How the Building and Development Certifiers Act affects council certifiers
The Building and Development Certifiers Act 2018 (Certifiers Act) has been in place since 1 July 2020. How have the changes affected council certifiers?
The role of council certifiers generally
Despite the trend towards private certification, councils still play an important role in the certification of new buildings in NSW.
Council employees, and contractors engaged by councils, issue construction certificates and occupation certificates and act as the principal certifiers on a large portion of building sites across the State.
When private certification was first introduced in 1998, there was no requirement from employees of councils who carried out certification work to be registered, hold any particular qualifications or carry out any continuing professional development.
In 2002, the Campbell Inquiry recommended that private certifiers and local council certifiers be subject to the same licensing and audit regime.
In 2008, the Building Professionals Act 2008 was amended to provide for the accreditation of council officers. Council officers carrying out building certification work, on behalf of councils, also had to be accredited by the Building Professionals Board under a modified scheme.
The role of council certifiers under the Certifiers Act
Even though the council itself is not required to be registered to carry out certification work, any employee of the council who carries out certification work, or anyone that the council engages to carry out certification work must be registered.
Certification work includes the exercise of the function of a certifier (including a principal certifier) specified in section 6.5 of the Environmental Planning and Assessment Act 1979. Those functions include issuing construction certificates, carrying out inspections, issuing occupation certificates and subdivision works certificates. Certification work also includes determining applications for strata certificates and inspecting swimming pools under the Swimming Pools Act 1992.
Councils should be aware of their obligations under the Certifiers Act to ensure that certifiers working for them (or on their behalf) are registered and are covered by the required insurances. Councils should also be mindful of their obligations to notify the Commissioner for Fair Trading if circumstances change.
For a more in-depth discussion on these obligations, read our extended piece here.
Authors: Peter Holt & Olivia Lawrence
 Joint Select Committee on the Quality of Buildings (otherwise known as the Campbell Inquiry) Recommendation 12
 Second Reading Speech for the Building Professionals Amendment Bill 2008
 Section 5(2) of the Building and Development Certifiers Act 2018
 Section 112 of the Building and Development Certifiers Act 2018
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Community Road Safety Grants
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Coronavirus Support for Multicultural Seniors program
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Model meeting procedures (mandatory minimum procedures)
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Code of conduct for councillor advisors in Queensland
Supporting information for councillor advisors
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Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020
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new and clarified conflict of interest requirements (in effect 12 October 2020)
a system for regulating political advisors (in effect 12 October 2020)
the requirement for councils to develop guidelines about councillor administration support staff (in effect 12 October 2020)
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changes for filling councillor and mayor vacancies (in effect 12 October 2020).
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Harris v Victorian Electoral Commission  VSC 676
ELECTIONS – Proposed payment by Liberal Party of Australia (Victorian Division) to National Party of Australia – Victoria – Whether proposed payment a ‘gift’ and a ‘political donation’ within Pt 12, Electoral Act 2002 (Vic) – Whether proposed payment would be made for ‘consideration in money or money’s worth’ – Whether proposed payment would be for inadequate consideration – Where parties ran joint tickets in three Legislative Council regions – Where public funding entitlement in respect of joint tickets paid to Liberal Party – Where Liberal Party proposed to pay one-third share of that entitlement to National Party – Effect of Coalition Agreement between Liberal Party and National Party – Electoral Act 2002 (Vic), ss 69A, 151, 206, 207F, 211, 212.
STATUTORY INTERPRETATION – Definitions of ‘gift’ and ‘political donation’ in s 206(1), Electoral Act 2002 (Vic) – Construction of ‘gift’ – Meaning of ‘consideration in money or money’s worth’ and ‘inadequate consideration’ – Scaffidi v Chief Executive Officer, Department of Local Government and Communities  WASCA 222; (2017) 52 WAR 368 – Wheatley v State of New South Wales  NSWCA 315.
J&M Management 2 Pty Ltd v Yarra Ranges SC  VCAT 1174
Yarra Ranges Planning Scheme; development of land within a lower order activity centre; suitability of residential development within a strip shopping centre; amendment of a permit.
