Chief Executive Officer of the AAC Jill Brookfield CAE GAID was recently quoted in the Daily Telegraph on the 4th of January 2024 as saying
“Make no mistake the housing crises cannot be resolved without certifiers….. we have repeatedly warned the Mins government the dwindling numbers of registered certifiers in NSW will put a huge hand-break of the expediency of any major reform”1
The number of private certifiers in NSW continues to dwindle and its concerning. The reasons were proffered in the newspaper piece were an aging demographic and looming retirements, other career opportunities, stress and high work loads.
Jill Brookfield also stated that this will impact upon housing supply as an efficient building permit delivery system is paramount.
Since private certification was established in the nineties the profession has been under pressure and a culture has emerged where they were joined as co – defendants in legal proceedings. Certifiers have often become the low hanging fruit in that they were often joined to spread the defendant net and sometimes the grounds have been spurious.
Granted in many instances there is a case to answer and we can vouch for that as I practice in this area. But equally we can vouch for the fact that there can be a misconception about their role that often leads to certifiers being joined when there’s no prima facie case to answer and there is case law that supports this.
A 2022 VCAT case is instructive in this regard
‘ it is not the role of the RBS to ensure that each and every element of construction of a dwelling at each stage, complies with the BC. It is not a supervisory role in that regard. This is particularly the case when there are only 4 mandatory inspections to be undertaken. Any additional inspections would be at the additional cost to the owner, substantially increasing the costs of construction. Further, such a supervisory role would result in the RBS taking on the roles and responsibilities of the builder’ ( Gelea v Silverline Homes Pty Ltd 2022 1368 para 45)
Little wonder some certifiers see law suits as an occupational hazard when there are misconceived views that they are site supervisors. Some certifiers have said to us that being sued just comes with the territory, as we`re insured they see a deep pocket. Ironically that used to be the local government lament before the system was partially privatised.
One of the ways to stop the tide going out may to redesign the regulatory risk landscape otherwise the tide might continue to retreat.
1. A Risk based building classification system under the NCC would be a good start.
The NCC has a purpose based building classification system. A risk based building classification system would help with risk reduction as inspectorial resources would be concentrated where the utilitarian need is greatest.
Calibrating mandatory inspections with the codified risk weighted building classifications would allow for more judicious use of building surveyors in that there would be:-
- be lesser numbers of inspection for low risk classifications.
- Higher number of inspections for higher risk classifications. Further mandatory peer review interventions of specialist engineers and experts would be interposed.
In the case of lower risk buildings inspections, sign off need not be done by building surveyors but could be done by building inspectors qualified to practice exclusively in the low risk setting.
In Victoria for instance there are registered building inspectors and building surveyors. The RBS qualification is more demanding and accordingly from a utilitarian point of view would be better applied to higher risk classification work.
Equally the building inspector skill set will sit more appropriately with low risk. A low risk shed or barn for instance will typically have:-
- Four walls
- One roof
- A door
- Possibly a couple of windows
- A slab
- Non-controversial use
Building permit issue for such work and the issue of an OP once the work is completed could easily be dealt with by a building inspector or a grade 3 certifier in NSW.
2. Prior to Occupancy permit conduct a joint inspection
Before the OP is issued key the RBS will convene a joint inspection that will involve:-
- Property owner
- Building contractor
- Specialist engineers
- Project architect
- And the RBS to carry out a joint final inspection
Each actor will be required to certify that their work is fit for purpose and in accordance with the NCC.
Once such certifications are forthcoming the RBS will have the discretion to issue to an OP. In the event of any legal proceeding joinder the RBS can tender the certificates of compliance as evidence of tailored expertise having been brought to bear to verify compliance.
3. Remove the power of certifiers and RBSs to sanction alternative solutions, regardless of whether they are in the private sector or local government.
Before the Building Act 1993 was promulgated if you wanted to get the equivalent of an alternative solution sanctioned an application was made to the Victorian Referees Board for a modification (the VRB was the previous incarnation of the Building Appeals Board).
Independent referees with diversified skill sets would consider the submission and then rule. If satisfied that the designs were fit for purpose, approval was forthcoming, if not approval was denied.
This decision mechanism was totally independent of the applicant and the Board was presided over by ministerial appointees.
Such power since the mid-nineties has been transferred to the building surveyor. The risk assumption in this writers` view is massive.
If there is a genuine desire to remove risk exposure to the certifier, consideration should be given to amending legislation to reinstate the VRB said approach for the sanctioning of alternative solutions.
4. Remove the north of 3 story high rise exclusion for home warranty or have crown sign off of multi-unit high rise residential.
In jurisdictions like Victoria and NSW builders are not required to provide warranty cover for buildings that are higher than 3 stories where each story has separate abodes. This has been the case since the turn of the century thereabouts.
This means that a disproportionate level of risk is assumed by the building certifiers and other insured actors such as engineers and architects, assuming they are insured which is more likely to be the case in given jurisdictions. In jurisdictions like Victoria by law they must be insured.
So either remove the exclusion, get the Crown to sign off on this sector or exempt certifiers too.
The later will never happen as it further prejudices the consumer, but that’s where the real problem lies, if it is an uninsurable risk for residential builders why is it not from a long term sustainability point of view an uninsurable risk for certifiers?
Alternatively look to Japan, under the Building Standard law the Crown signs off on multi-story high rise residential in recognition that this is the highest risk paradigm.
Regard must be had to the fact that in recent times some of the most well known building cases have concerned high rise residential developments. In recent times Grenfell and Miami come to mind.
The ‘elephant in the room’ might well be that the much pilloried certifiers should not be signing off high rise residential buildings for from an enlightened consumer protection point of view the Japanese approach is far more responsible. Because the risk profile in terms of potential to risk to life and limb is much greater in this setting the Crown should assume this risk as it is better equipped from a resourcing point of view to bring to bear a very elevated level of vigilance.
So in conclusion it`s all about working out ways to reduce risk and this will require legislative change. The latest IBQC Guidelines provide some of the best thinking on the planet in terms of risk based building classifications.
A risk based building code will help as would risk based building inspections. Peer review inspections for higher risk classifications and the bringing to bear of skills sets tailored to task makes sense.
A final joint inspection protocol will facilitate peer review by those tasked with key construction and design responsibilities. After all they are best equipped to make the key judgment calls.
A rethink of the north of three story exclusion and consideration being given to the Japanese approach where the Crown steps in to certify multi-story residential high rises have much to commend them.
That which is clear is that Jill Brookfields` warning is timely. If something isn’t done there will be insufficient capacity to guarantee efficient and timely permit delivery and that will have a very negative effect on governments delivering their housing supply promises.
Disclaimer
This article is not legal advice rather a discussion of the topic in only general terms. Should you be in
need of legal advice, please contact a construction law firm. Lovegrove & Cotton Lawyers and
our experienced team will assist you based on the facts and circumstances of your case.
Footnote articles
- Lack of certification set to obstruct housing plans ↩︎
