Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Residential Focus

04 November 2020

#Property & Real Estate

Published by:

Olivia Lawrence

Residential Focus

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:

  • a council employee who carries out a certification function, in relation to certain types of certification work specified in the Certification Regulation, does not have to be registered
  • a council may also seek an exemption from the Minister for Better Regulation and Innovation that the council is exempt from the requirement to ensure that a registered individual’s registration authorises the individual to carry out that certification work.

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:

  • issues a certificate on behalf of a council to the council or an employee of the council, but only if the development to which the certificate relates has a capital investment value of less than $2,000,000
  • is carrying out council certification work and is carrying out other private certification work in the same local government area, but not where the council certification work and private certification work relate to the same development
  • is issuing the relevant certificate on behalf of a council, being involved in the assessment of an aspect of development during the determination of the development application or application for a complying development certificate.

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

In the media

What climate risks are on the horizon for the construction industry in Australia?
As bushfires rage and coastal storms grow more severe, it's evident that climate change is a current threat, not just a future one. Businesses, especially in industries like construction, should be aware of these risks (29 October 2020).  More...

Green Star eliminating natural gas and electrifying buildings
As the first of the new suite of Green Star Future Focus tools, Green Star Buildings sets a clear new requirement that buildings must be net-zero – fully electric, fossil fuel free and 100% powered by renewables – to achieve the highest possible 6 Star rating (29 October 2020).  More...

ANZ announces changes to its carbon policy
ANZ has just announced important changes to its carbon policy, to support the transition to a net-zero emissions economy by 2050. “These new measures build on work already underway to support 100 of our largest emitting customers in the energy, transport, buildings, food, beverages and agribusiness sectors to manage and disclose their transition plans (29 October 2020).  More...

November 2020 Australian construction market report
Due to be released Thursday 5 November, the Australian Construction Market Report will provide insight into a recovering construction industry in a post-COVID world (26 October 2020).  More...

Builders have never been busier despite COVID-19
2020 is shaping up to be a record year for custom home builders across Australia despite the COVID-19 pandemic, with some forecasting a five-fold increase in net profit for quarter four, according to analysis of 252 residential building companies by the APB (26 October 2020).  More...

Construction firms struggle to keep up with safety regulations
Releasing the results of their latest survey of 167 small, medium and large construction contractors conducted during September and October by ACA Research, construction project management software provider Procore said that keeping up to date was the most important part of managing quality and safety compliance (22 October 2020).  More...

New National Dictionary to help decode building and plumbing terms
With building and plumbing terms differing from state to state, Standards Australia and the Australian Building Codes Board have launched an online dictionary to help when words get lost in translation (19 October 2020).  More...

Practice and courts

Reminder: Adoption of the 2022 edition of the NCC will be delayed
The Building Ministers’ Forum has agreed to a four month delay to the adoption of NCC 2022. Read more

Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key dates in the amendment cycle process for NCC 2022 to allow stakeholders time to participate. These adjusted dates include:
May – July 2021: NCC 2022 Public Comment Draft released for public consultation
May 2022: NCC 2022 Preview published at ncc.abcb.gov.au
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

ABCB consultations

WMTS-522:2020
For Public Comment Technical Specification for the WaterMark Certification Scheme WMTS-522:2020,incorporates amendments to allow an addition of similar products of alternate design to obtain certification. Closes 28 October 2020

Definition for building complexity
The defined term for 'Building complexity' has been developed in response to a decision of the Building Ministers’ Forum (BMF) that a definition be prepared regarding the design, construction and certification of complex buildings. Closed 01 November 2020

2020 national housing research program commences
Research is underway for the suite of projects funded by AHURI as part of the 2020 National Housing Research Program (NHRP). The research will be undertaken by collaborative teams from AHURI’s eight national university research partners. For more details of the 2020 NHRP projects please click here.  More...

Developers must provide advance notice of building completion
Building developers must provide an expected date that they will apply for an occupation certificate. This notice must be provided at least 6 months in advance and no later than 12 months.   If building developers do not provide notice, fines may apply and/or a prohibition order may be made that stops or delays an occupation certificate being issued. Notice can be given through the NSW Planning Portal or online here. Reminder: A transitional period applies to developers with residential apartment buildings due for completion within the first six months of the Act starting 1 September 2020. In these cases, notice must be given within two weeks of the new legislation coming into effect.

NSW Revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

Cases

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.
APPEAL – where appellant has appealed on questions other than questions of law – whether leave should be given to appeal – whether, if leave is given, the Appeal Panel should admit further evidence on appeal
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.

Cooper v JFW Constructions Pty Ltd [2020] NSWCATAP 218
APPEAL - Leave to appeal from decision on costs from Consumer and Commercial Division of NCAT - no question of law - usual order that costs follow the event - successful party - leave to appeal refused
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989

Shankar v Hills Developments Pty Ltd [2020] NSWCATAP 217
APPEALS – points not taken at hearing – grounds not raised in Notice of Appeal or in submissions - not arguable on appeal – adjournment of appeal - refusal
Home Building Act 1989 (NSW), ss 18B and 18F

Slotwinski v Nutek Constructions Pty Ltd [2020] NSWCATAP 216
CONTRACTS – remedies – damages – after repudiation – measure of damages – proper construction of contracts CIVIL PROCEDURE – jurisdiction – inferior tribunal – equitable defence CIVIL PROCEDURE – jurisdiction – whether s 48K(9) of the Home Building Act 1989 confers jurisdiction on the Tribunal despite cl 5(7) of Sch 4 of the Civil and Administrative Tribunal Act 2013
Home Building Act 1989 (NSW), ss 48K(1), 48K(9)

Woodward v Warwick Green Building Pty Ltd [2020] NSWCATAP 214
The appellant shall pay the respondent’s costs of the application for a stay on the ordinary basis as agreed or, if not agreed, then assessed on the basis set out in the legal costs legislation
Each party lodged applications for remedies under the Home Building Act 1989 (NSW).
APPEAL – Costs – costs of application for a stay
Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 60(2); Civil and Administrative Tribunal Rules 2014 (NSW), rr 38, 38(2)(b), 38A, 38A(1);  Home Building Act 1989 (NSW); Legal Profession Uniform Law Application Act 2014 (NSW), s 3A 

Legislation

Regulations and other miscellaneous instruments
Home Building Amendment (Medical Gas Work) Regulation 2020 (2020-643) — published LW 30 October 2020

Environmental Planning Instruments
Local Environmental Plan Amendment (Major Infrastructure Corridors—Maps) 2020 (2020-596) — published LW 2 October 2020
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

Bills introduced  Non-Government – 23 September 2020
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.

Published by:

Olivia Lawrence

Share this