The Limited Statutory Role of Building Certifiers
By Justin Cotton, Director, Lovegrove & Cotton
Recent formal responses (reply letters) on complaint investigations by the NSW Building Professionals Board display some candid observations on the limited statutory parameters of building certifiers ‘ functions.
Importantly, the Board has shown a willingness to dismiss complaints under section 23 of the Building Professionals Act 2005, if complaints traverse into areas that should more appropriately be the responsibility of the Owner or the principal contractor carrying out the building works.
This is a positive development for private building certifiers, and for those who have long justifiably argued that a private certifier is not a “clerk of works” and should not be responsible for either supervising the Builder or for matters of builder workmanship.
Further to that, building certifiers are not responsible for design. The Owner engages architectural or engineering consultants for that, and by necessity, the certifier should not involve themselves in design solutions; that would bring about a prohibited conflict of interest.
The nature of the complaints process will often mean that Owners will not necessarily be appraised of a certifier’s defined statutory scope, and it is common for members of the public to regard a building certifier as akin to an overlord in control of all aspects of the works, including the Builder’s workmanship. This is not the case but some complaints emanate from this false premise.
However, the Board has the power to dismiss complaints under section 23 of the BP Act 2005 for any of the reasons specified in that section, including if “the Board is of the opinion that the complaint deals with matters that do not constitute professional misconduct or unsatisfactory professional conduct”.
This does not derogate from the key role a Principal Certifying Authority (“PCA”) plays as a public official engaged by private contract, to ensure that minimum levels of regulatory compliance are achieved for the benefit of the community.
Nevertheless a recent response letter from the Board advised of a complaint dismissal against an accredited certifier and made some salient points, including:
- The role of a PCA is not that of a site supervisor, and they are generally only on a building site when carrying out a mandatory critical stage inspection.
- The role of an accredited certifier in performing critical stage inspections and approving an Occupation Certificate is in actuality a statutory function, not a contractual role. The aim is to ensure there is compliance with the holistic requirements of the Building Code. Anything beyond this such as an Owner’s concerns about the quality of construction or variations from the design are a contractual concern between an Owner and their Builder.
- Compliance with the Building Code may mean a lesser standard than the finishes pursuant to the Owner’s contract with the Builder. However, the PCA only needs to be satisfied that the works that are readily observable at an inspection meet the Building Code, rather than some higher standard. (Note that a building certifier can also rely on third party specialist certificates for aspects of the works that have been covered up or are not readily observable at an inspection).
Further, the Board advises that contractual matters between an Owner and the principal contractor that are unable to be resolved do not fall into the responsibilities of an accredited certifier, who is “expected not to act beyond their statutory powers”.
This last phrase suggests that the accredited certifier is under a duty not to be “over zealous” in his/her role in terms of enforcing compliance, and to not exceed their statutory powers. However, as we know complaints about building certifiers being too stringent with their certification responsibilities (as opposed to not doing enough) are relatively rare.
For those building certifiers involved in the assessment of complying development certificates (“CDCs”), the Board has also noted that the existence on site of a non-compliance with a CDC condition or requirement is not necessarily evidence of unsatisfactory professional conduct by a PCA.
In discussions previously about the limited role of building certifiers, there has been tension between 2 Victorian case authorities, the principles of which are relevant to building certification / building surveying across Australia.
The case of Lewis v Threadwell  VCAT 547, is a decision that sets out that a building surveyor is not a site supervisor, principal contractor, ‘clerk of works’, project manager or designer for a building project.
The building surveyor is there to ensure Building Code compliance at milestone times including the initial building approval, at mandatory inspection stages throughout the works and on final approval when works are completed. Over and above that they have enforcement tools at their disposal, eg notices and orders, to serve on an Owner or their agent to compel compliance. The building surveyor is not in a position to be on every site for much of the time, and “looking over the Builder’s shoulder”. This is neither possible nor required of them.
However, in another case of Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liquidation) and Others  VSC 279, the Court held that the building surveyor was not entitled to any good faith reliance on a compliance certificate from a building inspector who had failed to properly measure the height of a balcony balustrade. The height of the balustrade was in fact too low and an intoxicated owner had fallen over it. Only a very low inspection fee had been charged by the building inspector, casting further doubt on the diligence afforded to the exercise.
In finding both the building surveyor and their delegated building inspector liable (along with other building practitioners involved in the construction of the building), the Court made statements to the effect that a building surveyor should “condescend to the minutiae” of checking building plans for compliance.
It is suggested though that these cases are not necessarily in contradiction with one another, and the separate principles enunciated in both cases are accurate reflections of the law applying to building certification. The findings in Toomey do not undermine the recognised principles concerning the limited and defined scope of a building certifier’s powers and responsibilities.
For more information and advice in relation to building certification and regulation in all Australian jurisdictions, you should contact construction lawyers with expertise in the construction field.
Lovegrove & Cotton: Leaders in building practitioner legal representation
Lovegrove & Cotton are experts in construction law and building practitioner legal representation in Melbourne, Sydney, the ACT and Queensland. Kim Lovegrove RML, FAIB is co-author of leading text, “Disciplinary Hearings and Advocacy”. Justin Cotton has represented building practitioners and building surveyors successfully for nearly fifteen years and has established leading precedence in a number of Australian tribunals. If the reader knows of anybody who needs legal representation in this complex and gravity-laden area, feel free to contact us via our website or by emailing firstname.lastname@example.org.