Who is responsible – the PCA or Certifier?

This article is in response to a great question asked on LinkedIn.

The question is:

Whats your view if the appointed PCA does not agree with the validity of a CC issued by a different certifying authority mainly due to non-compliances with the BCA? Does the PCA have a role to recheck the CC and accompanied paperwork to ensure its validity or should they just accept it and get on with the inspections? To issue the OC, the PCA must be satisfied that the building is safe to occupy under it’s BCA classification. Who is at fault when a non-complaint building is issued with the OC however it was consistent with a wrongly issued CC? The certifying authority or the PCA who issued the OC?

(For those who would like further information on PCAs/certifying authorities, click here)

What should the PCA do? 

If a Principal Certifying Authority (PCA) is concerned about the validity of a construction certificate (CC) issued by a certifying authority, it is best for the PCA to discuss their concerns directly with the certifying authority in the first instance. If the PCA is still concerned, they may want to raise their concerns with the Building Professionals Board (BPB) (who are responsible for accreditation and regulation of certifiers) or the local council (who have statutory powers to intervene). Any person can take action in the New South Wales Land and Environment Court, but this generally would be only as a last resort.

Is the PCA liable if they rely on a CC?

Section 109P of the Environmental Planning and Assessment Act 1979 (EPA Act) operates to limit the liability of PCAs who rely on CCs. A PCA is entitled to assume that a CC issued by a different certifying authority has been duly issued, that all required conditions have been complied with, and everything stated in the CC as “existing/having been done” is in fact so. Ultimately, this means that even if a CC is found later down the track to be invalid, the relevant PCA will be protected from law suits by third parties relating to the CC. 

What if the PCA issues an OC contrary to the BCA?

Under section 109H of the EPA Act, an occupation certificate (OC) cannot be issued unless:

  1. a development consent or complying development certificate is in force with respect to the building;

  2. in the case of a building erected pursuant to a development consent, a construction certificate has been issued with respect to the plans and specifications for the building;

  3. the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia (BCA); and

  4. such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

Point 2 above requires that the PCA is satisfied that a CC has been issued – as discussed, the PCA can rely on a CC issued by a different certifying authority, and is protected under section 109P of the EPA Act.

However, point 3 above specifically says that the PCA must also be satisfied building is suitable for occupation or use in accordance with its classification under the BCA. If the PCA is not satisfied that the building is safe to occupy under the BCA classification, then the PCA must not issue an OC. If they do, it is unlikely that section 109P of the EPA Act will provide any protection. There may be serious consequences for a PCA, for example, they may be subject to law suits, disciplinary findings by the BPB, and it is possible that the OC could be declared invalid by a court.

Other regulatory protections

It should also be noted that clauses 142(2) and 151(2) of the Environmental Planning and Assessment Regulation 2000 require that a certifying authority must notify the consent authority and the local council that a CC/OC has been issued within two days of making the determination. The consent authority and local council receive, among other things, the CC/OC determination, approved plans, specifications, any fire safety schedule (for a CC), and an inspection record. This means that the consent authority and the local council both have the opportunity to scrutinise the CC and accompanying documents to determine if there is a risk to public safety that might warrant intervention using their statutory powers (for example, powers under section 121B of the EPA Act).

It is also possible to take action in the New South Wales Land and Environment Court. Section 123 of the EPA Act allows for the consent authority, local council, or any other person to bring proceedings to the New South Wales Land and Environment Court to remedy or restrain a breach of the EPA Act. This includes breaches relating to CCs and OCs.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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