Practice Standard Volume 2 - Webinar Q&A

Complying development will be covered in a different or updated volume of the Practice Standard.

Legislative reporting is still required. The intent is to replace it with reporting via the NSW Planning Portal.Note: Questions about the Planning Portal should be directed to the NSW Department of Planning and Environment.

Yes, in broad strokes. Not in certain details, e.g. written directions; changes to the consistency test. The general principles still, for the most part, stand.

The Environment Planning and Assessment (EP&A) legislation doesn’t specifically prohibit issuing the CC in these circumstances.

Given the council will have already issued development consent for the alterations and additions, the council will have an appraisal of the unauthorised work, and presumably took or will take the appropriate action.

Same process as any other amendment DA/CC process.

Note, a building information certificate is not a means to have unauthorised work regularised for the purposes of issuing an OC.

The issuing of a BIC by a council is a statement that the council will not take enforcement action in relation to unauthorised work. It cannot be specified as required by a certifier as part of a written directions notice as it is at the discretion of the landowner and the council.

BICs predate the certification system. A BIC is not grounds for a CC or OC, as it is not a form of approval. Since it is not possible to obtain development consent/CC for a building that has already been erected, a BIC is generally the only option to ‘regularise’ unauthorised building work.

Read more about BICs

Yes. Assuming it's filled out completely and correctly with all documentation provided.

‘Relevant conditions’ are conditions of the development consent that need to be complied with at various stages of development. E.g. ongoing conditions of use for an occupied building won't be relevant to a certifier issuing a CC.

This is a disciplinary matter as the certifier has issued the CC without due care and attention to their work. Only the Land and Environment Court can declare the certificate invalid.

Where works have not commenced, a new CC is to be issued, consistent with the DA.

Checklists are one way documenting decision making but not the only way, nor are they necessarily comprehensive. It will depend on the circumstances.

The Practice Standard generally recommends that the decision should be able to be understood and replicated, based on the certifier's record.

Fair Trading can't give concrete advice on this matter, because each situation is determined individually by the certifier. The Practice Standard gives examples of things that might usually be considered consistent. Refer to volume 2, page 36.

The EP&A (Development Certification and Fire Safety) Regulation 2021 requires a site inspection if the work proposed by a CC will affect an existing building.

However, Fair Trading recommends certain best practice principles in the Practice Standard. Where an action is recommended, rather than required by law, the Practice Standard makes this clear.

There is no legislated requirement for a pre-CC inspection for a vacant site.

It is noted that complying development does require a site inspection before a CDC is issued, even for a vacant site.

The applicable BCA is the BCA in force at the time of the application of the CC for the entrance floor of the building.

Refer to S.19 (1A) of the EP&A (Development Certification and Fire Safety) Regulation.

The certifier should conduct a thorough review of the documentation and where any non-compliances are identified, consultation should be sought with the original certifier to ensure the CDC or CC are re-issued correctly, noting that the new certifier does not have to accept the role.

It depends on the building work and the inspection stage. For example, it might include certain fixtures or fittings required to meet BASIX standards. ‘Critical items’ is not intended as a statutory term or to refer to a fixed group of items.

‘Inspect’ is not defined in the EP&A Act and is thus given its normal everyday definition, taking into account the objective for the provision. The reason for an inspection is to ensure building work is, ultimately, suitable for occupation or use in accordance with the BCA, and that the health and safety of occupants has been considered. It is Fair Trading’s position that a video inspection does not meet the legislative intent.

The principal certifier would be expected to document that the other certifier’s inspect record is accepted (if accepted), and that inspection record would form part of the broader file for that project.

The EP&A (Development Certification and Fire Ssafety) Regulation does not require a principal certifier to generate an additional inspection report.

The written direction requirements of the EP&A Act apply in relation to the carrying out of works otherwise than in compliance with a development consent, including approved plans and development consent conditions.

Refer to Part 4.4.2 of the Practice Standard for information on unavoidably missed inspections.

This is something where a certifier is expected to use judgment. Minor matters that result in an unsatisfactory inspection could be cleared up without requiring a reinspection. For example, a minor component to be installed, and the installer's certificate sent to the certifier and added to the certification file for that work.

Refer to section 7.3 of the Practice Standard, under the subheading “What is expected of a certifier?”

Assuming the certifier has appropriate registration to certify a performance solution, the certifier will need to determine if the performance solution is still ‘consistent’ with the work approved via the CC. An exact match to the CC plans isn’t required, but keep in mind the test for ‘consistency’ calls for a higher degree of correlation than the former ‘not inconsistent’ test.

_{Note: a CC can only be issued for prospective work, not retrospective. A CC cannot thus be used to validate unapproved work.}

A certifier can charge whatever fees they desire for inspections and can include reinspection fees in their certification contracts. Fees for certification work must be paid upfront as per the Building and Development Certifiers Regulation.

The EP&A legislation doesn’t require the certifier to inspect the work within a certain period of receiving notice that an inspection is needed. Should work continue to progress without the certifier’s inspection, the inspection would be regarded as not unavoidably missed, and an OC would not be able to be issued.

The BCA definition of a wet area is ‘an area within a building supplied with water from a water supply system, which includes bathrooms, showers, laundries and sanitary compartments and excludes kitchens, bar areas, kitchenettes or domestic food and beverage preparation areas.’

There is no legislated maximum number of OCs per project. The regulated requirements would apply for each OC e.g. the site not being a hazard. The Practice Standard has guidance on issuing a partial vs 'full' OC in chapter 5.

If the requirements for an OC are not met, the principal certifier cannot issue an OC.

