Complaints about certifiers

Fair Trading regulates the conduct of certifiers in New South Wales, and can investigate some complaints about registered certifiers and local council certification work.

We can:

• investigate the conduct of a registered certifier, swimming pool inspector and local council certification work
• provide intervention for where a customer and certifier have entered into an agreement to provide services which have not met their obligations under the Australian Consumer Law (ACL)
• provide dispute resolution between a home owner and the builder, if the matter is in relation to defective or incomplete residential building work.
• assist in resolving disputes where damage has occurred due to building works at a neighbouring property, if these works were carried out by a licensed builder or tradesperson.

We cannot:

• order building work to stop
• award compensation or monetary redress to a customer
• act on complaints against property owners, unless the owner is an owner-builder
• declare a construction certificate (CC), complying development certificate (CDC) or occupation certificate (OC) invalid, including if it was issued improperly
• assist with civil matters such as fencing, private easements and encroachments
• investigate general complaints against councils, including how a council exercises its enforcement powers, a council carrying out its functions under the Swimming Pools Act 1992, and how council assessed and issued the development consent

Before lodging a complaint, contact the certifier or council to try and resolve the matter. Keep a record of all correspondence.

See more information on concerns with development and what certifiers do.

The Role of Councils

Councils are the enforcement regulatory authority responsible for monitoring how development is carried out at the local level. This includes ensuring the developer and private certifier follow the rules and all conditions contained in a development consent.

Councils employ compliance officers and rangers who undertake this role within their local government boundaries.

Councils have the discretion to investigate matters involving non-compliance with development consent, errors in reports or surveys relating to Development Applications as this falls under council's jurisdiction. Fair Trading does not have the power to order rectification of non-compliant work on site.

Councils’ regulatory powers can result in more effective resolution for customers as they can

• exercise its powers, including if the principal certifier is a private certifier
• enforce development compliance, issue orders, stop work notice or issue a fine if building work breaches legislative requirements or safety conditions
• issue on the spot fines for failure to comply with an order
• issue clean up, prevention and noise control notices
• mediate development issues between the developer and impacted residents
• commence proceedings in the Land and Environment Court to invalidate a CDC that has been issued contrary to planning standards
• prosecute the certifier for issuing a CC or OC unlawfully

Urgent non-compliance matters such as dangerous excavation or unsafe building works should be directed to the council for immediate attention.

Swimming pools that do not have a compliant barrier enclosure should be directed to the council for immediate action.

Should I lodge a complaint?

Before you lodge a complaint, ask:

• Is the certifier responsible? Certifiers don't supervise building sites or builders, or ensure the craftsmanship of building work.
• Do I have evidence? Keep copies of correspondence and document discussions.
• Is this a matter where your local council has power to intervene? Fair Trading does not have the power to order rectification of non-compliant work or declare planning documents invalid.
• Is there a better solution? Any complaints process takes time and can be difficult. Consider using the free mediation services offered by Community Justice Centres.

If you're the property owner, you may be able to replace a certifier.

Building work can continue during the complaint process. Only the council can order work to stop.

How to make a complaint

Visit Fair Trading's Help Centre and fill out the Certifier Complaints form.

What happens after a complaint is lodged

1. Fair Trading will review the complaint and, if appropriate, may send the certifier a copy of the complaint to invite a response.
2. Fair Trading will decide whether the matter requires investigation and, if so, will seek comment from the certifier before a decision is made.

The time taken to determine a complaint depends on how complex the matter is and how soon all requested information is submitted to Fair Trading.

It is Fair Trading's policy not to disclose information that is part of investigative and compliance activities. This policy is designed to maintain the integrity of Fair Trading's law enforcement activities and also protects the reputation of those who may be the target of unsubstantiated allegations. See more information about our compliance role.

Potential outcomes if a complaint is proven

If a complaint is proven, Fair Trading may take disciplinary action against a certifier.

Fair Trading has no power to stop building work, or award compensation to the complainant.

Disciplinary register

Search the disciplinary register.

Reasons a complaint may be dismissed

Fair Trading may choose to dismiss a complaint if:

• further information about the complaint isn't given upon request, or the complaint or further information aren't verified
• the complaint is trivial, lacking in substance or not made in good faith
• there are alternative ways to address the matter such as conciliation
• the complaint is not about the conduct of a certifier
• the matter has been dealt with previously

Your privacy

The complaint and supporting documents will be sent to the certifier for response. You can ask to remain anonymous and for documents not to be shared.

Fair Trading may agree, but this could make allegations against the certifier harder to prove.

Any document submitted or produced in relation to a complaint investigation may be subject to application for access under the Government Information (Public Access) Act 2009.

All disciplinary actions are listed in the register of disciplinary decisions. The register doesn't include details of complainants.

Appeals

A certifier, but not a complainant, can appeal a disciplinary decision at the NSW Civil and Administrative Tribunal.