In this edition we look at two new disciplinary case studies published by the Building Professionals Board (BPB), concerning in each instance the conduct of a principal certifying authority (PCA).
PCA work carried out without formal appointment
The BPB reprimanded a certifier and issued him a $3000 fine after he issued a complying development certificate (CDC) without formal appointment as the PCA. The certifier believed that he was acting appropriately and helping the owner in circumstances of unauthorised development, however, in doing so he failed to convey the seriousness of not formally appointing a PCA.
Section 109D(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) prohibits the issue of an occupation certificate except by the PCA and s 109E(1) of the EPA Act requires the person with the benefit of the CDC to appoint a PCA before work commences. The certifier was in breach of s 85(2) of the Building Professionals Act 2005 by falsely representing he was the PCA for a development and thus was reprimanded and fined despite believing that he was being of assistance to the owner.
This case illustrates that a CDC should not include the name of a PCA who has failed to be formally appointed. In most cases the certifier who issued the CDC will be appointed, however, it is important to be aware of the legal ramifications of pre-empting this. Certifiers should also be aware of how their actions will be perceived by someone with limited understanding of the certification process as average home owners may be unaware of the inability to obtain an occupation certificate (OC) without formally appointing a PCA.
Reliance on old inspection to issue final OC
In early 2009, the original PCA issued an interim OC for a commercial and office building. At the time, conditions of development consent relating to a positive covenant and car parking were not yet met. Shortly after issuing the interim OC, the original PCA left the certification company.
Four years later the company received documents from the applicant showing the remaining consent conditions were met. Upon receiving this, the replacement PCA verified the documents and issued a final OC without reinspecting the site. The decision not to reinspect was based on the outstanding conditions of consent not relating to physical construction compliance. The final OC did not reference a final fire safety certificate.
The significant elapse of time and change in PCA required an inspection and up to date fire safety certificate in order for the PCA to satisfy himself that the work was suitable for occupation. It was noted that the final OC had the effect of revoking the interim OC that was relied on. These factors made the decision not to reinspect 'risky and inappropriate'.
In the media
RICS launches green roofs and walls guide
The Royal Institution of Chartered Surveyors has released a guidance note providing advice on getting green walls and roofs on commercial and residential developments (28 July 2016) RICS launches green roofs and walls guide Click here for the Green Roofs and Walls guidance.
Housing completion numbers highlight the top apartment suburbs in Sydney
The Housing Monitor for the Greater Sydney Region recently released by the NSW Government lists four of the top ten suburbs in housing completions as being dominated by apartments, says the Urban Taskforce (26 July 2016) Housing completion numbers highlight the top apartment suburbs in Sydney.
Two new disciplinary case studies
Two new disciplinary case studies have been published. Each is based on a complaint considered by the Board's Disciplinary Committee and offers important lessons for certifiers (22 July 2016). More...
Practice and courts
ABCB: Updated for 2016 - NCC education materials!
The NCC Resource Kits have been and are now available (29 July 2016). More...
Announcements, Draft Policies and Plans
Simplified NSW Housing Code – Draft Changes On Exhibition
The Department of Planning and Environment is exhibiting draft changes to the NSW Housing Code and inviting council submissions by 12 August 2016 Simplified Housing Codes.
NSW BPB: June/ July 2016 e-news
The e-news is a regular digest of work by the Board, legislative updates, events, training and consultation opportunities (22 July 2016). More...
NSW Loose-fill asbestos insulation
NSW Fair Trading will provide financial assistance and support to affected homeowners and tenants, but you must register by 1 August 2016.
Smith v Andrew Hands t/as Perfect Timber Flooring  NSWCATAP 161
APPLICATION FOR LEAVE TO APPEAL – Appellant failed to demonstrate foundation for grant of leave to appeal https://www.caselaw.nsw.gov.au/decision/57919a8ee4b058596cb9db70.
Lauer v Comer (No 2)  NSWCATAP 158
Home Building Act – s 94(1A) – quantum meruit not just and equitable https://www.caselaw.nsw.gov.au/decision/5790255ae4b058596cb9da94.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.