PCA work carried out without formal appointment

Friday, 22 July, 2016
A certifier wasn't formally appointed as PCA but carried out some of this work over a three year period. After issuing a CDC, the certifier inspected the site and gave the owner an inspection report and detailed advice on how to obtain an occupation certificate.

Lessons identified in this case

  • Don't issue a complying development certificate (CDC) that names you as the principal certifying authority (PCA), unless you've been formally appointed. In most cases, the owner will appoint the same certifier who issued the CDC or construction certificate, but you shouldn't pre-empt this (noting that the PCA appointment would generally come after the CDC is issued).
  • Consider how your actions and advice could be interpreted by someone with limited understanding of the certification process. Average home owners may be unaware that they need to appoint a PCA, and that not doing so can jeopardise issue of an occupation certificate (OC).

Setting the scene: relevant legislative provisions

Building Professionals Act 2005

  • Section 85(2) makes it an offence for a certifier to falsely represent that he/she is the PCA for a development.

Environmental Planning and Assessment Act 1979

  • Section 109D(2) prohibits the issue of an OC except by the PCA.
  • Section 109E(1) requires the person with benefit of the CDC to appoint a PCA before work commences.

Environmental Planning and Assessment Regulation 2000

  • Clause 162A sets the critical stage inspections to be carried out during construction.

Case details

The certifier issued a CDC to build a detached granny flat.

Documents suggested PCA appointment made

The certifier had not been formally appointed the PCA, but the CDC gave his name and details under the heading 'Principal Certifying Authority' and he signed it under the heading 'PCA's Certification Statement'.

One month after issuing the CDC, and not having received a PCA appointment form, the certifier visited the site to see if work had started. It had, and he sent the owner an 'inspection result sheet' but did not notify the local council of the unauthorised development.

The 'inspection result sheet' listed the relevant critical stage and advised how to address the non-compliant (and unauthorised) work. The inspection sheet also showed the certifier's business logo with the tagline 'Principal Certifying Authority'. This appeared immediately above the inspection results and was easily interpreted as a heading rather than part of the logo, regardless of the reader's familiarity with the certification system.

Therefore, the certifier's CDC and 'inspection result sheet' sent a very strong message that he was the PCA.

Advice to applicant fulfilled PCA function

In three letters, each sent to the owner about a year apart, the certifier gave detailed advice on how to finalise the development.

The first two letters explained the steps for the owner to obtain an OC from the certifier, and requested a completed PCA appointment form. In his third letter, the certifier withdrew his offer to act as PCA and recommended the owner ask the council for a building certificate.

The letters advised that a formal PCA appointment was needed but, at best, this could only confuse the owner since the CDC and 'inspection result sheet' suggested the certifier was already the PCA.

The letters also failed to convey the serious consequences of proceeding without a PCA.

The Board's findings

The Board reprimanded the certifier and issued a $3,000 fine.

Conclusion

The certifier believed he was acting appropriately and helping the owner in circumstances of unauthorised development due to there being no PCA appointment. However, he should have realised the wrongful impression his actions could make on someone who was unfamiliar with the certification system.

The certifier didn't convey the seriousness of not formally appointing a PCA, and of missing critical stage inspections. His actions made the PCA appointment seem like a formality alongside other completion matters, rather than something that, if skipped, prevented issue of an OC. He also didn't properly deal with the unauthorised work and alert the council to it, which he could have done at any time.

Legislation cited

More information