The Building Professionals Board’s audit programs provide an independent check of the work of accredited certifiers and councils in their role as certifying authorities.
Certifiers should review their practices against the lessons identified below, to ensure best practice and continual improvement.
Lessons from audits according to stages in the certification process:
Lessons for certifiers at the stage of assessing applications for complying development certificates (CDCs) and Part 4A certificates.
A Part 4A certificate is a certificate referred to, and within the meaning of, section 109C(1)(a-d) of the Environmental Planning and Assessment Act 1979 (EP&A Act); that is, a compliance certificate, construction certificate, occupation certificate or subdivision certificate.
Date of receipt
Applications must be endorsed with the date of receipt. This allows council or the certifier to identify the relevant version of the Building Code of Australia (BCA) which applies to the development. It also triggers the timing of any required referral and determination provision and confirms receipt of the information necessary to enable the application to be determined.
Applicants for construction certificates and occupation certificates
Only the person who is eligible to appoint a principal certifying authority for the development can apply for a construction certificate or an occupation certificate. This will generally be the property owner, but may be a subsequent purchaser of the property who is entitled to rely on the development consent.
A builder or contractor cannot apply for a construction or occupation certificate, unless the builder or contractor is also the property owner.
The application for a construction certificate must be separate to an application for an occupation certificate – the applicant can't apply for both at the same as the accompanying information is different.
Applicants for CDCs
Only the property owner, or another person with the owner's consent, can apply for a CDC.
The application for a CDC must be separate to an application for an occupation certificate – the applicant can’t apply for both at the same time as the accompanying information is different.
Applications for certificates must include all required documents
You must receive all required documentation before you accept an application. This lets you assess the application properly and also demonstrates due diligence.
An application for a construction certificate or CDC must include ALL the documentation specified in Parts 2 and 3 of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation). An application for an occupation certificate must include ALL the information specified in clause 149 of this Regulation.
For example, before issuing a CDC for commercial or industrial development, check if the development is to be provided with water supply or sewerage services. If so, the applicant must have written advice from the water utility about what is required. These requirements must be met before an occupation certificate is issued. Read more about this example.
Is the development on waterfront land? It may require a controlled activity approval from the NSW Office of Water. Read more about this example.
Use checklists to develop application forms
Any application form given to potential applicants should include prompts and/or a checklist so that all documentation is submitted with the application.
For example, a construction certificate application form for building work must include the class of building under the BCA, and the registered number and date of issue of the relevant development consent.
As another example, a CDC application must nominate the relevant planning instrument under which it is made.
Checklists and forms can be used as the basis for application forms, to ensure all details and documents are submitted. Using checklists gives a consistent approach.
Having all required documents may reduce your liability if problems arise later on
To reduce your liability:
- don’t accept an application until you have all documentation specified in the EP&A Regulation
- be wary of documents that may no longer be correct - for instance, a section 149 certificate is correct only at time of issue
- keep records for 10 years for each development – this includes, for example, evidence of your compliance with the notification laws for complying development
- don't rely on your employer to keep records for you, and make sure your employment contract lets you take records with you if you leave the company
- seek advice from your insurer about anything that affects your insurance (for instance, if you are asked to sign contracts that might waive your legal protection)
- make sure your insurance is up to date, and consider purchasing ‘run-off’ cover for added protection, especially if you are nearing retirement.
Lessons for certifiers at the stage of determining applications for CDCs and Part 4A certificates.
Issue certificates ASAP after inspection
Issue a development certificate as soon as possible after the inspection. If you wait, things may change on the site that you don't know about, and which you may be liable for. So don't, for instance, prepare certificates throughout the week, and sign and send them in batches on a particular day.
Long service levy
Long service payment levies apply if building and construction works cost $25,000 or more (GST inclusive). Under the EP&A Act, the levy (or the first instalment of the levy) must be paid before a CDC or construction certificate is forwarded or delivered to the applicant.
Fire safety schedules
Where a construction certificate or CDC is required to be accompanied by a fire safety schedule:
- the schedule must specify, and clearly differentiate between, existing and proposed fire safety measures. This is particularly important to third parties preparing annual fire safety statements
- don't just refer to the BCA to determine what to include in the schedule, because the BCA doesn't list all requirements
- the schedule must include everything required by the EP&A Regulation and correctly reference all performance standards (such as the relevant Australian Standard, the Fire Sprinkler Standard, and the standard of performance for any building works required by the Fire Sprinkler Standard).
More information and advice:
- Department of Planning and Environment: advice and resources
- Fire safety schedules - alternative solutions: practice advice July 2011
- Fire safety schedule can't rectify omissions in CC application: e-news January/February 2016
Forward copies of certificates to council within two days
Copies of the certificates and associated documents must be forwarded to council (and the consent authority if this is not council) within two days of issuing a construction certificate or CDC.
CDC must be in place before work starts
Complying development can only be carried out if a CDC has been issued.
