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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 July 1998 to 9 July 1998 (accessed 5 April 2020 at 15:01) Current version
Part 4B
Part 4B Accreditation of certifiers
Division 1 Preliminary
109R   Definitions
In this Part:
complaint means a complaint about an accredited certifier made under section 109V.
disciplinary finding means a finding of unsatisfactory professional conduct or professional misconduct.
professional misconduct, in relation to an accredited certifier, means conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation.
Tribunal means the Administrative Decisions Tribunal.
unsatisfactory professional conduct includes conduct (whether consisting of an act or omission):
(a)  occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier, or
(b)  by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or
(c)  by which an accredited certifier wilfully disregards matters to which he or she is required to have regard in exercising his or her functions as a certifying authority, or
(d)  by which an accredited certifier fails to comply with:
(i)  any relevant code of conduct established by the accreditation body by which he or she is accredited, or
(ii)  any other Act or law prescribed by the regulations, or
(e)  by which an accredited certifier contravenes this Act, whether or not he or she is prosecuted or convicted for the contravention.
Division 2 Accreditation of certifiers
109S   Authorisation of accreditation bodies
(1)  The Minister may, in accordance with the regulations:
(a)  authorise any professional association as an accreditation body with respect to any specified class of matters, and
(b)  withdraw any authorisation so granted.
(2)  More than one professional association may be authorised as an accreditation body with respect to the same class of matters.
109T   Accreditation of accredited certifiers
(1)  An accreditation body may accredit persons (other than bodies corporate) as accredited certifiers in accordance with its authorisation as an accreditation body.
(2)  An accreditation body may refuse to accredit a person as an accredited certifier or suspend or withdraw a person’s accreditation as an accredited certifier:
(a)  if it is satisfied that the person does not have the qualifications or expertise to exercise the functions of an accredited certifier, or
(b)  if it is satisfied that the person is not covered by the required insurance (within the meaning of section 109ZN), or
(c)  for such other reasons as may be prescribed by the regulations.
(3)  An accreditation body must refuse to accredit a person as an accredited certifier or suspend or withdraw a person’s accreditation as an accredited certifier if directed to do so by an order made by the Tribunal under this Part.
(4)  Neither an accreditation body, nor any member or member of staff of an accreditation body, is liable for any act or omission done or omitted to be done in good faith in the exercise of any function under this section.
(5)  The regulations may make provision for or with respect to any or all of the following:
(a)  the keeping by the Director-General of a register of accredited certifiers,
(b)  the issue of certificates by the Director-General containing details of the accreditation of a person and the evidentiary value of such certificates.
109U   Auditing of accredited certifiers
(1)  The Director-General of the Department of Local Government (referred to in this section as the Director-General) may authorise any person (referred to in this section as a Departmental inspector) to carry out an investigation into the work and activities of an accredited certifier.
(2)  For the purpose of carrying out the investigation, the Departmental inspector may exercise the same functions under sections 431 and 432 of the Local Government Act 1993 as may be exercised by a Departmental representative referred to in those sections.
(3)  The Departmental inspector must report to the Director-General on the results of the investigation.
(4)  If satisfied that the report indicates that the accredited certifier is or may be guilty of unsatisfactory professional conduct or professional misconduct, the Director-General:
(a)  must furnish a copy of the report to the accredited certifier, and
(b)  may furnish a copy of the report to the relevant accreditation body and any person prescribed by the regulations, and
(c)  may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any matter arising from the report.
Division 3 Disciplinary proceedings
109V   Persons who may make complaints
(1)  A person may make a complaint to the relevant accreditation body against an accredited certifier that the accredited certifier has been guilty of unsatisfactory professional conduct or professional misconduct.
(2)  A complaint is:
(a)  to be in writing, and
(b)  to contain particulars of the allegations on which it is founded, and
(c)  to be verified by statutory declaration.
(3)  The accreditation body may require the complainant to provide further particulars of the complaint.
(4)  The accreditation body must, after receiving a complaint against an accredited certifier:
(a)  inform the accredited certifier of the nature of the complaint, and
(b)  by notice, invite the accredited certifier to make, within such time (being at least 7 days) as the accreditation body specifies in the notice, such representations to the accreditation body with respect to the complaint as he or she thinks fit.
