NSW Government confirms that design and annual assessment require accreditation

Posted on : Wednesday, 8 July 2020

Practitioners have recently raised concerns about the interpretation of  clause 65 of the Building and Development Certifiers Regulation 2020 (the Regulation).  

 

This clause was introduced by the Department of Customer Service to ensure that regulated work could continue to be carried out in circumstances where no accreditation scheme was in place, so that the industry didn't grind to a halt.  

 

The concerns related to the following subclause:  

 

(1)  For the purposes of section 120(4) of the Act, regulated work referred to in paragraph (a) or (b) may be carried out by a person other than a person who holds an accreditation that authorises the person to carry out the regulated work, if-

(a)  in the case of the exercise of a function of an accredited practitioner (fire safety) under clause 130, 136AA, 144A, 146B or 164B of the Planning Regulation, the relevant registered certifier or principal certifier certifies in writing (a competency certificate) that in the reasonable opinion of the certifier the person is competent to carry out the regulated work, or
(b)  in the case of the exercise of a function of an accredited practitioner (fire safety) under Divisions 4 and 5 of Part 9 of the Planning Regulation, the relevant building owner certifies in writing that in the reasonable opinion of the owner the person is competent to carry out the regulated work.

 

This led some to interpret that building owners or certifiers could authorise someone to carry out regulated fire systems design or fire safety assessment work if they had the reasonable opinion that the person was competent.  

 

However, this must be read with regard to subclause (3) of clause 65, which states:  

 

(3)  For the purposes of section 120(4) of the Act, regulated work may be carried out by a particular appropriate person if-


(a)  the Secretary is satisfied that there is no person reasonably available who holds an accreditation that authorises the person to carry out the regulated work, and

(b)  the Secretary-

(i)  in writing, authorises a particular building owner, registered certifier or principal certifier to appoint an appropriate person to carry out the regulated work, or

(ii)  by notice in the Gazette, authorises a class of building owners, registered certifiers or principal certifiers to appoint an appropriate person to carry out regulated work of that kind, and

(c)  a building owner or certifier who is so authorised, appoints the particular appropriate person in accordance with the authorisation.

 

Subclause (1) CANNOT be read in isolation from subclause (3).  

 

To put these concerns to rest, Fire Protection Association Australia (FPA Australia) contacted the Department of Customer Service for a ruling.  

 

The Department advised that (our emphasis):  

 

It is our view that building owners and certifiers cannot certify non-accredited persons as being competent to exercise the functions of an accredited practitioner (fire safety) and appoint them to carry out regulated work without the Secretary:  

 

a) being satisfied that there are no accredited persons reasonably available and authorised to carry out the regulated work; and 

 

b) providing authorisation to building owners and certifiers, either individually or by class, under clause 65(3)(b) of the BADC Regulation.  

 

In other words, to carry out Fire Systems Design or Fire Safety Assessment, a fire safety practitioner still needs to be accredited under FPA Australia's Fire Protection Accreditation Scheme (FPAS).  

 

To read a copy of the Government's letter, click here.  

 

For more information about the recognition of FPAS by the NSW Government, click here.