Proposal for an owner builder exemption to the restricted building work regime: Elements of being an owner builder
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The following elements are proposals for how an owner builder can be clearly identified as distinct from another unlicensed person doing restricted building work. Some or all of these elements will be put forward as final proposals to the Government based on the feedback we receive from this consultation.
Element 1 - the person must be an individual
The person claiming to be an owner builder cannot be a company or other incorporated body (eg, an incorporated society or charitable trust) or a partnership.
Element 2 - the person must own the land the restricted building work is to be carried out on
The individual could own the land in partnership (eg, with a spouse or partner) or be the beneficiary of a family trust that owns the land. Other forms of co-ownership would not qualify the person as being an owner builder.
Element 3 - the person must live or intend to live in the building being constructed or altered
An owner builder cannot be someone who builds or alters a house intending to immediately sell it to another person (eg, a 'spec' builder). The purpose of the exemption is for people to be able to work on their own homes, not on homes that belong to (or will soon belong to) other people.
Element 4 - the person must not be engaged in the trade of residential building
This element reinforces element 3. An owner builder cannot be someone who regularly does residential building work that they earn an income from. They also cannot be someone who builds and then sells houses on a regular basis. We propose this element be in the form of a specific limit on the number of times a person can claim the owner builder defence over a period of time. Our proposal is once every five years. This is in line with similar provisions in Australian states1 that define owner builders.
Element 5 - the person must do the restricted building work themselves
The owner builder cannot oversee or supervise another unlicensed person (whether they are paid or not) doing restricted building work. This does not mean the owner builder has to do every single aspect of the work on the building project - it is only the restricted building work the owner builder has to do themselves.
Element 6 - the person must only do construction work
The defence does not apply to building design. If the design is restricted building work, that design must be done by an appropriate licensed building practitioner. Again this does not mean the whole building project has to be designed by a licensed building practitioner. Only design work that is restricted building work has to be done by a licensed building practitioner.
Element 7 - the person must be the applicant for the building consent and code compliance certificate for the restricted building work
This element supports elements 1 and 2. It also ensures the restricted building work is consented before it is started and not afterwards2 so the restricted building work can be clearly identified in the building records for future reference.
Element 8 - the person must sign a statutory declaration stating all the other elements are met
A statutory declaration is a legal document that must be signed in front of someone like a lawyer or Justice of the Peace. A statutory declaration is the simplest way of recording and establishing the owner builder defence. Under the Act, it is already an offence to make a false or misleading statement in a document such as the declaration. The declaration would have to accompany the application for building consent and code compliance certificate. There would be a set form for the declaration that people can download online. The declaration would be kept on the building consent authority building file for future reference. The building consent authority may charge a small fee for receiving, processing and storing the declaration.
1 New South Wales: one every five years, Western Australia: one every six years, Victoria: one every three years, Queensland: one every six years, Northern Territory: one every six years, Tasmania: two every ten years. Also California: two times in three years, British Colombia: once every 18 months.
2 There is a process for obtaining a 'certificate of acceptance' under the Act that allows building work to be checked for Code compliance after it has been completed if a building consent was not obtained before the work started. However, this process is not appropriate for the owner builder defence.