval by an authorised officer required under this Act.

Resumption of application by owner

      11.       (1)        A building application referred to in paragraph 9(1)(b) may be taken over by the owner of the land to which the application relates by sending written notice to the Chief Executive Officer signed by the owner.

                  (2)        Where a building application is taken over under this section, the application is to be taken for all purposes to have been made by the owner of the relevant land.

Effect of change of ownership

      12.       (1)        Where, after a building application is made, the ownership of the land to which the application relates changes, the application lapses unless the new owner, within 21 days of the change, takes over the application by sending to the Chief Executive Officer written notice accordingly, signed by the new owner.

                  (2)        A building application taken over under this section is to be taken for all purposes to have been made by the new owner of the land.

Amendment of application

      13.       A building application may, with the consent of the Chief Executive Officer be amended by the applicant at any time before its determination.

Withdrawal of application

      14.       (1)        A building application may be withdrawn at any time up to the time a decision is made on the application under section 16.

                  (2)        The Chief Executive Officer may refund to the applicant the whole or part of the prescribed fee which accompanied the application.

Building application in relation to existing building or structure

      15.       Nothing in this Division prevents a building application being made in relation to an existing building or structure whether completed or not.

Matters to be considered

      16.       (1)        In considering a building application, the Chief Executive Officer shall have regard to the following matters —

(a)        any development approval for the land on which the building activity is proposed and the approval conditions;

(b)        the standards and requirements specified in the Norfolk Island Building Code for building activities of the kind for which building approval is sought;

(c)        any other matters considered by the Chief Executive Officer to be relevant.

                  (2)        A building approval must not be given for a building activity for which a development approval is required, under the Planning Act 2002, unless the development approval has been given.

Deciding building applications

      17.       (1)        The Chief Executive Officer shall, within 28 days after receiving the application, determine a building application by —

(a)        giving building approval for the building activity; or

(b)        refusing to give building approval for the building activity.

                  (2)        A building approval may be subject to conditions.

                  (3)        Without limiting the conditions which may be imposed, conditions of approval may include conditions —

(a)        requiring the activity to be carried out within a specified time or stages to be completed at specified times; and

(b)        for notification of the Chief Executive Officer when specified stages of building work are reached; and

(c)        for inspection by authorised officers at specified stages as the activity is carried out; and

(d)       requiring provision of security in a specified form for compliance with the building approval including its conditions.

                  (4)        An approval may modify prescribed standards specified in the Norfolk Island Building Code for that type of building activity provided the modification is consistent with the objectives of the standards specified in the Code and do not significantly conflict with the objectives of the Norfolk Island Plan.

                  (5)        The standards as modified under subsection 17(4) shall be taken to be the standards under the Norfolk Island Building Code for that activity.

                  (6)        If the building work involves stages prescribed by the Regulations, the building approval shall be subject to a conditions under subsection 17(3) in relation to those stages.

Staged development

      18.       (1)        A building approval may be given for —

(a)        the building activity for which approval is sought; or

(b)        that building activity except a specified part or aspect of that building activity; or

(c)        the specified part or aspect of that building activity.

                  (2)        A building approval may be given subject to a condition that the building activity, or a specified part of the building activity, shall be subject to another building approval.

Notice of decision to applicants

      19.       (1)        Within 3 days after the making a decision about a building application, the Chief Executive Officer shall give the applicant notice of the decision.

                  (2)        The notice of the decision shall include —

(a)        a statement of reasons for the decision;

(b)        particulars of the applicant’s right to apply to the Administrative Review Tribunal for review of the decision.

Public inspection of decision and accompanying documents

      20.       (1)        The decision and accompanying documents of a building application shall be available for public inspection.

                  (2)        Failure to comply with this section does not affect the validity of the decision.

Time limits for dealing with applications

      21.       (1)        A building application which is not dealt with by way of —

(a)        approval;

(b)        approval subject to a condition; or

(c)        refusal,

within 28 days from the making of the application is to be taken to have been refused approval for the purposes of Part 5.

