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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Current version for 13 September 2019 to date (accessed 12 November 2019 at 09:24)
Part 8 Division 5
Division 5 General
161   Certifying authorities may be satisfied as to certain matters: section 109O
(cf clause 79V of EP&A Regulation 1994)
(1)  This clause applies to the following matters—
(a)  any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land—
(i)  earthwork,
(ii)  road work, including road pavement and road finishing,
(iii)  stormwater drainage work,
(iv)  landscaping work,
(v)  erosion and sedimentation control work,
(vi)  excavation work,
(vii)  mechanical work,
(viii)  structural work,
(ix)  hydraulic work,
(x)  work associated with driveways and parking bays, including road pavement and road finishing,
(b)  any matter that relates to the external finish of a building.
(2)  Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.
162   Notice of replacement of principal certifying authority
(1)  A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days after the appointment.
(2)  Nothing in this clause requires any notice to be given to a person who has agreed to, or been notified of, the proposed appointment under section 109EA of the Act.
(3)  Clause 103 applies to a notice given for the purposes of this clause in the same way as it applies to a notice given under or for the purposes of section 81A (2) (b1) (i) or (4) (b1) (i) of the Act.
(4)  In addition to the information required by subclause (3) to be included in a notice under this clause, the following information is to be included—
(a)  the name of the former principal certifying authority who has been replaced,
(b)  a statement that the former principal certifying authority agreed to be replaced.
162A   Critical stage inspections required by section 109E (3) (d)
(1)  For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.
Note.
 These inspections are the critical stage inspections.
(2)  Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.
(3)  The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.
(4)  In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are—
(a)    (Repealed)
(b)  after excavation for, and prior to the placement of, any footings, and
(c)  prior to pouring any in-situ reinforced concrete building element, and
(d)  prior to covering of the framework for any floor, wall, roof or other building element, and
(e)  prior to covering waterproofing in any wet areas, and
(f)  prior to covering any stormwater drainage connections, and
(g)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(4A)  However, in the case of a class 1 or 10 building, an inspection on an occasion described in subclause (4) (a)–(f) that occurs before 1 July 2005 is not prescribed for the purposes of section 109E (3) (d) of the Act if—
(a)  the inspection is carried out by a person considered by the principal certifying authority to be suitably qualified to carry out the inspection (but who is not necessarily an accredited certifier) and employed, or nominated for the purpose of carrying out the inspection, by the principal certifying authority, and
(b)  the person would not be disqualified by section 109ZG of the Act (except by subsection (1) (d) or (1A) of that section) from issuing a Part 4A certificate in relation to any aspect of the development concerned.
(c)  the person makes a record of each inspection carried out by him or her, and provides a copy of that record to the principal certifying authority, as required by clause 162B for a critical stage inspection or any other inspection required by the principal certifying authority.
(5)  In the case of a class 2, 3 or 4 building, the occasions on which building work must be inspected are—
(a)  prior to covering of fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread, inspection of a minimum of one of each type of protection method for each type of service, on each storey of the building comprising the building work, and
(a1)  prior to covering the junction of any internal fire-resisting construction bounding a sole-occupancy unit, and any other building element required to resist internal fire spread, inspection of a minimum of 30% of sole-occupancy units on each storey of the building containing sole-occupancy units, and
(b)  prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and
(c)  prior to covering any stormwater drainage connections, and
(d)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(6)  In the case of a class 5, 6, 7, 8 or 9 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are—
(a)  in relation to a critical stage inspection of a class 9a and 9c building, as defined in the Building Code of Australia—prior to covering of fire protection at service penetrations to building elements that are required to resist internal fire or smoke spread, inspection of a minimum of one of each type of protection method for each type of service, on each storey of the building comprising the building work, and
(b)  prior to covering any stormwater drainage connections, and
(c)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(7)    (Repealed)
(7A)  Inspections of building work must be made on the following occasions in addition to those required by the other provisions of this clause for the building work—
(a)  in the case of a swimming pool, as soon as practicable after the barrier (if one is required under the Swimming Pools Act 1992) has been erected,
(b)  in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after the commencement of the excavation for, and before the placement of, the first footing.
(8)  This clause does not prescribe any occasion on which a manufactured home or dwelling built off the site in sections and transported to the site for assembly is required to be inspected.
162AB   Critical stage inspections and other matters for certain structures at Ports Botany and Kembla and Port of Newcastle
(1)  This clause applies to any building work on land to which State Environmental Planning Policy (Three Ports) 2013 applies if that work results in a structure that—
(a)  does not have a classification under the Building Code of Australia, or
(b)  is, or is of a kind, declared by the Planning Secretary (by notice published in the Gazette) to be a structure to which this paragraph applies.
