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© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Public Officials and Cer@fiers – What’s Their Fair Share of the Liability?
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Webinar, 1 December 2011
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Development Process in NSW
Obtain Occupa@on Cer@ficate
Appoint a Principal Cer@fying Authority (PCA)
Obtain Construc@on Cer@ficate
Obtain Development Consent (usually with condi@ons)
Submit Development Applica@on (DA)
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
About the PCA • A PCA is the only person who
can issue interim or final occupa@on cer@ficates
• PCA must be appointed before works commence
• PCA can be an accredited cer@fier, council or consent authority
• PCA inspects work during construc@on and at comple@on to ensure compliance with BCA
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Du@es of a PCA
• PCA should check builder is licenced
• PCA should ensure HOW insurance is in place
• PCA issues occupa@on cer@ficate
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
PCA Mandatory Inspec@ons
• Builder must advise PCA when inspec@ons required
• PCA must advise builder and person with benefit of development consent of issues iden@fied during inspec@on
• PCA may require compliance cer@ficates or expert reports at various stages
• PCA may rely on cer@ficates but must always undertake mandatory inspec@ons
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
PCA Mandatory Inspec@ons Cont. For class 2 buildings (a building containing 2 or more sole occupancy units each being a separate dwelling), Environmental Planning and Assessment Act Regula@ons require:
AZer commencement of excava@on and prior to
foo@ngs
Prior to covering of waterproofing in wet areas for a min 10% of rooms with wet areas within a building
Prior to covering any storm water drainage
connec@ons
AZer building work is completed and prior to occupa@on cer@ficate
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Other Obliga@ons of a PCA
• Duty of care in rela@on to advice provided and ac@on completed
• Must sa@sfy requirements of relevant authori@es
• Must avoid conflict of interest
• Can only exercise func@ons if covered by PI insurance
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
PCA PI Insurance Requirements
• Indemnifies against statutory liability
• Statutory liability is defined a a person’s liability to pay compensatory damages for breach of professional duty arising from any act or omission whilst ac@ng as a PCA
• Minimum coverage $1m
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Main Tasks of the Building Professionals Board
• Accredits cer@fiers • Promotes and maintains standards
• Inves@gates complaints and audits
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Categories of Accredita@on
• There are over 20 categories of accredita@on: – Building Surveying grades 1, 2 and 3 and Building Inspector
– Other categories typically used in strata schemes • Accredited cer@fier – structural engineering compliance • Accredited cer@fier – fire safety engineering compliance
• Each category has an accredita@on statement lis@ng the criteria to be sa@sfied
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Code of Conduct
• Code does not override relevant legisla@on
• Code sets standards of conduct and professionalism
• Failure to comply with code is unsa@sfactory professional conduct
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Disciplinary Case Examples
• Building Professionals Board v Cohen [2010] NSWADT 62
• Dix v Building Professionals Board [2010] NSWADT 160 (overturned on appeal to Supreme Court)
Both deal with failure to inspect
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
Thanks for abending our webinars
This was the last in our series of webinars for 2011. We would like to thank you all for joining us this year and we extend our best for the season to you all.
© Copyright 2011 Teys Lawyers www.teyslawyers.com.au
About The Presenter
TEYS Lawyers prac@ce na@onally in strata @tle law represen@ng owners corpora@ons, bodies corporate and apartment owners. The firm’s prac@ce groups include building defects, management rights, strata community disputes, by-‐laws and rules and levy and fee collec@on.
Subscribe for their free e-‐newsleber StrataSpace and find out more about them at www.teyslawyers.com.au
Chris worked for many years in leading commercial construc@on law prac@ces ac@ng for government, developers and contractors in disputes in the building, transport infrastructure and resources sectors. He has been involved in all forms of dispute resolu@on including li@ga@on, arbitra@on and alterna@ve dispute resolu@on in a range of jurisdic@ons in Australia. In the last few years, he has brought his specialist construc@on industry knowledge to the strata sector and now only acts for owners corpora@ons in a range of disputes in various jurisdic@ons.