                  (2)        The Chief Executive Officer may by writing extend, or further extend, the time limit for dealing with an application, before the expiry of the time limit, or extended time limit (as the case may be).

                  (3)        The aggregate period for any extension or further extension of a time limit under subsection 21(2) is not to exceed 56 days.

Division 2  – Modifications to building approvals

Modifications only if building activity remains substantially the same  

      22.       This Division only applies where a building activity under a building approval, if modified as proposed under this Division, remains substantially the same activity.

Applications for modification of building approvals

      23.       (1)        An application for modification of a building approval may be made by any person who may under section 9 apply for the building approval.

                  (2)        A building approval modification application made by a person who is not the owner of the relevant land shall include written confirmation signed by the owner that permission has been granted to the person submitting the application.

                  (3)        An application referred to in subsection 23(1) may be taken over by the owner of the land to which the application relates by sending written notice to the Chief Executive Officer signed by the owner.

                  (4)        Where an application is taken over under this section, the application is to be taken for all purposes to have been made by the owner of the relevant land.

                  (5)        Where, after an application is made, the ownership of the land to which the application relates changes, the application lapses unless the new owner, within 21 days of the change, takes over the application by sending to the Chief Executive Officer written notice accordingly, signed by the new owner.

                  (6)        An application taken over under this section is to be taken for all purposes to have been made by the new owner of the land.

                  (7)        Without limiting the modifications that may be made, a modification of a building approval under this Division may include modification to —

(a)        the structure approved under the building approval;

(b)        conditions of the building approval (including times or stages specified in conditions);

(c)        dates specified in the approval under section 17.

Application process

      24.       (1)        A building approval modification application shall be made to the Chief Executive Officer.

                  (2)        The application shall be accompanied by —

(a)        such information or documents as the Chief Executive Officer requires; and

(b)        the prescribed fee (if any) for an application of that type.

                  (3)        The Chief Executive Officer may, if the Chief Executive Officer considers it reasonable in the circumstances —

(a)        waive the requirement that an applicant provide any of the information referred to in subsection 24(2); or

(b)        require an applicant to provide relevant information or documents alternative or additional to the information or documents referred to in paragraph 24(2)(a), by sending written notice to the applicant.

                  (4)        A requirement under paragraph 24(3)(b) shall be made within 7 days of receipt of the application.

Withdrawal of building approval modification application

      25.       (1)        A building approval modification application may be withdrawn at any time up to the time a decision is made on the application under section 26.

                  (2)        The Chief Executive Officer may refund to the applicant the whole or part of the prescribed fee which accompanied the application.

Deciding building approval modification applications

      26.       (1)        The Chief Executive Officer shall determine a building approval modification application within 7 days after the later of—

(a)        receiving an application under subsection 24(1); or

(b)        receiving information required under paragraph 24(3)(b).

                  (2)        The determination shall be to —

(a)        modify the building approval; or

(b)        refuse to modify the building approval.

Notices to applicants

      27.       (1)        Within 3 days after making a decision about a building approval modification application, the Chief Executive Officer shall give the applicant notice of the decision.

                  (2)        The notice of the decision shall include —

(a)        a statement of the reasons for the decision; and

(b)        particulars of the applicant’s right to apply to the Administrative Review Tribunal for review of the decision.

Chief Executive Officer may approve minor adjustments

      28.       The Chief Executive Officer may, on written application of a person by whom a building application may be made, amend a building approval if the Chief Executive Officer is satisfied that —

(a)        the amendment is only of a minor nature; and

(b)        the nature and extent of the change in building activity is not significant.

Division 3  –  Miscellaneous

Effect of approval

      29.       (1)        A building approval authorises the carrying out of the building activity specified in the approval in accordance with the approval.

                  (2)        The approval continues, subject to this Act, notwithstanding the death or winding up of the applicant for the approval, or any change in ownership of the land.

Revocation of approval

      30.       A building approval is only revocable in accordance with the written consent of the owner of the land in relation to which the approval is given.

