Environmental Planning and Assessment Regulation 2000
Current version for 15 May 2020 to date (accessed 7 June 2020 at 16:55)
Part 8 Division 5
Division 5 General
161   Certifiers may be satisfied as to certain matters
(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 certifier is satisfied as to that matter.
161A   Directions by principal certifiers as to non-compliance with aspects of development—section 6.31 of Act
(1)  Section 6.31 of the Act applies in relation to the carrying out of works otherwise than in accordance with a development consent or complying development certificate, including any approved plans and development consent conditions.
(2)  However, section 6.31 of the Act does not apply in relation to non-compliance identified during a critical stage inspection or during an inspection under this clause.
(3)  Any notice containing a direction by a principal certifier under section 6.31 of the Act is to be in the form approved by the Planning Secretary and be issued within 2 business days of the certifier becoming aware of the non-compliance concerned.
(4)  The notice is to specify a period in which the direction must be complied with (the compliance period).
(5)  A principal certifier who issues a direction under section 6.31 of the Act must, at the end of the compliance period, inspect the site to which the direction relates to assess whether the direction has been complied with.
(6)  The principal certifier must make a record of the inspection and provide a copy of the record to the person responsible for carrying out the aspect of the development to which the non-compliance relates.
(7)  The inspection record must include the following information—
(a)  the address of the site at which the inspection was carried out,
(b)  the date on which the inspection was carried out,
(c)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,
(d)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is a body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,
(e)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is a body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,
(f)  details as to whether or not the direction has been complied with.
(8)  The period prescribed for the purposes of section 6.31(2) of the Act is the period of 2 days after the inspection is carried out.
Note.
 Under section 6.31(2) of the Act, the principal certifier who issues a direction is to notify the consent authority if the direction has not been complied with.
(9)  A copy of any notification under section 6.31(2) of the Act that a direction has not been complied is to be given to the owner of the land (including an owners corporation) to which the direction relates.
161B   General duties of principal certifiers
A principal certifier for building work or subdivision work to be carried out on a site is required to be satisfied—
(a)  before the work commences on the site—that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifier has control, and
(b)  before any residential building work over which the principal certifier has control commences on the site—that the principal contractor for the work is, if required by the Home Building Act 1989, the holder of the appropriate licence and is covered by the appropriate insurance (unless the work is to be carried out by an owner-builder), and
(c)  before an owner-builder commences on the site any residential building work over which the principal certifier has control—that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, and
(d)  before the principal certifier issues an occupation certificate or subdivision certificate for the building or work—that building work or subdivision work on the site has been inspected by the principal certifier or another certifier on such occasions as are required by this Regulation and on such other occasions as may be required by the principal certifier, and
(e)  before the principal certifier issues an occupation certificate or subdivision certificate for the work—that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of the occupation certificate or subdivision certificate have been met.
162   Replacement of principal certifier
(1)  In this clause and in clause 162AA—
Registration Authority means the Building Professionals Board or, following the commencement of the Building and Development Certifiers Act 2018, the Secretary within the meaning of that Act.
(2)  A person may not be appointed to replace another person as the principal certifier for building work or subdivision work unless—
(a)  the Registration Authority so approves in writing and the relevant council and consent authority are notified before the replacement occurs, or
(b)  the current principal certifier, the proposed principal certifier and a person who is eligible to appoint a principal certifier for the work agree.
(3)  An application to the Registration Authority for approval under subclause (2), or a notification under that subclause, is to be accompanied by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 or the Building and Development Certifiers Act 2018 and is to be in a form approved by that Authority.
(4)  If the Registration Authority approves the appointment of the relevant council to replace another person as the principal certifier under subclause (2)(a), the council must accept that appointment.
(5)  A principal certifier for building work or subdivision work appointed to replace another certifier for the work 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.
(6)  Clause 103 applies to a notice given for the purposes of this clause in the same way as it applies to a notice given for the purposes of section 6.6(2)(a) or 6.12(2)(a) of the Act.
(7)  In addition to the information required by subclause (6) to be included in a notice under this clause, the following information is to be included—
(a)  the name of the former certifier who has been replaced,
(b)  a statement that the former certifier agreed to be replaced.
(8)  A person is not required to give a notice under this clause to a person who has agreed to, or been notified of, the proposed appointment.
162AA   Provision of information to replacement principal certifiers
(1)  This clause applies when a principal certifier (the new principal certifier) has been appointed to replace another principal certifier (the old principal certifier).