The certifier's role is not to facilitate this process for the applicant.  If the inspection is ‘unavoidably missed’, refer to the Practice Standard section 4.4.2.

The certifier would be reasonably expected to notify the applicant as soon as they become aware of an issue that would prevent issue of an OC. Keep in mind a certifier's role – which does NOT include smoothing the path for the applicant.

Yes. S.53 of the EP&A (Development Certification and Fire Safety) Regulation specifies an OC must be issued for the whole building/work within 5 years.

If no DA conditions restrict these items, then an OC can be issued if all regulatory requirements are met. Note, Fair Trading cannot issue a blanket statement that a partial OC can be issued if, for example, a retaining wall is still needed, because it depends on the development – why is the retaining wall needed?

Yes, noting this answer assumes the other certifier issued a compliance certificate for the work under the EP&A Act. The principal certifier can rely on a compliance certificate. There is nothing in the EP&A legislation  that specifies a compliance certificate replaces the need for an inspection. See p.53 of Vol.2 of the Practice Standard.

Yes, refer to Section 63 of the EP&A (Development Certification and Fire Safety) Regulation 2021 which states that a certifier, whether or not a principal certifier must make a record of each critical stage inspection and give a copy of the record to the principal certifier within 2 days.

No document issued by a licensed builder offers the certifier the same statutory protection as a compliance certificate.
Refer to Section 6.17 of the EP&A Act.

A compliance certificate may be issued by:
(a)  a certifier, or
(b)  a person of a class prescribed by the regulations as being authorised to issue a compliance certificate in relation to the matters to be certified.

Any appropriately-registered certifier can issue a compliance certificate under the EP&A Act. The legislation allows for the designing engineer to issue the certificate in recognition of the fact that certain types of work are highly specialised with fewer practitioners, and an alternate engineer might not be available.

A compliance certificate issued under the EP&A Act can be relied on. The principal certifier may require the applicant to provide whatever documentary evidence is reasonably required to assess the compliance of the work against legislative requirements.

A certificate issued by a builder, concreter etc is not a compliance certificate under the EP&A Act and isn’t able to be relied on in the same manner by the principal certifier.

Certifiers are regularly confronted by missed critical stage inspections, often because the certifier was not notified to inspect the work before it was covered with concrete, plasterboard etc.

Usually, the certifier was not notified because of either:

• ignorance: the builder, site manager, owner-builder or contractor didn’t realise the certifier had to inspect the work, or
• poor communication: e.g. the builder thought the waterproofer was going to book the inspection.

Section 4.4.2 of the Practice Standard states that the works may need to be physically opened up for the certifier’s inspection. However, there is a process that is often followed instead, as follows:

For example, the steel reinforcement within a concrete slab was not inspected by the certifier (an avoidably missed inspection), but was inspected by the structural engineer, who issued a certificate/report attesting to its compliance with relevant standards.

Building work stops while the owner applies for a building information certificate from the council. The council assesses the slab and the engineer’s report, and issues the certificate. The certifier is advised of this and work restarts. (Alternatively, the certifier issues a modified CC, deleting reference to the slab. Then, work restarts.)

At completion, the certifier issues an OC for the work, excluding the concrete slab.

A certifier's role is not to ease the way to ensure an OC can be issued.

The two reasons given for the majority of missed inspections (ignorance and poor communication) are not considered to be unavoidable circumstances.

Certifiers have a role in being proactive in their communication with applicants and builders regarding critical stage inspections. This includes monitoring timeframes in a broad sense, to anticipate inspections and to stay in contact with the applicant and builder throughout the process.

A building information certificate is not a statement that the work meets BCA and other requirements (refer to s.6.25 of the EP&A Act). It's not a substitute for a certifier's assessment via inspection.

Unauthorised work needs to be identified to the applicant.

What is to be done may depend on when it is identified by the certifier, e.g. unless identified at a critical stage inspection, certifiers are to issue a written direction notice.

A certifier's role is to explain why they won’t issue an OC, not to suggest or find solutions for the applicant.

The certifier may simply refuse to issue the OC, having (presumably) advised the applicant as soon as they became aware of the unresolvable compliance issues.

Also, certifiers may have termination clauses in their contracts. The legislation doesn't regulate the termination of a certifier; rather, it regulates the replacement, and it would be the applicant's responsibility to appoint a new certifier.

The contract requirements in the Building and Development Certifiers Regulation are minimums only.

When assessing the consent conditions for the purposes of issuing a CC, the certifier would notice the unlawful condition, and advise the applicant to apply for a modification to the development consent under Section 4.55 of the EP&A Act with the council.

Certifiers only have to send a copy of a written direction to the council if the notice given in the direction for compliance has expired, and the non-compliance is still there.

A non-compliance noticed outside of a critical stage inspection would be subject to a written directions notice. Certifiers should refer to the Department of Planning and Environment’s website which has a guide on written directions.

Regulatory power over councils in their capacity as an enforcement authority comes under the Office of Local Government (OLG). The council's internal complaints handling processes should first be exhausted

The answer will depend on the compliance issue and the enforcement options already attempted.

The EP&A legislation sets requirements for the issue of an OC. If all requirements are met, a certifier cannot refuse to issue it. Note, the Building and Development Certifiers legislation also requires the certifier’s fees to be paid before the certification work – in this case – issue of an OC, is carried out.

Ongoing compliance is a council enforcement matter.

The OC is a point in time certificate. The certifier’s records are expected to demonstrate why the decision was made to issue the OC based on the evidence.

Customer relations are a matter for certifiers to determine. Certifiers should at all times adhere to legislative requirements.

Fair Trading provides resources for business owners on its website: Business essentials