Frequently asked questions for building certifiers

The Environment Planning and Assessment (EP&A) laws don’t specifically prohibit issuing a construction certificate (CC) for alterations and additions to an existing building, even if the original building was unauthorised.

When a council issues development consent for alterations and additions, they typically review any unauthorised work as part of their process.

This means they will assess the unauthorised work and take appropriate action. This could include getting the relevant party to fix the unauthorised work before you begin the new alterations and additions.

You need to follow the same steps you would for any other amendment. A building information certificate (BIC) can't be used to approve unauthorised work for the purpose of getting an occupation certificate (OC). Unauthorised work must be corrected through the proper amendment process. 

When a council issues a BIC it means the council will not take enforcement action against unauthorised work.

A BIC cannot be required by a certifier as part of a WDN because it is at the discretion of the landowner and the council.

BICs existed before the current certification system. A BIC is not grounds for a CC or OC, as it is not a form of approval. Since you can’t get development consent/a CC for a building that has already been erected, a BIC is usually the only way to ‘regularise’ unauthorised building work.

Read more about BICs.

Yes, as long as it's filled out completely and correctly with all the necessary documents attached.

'Relevant conditions' are conditions in the development consent that need to be followed at different stages of building. For example, ongoing conditions of use for an occupied building won't be relevant to a certifier issuing a CC. 

This is a serious issue. It is a disciplinary matter because the certifier has issued the CC without due care. Only the Land and Environment Court can declare the certificate invalid. 

If work hasn't started yet, a new CC that matches the DA should be issued. 

Checklists are one way to document decisions, but not the only way. It depends on the situation.

The Practice Standard suggests that decisions should be clear and easy to understand based on the certifier's records.

The Building Commission cannot give specific advice because each case is different. The Practice Standard gives examples of what might usually be considered consistent. Check volume 2, page 36.

The EP&A (Development Certification and Fire Safety) Regulation 2021 requires a site inspection if the CC work will affect an existing building. 

The Building Commission recommends best practices in the Practice Standard. If an action is recommended but not required by law, the Practice Standard will say so. 

There is no legal requirement for a pre-CC inspection for a vacant site. However, complying development does require a site inspection before a CDC is issued, even for a vacant site. 

The BCA that applies is the one in force when the CC for the entrance floor is applied for. See section 19 (1A) of the EP&A (Development Certification and Fire Safety) Regulation.  

The new certifier should review all documents. If there are problems, they should talk to the original certifier to ensure the CDC or CC are re-issued correctly. The new certifier does not have to accept the role.

It depends on the building work and inspection stage. For example, it might include fixtures or fittings needed to meet BASIX standards. 'Critical items' isn't a fixed term or group of items. 

The principal certifier should document that they accept the other certifier's inspection record, which becomes part of the project file. They don't need to create an extra report. 

The EP&A Act requires written directions for work not done according to the development consent, including approved plans and conditions. 

Check Part 4.4.2 of the Practice Standard for missed inspections. 

Not always. A certifier can use their judgment. Minor issues may be fixed without a reinspection. For example, if a minor component needs to be installed, the installer could send a certificate to the certifier to add to the file. 

If the certifier is qualified to approve a performance solution, they need to check if it is still consistent with the approved work in the CC. It doesn't have to be an exact match. Remember, a CC can only be given for future work, not past work. So, a CC can't be used to approve unauthorised work. 

Yes, a certifier can charge fees for inspections, including reinspections, and these fees must be paid upfront. The certifier doesn't have to inspect the work within a specific time after being notified. If work continues without the certifier's inspection, the OC may not be able to be issued. 

There is no limit to the number of occupation certificates (OC)s per project. Each OC must meet the required regulations, for example the site cannot be a hazard. For more details, see the Practice Standard, chapter 5, for example about issuing a partial versus a 'full' OC. 

If the requirements for an OC aren't met, the principal certifier cannot issue an OC. The certifier's role is not to smooth the path for the applicant. If the inspection was 'unavoidably missed,' check section 4.4.2 of the Practice Standard. 

The certifier should notify the applicant as soon as they become aware of an issue that would prevent an OC.  

Yes. Section 53 of the EP&A (Development Certification and Fire Safety) Regulation says an OC must be issued for the entire building within 5 years. 

If no DA conditions restrict it, an OC can be issued if all regulations are met. Building Commission can't give a blanket statement regarding partial OCs, because it depends on the development, such as the reason a retaining wall is needed. 

No. The principal certifier can rely on a compliance certificate issued under the EP&A Act. But the certificate doesn't replace the need for an inspection by the principal certifier. See page 33 of Volume 2 of the Practice Standard.

Yes. The certifier must record each critical stage inspection and give a copy to the principal certifier within 2 days. 

No, a document from a licensed builder doesn't offer the same protection as a compliance certificate. Only certifiers can issue compliance certificates under the EP&A Act. 

Any appropriately registered certifier can issue a compliance certificate under the EP&A Act. The legislation allows the designing engineer to issue the certificate because certain types of work are highly specialised and an alternative might not be available. 

Yes, but only a compliance certificate under the EP&A Act can be relied on. Certificates from builders or installers aren't the same and can't be relied on in the same way. 

Certifiers are regularly faced with missed critical stage inspections. For example, because the certifier was not notified to inspect the work before it was covered with concrete or plasterboard. 

Usually, the certifier was not notified because of ignorance or poor communication, which are both avoidable.  

Examples are: 

• because the builder, site manager, owner-builder or contractor didn’t realise the certifier had to inspect the work, or
• because the builder thought the waterproofer was going to book the inspection. 

The certifier may need to inspect the work by opening it up. Alternatively, the certifier can rely on a report from a structural engineer and issue a modified CC.   

The certifier's role isn't to make it easier to issue an OC. Certifiers should communicate proactively with applicants and builders about inspections. A building information certificate isn't a substitute for a certifier's inspection. 

The certifier needs to tell the applicant about the unauthorised work. Depending on when it's found, the certifier might need to issue a written direction notice. The certifier's job is to explain why they won't issue an OC, not to find solutions. 

The certifier can refuse to issue the OC and should tell the applicant about the issues. Certifiers may include termination clauses in their contracts. The law doesn't cover ending a certifier's role, just replacing them. The applicant needs to find a new certifier. 

If a certifier finds an unlawful condition, they should advise the applicant to apply for a modified development consent under section 4.55 of the EP&A Act. 

Certifiers only need to send a copy to the relevant council if the compliance notice has expired and the issue still exists. 

Yes, if the non-compliance is found outside of a critical stage inspection. Check the Department of Planning and Environment’s Building and Subdivision Certification – Guidelines for Written Directions Notices. 

It depends on the issue and what's been tried already. If all requirements are met, a certifier can't refuse to issue an OC. The certifier’s fees must be paid before the OC is issued. 

Ongoing compliance is the council's responsibility. 

The OC is based on the certifier's inspection and records at the time of issue. The certifier's records should show why the OC was issued. 

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