Critical Stage Inspections for Accredited Certifiers
By Jarrod Gutsa, Lovegrove & Cotton – Construction and Planning Lawyers
September 2014
The Environmental & Planning Assessment Act 1979 (“the EPAA”) and the Environmental & Planning Assessment Regulations 2000 (“the EPA Regulations”) require that mandatory inspections of building works by an Accredited Certifier’s occur at certain critical stages.
The critical stage inspection regime is aimed at ensuring that Accredited Certifiers inspect buildings at key junctures to ensure the as-built product complies with all building regulations and building codes.
This article will focus on the critical stage inspections required for residential dwellings, which apply to class 1 and 10 Buildings as identified in the Building Code of Australia (“the BCA”).
Section 1093(d) of the Act states:
(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions … as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority…”
The EPA Regulations provide:
“In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:
(b) after excavation for, and prior to the placement of, any footings, and
(c) prior to pouring any in-situ reinforced concrete building element, and
(d) prior to covering of the framework for any floor, wall, roof or other building element, and
(e) prior to covering waterproofing in any wet areas, and
(f) prior to covering any stormwater drainage connections, and
(g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.”
The above stages should not be read as limiting the only time an inspection must occur for building works, but should be read as the minimum of required inspections.
The Building Professionals Board (“BPB”) is the body charged with regulating the conduct of a Private Certifier (“PC”) in the state of New South Wales.
The BPB has the power to investigate the conduct of PC’s and impose disciplinary censure if they consider the conduct of a PC is such that it may be perceived as Professional Misconduct or Unsatisfactory Professional Conduct (“UPC”) as defined by section 19 of the Building Professionals Act (“the BP Act”) .
“unsatisfactory professional conduct of an accredited certifier means any of the following (whether consisting of an act or omission):
- conduct occurring in connection with the exercise of the accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier. ……”
The above section of the BP Act has a wide meaning and the BPB may form the view that a PC should inspect the site at other stages or in other instances depending on the exact circumstances of the case.
For instance some examples of where the BPB may consider a PC should inspect a site are:
- where a Principal Certifying Authority has issued an order on the subject site;
- where it comes to the PC’s attention that works have progressed on the site that are not consistent with the Construction Certificate or Development Consent as applicable;
- where it comes to the PC’s attention that works have progressed on site without a mandatory inspection occurring.
The above are merely examples of instances where the BPB may form the view that if a site inspection did not occur then a PC would not have acted with the degree of skill and competence that a member of the public is entitled to expect from a PC.
The counter argument to the above is that where the legislature has seen fit to provide a detailed procedure mandating certain inspections occur (ie the critical inspection regime) and the PC has complied with the critical inspection regime, then an ordinary member of the public would consider that the PC has been competent and diligent in performing their duties.
The nature of conduct that amounts to UPC is intentionally inherently broad, thus one must carefully consider the facts of each case when considering whether or not there is a requirement to conduct inspections additional to the critical stage inspections.
Should a PC ever find himself or herself in a position where they are being investigated by the BPB, they should contact a competent construction lawyer immediately to be properly advised regarding their conduct.
