Building Operations and Building Materials Control Act 1945 (1946 No 12) (NSW)

to. 16th January, 194(5.] BE

BUILDING OPERATIONS AND BUILDING MATERIALS CONTROL ACT.

Act No. 12, 1946.

An Act to provide for the control of building operations and building materials; and for purposes connected therewith. [Assented

lative Council and Legislative Assembly of New South	BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis­
Wales in Parliament assembled, and by the authority of the same, as follows :—

PART I .

P R E L I M I N A R Y .

1 . (1) This Act may be cited as the "Building Opera­ tions and Building Materials Control Act, 1945."

(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.

(3) This Act is divided into Par ts as follows:—

PART I . — P R E L I M I N A R Y .

PART I I . — R E G U L A T I O N A N D C O N T R O L O F B U I L D I N G

O P E R A T I O N S .

PART	I I I . — B U I L D I N G	M A T E R I A L S	C O N T R O L .
PART	I V . — G E N E R A L	P R O V I S I O N S	A N D P E N A L T I E S .

SCHEDULES.

2 . (1) This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act, and so as not to exceed the legislative power of the State to the intent that where any provision of this Act, or the appli­ cation thereof to any person or circumstance is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected.

(2) This Act shall bind the Crown.

3 . Every consent, permission, exemption, approval, license or other authority whatsoever which was granted and every direction, condition, order or requirement which was given or made under any regulations or orders relating to building operations or building materials made pursuant to the National Security Act 1939-1943 of the Parliament of the Commonwealth and which was in force immediately prior to the commencement of this Act shall continue in force so far as practicable and shall be deemed to have been granted, given or made under the provisions

of this Act.

4 . (1) In this Act unless the context or subject matter otherwise indicates or requires—

"Building materials" means any material specified
in Schedule Two to this Act.

"Building operation" includes—

(a)	the erection of, any alteration of, any addition to, or the construction, recon­ struction, rebuilding, re-erection, demo­ lition, removal, renovation, repair, plastering, panelling, lining, decoration, painting, colouring, whitewashing or papering of, any structure (whether carried on at the site or elsewhere and whether above or below the surface);
(b)	the affixing to any structure of any fix­ tures or fittings; and
(c)	any work for the provision of water, gas, electricity, sewerage, drainage, heating, ventilation or air conditioning, or for the installation of a lift or an escalator.

" C o s t " in relation to any building operation, in­ cludes wages paid or due to permanent or tem­ porary employees, sums paid or due to contrac­ tors or sub-contractors and the fair value of all materials used in connection with the building operation, including provisional and prime cost items, fixtures and installations incidental to the

building operation (whether acquired for the

purpose of the building operation in the course of which they are used or otherwise) and the fair value of all services rendered in connection with the building operation, but does not include architects' fees or the time or labour of the person for whom the building operation is car­ ried out, unless it is within the business of that person to carry out that building operation and the time or labour is expended by him on the building operation within ordinary business hours.

"Dwelling-house

"Dwelling-house" means a building which is used primarily for human habitation but docs not include a block of flats, pair of maisonettes, villa pair or other multiple dwelling or an hotel or a building containing shop premises.

"Local governing authori ty" means the council of an area within the meaning of the Local Govern­ ment Act, 1919, as amended by subsequent Acts, and in respect of the City of Sydney means the Municipal Council of Sydney and includes any body which the Minister by notice published in the Gazette declares to be a local governing authority for the purposes of this Act.

"Minis te r" means the Minister for the time being charged with the administration of this Act.
"Pr imary production" means farming, agricultural, horticultural, viticultural, apicultural, pastoral or grazing operations, forestry operations and fishing operations, but in every case only where such operations are pursued by the person con­ cerned as the principal means of his livelihood, and "pr imary products" and other similar expressions have corresponding" meanings.

