This article has been reproduced with the permission of Mahoneys Lawyers and Advisors.
Following the Grenfell Tower fire in 2017, Part 4A of the Building Regulation 2006 (Qld) (2006 Regulation) was introduced, effective from 1 October 2018.
Part 4A required all owners of a “private building” to register their building with the Safer Buildings Queensland program, and undertake an assessment of the material used on the external walls of the building, via a three stage checklist.
The checklist required the following steps to be taken by their respective due dates:
| Stage | Action | Due date |
|---|---|---|
| Stage 1 | Register with QBCC online system and fill in the relevant questionnaire | 29 March 2019 |
| Stage 2 | Engage a Building Industry Professional to submit a Form 34 | 31 July 2019 |
| Stage 3 | Engage a fire engineer to complete a Form 35 Fire Engineer Statement as a Building Fire Safety Risk Assessment | 3 May 2021 |
Failure to comply with any of the checklist stages by the due date amounted to an offence with the maximum penalty for each stage ranging from 20 penalty units (for stage 1) to 165 penalty units (for stage 3).
Despite the 2006 Regulation expiring on 31 August 2021, many of the provisions were remade and continued through the commencement of the Building Regulation 2021 (Qld) (2021 Regulation) on 1 September 2021.
In particular, the 2021 Regulation provides that any proceeding for an offence against Part 4A may be started or continued as if the 2006 Regulation had not expired.
Consequently, this means any offence under the 2006 Regulation for non-compliance with the 3 stages by their due dates can, and is being, pursued by the QBCC.
Recently the QBCC has directed resources towards the compliance of the checklist, and has started pursuing private entities that failed to meet the various requirements of the checklist by the deadlines. This has included many bodies corporate in Queensland.
Pursuit of these offences is undertaken by the commencement of proceedings in the Magistrate’s Court, with the QBCC seeking penalties to be paid by those found guilty, and orders from the Court for any outstanding non-compliances to be remedied.
The maximum penalty for failing to comply with stage 3 of the checklist is 165 penalty units, which at the current penalty rate amounts to $23,718. In line with the Penalties and Sentences Act 1992 (Qld) however, the Court may impose a maximum fine for a body corporate of an amount equal to 5 times the maximum for an individual. Accordingly, the maximum fine for bodies corporate is $118,590.
While non-compliance with the checklist cannot be retroactively remedied, there may be extenuating circumstances that can help explain the body corporate’s failure to comply with the checklist by the due date.
Mahoneys have assisted a number of bodies corporate in providing this explanation to the QBCC, and obtaining significantly reduced penalties in amounts averaging $3,500 to $4,000, to reflect such circumstances.
Should you have received a Complaint and Summons for the prosecution of any of the stages of the checklist, we encourage you to contact our dedicated body corporate team.
This article was written by Francesca Barnes from Mahoneys Lawyers and Advisors.
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