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How the Building and Development Certifiers Act affects council certifiers

04 November 2020

#Planning, Environment & Sustainability, #Property & Real Estate, #Construction & Infrastructure, #Local Government

Published by:

Olivia Lawrence

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. In this article, we examine how the changes impact 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.[1]

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.[2]

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,[3] any employee of the council who carries out certification work, or anyone that the council engages to carry out certification work must be registered.[4]

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.

Council certifiers must comply with requirements of registration

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.

A registered individual who carries out certification work on behalf of a local council is not excused from compliance with any of the person’s obligations under the Certifiers Act or any other Act, with respect to any certification work done by the person on behalf or in the name of the local council.

The registered individual is also subject to the same requirements, with respect to the carrying out of the functions of a registered certifier on behalf of the local council, as if he or she were carrying out the works on his or her own behalf.[5]

Council must also ensure certifiers acting on its behalf are properly registered

In addition to the obligation on the person carrying out the certification work, the council itself must ensure that any certification work carried out on its behalf is carried out by a registered individual[6] and that the registration authorises the individual to carry out that certification work.[7]

A council that fails to comply with these requirements may be liable to a fine of up to $110,000.

Specific variations to the wider certification scheme

There are a number of specific variations that apply only to council certifiers.

A council employee who carries out a certification function, in relation to certain types of certification work, does not have to be registered. For example, certification under the Strata Schemes Development Act 2015, certification work under the Swimming Pools Act 1992 and certification work relating to subdivision work or for a structure that does not have a classification under the Building Code of Australia, does not have to be carried out by a registered certifier.[8]

Similarly, a council may seek an exemption from the Minister for Better Regulation and Innovation (Minister) 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. The exemption may be given to a particular case or cases and may be subject to conditions. Such an exemption can be revoked by the Commissioner for Fair Trading (Commissioner), with notice, if the relevant approval of the Minister is no longer in force.

Requirements relating to conflicts of interest

Generally, a registered certifier must not carry out certain certification work if the registered certifier has a conflict of interest.[9] 

There are a number of exemptions set out in clause 25 of 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.

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.

Qualification, experience, skills and knowledge

The requirements relating to qualification, experience, skills and knowledge are now the same irrespective of whether the certifier is employed by a council or not.

Insurances

Registered certifiers working for councils do not need to have their own indemnity insurance.[10] This is on the basis that they will be covered by the council’s insurance for work done on behalf of councils in the course of their employment. Certifiers who work for a council as a consultant or contractor must have their own insurance.

Continuing professional development

Generally, certifiers must complete 25 continuing professional development (CPD) points each year. Existing certifiers registered to work for a council that is transitioning into the new scheme need to complete 15 CPD points in their first year of registration, 20 points in the second year, and 25 points each year after.[11]

Other requirements

Where a certifier is a council employee, the certifier’s registration may be subject to a condition that their registration ceases when they cease to be an employee of the council.[12]  A council must within seven days inform the Commissioner of a registered certifier commencing or ceasing to be registered or employed by the council.[13]

There also needs to be a written contract between the council and the person carrying out certification work on behalf of the council.[14]

Transitional requirements relating to existing council certifiers

The savings and transitional arrangements are set out in Schedule 1 of the Certifiers Act. Under those arrangements, certificate of accreditation was taken to be registered in the corresponding class and continues unless is it surrendered, suspended or revoked. Former conditions on certificates of accreditation were also taken to be conditions imposed on the registration.

Commissioner for Fair Trading oversight of council certifiers

The Commissioner has the power to investigate council certifiers.

The Commissioner can either act following on from a complaint or on her own motion. A report detailing the result of any investigation are sent to the council concerned and must be presented at the next council meeting. Within 40 days, the council must give notice to the Commissioner of the things done or proposed to be done to give effect to any recommendations contained in the report. The Commissioner may revise the report and must make the final report publicly available.[15]

Importantly, nothing in the process outlined above prevents the Commissioner from taking disciplinary action against a registered certifier if the Commissioner is satisfied, as a result of an investigation, that there may be grounds for doing so.[16]

Conclusions

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 aware of their obligations to notify the Commissioner if circumstances change.

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 a full discussion of the wider implications of the Certifiers Act and Certifiers Regulation, see our earlier article here.

Authors: Peter Holt & Olivia Lawrence

[1] Joint Select Committee on the Quality of Buildings (otherwise known as the Campbell Inquiry) Recommendation 12
[2] Second Reading Speech for the Building Professionals Amendment Bill 2008
[3] Section 5(2) of the Building and Development Certifiers Act 2018
[4] Section 112 of the Building and Development Certifiers Act 2018
[5] Section 37 of the Building and Development Certifier Act 2018
[6] Section 40 of the Building and Development Certifiers Act 2018
[7] Section 112 of the Building and Development Certifiers Act 2018
[8] Clause 61 of the Building and Development Certifiers Regulation 2020
[9] Section 28 of the Building and Development Certifiers Act 2018
[10] Section 26(4) of the Building and Development Certifiers Act 2018
[11] Guidelines issued by the Commissioner for Fair Trading, under Schedule 4 clause 1 of the Building and Development Certifiers Regulation 2020
[12] Section 16 of the Building and Development Certifiers Act 2018
[13] Clause 62 of the Building and Development Certifiers Regulation 2020
[14] Section 31(1)(a) of the Building and Development Certifiers Act 2018
[15] Process is set out in sections 107(1-8) of the Building and Development Certifiers Act 2018
[16] Section 107(9) of the Building and Development Certifier Act 2018

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

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