CertAlert issue 2: February 2018

Certifier consultation wrap up

Over the past few months the Building Professionals Board has been consulting with certifiers and councils, focusing on the Board’s performance as a regulator, its future and its integration with Fair Trading. Thank you to everyone who provided feedback.

The consultation also includes an 5-minute survey which closes on 4 March 2018.

A report on the outcomes of the consultation will be sent to those who attended a consultation session and published on the Board’s website, most likely next month. Also, although the consultation sessions have ended, your feedback is welcome at any time to help in the Board’s efforts for continual improvement.

Remembering Alan Host

With much sadness, the Board informs readers that Alan Host, of the Department of Planning and Environment, passed away on 7 February.

Many certifiers, and Board staff, will remember Alan as a friend and colleague. During a NSW Government career spanning 30 years, Alan contributed extensively to building reform, notably in building surveying. His immense knowledge of the legislation, his leadership and his welcoming, collaborative manner gained him enormous respect across the building and construction industry.

Our deepest sympathies are with Alan’s family.

Draft Bill to be exhibited soon

The draft Building and Development Certifiers Bill will be exhibited soon and your comments will be welcome. When finalised, it will replace the Building Professionals Act 2005.

All Cert Alert subscribers will be emailed directly as soon as the Bill is available for comment.

Voluntary data reporting - are you ready?

Local councils and A1, A2 and A3 certifiers will soon be required to report certain data on building certification to the NSW Government.

To help certifiers and councils adapt to the changes, a voluntary reporting phase is being introduced. To take part, the first step is to consider which data reporting option best meets the needs of the business.

A mandatory reporting date of 1 July 2018 is yet to be confirmed but certifiers and councils should be preparing for this date.

The Board’s website has more information about certification data reporting including frequently asked questions.

A certifier's success story: Kellie Woods

Kellie Woods, Director at Pro Cert Group’s Tamworth office, has shared with the Board some thoughts about her career to encourage others thinking about becoming a certifier.

Read about Kellie’s success as an accredited certifier.

Pressure from clients doesn't exempt certifiers from acting in the public interest

The Board recently cancelled the accreditation of an E1 certifier who issued certificates of compliance for swimming pools at six rental properties. None of the pool barriers met the requirements of the Swimming Pools Act 1992 and the non-compliances would have been readily observable upon inspection.

All certifiers are public officials and their first duty is to the public of NSW. Drowning is a leading cause of preventable death in children under five, and the public expects certifiers to help improve child safety by upholding legislative requirements for swimming pools.

The certifier had felt pressured by the property agent to certify the pools and avoid losing future work. However, there is no acceptable reason to certify a potentially unsafe swimming pool.

More information:

Practice advice: Assessing a new pool? Consider the Swimming Pools Act 1992

The plans and specifications for a proposed swimming pool must demonstrate how it will comply with the Swimming Pools Act 1992 (SP Act) and the Building Code of Australia (which is not identical to the SP Act). The certifier assessing the plans should be satisfied the pool will meet the requirements of both.

If a newly-built pool is non-compliant and poses an immediate safety risk, the principal certifying authority (PCA) must notify the local council immediately. For minor matters, the PCA can advise and give the owner time to fix these (as a guide, the SP Act provides 6 weeks) before reinspecting the pool.

An occupation certificate for a new pool is essentially a substitute for, and equivalent of, a certificate of compliance under the SP Act. It is a statement that the pool barrier is compliant on the date of issue, relied on by vendors, prospective purchasers and tenants.

Certifiers should issue an occupation certificate as soon as practicable after the final inspection. If there is a delay, a reinspection should be carried out. This is critical for swimming pools given the safety matters involved.

Practice advice: Flooding controls and section 149 planning certificates

Does a principal certifying authority (PCA) have to determine if a development complies with the flooding controls stated on a section 149 certificate (‘planning certificate’)?

Schedule 4 of the Environment Protection & Assessment Regulation 2000 (EP&A Regulation) specifies that a planning certificate must list whether the land is subject to flood related development controls. A certifier is entitled by section 149(7) of the Environment Protection & Assessment Act 1979 (EP&A Act) to assume a planning certificate is correct, but note, it is correct on the day of issue and an old certificate should be viewed with caution. A certifier can ask the client to obtain a new certificate.

Note: Clause 279 of the EP&A Regulation allows a planning certificate to be issued containing only the information prescribed by clause 3 of Schedule 4 (i.e. whether complying development is permissible).

Under section 109H of the EP&A Act, a PCA may only issue an occupation certificate if satisfied that all relevant preconditions in the development consent or complying development certificate are met.

In determining a development application, the EP&A Act requires councils to consider any relevant planning instrument. The council is responsible for considering relevant flood controls and setting appropriate conditions of consent. A private certifier has no authority to add to, vary or remove these conditions.

For complying development, the relevant planning instrument may prescribe restrictions, development standards and conditions for flood control lots. The PCA will need to be satisfied these are met, if applicable.

Certifiers can now approve certain developments in mine subsidence districts

Subsidence Advisory NSW (SA NSW) is streamlining the approval process for low risk developments in mine subsidence districts.

SA NSW has updated its property development guidelines. Building applications that comply with a number of the new guidelines do not require SA NSW approval and can be approved by a local council or private certifier (depending on the development).

All other applications still need to be assessed by SA NSW. Certifiers can use a new online portal to refer applications to SA NSW.

For more information, visit the Subsidence Advisory NSW website.

Legislation reminders

Swimming pool legislation

The Department of Finance, Services and Innovation now administers the Swimming Pools Act 1992 and Swimming Pools Regulation 2008.

For more information, visit the Fair Trading website or email spoolr@finance.nsw.gov.au.

Note: It is not the Government’s role to provide legal or technical advice on a specific swimming pool. Certifiers may refer to the legislation and Australian Standard, ask their colleagues and/or seek professional legal advice.

Strata building bond and inspections scheme

The new 2% building bond and inspections requirements apply to any strata building, of four stories or more, approved from 1 January 2018.

For more information, visit the NSW Fair Trading website.

National construction code (NCC) updates

  • NCC 2016 Volume One Amendment 1 will commence on 12 March 2018. Download a preview of the amendment.
  • You are invited to comment on proposed changes to the NCC for 2019. Comments close 13 April 2018.
  • Registrations are open for the 2018 NCC information seminars, in Sydney on 7 and 8 March.

Resources for certifiers

Exempt and complying development eModule: The Department of Planning and Environment has developed a short online course about exempt and complying development. Certifiers can test their knowledge by completing the eModule and may recommend it to their clients and colleagues.

Home Building Compensation Check: A free register allows you to check if there is valid home building compensation cover for residential building work carried out in NSW since 1 July 2010.

Asbestos: The Asbestos Awareness website has new resources for asbestos management.

Continuing professional development (CPD) for certifiers

Certifiers should carefully monitor their CPD completion to ensure they meet the requirements of their professional association and the Building Professionals Board Accreditation Scheme (see the links below and/or contact the Board or your professional association).