"Public utility undertaking" means any of the following undertakings, the carrying on of which is authorised by or under any law, that is to say—

(a)	any undertaking for the supply of
electricity, gas or water;
(b)	any transport, dock, harbour or pier undertaking;
(c)	any sewerage or sewage disposal under­ taking, or any undertaking for the collection or disposal of refuse; or
(d)	any undertaking of a drainage autho­ rity,

and includes any such undertaking which is carried on by or on behalf of the Commonwealth or the State of New South Wales or by a local governing authority.

"S t ruc tu re"

" S t r u c t u r e " means structure of any kind, whether

movable or immovable, and includes building, bridge, wall, fence, gate, road, drive, paving, path, terrace or concrete work.

''.The financial y e a r " in relation to a building opera­ tion means the period of twelve months ending on the thirtieth day of June within which the building operation is commenced.

" T i m b e r " includes all wood, whether in growing, dead, felled, or fallen trees, or sawn, treated, or in any other form whatsoever, and any material, article, or commodity of which timber forms a constituent part, but does not include firewood, charcoal or wood pulp.

"Under Secretary" means the Under Secretary of the Department of Labour and Industry and Social Welfare.

(2) The Governor may by proclamation published in the Gazette amend Schedule Two to this Act by adding thereto or deleting therefrom the name of any material. Schedule Two to this Act as so amended shall be deemed to be Schedule Two to this Act.

PART II .

R E G U L A T I O N A N D C O N T R O L or B U I L D I N G O P E R A T I O N S .

5 . (1) A person shall not, without the consent in writing of the Minister, commence or continue to carry out any building operations.

(2) The provisions of this section shall not apply

to—

(a) the erection of any dwelling-house—

(i)   within any portion of the State not included within any area set forth in Schedule One to this Act and used or intended to be used as a permanent residence by any person; or

(ii)   within any area set forth in the said Schedule and used or intended to be used as a permanent residence by any

person

person where the gross area of such dwelling-house, in the case of timber- framed structures, does not exceed one thousand two hundred square feet and, in the case of brick and concrete struc­ tures or brick or concrete structures, does not exceed one thousand two hundred and fifty square feet; or

(iii)   for use by a primary producer where such dwelling-house is situated in the locality within which primary produc­ tion is carried on by such primary producer;

(b)	any structure (the cost of which does not exceed five hundred pounds) used or intended to be used for or in connection with primary production, or storage, treating, or processing of primary products;
(c)	sewerage or drainage connections ordered by a local governing authority;
(d)	any building operation which is carried out on or within the area appurtenant to a dwelling- house (not being a dwelling-house erected in pursuance of a consent granted under this Act or erected within a period of six months before the commencement of this Act in pursuance of a consent granted under the National Security (Building Operations) Regulations made pur­ suant to the National Security Act 1939-1943 of
total cost of all building operations carried out, the Parliament of the Commonwealth) if the on that dwelling-house and within that area in the financial year does not exceed one hundred and fifty pounds;
(e)	any building operation or any building operation included in a class of building operations or any building operation of such cost as the Minister, by notice published in the Gazette, declares to be exempt from the provisions of subsection one of this section.

In

In this subsection "gross a r e a " means the whole of the area of the building, or buildings, covered by a roof and shall be calculated by measurements taken to the outer face of all external walls, piers, posts, and the like, and in the case of openings in or between external Avails, piers, posts, and the like, by measurements taken to the line connecting the outer face of same.

Where the building comprises more than one floor the gross area shall be the aggregate area of all floors measured as above at each floor level.

(3) The Governor may by proclamation published in the Gazette amend Schedule One to this Act by adding thereto or deleting therefrom the name of any area. Schedule One to this Act as so amended shall be deemed to be Schedule One to this Act.

(4) For the purposes of subsection one of this section a person shall be deemed to commence or continue to carry out a building operation if the carrying out of that building operation is commenced or continued (as the case may be) at his request or at his expense.

6. An application for consent under section five of this Act shall be in such form and contain such informa­ tion as the Minister directs.

