Accredited certifiers are public officials who must act with integrity and impartiality. They are accredited under the Building Professionals Act 2005 (BP Act) and regulated by NSW Fair Trading.
Certifier obligations and functions
Certifiers have statutory obligations and functions which are mainly set out in the BP Act, the Environmental Planning and Assessment (EP&A) Act 1979 and other legislation. The public often deal with building surveyors (category A), who issue development certificates under the EP&A Act and strata legislation.
Certifiers are obliged to:
- act within the terms and conditions of their accreditation
- comply with the code of conduct
- avoid conflicts of interest
- hold professional indemnity insurance, unless they are employed by a council and covered by its insurance
- complete continuing professional development each year
- maintain complete, confidential and secure records.
The main statutory functions of building surveyor certifiers are to:
- determine applications for ‘fast track’ complying development within the timeframe set by the EP&A Regulation
- confirm the builder for a development has the required licence and insurance
- check that all applicable preconditions for building or subdivision work are met before work starts or a certificate is issued
- carry out inspections during ‘critical stages’ of building work to determine compliance with legislative requirements and conditions of consent
- take action to address non-compliant work and, if needed, report it to the appropriate authority, such as the local council (this is a duty of all certifiers).
Code of conduct for certifiers
The BP Act establishes a code of conduct that sets out the expected behaviour and standards that certifiers must follow. Breaches to the code may constitute unsatisfactory professional conduct or professional misconduct. NSW Fair Trading has power to investigate an alleged breach and take disciplinary action as appropriate. Go to the code of conduct guide for more information.
Conflicts of interest
As independent regulators of development, certifiers are responsible for identifying and avoiding conflicts of interest, and must not issue a development certificate if they have a conflict of interest. This makes sure that the impartiality of their assessment of whether development meets legislative requirements is held up.
Conflicts of interest are defined in section 66 of the BP Act. Clause 18 of the BP Regulation outline situations where a certifier is not considered to have a conflict of interest.
A breach of the conflict of interest provisions carries a fine of up to $33,000.
Private-sector certifiers contracted to a council
Sometimes, a council will contract a certifier from the private sector to carry out certification work on its behalf. To do this work, as well as private certification work at the same time in that council area, the certifier must first get approval from NSW Fair Trading. Certifiers can use the conflict of interest exemption form to apply.
Exemptions for council certifiers
Certifiers who are council employees may certify a development that was designed and/or built by the council or other council employees. This exemption is limited to development valued at no more than $5 million. Download the information sheet for more information about conflicts of interest.
Professional indemnity insurance
Certifiers must have professional indemnity insurance that covers their whole period of accreditation. Part 4 of the BP Regulation specifies the insurance required of certifiers. Essentially, a professional indemnity insurance policy must:
- have a retroactive (start) date that is the first day the certifier was accredited, whether this was by NSW Fair Trading or a former accreditation body
- indemnify the certifier against their ‘statutory liability’, which essentially means any breach of professional duty and is defined in the BP Regulation
- not have any 'gaps' in cover
- provide the minimum level of cover required by the BP Regulation
- be in place when a claim is made, in order to be effective (‘claims-based’ insurance).
Carrying out certification work while uninsured carries a fine of up to $11,000.
Under the EP&A Act, certifiers are proportionally liable for their past 10 years of work
When retiring or leaving the profession, certifiers may choose to obtain run-off insurance to cover this 10-year ‘run-off’ period. Run-off insurance is recommended but not mandatory for certifiers.
Note: a certifier who signs a contract that waives Part 4 of the Civil Liability Act 2002 (i.e. proportionate liability) may void their insurance policy for that project.
Insurance for council certifiers
Council employees are covered by the council's insurance for their certification work done on behalf of the council (refer to s.731 of the Local Government Act 1993). Certifiers working for a council on a consultant or contract basis must have their own insurance.
Company/partnership insurance policies
A professional indemnity insurance policy for a company or partnership must cover anyone who is a certifier and a director/employee, even if they cease to be a certifier or a director/employee. Each director and employee will need to have separate insurance for the period before they started working for the company.
If a certifier stops working for a company but the company stays in business, the certifier will still be covered by its insurance for their period of employment with that company, but will need individual insurance from the date they stop working for the company. If the company goes out of business, the certifier must get insurance for the relevant employment period.
Obligations for accredited bodies corporate
An accredited body corporate is a company that is directed by and employs accredited certifiers. Similar to a council, the body corporate itself may be appointed as PCA for a development. Accreditation requirements for an accredited body corporate are distinct from those for individual certifiers. An accredited body corporate must:
- have at least one director who is an accredited certifier
- have as directors or employees at least two other certifiers
- demonstrate that all staff in management positions are ‘fit and proper persons’, whether or not they are certifiers.
Need more information?
- Planning Circular PS 08-011 - accredited bodies corporate
Obligations for councils as certifying authorities
A local council must:
- accept any application to act as the principal certifying authority (PCA), including if the Board approves the council as a replacement PCA for a development
- keep records of the name and accreditation number of each certifier employed by the council, employment dates, and a brief description of each development they certified on behalf of council
- notify NSW Fair Trading when a certifier starts or ends employment with council.