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Residential Focus

20 November 2019

#Property & Real Estate

Peter Holt

Published by Peter Holt, Jeffery Shi

Residential Focus

Down to details: Review of the draft Building and Development Certifiers Regulation 2019

The Building and Development Certifiers Act 2018 (Act), which we summarised in a previous article, has received assent but is yet to commence. 

In anticipation of that, the New South Wales Government has released a public consultation draft of the Building and Development Certifiers Regulation 2019 (NSW)[1] (Proposed Regulation), exhibited from 30 September until 28 October 2019.

The Government has previously said that its aim is to finalise and publish the Proposed Regulation by December 2019 and seek to commence the new statutory scheme from 1 July 2020. 

What the Proposed Regulation does

The Proposed Regulation makes provision for a number of essential elements of the new legislative scheme dealing with:

  • classes of registration available and respective power to carry out certain works
  • qualification, skills and experience required for each class
  • applicable continuing professional development requirements
  • responsibility and independence of the certifiers
  • new accreditation authority framework for professionals to carry out regulated works
  • consumer protection in the contracts for certification work
  • higher penalty notice amounts.

New classes of registration

The Act requires building surveyors, building inspectors and engineers to be to be registered by the Secretary of the Department of Customer Service (Secretary). The categories of accreditation have changed from the former categories under the Building Professionals Act 2005. The table below shows the new class or registration compared with the former category of accreditation:


The Schedule 3 of the Proposed Regulation outlines the qualifications and experience required for each class of registration. The applicant must have the qualifications and experience at least equivalent to those specified, and first time applicants must complete a registration exam conducted by the Secretary.  Registered certifiers must complete the continuing professional development requirements.

The Secretary may also require applicants to have successfully completed recognised training under approved training program which are monitored by NSW Fair Trading, and the public consultation inquires whether the Secretary should be granted a discretion to require an applicant to complete additional training.

Expanded Responsibility

The Proposed Regulation redefines the certifiers’ responsibility by expanding the definition of the certification work to include supervision of works carried out by other certifiers if there are relevant conditions on the registration, and inserting a code of conduct which will attract penalty.

The code of conduct under the Proposed Regulation that applies to the registered certifiers includes a duty to:

  • act in public interest
  • abide by standards expected by the community
  • act within level of competence, expertise and area of registration
  • maintain satisfactory level of competence
  • avoid conflicts of interest
  • not misinform or mislead
  • obtain and consider all facts
  • document reasons for decisions
  • maintain confidentiality
  • ensure any certification work carried out under supervision is carried out competently.

Conflicts of interest and consumer protection

The new regime propose to restore the public confidence to the certifiers by enhancing their independence, as the Act prohibits the certifiers from carrying out certain works if they have a conflict of interest in the certification work. 

The Proposed Regulation prescribes three scenarios in which a registered certifier would be considered to have a conflict of interest:

  • if a certifier carrying out certification work in relation to an aspect of development provided advice on how to amend plans and specifications
  • if a certifier carrying out certification work in relation to an aspect of development proposed design options
  • if a certifier issuing a strata certificate in respect of a strata plan, strata plan of subdivision or notice of conversion prepared by him/herself or a person who he/she has relationship with.

The Proposed Regulation further requires the contracts for certification work to provide a declaration by the person who has the benefit of the certification that the person has freely chosen to engage the particular certifier, and have understand the certifier’s function and duty by reading any accompanying documents which include an information sheet published by the Secretary.

Next steps

If the Proposed Regulation is finalised and published by December 2019, the current certifiers would likely to have a six month transition period to obtain registration and update their standard contracts to comply with the new statutory scheme.

Author: Peter Holt & Jeffery Shi

[1] https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0005/559247/Draft-Building-and-Development-Certifiers-Regulations-2019.pdf

In the media

‘Whopping falls’: The ‘ute index’ a warning sign of tradie recession
For years, there has been one sure sign construction was booming – but in June this year, something changed, and tradies will pay the price (15 November 2019).  More...

Progress of building sector reforms in NSW Parliament and inquiry report on the regulation of building standards
Oon behalf of our 25,000 members in NSW, Engineers Australia supports the first recommendation in the Shergold-Weir report and the Opal Tower report that there must be compulsory registration for a wide range of engineering practices in the NSW building sector (13 November 2019).  More...

Parliamentary report calls for independent building commission to fix NSW construction industry
A parliamentary committee report calls for the establishment of a building commission to improve standards across the construction industry in the wake of the Mascot Towers and Opal Tower scandals (13 November 2019).  More...

Insurance crisis hits Australian construction hard
The professional indemnity insurance crisis has hit the Australian construction industry hard with key stakeholders unable to secure renewals or bear the cost of higher premiums (12 November 2019).  More...

PI cladding extension may be needed: ICA
The ongoing professional indemnity stalemate could drag on longer than expected, according to the Insurance Council of Australia (11 November 2019).  More...

HIA Housing finance continues to climb
Lending to households building and purchasing new homes expanded by 1.9 per cent in the September quarter while lending for established dwellings climbed by a huge 9.2 per cent for the quarter. First home buyers continue to be an important segment of the market, accounting for just under one third of all  owner-occupier  loans (08 November 2019).  More...