When building approval lapses

      31.       Where the building activity, the subject of a building approval, has not been substantially completed in accordance with the approval by the date prescribed by the Regulations, the building approval lapses on the prescribed date.

PART 4  –  REGULATION OF BUILDING ACTIVITIES

Division 1  —  Carrying out building activities

Building activities to comply with building approval, etc

      32.       (1)        A person shall not carry out a building activity without building approval for that activity.

                  (2)        A person shall not commence building work for a building activity under a building approval unless the Chief Executive Officer has been given 48 hours prior notice, in writing, of the commencement of the work.

                  (3)        A person shall carry out a building activity in accordance with a building approval including any conditions and standards of the approval or specified in or adopted by the Norfolk Island Building Code for that activity.

                  (4)        A person who contravenes a provision of this section commits an offence.

Penalty:

(a)        if the offender is an individual — 200 penalty units or imprisonment for 12 months, or both;

(b)        if the offender is a body corporate — 600 penalty units.

Requirements for carrying out building work

      33.       (1)        A person shall not carry out building work unless —

(a)        the material used in the building work conforms to the standards prescribed by the Code for material for that work; and

(b)        the methods of use of materials in the building work conform to acceptable methods of use set out in the Norfolk Island Building Code; and

(c)        the building work is carried out in a proper, skilful and tradesmanlike manner in accordance with the Norfolk Island Building Code; and

(d)       where building approval is required to carry out the work, the building work is carried out in accordance with the plans approved by the building approval.

                  (2)        The person who is in charge of building work shall take the specified safety precautions in relation to the building work.

                  (3)        In subsection 33(2) —

“specified safety precautions” in relation to building work are —

(a)        any precautions specified in the building approval for the building work as may be modified by precautions referred to in paragraph 33(3)(b); and

(b)        any precautions specified from time to time by an authorised officer.

Penalty for contravention of subsection 33(1) or 33(2):

(a)        200 penalty units; and

(b)        in addition, a daily penalty not exceeding 5 penalty units.

                  (4)        In this section —

“daily penalty” means a penalty for each day on which any offence is continued, after a compliance order has been given under section 45.

Notification when stages reached

      34.       (1)        This section applies where a building approval provides for notification of the Chief Executive Officer when specified stages of building work are reached.

                  (2)        Once a specified stage is reached, a person shall not carry out any further building work unless —

(a)        the required notice has been given to the Chief Executive Officer; and

(b)        the person who carries out building work —

(i)         has completed the work; and

(ii)        has issued a compliance declaration in relation to the part of the building work carried out; and

(iii)       has certified in the compliance declaration that the person is satisfied that the building work has been completed in accordance with the building approval and this Act; and

(c)        the building work has been inspected by an authorised officer who gives written permission for building work to continue.

                  (3)        If further building work has been carried out in contravention of subsection 34(2), the authorised officer may issue an order (which is taken to be a compliance order under section 45) to the person who carried out the work or, alternatively, the owner of the land, to demolish or remove or carry out such other work is necessary to allow the authorised officer to carry out a proper inspection required under this section.

                  (4)        A person to whom a requirement is made shall promptly comply with the requirement.

Penalty for contravention of subsection 34(2) or 34(4):

(a)        20 penalty units; and

(b)        in addition, a daily penalty not exceeding 1 penalty unit.

                  (5)        In this section —

“daily penalty” means a penalty for each day on which any offence is continued, after a compliance order has been given under section 45.

                  (6)        Where a person fails to give a notice referred to in subsection 34(1), the Minister may, if security has been provided under the building approval pursuant to section 17, whether or not a person is prosecuted for the failure, apply a prescribed amount of the security towards the administration of this Act.

                  (7)        The Chief Executive Officer shall ensure that an authorised officer carries out the inspection as soon as practicable.

                  (8)        An authorised officer who carries out an inspection and forms the opinion that building work does not comply with the  requirements of section 33 shall give the person in charge of the building work written directions as are reasonable and appropriate to achieve compliance.

