Foxes in charge of the hen house: new building law has a fatal flaw

Professionals other than Elizabeth Farrelly too have called for a return to a system akin to the former Architect/Engineer/CLERK OF WORKS approach as the way to go to ensure well constructed, safe, serviceable and durable buildings.

The Earth’s resources are finite! Including Sand and Water to make concrete …

YET the Cowboys have been building defective towers with demolition in mind 20, 30 years down the track …

The Earth is being choked with Waste! We are running out of landfill sites!

DEVELOPERS with their Population/Housing Ponzi have enticed foreign buyers to leave their dwellings behind them for duplication here in Australia … the Population Ponzi created the need for the supply that could not meet the foreign demand …


Foxes in charge of the hen house: new building law has a fatal flaw

Elizabeth Farrelly
Elizabeth Farrelly

Columnist, author, architecture critic and essayist

March 7, 2020

View all comments

NSW Building Commissioner David Chandler muses wistfully, in an interview, about “when I get my powers.”

Suddenly I’m seeing capes and catsuits. It makes me want to lob in the word kryptonite, see what happens. But Chandler does have the grace to add, “it’s not about me”. Further, in his defence, it is about powers.

Fixing our broken building system will involve serious, inviolable regulatory powers. Very old school.

So intensely, in fact, does Chandler’s task pivot on re-regulating what has been gleefully, over 30 years, deregulated, that the other lurking presence is a word even scarier than kryptonite. A word even Bernie Sanders scarcely dares breathe. Socialism.

From the top: Erskineville apartment development, Zetland, Homebush Opal Towers and Mascot towers.
From the top: Erskineville apartment development, Zetland, Homebush Opal Towers and Mascot towers.CREDIT:KATE GERAGHTY, NICK MOIR, BROOK MITCHELL

Most of the last three decades’ system-demolition has been ideologically driven. Now, perhaps, they’re starting to see sense. Triggered by catastrophe, the new Design and Building Professionals Bill is expected to clear Parliament by month’s end and become fully fledged law, regulations and all, by January 2021.

Most of us have been surprised to find we live in a supposedly first-world state where your building can crack and fall, your balcony collapse, your cladding erupt in flame and your living room flood, rain or no.

Compounding that nasty surprise, hundreds uncertain about the safety or saleability of their homes, is the minuteness of our redress. Just as our apartment-dwelling numbers have soared, our legal protections have become vanishingly small.

This is no coincidence. You ride a bike, nanny says wear a helmet.

But you want to develop a flood plain, import dodgy materials, water-down concrete, masquerade as an engineer, flaunt the height limit, build a slum and vanish into bankruptcy, chances are you’ll get away with it. Where there are profit-gods to appease, deregulation rules.

Perhaps the “Millennials” now in charge can’t be expected to grasp backstory. Anyone who, like the Treasurer, practices Thatcherism while dismissing discussion of it as “outdated”, anyone who says “heritage is of no value if we can’t experience it”, is probably too young to know that regulation for public wellbeing is the core function of government.

Perhaps they really think government exists to make the rich richer. Trickle down, etc.

Illustration: Simon Letch
Illustration: Simon LetchCREDIT:

But for those with eyes to see, watching the Libs (and before them new Labor) wreck our old-growth institutions has been like watching the weasels destroy Toad Hall.

Egged on by developer lobby groups, neo-liberal governments have frantically attacked red tape as though its nominal colour were some kind of political stance.

In this way, all civilising constraints on our building system have been deliberately and progressively weakened. Planning controls, import restrictions, site supervision, contractual protocols, certification, licensing, liability provisions and vocational training – all debilitated to make building easier, cheaper, faster. But even to a Millennial, it can be no surprise that easier, cheaper, faster equals shoddier, tackier, worse.

This is huge. It’s cultural. So what is Chandler’s solution, and will it work?


A vivid city blending old and new ... Circular Quay during the Vivid festival.

Sydney’s seven deadly sins of development? No, I call it a symphony

Chandler offers six pillars. (Yes, you’ll need to step around the ubiquitous construction metaphors).

The new act is Pillar One.

Pillar Two is a risk-rating tool designed to let the commissioner identify the likely dodgy buildings and developers, and conduct special on-site audits complete with stop-work powers.

Pillar Three is educational. This involves working with the Master Builders Association and others to rebuild systems and standards trashed along with our once-excellent TAFE system, leaving responsibility all-too-often with semi-literate sub-contractors.

Pillar Four is about better contracts; Pillar Five mandates digitisation of information and Pillar Six is about nurturing quality research – including, one can only hope, some intense post-occupancy evaluation.

*Once some trust has been, ahem, rebuilt, Chandler also wants to negotiate the insurance industry towards mandatory decennial insurance giving affected apartment-owners 10 years of cover for structural defects, as in Britain and France.*

But it all turns on the new bill. This is a complex and technical piece of legislation, but its essence is dramatic.

First, it requires the building as-built to match the design.

Second, it establishes a duty of care from the builder to the end owner (but not to renters). *

Both sound so obvious most of us probably presumed they already pertained. Not so. Not in any way that matters.

Closing the huge gap between the intention and the deed between the building as-designed and as-built – will be the new act’s biggest test. The bill proposes to nominate “design practitioners”, generally architects or engineers, who must declare that the design complies with the Building Code of Australia and other regulatory instruments and standards. These, electronically lodged, are the declared drawings.

At the other end of the process the builder must declare that the building has been built accordingly. These as-builts are also lodged electronically, and both sets must match. For any deviation, including possibly thousands of on-site variations, the builder is responsible. Then, and only then, may the certifier issue the occupation certificate.

Failure to make such declarations carries a penalty up to $165,000. Making fraudulent declarations, up to two years in jail.

NSW building commissioner David Chandler addresses a parliamentary inquiry.
NSW building commissioner David Chandler addresses a parliamentary inquiry.CREDIT:AAP

All good, as far as it goes. But is that far enough?

Chandler believes these mechanisms, combined with the industry’s dawning awareness of shattered public confidence, will change behaviour. Sticks, carrots.

But hmmm. It’s not just behaviour. This transformation of cowboy-land represents huge cultural change. Can it work?

Call me old fashioned, but the sensible way to build, if you give a damn about the result, is how it used to be done. The architect – who alone knows the building holistically and who alone must be fully educated, regulated, registered and insured – designs the building, does full working drawings, lets the contract, supervises the work.

A variant on this is the clerk of works system, where an independent on-site specialist scrutinises all shonks, shortcuts and discrepancies.


Sydney is a sin city in so many ways.

Sydney and the Seven Deadly Sins of City-Making

*Little of that pertains now. Under the now-normal D&C (design and construct) contract, both the design practitioner and certifier are employed by the developer/builder.

Chandler insists that the bill makes the developer responsible and the certifier a “public official”, and that this will be transformative.

Thing is, the person in charge is still the person incentivised to skimp. I’d like to be wrong, but I reckon any fox running a hen-house gonna be bearded in blood and feathers.

Elizabeth Farrelly

Elizabeth Farrelly is a Sydney-based columnist and author who holds a PhD in architecture and several international writing awards. She is a former editor and Sydney City Councilor. Her books include ‘Glenn Murcutt: Three Houses’, ‘Blubberland; the dangers of happiness’ and ‘Caro Was Here’, crime fiction for children (2014).