CertAlert issue 3: June 2018

Mandatory data reporting update

Thank you to the hundreds of software developers, councils and certifiers who attended our recent technical roadshow across NSW about the data reporting requirements for principal certifying authorities.

A number of certifying authorities are already reporting data, and each of the three reporting options (API, SFTP and mobile app) are available and in use.

Councils and certifiers should be preparing for the 1 July 2018 mandatory reporting date. The Board will have an education focus for the first six months after this date.

More information:

Swimming pool latch and fence recalls

SafeTech gate latch recall

On 6 April 2018 the Board advised certifiers that SafeTech Hardware Australia has recalled several swimming pool gate latches after an investigation by NSW Fair Trading found them to be non-compliant with Australian Standard 1926.1-2012.

Details about the recall are on the ACCC website. The advice on this website on disabling the lock with waterproof glue is a temporary fix. While this is useful to address immediate risks, they are not enough to justify the issue of a certificate of compliance, which is valid for 3 years. Certifiers should therefore issue a notice and certificate of non-compliance regardless of whether the lock is temporarily disabled.

Voluntary recall: Clark Rubber pool fence

Clark Rubber’s ‘Be-Safe Pool Fence – Portable Pool Fence Starter Kit’ is being voluntarily recalled after the gate was found to not be self-latching.

More information is available on the ACCC's product safety website.

Have your say on proposed changes to the Swimming Pools Regulation

The Swimming Pools Regulation 2008 is scheduled for automatic repeal on 1 September 2018.

The proposed new Regulation contains many of the same provisions, but there are some important changes such as requiring certificates of non-compliance to be entered into the Swimming Pools Register.

Visit www.fairtrading.nsw.gov.au for more information, the proposed Regulation and to have your say by 5pm Friday 29 June 2018.

Unsafe cladding now a major defect

An amendment to the Home Building Regulation 2014 means that unsafe external wall cladding will now be classified as a major defect. This gives residents more time to have it rectified.

More information: Ministerial media release

CPD: online E1 course

E1 certifiers can complete a new online CPD course

The Board has approved CPD Training to deliver a new online course for E1 swimming pool certifiers. There are three webinar modules, each worth 1 CPD point/hour. You can complete one, two or all three modules.

More information: CPD Training website

How do the EP&A Act amendments affect your certification work now?

The Environmental Planning and Assessment Act 1979 (EP&A Act) was amended on 1 March 2018. Along with new or changed provisions, the Act has been reorganised and renumbered.

Building certification and subdivision has been consolidated in one part of the Act (Part 6), the majority of which is not yet in force and will commence on 1 September 2018.

The Board’s website has a summary for certifiers and links to further information.

Certifiers cannot issue CDCs for 'lead-in infrastructure'

The Board has received legal advice that certifiers cannot issue complying development certificates (CDC) for ‘lead-in infrastructure’ under clauses 130-131 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP).

Read more on the Board's website.

Practice advice: Having another certifier inspect work on the PCA's behalf

A principal certifying authority (PCA) accepts certain responsibilities when issuing an occupation certificate. Relying on another certifier for a critical stage inspection puts the onus on the PCA to check that the certifier has the necessary accreditation, competence and skill.

The PCA also needs to check the written contract includes the other certifier, as per cl.19A(2)(f)(v) of the BP Regulation.

The PCA should receive the certifier’s inspection record in a timely manner, and follow up on this as needed. It is inappropriate to carry out an inspection without first having records of earlier inspections.

The builder must notify the PCA when work reaches each critical stage, even if another certifier will carry out the inspection (see cl.163 of the EP&A Regulation).

Is a compliance certificate acceptable instead of a critical stage inspection record?

Each critical stage inspection must be recorded with all the information required by clause 162B(3) of the EP&A Regulation. By itself, a compliance certificate would need to contain this and would need to be issued by the certifier who did the inspection.

Irrespective of section 109P of the EP&A Act, the PCA would need to review the compliance certificate and ensure that:

  • the person who issued it is accredited to carry out the critical stage inspection
  • the certificate states the certifier was the person who did the inspection and when.

Practice advice: Class 1a CC/CDC plans need to show smoke alarms

The Board is seeing more construction certificates (CC) and CDCs for class 1a buildings with plans that do not show any intention to provide hard-wired smoke alarms. This includes new dwellings, alterations and additions, and secondary dwellings.

Part 3.7.2 of the BCA requires class 1a buildings with sleeping accommodation to have smoke alarms. Schedule 1 of the EP&A Regulation requires a CC/CDC application to have appropriately detailed plans of the design, construction and provision for fire safety.

The plans need to show the proposed location and type of smoke alarms so the certifier can assess the intended means of BCA compliance. Otherwise, alarms may be installed in places that the certifier deems non-compliant upon inspection, or the wrong type might be installed.

Certifiers should carefully check the smoke alarm specifications (whether in a separate document or on the plans) to ensure BCA references are correct and current, and that the details match the plans.

Also, keep in mind that smoke alarms are not the same as smoke detectors.

Practice advice: Determination of developer contributions

If authorised by a council’s contribution plan, a certifier is responsible for determining if an applicant for a CC or CDC must pay developer contributions. If so, the certifier is to calculate the contribution and must impose a condition on the certificate requiring payment before building work starts.

More information:

  • Main legislative provisions: Sections 4.28(9), 7.11, 7.12 and 7.21 of the EP&A Act; cl.136K, 136L and 146 of the EP&A Regulation.
  • Development contribution policies: Refer to the Minister’s directions on the maximum amounts that can be imposed as contributions.

Lodging certificates with the council

As advised in a circular from the Office of Local Government, the EP&A Regulation does not give councils any authority to refuse development certificates lodged by post or hand, nor to exceed the $36 maximum lodgement fee.

The Board encourages councils and certifiers to use electronic means to lodge certificates, where practicable. Councils should keep in mind that many private certifiers often still receive hard-copy building plans from clients. Also, many run a small business and don’t have a large-format scanner to digitise these plans.

Reminder to E1s: councils have enforcement responsibilities

A council has raised concerns that some E1 certifiers object to the council stepping in to address non-compliance of a swimming pool that was inspected by a private certifier.

Councils have statutory responsibilities to enforce swimming pool compliance. Given the child safety issues involved, the Board encourages councils to take a robust approach in exercising their enforcement powers.

To assist councils, certifiers must ensure a s22E notice issued under the Swimming Pools Act 1992 has all required detail and is copied to the council within the required timeframe. This is a legal requirement and the Board has previously advised E1 certifiers that it is taking disciplinary action as appropriate.

More information:

Annual fire safety statement FAQ and form

The Department of Planning and Environment has published FAQs (690kB) about the new annual fire safety statement, and standard forms for new and existing buildings. The new forms came into effect from 1 December 2017.

New complying development codes 6 July

Two new complying development codes will commence on 6 July 2018:

  • The Greenfield Housing Code will simplify standards for 1-2 storey homes, alterations and additions in greenfield areas.
  • The Medium Density Housing Code will allow 1-2 storey dual occupancies, manor houses and terraces in areas where the proposal is already permitted under a council’s local environmental plan.

More information: email codes@planning.nsw.gov.au or call 13 77 88