Accreditation of building products, etc

      35.       (1)        A building product, construction method, design, component or system accredited by a person or body prescribed by the Regulations for the purposes of this section is accredited for the purposes of this Act.

                  (2)        The accreditation is subject to such conditions or variations, if any, imposed by the person or body from time to time and remains in force until the accreditation is revoked by the person or body.

Effect of accreditation

      36.       (1)        An authorised officer shall not refuse to approve building work on the ground that a building product, construction method, design, component or system connected with the building work is unsatisfactory if the product, method, design, component or system is accredited by a prescribed person or body and it complies with the accreditation.

                  (2)        The Regulations may provide for the issue of certificates of accreditation for building products, construction methods, designs, components and systems accredited by a person or body.

Division 2  —  Occupation or use of premises

Compliance declaration and occupancy certificate required before occupation or use of premises

      37.       (1)        A person shall not occupy or use a building in or on which building work for a building activity is carried out after the commencement of this section unless —

(a)        a compliance declaration for the building has been given to the Chief Executive Officer after the work has been carried out; and

(b)        there is an occupancy certificate for that occupation or use.

                  (2)        A person shall not occupy or use a building in contravention of an occupancy certificate issued for the building.

Penalty for contravention of subsection 37(1) or 37(2):

(a)        if the offender is an individual — 200 penalty units or imprisonment for 12 months, or both;

(b)        if the offender is a body corporate – 600 penalty units.

                  (3)        In this section —

“building” includes part of a building.

Compliance declaration

      38.       (1)        A compliance declaration shall be issued by the person who carried out the building work for the structure to the owner of the structure and the Chief Executive Officer, if the person is satisfied that the building work has been completed in accordance with the building approval and this Act.

                  (2)        A person who carries out building work but does not complete the work shall issue a compliance declaration in relation to the part of the building work carried out if the person is satisfied that the building work has been completed in accordance with the building approval and this Act.

                  (3)        A person shall not issue a compliance declaration unless the building work to which it relates has been carried out in accordance with the building approval and this Act.

                  (4)        An authorised officer may, by written notice to a person whom the officer reasonably believes has carried out building work, require the person to give by a specified date, a declaration stating, in relation to building work carried out by the person for the structure —

(a)        whether the person is satisfied that the building work has been completed in accordance with the building approval and this Act; and

(b)        if not satisfied, what building work is required to make the building work comply with the building approval and this Act.

                  (5)        The person shall comply with the notice.

Penalty for a contravention of subsection 38(1), 38(2), 38(3) or 38(5):

(a)        if the offender is an individual — 200 penalty units or imprisonment for 12 months, or both;

(b)        if the offender is a body corporate  — 600 penalty units.

Responsibility for  compliance declaration

      39.       The Administration is not liable for any errors in the compliance declaration or any omissions from the compliance declaration.

Occupancy certificate

      40.       (1)        An occupancy certificate shall be issued by the Chief Executive Officer if —

(a)        the Chief Executive Officer has received —

(i)         a compliance declaration or declarations in relation to all the building work approved under the building approval ; and

(ii)        a list of all inspections of the building work made in relation to the inspection stages specified in the building approval for the work; and

(b)        on inspection carried out by an authorised officer, the officer gives a certificate stating that the officer is satisfied that the building complies with the approved plans.

                  (2)        An occupancy certificate shall specify in relation to the whole or part of a building —

(a)        the classification of the building or part to which the occupancy certificate relates; and

(b)        such of the prescribed conditions as apply in relation to the building or parts of the building.

Effect of occupancy certificate

      41.       (1)        An occupancy certificate merely authorises the use of a building or part of a building for the purposes specified in the certificate.

                  (2)        The issuing of an occupancy certificate and the certificate issued do not, in any way, act as a warranty or guarantee by the Administration, the Chief Executive officer or any other person performing a function under this Act.

