Lessons identified from this case
- Determine Building Code of Australia (BCA) classification separately for each part of a building. Each classification sets certain performance requirements which may be appropriate for different parts of the building.
- Don't issue a construction certificate (CC) unless the person eligible to appoint the principal certifying authority (PCA) has submitted an application for the CC. Insist on receiving all required information to make a proper determination.
- A certifier who carries out a critical stage inspection at the PCA's request must give the inspection report to the PCA within two days.
- Properly scrutinise installers' certificates and inspect the work in person. Is the installer appropriately qualified and does the certificate reference the correct BCA clause/s and Australian Standard/s?
- Only issue an occupation certificate (OC) if satisfied a building is fit for purpose in accordance with its BCA classification, whether or not a contractor assures you that work will be finished 'later that day'.
- Don't issue an OC for part of a building that may be affected by health or safety hazards in other parts. Look at the site as a whole and remember, a hazard may arise from outside the building.
Setting the scene: relevant legislative provisions
Environmental Planning and Assessment (EP&A) Act 1979
- Section 109H(3)(c) prevents issue of an interim OC if the partially completed building isn't suitable for occupation or use in accordance with its BCA classification.
Environmental Planning and Assessment Regulation 2000
- Clause 139 requires an application for a CC to be made by a person eligible to appoint a PCA. The application must include the information and documentation specified in Part 3 of Schedule 1 of the EP&A Regulation, and be immediately endorsed with the date of receipt.
- Clause 147(1)(f) requires a CC to contain the BCA classification; under clause 147(1A) there may be a different classification for different parts of the building.
- Clause 154(1) prevents issue of an interim OC if the building constitutes a hazard to occupants' health or safety.
- Clause 162B(1-2) requires that a record of a critical stage inspection must be completed by the accredited certifier. If not the PCA, the certifier must send a copy of the record to the PCA within two days of the inspection.
Building Code of Australia
- Clause A3.3 requires each part of a building to be classified separately.
Development consent was issued for a two-storey community sporting and entertainment facility with indoor sport areas, offices and underground car parking.
Determine BCA class for each part of a building
The certifier issued a CC that gave a BCA 9b classification to the whole building, which was the same classification as given in the development consent. Various parts should actually have been deemed a class 5 office, 7a car park, and 9b public assembly building.
The certifier reasoned that class 9b imposes higher safety standards than 5 and 7a, so his decision made no practical difference. However, the certifier should have classified each part separately – it's not a certifier's role to impose higher standards than required.
Determining a building's classification is a key task when assessing a CC application. BCA classification sets health, safety and amenity requirements based on how people use different types of buildings, so it's important to get the classification right.
PCAs must obtain reports of inspections by other certifiers
The PCA arranged for an A2 certifier to carry out all critical stage inspections except the final inspection.
The A2 certifier submitted a summary report of his inspections to the PCA, instead of sending separate reports within two days of each inspection. The PCA asked for each report, but didn't follow up this request as he should have done.
The summary report didn't give the result of each inspection, the A2 certifier's accreditation details or the location of the work. It therefore didn't meet regulatory requirements so couldn't have been relied upon by the PCA to issue an OC.
A CC must be applied for by the person eligible to appoint the PCA
At one point, the A2 certifier urgently requested a modified CC and sent updated construction plans to the PCA, who issued the CC even though there was no application from the owner.
Also, the documentation didn't meet all regulatory requirements. There wasn't enough information to assess vital matters such as what types of fire safety systems would be installed, how they would be built and what materials would be used.
An application for a CC is a certifier's trigger to assess the proposal against the development consent, check preconditions are met and ask for more information if needed. And, by immediately endorsing the application with the date of receipt, the certifier knows which version of the BCA to apply.
Don't issue any OC if the work isn't suitable
The PCA was asked to inspect the building and issue an interim OC in time for the official opening the next day. He issued the certificate for part of the development, even though there were numerous reasons why it wasn't suitable for occupation or use in accordance with its BCA classification.
- an electrical distribution enclosure (located along a path of travel to an exit) didn't have the appropriate fire protection (lining or covering)
- access and facilities for people with disabilities were not completed
- the fire hydrant system and hose reels were not installed.
By issuing the OC, the PCA acted contrary to his role as a certifier – a regulator and a public official.
During the inspection, the PCA directed tradespeople to rectify some work, but later acknowledged that a number of non-compliances were still present when the interim OC was issued. He also intended to withhold a final OC until all non-compliances were addressed, but a final OC was never applied for.
The non-compliances should have prevented an interim OC being issued regardless of any intention to withhold a final OC. For example, an electrical distribution board that isn't properly protected may ignite a fire and block access to emergency exits. This hazard alone should have prompted the PCA to refuse to issue an interim OC.
Consider the whole development even if an OC covers just a part
The underground car park was unfinished and service penetrations (such as the air handling system) leading to the ground floor weren't fire sealed.
The PCA excluded the car park from the scope of the interim OC, but this simplistic approach didn't recognise how the unsealed service penetrations posed a fire hazard to the rest of the building.
Even if issuing an OC for just part of a development, certifiers must consider potential hazards that may arise from other parts of the building, or even outside the building itself.
Don't just rely on verbal assurance or installers' certificates
At the final inspection, the A2 certifier provided advice to the PCA that the fire hydrant and hose reels would be installed by the end of the day, and later that day sent a certificate of installation.
The PCA accepted this without further scrutiny. He also relied solely upon the installer's certificate for the ducted air system.
In both matters the PCA should have:
- confirmed the installers were suitably qualified
- checked that the certificates referenced the correct BCA clause/s and Australian Standard/s, including the year
- inspected the work in person to see that it was actually installed and functional.
Subsequent inspections by the council revealed that the fire hydrant and hose reels weren't properly installed. This would have been evident to the PCA had he visited the site after receiving the certificate.
Certifiers can, and should, refer to additional certificates or reports where appropriate to guide determinations, but these need to be given adequate scrutiny by the certifier. Certifiers can also ask for advice from other professionals if it's unclear whether a certificate adequately supports a determination.
The Board's findings
The Board made a combined determination of unsatisfactory professional conduct on two complaints against the certifier. It imposed:
- a reprimand
- a $20,000 fine
- a restriction on the types of buildings that the certifier can work on, until completion of specific education courses and an exam set by the Board
- reporting to the Board on certification activities.
There appeared to be a general expectation that work would be ready and an OC issued in time for the official opening of the development. Despite this, the certifier should have known that certain BCA non-compliances presented hazards which prevented an interim OC from being issued.
Accredited certifiers are public officials, so their decisions need to uphold the public interest rather than just serve their clients' needs. The client was responsible for having building work ready on time, but by issuing an OC the certifier took on some liability for the unfinished and non-compliant work.
Also, as in many proven complaints, the certifier didn't follow due process. He relied on verbal assurances, didn't adequately scrutinise installers' certificates or check certain fire safety systems were actually in place, and didn't insist on the A2 certifier providing full inspection records.
- Environmental Planning and Assessment Act 1979
- Environmental Planning and Assessment Regulation 2000