New South Wales Consolidated Acts New South Wales Consolidated Acts
(1) In this Act--
"alternative indemnity product" --see section 104.
"authority" means the following--(a) a contractor licence (whether or not an endorsed contractor licence),(b) a supervisor or tradesperson certificate,(c) an owner-builder permit.
"Authority" means the State Insurance Regulatory Authority.
"Building Code of Australia" has the same meaning as in the Environmental Planning and Assessment Act 1979 .
"building cover contract" means--(a) a contract of insurance under Part 6, or(b) a contract or arrangement for the provision of cover by means of an alternative indemnity product.
"Chapter 5 body corporate" has the same meaning as in the Corporations Act 2001 of the Commonwealth.
"close associate" --see clause 5.
"complying development certificate" has the same meaning as in the Environmental Planning and Assessment Act 1979 .
"consent declaration" means a declaration by an individual who is, or is proposed to be, the nominated supervisor for a contractor licence, being a declaration to the effect that the individual understands the responsibilities of a nominated supervisor and consents to being that nominated supervisor.
"construction period insurance contract" --see section 99(4).
"contract price" means the total amount payable under a contract to do work or to supply a kit home and includes--(a) the amount that the person contracting to do the work or to supply a kit home is to receive and retain under the contract, and(b) the amount that the person is to receive under the contract for payment to any other person, and(c) the amount any third person is to receive (or it is reasonably estimated will receive) directly from the person for whom the work is done or to whom the kit home is supplied in relation to the work done, or the kit home supplied, under the contract--(i) for conveying to the building site or connecting or installing services such as gas, electricity, telephone, water and sewerage, or(ii) for the issue of development or building consents.
"contractor licence" means a contractor licence referred to in section 4 or 5.
"data" means any facts, statistics, instructions, concepts or other information in a form that is capable of being communicated, analysed or processed (whether by an individual or by a computer or other automated means).
"Department" means the department in which this Act is administered.
"developer" --see section 3A.
"development consent" has the same meaning as in the Environmental Planning and Assessment Act 1979 .
"dual occupancy" --see section 29.
"dwelling" --see clause 3.
"electrical wiring work" has the same meaning as it has in the Gas and Electricity (Consumer Safety) Act 2017 .
"endorsed contractor licence" means a contractor licence endorsed under this Act to show that it is the equivalent of a supervisor certificate.
"fixed apparatus" means apparatus fixed to a dwelling or part of a dwelling with the intention that it should remain in that position permanently.
"function" includes a power, authority or duty, and
"exercise" a function includes perform a duty.
"gasfitting work" has the same meaning as it has in the Gas Supply Act 1996 .
"Home Building Insurers Guarantee Fund" means the Home Building Insurers Guarantee Fund established under Part 6A.
"Home Building Operational Fund" means the Home Building Operational Fund established under Part 6.
"Insurance Guidelines" means Insurance Guidelines issued by the Authority under this Act and in force.
"kit home" --see clause 4.
"licensed insurer" means an insurer that is the holder of a licence that is in force under Part 6C and includes the Self Insurance Corporation.
"licensed provider" means a provider of an alternative indemnity product that is the holder of a licence that is in force under Part 6C.
"major defect" --see section 18E.
"mechanical services and medical gas work" means--(a) the construction, installation, replacement, repair, alteration, maintenance, testing or commissioning of a mechanical heating, cooling or ventilation system in a building, which is associated with the heating, cooling or ventilation of that building, and includes the following--(i) any valve, regulator, pipe, flue, tank, heating or cooling pipe or surface, boiler, burner, solid fuel heater, coil or other item that is used in the system,(ii) in the case of a cooling tower, any water pipe, valve, pump, automated dosing device or automated bleeding device or any other mechanical component that affects the cooling tower's cooling water flow rate or wastewater disposal,(iii) roof sheeting and roof flashing that is necessary for the purpose of any work described in this paragraph or paragraphs (b)-(d), and(b) medical gasfitting work, and(c) the installation, commissioning and any incidental design work that is associated with the installation and commissioning of--(i) any part of a single head split system, or(ii) a ceiling cassette system, or(iii) an add-on condenser unit for a ducted system,that is associated with the heating and cooling of a building, and(d) any design work that is incidental to, or associated with, any work described in paragraphs (a) and (b),but does not include the following--(e) gasfitting work,(f) any work on a cooling tower drift eliminator,(g) any treatment of cooling or heating water,(h) any cleaning of a cooling tower,(i) disassembly or reassembly of a flue terminal for the purposes of cleaning a solid fuel heater,(j) the connection or disconnection of a system referred to in paragraphs (a)-(d) from a water supply other than disconnection of the system from a water supply at an isolating valve adjacent to a mechanical component of that system.
