This article considers a question regarding the ability for Principal Certifiers to delegate their inspections to others.
The question is:
Do Principal Certifiers have the power to delegate the carrying out of inspections to people who are not Certifiers?
The answer is no.
There is a limited ability in the EPA Act which allows Principal Certifiers to select and grant approval for another Certifier to carry out an inspection. However, there is no power under the Environmental Planning and Assessment Act 1979 (EPA Act) that allows a Principal Certifier to delegate the carrying out of inspections to people who are not Certifiers.
If a Principal Certifier allows a person who is not a Certifier to carry out an inspection on their behalf, and damage is caused as a result of the actions of the person, then there may be insurance and liability consequences for the Principal Certifier.
The relevant section relating to inspections was previously section 109E of the EPA Act which relevantly stated (with emphasis added):
Principal certifying authorities
(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and…
Following changes made to the EPA Act in 2018, the relevant section is now section 6.5 of the EPA Act which similarly states (with emphasis added):
6.5 Functions of certifiers (including principal certifiers)
(1) A certifier has the following functions in relation to building work—
(a) issuing construction certificates for building work,
(b) carrying out inspections of building work (but only if the certifier is the principal certifier or the inspection is carried out with the approval of the principal certifier),
(c) issuing occupation certificates (but only if the certifier is the principal certifier),
(d) issuing compliance certificates (but only if the certifier is the principal certifier when the certificate is an authorised alternative to an occupation certificate).
(2) A certifier has the following functions in relation to subdivision work—
(a) issuing subdivision works certificates for subdivision work,
(b) carrying out inspections of subdivision work (but only if the certifier is the principal certifier or the inspection is carried out with the approval of the principal certifier).
Observations from the Court
In Northern Residential Pty Limited v Newcastle City Council, the New South Wales Supreme Court of Appeal considered this issue and had the following observations:
“There is force in the consideration that, in cases such as the present, the failure of a private principal certifying authority [now known as Principal Certifiers] to comply with s 109E(3)(d) [now section 6.5 of the EPA Act] could result in roads and drainage works being completed to an unsatisfactory standard, and that would be detrimental to the public and particularly detrimental to a council that has to take over responsibility for maintenance of those works…”
“…the requirements of s 109E(3)(d) apply to all subdivisions and all principal certifying authorities, whether they be the consent authorities themselves or private… there would be a remedy against the principal certifying authority, not merely be way of disciplinary proceedings but also by civil action for damages…”
“…if it be the case that the principal certifying authority has not ensured that the inspections be carried out by the principal certifying authority or another certifying authority… there will be fault in the principal certifying authority…”
“…where there is a statutory provision such as s 109E(3)(d) which imposes a duty on a person to do something and requires it to be done by that person or by another category of person at the selection of the first person, the latter cannot… delegate the performance to another outside that category; and if the person does this, and damage is caused by the negligence of the delegate, the person making this unauthorised delegation [i.e. the Principal Certifier] will be liable for breach…”