Hutchins v Melbourne CC  VCAT 1180
Section 82 Planning and Environment Act 1987, Melbourne Planning Scheme, clause 54, wall on boundary, double storey building, solar access to north facing windows, overshadowing to existing secluded private open space.
Kieser Training Pty Ltd v Banyule CC  VCAT 1175
In accordance with the endorsed plans: Business identification major promotion sign
In accordance with section 68 of the Planning and Environment Act 1987 and Clause 52.05 of the Banyule Planning Scheme, this permit will expire fifteen (15) years from the date of this permit.
Gagliano v Moonee Valley CC  VCAT 1173
Moonee Valley Planning Scheme; alterations and additions in a Heritage Overlay; adding a driveway and carport to the frontage of a contributory dwelling; the Riverview Estate Precinct; traffic and carparking impacts from a crossover being places near to a laneway entrance.
Coffs Harbour City Council v Polglase  NSWCA 265
1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty’s railing and sustained serious injury - history of young children falling through railing to Council’s knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff’s injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach
COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State’s and grandparents’ costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order
Local Government Act 1906 (NSW); Local Government Act 1919 (NSW), s 537; Local Government (Consequential Provisions) Act 1993 (NSW), ss 3, 4; Local Government (Shires) Act 1905 (NSW), s 17; Public Works Act 1912 (NSW), s 153
Cousins v Transport for NSW  NSWLEC 146
INTERIM INJUNCTION - proposed demolition of a bridge listed as an item of local heritage in a local environmental plan - whether the bridge constitutes a “relic” as defined in the Heritage Act 1977 (the Heritage Act) - imminent demolition of the bridge unless an interim injunction is issued - question as to whether or not the Applicant has a reasonably arguable case that demolition of the bridge would result in a breach of the Heritage Act - consideration of the basis upon which it was said that such a breach might arise - no reasonably arguable case established - injunction refused COSTS - costs in Class 4 proceedings usually follow the event - no discussion of costs during the course of the hearing - contingent costs order made requiring the unsuccessful Applicant to pay the First Respondent’s costs as agreed or assessed unless a party seeks to be heard to propose some alternative costs order
Heritage Act 1977, ss 4, 38, 132, 139, 153 and 154; Kyogle Local Environment Plan 2012, Sch 5
The Development & Environmental Professionals’ Association v Narrabri Shire Council  NSWSC 1444
PRACTICE AND PROCEDURE – Application to strike out pleadings – Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Whether the Court lacks jurisdiction to declare contracts unfair or void under section 106 of the Industrial Relation Act – Application dismissed
Betop Holdings Pty Ltd v Blacktown City Council  NSWLEC 1511
DEVELOPMENT APPLICATION – multi dwelling housing – whether road design is acceptable
Truland Development Pty Ltd v Georges River Council  NSWLEC 1496
DEVELOPMENT APPLICATION – heritage item – proposed new apartments on the site of the heritage item and adjoining sites – conservation works – appropriate curtilage and setbacks – positive benefits of the proposal in balance with detrimental impacts – whether overall the proposed development impacts on the heritage significance of the item – variation sought to the maximum height standard – whether the variation request adequate and should be upheld – area experiencing redevelopment – compatibility with desired future character – setback variation to two street frontages – transition to low density development adjacent – appeal dismissed
38 Bond St Partnership v Randwick City Council  NSWLEC 1491
DEVELOPMENT APPLICATION – residential apartment development – State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development – meaning of qualified designer under Environmental Planning and Assessment Regulation 2000 – cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 – statement by designer – habitable roof space – loss of views
Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council  NSWLEC 1487
DEVELOPMENT APPEAL – boarding house – character and streetscape – site isolation – amenity of future lodgers – solar access to adjoining private open space – interpretation of a savings provision requiring a determination of a development application as if the plan had not commenced – orders
Jun v Northern Beaches Council  NSWLEC 1483
DEVELOPMENT APPLICATION – demolition and construction of a three-storey dwelling house – proposed development contravenes the height of buildings and floor space ratio development standards – consideration of applicant’s written requests made pursuant to clause 4.6 of the Manly Local Environmental Plan 2013
Independent Assessor v Councillor Conduct Tribunal & Anor  QSC 316
