Certifiers

Fair Trading won’t take action against a certifier who, in the absence of any other breach, can’t perform a statutory duty, such as carrying out an inspection, because they’re following Government COVID-19 orders.

Certifiers must keep accurate records and evidence of why the duty couldn’t be performed.

Those operating on a building site are required  to follow social distancing rules.

People may need to be flexible on the timing of an inspection, noting permitted construction hours have been extended by the NSW Government.

The property owner/occupant doesn’t need to be present for the inspection.

If present, the certifier should request the owner/occupant to follow social distancing rules .

If a tenant won’t allow a certifier to access the property, the certifier should immediately inform the applicant for the certificate.

If the homeowner doesn’t book a reinspection within six weeks, the certifier should check the Swimming Pool Register to see if a compliance certificate has been issued by another certifier or the council.

If not, the certifier must send the notice of non-compliance to the council.

If the certifier can’t carry out the reinspection, the homeowner may engage another certifier or the council.

A refund of the certifier’s fee will depend on the contract between the certifier and the applicant.

COVID-19 is not expected to impact notification processes under the Environmental Planning and Assessment (EP&A) legislation or Swimming Pools legislation.

Certifiers are required to notify the council of certain events within specified timeframes.

These include, for example:

• being appointed as principal certifier
• issuing a certificate, such as a construction certificate
• an owner failing to fix a non-compliant swimming pool barrier
• advising the council of a pool that is unsafe.

The legislation doesn’t:

• specify the required form of notification (with limited exceptions, eg unsafe swimming pools)
• require the notification to reach the council within a certain timeframe
• require the certifier to obtain council acknowledgement of receipt.

Notifications can be emailed or posted, but a phone call is recommended in addition to email or post if notifying the council of an unsafe swimming pool.

Certifiers must issue a written direction to the applicant and/or builder if the work is non-compliant.

The direction may be emailed or posted.

A direction must be issued within two days of the certifier becoming aware of the non-compliance.

The certifier isn’t necessarily required to inspect the site before issuing a written direction, but must have adequate evidence of the non-compliance.

When the compliance period ends, the certifier must inspect the work to determine compliance.

Those operating on a building site are required to follow social distancing rules.

If the issue is urgent or potentially a public danger, the certifier should immediately inform the council and, depending on the issue, may need to contact SafeWork NSW or the NSW Police.

Under the EP&A legislation, a critical stage inspection can only be missed due to circumstances the principal certifier deemed unavoidable. This would reasonably include:

• the certifier is self-isolating as per COVID-19 requirements and no other certifier is available to inspect the work on their behalf
• work is suspended on the building site for reasons related to COVID-19
• further Government restrictions that impact all building sites.

These circumstances don’t apply to the final inspection, which cannot be missed.

Legislative requirements for missed inspections apply such as the certifier receiving satisfactory evidence of compliance.

Certifiers can decide what evidence they will accept and are expected to request appropriate evidence and apply adequate scrutiny.

An occupation certificate can’t be issued if the final inspection is missed. This inspection must be carried out by the principal certifier and can’t be delegated.

If the principal certifier is unable to complete the final inspection, the applicant should be contacted as soon as possible.

The applicant has two options:

• change the principal certifier
• delay the inspection.

Certifier refunds are dependent on the contract between the parties.

New accreditation applications and renewals are being processed as normal.

Applicants will be advised if this situation changes.

Until further notice all application payments must be made by electronic funds transfer.

Credit cards aren’t accepted at this time.

Yes, using the notice to voluntarily suspend accreditation.

Certifiers don’t need professional indemnity insurance for suspension periods.

Certifier CPD providers are moving as much of their course material as possible online. Most certifiers can still complete their required CPD.

However, these changes may take time and, depending on a certifier’s accreditation renewal date, it may be difficult to access enough online CPD.

Fair Trading will consider requests to vary CPD requirements for the current accreditation period, on a case-by-case basis.

Email [email protected] for advice.

Professional indemnity insurance is critical for consumer protection and certifiers can’t perform certification work without it.

If a certifier can’t obtain professional indemnity insurance, they may need to request a voluntary suspension of accreditation.

Insurance isn’t required for suspension periods.

Yes, provided legislative requirements for an OC are met.

EP&A legislation doesn’t prevent certifiers from issuing an OC for part of a building.

Among other things, the building (or part) mustn’t present a health or safety hazard, and the OC application and the OC must be clear what part of the building it applies to.

If the applicant can’t meet a condition of consent required to be met before an OC is issued, they must obtain a modified development consent from Council before an OC can be issued.

For development consents (DA/CDC) approved before 1 December 2019, an interim OC may be issued.

For development consents (DA/CDC) approved from 1 December 2019, the certifier can issue an OC for part of a new building.