Australian PCI: Construction decline eases as house building approaches stability
The Australian Industry Group/Housing Industry Association Australian Performance of Construction Index climbed 1.3 points to 43.9 in October, indicating a slight easing in the construction industry’s overall rate of contraction (readings below 50 indicate contraction in activity, with the distance from 50 indicating the strength of the decrease) (07 November 2019).  More...

When rich nations banned deadly asbestos, the industry fought to keep it flowing here
Years after Australia banned all forms of the building material, big companies and lobby groups have worked together to keep Asia importing thousands of tonnes of white asbestos, and health experts fear an impending 'explosion' in cancer (07 November 2019).  More...

Engineers registration: Why the construction industry is first up for reforms
Recent news of alarming structural problems in buildings around the country is highlighting the importance of registration for engineers (06 November 2019).  More...

No Australian city has a long-term vision for living sustainably. We can't go on like this
International and internal migration trends have driven rapid growth in the big cities, especially Melbourne and Sydney. This has created major problems with providing adequate housing, infrastructure and services. The fundamental issue is the reluctance of urban communities and their leaders to discuss what might be sustainable populations (05 November 2019).  More...

Housing affordability to deteriorate over 2020
Housing affordability for new mortgage borrowers has improved over the year, but Moody's Investors Service expects affordability to deteriorate in 2020 amid a turnaround in the housing market (04 November 2019).  More...

NSW

NSW tight-lipped over flammable cladding
The NSW government has come under criticism once after it refused to release a document which identifies hundreds of buildings across the state currently clad in potentially flammable material (15 November 2019).  More...

NSW Government to keep cladding list secret
The NSW Government has cited security concerns, such as arson and terrorism, as the reason for its decision not to release to the public the list of 444 buildings in the state with potentially dangerous cladding (11 November 2019).  More...

Published

Australia Bureau of Statistics
08/11/2019 Lending to households and businesses, Australia, Sep 2019 (cat no. 5601.0)

Practice and courts

AIBS practice notes
The AIBS Board has established a priority for the development of a range of Practice Notes which will be issued as they are developed in the coming year and beyond. Three Practice Notes are now available within the members area of the AIBS webs (05 November 2019).  More...

ABAB October 2019 forum communique
The Advisory Board celebrates the endorsement of the Australian BIM Strategic Framework by the Board of Treasurers. The Australasian BIM Advisory Board (ABAB) framework includes sections on objectives, definitions, policy principles, fostering an integrated approach, and strategic action areas (04 November 2019).  More...

ABCB: Registration is open for the 2020 NCC seminars
Next March and April the ABCB will be presenting in a capital city near you (04 November 2019).  More...

NABERS reminder: Auditors, supervisors, and trainers panel announced
Congratulations to the new Panel Selection for NABERS Auditors, Supervisors, and Trainers, for October 2019-October 2022.  Find the full list here.

Building information modelling (BIM) for WHS management
What is the best practice and implications of using BIM in WHS management?
Timeline of project: Project completion: Mid 2021.  More...

Cladding guideline
Standards Australia has developed a permanent labelling system of aluminium composite panel products to support the identification of these products throughout their life-cycle. The new guideline can be purchased from the Standards Australia website.

NSW Fair Trading: Part 6 of the EP&A Act postponed until 1 December 2019
The Part 6 provisions of the Environmental Planning and Assessment Act have been postponed and will now start on 1 December 2019. This delay will allow time for the sector to adjust to the regulatory changes that have been progressing around fire safety and the Building and Development Certifiers Act 2018.  More...

Planning circular – Commencement of Part 6 (building and subdivision certification provisions)
FAQ - Occupation certificate
FAQ - New mandatory compliance powers for private principal certifiers
FAQ - New subdivision works certificate
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
If you have any queries, please contact the Department of Planning, Industry and Environment.   More...

Cases

Florida Kitchens Pty Ltd v Number One Cutting (T/S Number One Marble and Granite) [2019] NSWSC 1568
APPEAL – security for costs – appeal from NCAT to Supreme Court – 106 grounds of appeal – decision of an Associate Justice – 30 grounds of appeal – whether appeal or judicial review – whether error of law – House v The King error

Wang v Building Professionals Board [2019] NSWCATOD 174
ADMINISTRATIVE REVIEW – accredited swimming pool certifier – lack of understanding of legislative requirements – finding of unsatisfactory professional conduct – appropriate penalty

Dyldam Developments Pty Ltd v The Owners – Strata Plan No 85305 (No 2) [2019] NSWCATAP 272
COSTS – appeal from Consumer and Commercial Division – whether r 38 and r 38A Civil and Administrative Tribunal Rules 2014 apply – whether appropriate order is order for costs in the cause

Vadasz v Charas Constructions Pty Ltd [2019] NSWCATCD 59
Residential building work – construction of a dwelling – defective and incomplete works – reliance on inspector’s report – s 48N of the Home Building Act - work order – scope of rectification works

Add-Vantage Systems Pty Ltd v Ameks Developments Pty Ltd [2019] NSWCATCD 57
HOME BUILDING – implied warranties – warranty that work will be reasonably fit for specified purpose or result

Legislation

NSW

Bills revised following amendment in Committee – 15 November 2019
Design and Building Practitioners Bill 2019
Fines Amendment Bill 2019

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Peter Holt

Published by Peter Holt, Jeffery Shi

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