"medical gas technician work" has the same meaning as in the Gas and Electricity (Consumer Safety) Act 2017 .
"medical gasfitting work" has the same meaning as in the Gas and Electricity (Consumer Safety) Act 2017 .
"National Construction Code" means the National Construction Code produced and maintained by the Australian Building Codes Board, as in force from time to time.
"nominated supervisor" means an individual--(a) who holds an endorsed contractor licence or a supervisor certificate, and(b) who is for the time being registered in accordance with the regulations for the purpose of supervising the doing of residential building work or specialist work.
"non-contracting owner" , in relation to a contract to do residential building work on land, means an individual, partnership or corporation that is the owner of the land but is not a party to the contract and includes any successor in title to the owner.
"officer" , in relation to a corporation, has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.
"owner" of land means the only person who, or each person who jointly or severally, at law or in equity--(a) is entitled to the land for an estate of freehold in possession, or(b) is entitled to receive, or receives, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise.
"owner-builder" means a person who does owner-builder work under an owner-builder permit issued to the person for that work.
"owner-builder permit" means an owner-builder permit issued under Division 3 of Part 3.
"owner-builder work" --see section 29.
"plumbing and drainage work" means--(a) plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011 , or(b) any plumbing work or drainage work that, because of a relevant law, can be done lawfully only by the holder of an endorsed contractor licence, a supervisor or a tradesperson certificate or some other specified person, or(c) water plumbing work comprising the construction of or work on a fire suppression system that is connected or to be connected to a water main.
"progress payment" for residential building work means any payment on account after work is commenced under a contract to do residential building work.
"provider" of an alternative indemnity product--see section 104.
"registered certifier" has the same meaning as in the Building and Development Certifiers Act 2018 .
"relevant law" means an Act or a statutory instrument that is declared by the regulations to be an Act or statutory instrument that regulates the specialist work concerned.
"residential building work" --see clause 2.
"roof plumbing work" means any work involved in the fixing, installation, renovation, alteration, repair and maintenance of guttering, downpipes, roof flashing and roof coverings on any building or structure, except work in relation to roof coverings consisting of--(a) non-metallic tiles and slates, or(b) glass (being work usually performed by glaziers), or(c) concrete, or(d) timber and timber products, or(e) thatching, or(f) malthoid, bituminous or similar membrane material.
"secondary dwelling" --see section 29.
"Secretary" means the Secretary of the Department.
"Self Insurance Corporation" means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004 .
"specialist work" means the following work whether or not done in connection with a dwelling--(a) plumbing and drainage work, other than roof plumbing work,(a1) mechanical services and medical gas work,(a2) medical gasfitting work,(a3) medical gas technician work,(b) gasfitting work,(c) electrical wiring work,(d) any work declared by the regulations to be refrigeration work or air-conditioning work.Note--: Work can be specialist work whether or not it is done in connection with a dwelling (so it can include work done in connection with commercial or industrial work).
"statutory warranty" means a warranty established by Part 2C.
"supervisor certificate" means a supervisor certificate issued under Division 2 of Part 3.
"supply" means supply for consideration, but does not include supply for the purposes of resale.
"tradesperson certificate" means a tradesperson certificate issued under Division 2 of Part 3
"Tribunal" means the Civil and Administrative Tribunal established by the Civil and Administrative Tribunal Act 2013 .