7 . Where application is made for the consent of the Minister under this Par t of this Act, the Minister may, in his absolute discretion, refuse to grant consent, or may grant consent, either unconditionally or without limitation, or subject to such conditions or limitations as

he thinks fit (including, in a case where the premises on
which the building operation is to be carried out are
required for purposes specified in the application, such conditions or limitations as to the letting or use of the premises as he considers necessary or convenient to ensure that the premises arc used for those purposes) and, in particular, may consent to the execution of—

(a) part only of any building operation, or of so much only of any building operation as does not involve the expenditure of more than a sum specified in the consent;

(b)

(b)	all building operations, or of any class or classes of building operations, to bo carried out by the person making the application during any period specified in the consent; or
(c)	so much of any building operations, or of any class or classes of building operations, to be carried out by that person in that period as does not involve the expenditure of more than a sum specified in the consent.

8 . Where the consent of the Minister has boon granted under this Par t of this Act, the Minister may. in his absolute discretion, at any time, by notice in writing, revoke the consent, or suspend the consent for such period as is specified in the notice or vary the terms and condi­ tions of the consent.

9 . (1) Where a building operation has been, or is about to be, commenced or continued, whether the pro­ visions of subsection one of section five of this Act apply thereto or not, or whether the consent of the Minister has been granted or refused, or has not been given, the Minister may, at any time and from time to time, by notice in writing, give to the person on whose behalf the building operation has been or is about to be com­ menced or continued, or to any architect, builder, contractor or engineer employed in any capacity, or to any other person employed in any advisory or super­ visory capacity, in connection with that building operation, or to some or all of those persons, such direc­ tions in relation to the building operation or its suspen­ sion or discontinuance, or as to the furnishing to the

information in relation to the building operation, as the	Minister or to any person specified by him of any
Minister thinks fit.

(2) A person to whom a notice1 is given under

subsection one of this section—

(a)	shall comply with any directions applicable to him;
(b)	shall furnish any information in his possession specified in the notice; and
(c)	shall not commence or continue the building operation, contrary to any directions contained
in the notice. 1 0 .

1 0 . An architect, builder, contractor or engineer employed in any capacity, and any person employed in any advisory or supervisory capacity, in connection with a building operation, shall not, unless the building opera­ tion is one to which the provisions of subsection one of section five of this Act do not apply, commence or con­ tinue to carry out, or to assist in the carrying out of, that building operation unless the commencement or continu­ ance of the carrying out of the building operation is authorised by a consent granted by the Minister under this Par t of this Act.

1 1 . A person to whom consent has been granted under this Par t of this Act, and any architect, builder, contrac­ tor or engineer employed in any capacity, and any other person employed in an advisory or supervisory capacity, in connection with the execution of the building opera­ tion in respect of which the consent has been granted-—

(a)	shall, whether or not the consent is revoked, comply with all conditions or limitations appli­ cable to him to which the consent is subject;
(b)	shall not, if the consent is revoked, continue the building- operation, or, if the consent is sus­ pended, continue the building operation during the period of suspension;
(c)	shall make and keep proper and accurate books and accounts and stock and costing records, where applicable, in relation to the building operation, and shall preserve those books and accounts and stock and costing records, includ­
ing all invoices, vouchers, agreements, corres­pondence, documents and copies thereof, until their destruction is authorised by the Minister.

1 2 . A person shall not—

(a)	in any application or in answer to any request made in pursuance of this Par t of this Act, make any statement or furnish any information; or
(b)	in relation to any matter dealt with under this Par t of this Act, make any entry in any document,

which he knows or has reasonable cause to believe to

be false in a material particular. 1 3 .

Notwi ths tanding any th ing contained in any law, where an appl icat ion has been made by any pe r son for the consent of the Minis ter unde r this P a r t of this Act to commence or continue any building operat ion and tha t applicat ion has ei ther been refused or has been g ran ted subject to any condition or l imitat ion, no notice given or o rder made by or on behalf of any local governing author i ty , or public ut i l i ty under tak ing , or any officer thereof or by any court requi r ing t ha t person to com­ mence or continue tha t building operat ion shall be enforceable to the extent to which i t is inconsistent with t ha t refusal, condition, or l imitat ion.

1 3 .

