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NSW Legislation Update: BUILDING AND DEVELOPMENT CERTIFIERS ACT 2018 AND BUILDING AND DEVELOPMENT CERTIFIERS REGULATION 2020

The Building Professionals Act 2005 (BP Act) has been replaced with the Building and Development Certifiers Act 2018 (B&DC Act), which was passed by Government on the 24th October 2018. The B&DC Act and the accompanying Regulation (Building and Development Certifiers Regulation 2020), will operate within NSW from the 1st July 2020. This new legislation revises the framework under which registered certifiers operate in NSW, including:

  • Detailing classes of registration for certification work;
  • Clarification on the role of a registered certifier to include “certification work”;
  • Revised categories of accreditation of registered certifiers;
  • Improving the independence of certifiers and provide certainty around when a conflict of interest arises; and
  • Outlines the minimum requirements of Insurance to be held by a registered certifier.

KEY CHANGES INCLUDE:

  1. Terminology changes

The B&DC Act will refer to “Registered Certifiers” (in lieu of a Certifying Authorities or Accredited Certifiers).

Term under former ActCorresponding term under this Act
accredited body corporateregistered body corporate
accredited certifierregistered certifier
Building Professionals Boardthe Secretary

 

  1. Regulated Work to be carried out by accredited practitioner

Regulated Work includes any work identified in the Environmental Planning and Assessment Act 1979, or the B&DC Act, and is required to be carried out by an accredited practitioner. Regulated Work includes:

  • Design and Endorsement of plans and specifications for fire safety systems comprising Fire detections and Alarm systems; Mechanically ducted smoke control systems; Hydraulic fire safety systems
  • Exemptions for compliance under EP&A Reg Clause 164B
  • Performance Solution for Fire Safety Matters
  • Annual Fire Safety Statements and Supplementary Fire Safety Statements

The Fire Protection Accreditation Scheme (FPAS) has been recognised as an accreditation authority for regulated work. For further information please refer to the Fire Protection Association Australia website.

  1. Redefinition of “Conflicts of Interest”

The B&DC Act precludes a registered certifier from undertaking Certification Work where a conflict of interest has been identified. The redefinition of “conflict of interest” in The B&DC Act has been expanded to include circumstances where a registered certifier may not undertake professional services, other than certification work.

  1. Requirements for Contracts for Certification Work

Written Contracts are required to be in place prior to a registered certifier carrying out certification work. This is not a new requirement, noting this requirement was in force under the Building Professionals Act 2005.

The B&DC Act and Regulations outline specific terms that are to be contained within contracts for Certification Work. Of note, contracts are to include:

  • Scope of certification work to be carried out under the contract; and
  • Terms requiring the payment of fees associated with the carrying out of functions.
  • Terms requiring payment of fees and charges arising out of unforeseen contingencies to be paid 21 days after the completion of work.

Please liaise with McKenzie Group Consulting to ensure that your statutory requirements for contract terms are addressed as part of the engagement for services associated with Certification Work.

For further information, please visit the links below: