Building and Development Certifiers Regulation 2020

This Regulation is the Building and Development Certifiers Regulation 2020.

This Regulation commences on the commencement of the Building and Development Certifiers Act 2018 and is required to be published on the NSW legislation website.

In this Regulation—

Building Code of Australia has the same meaning as in the Environmental Planning and Assessment Act 1979.

business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales.

class 1 building means a class 1a building or a class 1b building within the meaning of the Building Code of Australia.

class 10 building means a class 10a building, a class 10b building or a class 10c building within the meaning of the Building Code of Australia.

fee unit—see Part 2 of Schedule 6.

relevant certificate means the following certificates under the Environmental Planning and Assessment Act 1979—

a complying development certificate,

a certificate referred to in section 6.4 of that Act.

strata certificate has the same meaning as in the Strata Schemes Development Act 2015.

the Act means the Building and Development Certifiers Act 2018.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

Notes included in this Regulation do not form part of this Regulation.

For the purposes of section 120(2)(a) of the Act, the Secretary may require an applicant for registration to have successfully completed recognised training.

Training is recognised training for the purposes of this clause if the training is recognised by the Secretary and is conducted in accordance with any conditions to which that recognition may be subject.

A person may apply in writing to the Secretary for training to be recognised by the Secretary.

The Secretary may, by notice in writing to the person, recognise the training or refuse to recognise the training.

The recognition may be unconditional or subject to conditions.

The Secretary may vary, suspend or revoke a recognition by notice in writing to the person.

Completion of recognised training under this clause does not replace the need for the applicant to have the qualifications, skills, knowledge and experience required by Schedules 2 and 3.

For the purposes of section 7(2)(h) of the Act, the Secretary may form an opinion that a person is not a suitable person to carry out certification work if—

the person is disqualified from holding a relevant authorisation, or

a relevant authorisation held by the person has been cancelled or suspended, or

the person has been convicted of an offence, or disciplinary action has been taken against the person, in the person’s capacity as the holder (or former holder) of a relevant authorisation.

In this clause—

relevant authorisation means—

accreditation to carry out regulated work, or

registration as an architect under the Architects Act 2003, or

a contractor licence, supervisor certificate, tradesperson certificate or owner-builder permit under the Home Building Act 1989, or

a licence, certificate, accreditation, registration or other authorisation or qualification that is issued or conferred under the laws of another jurisdiction and that authorises the holder to carry out work that is similar to the work authorised by an authorisation specified in paragraph (a) or (b).

For the purposes of section 10(5) of the Act, the Secretary is taken to have refused to grant registration to an applicant if the Secretary fails to give the applicant notice of the Secretary’s decision within 28 days after the application is made.

In calculating a period for the purposes of subclause (1), any period from the day on which the Secretary makes a written request for further information from the applicant until the day on which the information is provided or the applicant refuses to provide the information is not to be included.

Subclause (1) does not prevent the Secretary from continuing to deal with an application after the expiry of that period.

For the purposes of section 12(3) of the Act, an application for variation of registration must—

be in a form approved by the Secretary, and

include or be accompanied by information or evidence that the Secretary reasonably requires to assess the application, and

be accompanied by the fee payable as if the application were an application for the grant of registration.

If the Secretary considers it necessary to do so, the Secretary may require either or both of the following—

further documents or information to be provided by the applicant,

in the case of an applicant who is an individual, that the applicant attend an interview, undertake an oral or written examination or provide a demonstration of the applicant’s skills.

Section 9 of the Act is taken to apply to an application for variation of registration in the same way as it applies to an application for the grant of registration.

A variation of registration takes effect—

at the time specified by the Secretary in the written notice under section 12 of the Act, or

if no time is specified or if the notice is served on the registered certifier after that time, when the notice is served on the registered certifier.

The Secretary is taken to have refused to grant a variation of registration to an applicant if the Secretary fails to give the applicant notice of the Secretary’s decision within 28 days after the application is made.

In calculating a period for the purposes of subclause (5), any period from the day on which the Secretary makes a written request for further information from the applicant until the day on which the information is provided or the applicant refuses to provide the information is not to be included.

Subclause (5) does not prevent the Secretary from continuing to deal with an application after the expiry of that period.

For the purposes of section 35(1)(i) of the Act, a registered certifier must notify the Secretary in writing of the following events within 7 days after becoming aware of the event—

an equivalent authorisation held by the registered certifier being varied,

legal or disciplinary proceedings being commenced against the registered certifier in the person’s capacity as the holder (or former holder) of a relevant authorisation within the meaning of clause 5,

if the registered certifier is a registered body corporate—

a registered certifier becoming an employee or registered director of the body corporate, or

a registered certifier ceasing to be an employee or registered director of the body corporate, or

a person becoming a director, or person involved in the management, of the body corporate, or

a person ceasing to be a director, or person involved in the management, of the body corporate.

For the purposes of section 13(1)(a) of the Act, it is a condition of registration that a registered certifier must surrender the registered certifier’s certificate of registration to the Secretary within 14 days after receiving written notice from the Secretary that the conditions of registration of the registered certifier have been varied or new conditions have been imposed on the registered certifier’s registration.

For the purposes of section 13(1)(a) of the Act, it is a condition of registration that a registered individual must carry the registered certifier’s certificate of registration whenever the registered certifier is carrying out certification work and must produce the certificate for inspection if requested to do so by an authorised officer.

For the purposes of section 13(1)(a) of the Act, it is a condition of registration that a registered body corporate must ensure that—

a registered director of the body corporate undertakes a course relating to the responsibilities of registered directors arranged by the Secretary if required to do so by the Secretary in writing, and

the registered director undertakes the course within the time (if any) required by the Secretary.

For the purposes of section 13(1)(a) of the Act, it is a condition of registration of a person who is registered as a building inspector on the grounds that the person has the qualifications specified in clause 3(2)(a) of Schedule 2, that the person may only carry out certification work under the supervision of a registered certifier who holds any of the following classes of registration—

building surveyor—unrestricted,

building surveyor—restricted (all classes of building),

building surveyor—restricted (class 1 and 10 buildings).

For the Act, section 13(1)(a), it is a condition of registration of a person who is registered as a building surveyor—restricted (all classes of building) that the person may carry out the certification work specified in Schedule 1, clause 7(1A) only in the circumstances specified in that clause.

For the Act, section 13(1)(a), it is a condition of registration of a person who is registered as a building surveyor—restricted (class 1 and 10 buildings) that the person may carry out the certification work specified in Schedule 1, clause 8(2) only in the circumstances specified in that clause.

For the Act, section 13(1)(a), it is a condition of registration that a registered certifier carry out certification work in accordance with the Practice Standard.

(Repealed)

For the purposes of section 80 of the Act, the maximum penalty for breaching the condition set out in subclause (2) is 20 penalty units.

In this clause—

Practice Standard means the following documents, published by the Department and in force from time to time—

the Practice Standard for Registered Certifiers - Volume One - new residential apartment buildings,

the Practice Standard for Registered Certifiers - Volume Two - Class 1a Buildings.

For the purposes of section 16(g) of the Act, the following circumstances constitute grounds for suspension of registration—

the Secretary—

has commenced, but not finally determined, disciplinary action under the Act, Part 4 against the registered certifier, and

is satisfied the suspension is necessary to protect property or the safety of a person,

(Repealed)

the Secretary is satisfied the registered certifier is not adequately insured.

The Secretary may issue a replacement certificate of registration to a registered certifier on the application of the registered certifier if the Secretary is satisfied that it is reasonable in the circumstances to issue a replacement certificate.

An application under this clause must be accompanied by the fee prescribed by Schedule 6.

In this Part—

expiry date, for a professional indemnity policy, means the date specified in the policy as the policy’s expiry date.

insured person means the individual or body corporate to whom the professional indemnity policy is issued.

liability of a registered certifier means liability to pay compensatory damages for breach of professional duty as a registered certifier arising from—

any act or omission of the registered certifier, or

any conduct of the registered certifier that would constitute a breach of any of the following provisions or any failure by the registered certifier to comply with a guarantee that applies because of any of the following provisions—

section 18, 29 or 30 or Subdivision B of Division 1 of Part 3–2 of the Australian Consumer Law of the Commonwealth,

any provision of the legislation of this or any other State or Territory that corresponds to a provision referred to in subparagraph (i).

professional indemnity policy means an insurance policy that complies with the provisions of this Part and that indemnifies an individual, body corporate or partnership against the liability of registered certifiers covered by the policy.

registered employee of a body corporate or partnership means an employee of the body corporate or partnership who is a registered individual.

registered partner of a partnership means a partner in the partnership who is a registered individual.