Registered certifier
Christopher de Wit
Licence/registration number
BDC1913
Date of decision
10 May 2024
Disciplinary ground and summary
- under section 45(d) of the BDC Act - the Registered Certifier failed to comply with a statutory duty imposed on the Registered Certifier by, or in accordance with, a law of the jurisdiction with respect to the carrying out of certification work;
- under sections 45(c)(i) and 45(c)(iii) of the BDC Act - the Registered Certifier contravened a law of this jurisdiction with respect to the carrying out of certification work, and dishonesty.
Ground 1
Section 4.28(3)(a) of the EP&A Act creates a statutory obligation on a registered certifier, when considering an application for a complying development certificate (CDC), to determine whether the proposed development is a complying development. The Registered Certifier breached section 4.28(3)(a) of the EP&A Act because he contravened:
- section 1.191.1(c) of the SEPP, when he issued two (2) CDCs in relation to a property that was identified as class 2 on the Acid Sulfate Soils Map, and was therefore not a complying development;
- section 1.18(1) of the SEPP, when he issued two (2) CDCs which did not contain any plans or drawings for proposed swimming pools. Consequently, he was not able to determine that the proposed developments were compliant with Part 2.1.1 of the BCA, and therefore whether they were complying developments;
- section 1.18(1) of the SEPP, when he issued five (5) CDCs, all of which did not contain any plans or drawings for smoke alarms at the proposed developments. Consequently, he was not able to determine that the proposed developments were compliant with Part 3.7.5 of the BCA, and therefore whether they were complying developments;
- section 3.25 of the SEPP, when he issued a CDC which did not contain sufficient information to determine the height of the building. Consequently, he was not able to determine that the proposed development was a complying development;
- section 3.11 of the SEPP, when he issued a CDC which indicated that the width of the building was greater than 50% of the width of the rear boundary of the property, and was therefore not a complying development:
- section 3.25(9) of the SEPP, when he issued a CDC which did not contain any plans or drawings for a privacy screen on W08 and therefore was not a complying development;
The Registered Certifier did not comply with his duty under clause 19 of the EPA DSFS when he issued two (2) construction certificates (CCs) in circumstances where he was not able to determine that the proposed developments were compliant with Part 3.7.5 of the BCA, because neither CC contained any plans or drawings for smoke alarms at proposed developments.
The Registered Certifier did not comply with his duty under clause 20 of the EPA DSFS when he issued a CC that did not contain a flood hazard report, such report having been required by the development consent.
Ground 2
45(c)(i) of the BDC Act
The Registered Certifier contravened section 6.8 of the EP&A Act when he issued a CC containing drawings and plans that were inconsistent with the development consent and when condition of the development consent had not been complied with.
The Registered Certifier’s registration was restricted to class 1 and 10 buildings only. He contravened section 5 of the BDC Act when he incorrectly classified a building as being a class 10a building, in circumstances where the building was neither a class 1 or 10 building, and he was not authorised to certify any other class of building.
The Registered Certifier contravened section 6.10(1) of the EP&A Act when he issued two (2) occupation certificates (OCs) when preconditions for the issue of the OCs had not been complied with.
The Registered Certifier contravened section 6.10(2)(d) of the EP&A Act when he issued two (2) OCs in circumstances where clause 154(1)(a) of the EP&A regulation had not been complied with, namely that the buildings may have constituted a hazard to the health and safety of occupants.
The Registered Certifier contravened clause 151(2) of the EP&A Regulation when he issued two (2) OCs but failed to uploaded the appropriate documentation to the NSW Planning Portal within two days.
45(c)(iii)
The Registered Certifier provided an OC to the owner of a development, knowing that the OC did not contain a schedule of documents upon which he had made his determination, in contravention of section 44(1)(a) of the BDC Act and 307C of the Crimes Act NSW.
The Registered Certifier breached the Code of Conduct by issuing an incomplete OC (as referred to above), in circumstances where he did not act impartially.
The contraventions under 45(c)(iii) were isolated, at the lower end of objective seriousness, and the Registered Certifier demonstrated mitigatory circumstances both in respect of the contravention of 45(c)(iii) of the BDC Act, as well as his overall conduct which was considered in determining the Disciplinary Action taken.
BDC Act – Building and Development Certifiers Act 2018 NSW
EP&A Act – Environmental Planning and Assessment Act 1979
EP&A Regulation - Environmental Planning and Assessment Regulation 2000
EPA DSFS - Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021
SEPP – State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Disciplinary action
- pursuant to section 48(1)(b) of the BDC Act, reprimand the Registered Certifier with immediate effect; and
- make a determination pursuant to section 48(1)(c) of the BDC Act requiring the Registered Certifier to pay the Secretary, as a penalty, an amount of $60,000.00 within the time specified on the face of the penalty notice; and
- pursuant to section 48(1)(d) of the BDC Act, impose the following conditions on the registration of the Registered Certifier for a period of four (4) years from the date of imposition of this condition and with immediate effect:
1) The Registered Certifier must complete and pass the University of Technology Certification Short Course;
2) The Registered Certifier must not enter into any new contracts for the delivery of services as a registered certifier or provide consent to be appointed as a principal certifying authority for any development, until completion and passing of the course set out in 1) above;
3) The Registered Certifier is required to:
a. for each development where the certifier is exercising a function as a registered certifier create and store an index, in electronic format, of all records relied upon in relation to exercising the Registered Certifier’s functions as a registered certifier as it relates to that development (each version of a record should be separately identified by the date of the version of the record);
b. store each record in electronic format in an electronic records management storage system and title each record consistently with the title adopted in the index referred to in condition (3)(a);
c. implement a documented compliance management system by 31 July 2024 to ensure that the Registered Certifier complies with all relevant legislative obligations in relation to the Registered Certifier’s operations as they relate to carrying out functions as a registered certifier. The documented compliance management system is to meet the requirements of ISO 9001:2015 – Quality management systems.
d. by 31 October 2024, and on an annual basis, thereafter, to engage a professional auditor to audit compliance with condition (3)(a) to (3)(c) above, and produce a report in relation to the following:
i. whether the documented compliance management system will ensure the Registered Certifier’s operations comply with the Registered Certifier’s legislative obligations under Part 7 of the Building Development Certifiers Regulation 2000 and the registered certifiers Code of Conduct if implemented;
ii. whether the documented compliance management system is being implemented in practice by the Registered Certifier;
iii. whether there are best practice improvements that can be made to the Registered Certifier’s documented compliance management system and a description of those improvements; and Store and retain records of compliance with conditions (1), (2), and (3) above and provide those records on request by the Secretary within 5 business days.
To take effect immediately.