Intervention powers available under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act)
Regulatory oversight of building and construction in NSW is a partnership approach between the Building Commissioner and NSW Fair Trading.
The Building Commissioner works closely with Fair Trading, who has the authority to investigate, monitor and enforce compliance for residential apartment buildings with serious failures or defects.
Resolving building defects
How you resolve a residential building defect issue depends on the size and age of the building and the type of defect.
Where you can’t resolve a serious building defect with the builder or developer, notify Fair Trading. We’ll assess the complaint to determine if the issue can be resolved through statutory warranties or other assurance schemes, or if it needs to be referred to the Building Commissioner for further investigation.
The Building Commissioner may intervene using the powers available under the RAB Act when:
- The building is residential (including mixed use) with 4 storeys or more, or other Class 2 building.
- The issue relates to a serious defect, including but not limited to:
☐ fire safety systems
☐ structural issues such as load bearing, foundations, footings, floors, walls, or roof
☐ building enclosure such as external cladding and façade
☐ key services such as plumbing, electrical and lifts
- The issue isn’t the subject of an enforceable Order made by a court or tribunal. If legal action has started, Fair Trading can’t progress the complaint until that has action completed, except in exceptional circumstances.
- A lot owner, owners’ corporation or strata manager has raised the defect with the builder and/or developer but hasn’t achieved a resolution. In this case you must provide supporting evidence when requested.
- The builder and/or developer are still in business and/or solvent. If the builder or developer are no longer trading, or are unlicensed, a rectification order to fix the defect can’t be made. In some circumstances disciplinary action may still be taken.
- In most cases, the building age (from date of occupation certificate) will determine the available for resolution, and if Fair Trading can consider the complaint under the RAB Act:
☐ Prior to issue of the occupation certificate
At times, tradespeople or practitioners may find serious defects when onsite. If these issues can’t be addressed directly though the builder or developer, notify the Building Commissioner using the Fair Trading complaint form. Provide as much information and supporting evidence as possible.
☐ 0-2 years
If the building was built under a construction contract dated after 1 January 2018 a building bond must be lodged under the Strata Building Bond and Inspection Scheme. The building bond covers defect rectification. You must lodge a claim under the scheme. We can assess disputed or unresolved claims under the RAB Act.
☐ 2-6 years
Residential buildings less than 6 years old carry a statutory builders’ warranty. You need to submit a defect warranty claim with the builder. We can assess disputed or unresolved claims under the RAB Act.
☐ 6-10 years
Where the defect was found and claimed within the statutory warranty period, but the issue remains unresolved, we can assess the matter under the RAB Act.
In all instances:
- you must have reported the issue to NSW Fair Trading
- you must have issued orders to the builder to fix the defect
- the builder and/or developer is still in business and/or solvent.
If the above criteria don’t apply to your issue, visit Fair Trading or phone 13 32 22 for more options.
Possible intervention outcomes
Fair Trading's Compliance and Enforcement Policy outlines the potential enforcement actions available. These include:
- issuing rectification orders and/or penalty infringement notices
- making enforceable undertakings
We'll assess the complaint to determine if a site inspection is appropriate. If so, an inspector will examine the reported defects or incomplete work and discuss their findings with the relevant people.
We can audit notified building developments, monitor and assess compliance for buildings under construction, or at any time within 10 years after an occupation certificate is issued.
Depending on the circumstances, sometimes we can’t resolve the complaint. However, the information you provide helps us prevent future occurrences. It also enables data collection so we can apply a more targeted approach in the future.
Lodging a building defect complaint under the RAB Act does not limit compliance actions under other relevant laws such as the Home Building Act 1989, or the Australian Consumer Law (ACL).