Division 3  —  Offences about certificates and compliance declarations

False certificates and declarations

      42.       (1)        A person shall not give any person a document representing it to be a compliance declaration or occupancy certificate that is not a compliance declaration or occupancy certificate, as the case may be.

                  (2)        A person shall not make a compliance declaration that is false in any material particular.

Penalty for a contravention of subsection 42(1) or 42(2):

(a)        if the offender is an individual — 200 penalty units or imprisonment for 12 months, or both;

(b)        if the offender is a body corporate — 600 penalty units.

part 5  —  administrative review

Reviewable decisions

      43.       (1)        The following decisions of the Chief Executive Officer made upon building applications are reviewable decisions for the purposes of this Act —

(a)        grant of a building approval;

(b)        decisions on conditions for a building approval;

(c)        a refusal to grant a building approval.

                  (2)        Also, the following decisions are reviewable decisions for the purposes of this Act —

(a)        a decision on a building approval modification application under section 26;

(b)        a compliance order by an authorised officer under section 45.

Review

      44.       (1)        Application may be made to the Administrative Review Tribunal for the review of a reviewable decision within the meaning of section 43.

                  (2)        For the purposes of section 16 of the Administrative Review Tribunal Act 1996, a person whose interests are affected by the decision are —

(a)        for a decision made on a building application, the applicant;

(b)        for a compliance order —

(i)         the person to whom the order is given; and

(ii)        the owner of the land in relation to which the compliance order was given.

Part 6  —  enforcement

Division 1  —  Sanctions

Compliance order for unapproved building activity

      45.       (1)        This section applies where, in the opinion of an authorised officer based on reasonable grounds, a person (the “offending person”) is carrying out, or has carried out building activity —

(a)        without or otherwise than in accordance with a building approval for that activity; or

(b)        in contravention of this Act; or

(c)        without taking appropriate safety precautions; or

(d)       which is not completed within the time specified in the building approval for the activity.

                  (2)        The authorised officer may give a written notice (a “compliance order”) to the person whom the authorised officer believes on reasonable grounds is the offending person, and order any one or more of the following —

(a)        the activity to stop;

(b)        the activity to be completed within a specified period; or

(c)        the activity to be carried out in accordance with the building approval; or

(d)       the activity or such of the activities as are specified in the compliance order to be carried out in a particular manner or to a specified standard; or

(e)        within a specified period any specified action to reverse any effects of the activity or non-compliance to be undertaken.

                  (3)        If a person to whom the compliance order is given is not the owner of the land, the authorised officer shall, as soon as practicable, give the owner a copy of the compliance order.

                  (4)        Failure to comply with subsection 45(3) does not affect the validity of a compliance order.

Compliance with compliance orders

      46.       (1)        The offending person and the owner of the land shall ensure that the compliance order is complied with.

Penalty:

(a)        if the offender is an individual — 200 penalty units or imprisonment for 12 months, or both; and

(b)        if the offender is a body corporate — 600 penalty units; and

(c)        in addition, a daily penalty not exceeding 5 penalty units.

                  (2)        In this section —

“daily penalty” means a penalty for each day on which any offence is continued, after a compliance order has been given under section 45.

                  (3)        The court may, whether or not a person is convicted of an offence, order the person to do such things as are specified in the court’s order to ensure this Act is complied with which may include the demolition of the building or structure and restoration of the site to its original condition so far as practicable.

                  (4)        Subsections 46(5) and 46(6) apply where —

(a)        work for a building activity is not completed within the time specified in the building approval for the activity; and

(b)        a compliance order is given to a person ordering the activity to be completed within a specified period; and

(c)        within 7 days after the giving of the order, a building application or building approval modification application is made in respect of the activity.

                  (5)        The person shall not be prosecuted for an offence under subsection 46(1) relating to the period from the date the application is made to the date the application is determined.

                  (6)        If a building approval is granted or modified to extend the time for completing the activity, the compliance order lapses.

