Down to details: Review of the draft Building and Development Certifiers Regulation 2019
The Building and Development Certifiers Act 2018 (Act), which we summarised in a previous article, has received assent but is yet to commence.
In anticipation of that, the New South Wales Government has released a public consultation draft of the Building and Development Certifiers Regulation 2019 (NSW)1 (Proposed Regulation), exhibited from 30 September until 28 October 2019.
The Government has previously said that its aim is to finalise and publish the Proposed Regulation by December 2019 and seek to commence the new statutory scheme from 1 July 2020.
What the Proposed Regulation does
The Proposed Regulation makes provision for a number of essential elements of the new legislative scheme dealing with:
- classes of registration available and respective power to carry out certain works
- qualification, skills and experience required for each class
- applicable continuing professional development requirements
- responsibility and independence of the certifiers
- new accreditation authority framework for professionals to carry out regulated works
- consumer protection in the contracts for certification work
- higher penalty notice amounts.
New classes of registration
The Act requires building surveyors, building inspectors and engineers to be to be registered by the Secretary of the Department of Customer Service (Secretary). The categories of accreditation have changed from the former categories under the Building Professionals Act 2005. The table below shows the new class or registration compared with the former category of accreditation:
The Schedule 3 of the Proposed Regulation outlines the qualifications and experience required for each class of registration. The applicant must have the qualifications and experience at least equivalent to those specified, and first time applicants must complete a registration exam conducted by the Secretary. Registered certifiers must complete the continuing professional development requirements.
The Secretary may also require applicants to have successfully completed recognised training under approved training program which are monitored by NSW Fair Trading, and the public consultation inquires whether the Secretary should be granted a discretion to require an applicant to complete additional training.
The Proposed Regulation redefines the certifiers' responsibility by expanding the definition of the certification work to include supervision of works carried out by other certifiers if there are relevant conditions on the registration, and inserting a code of conduct which will attract penalty.
The code of conduct under the Proposed Regulation that applies to the registered certifiers includes a duty to:
- act in public interest
- abide by standards expected by the community
- act within level of competence, expertise and area of registration
- maintain satisfactory level of competence
- avoid conflicts of interest
- not misinform or mislead
- obtain and consider all facts
- document reasons for decisions
- maintain confidentiality
- ensure any certification work carried out under supervision is carried out competently.
Conflicts of interest and consumer protection
The new regime propose to restore the public confidence to the certifiers by enhancing their independence, as the Act prohibits the certifiers from carrying out certain works if they have a conflict of interest in the certification work.
The Proposed Regulation prescribes three scenarios in which a registered certifier would be considered to have a conflict of interest:
- if a certifier carrying out certification work in relation to an aspect of development provided advice on how to amend plans and specifications
- if a certifier carrying out certification work in relation to an aspect of development proposed design options
- if a certifier issuing a strata certificate in respect of a strata plan, strata plan of subdivision or notice of conversion prepared by him/herself or a person who he/she has relationship with.
The Proposed Regulation further requires the contracts for certification work to provide a declaration by the person who has the benefit of the certification that the person has freely chosen to engage the particular certifier, and have understand the certifier's function and duty by reading any accompanying documents which include an information sheet published by the Secretary.
If the Proposed Regulation is finalised and published by December 2019, the current certifiers would likely to have a six month transition period to obtain registration and update their standard contracts to comply with the new statutory scheme.
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.