109W   Investigation by accreditation body of complaints
(1)  The relevant accreditation body must, subject to this Division, conduct an investigation into each complaint made to it under this Division.
(2)  An accreditation body may deal with one or more complaints about an accredited certifier in an investigation.
(3)  If during an investigation of any one or more complaints it appears to an accreditation body that there is matter in respect of which another complaint could have been made against the accredited certifier concerned, the accreditation body may deal with the matter in its investigation as if a complaint had been made about it under section 109V.
(4)  For the purposes of subsection (3), the accreditation body may deal with a matter that could have been the subject of another complaint:
(a)  whether that complaint could have been made instead of or in addition to any complaint that was in fact made, and
(b)  whether or not that complaint could have been made by the same complainant.
(5)  The accreditation body may dismiss any complaint without investigation if further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the accreditation body.
109X   Powers of accreditation body in investigation of complaint
(1)  For the purpose of investigating any complaint, the relevant accreditation body may, by notice served on any person accredited by it as an accredited certifier, require the person to do any one or more of the following:
(a)  to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,
(b)  to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,
(c)  to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.
(2)  The accreditation body may inspect any document produced before the accreditation body under this section and may retain it for such period as the accreditation body thinks necessary for the purposes of an investigation in relation to which it was produced. The accreditation body may make copies of the document or any part of the document.
(3)  If the accredited certifier against whom any complaint is made (or taken to be made) claims a lien over documents relating to the matter the subject of the complaint, the accreditation body may require the accredited certifier to waive the lien if satisfied it is necessary for the orderly transaction of the complainant’s business.
(4)  A requirement under this section is to be notified in writing to the accredited certifier and is to specify a reasonable time for compliance.
(5)  An accredited certifier who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.
(6)  An accredited certifier must not mislead or obstruct an accreditation body in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct.
109Y   Investigation into complaint to be conducted expeditiously
An investigation by an accreditation body is to be conducted as expeditiously as possible.
109Z   Decision after investigation of complaint
(1)  After an accreditation body has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section.
(2)  The accreditation body may apply to the Tribunal for a disciplinary finding against an accredited certifier with respect to any complaint against the accredited certifier.
(3)  Subject to subsection (4), the accreditation body must institute proceedings in the Tribunal with respect to the complaint against the accredited certifier if satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.
(4)  If the accreditation body is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the accreditation body may instead:
(a)  with the consent of the accredited certifier do any one or more of the following:
(i)  caution or reprimand the accredited certifier,
(ii)  direct that such conditions as it considers appropriate be imposed on the accredited certifier’s accreditation to practise as an accredited certifier,
(iii)  order that the accredited certifier complete such educational courses as are specified by the accreditation body,
(iv)  order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the accreditation body, or
(b)  dismiss the complaint if satisfied that the accredited certifier is generally competent and diligent and that no other material complaints have been made against the accredited certifier.
(5)  The accreditation body is to dismiss the complaint against the accredited certifier if satisfied that there is no reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
109ZA   Tribunal may make certain disciplinary findings on application of accreditation body
(1)  If an application is made to the Tribunal under section 109U or 109Z for a disciplinary finding in relation to an accredited certifier, the Tribunal is to determine whether or not the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct.
(2)  If the Tribunal finds that the accredited certifier is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the following decisions:
(a)  caution or reprimand the accredited certifier,
(b)  direct that such conditions as it considers appropriate be imposed on the accredited certifier’s accreditation to practise as an accredited certifier,
(c)  order that the accredited certifier complete such educational courses as are specified by the Tribunal,
(d)  order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Tribunal,
(e)  order the accredited certifier to pay a fine of an amount, not exceeding 300 penalty units, specified in the order,
(f)  order the accredited certifier to pay to the complainant such amount (not exceeding $20,000) as the Tribunal considers appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct,
(g)  suspend the accredited certifier’s accreditation for such period as the Tribunal thinks fit,
(h)  withdraw the accredited certifier’s accreditation.
(3)  If the Tribunal finds that the accredited certifier is not guilty of unsatisfactory professional conduct or professional misconduct, it is to dismiss the application.