Restitution by Administration

      47.       (1)        If, in the opinion of an authorised officer based on reasonable grounds, a person fails to comply with a compliance order or a court order under section 46, the Minister may give written notice to the owner of the land stating that —

(a)        the order has been given; and

(b)        specified works necessary to comply with the order have not been carried out; and

(c)        if the works are not carried out within a specified period —

(i)         the Administration intends to have the work carried out; and

(ii)        the cost of carrying out the works is recoverable against the owner.

                  (2)        If the specified works are not carried out within the specified period, the Minister may cause such works to be carried out.

                  (3)        The cost of carrying out works under subsection 47(2) is a debt due and payable to the Administration by the person to whom the order was directed, and may be recovered by the Administration in a court of competent jurisdiction.

                  (4)        No action lies against the Crown, the Administration or any person carrying out works under subsection 47(2) for anything done or omitted to be done, in good faith in relation to the carrying out or purported carrying out of those works.

Court may prohibit carrying out of building work for persistent offender or for serious offence

      48.       (1)        This section applies where the court is satisfied that a person —

(a)        has been convicted of several offences against this Act; or

(b)        persistently breached compliance orders; or

(b)        has contravened this Act in a way that resulted in standards of construction of a building or other structure were seriously breached.

                  (2)        The court may, whether or not the person is convicted of an offence, order that the person shall not carry out any building work or building work of a type specified in the order.

                  (3)        The court may, on application, revoke or modify an order under subsection 48(2).

Register of compliance orders and court orders

      49.       (1)        The Chief Executive Officer shall maintain a Register of Compliance orders.

                  (2)        The following details shall be recorded in the register in relation to each compliance order —

(a)        the name and address of the offending person and the owner of the property;

(b)        the address of the site of the works the subject of the order;

(c)        the details of the order;

(d)       whether there is an appeal against the order and, if so, the outcome of the appeal.

                  (3)        The Register of Compliance orders shall be available for public inspection.

                  (4)        In this section —

“compliance order” includes —

(a)        a compliance order as confirmed, revoked or modified on appeal; and

(b)        a court order made under section 46.

Documentary evidence

      50.       In any civil or criminal proceedings, a copy of a building approval, or of a compliance order, is evidence —

(a)        that the approval or notice was given; and

(b)        of the contents of the approval or notice.

False information

      51.       (1)        A person shall not knowingly make a false or misleading statement in connection with a building approval application by that person or any other person.

                  (2)        A person shall not make a false or misleading statement with the intention of misleading a person performing a function under this Act.

                  (3)        A person who contravenes a provision of this section commits an offence.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

Obstruction of officials

      52.       A person shall not obstruct or hinder a person performing a function under this Act.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

Powers of entry

      53.       (1)        An authorised officer may enter a place for the purposes of this Act in any of the following circumstances —

(a)        with the consent of an occupier of the place;

(b)        if the place is open to the public, whether or not on payment of a fee;

(c)        where there is a building approval for a building activity to be carried out in or on the place, with the consent or at the request of the person carrying out the work for the activity;

(d)       in accordance with an entry order under section 54;

(e)        in accordance with a search warrant under section 55.

                  (2)        An authorised officer shall not enter or remain in a place unless —

(a)        if the entry is pursuant to an entry order — the officer produces the order;

(b)        if the entry is pursuant to a search warrant — the officer produces the warrant; or

(c)        in any other case — the officer produces his or her instrument of appointment, or a copy of that instrument.

                  (3)        An authorised officer shall only enter a place for the purposes of obtaining further information in relation to a building application if reasonable steps have been taken to secure the attendance of an occupier of the place.

                  (4)        For the purpose of asking the occupier of a place for consent to enter, an authorised officer may, without the occupier’s consent, an entry order or a warrant —

(a)        enter land around the place to an extent that is reasonable to contact the occupier; or

(b)        enter part of the place the authorised officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.