1 4 .     The Minis ter may make a wr i t t en request to any

local governing au thor i ty or public ut i l i ty under tak ing for assistance as here inaf ter in this section provided, and thereaf te r such au thor i ty or under tak ing , or any officer, thereof empowered by or under any law to make orders in respect of, or to approve of, p lans or specifications, or to g r a n t permi ts in relat ion to any building operat ions shall, with respect to any bui lding operat ion in respect of which the consent of the Minis ter is required under this P a r t of this Act—

(a)	refuse to make an order or to approve plans or specifications or to g r a n t a pe rmi t unt i l an appl icat ion has been made for the consent of the Minister unde r this P a r t of this Ac t ;
(b)	make a return to the Minister setting out par t i cu la rs of any applicat ion for approva l of plans or specifications or for the g ran t ing of
any p e r m i t ; and
(c)	make a report to the Minister in any case where there is reason to believe tha t tha t building opera t ion is being or has been car r ied out with­ out the consent of the Minis ter or con t ra ry to any condition or l imitat ion conta ined in tha t consent.

1 5 . W h e r e any building opera t ion is being, or has been, car r ied out on any land or premises du r ing the per iod of the opera t ion of this Act, a person author ised by the Minis ter to act under this section may, a t any

t ime,

t ime, en te r on and inspect the land or premises for the pu rpose of ascer ta in ing whether the provis ions of this P a r t of this Act a re being, or have been, complied with.

P A R T I II .

BUILDING MATERIALS CONTROL.

DIVISION 1.—Control of Bricks.

1 6 .      (1) Notwi ths tanding any th ing contained in this

Act no common or face bricks shall be used in the County of Cumber land or any other a rea declared by the Governor by proclamat ion published in the Gazette to bo an a rea to which this section applies , except for the purposes and subject to the conditions set out hereunder , tha t is to say—

(a)	the construction of dwelling-houses insofar as
they a re requi red for s t ruc tu ra l foundations,

floor piers , walls, porches and chimneys;

(b)

workshop and factory structures comprising ei ther new premises or extensions and addit ions to exist ing premises , subject to a limit as to quant i ty approved in wr i t ing by the Unde r Sec re t a ry ;

(c)

the construction of public works, hospitals, schools, clay nurser ies , baby clinics, kinder­ gar tens and the like subject to a l imit as to

quan t i ty approved in wr i t ing by the U n d e r
Sec re t a ry ;	and

(d)

structures (other than those comprised in para­ g r a p h s ( a ) , (b) and (c) of this subsection) in respect of which it is p roved to the satisfac­ tion of the U n d e r Sec re t a ry tha t mate r ia l s other than bricks a rc unsui table and subject to a limit as to quant i ty imposed by the Under Secre ta ry .

(2) Notwi ths tand ing any th ing contained in this
Act no brick manufac tu re r shall supply bricks to any
person unless such person produces sa t is factory evidence
tha t

tha t the work for which such bricks are required has been approved by the local governing au thor i ty within whose a rea such work is s i tuated or proposed to be s i tuated and no person shall acquire any bricks from a brick manufac tu re r unless the work for which such bricks a re required has been approved by the local governing au thor i ty within whose a rea such work is s i tua ted or p roposed to be si tuated.

(3) I n the applicat ion of subsection two of this section to or in respect of the supply o r acquisit ion of bricks for a work which is to bo car r ied out by or on behalf of the Crown, or a s t a tu to ry body represen t ing the Crown, tha t subsection shall be r ead and construed as if the words " loca l governing au thor i ty within whose a rea such work is s i tuated or proposed to be s i t u a t e d " wherever occurring were omitted therefrom and the word

" M i n i s t e r " inser ted in lieu thereof.

I n this subsection " s t a t u t o r y body represen t ing the

C r o w n " means any s ta tu tory body within the meaning ascribed there to by the Local Government Act, 1919, as amended by subsequent Acts .

DIVISION 2 .—Bui ld ing Materials Control.

