Building and Development Certifiers Regulation 2020

• All registered certifiers in NSW: building surveyors, structural engineers, fire safety engineers, mechanical engineers, electrical engineers, hydraulic engineers and subdivision engineers who issue certificates under the planning legislation.
• Principals, owners and developers who engage registered certifiers for construction and development projects.
• Local councils that employ certifiers or contract with them for council certification work.
• Accreditation authorities that accredit certifiers for specialist roles.
• The Commissioner for Fair Trading, who administers registration and enforces disciplinary provisions.

Part 2: Registration requirements

Recognised training (clause 4): The Secretary may require an applicant to have completed recognised training as a condition of registration. The Secretary may recognise and revoke recognition of training providers.

Qualifications and experience (Schedule 2): Each class of registration requires specified qualifications (generally tertiary qualifications in the relevant discipline) and experience. The Schedule lists minimum academic qualifications, licences or registrations from other bodies (such as Engineers Australia or the Association of Accredited Certifiers) and minimum years of experience.

Knowledge and skills (Schedule 3): Applicants must demonstrate specified knowledge and skills appropriate to their class of registration. For engineers, this includes knowledge of the Building Code of Australia (BCA), relevant standards, and the certification legislation. For building surveyors, this includes knowledge of planning legislation, construction methods and BCA compliance assessment.

Continuing professional development (Schedule 4): Registered certifiers must complete a minimum number of CPD hours annually. CPD must address the categories specified in Schedule 4 and must be recorded and available for audit.

Part 3: Insurance

Registered certifiers must hold professional indemnity insurance that:

• covers certification work authorised by their class of registration (clause 15);
• meets the minimum coverage amounts prescribed in Part 2 of the Regulation;
• does not contain exclusions that would render it effectively worthless for certification work purposes;
• is with an approved insurer.

The insurance must be in force for the full period of registration. A certifier whose insurance lapses must notify the Commissioner and ceases to be authorised to carry out certification work until insurance is renewed.

Part 4: Conflicts of interest

Prescribed conflicts (clause 24): A certifier has a conflict of interest if: (a) the certifier issues a strata certificate for a plan prepared by the certifier or a person with a family, personal, employment or business relationship with the certifier; (b) the certifier has provided substantive design advice or proposed a design option (including a performance solution) for an aspect of development, and then carries out certification work for that same aspect.

The exception for class 1 and class 10 buildings: advice on how to amend plans to comply with a deemed-to-satisfy provision of the BCA does not create a conflict for class 1 and class 10 buildings.

Exceptions to conflict (clause 25): Conflicts do not arise in specified circumstances, including:

• Council certifiers issuing certificates to their own council for low-value work (under $2,000,000 capital investment value).
• Swimming pool inspectors doing minor remedial work and then issuing compliance certificates (subject to cost limits and licence conditions).
• Certifiers doing council and private work in the same area, as long as the two bodies of work do not relate to the same development.
• Certifiers providing advice on compliance (as distinct from providing design options).

Part 5: Contracts for certification work

Contracts between registered certifiers and their clients must comply with Part 5. Prescribed terms must be included and certain terms are prohibited. The contract must identify the certifier's registration number and class.

Part 7: Record keeping

Registered certifiers (Division 1): Certifiers must keep records of certification work including copies of certificates issued, inspection records and supporting documentation. Records must be kept for at least seven years and made available to the Commissioner on request.

Local councils (Division 2): Councils must keep records of certification work performed by council certifiers.

Accreditation authorities (Division 3): Accreditation authorities must keep records of accreditation holders and make prescribed information available on their websites.

Schedule 5: Code of conduct

The code of conduct (Schedule 5) imposes the following obligations on all registered certifiers:

1. Act in the public interest (clause 2): A certifier must act in the public interest, must take all reasonable steps not to adversely affect the health or safety of any person or the safety of property, and must not act for private benefit.
2. Community standards (clause 3): A certifier must apply building laws without favour, act with honesty and integrity, not unreasonably discriminate, not bring the profession into disrepute, and exercise reasonable care.
3. Act within class of registration (clause 4): A certifier must not carry out certification work outside their authorised class, must seek specialist advice when work is beyond their competence, and must not carry out certification work negligently.
4. Maintain competence (clause 5): A certifier must remain informed of developments in building design, practice, management and law relevant to their functions.
5. Avoid conflicts of interest (clause 6): A certifier must be objective, impartial and free of conflicts, and must not use their status for improper personal benefit.

Criminal penalty for breach: A registered certifier who fails to comply with the code of conduct is guilty of an offence. Maximum penalty: 100 penalty units (individual), 200 penalty units (body corporate).

Schedule 8: Information obligations of principal certifiers

The principal certifier for building work must provide prescribed information to authorities within specified timeframes:

• At least 2 business days before commencing building work: the certifier's registration details, appointment date, employer details, work description and address.
• During the work: updates on inspections, critical stage notifications and other matters as prescribed.
• After completion: information about the final certificate and occupation certificate.

Information must be provided in a manner approved by the Secretary. Swimming pool and spa pool works are exempt (clause 2(2) of Schedule 8).

Commissioner for Fair Trading: Administers registration, may grant, refuse, suspend or cancel registration, impose conditions, investigate complaints and take disciplinary action under the Act.