Entry orders

      54.       (1)        On information on oath given by an authorised officer, a Magistrate may issue an entry order in relation to a place if satisfied on reasonable grounds that —

(a)        it is reasonably necessary for the officer to enter the place for the purposes of this Act; and

(b)        the entry is not for the purpose of seizing any thing referred to in subsection 55(1); and

(c)        the entry cannot reasonably be effected except in accordance with an entry order; and

(d)       the purpose of the entry cannot reasonably be achieved without an entry order.

                  (2)        An entry order authorises the specified authorised officer to enter a specified place, and to inspect the place, with such assistance and by such force as is necessary and reasonable.

                  (3)        An entry order does not authorise the seizure of any thing.

Search warrants

      55.       (1)        On information on oath given by an authorised officer, a Magistrate may issue a search warrant in relation to a place if satisfied on reasonable grounds that —

(a)        any thing in relation to which an offence has been committed is in that place, or will be there within the following 72 hours; or

(b)        any thing which will afford evidence as to the commission of an offence is in that place, or will be there within the following 72 hours; or

(c)        any thing intended to be used for the purpose of committing an offence is in that place, or will be there within the following 72 hours.

                  (2)        A search warrant authorises the specified authorised officer to enter the specified place at any time, and to seize any thing of the type specified in the warrant, with such assistance and by such force as is necessary and reasonable.

                  (3)        An authorised officer may break open doors and receptacles for the purpose of executing a search warrant, where it is necessary and reasonable to do so.

                  (4)        In this section —

“offence” means an offence against this Act which there are reasonable grounds to suspect has been, or is about to be, committed.

Inspection of places

      56.       (1)        An authorised officer who lawfully enters a place under this Division, may —

(a)        inspect the place and any article, matter or thing in or on the place; and

(b)        for the purpose of an inspection —

(i)         open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the place and of any footing, pipe, sewer, drain, wire or fitting; and

(ii)        remove any cladding, lining or roofing material to ascertain the adequacy of bracing, structural connections and tie down requirements of the Norfolk Island Building Code and this Act; and

(c)        take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks; and

(d)       require any person at the place to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation; and

(e)        take samples or photographs in connection with any inspection; and

(f)        require the occupier of the place, or a person at the place, to give the authorised officer reasonable help to exercise the authorised officer’s powers under paragraphs 56(1)(a) to 56(1)(e).

                  (2)        When making a requirement mentioned in paragraph 56(1)(d) or 56(1)(f), the authorised officer must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse.

Division 2  —   Offences

Failure to help authorised officer

      57.       (1)        A person required to give reasonable help under paragraph 56(1)(f) must comply with the requirement, unless the person has a reasonable excuse.

Penalty: 50 penalty units.

                  (2)        If the requirement is to be complied with by an individual giving information, or producing a document, it is a reasonable excuse for the individual not to comply with the requirement that complying with the requirement may tend to incriminate the individual.

Failure to give information

      58.       (1)        A person of whom a requirement is made under paragraph 56(1)(d) must comply with the requirement, unless the person has a reasonable excuse.

Penalty: 50 penalty units.

                  (2)        It is a reasonable excuse for an individual not to comply with the requirement that complying with the requirement may tend to incriminate the individual.

part 7  —  miscellaneous

Delegation by Minister

      59.       (1)        The Minister may, by instrument, delegate any of the powers of the Minister under this Act except this power of delegation.

                  (2)        A delegation under subsection 59(1) may be made —

(a)        to a specified person; or

(b)        to the holder for the time being of a specified office or position.

                  (3)        A delegate, in making a decision in accordance with a delegation under this section, shall comply with the requirements of this Act which the Minister is required to comply with in making such a decision.

Delegation by Chief Executive Officer

      60.       (1)        The Chief Executive Officer may, by instrument, delegate any of the powers of the Chief Executive Officer under this Act other than this power of delegation.

                  (2)        A delegation under subsection 60(1) may be made —

(a)        to a specified person; or

(b)        to the holder for the time being of a specified office or position.

                  (3)        A delegate, in making a decision in accordance with a delegation under this section, shall comply with the requirements of this Act which the Chief Executive Officer is required to comply with in making such a decision.

