Lessons identified from this case
- Plans and specifications with an application for a construction certificate (CC) or complying development certificate (CDC) must detail how the proposal will meet the requirements of the Building Code of Australia (BCA).
- Although certifiers are responsible for preparing a fire safety schedule, they can't use it as evidence to determine an application for a CC or CDC. Preparation of a fire safety schedule is reliant upon the information provided to the certifier.
- Certifiers should exercise their legal authority to request additional information needed to determine an application for a CC or CDC, and reserve their determination until the applicant provides all required information.
- Double-check that a fire safety certificate includes all the information required by regulation, including all essential fire safety measures specified in the fire safety schedule. Check all measures are actually installed when inspecting the site before issuing an occupation certificate.
Setting the scene: relevant legislative provisions
Environmental Planning and Assessment Act 1979
- Section 109H(3)(c) prohibits issue of an interim occupation certificate unless the partially completed building is suitable for occupation or use in accordance with its BCA classification.
Environmental Planning and Assessment Regulation 2000
- Clause 139(1)(a) requires an application for a CC to include the plans and specifications listed in Schedule 1, Part 3 of the EP&A Regulation.
- Clause 140 gives certifiers authority to require applicants to provide any additional information considered essential to determining a CC.
- Clause 145(1)(b) prohibits a certifier from issuing a CC unless the proposal will comply with relevant BCA requirements.
- Clause 168(1)(c) obliges a certifier, when issuing a CC, to issue a fire safety schedule specifying current and proposed fire safety measures.
- Clause 168(3)(b) requires a fire safety schedule to include the statutory fire safety measures (which are listed under clause 166).
- Clause 174 requires a fire safety certificate to list, among other things, the property address, and each essential fire safety measure in the fire safety schedule with its minimum standard of performance.
A certifier issued a CC for a proposal to demolish a car service centre and replace it with a new centre, showroom, parking and signage.
CC plans must have enough detail to demonstrate BCA compliance
The plans submitted with the CC application lacked sufficient detail on how the work would meet BCA performance requirements for:
- operation of door latches
- portable fire extinguishers
- design and operation of emergency lighting
- exit signs and direction signs.
The approved CC plans included the broad statement 'all works to be carried out to the Australian Building Code & Standards'. This was an unacceptable substitute for details to show compliance with the BCA. Similarly, it was too generalised to replace a 'statement of intent' to comply, which would at least have identified relevant BCA provisions.
Fire safety schedule not evidence to determine a CC application
The certifier didn't ask the applicant for more detail on the above matters so he could properly assess the CC application. Instead, he worked out what the relevant fire safety measures were, prepared a fire safety schedule and then used it as evidence of BCA compliance to issue the CC.
The schedule added detail lacking in the application; for example, specifying the provision of 'portable fire extinguishers in accordance with E1.4 and AS2444', despite the plans not including extinguishers.
The certifier's view was that the fire safety schedule filled in the gaps in the CC application – in effect, he used it as part of the application.
Certifiers are responsible for preparing the fire safety schedule but can't use it as evidence to determine a CC (or CDC). Preparing the schedule is a separate task to determining the application.
Certifiers can require additional information from applicants
The information missing from the CC application was essential for the certifier to properly consider the application, but there is no evidence he requested it.
Certifiers have authority to ask applicants for any additional information. They should do so where appropriate, and not determine an application until they have all required information.
Check fire safety certificates for completeness and accuracy
Later, the certifier relied on a fire safety certificate prepared by an independent third party as evidence to issue an interim occupation certificate.
The fire safety certificate was deficient in that:
- it incorrectly stated portable fire extinguishers were installed (they were not)
- it didn't include all the essential fire safety measures in the fire safety schedule
- it didn't give the property address and wasn't signed by the owner.
As a result, the certifier issued the occupation certificate for building work that didn't meet BCA requirements.
While it was appropriate to refer to a fire safety certificate as evidence the installed fire safety measures were functional, the certifier should still have:
- checked whether the certificate included all the information required by the EP&A Regulation, including all the measures in the fire safety schedule
- confirmed installation of each fire safety measure when inspecting the building, before issuing an interim occupation certificate.
These simple checks are part of due diligence and would have revealed the deficiencies in the fire safety certificate.
The Board's findings
The Board's Disciplinary Committee considered a number of complaints against the certifier and made a finding of unsatisfactory professional conduct. An aggregate penalty was imposed having regard to the certifier's disciplinary history and repeated patterns of conduct.
The penalty included:
- a reprimand
- a $10,000 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.
Before issuing a CC, the certifier should have insisted on the applicant providing more detail about how the proposal would meet relevant BCA requirements.
Instead, the certifier relied on the fire safety schedule to fill in the gaps. In this respect he took on the applicant's responsibility to supply the information and failed to maintain the independent, regulatory role of an accredited certifier.
Many proven complaints against certifiers are at least partly due to the certifier not using a careful, methodical approach. In this case the certifier didn't thoroughly check the fire safety certificate before issuing an interim occupation certificate.