Secretary's powers on recognised training (clause 4): The Secretary may recognise or refuse to recognise training providers and conditions imposed on recognition.

Approval of insurance (Part 3, Division 1): The Secretary approves insurers and may set conditions on approvals.

Accreditation authorities (Part 6): The Secretary may approve, vary or revoke approval of accreditation authorities. Approved accreditation authorities operate accreditation schemes for specialist certifier roles, subject to prescribed scheme requirements.

| Provision | Offence | Maximum penalty | |---|---|---| | Schedule 5, cl 1(5) | Breach of code of conduct: individual | 100 penalty units | | Schedule 5, cl 1(5) | Breach of code of conduct: body corporate | 200 penalty units | | Schedule 7 | Various penalty notice offences | Prescribed penalty notice amount |

Penalty notice offences are listed in Schedule 7 and allow authorised officers to issue infringement notices for specified breaches without requiring prosecution.

Disciplinary consequences under the Act: Breach of the code of conduct or other Regulation requirements can also ground disciplinary action under the Act, including cancellation of registration and disqualification, as illustrated by the Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 decision.

| Obligation | Timeframe | |---|---| | Information before commencing building work (Schedule 8, cl 3) | At least 2 business days before commencement | | Record keeping (Part 7) | Minimum 7 years for certifier records | | CPD requirements (Schedule 4) | Annual reporting period | | Insurance renewal | Must be maintained for full registration period |

Building and Development Certifiers Act 2018 (NSW): The Act creates the registration system and disciplinary framework; the Regulation supplements it with detailed operational requirements.

Environmental Planning and Assessment Act 1979 (NSW): The certificates issued by registered certifiers (complying development certificates, construction certificates, compliance certificates, subdivision certificates) are certificates under, or referred to in section 6.4 of, the EPA Act. The EPA Act governs when these certificates are required and their effect.

Building Code of Australia (BCA): The BCA is the national technical standard for building design and construction. The Regulation's qualifications (Schedule 2), knowledge standards (Schedule 3) and conflict-of-interest rules (clause 24) all reference the BCA extensively.

Home Building Act 1989 (NSW): Relevant to swimming pool inspection conflicts: certifiers must hold an appropriate licence under the HBA to qualify for the swimming pool minor work exception in clause 25(3).

Swimming Pools Act 1992 (NSW): Certification work on swimming pools, including compliance certificates under Division 5 of Part 2 of the Swimming Pools Act, is specifically addressed in the conflicts of interest exceptions and the Schedule 8 information exemption.

Strata Schemes Development Act 2015 (NSW): Strata certificates (defined by reference to the Strata Schemes Development Act) are a specific type of relevant certificate in the conflict-of-interest provisions.

The conflicts of interest provisions are fact-specific: Whether a certifier has a conflict depends on the precise nature of advice given or design work done. The exception for advice on deemed-to-satisfy BCA provisions applies only to class 1 and class 10 buildings. For other building classes, any design advice (including suggesting how a design might comply) can create a conflict that prevents the certifier from subsequently certifying that aspect of the work.

Code of conduct breach is criminal, not just disciplinary: Unlike breach of many professional conduct codes (which lead only to disciplinary action), breach of the code of conduct in Schedule 5 is a criminal offence. Practitioners and their employers need to be aware that code of conduct non-compliance can expose them to prosecution as well as disciplinary proceedings.

Principal certifier information reporting is time-sensitive: The Schedule 8 obligations require information to be provided at least 2 business days before commencing work. Missing this deadline is non-compliant and may constitute a breach of the code of conduct.

Insurance must be maintained for the full registration period: The insurance obligation in Part 3 is ongoing, not a one-time compliance check. A certifier who lets their insurance lapse mid-registration period ceases to have authority to carry out certification work, and continuing to do so would be a breach of the Act.

Example 1 (conflict of interest): A structural engineer is engaged by a developer to design the structural frame of a new commercial building. Halfway through, the developer also asks the same engineer to act as the structural certifier and issue a compliance certificate for the structural elements. Because the engineer has "proposed a design option" for an aspect of the development, they have a conflict of interest under clause 24(b)(ii) and must not carry out the certification work for that aspect.

Example 2 (code of conduct, negligent certification): A building surveyor issues a construction certificate for a class 3 development (residential care building) but misclassifies it as class 1b. As a result, the required fire sprinkler system and automatic fire detection requirements under the BCA are not specified. This is both negligent certification (Schedule 5, clause 4(3)) and a contravention of the certification legislation (section 45 of the Act), as illustrated by the Orfali NSWCATOD decision.

Example 3 (CPD non-compliance): A hydraulic engineer's registration is subject to CPD requirements under Schedule 4. The engineer fails to complete the required CPD hours in the annual period. This is a breach of the Regulation, which the Commissioner may take into account when deciding whether to renew the registration.

Example 4 (council certifier exception): A council's building surveyor issues a complying development certificate on behalf of the council for the council's own works, where the capital investment value is $1.8 million. Under clause 25(2), this does not constitute a conflict of interest because the value is below $2 million. If the capital investment value exceeded $2 million, the exception would not apply and the certifier would have a conflict.