Calling for the third umpire – how far can the PCA rely on third party certification?
By Justin Cotton, Partner and head of practitioner advocacy, Lovegrove Solicitors.
The recent ADT decision of Dix v Building Professionals Board  NSWADT 160 has caused much discontent in the private certification fraternity in New South Wales.
Issues concerning the case, and in particular the entitlement of principal certifying authorities to rely on third party certificates from specialist engineers or other contractors, were under the microscope at a recent public forum in Sydney.
A sense of impatience was palpable as a review of the law, or at least a clarification of the guidelines, was called for. It remains to be seen whether legislative change will be brought to bear to clarify the topic, as it is one where reasonable people within the industry can have opposing views.
Case law can be cited in aid of the PCA to the effect that a Building Surveyor/Building Inspector is not engaged to design, construct, or act as a site foreman, clerk of works or supervisor for the construction process. This is generally the interpretation across the States.
However, there are other decisions, such as the Toomey v Scolaro case in Victoria, where after an intoxicated athlete fell over a stair balustrade that was too low the Court attributed some liability to both the building inspector and building surveyor. In fact, the Court held that the building surveyor should not have (in good faith) simply relied on the inspection record from the building inspector, and had a duty to “condescend to the minutiae” of the details on the plans. A tough and exacting ask indeed.
A Compliance Certificate has certain requirements. For example, it can only be issued by an accredited certifier, the Council or a consent authority. It must meet the requirements in clause 138 of the EP&A Regulation 2000.
The problem is that in many cases it is difficult for the certifier to obtain the Part 4A Compliance Certificate that would give them an automatic immunity under the EP&A Act. While the next best thing is a certification from the specialist contractor that carried out the work, it is true that this is a form of ‘self certification’. The contractor will be much better placed to certify the specialist work than the PCA, but questions of their impartiality naturally arise.
In the aftermath some news media chose to take a sensationalist approach when reporting the decision. Perhaps figuring there is less mileage to be had in providing a balanced and analytical approach, one news article wrongly inferred that Mr Dix did not carry out any inspections personally and just relied on certifications from the contractors that carried out the works.
In fact, Mr Dix did carry out the final inspection prior to issuing the Occupation Certificate. The real conundrum was whether and how far the certifier was entitled to rely on third party certificates from specialist installing contractors. Was this ‘self certification’ that meant it was unreasonable for the certifier to rely on such certificates – given they were not Part 4A
The ADT found as follows:
“At the least, the certifier should form a view as to what fire safety requirements would be expected to be referenced and identified. If there is an omission to reference a relevant requirement….the certifier should take steps to ascertain why it is not referenced.”
But the ADT said that even with “properly referenced certificates”, that: “…the certifier should also engage in basic practical checks, wherever possible, to be satisfied that the required systems have been installed and are working.”
It is a fine line on whether this conflicts with the statements of the ADT in this case and elsewhere that the PCA is a general building certifier entitled to rely on certificates from appropriately qualified specialists.
After all, there could be another danger imminent were the PCA to take on the role of certifying matters where he or she does not have the requisite training or competence.
In this case itself the ADT used qualified language, for example when it referred to “any visual inspection that was possible”. Indeed, in another major case in the last two years concerning a PCA, the ADT opined:
“We accept that it was, and remains, customary practice for certifiers to rely on credible, specialist certifications in specialist areas of building work” (eg geotech engineering or specialist electrical work).
But then again, there are often statements referring to the need for the certifier to not simply rely on such certificates without making some form of “independent professional judgment”.
This may be one big lesson that certifiers can take from the decision, in that the certifier may not be able to analyse and assess the specialist work itself, but they can at least ensure that any certifications properly reference the requisite standards.
In saying that it is noted that there can be differences in opinion between reasonable people as to whether some references on certificates go far enough to capture the specific compliance issue. This was the case in the Dix decision, as the certifier was able to adduce an expert opinion that supported his view on point.
Fundamentally, there is no clear statement from the ADT case law as to what ‘reliance’ entails and how far if at all the certifier can rely on these certificates.
Practice Notes can be created that properly delineate best practice for principal certifying authorities, be they private or Council. Remembering though that Practice Notes and guidelines do not have the force of legislation and are not binding to that extent.
Arguably then there needs to be an amendment to the EP&A Act to address this uncertainty. There have been a number of amendments to this law over the years – but there is also growing impatience within the certifier community at the time it is taking to address problems such as these by legislative change.
It would certainly be best practice for certifiers to heed the warnings in recent case law. Also an assessment needs to be made on how best to defend charges. If such charges are more likely than not going to be found proven on a technical basis, it makes more sense to ‘fess up’ to the imperfections and focus on what the certifier has done or is doing to implement best practice from here on in. That may call for a less adversarial approach; rather a problem solving approach is preferable and this would be appreciated by the ADT when it hands down its ruling.
By Justin Cotton, Partner and head of Practitioner Advocacy, Lovegrove Solicitors
For more advice on your rights and responsibilities, misconduct advocacy and the regulatory regime on NSW certification contact Lovegrove Solicitors (Kim Lovegrove or Justin Cotton) for prompt, expert assistance.