Release of Practice Direction 9 – Council Inspections 2020
On 12 March 2020, the State Planning Commission (Commission) issued Practice Direction 9 – Council Inspections 2020 (Practice Direction 9) following its consideration of submissions received during the consultation period on the draft version which was issued on 21 October 2020. Our article posted on 28 November 2019, in response to the draft version of the Practice Direction (Draft PD), can be viewed here.
Appendix 1 of Practice Direction 9 sets out the kinds of development which require inspection, the proportion of developments which require inspection, the timing of any inspection required in relation to each building and the number of inspections required in relation to each building. These four matters collectively are referred to as mandatory inspection requirements. Councils must comply with these mandatory inspection requirements upon the commencement of Practice Direction 9 in their council area.
Councils must comply with the requirements of Practice Direction 9 when the Minister revokes the Development Plan created under the Development Act 1993 as it is relevant to a particular council area. Until this occurs, councils should continue to comply with the inspection requirements of their existing Building Inspection Policies that are in place under the Development Act 1993.
Categories of buildings
Whilst the Draft PD set out four different categories of buildings to which the policy should apply; domestic dwellings, small, medium and large commercial or public buildings, Practice Direction 9 has largely simplified inspection requirements to apply to either (i) Class 1 buildings, (ii) farm buildings and farm sheds with a floor area of 500m2 of greater and (iii) Class 2-9 buildings. Neither Class 10 buildings nor complying building work (as listed in Schedule 7 of the Planning Development Infrastructure (General) Regulations 2017 (Regulations)) are required to be inspected under Practice Direction 9.
Elements to be inspected
Part 2(2) of Practice Direction 9 lists those elements of a development which must be inspected, as may be present in relation to a development, at the time of inspection. The only difference between the elements in the Draft PD and the final version is the inclusion of wet areas and waterproofing, and the reference to balustrades has somewhat uncontroversially been replaced with barriers to prevent falls.
Timing of inspections
Under Practice Direction 9, councils now have discretion as to whenthey choose to carry out an inspection of a development. In relation to all buildings to which Practice Direction 9 applies, inspections may now be carried out at any time either during construction or on completion of the development. If a council elects to carry out an inspection on completion of a development, they must now do so within 2 business days of receiving the completed Statement of Compliance in respect of development within Metropolitan Adelaide, and within 3 business days in respect of development outside Metropolitan Adelaide. This amendment will result in councils being afforded more time to carry out inspections if they elect to do so upon completion of a development (as the Draft PD proposed that any inspection undertaken upon completion of a development be carried out within 1 business day).
Proportion of inspections
The proportion of developments in each council area to be inspected in accordance with the mandatory inspection requirements are to be calculated each year commencing 1 July and ending 30 June of the following year.
The minimum proportion of developments with respect to Class 1 buildings that must be inspected in the relevant reporting year is 66% of building work, with at least one inspection being undertaken in respect of each development. This requirement has been carried over from the Draft PD, largely unchanged noting that Class 1 buildings will include all sub classifications, i.e. Class 1a and 1b.
The minimum proportion of developments with respect to farm buildings and farm sheds with a floor area of 500m2 or greater that must be inspected in the relevant reporting year is now 50%, with at least one inspection being undertaken in respect of each development. This requirement is significantly less than what was proposed in the Draft PD, which proposed that 100% of all buildings in this category be inspected.
The minimum proportion of developments with respect to Class 2-9 buildings that must be inspected in the relevant reporting year is 90% of building work, with at least one inspection being undertaken in respect of each development. This requirement is less than what was proposed in the Draft PD, which proposed 100% of all buildings in this category to be inspected.
Practice Direction 9 provides that the mandatory inspection requirements and elements that are to be inspected are not exhaustive. If a council has information to indicate that the circumstances warrant it, additional inspections may be undertaken. The circumstances which may warrant an additional inspection are set out in Part 2 (3) of Practice Direction 9. These are largely unchanged from that which appeared in the Draft PD, but now it is clear that even the list of circumstances which may warrant an additional inspection is not exhaustive either. There is no reason why councils should not have a separate general inspection policy or framework in place relating to additional inspections.
It remains a requirement of councils to ensure that inspections are carried out by a person who has the appropriate qualifications, skills, knowledge and experience to carry out an inspection under Practice Direction 9. It remains unchanged that a person with qualifications prescribed by r112(1) of the Regulations may carry out such inspections. However, a council must take into account, when applying Practice Direction 9, whether the assessment of the adequacy of applicable elements may require a person to hold particular knowledge, skills and qualifications. We raised our concerns with this approach in our previous article. We maintain that a conservative approach which would be considered best practice ought to be that an inspecting officer should be accredited to a level that would permit him or her to provide advice or grant Building Rules consent to the building that is being inspected. In some cases, this may mean that some councils may need to consider appointing an external person to ensure that this can be done to ensure that their obligations under Practice Direction 9 can be met.
Whilst the Draft PD provided for the policy be reviewed after two years of operation, it may now not be reviewed at an earlier time, if appropriate.
Finally, Practice Direction 8 – Council Swimming Pool Inspections 2019 is a separate practice direction issued specifically in relation to council requirements for inspections of swimming pools. This practice direction which was first issued by the Commission on 5 September 2019 was also updated on 12 March 2020, and a separate article will be published in relation to these amendments.
If you have any queries in relation to this article please contact Claire Ryan on 8210 1294 or by email at firstname.lastname@example.org.