17 . (1) The Minister may by notice in wr i t ing in or

to the effect of the form prescr ibed—

(a)	require any owner or holder of timber to cut, sell, supply or deliver t imber in accordance with the requirements as to p r io r i ty set out the re in ;
(b)	require any owner or holder of timber to sell, supply or deliver to the person named in the
and kind a t such stage of t r ea tmen t or pro­ notice such quant i ty of t imber of such qual i ty

cessing and within such time as is specified in

the not ice;
(c)	require any owner or holder of any building mater ia l s (other than t imber) to sell, supply or deliver such mater ia l s in accordance with the requi rements as to p r io r i ty set out therein, in such quant i t ies , within such time and to such persons or class of persons as may be specified
the re in ; or

( J )

(d)	require any owner or holder of any building
ma te r i a l s to allocate such building mate r ia l s for

housing purposes , for building opera t ions o ther than housing, or for any other purpose in such propor t ions as the Minis ter may determine.

This subsection shall app ly only to an owner or holder who, for gain or reward , is engaged in the cut t ing, selling, supply or del ivery of t imber or the selling, supply o r del ivery of bui lding mater ia l s as the case m a y be.

(2) Upon service on him of a notice of require­ ment under this section the person to whom the notice is addressed shall, subject to such exceptions or modifica­ t ions as a re permi t ted by the Minister , take all pract icable measures to ensure t ha t the sale, supply, del ivery or allocation of the building mater ia l s specified in the notice is car r ied out in accordance wi th the requi rements of such notice.

(3) Wi thou t l imit ing the genera l i ty of this section,

any such notice m a y provide t ha t the obligation to comply therewi th within the t ime specified in the notice, shall be conditional upon the happen ing or continuance of events or c ircumstances specified in the notice, and the Minis ter m a y a t any t ime, a t his discretion, extend the t ime for compliance with any requirement .

P A R T IV.

GENERAL PROVISIONS AND PENALTIES.

1 8 .      (1) A n y pe r son author ised in tha t behalf by the

Unde r Sec re ta ry may—

(a)	require any person carrying on any business or otherwise concerned in any t ransac t ion re la t ­ ing to building opera t ions , or concerned in the product ion, sale, supply, s to rage or d is t r ibut ion of bui lding mater ia l s , to produce any books, accounts, or o ther documents re la t ing to t h a t business, t ransact ion , product ion, sale, supply,
s torage or d i s t r ibu t ion ;

(b)

(b)	make copies of, or take extracts from, any such books, accounts, or other documents ;
(c)	by notice in writing require any such person to furnish within such t imes and in such manner , as a r e specified in such notice, such es t imates or
r e tu rns as a re specified the re in ;
(d)	enter, inspect and examine, at all reasonable hours , any premises used for or in connection with the product ion, sale, supply, s torage or
dis t r ibut ion of building mater ia l s .

(2) Any person who obstructs , delays or h inders any person author ised pu r suan t to section fifteen of this Ac t OR subsection one of this section in the exercise of his powers under this Act or who refuses to produce a n y books, accounts or other documents or to furnish any es t imates or r e tu rns as required by this Act, shall be gui l ty of an offence aga ins t this Act and shall be liable to a penal ty not exceeding fifty pounds.

1 9 . A n y notice required or author ised by this Act to be given or served shall be in wri t ing, and shall be suffi­ ciently given or served—

(a) if delivered persona l ly ;

(b)	if left at the last known place of abode or business of the person to whom or on whom such notice is to be given or se rved ; or
(c)	if sent by post in a registered letter addressed to such person, by name, a t his aforesaid place of abode or business, and if t ha t le t ter is no t
the time when the regis tered le t ter would in the and such service shall be deemed to be made a t r e tu rned th rough the pos t office undel ivered; o rd inary course be delivered.

2 0 . Any person who contravenes, or fails to comply wi th a n y provis ion of this Act or any condition or l imita­ t ion of any consent g r an t ed unde r P a r t I I of this Act o r a n y requirement of any notice given under Division 2 of P a r t I I I of this Act, shall be guil ty of an offence aga ins t this Act and shall, where no other penal ty is provided, be liable to a penal ty not exceeding five hundred pounds or to a t e rm of impr isonment not exceeding twelve months .