Use the term 'staged' rather than 'partial' construction certificate
Where only part of the work approved by the development consent is to be carried out, the construction certificate should be described as 'staged'. Describing it as 'partial' may inadvertently suggest that only part of the proposed development will ever be carried out.
Descriptions on construction certificates must be consistent with the development consent
The development's description on the construction certificate must be consistent with that in the development consent.
Acting on advice
Certifiers sometimes ask for advice from the Board or another NSW Government agency to assist in their work. This is not provided as a substitute to independent legal advice.
Always confirm advice in writing from a suitably senior person in the organisation. Having a written record will help later should a formal complaint be made in relation to the matter.
Installing a fire sprinkler system in a class 3 or 9a building doesn’t change it to class 9c
A residential aged care facility may be class 3, 9a or 9c under the BCA. Any construction certificate or CDC to install a fire sprinkler system should retain the building's original classification. Under the BCA deemed-to-satisfy provisions, class 9c buildings must have a fire sprinkler system, so a new system shouldn't be needed for existing class 9c buildings.
Lessons for certifiers during site inspections.
Under the EP&A Regulation, a certifying authority must not issue a construction certificate or CDC unless a council or an accredited certifier has carried out an inspection of the development site.
If the proposed development is on a site which affects an existing building, the CDC must not be issued unless a council or certifying authority has inspected the existing building.
Also, a CDC can only be issued for proposed, not commenced, development. If your inspection reveals that work has started, you can't issue a CDC. Read more about this example.
Missed critical stage inspections
Unavoidably missed inspections must be recorded as specified in clause 162C(3) of the EP&A Regulation. This record includes the particulars of the site, the construction certificate or CDC, and information about the nature of the inspection and why it was missed.
Advice to avoid missed inspections:
- Advice to certifiers and builders September 2016
- Record-keeping tips to ensure inspections aren't missed - BPBulletin October 2011
- BPBulletin October 2006 (from page 8)
- Where council is the PCA - BPBulletin July 2006 (page 11)
Relying on certificates that are not Part 4A certificates
Certification relied upon by a certifier must include, amongst other things, the name of the person who issued the certificate and the address of the development to which it relates. The certificate should correctly nominate the particular standard that the development is assessed against.
Wherever possible, certifiers should make visual inspections to confirm the matters which are certified.
The certificate must also meet ‘evidence of suitability’ requirements by demonstrating that the issuer has the competence to assess the relevant measure or identify that the measure complies with the relevant Australian Standard. Evidence of suitability requirements are within the 'acceptance of design and construction' provisions of the BCA.
Audits have revealed that some certifiers relied on certificates that didn’t describe the properties and performance of the material, or the form of construction used, having regard to the performance requirements and the deemed-to-satisfy provisions in the BCA.
Inspections by a certifier who isn't the PCA
When an accredited certifier who is not the PCA undertakes a critical stage inspection, he/ she must provide a copy of the inspection record to the PCA within two days.
It's not acceptable to just send the record to the person who booked the inspection (if not the PCA).
Application form for an occupation certificate
An application form for an occupation certificate must include the description of works and the type of occupation certificate applied for.
Clause 149 of the EP&A Regulation sets out the required information and documents to be included, such as a copy of any relevant development consent or CDC, any construction certificate, fire safety certificate, compliance certificates and BASIX certificate.
An occupation certificate must be applied for
An occupation certificate must not be issued until the person with the benefit of development consent has submitted an application for it.
A builder can only apply for an occupation certificate if the builder is also the property owner (i.e. an owner-builder).
Principal certifying authority to carry out final inspection
Only the principal certifying authority can carry out the final inspection before determining the application for an occupation certificate.
Issue occupation certificate as soon as you can after inspection
Issue the occupation certificate, if approved, as soon as you can after the final inspection. If you wait, things may change on the site that you don't know about, and which you may be liable for.
In fact, issuing an occupation certificate without a recent final inspection may constitute unsatisfactory professional conduct. Read more about this example.
Fire safety certificates
A final occupation certificate can only be issued if a final fire safety certificate has been issued.
A final fire safety certificate confirms each measure in the fire safety schedule has been assessed by a properly qualified person. It must address each measure in the schedule before an occupation certificate is issued. The fire safety certificate must also list the minimum standard of performance (specified in the fire safety schedule) for each measure.
The assessment must be carried out within the three-month period before the date of the final fire safety certificate. Certifiers should be mindful of this when checking relevant certificates to support the issue of an occupation certificate.
Installing a fire sprinkler system in a class 3 or 9a building doesn’t change it to class 9c
A residential aged care facility may be class 3, 9a or 9c under the BCA. Any occupation certificate for a fire sprinkler system installation should retain the building's original classification.
BASIX completion receipt
A BASIX completion receipt must be applied for before an occupation certificate is issued. The principal certifying authority can log in to the BASIX website to obtain this receipt.
Documents to be forwarded after determination
A copy of the certificate and associated documents must be forwarded to council (and the consent authority if this is not council) within two days of issuing an occupation certificate.