The Community has raised concern over the
confusion of the roles of Private Certifiers in the Development Control process.
The following information outlines the roles of both Council and a Private
Certifying Authority where appointed.
Background
Private Certifiers are professionals who are authorised by the NSW government to carry out certain regulatory functions related to building and construction in accordance with the Building and Development Certifiers Act 2018 (NSW). They are licensed/accredited by NSW Fair Trading and appointed by property owners and developers to undertake assessment and inspection of building work to ensure compliance with relevant legislation, including the Building Codes of Australia (BCA) and the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
In terms of development control, local councils in NSW are responsible for managing and regulating land use and development within their respective jurisdictions. This includes preparing and implementing Local Environmental Plans (LEPs), Development Control Plans (DCPs), and other planning policies and guidelines.
Council also undertake assessment of development applications, and issue development consents or refusals based on the merits of each application.
Private Certifiers can also undertake assessment of certain types of development under the complying development provisions, which allow for faster and more streamlined assessment of certain types of low-impact development, such as minor home renovations and small-scale commercial projects. However, larger and more complex development applications generally need to be assessed by the Council.
In summary, private certifiers play an important role in ensuring compliance with building and construction standards in NSW, while the Council is responsible for managing and regulating land use and development within their respective jurisdictions.
Roles and Responsibilities
The role of a Principal Certifier is to oversee and ensure compliance with the various regulatory requirements related to building work, including the BCA and relevant planning and environmental legislation. The Principal Certifier is responsible for issuing Construction Certificates, Occupation Certificates, and Complying Development Certificates for building work, and for ensuring that all relevant approvals and permits are obtained before construction work begins.
In addition, a Principal Certifier is responsible for carrying out regular inspections of the building work during construction to ensure that it is being carried out in accordance with the approved plans and specifications, and that it meets all relevant building standards and regulations. The Principal Certifier may also require a builder to stop and rectify any non-compliant building work. Failing to comply with a direction issued by a Principal Certifier may result in the Council taking control to enforce compliance.
One example of the statutory authority and role of a Principal Certifier is set out in section 6.31 of the EP&A Act, which provides that a Principal Certifier has the power to issue Written Direction Notices requiring the rectification of any building work that is not carried out in accordance with the approved plans and specifications, or that does not meet the relevant building standards and regulations. The Principal Certifier may also issue notice to the Council where necessary to protect public health and safety, or to prevent damage to property.
Overall, the role of a Principal Certifier is crucial in ensuring that building work is carried out safely, efficiently, and in accordance with all relevant regulatory requirements in New South Wales.
The Process
In accordance with the adopted Enforcement Policy (ES-05), the Council has developed the following process when dealing with a complaint related to a Principal Certifier or privately certified development. That includes;
Step 1: Receipt of complaint
When a complaint is received by the Council regarding a privately certified development, the Council will record the complaint and acknowledge receipt of the complaint to the complainant within a reasonable timeframe (e.g. 5 business days).
Step 2: Initial assessment
The Council will undertake an initial assessment of the complaint to determine whether it relates to matters that fall within the Council's regulatory responsibilities, or whether it should be referred to other regulatory authorities, such as the Principal Certifier, NSW Building Commissioner, NSW Fair Trading, or SafeWork NSW.
Step 3: Investigation
If the complaint falls within the Council's regulatory responsibilities, the Council will investigate the matter by obtaining all relevant information and documentation related to the development and the Principal Certifier's involvement. The Council may also contact the Principal Certifier for their response to the complaint.
Step 4: Assessment of findings
Once the investigation is complete, the Council will assess the findings to determine whether there has been a breach of any regulatory requirements, such as the Building Code of Australia, or the EP&A Act. The council would also assess whether the Principal Certifier has fulfilled their statutory obligations under the EP&A Act and make referrals to the regulatory body (NSW Fair Trading), if necessary.
Step 5: Outcomes
If the investigation finds that there has been a breach of regulatory requirements, the Council may take a range of enforcement actions, including issuing orders to stop building work, or requiring the rectification of non-compliant building work. The Council may also consider taking legal action or issuing fines where appropriate.
If the investigation finds that the Principal Certifier has failed to fulfil their statutory obligations, the council may report the matter to NSW Fair Trading, which is responsible for regulating and disciplining private certifiers in NSW.
Step 6: Communication
Throughout the process, the Council will keep the complainant informed of progress and outcomes. The Council may also provide advice and assistance to the complainant on how to address any issues related to the privately certified development or civil disputes.
Step 7: Review
After the matter has been resolved, the council should review the complaint management process to identify any areas for improvement, and to ensure that the council's regulatory responsibilities are being fulfilled effectively and efficiently.
More information related to enforcement action, process, and procedure can be found in our adopted Enforcement Policy (ES-05).
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