The Building and Development Certifiers Act and Regulation commenced on 1 July 2020 as the new legislation to regulate certifiers.
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 2018, the Environmental Planning and Assessment (EP&A) Act 1979 and other legislation.
- act within the terms and conditions of their registration
- comply with the code of conduct
- avoid conflicts of interest
- adhere to the Practice standard for registered certifiers
- 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.
Certifiers do not supervise or manage building work.
Practice standard for registered certifiers
Various reviews of building regulation in NSW have highlighted the need for a standard to set out the expected conduct of registered certifiers carrying out building certification work.
The Practice standard for registered certifiers addresses this need. The first volume focuses on certification of new residential apartment buildings. It will be expanded in time to cover other certification work.
Download the Practice standard for registered certifiers.
The practice standard is issued under section 14 of the Building and Development Certifiers Act as a specified standard which can be prescribed as a condition of registration. Certifiers who certify new residential apartments will be required to adhere to it. Also, all certifiers will be expected to adhere to chapters one and two which cover the role of certifiers as public officials and conflicts of interest.
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.
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.