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New Practice Standard for registered certifiers in NSW – what will it achieve?

04 December 2020

#Property, Planning & Development, #Construction, Infrastructure & Projects

Published by:

Georgia Appleby, Rebecca Weakley

New Practice Standard for registered certifiers in NSW – what will it achieve?

In September 2020, the NSW Government released the Practice Standard for registered certifiers in an attempt to assist registered certifiers to comply with the requirements under the Building and Development Certifiers Act 2018 (NSW) (BDC Act) and the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). The release of the Practice Standard came out of the comprehensive reform of building regulation in NSW being undertaken by the NSW Building Commissioner, which had highlighted the need to provide certifiers with a standard that gives insight into the approach needed to competently undertake certification work as public officials.

The Practice Standard focuses only on residential apartment buildings (including ‘mixed-use’ developments), as:

  • the bulk of complaints and problems have occurred in residential apartment buildings
  • for residential apartment buildings, there is a separation between the developer and the unit owners. As the developer assumes the role of the owner during planning and construction, unit owners are not represented during the building phase, and in any event, generally do not have the expertise to assess the quality of the building and ensure conformance with building standards.

Ultimately, the aim is to provide practice standards for all building classes and complying development, and these future practice standards will draw on the initial Practice Standard for registered certifiers.

Purpose

Much of the Practice Standard is a restatement of Act and Regulation. The Practice Standard is intended to:

  • provide a clear, accessible and specified standard of what is expected of certifiers in undertaking their role and functions, by setting out certifiers’ requirements and the process to follow to achieve compliance
  • make clear the professional obligations and conduct of certifiers as public officials, by explaining the public interest, conflicts of interest and behaviours to be followed or avoided
  • to reinforce that the role of the certifier is different from builders and other building practitioners
  • to enhance the accountability and responsibility of certifiers, by setting out what the public is to expect of a reasonably competent registered certifier and relevant disciplinary actions.

The bar for unsatisfactory conduct on the part of certifiers has always been low. However, it seems that the new Practice Standard lowers the bar further by introducing very broad concepts and responsibilities.

Legal status

The Practice Standard has been issued under section 14 of the BDC Act which provides that the conditions of registration may require a registered certifier to carry out certification work in accordance with specified standards or methodologies, including but not limited to standards or methodologies prepared by the Secretary.

The BDC Act provides that conditions may be imposed on the registration of a registered certifier, requiring that they carry out certification work in accordance with a standard. This means that non-compliance with the Practice Standard may constitute a contravention of a condition of registration, which is an offence under section 20 of the BDC Act. Further, it also constitutes grounds for taking disciplinary action under section 45(g) of the BDC Act, for failure to comply with a condition of registration.

The Practice Standard advises that even if a registered certifier does not have any conditions imposed on their registration, they should still read and apply the standard where relevant.

Application

Registered certifiers who undertake certification work for new residential apartment buildings are covered by the Practice Standard. This means class 2 buildings under the Building Code of Australia (BCA), including multi-classified buildings which contain a class 2 part.

Key points

The Practice Standard aims to guide certifiers in undertaking their role as public officials. We summarise the key obligations imposed under each chapter below.

Chapter 1 – certifiers as public officials

The Practice Standard provides that certifiers are to carry out their work with the “mindset of a public official”, being impartial, honest and acting in the public interest. The chapter runs through what constitutes corrupt conduct, what is meant by the public interest, potential conflicts certifiers may face and how certifiers can act in the public interest.

The Practice Standard lists a number of points that certifiers are expected to achieve to act in the public’s interest, including but not limited to:

  • be aware of all the requirements of the relevant laws and regulations
  • take all reasonable steps to obtain relevant facts
  • make evidence-based decisions and clearly document the reasons for their decisions
  • issue certificates only after confirming all applicable requirements are met
  • not to misuse information acquired in the course of their work
  • take all reasonable steps to not adversely affect the health, safety and amenity of a person or property
  • take appropriate and prompt action in relation to complaints about a development they are certifying.

Chapter 2 – conflicts of interest

This chapter provides advice to certifiers on the conflict of interest provisions that govern their role and seeks to help certifiers identify and appropriately manage potential conflicts of interest. The chapter also explains the meaning of a conflict of interest, when a certifier has a conflict of interest, what constitutes a private interest, and tips for managing conflicts of interest.

