The Building Professionals Board also receives many complaints about developments that were incorrectly assessed as complying development, but should have been approved through a development application.
Ways certifiers can avoid complaints
Early, open and regular communication
- Talk with owners and builders so they fully understand the conditions of consent and will carry out the work in a way that ensures minimal disturbance to the neighbourhood.
- Identify the responsibilities of each party and set out these responsibilities clearly in all written contracts.
- Act promptly to resolve any issue that arises to avoid a complaint being made against you to the Board.
- Councils and principal certifying authorities (PCAs) should cooperate to resolve potential problems and avoid complaints. Councils have ultimate enforcement powers and it is good practice to work together.
If in doubt, ask for advice
Sometimes you may need advice to help you apply legislation or policy in practice. You may wish to seek advice from a more experienced certifier, a council, government agency and/or solicitor.
Use checklists and forms
Checklists and forms help you gather everything you need to assess an application. If you modify a checklist or form, you are responsible for ensuring it meets all legislative requirements.
The Department of Planning, Industry and Environment has resources to help you assess applications for complying development. These include illustrated fact sheets, tables to assist with calculations, brochures and FAQs.
Gather all information before determining an application
Always get all plans, reports and other documents from the applicant before you determine a certificate. You’ll be able to see if there’s a section 88 instrument under the Conveyancing Act 1919, you can check the section 149 certificate, and you can compare the deposited plan and the site plan.
Also refer to the Local Environmental Plan, Development Control Plan, other relevant legislation and building standards.
Erect a sign on the site before work starts
A sign with the contact details of the PCA and the principal contractor must be prominently displayed on the development site before work starts. This lets neighbours know who is involved in the development.
The information sheet about signs on development sites provides more detail.
Carry out on-site inspections in person
Preferably, the certifier who will issue the certificate will inspect the site. However, under the Environmental Planning and Assessment Regulation 2000, the certifier may approve another certifying authority to carry out the inspection on his or her behalf.
You need to be certain the plan accurately represents the site, and that work hasn’t started. Before issuing a certificate, you must also check the plan against on-site structures, trees, gradients and other site features.
The Board recently investigated a case where a certifier didn’t visit the site, and made an off-site assessment of which fire safety systems the existing building was likely to have. The building actually had alternative solutions in place which the certifier couldn’t have foreseen. This highlights how important it is to do inspections in person.
Managing complaints if they arise
Refer the complaint to the right authority
Councils receiving a complaint about a development for which they are not the PCA should consider whether they are the appropriate authority to resolve it (due to their greater enforcement powers).
Complaints that may warrant action by councils include:
- urgent matters such as danger to life or property or a significant breach of the development consent or legislation
- matters that are not preconditions to the issue of the occupation or subdivision certificate, such as sediment control or traffic management.
If the matter doesn’t require immediate action, the council should refer the complaint to the PCA and notify the complainant accordingly.
Acknowledge, investigate and respond to the complaint
The PCA should acknowledge receipt of a complaint as soon as possible and must investigate the complaint. This generally involves visiting the site, contacting the builder and/or checking the approved plans and conditions of consent.
The PCA should respond in writing to written complaints, generally within 14 days, and can respond verbally to verbal complaints, generally within 48 hours. If a matter is likely to take longer to investigate, the complainant should be informed and advised of the steps being taken.
If the investigation reveals the need for action to rectify building work, the PCA must first contact the principal contractor who is in a position to resolve the matter. If the principal contractor is reluctant to comply, or if the matter affects the property owner, the PCA should advise the owner.
A verbal request may be appropriate unless the matter causes significant nuisance or environmental impact or is potentially dangerous. In such cases it may be appropriate to issue written directions, notices or orders according to the PCA’s enforcement powers (which differ depending on whether the PCA is the council or an accredited certifier).
Make a written record of the complaint
The PCA must keep a written record of the complaint in accordance with clause 267A of the Environmental Planning and Assessment Regulation 2000.
The record should include:
- the name and contact details of the complainant
- the date the complaint was received
- the address and any identifying features of the property subject to the complaint
- the events surrounding the complaint from the complainant’s view and as revealed by the investigation
- any response and action taken by the PCA.
The PCA must keep the record for 10 years from the date the complaint was received. The PCA should tell the complainant that they are making a record and that the record may be requested by the Building Professionals Board.
Councils: notify the PCA of action taken
Any enforcement action by the council regarding a development for which it is not the PCA should be notified to the PCA.