Bill 3 Brings Changes to Building Regulation

The BC Legislature has introduced Bill 3 – 2015, the Building Act (“Bill 3”), and has given it first reading. Bill 3 will effect a number of changes to building regulation in the province. The overarching purpose of the legislation, according the Province’s media release, is to promote consistency in the regulation of building throughout the province. The Province has also referred to its desire to bring BC’s legislation in line with that of other provinces. As discussed in more detail below, there are a number of notable features of Bill 3, including the following:

  • Establishment of mandatory credentials for building officials, and a Province-wide register of building officials;
  • Curtailment of local government bylaws that go beyond the BC Building Code;
  • Potential for site-specific building regulations by the Province;
  • Potential for provincial regulation of building beyond the current BC Building Code, in relation to the manner of inspection, construction, demolition, and other activities;
  • Potential “outsourcing” of building inspection to the private sector.

An important aspect of Bill 3 is its creation of a mandatory provincial register for building officials, and the establishment of a process for obtaining and maintaining credentials. Bill 3 includes provisions requiring building officials to specify the scope of their practice, provisions allowing for the challenge of a building official’s decision, and provisions regulating the conduct of building officials, as well as administrative oversight and discipline. There are transitional provisions in the legislation, but within four years of section 10 of the Building Act coming into force, all local government building inspectors will have to be registered.

Another important impact of Bill 3 is the change it makes to the authority of local governments to adopt building bylaws. Currently, under section 9(1)(d) of the Community Charter, and by reference section 693.1(2) of the Local Government Act, local government building bylaws that establish standards that are or could be dealt with by the Provincial building regulations are within a “sphere of concurrent authority”. Such bylaws may not be adopted except where authorized by regulation, or by agreement with or the approval of the minister. At present, the Buildings and Other Structures Bylaws Regulation authorizes local government building standards bylaws in relation to buildings that are not regulated under the Building Code such as small accessory buildings and temporary buildings.

Under Bill 3, section 9(1)(d) of the Community Charter will be repealed, and a local government building bylaw will have no effect if it “relates” to a matter that is subject to a requirement in a provincial regulation, or that is prescribed as a “restricted matter”. The minister may also prescribe matters that are “unrestricted”, in relation to which local governments will be able to adopt bylaws. The minister could, for example, enact a regulation prescribing matters not currently covered by the BC Building Code, such as very small structures, and temporary buildings, as “unrestricted matters”.

Local governments that want different building standards to apply within their boundaries will have to apply to the minister for a Provincial building regulation applicable to that local government (and the Building Act will allow the minister to recover the Province’s costs of processing such requests from the local government). For that matter, it appears that any builder or developer who is dissatisfied with the Province’s building regulations will have the ability to apply to the Province for special, site-specific building regulations. To some extent, the true impact of these changes will depend on how narrowly or broadly the legislation is interpreted by the courts, but the Province’s intent appears to leave much less room for local governments to regulate, while providing the minister with very broad powers. The actual impact of the changes will depend on the regulations the minister adopts.

One example of local government bylaws that will be affected are those imposing sprinkler requirements. Some local governments in B.C. still have provisions in their building bylaws that date back before the adoption of the Community Charter, imposing sprinkler requirements that are more onerous than the requirements in the BC Building Code. Such provisions were “grandfathered” by a transitional provision when the Community Charter came into force. Under the Bill 3 regime, there is no such “grandfathering”, so it would seem the intent is to finally bring such local regulations in line with the BC Building Code sprinkler requirements. Bill 3 provides for a two-year transition period, giving local governments time to amend their bylaws before the invalidity takes effect.

The Building Officials Association Act is largely unaffected by Bill 3. Membership in the Building Officials Association will continue to be voluntary, unlike registration pursuant to the Building Act, which will be mandatory.

Beyond the impacts of Bill 3 in the short term, at this time it is unclear what further effects it may have. It creates broad powers for the minister responsible to enact regulations. In some respects the minister’s regulation making powers are similar to those existing under section 692 of the Local Government Act, but the Building Act introduces the power to prescribe “requirements”, including requirements in relation to the inspection of buildings, and in relation to “building activities” such as the construction, alteration, repair or demolition of buildings.   Much depends on the sort of regulations actually created, but it is important to recognize the broad power that will exist once Bill 3 becomes law.

The wording of Bill 3 seems broad enough to allow the minister to determine how local governments are required to perform building inspections, and even to regulate the construction industry by prescribing classes of persons who are authorized to undertake building activities. The Province’s long-term intentions are not clear, and hopefully more information will be forthcoming as Bill 3 is debated in the Legislature. Given that the BC Building Code already imposes a high level of uniformity in building standards throughout the province, it may be that some parts of Bill 3 have been included so that the Province has the ability to act further in future, if the more immediate changes made by Bill 3 do not achieve the desired degree of consistency.

It may also be that Bill 3 will open the door to “privatization” of building inspection. Once a register of building officials is established, local governments might possibly choose to revise their building bylaws to require owners and developers to hire a registered building official to certify compliance with the BC Building Code. If a local government’s role is limited to ensuring the appropriate documentation is filed, this may significantly reduce a local government’s liability exposure. This may also encourage implementation of building permit requirements in rural and remote areas where no active enforcement of the BC Building Code is presently done. Only time will tell.