Authorised officers

      61.       The Chief Executive Officer may, by written instrument, appoint persons to be authorised officers for the purposes of this Act.

Protecting officials from liability

      62.       (1)        An official is not civilly liable for an act done, or omission made, honestly and without negligence for the purpose of performing or intending to perform a function or exercising or intending to exercise a power under this Act.

                  (2)        If subsection 62(1) prevents a civil liability attaching to an official, the liability attaches instead to the Administration.

                  (3)        In this section —

“official” means —

(a)        the Minister; or

(b)        the Chief Executive Officer; or

(d)       an authorised officer; or

(e)        an employee in the public service; or

(f)        a person acting under the direction of the Chief Executive Officer.

Regulations

      63.       (1)        The Administrator may make Regulations, not inconsistent with this Act, prescribing matters —

(a)        required or permitted by this Act to be prescribed; or

(b)        necessary or convenient to be prescribed for carrying out or giving effect to this Act.

                  (2)        The Regulations may prescribe penalties not exceeding 10 penalty units for a contravention of the Regulations.

                  (3)        Without limiting the power to make Regulations under subsection 63(1), the Administrator may make Regulations prescribing procedural requirements for building applications consistent with this Act.

                  (4)        The Regulations may adopt a code of ethics to be observed by building practitioners.

Effect of documents being “available for public inspection”

      64.       (1)        Where a provision of this Act states that any document shall be available for public inspection, the Chief Executive Officer shall ensure that the document is available for public inspection free of charge at the offices of the Administration determined by the Chief Executive Officer during usual business hours.

                  (2)        On application by any person accompanied by the prescribed fee, the Chief Executive Officer shall ensure that a copy of a document, or an extract from a document that is available for public inspection, is made available for purchase by the person.

PART 8  —  REPEALS AND SAVINGS

Repeal of Building Act 1996

      65.       The Building Act 1996 is repealed.

Building approvals under the Building Act 1996

      66.       A building approval given under the Building Act 1996 and current immediately before the commencement of this section is, on and from the commencement, deemed to be a building approval under this Act.

Building applications pending under the Building Act 1996

      67.       A building application made under the Building Act 1996 before the commencement of this section and not determined before the commencement is, on and from the commencement, deemed to be a building application under this Act.


 

NOTES

The Building Act 2002 as shown in this consolidation comprises Act No. 5 of 2002 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Building Act 2002

5, 2002

27.2.04

66, 67

 

 

 

 

Building (Amendment) Act 2004

11, 2004

2.7.04

 

 

 

 

 

[Previously consolidated as at 26 August 2004]

 

 

 

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

 

 

 

[Previously consolidated as at 17 November 2013]

 

 

Ordinance

Registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)
(now cited as Norfolk Island Continued Laws  Ordinance 2015 (see F2015L01491))

17 June 2015 (F2015L00835)

18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345, 382–390)

as amended by

 

 

 

Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016
(No. 5, 2016)

10 May 2016 (F2016L00751)

Sch 4 (item 11): 1 July 2016 (s 2(1) item 4)

Norfolk Island Legislation Amendment (Public Health) Ordinance 2018

9 Mar 2018 (F2018L00237)

Sch 1 (item 14): 10 Mar 2018 (s 2(1) item 1)

Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018

28 Sept 2018 (F2018L01378)

Sch 1 (item 10): 29 Sept 2018 (s 2(1) item 1)

 

Table of Amendments

ad = added or inserted

am = amended

rep = repealed

rs =  repealed and substituted

Provision affected

How affected

 

 

5

am

Ord No 2, 2015 (as am by Ord No 5, 2016 and F2018L00237)

32

am

11, 2004

34

am

14, 2012

45

am

11, 2004

47

am

14, 2012

51

am

11, 2004

59

am

14, 2012

61

am

14, 2012; Ord No 2, 2015 (as am by F2018L01378)

62

am

14, 2012; Ord No 2, 2015 (as am by Ord No 5, 2016)