Chapter 3 – construction certificates for building work

Chapter 3 contains guidance on the requirements for a certifier in determining and issuing a construction certificate (CC) for residential apartment buildings.

This chapter includes a number of sections where expectations of registered certifiers are listed, such as expectations around:

  • documenting decision making
  • CC applications – checking the application and its accompanying documents, as well as what to do when documentation is insufficient
  • evaluating an application for a CC
  • CCs that are inconsistent with development consents
  • assessing the consistency of proposed building works
  • compliance with all relevant requirements of the BCA, including the detail required to determine BCA compliance.

The chapter also covers fire safety.

Chapter 4 – inspections of building work

The certifier’s role involves the carrying out of inspections of building work during construction and before the issuing of an occupation certificate (OC). The chapter guides certifiers in relation to carrying out inspections for building work and completed buildings in connection with certification work.

Chapter 5 – occupation certificates

In the certification process, the certifier plays a key role in ensuring compliance with the statutory requirements for the issuing of OCs, as well as the documents relied upon in support of the OC and in determining whether to issue an OC following an assessment of the buildings’ suitability for occupation and use.

In this regard, this chapter includes information that clarifies the role of the certifier, and in particular, provides:

  • a general overview of key statutory obligations for certifiers assessing an application for and issuing an OC
  • guidance for certifiers in exercising their functions to the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonable competent certifier
  • guidance where certifiers are required to exercise professional judgment in their decision making when assessing an application for, and issuing an OC.

Chapter 6 – documentary evidence

Chapter 6 of the Practice Standard provides that the role of a certifier, in relation to documentary evidence, includes:

  • communicating expectations to the applicant of the type of documentary evidence and information required to determine an application
  • determining that the requisite level of documentary evidence and information has been provided to enable a proper assessment of an application
  • carrying out basic checks of documentary evidence and information that is to be relied upon in determining an application
  • critically assessing documentary evidence and information using professional judgement to determine the suitability and appropriateness of relevant matters
  • ensuring that the collective documentary evidence relied upon from all sources is holistic and encompasses the complete building.

Chapter 7 – compliance

This chapter discusses written direction notices and other non-compliances. The Practice Standard provides that where a certifier becomes aware of non-compliances, they should:

  • notify the relevant persons of the non-compliance, such as the owner of the land and the local council, where appropriate
  • make a record of any action taken
  • if the matter was the subject of a complaint made to the certifier, advise the complainant of any action taken (where relevant).

Implementation

The Practice Standard aims to make it easier for registered certifiers to understand their roles and obligations under the recently introduced certifier legislation. Kevin Anderson, Minister for Better Regulation, stated that the Practice Standard would help all registered certifiers apply the requirements under the legislation to their practice. Mr Anderson acknowledged that the practice for certifiers had been sub-standard for a significant period of time and announced that the Practice Standard drew a line in this behaviour by clearly outlining the approach required by certifiers to comply with the law. Further, he confirmed that the Practice Standard would be enforced, with disciplinary action being taken for any breaches by registered certifiers.

The Practice Standard was developed in consultation with a panel of experts, covering all major relevant areas of the building sector and building regulation. The Practice Standard will also be updated regularly to ensure it remains relevant and fit-for-purpose and will be reviewed and updated before the 1 July 2021, the commencement date of sections of the Design and Building Practitioners Act 2020 (NSW).

The release of the Practice Standard makes it clear that the government is serious about cracking down on inadequate certification practices. It provides clear guidance on the required practices and behaviours to certifiers who may be unsure of their requirements under the legislation. The Practice Standard is already in use for projects coming under the new audit powers of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), however, the full effect of the Practice Standard will be seen most directly when disciplinary actions are taken against certifiers who fail to comply.

Certifiers, as public officials, have always had a critical role in the quality of buildings in NSW. However, it is fair to say that the practices of some certifiers, developers and builders need substantial improvement. The challenge for private certifiers under the Practice Standard goes further than merely meeting the stated requirements. It seems likely that many will have to substantially increase the fees for certification services on residential apartment buildings in order to properly account for the work required that hitherto may not have had the attention required. This will no doubt involve some education for their developer clients and builders.

To this end, any certifier who is tendering for a project might be well advised to include a copy of the Practice Standard along with any fee proposal to elaborate what is required of them to properly discharge their duties.

Authors: Helena Golovanoff, Peter Holt, Georgia Appleby & Rebecca Weakley

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:

Georgia Appleby, Rebecca Weakley

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