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 these 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.
Council certifiers were brought into the Building Professionals Act 2008 as part of a longer term push to seek to ensure that both private certifiers and local council certifiers were subject to the same licensing and audit regime.
The role of councils 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 and have the right type of certification for the work.
The council itself must also ensure that any certification work carried out on its behalf is carried out by a registered individual and that the registration authorises the individual to carry out that certification work.
Obligations on council certifiers
Generally, council certifiers will have to comply with the obligations under the Certifiers Act and the Building and Development Certifiers Regulation 2020 (Certifiers Regulation) applicable to all certifiers.
However, there are a number of specific variations to the scheme that apply only to council certifiers. For example:
Specific exemptions from certain conflict of interest
As with all registered certifiers, a council certifier must not carry out certain certification work if they have a conflict of interest.
There are a number of specific exemptions set out in the Certifiers Regulation that recognise a council certifier may be acting in other capacities, and those capacities do not necessarily give rise to a conflict of interest. These include where the certifier:
Insurances
Unlike their private counterparts council certifiers do not need their own insurances because they are expected to be covered by the council’s insurance arrangements in the performance of their duties.
Continuing professional development
While council certifiers are required to do a certain amount of mandatory continuing professional development those obligations are being phased in over a number of years.
Conclusions
The regime for council certifiers in the Certifiers Act can be seen as a clear continuation of the former regime for accreditation of council certifiers under the Building Professionals Act 2008.
Apart from those matter identified above relating to what constitutes certification work, a conflict of interest, insurances and continuing professional development, there are now very few differences between the requirements imposed on council certifiers and their private counterparts.
It is clear from the new legislation that all certifiers are expected to work in the public interest and are to be held accountable. Council certifiers will also understand that their duty as a certifier carrying out certification work must come ahead of any duty they may have as a council employee, or as someone engaged by a council to carry out certification work.
For an in-depth discussion, read our extended piece here.
Authors: Peter Holt & Olivia Lawrence
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Taouk v Commissioner for Fair Trading, Department of Customer Service [2020] NSWCATAP 225
(1) Leave is refused for Mr Taouk to appeal on grounds that are not questions of law.
(2) The appeal is dismissed.
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Administrative Decisions Tribunal Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act 1989 (NSW)
HSL Group Pty Ltd v Department of Finance, Services & Innovation [2020] NSWCATOD 125
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Improper conduct — Disciplinary action BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Authority — Fit and proper person BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Insurance — Residential building work not carried out under a contract — whether offence under s 92 of the Home Building Act 1989 (NSW) is an offence of strict liability
Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 24) [2020] NSWSC 1498
COSTS – representative proceedings – multiple defendants – joint and several costs order in favour of plaintiff – extent to which defendants must contribute to each other’s obligation to pay plaintiff’s costs.
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Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989
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Woodward v Warwick Green Building Pty Ltd [2020] NSWCATAP 214
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APPEAL – Costs – costs of application for a stay
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Environmental Planning Instruments
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State Environmental Planning Policy (Infrastructure) Amendment (Sydney Metro West Interim Corridor) 2020 (2020-591) — published LW 2 October 2020
State Environmental Planning Policy (Western Sydney Aerotropolis) Amendment (Commencement) 2020 (2020-586) — published LW 30 September 2020
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Restart NSW Fund Amendment (Rural and Regional Infrastructure Funding) Bill 2020
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.
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