N 2 1 .

2 1 .     (1) Proceedings for an offence aga ins t this Act ,

or any breach of the regula t ions made thereunder , may be taken by any person act ing with the au thor i ty of the Minister .

(2) On a prosecut ion for any such offence o r
breach an au thor i ty to prosecute , pu rpo r t i ng to have

been signed by the Minister , shall be evidence of such

au thor i ty without proof of the Min is te r ' s s ignature .

2 2 . All penal t ies imposed by this Act, or the regula­ t ions made thereunder , may be recovered summari ly before a police or s t ipendiary magis t ra te , or any two justices.

2 3 . No act, mat te r , o r thing, done by any officer or other person whomsoever act ing under the au thor i ty of this Act shall, if the m a t t e r or th ing was done bona fide for the purpose of this Act, subject them or any of them personal ly to any action, liability or claim, or demand whatsoever .

2 4 . (1) The Minister may, in relat ion to any m a t t e r

or class of ma t t e r s , by wr i t ing unde r his hand, delegate all, or any of his powers and functions under this Act, or the regula t ions made the reunder (except this power of delegation) so tha t the delegated powers or functions may be exercised by the delegate with respect to the m a t t e r s or class of m a t t e r s specified in the ins t rument of delegation.

(2) E v e r y delegation under this section shall be revocable a t will, and no delegation shall p reven t the exercise of any power or function by the Minister .

2 5 . (1) The Governor may make regulat ions not inconsistent with th is Act prescr ib ing any m a t t e r or th ing which by this Act is requi red or permi t ted to be prescr ibed or which is necessary or convenient to be prescr ibed for giving effect to this Act.

The regula t ions may impose a penal ty not exceeding one hundred pounds for any breach thereof.

(2) A regulat ion may be made to apply or have operat ion throughout the whole or any p a r t of the S ta te , may be of general or specially l imited applicat ion accord­ ing to t ime, place or circumstances, and may be general or res t r ic ted to any specified class or subject-matter .

(3)

(3) The regulat ions shall—

(a ) be published in the Gazet te ;

(b)	take effect from the date of publication or from a la ter da te to be specified in the regula t ions ;
(c)	be laid before both Houses of Parliament within
fourteen s i t t ing days af ter publication if

P a r l i a m e n t is in session, and if not, then within fourteen s i t t ing days af ter the commencement of the next session.

If ei ther House of Pa r l i ament passes a resolut ion of which notice has been given a t any time within fifteen s i t t ing days af ter such regulat ions have been laid before such House disallowing any regulat ion or p a r t thereof, such regulat ion or p a r t shall thereupon cease to have effect.

2 6 .     This Act shall remain in force unt i l the th i r t ie th

day of June , one thousand nine hundred and for ty-s ix: P rov ided tha t the Governor m a y from time to t ime by regula t ion extend the operat ion of this Act for such period or periods as he may determine. Any such period shall not exceed throe months .

S C H E D U L E O N E .

The County of Cumberland.

The County of Northumberland.

That portion of the Parish of Woonona within the County of

Camden.

The Parish of Wollongong, County of Camden.

That portion of the Ci ty of Greater Newcastle outside County

of Northumberland.

Blue Mountains Shire.

Municipalities of Katoomba and Blaekheath.

S C H E D U L E

SCHEDULE TWO.

Bricks. Timber. Wire and wire products, including nails.
Asbestos cement sheets, pipes and mouldings.
Galvanised iron sheets.

Water and gas pipes and fittings, including steel pipes and cfisi

iron pipes.

Heating and cooking appliances.
Builders' hardware.
Ferrous castings for building purposes.
Sanitary earthenware.
Welding gas.
Structural and reinforcing steeL
Bolts and nuts.
Manufacturers' sheet steel.
Sheet lead.
Plumbers' brassware.
Electrical conduits.
Electrical cables.
Electrical accessories.
Meters—water, gas and electricity.
Window glass.
Building papers and felts.
Paints.

Gypsum.