(2)  A principal certifying authority (PCA) for building work to which this clause applies is required to carry out (or to be satisfied that another certifying authority has carried out) inspections in respect of that work on the occasions specified by this clause (and on such other occasions as may be required by the PCA) before the use of the structure may commence.
(3)  The occasions on which inspections (critical stage inspections) must be carried out are—
(a)  after excavation for, and prior to the placement of, any footings, and
(b)  prior to pouring any in-situ reinforced concrete building element, and
(c)  on completion of the building work.
(4)  Except as provided by subclause (5), the critical stage inspections may be carried out by the PCA or, if the PCA agrees, by another certifying authority.
(5)  The critical stage inspection required to be carried out on completion of the building work must be carried out by the PCA.
(6)  Before carrying out that critical stage inspection, the PCA is required to be satisfied that the PCA has been provided with all certificates that the PCA is required to be provided with as a condition, under State Environmental Planning Policy (Three Ports) 2013, of any complying development certificate authorising the building work.
162B   Record of inspections conducted under section 109E (3) of the Act and clauses 162A and 162AB
(1)  A certifying authority (whether or not a principal certifying authority) must make a record of each of the following inspections carried out by the certifying authority—
(a)  each critical stage inspection under clause 162A or 162AB, and
(b)  each inspection carried out because it was required by the principal certifying authority under section 109E (3) (d) of the Act or clause 162AB.
(2)  Any certifying authority who is required to make such a record but is not the principal certifying authority for the work concerned must, within 2 days after the record is made, provide a copy of the record to the principal certifying authority for the work.
Note.
 Copies of these records must be kept for at least 15 years (see the regulations made under the Building Professionals Act 2005).
(3)  Each record of an inspection required by this clause must be made as soon as practicable after the inspection is carried out.
(4)  The record must include details of—
(a)  the registered number of the development application and of the construction certificate or complying development certificate, and
(b)  the address of the property at which the inspection was carried out, and
(c)  the type of inspection, and
(d)  the date on which it was carried out, and
(e)  the identity of the certifying authority by whom the inspection was carried out, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate, and
(e1)  if the certifying authority by whom the inspection was carried out is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate, and
(f)  whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.
162C   Progress inspection unavoidably missed
(1)  If the circumstances described in subclause (2) apply—
(a)  an inspection, other than a final inspection, that would be prescribed for the purposes of section 109E (3) (d) of the Act in the absence of this clause, is not prescribed for the purposes of that paragraph, and
(b)  an inspection that is not prescribed for the purposes of that paragraph, but is required to be carried out by the principal certifying authority under that paragraph, need not be carried out.
(1A)  If the circumstances described in subclause (2) apply, an inspection, other than a final inspection, that is required to be carried out under clause 162AB need not be carried out.
(2)  The circumstances are—
(a)  the inspection was missed because of circumstances that the principal certifying authority considers were unavoidable, and
(b)  the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and
(c)  the principal certifying authority, as soon as practicable after becoming aware of the circumstances that caused the inspection to be missed, makes a record in accordance with subclause (3).
(3)  The record of a missed inspection must include the following—
(a)  a description of the development to which the record relates and of the class of the building concerned,
(b)  the address and land title particulars (such as the Lot and DP numbers) of the property concerned,
(c)  the registered number of the development consent and the construction certificate or of the complying development certificate,
(d)  the name and accreditation number of the principal certifying authority,
(e)  the name, address and telephone number of the principal contractor or owner builder and, if that person is required to be the holder of a licence or permit, the number of that licence or permit,
(f)  particulars of the inspection that was missed and of the circumstances that the principal certifying authority considers were unavoidable that caused it to be missed,
(g)  a statement that the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory,
(h)  the documentary evidence that was relied on to satisfy the principal certifying authority that the work that would have been the subject of the missed inspection was satisfactory, including (but not limited to) documentary evidence of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia.
(4)  Within 2 days after a person who is not the principal certifying authority becomes aware that an inspection described in subclause (1) that was required to be carried out by him or her has been missed, he or she must inform the principal certifying authority of that fact and of the circumstances causing the inspection to be missed.
(5)  Within 2 days after becoming aware that an inspection, other than a final inspection, has been missed, the principal certifying authority—
(a)  must notify that fact to the person who appointed the principal certifying authority and in the case of work for which a principal contractor is required to be appointed, the principal contractor or, in the case of work being done by an owner builder, the owner builder, and
(b)  must send a copy of the record made under this clause to the person who appointed the principal certifying authority.
(6)  In this clause, final inspection means an inspection described in clause 162A (4) (g), (5) (d) or (6) (c) or 162AB (3) (c).
162D   Council to be notified of significant fire safety issues
(1)  A certifying authority is required to give written notice to the council in accordance with this clause if—
(a)  an application has been made to the certifying authority for a Part 4A certificate affecting an existing building, and
(b)  the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and
(c)  at any time between the application being received and the issue of the Part 4A certificate, the certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building.