(4)  If the Tribunal orders that an accredited certifier’s accreditation be withdrawn, it may also order that he or she cannot re-apply for accreditation (whether by his or her relevant accreditation body or by any other accreditation body) within such period (including the period of his or her lifetime) as may be specified by the Tribunal.
109ZB   Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Division.
109ZC   Appeals to Appeal Panel against decisions and orders of the Tribunal
An order or other decision made by the Tribunal under this Division may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.
109ZD   Duty of confidentiality of client communications
(1)  An accredited certifier must comply with a requirement under this Division to answer a question or to produce information or a document despite any duty of confidentiality in respect of a communication between the accredited certifier and a client (but only if the client is the complainant or consents to its disclosure).
(2)  An accredited certifier may disclose a matter to the relevant accreditation body or the Tribunal in breach of any such duty of confidentiality if the accreditation body or Tribunal is satisfied that it is necessary for the accredited certifier to do so in order to rebut an allegation in the complaint.
109ZE   Confidential information in statement of reasons
(1)  The Tribunal is not required to include confidential information in the statement of reasons given under section 89 or 117 of the Administrative Decisions Tribunal Act 1997. If a statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.
(2)  When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (1), the Tribunal must give a confidential information notice to the person.
(3)  A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.
(4)  This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.
109ZF   General provisions concerning disciplinary proceedings
(1)  If an accredited certifier has died:
(a)  a person cannot make a complaint against the accredited certifier, and
(b)  the accreditation body is not to investigate (or continue to investigate) a complaint made against the accredited certifier or to make an application to the Tribunal for a disciplinary finding against the accredited certifier, and
(c)  the Tribunal is not to determine an application for a disciplinary finding against the accredited certifier.
(2)  A complaint against an accredited certifier may be made and dealt with even though the accredited certifier’s accreditation has been withdrawn. For that purpose, a reference to an accredited certifier in this Division includes a reference to a person whose right to practise as an accredited certifier has been suspended or whose accreditation has been withdrawn.
(3)  Despite subsection (2), the accreditation body or the Tribunal may decide not to investigate or determine an application (or may decide to terminate an investigation or dismiss proceedings for an application) if the person to whom the investigation or application relates is no longer an accredited certifier.
Division 4 Offences
109ZG   Conflicts of interest
(1)  An accredited certifier must not issue a Part 4A certificate or complying development certificate in relation to any aspect of development:
(a)  if he or she has been involved in the preparation of the plans or specifications for that aspect of the development, or
(b)  if he or she has been involved in the carrying out of work on that aspect of the development, or
(c)  if he or she is the applicant for the certificate or is related to the applicant for the certificate, or
(d)  if he or she is associated with the council of the area in which the development is to be carried out, or
(e)  if he or she has a pecuniary interest in that or any other aspect of the development.
Maximum penalty: 200 penalty units.
(2)  An accredited certifier is related to another person for the purposes of this section if the accredited certifier:
(a)  is an employer, partner or employee of the other person, or
(b)  is a spouse, de facto partner (whether of the same or the opposite sex), sibling, parent or child of the other person, or
(c)  has a contractual arrangement with the other person that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.
(3)  An accredited certifier is associated with a council if he or she:
(a)  is a councillor or employee of the council, or
(b)  is related to a councillor or employee of the council, or
(c)  has a contractual arrangement with the council that might reasonably be seen to give rise to a conflict between the accredited certifier’s duties as an accredited certifier and the accredited certifier’s interests under the arrangement.
(4)  An accredited certifier has a pecuniary interest in an aspect of development if there is a reasonable likelihood or expectation of appreciable financial gain or loss to the person, or to a person to whom he or she is related, but does not have such an interest if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to that aspect of the development.
109ZH   False representations
(1)  A person who:
(a)  issues a Part 4A certificate or complying development certificate that he or she is not authorised by or under this Act to issue, or
(b)  makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate,
is guilty of an offence against this Act.
Maximum penalty: 300 penalty units.
(2)  An accredited certifier who falsely represents that he or she is a certifying authority or principal certifying authority in relation to any development is guilty of an offence against this Act.
Maximum penalty: 300 penalty units.