Note--: The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(1) In this Act,
"residential building work" means any work involved in, or involved in co-ordinating or supervising any work involved in--(a) the construction of a dwelling, or(b) the making of alterations or additions to a dwelling, or(c) the repairing, renovation, decoration or protective treatment of a dwelling.
(2) Each of the following is included in the definition of
"residential building work" --(a) roof plumbing work done in connection with a dwelling,(b) specialist work done in connection with a dwelling,(c) work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa (or in adding to, altering or repairing any such installation).
(3) Each of the following is excluded from the definition of
"residential building work" --(a) any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations,(b) any work (other than specialist work) involved in the manufacturing of a moveable dwelling, within the meaning of the Local Government Act 1993 (other than a moveable dwelling that is a manufactured home within the meaning of that Act),(c) any work involved in the manufacture, assembly or erection of a moveable dwelling that is a manufactured home within the meaning of the Local Government Act 1993 , other than--(i) specialist work, or(ii) work involving the connecting together on the site on which the manufactured home is installed of its major sections and any associated structures forming part of the manufactured home and attaching them to footings,(d) any work (other than specialist work) involved in the site preparation for, or the assembling or erection on site of, a moveable dwelling excluded by paragraph (b), unless the work requires development consent,(e) any work referred to in paragraph (d) done in relation to land on which a council has authorised a moveable dwelling to be placed by issuing an approval under the Local Government Act 1993 , whether or not a development consent is also required,(f) any work that would otherwise be residential building work but that by or under another Act a person is prohibited from doing unless the person is the holder of a contractor licence or another authority under that other Act, but subject to subclause (4),(g) internal painting work, but subject to subclause (5),(h) any work (other than specialist work) done in relation to the removal and transport of a dwelling, but subject to subclause (6),(i) the supervision only of residential building work--(i) by a person registered as an architect under the Architects Act 2003 , or(ii) by a person supervising owner-builder work for no reward or other consideration, or(iii) by any other person, if all the residential building work is being done or supervised by the holder of a contractor licence authorising its holder to contract to do that work,(j) demolition work,(k) any work involved in the installation of any material that forms an upper layer or wearing surface of a floor (even if installed as a fixture) and that does not involve any structural changes to the floor, but not including work involved in the installation of floor tiles unless the regulations otherwise provide,(l) any work that involves the installation or maintenance of any fixed apparatus such as a lift, an escalator, an inclinator or a garage door by means of which persons or things are raised or lowered or moved in some direction that is restricted by fixed guides.
(4) Work referred to in subclause (3)(f) is not excluded from the definition of
"residential building work" if it is part only of the work to be done under a contract to do residential building work.
(5) Internal painting work is not excluded from the definition of
"residential building work" (under subclause (3)(g)) if it is part only of the work to be done under a contract to do residential building work.
(6) Work referred to in subclause (3)(h) is not excluded from the definition of
"residential building work" if it is part only of the work to be done under a contract to do residential building work at the new site of the dwelling (whether or not that work is done under the same contract as the contract to remove and transport the dwelling).
(7) The regulations may--(a) declare any work to be included in the definition of
"residential building work" , or(b) declare any work to be excluded from the definition of
"residential building work" .
(1) In this Act,
"dwelling" means a building or portion of a building that is designed, constructed or adapted for use as a residence (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat).