(2)  The new principal certifier may request the Registration Authority in writing to give a direction under this clause if the new principal certifier is unable to obtain the prescribed information from the old principal certifier in relation to the matter for which the new principal certifier has been appointed.
(3)  The Registration Authority may give a direction in writing to any of the following persons to provide the prescribed information, or a copy of that information, to the new principal certifier within the period specified in the notice—
(a)  the old principal certifier,
(b)  a person whom the Registration Authority reasonably believes has possession of that information.
(4)  A person must not, without reasonable excuse, fail to comply with a direction given to the person by the Registration Authority under this clause.
(5)  It is not a reasonable excuse for the purposes of subclause (4) that any person has a claim to a lien over any document or record that is prescribed information or any other right to keep such a document or record as security for payment.
(6)  In this clause, prescribed information means the following—
(a)  if the old principal certifier is not a council, the documents and records required to be kept under section 60 of the Building Professionals Act 2005 by an accreditation holder, or required to be kept under the Building and Development Certifiers Act 2018 by a registration holder, in relation to the matter concerned,
(b)  if the old principal certifier is a council, the information required to be provided to the Registration Authority under section 74B of the Building Professionals Act 2005, or under a provision of the Building and Development Certifiers Act 2018, in relation to the person who performed the certification work concerned on behalf of the council and the records required to be kept under that section or provisions by the council in relation to the matter concerned.
162A   Critical stage inspections for building work
(1)  Building work must be inspected on the occasions set out in this clause. Those inspections are critical stage inspections for the purposes of this Regulation.
(2)  Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifier or, if the principal certifier agrees, by another certifier.
(3)  The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifier.
(4)  In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifier 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)    (Repealed)
(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 certifier 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 apply in relation to 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 certifier (PC) for building work to which this clause applies is required to carry out (or to be satisfied that another certifier 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 PC) 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 PC or, if the PC agrees, by another certifier.
(5)  The critical stage inspection required to be carried out on completion of the building work must be carried out by the PC.
(6)  Before carrying out that critical stage inspection, the PC is required to be satisfied that the PC has been provided with all certificates that the PC 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 critical stage and other inspections
(1)  A certifier (whether or not a principal certifier) must make a record of each of the following inspections carried out by the certifier—
(a)  each critical stage inspection under clause 162A or 162AB, and
(b)  each inspection carried out because it was required by the principal certifier under clause 162AB.
(2)  Any certifier who is required to make such a record but is not the principal certifier for the work concerned must, within 2 days after the record is made, provide a copy of the record to the principal certifier 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 certifier by whom the inspection was carried out, including, in a case where the certifier 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 certifier by whom the inspection was carried out is an accredited certifier, the accreditation number of the certifier, including, in a case where the certifier 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 certifier who carried it out.
162C   Progress inspection unavoidably missed
(1)  If the circumstances described in subclause (2) apply, an inspection (other than a final inspection) that is required to be carried out under this Part need not be carried out.
(1A)    (Repealed)
(2)  The circumstances are—
(a)  the inspection was missed because of circumstances that the principal certifier considers were unavoidable, and
(b)  the principal certifier is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and
(c)  the principal certifier, 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 certifier,
(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 certifier considers were unavoidable that caused it to be missed,
(g)  a statement that the principal certifier 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 certifier 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 A5, clause A5.2, of the Building Code of Australia.
(4)  Within 2 days after a person who is not the principal certifier 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 certifier 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 certifier—
(a)  must notify that fact to the person who appointed the principal certifier 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 certifier.
(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 certifier is required to give written notice to the council in accordance with this clause if—
(a)  an application has been made to the certifier for a certificate under Part 6 of the Act 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 certificate, the certifier becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building.
(2)  A principal certifier is required to give written notice to the council in accordance with this clause if—
(a)  the principal certifier has been appointed under section 6.6(1) 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 6.6(1) and the issue of an occupation certificate in respect of the building work, the principal certifier 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 certifier or principal certifier becomes aware of the fire safety issue.
(4)  However, the certifier or principal certifier 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 certifier or principal certifier.
163   Notice to allow inspections
To allow a principal certifier or another certifier time to carry out critical stage inspections or any other inspections required by the principal certifier, the principal contractor for a building site, or the owner-builder, must notify the principal certifier 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 certifier 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 certifier 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 certifier with a copy of the plans and specifications for the building work.
(4)  If the certifier 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 certifier 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 certifier 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 certifier 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.
164C   Interpretation
Words and expressions used in this Part that are defined in Part 6 of the Act have the same meanings they have in that Part.