Certifier conflicts of interest
As a certifier, you have clear responsibilities to remain impartial. Learn more here.
Key information
- A conflict of interest is any situation where your personal interests might influence a professional decision.
- If you breach conflict of interest rules, you could be fined up to $33,000.
About conflicts of interest
If you’re a registered certifier, you’re an independent regulator of building and subdivision work. You must follow the conflict of interest rules in the Building and Development Certifiers Act 2018 to ensure your assessments are impartial.
A conflict of interest happens when you, or someone related to you, could unlawfully gain a private benefit from your actions or decisions in your official role.
The law lists situations that are considered private interests.
For example, if you are both the certifier and:
- the applicant for the development, or
- involved in its design, or
- related to a person with a private interest (through family, personal, employment, or business relationship).
If you’re a certifier with a conflict of interest, you must not:
- carry out any inspection
- issue any certificate*
- do any certification work prescribed by the regulations.
Building Commission NSW can grant you an exemption from a conflict of interest rule, provided the public interest is maintained.
*Except a compliance certificate under the Environmental Planning and Assessment Act 1979, which a certifier (but not the principal certifier) may issue.
Specific conflicts of interest
Besides the general list of private interests, the Building and Development Certifiers Regulation also states:
Prescribed conflicts of interest
These are situations that are automatically a conflict of interest, regardless of other factors.
To avoid a prescribed conflict of interest, you must not:
- issue a strata certificate, strata plan, strata plan of subdivision, or notice of conversion, for a plan or notice you, or someone related to you, prepared
- advise on amending plans/specifications to comply with the Building Council of Australia (BCA), or a legislative requirement. (You can advise on how to comply with the BCA’s deemed-to-satisfy provisions for a class 1 or 10 building.)
- propose a design option for the development, for example a BCA performance solution.
Non-conflicts of interest
A council certifier can issue a certificate on behalf of the council:
- where the applicant is the council or an employee, and the development is valued at up to $2 million
- for developments where the certifier was involved in the assessment.
You can certify a pool under the Swimming Pools Act and carry out work to make the pool barrier compliant, as long as:
- the work is done to issue a certificate of compliance, and
- the work costs no more than $1,000 (including parts and labour), and
- the certifier has a supervisor certificate or endorsed contractor licence under the Home Building Act, that authorises them to build a swimming pool or do structural landscaping.
You can carry out certification work under contract to the council, as well as private certification work in that council area, as long as the council and private work does not relate to the same development.
- You can advise on the legal requirements and whether or not a development complies. In general terms, certifiers may advise what is needed for compliance, but not how to achieve compliance (except for how to meet BCA deemed-to-satisfy provisions for class 1 and 10 buildings).
- As a certifier (if not the principal certifier) you can issue a compliance certificate under the EP&A Act where you, or a person related to you, was involved in the design or carrying out of the work.
- You can participate in a fire engineering brief for the purpose only of determining the scope of work for a fire engineering analysis and the basis for that analysis.
Exemptions
Building Commission NSW can grant exemptions from conflict of interest rules. We can grant exemptions for unforeseen circumstances when the law unintentionally restricts certification work.
An exemption can be for specific work or a class of work and may have conditions or not.
For example, an exemption might be granted for certain types of buildings in a specific area. It might be valid for a specific time, with a requirement to reapply for an extension.
For example, an exemption might be granted to allow a certifier to:
- act as principal certifier
- for a class 1a development
- in the Penrith local government area
- with the exemption valid for 2 years.
When deciding if an exemption is suitable, the Building Commission uses the public interest as the deciding factor.
How to apply for an exemption
To apply for an exemption from conflict of interest rules, fill out the conflict of interest exemption application form (PDF 80.79KB). Email it to certifierstrategy@customerservice.nsw.gov.au.
The Building Commission will notify you about the outcome by return email, or request more information from you.
Frequently asked questions
Certification work is defined in the legislation. Professional services fall outside this definition. One way to look at it is to consider that any paid service that is not certification work, and is not covered by clause 24 or 25 of the Building and Development Certifiers Regulation, is likely to be a professional service.
As a certifier, your role is not to solve design issues. The applicant is free to engage a BCA consultant or other relevant specialist.
As a certifier, you can explain which rules apply, what they require, and what still needs to be done. You can give this advice in any format (such as verbally, by email, or in a report) and get paid for it, as long as it's not design advice.
Yes, but you probably can't do both for the same project. If you do, you might have a conflict of interest. You need to evaluate this conflict case by case, according to section 29 of the Building and Development Certifiers Act.
The advice certifiers can give is largely outlined in clause 25 of the Building and Development Certifiers Regulation 2020. Certifiers are qualified professionals and it is natural that their comments will carry weight. It doesn’t automatically mean they have a conflict of interest.
In general terms, providing consultancy advice is a ‘professional service’ and thus a private interest under section 29 of the Building and Development Certifiers Act. See situations that aren't a conflict above for relevant exemptions.
Yes, for development valued at up to $2 million. If the certifier and the other employee have a relationship (for example, a close friendship) that could influence the certifier’s impartiality, then another council certifier may have to certify the development.
Certifiers should not act as both consultant and certifier on the same pool. This is likely to be a conflict of interest.
If a pool is non-compliant, the certifier is required to give enough information, as per section 22E of the Swimming Pools Act, so the pool owner can address the issues. This information is provided after the inspection. It is not consultancy work.