Certifier responsibilities

Important: The Building and Development Certifiers Act commences on 1 July 2020.

This new legislation has been created to regulate the certifier industry and the changes certifiers, and people applying to become certifiers need to understand.

Find out more about the changes.

Registered certifiers are public officials and independent regulators of building construction and subdivision work.

They are registered and regulated by NSW Fair Trading.

Certifier obligations and functions

Certifiers have statutory obligations and functions under the Building and Development Certifiers Act 2018the Environmental Planning and Assessment (EP&A) Act 1979 and other legislation.

Certifiers must

  • act within the terms and conditions of their registration
  • comply with the code of conduct
  • avoid conflicts of interest
  • have professional indemnity insurance, unless they are a council employee
  • complete continuing professional development each year.

The main functions of registered certifiers (building surveyors):

  • determine applications for complying development, construction certificates and occupation certificates
  • inspect building work at specific stages to determine consistency with approved plans, and 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.

Professional indemnity policy (insurance)

Certifiers must have professional indemnity insurance that complies with Part 3 of the Building and Development Certifiers Regulation.

A professional indemnity policy must:

  • provide indemnity to all liability of the registered individual incurred at any time since the registered individual first became a registered certifier
  • indemnify the certifier against the liability, which is any breach of professional duty arising from any act or omission of the certifier, and defined in the Regulation
  • not have any gaps in cover, unless the certifier’s registration is suspended and they don’t do any certification work during the gap
  • provide the minimum level of cover required by the Regulation.

Carrying out certification work without adequate insurance carries a fine of up to $11,000.

Insurance for council certifiers

Council employees are covered by the council's insurance for work done on behalf of the council in the course of their employment by the council. Certifiers who work for a council as a consultant or contractor must have their own insurance.

Company/partnership professional indemnity policies

A company/partnership insurance policy must cover anyone who is, or was, a certifier and a director/employee. Each certifier at the company may need separate insurance for their work before they joined the company.

If a certifier’s previous employer is still in business and has a current professional indemnity policy, the certifier will be covered by the company’s insurance for that period of employment, but will need separate insurance for their subsequent work.

If a previous employer goes out of business or doesn’t purchase a current professional indemnity policy, the certifier must get insurance for that period.

Under the Environmental Planning and Assessment Act, certifiers may be proportionally liable for their past 10 years of work

Under the EP&A Act a person cannot take civil action for loss or damage in relation to defective building work or subdivision work more than 10 years after the date of completion

When retiring or leaving the profession, certifiers may choose to obtain run-off insurance to cover this 10-year period. This is recommended but not mandatory.

Note: a certifier who signs a contract that waives Part 4 of the Civil Liability Act 2002 (proportionate liability) may void their insurance policy for that project.

Obligations for registered bodies corporate

A registered body corporate is a company that is directed by, and employs certifiers, and is subject to additional legislative requirements.

Obligations for councils as certifying authorities

Local councils must:

  • accept any application to act as the principal certifier, including if NSW Fair Trading approves the council as a replacement certifier
  • keep certain records of each certifier employed by the council
  • notify NSW Fair Trading when a certifier starts or ends employment with council.
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