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant applied to the first respondent pursuant to the Local Government Act 2009 (Qld) to make a determination in respect of alleged misconduct by the second respondent – where the applicant then purported to revoke and rescind its application – where the first respondent advised that it would proceed to determine the application – whether the first respondent had jurisdiction to hear and determine the application
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INTERPRETATION ACTS AND PROVISIONS – EXERCISE OF POWERS AND DUTIES – GENERALLY – where the Local Government Act 2009 (Qld) allowed the applicant to apply to the first respondent to make a determination in respect of alleged misconduct by councillors – where s 24AA of the Acts Interpretation Act 1954 (Qld) provided that the power to make an instrument or decision includes a power to amend or repeal the decision – where the application of the Acts Interpretation Act 1954 (Qld) could be displaced by a contrary intention appearing in any act – whether the Local Government Act 2009 (Qld) displaced s 24AA of the Acts Interpretation Act 1954 (Qld)
Acts Interpretation Act 1954 Qld s 4, s 24AA; Local Government Act 2009 Qld s 150W
Realm Business Technology Pty Ltd as Tte v Redland City Council  QLC 35
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – REVIEW OF DECISIONS – APPEALS – QUEENSLAND – where the appellant company owned a house and land on Russell Island – where the house was the principal place of residence of the company’s two directors – where the respondent council levied differential rates for residential land on Russell Island – where the council rated the land as category 2a, which was for land on which there was a residential structure that was not the registered owner’s principal place of residence – where the appellant contended that the land should have been rated as category 1a, which was for land on which there was a residential structure that was the registered owner’s principal place of residence – whether the land could be rated as category 1a given that the registered owner of the land was a company – where the appeal was dismissed.Land Court Act 2000 Qld s 27A
Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor  QCA 225
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the Council appealed against the refusal of the primary judge on the appeal to the Planning and Environment Court to set aside the stormwater infrastructure charges and some of the traffic trunk infrastructure charges – where one of the grounds of appeal was that the legal approach of the primary judge was in error – where the Council succeeded on the appeal in the reinstatement of the traffic trunk infrastructure charges only and did not obtain leave in respect of the ground based on the legal approach of the primary judge – where considerable time in the hearing of the application for leave to appeal was spent considering the legal approach of the primary judge – whether the outcome of the appeal should be characterised as “contestable” – whether the Council should recover the costs for leave to appeal and the appeal
Environment Protection Amendment (Refund on Bottles and Cans) Bill 2019 (Vic)
Date of second reading speech: 16 October 2020
Statute Law (Miscellaneous Provisions) Bill 2020
|1.15 Electoral Funding Act 2018 No 20Schedule 2 Savings, transitional and other provisions - Schedule—Part 4 Provision consequent on postponement of September 2020 local government elections - postponed local government elections To avoid doubt, for the purposes of sections 28 and 31A of this Act, the local government elections to be held on 4 September 2021 are taken to be ordinary
Bills passed by both Houses of Parliament – 23 October 2020
Statute Law (Miscellaneous Provisions) Bill 2020
Bills introduced – 16 October 2020
Regulations and other miscellaneous instruments
Local Government (General) Amendment (Minimum Rates) Regulation 2020 (2020-624) — published LW 23 October 2020
Environmental Planning and Assessment Amendment (Sydney International Speedway) Order 2020 (2020-620) — published LW 16 October 2020
Environmental Planning and Assessment Amendment (Sydney Metro West) Order 2020 (2020-615) — published LW 16 October 2020
Liquor Amendment (COVID-19 and Managed Alcohol Program) Regulation 2020
Environmental Planning Instruments
State Environmental Planning Policy Amendment (Tutti Fruitti Cafe) 2020 (2020-630) — published LW 23 October 2020
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (The Rocks Outdoor Dining) 2020 (2020-611) — published LW 15 October 2020
State Environmental Planning Policy (Koala Habitat Protection) Amendment (Miscellaneous) 2020 (2020-618) — published LW 16 October 2020
Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes
Commencement: (1)Chapter 2 commences as follows— (c)the following provisions commence on 1 July 2022—
(4)Chapter 5 commences as follows— (b)the remaining provisions of chapter 5 commence on 12 October 2020.
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.