(2) Each of the following structures or improvements is included in the definition of
"dwelling" if it is constructed for use in conjunction with a dwelling--(a) a swimming pool or spa,(b) parts of a building containing more than one dwelling (whether or not the building is also used for non-residential purposes), being stairways, passageways, rooms, and the like, that are used in common by the occupants of those dwellings, together with any pipes, wires, cables or ducts that are not for the exclusive enjoyment of any one dwelling,(c) parts of a building containing one dwelling only (where the building is also used for non-residential purposes), being stairways, passageways and the like which provide access to that dwelling,(d) if non-residential parts of a building containing one or more dwellings give support or access to the residential part--the major elements of the non-residential parts giving such support or access,(e) cupboards, vanity units and the like fixed to a dwelling,(f) detached garages and carports,(g) detached decks, porches, verandahs, pergolas and the like,(h) cabanas and non-habitable shelters,(i) detached workshops, sheds and other outbuildings (but not jetties, slipways, pontoons or boat ramps and any structures ancillary to these exceptions),(j) concrete tennis courts and the like but only if the work involved is to be done under a contract to do other work that is residential building work,(k) driveways, paths and other paving,(l) retaining walls,(m) agricultural drainage designed or constructed to divert water away from the footings of a dwelling or a retaining wall,(n) fences and gates,(o) ornamental ponds and water features, and other structural ornamentation, the construction or installation of which requires development consent but only if the work involved is to be done under a contract to do other work that is residential building work,(p) any other structure or improvement prescribed by the regulations.
(3) Each of the following is excluded from the definition of
"dwelling" --(a) a boarding house, guest house, hostel or lodging house,(b) all residential parts of a hotel or motel,(c) any residential part of an educational institution,(d) accommodation (other than self-contained units) specially designed for the aged, persons with a disability or children,(e) any residential part of a health care building that accommodates staff,(f) a house or unit designed, constructed or adapted for commercial use as tourist, holiday or overnight accommodation,(g) any part of a non-residential building that is constructed or adapted for use as a caretaker's residence,(h) a moveable dwelling (with or without a flexible annexe) within the meaning of the Local Government Act 1993 that is, or is a vehicle of a kind capable of being, registered within the meaning of the Road Transport Act 2013 (such as a caravan or a motor home),(i) a residential building for the purposes of which development consent can be granted only because of State Environmental Planning Policy No 15--Rural Landsharing Communities ,(j) concrete tennis courts and the like, except as expressly included under subclause (2),(k) ornamental ponds and water features and other structural ornamentation, except as expressly included under subclause (2),(l) a building or portion of a building that is prescribed by the regulations as excluded from the definition.
(4) A structure or improvement that is included in the definition of
"dwelling" if it is constructed for use in conjunction with a dwelling is to be regarded as a dwelling whether or not there exists any dwelling of which it could be taken to form part.
(1) In this Act,
"kit home" means a set of building components that, when offered for sale, is represented as sufficient for the construction of a dwelling, garage, carport or other structure prescribed by the regulations, according to a plan or instructions furnished by the supplier of the set to the purchaser in connection with the sale.
(2) Despite subclause (1), the following are not kit homes for the purposes of this Act--(a) a set of components for the construction of a moveable dwelling (within the meaning of the Local Government Act 1993 ) that is not a vehicle of a kind capable of being registered within the meaning of the Road Transport Act 2013 ,(b) a set of components for the construction of a dwelling, structure or improvement prescribed by the regulations.
(1) For the purposes of this Act, a person is a
"close associate" of another person if the person--(a) is a business partner of the other person, or(b) is an employee or agent of the other person, or(c) is a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the other person or a person referred to in paragraph (a), (b) or (d) has a beneficial interest, or(d) bears a relationship to the other person that is a prescribed relationship under subclause (2), or(e) is a corporation that is a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the other person, or(f) holds or is entitled to exercise, in respect of the other person or the business of the other person, any other relevant financial interest, relevant position or relevant power.
(2) For the purposes of subclause (1)(d), a person bears a
"prescribed relationship" to another person if the relationship is that of--(a) a spouse or former spouse, or(b) an existing or former de facto partner, or(c) a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise, or(d) a kind prescribed by the regulations for the purposes of this clause.Note--:
"De facto partner" is defined in section 21C of the Interpretation Act 1987 .
(3) For the purposes of subclause (1)(f)--
"relevant financial interest" means--(a) any share in the capital of the business, or(b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise.
"relevant position" means the position of director, manager, and other executive positions and secretary, however those positions are designated.
"relevant power" means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others--(a) to participate in any directorial, managerial or executive decision, or(b) to elect or appoint any person to any relevant position.
In this Act, a reference to conditions includes a reference to terms, restrictions and prohibitions.
Notes included in this Act do not form part of this Act.