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:
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.
Expanded Responsibility
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:
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:
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.
Next steps
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.
Author: Peter Holt & Jeffery Shi
[1] https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0005/559247/Draft-Building-and-Development-Certifiers-Regulations-2019.pdf
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