Certifier obligations when working on regulated buildings

Key information

• Certifiers have statutory obligations and functions set out by the Building and Development Certifiers Act 2018 and other legislation.
• Certifiers working on class 2, 3 and 9c buildings (or a mixed-use building with a class 2, 3, or 9c part) must also adhere to the Practice Standard for registered certifiers.
• Certifiers have certain responsibilities when working on regulated buildings under the Design and Building Practitioners Act 2020 to ensure upfront design and compliant building work.
• Certifiers must ensure all regulated designs and design compliance declarations they require to issue the construction certificate (CC) are provided before issuing a CC or complying development certificate (CDC).
• Certifiers cannot provide an occupation certificate (OC) until all compliance declarations for the building work are lodged on the NSW Planning Portal. 

Note: Remedial building work for class 3 and 9c buildings is excluded from being regulated under DBP legislation until July 2026. 

Building and development certifier registration

All persons who carry out certification work must hold individual registration in the relevant class of registration. The only exception is for council officers carrying out swimming pool inspections or subdivision certification on behalf of a council.

Council officers carrying building certification and building inspections on behalf of a council must hold individual registration.

Find out how to register on the becoming a certifier page.

You must register as an individual on the NSW Fair Trading Building Certifiers Portal. A company may apply for corporate registration however any individual carrying out certification work for a registered body corporate must also hold an individual registration.

Certifiers working on class 2, 3 and 9c buildings have a responsibility to adhere to practice standards when carrying out building certification work and is issued under section 14 of the Building and Development Certifiers Act 2018. 

Certifier responsibilities before issuing a construction certificate

Under clause 29 of the Design and Building Practitioners Regulation 2021 (DBP Regulation), certifiers are prohibited from issuing a construction certificate (CC) or a complying development certificate (CDC) for a class 2, 3 or 9c buildings unless they have obtained the following documents which they require to issue the certificate:

1. design compliance declarations for all building elements and performance solutions to which the building work relates, and
2. for each design compliance declaration, the regulated design/s covered by the design compliance declaration.

Under the DBP Act, ‘building element’ means any of the following:

• fire safety systems (including passive fire)
• waterproofing
• building structure
• building enclosure
• building services that are required by the Building Code of Australia
• those aspects of a vertical transportation product that are required to achieve compliance with the BCA.

‘Performance Solution' means a method of complying with the performance requirements set out in the Building Code of Australia other than by a Deemed-to-Satisfy solution. 

Staged construction certificates

Staged construction, carried out under multiple construction certificates, is permitted under the Design and Building Practitioners Act 2020 (DBP Act).

For staged construction, a building practitioner must lodge the relevant construction issued regulated designs (CIRDs) and design compliance declarations related to a construction certificate on the NSW Planning Portal before the building work related to that construction certificate can commence. 

Principal certifier responsibilities before issuing an occupation certificate

Under clause 30 of the Design and Building Practitioners Regulation 2021 (DBP Regulation) the principal certifier is prohibited from issuing an occupation certificate (OC) unless the building compliance declaration for the building work has been provided to the principal certifier.

Under section 27 of the Design and Building Practitioners Act 2020 (DBP Act), a principal certifier (PC) must carry out the following functions before issuing an occupation certificate:

1. A principal certifier must not issue or determine an application for an occupation certificate until they are satisfied all compliance declarations required for the building work have been lodged in accordance with the DBP Act. 

   Note: This requires the certifier to confirm all design compliance declarations and the building compliance declaration for the building work have been lodged on the NSW Planning Portal before issuing an occupation certificate (OC).

2. A principal certifier who is responsible for issuing an occupation certificate for building work must consider any instances of non-compliance specified in the compliance declarations relating to the building work when deciding whether to issue the certificate. 

   Note: This requires the certifier to read all design compliance declarations, and the building compliance declaration submitted to check if there are any non-compliances specified in them before deciding whether to issue the OC. 

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Transitional arrangements for class 3 and 9c buildings

Certifiers need to be aware of the transitional arrangements in place for class 3 and 9c buildings.

Building work already started before 3 July 2023

If building work began before 3 July 2023 under a construction certificate (CC) or complying development certificate (CDC), requirements under the Design and Building Practitioners Act 2020 (DBP Act) for upfront design and registration of key practitioners does not apply to work on that certificate.

However, the designs that the builder relied upon need to be lodged on the NSW Planning Portal before an application for an occupation certificate is made.

A design compliance declaration does not need to be lodged with the designs. Additionally, a building compliance declaration does not need to be submitted. Subsequent building work that is started under another CC or CDC after 3 July 2023 will need to comply in full with the DBP Act.

A principal certifier responsible for issuing an occupation certificate for this building work must not issue the occupation certificate unless the principal certifier is satisfied that all designs required for the building work have been lodged on the NSW Planning Portal in accordance with the DBP Act.

Building work to start after 2 July 2023 but before 3 July 2024

If building work is scheduled to start after 3 July 2023 under a CC or CDC, the rules and obligations under the DBP Act apply to that work. This applies regardless of whether the construction certificate was issued before or after 3 July 2023.

Where designs were prepared before 3 July 2023 by a practitioner who is not eligible for registration after 2 July 2023, those designs must be assessed for compliance with the BCA by a registered design practitioner who issues a Certificate for Design Compliance.

The building practitioner must lodge copies of the designs and the Certificates on the NSW Planning Portal before carrying out the building work. The Certificate allows the building practitioner to use the design for building work as though it was a regulated design.

If the designs prepared before 3 July 2023 undergo a variation on or after 3 July 2023, the DBP Act comes into effect. The building practitioner must obtain a regulated design and a design compliance declaration from a registered design practitioner for the variation to the regulated design and lodge the regulated design and declaration on the NSW Planning Portal before commencing the varied building work.

Building work for a new class 3, or 9c building that commences on or after 3 July 2024 must comply with the DBP Act.  

Building work excluded from compliance declaration requirements

Certifiers need to be aware of the exclusions under clause 13 of the DBP Regulation.

Some building work on a regulated building class (currently 2, 3 & 9c) is excluded from needing a compliance declaration. This includes where the building work is:

• valued at less than AU$5000 including labour and materials and is excluded from being residential building work under the Home Building Act
• exempt development under an environmental planning instrument except waterproofing
• waterproofing work within a single dwelling carried out as a result of alterations to a bathroom, kitchen, laundry or toilet if the work is carried out as exempt development
• being done under a HomeBuilder grant
• being done under a council order except related to cladding
• being done under a development control order except related to cladding
• work that is the repair, renovation or protective treatment of a fire safety system for the purpose of maintaining a component of the fire safety system, except a load-bearing component that is essential to the stability of a building
• for the maintenance of a component of a system in the building for mechanical, plumbing or electrical services
• electrical or plumbing work that is a performance solution for building work, other than work for a building element
• the subject of a development consent but is not work for a building element or performance solution for building work (work not requiring a regulated design)
• a non-structural* fit-out only for class 5, 6, 9a or 9b parts
• exempt from Building Code of Australia (BCA) under clause 164B, 187 or 188
• the installation of an awning, blind or canopy over a window or door
• the installation of a roofed structure over a balcony, deck, patio or terrace, whether open or enclosed, unless the roofed structure is installed above the existing topmost roof of the building.

* A structural component of a building means an internal or external load-bearing component of the building that is essential to the stability of the building or part of it, including in-ground and other foundations and footings, floors, walls, roofs, columns and beams.