(2)  A principal certifying authority is required to give written notice to the council in accordance with this clause if—
(a)  the principal certifying authority has been appointed under section 109E of the Act in relation to building work affecting an existing building, and
(b)  the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and
(c)  at any time between the appointment under section 109E and the issue of an occupation certificate in respect of the building work, the principal certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with the building.
(3)  The notice—
(a)  must describe the fire safety issue and the parts of the building affected by the issue, and
(b)  must be made within 2 days after the certifying authority or principal certifying authority becomes aware of the fire safety issue.
(4)  However, the certifying authority or principal certifying authority is not required to give notice if the fire safety issue is being addressed—
(a)  by a fire safety order, or
(b)  by development that affects the building, being development that is the subject of a development consent (including a complying development certificate) or a construction certificate.
(5)  To avoid doubt, this clause extends to a council that is a certifying authority or principal certifying authority.
163   Notice to allow inspections
To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before each required inspection needs to be carried out.
164   No need for duplicate notices
(cf clause 79Y of EP&A Regulation 1994)
Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.
164A   BASIX certificates
(1)  The Planning Secretary may issue certificates (BASIX certificates) in relation to the sustainability of any proposed BASIX affected development and any proposed BASIX optional development.
(2)  Without limiting subclause (1), a BASIX certificate may be issued by means of a computerised system, as approved from time to time by the Planning Secretary, being a system to which members of the public are given on-line access, whether over the internet or otherwise.
(3)  The relevant application need only be accompanied by one BASIX certificate.
(3A)  Subclause (3) does not apply to development that involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling.
Note.
 See Schedule 1, clauses 2A, 4A and 6A which require separate certificates for each dwelling.
(4)  A BASIX certificate must contain the following—
(a)  a description of the proposed development, corresponding in all relevant respects with the description contained in—
(i)  the relevant application, and
(ii)  any relevant accompanying documents,
(b)  a detailed list of the commitments that the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development),
(c)  a statement to the effect that the proposed development will meet the Government’s requirements for sustainability if the applicant’s commitments are fulfilled.
(4A)  In the case of a development that involves the erection of a building for both residential and non-residential purposes, or the change of use of a building to both residential and non-residential purposes, the description referred to in subclause (4) (a) need only include information concerning the part of the development that is intended to be used for residential purposes.
(5)  In this clause—
accompanying document means any document required to accompany an application pursuant to clause 2, 4 or 6 of Schedule 1.
application means—
(a)  a development application, application for a complying development certificate or application for a construction certificate, or
(b)  an application for modification of a development consent, complying development certificate or construction certificate.
sustainability, in relation to proposed development, means the capacity of the development—
(a)  to reduce consumption of mains-supplied potable water, and
(b)  to reduce emissions of greenhouse gases, and
(c)  to perform in a thermally efficient manner.
164B   Certain building work on fire safety systems may be exempt from compliance with the BCA standards
(1)  A person may lodge with the certifying authority an objection that compliance with any specified provision of the Building Code of Australia that relates to the operational performance of a relevant fire safety system is unreasonable or unnecessary in the particular circumstances of the case.
(2)  A person may lodge an objection under this clause only if the person has, or will have, the benefit of—
(a)  a complying development certificate subject to a condition under clause 136AA in relation to building work involving the minor modification or extension of any relevant fire safety system, or
(b)  a construction certificate subject to a condition under clause 146B in relation to building work involving the minor modification or extension of any relevant fire safety system.
(3)  The objection must specify the grounds of the objection and must furnish the certifying authority with a copy of the plans and specifications for the building work.
(4)  If the certifying authority is satisfied that an objection is well founded, it may exempt the building work, either conditionally or unconditionally, from any specified provision of the Building Code of Australia.
(5)  A certifying authority may only exempt the building work if—
(a)  the non-compliance with the Building Code of Australia relates only to the operational performance of the relevant fire safety system, and
(b)  the certifying authority is satisfied that the non-compliance will not reduce the operational performance of the relevant fire safety system, and
(c)  a competent fire safety practitioner (other than the competent fire safety practitioner who prepared the plans and specifications) has endorsed the non-compliance, and
(d)  a fire safety certificate or fire safety statement that relates to or includes the fire safety system being modified or extended was issued for the building no more than 6 months before the objection was made.
Note.
 If the certifying authority exempts compliance with the Building Code of Australia under this clause, the exemption must be detailed in the terms of the complying development certificate or construction certificate (see clauses 134 and 147, respectively).
(6)  This clause does not apply to building work that is required by a fire safety order.
(7)  In this clause—
relevant fire safety system means any of the following—
(a)  a hydraulic fire safety system within the meaning of clause 165,
(b)  a fire detection and alarm system,
(c)  a mechanical ducted smoke control system.