The Building and Development Certifiers Act 2018 (the B&DC Act) makes clear that local councils have an obligation to ensure certain certification work carried out on behalf of that council is carried out by a “registered individual” (which is defined as someone who is a registered certifier under the B&DC Act). Section 112(1) of the B&DC Act also makes clear that local council’s may be liable for a maximum penalty of $110,000.00 if they do not comply with this obligation.
However, certain certification works are exempted from that obligation. This means that if a council employee is certifying those exempted works, council will not be liable for a penalty under section 112(1) of the B&DC Act.
Section 112(1) of the B&DC Act
Section 112(1) of the B&DC Act states (with emphasis underlined):
(1) A local council must ensure that any certification work of a class prescribed by the regulations that is carried out on behalf of the local council is carried out by a registered individual whose registration authorises the individual to carry out that certification work.
Maximum penalty—1,000 penalty units.
What is “certification work”?
“Certification work” is defined as constituting many different types of work under the B&DC Act. One of the ways “certification work” is defined is by reference to the functions of a certifier under section 6.5 of the Environmental Planning and Assessment Act 1979 (the EP&A Act).
The functions of certifiers pursuant section 6.5 of the EP&A Act include the issuing of subdivision works certificates for subdivision work. They also include the issue of subdivision certificates, whether the subdivision involves subdivision works or not.
What is “subdivision work”?
“Subdivision work” is defined broadly under the Building and Development Certifiers Regulation 2000 (the B&DC Regs). The B&DC Regs define subdivision work as:
Exemptions for local councils
Councils are exempted from the penalty imposed by section 112(1) of the B&DC Act for certain types of certification work prescribed under the B&DC Regs. The B&DC Regs specifically note that a Council employee doesn’t need to be a registered certifier for certification work with respect to:
- subdivision work; or
- a structure that isn’t classified under the Building Code of Australia.
It is open for local councils to have registered subdivision certifiers certifying subdivision works. However, it is also ok for local councils to have unregistered council employees certifying subdivision work and they will not be liable for a penalty if doing so.
Why are there these exemptions?
In most local government areas, local councils require that most forms of subdivision certification is completed by the local council and not a private certifier. That is because subdivisions can have considerable impacts on creating public lands and infrastructure.
However, as there are so many subdivisions occurring all the time across New South Wales and it is mandatory in many instances for the certification to occur by a council, it would create a significant regulatory and monetary burden on councils if the law required subdivision certifications to be done only by registered certifiers employed by council. Ultimately, this would slow down the subdivision certification process significantly.