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Building and Development Certifiers Regulation 2020

On 1 July 2020 the Building and Development Regulation 2020 (the Regulation) under the Building and Development Certifiers Act 2018 (the Act) came into force. The Act and Regulation replace the previous Building Professionals Act and Regulation.

The re-write of the Development Certifiers Act 2018 and the Building and Development Regulation 2020 was largely in response to recommendations made by Michael Lambert in his 2015 Independent Review of the Building Professional Act 2005.

While the review and re-write of the Act and the Regulation was extensive and includes significantly increased penalties for building certifiers breaching the Act, the day-to-day operations of a building certifier will go largely unchanged and, as such, builders and home owners should not expect to see significant changes to the way they interact with building certifiers.

What are the key changes?

Among the significant changes to the Act and Regulation are the following:

  • The Secretary of the Department of Fair Trading may require a registered Director of a certification business to undergo specific training related to the roles and responsibilities of company directors
  • Professional indemnity polices for certifiers may have a maximum claim limit of at least $1,000,000 for individuals and $20,000,000 or $1,000,000 x the number of certifiers employed, for companies
  • New professional indemnity policies may include certain exclusions related to cladding until 30 June 2021
  • Conflict of interest provisions have been redrafted. The following activities are not considered to be a conflict of interest:
    • Providing advice as to how to amend plans to comply with the Deemed-to-Satisfy Provisions of the Building Code of Australia (BCA) if the development is related to a Class 1 or 10 building
    • Providing advice that the plans do, or do not, comply with the BCA or other legislation (e.g. the Environmental Planning and Assessment Act 1979) without providing advice on how to amend the plans
    • Indicating that a Performance Solution may be required without providing advice on what the Performance Solution should be
    • Indicating what aspects of the BCA must be satisfied for a Performance Solution without providing advice on the Performance Solution itself
    • Participating in a fire engineering brief (performance-based design brief) without providing advice on the actual design
  • E1 certifiers or swimming pool inspectors who are also licensed contractors may carry out minor works on a pool fence which they have inspected to make the pool fence compliant so long as they are licensed to carry out that work, the work is completed as soon as possible and the value of the works is less than $1000 in value
  • An information sheet provided by Fair Trading must be included with the contract between the owner (applicant) and the certifier
  • Classes of certifier registration, qualification and experience, knowledge and skills and the Code of Conduct are now included in schedules of the Regulation rather than guides issued by Fair Trading
  • CPD requirements will be set out in a guide to be issued by Fair Trading.

To find out more, contact HIA’s Building Services team.

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