BPB practice advice 11-005 November 2011
Note to readers: practice advice relates to the legislation in force at the time, which may since have been amended. Also, names of organisations and weblinks were correct at time of writing and may have since changed.
The Board has been asked to clarify when the appointment of the Principal Certifying Authority (PCA) ceases.
Specifically:
- whether a PCA appointment under section 109E of the EP&A Act ceases once an occupation certificate (OC) has been issued and, if so, whether councils are required to give notice to the private accredited certifier appointed as PCA of its intention to give an order under the provisions of section 121H(5) of the Act
- whether a private accredited certifier appointed as PCA can issue a valid notice under section 109L of the EP&A Act after an OC has been issued.
The EP&A Act is silent on the issue of when the tenure of a PCA ends. Section 109E(1)(a) requires a person to appoint a PCA 'in respect of the building work involved in the development'. 'Building work' is defined as any physical activity involved in the erection of a building.
The Act and EP&A Regulation impose some post - completion functions on a PCA, such as the obligation to carry out a final inspection after the building work is complete, to receive and determine applications of OCs and to forward a copy of the OC determination to council.
It is the Board's view that the appointment of the PCA ends once the PCA issues the final OC after building work is complete.
It follows that Council is not required to give notice to the PCA of its intention to give an order in relation to building work or subdivision work where the PCA has previously issued a final OC for that building or subdivision work.
The Act is also silent on whether a private accredited certifier appointed as a PCA can issue a notice under section 109L of the Act after an OC has been issued. However, as the appointment of the PCA ceases on completion of building work, it is the Board's view that the validity of such a notice issued after a final OC has been issued is questionable.
It is not the intent of the legislation for an accredited certifier to monitor and enforce compliance with conditions of consent in perpetuity. Once a final OC has been issued for a development, a PCA is no longer responsible for ensuring compliance with outstanding conditions of consent.
The Board's April 2007 BPBulletin advised that:
'Upon issue of the final occupation certificate for a development, the PCA has no further responsibility for ensuring outstanding conditions of development consent are satisfied. Any outstanding development consent conditions are usually the responsibility of the land owner.
'Where a land owner fails to ensure compliance with the outstanding conditions, council should consider issuing a notice of intention to issue an order requiring work to be undertaken as required by the consent.'