Certification Short Course Notes

MODULE 9-A: SETTING UP AS A

CERTIFIER
Introduction

Registered Certifiers are subject to the same level of scrutiny as Government agencies (e.g. ICAC, the
Ombudsman). Furthermore, the nature of the role is such that technical processes are best formalised
and codified wherever possible. Individual certifiers need to be equipped with standard forms,
checklists, and contracts. The paper trail for each application, as it progresses through to finalisation,
must be established and maintained.

Module Outcomes

At the completion of this module, the participant will have the ability to establish and implement effective
business practices, including the ability to maintain documents and certification records, as relevant to
the category of accreditation (in accordance with legislative requirements).

Underpinning such practices is a knowledge and understanding of the role, responsibilities and
constraints involved in the work of a Certifier (relevant to the category of accreditation).

The accreditation scheme will also be discussed.

Module Plan

9.1 The Regulatory Framework

9.2 Legislative requirements
9.3 An application system: forms, contracts, checklist and fees
9.4 Mandatory and other records
9.5 File maintenance
9.6 Computer - based systems
9.7 Insurance
9.8 Standard Form of Contract

Module Length

One session of 1.0 hour

List of Attachments
A9.1 Part 7 – Building and Development Certifiers Act 2020
A9.2 Sample application forms
A9.3 Sample file categories
A9.4 Sample Fee Proposal – Example of certification terms and conditions
A9.5 Sample Fee Proposal – Example of general terms and conditions
A9.6 NSW Ombudsman - Complaints
A9.7 Managing complaints about development
A9.8 CBP Advice Regarding contract terms affecting liability
A9.9 Example contract review checklist

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9.1 The Regulatory Framework

Registered Certifiers are in effect “stepping into the shoes of Council”. They are putting on a
regulatory hat, so to speak. This regulatory hat is in addition to the professional approach
normally taken to work. It does involve a different way of thinking.

As previous modules have shown, a Registered Certifier needs a sound understanding of how
the EP&A Act 1979 and EP&A Regulation 2000, and BDC Act 2020 and BDC Regulation 2020
are required to be met or satisfied. Both Acts and Regulations set out a statutory and regulatory
framework which:

• Needs to be followed, and

• Require that there is sufficient evidence to show that it has been followed, with particular
reference to Schedule 5 clause 9 of the BDC reg (The Code of Conduct).

While much of the Registered Certifier’s role is involved in technical decision making and not the
merits of a development (this has been determined in either the grant of a development consent
or identified in the policy decision of categorising types of development as complying
development,) these technical decisions, as well as matters in the Act and Regulation, require
the exercising of discretion.

Exercising discretion, in the interest of the general public, requires transparency, hence the
need for clear documentation of how decisions were arrived at or Regulations followed. Cl 5 of
the Code of Conduct requires that these decisions and the reasons for them be documented.

In essence, when setting up a business offering Registered Certifier services, there is a need to
think like a regulator and put in place processes and quality systems that are similar to those in
a bureaucracy.

9.2 Legislative Requirements

While the EP&A Act 1979 sets out many of the technical requirements and “matters that must
be satisfied”, the more administrative type functions applying to a Registered Certifier are
found in the BDC Act 2020 and the BDC Reg 2020. These pieces of legislation set out:

• regulation specifically relevant to the business of a Registered Certifier

• auditing of Registered Certifiers and Councils
• investigation of complaints
• disciplinary procedures
• insurance requirements
• record keeping
• conflicts of interest
• also, matters relating to accreditation authorities, schemes and requirements for accredited
practitioners (not to be confused with registered certifiers)

These administrative legislative requirements need to be kept in mind when setting up a

business. This module deals with the implication of these provisions on record keeping.

Part 7 of the BDC Reg 2020 relates to “Record Keeping”.

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Cl 49 reads as follows:

49 Records generally
(1) This Division sets out the records that a registered certifier must keep for the
purposes of section 120(2)(c) of the Act.

(2) A record required to be kept by a registered certifier under this Division is required
to be kept—
(a) at the registered certifier’s business premises or in another secure place,
or
(b) in any other location or manner approved by the Secretary.

(3) A record must be kept surely and must be in a form that can be readily inspected.

Clauses 50-54 dictate the types of records that must be maintained for each type of
registration. Examples include:

• application for certificate

• written determination of a certificate
• any plans and specifications
• a register of Part 6 certificates issued on a yearly basis including various details such as
the owner of the land, name of the principal contractor, Council, cost of works etc.

A copy of Part 7 of the BDC Reg is at Attachment A10.1

It needs to be noted that records are required to be kept for a minimum of 10 years (clause
49(5).

9.3 An Application System

Many would be familiar with basic business practices and work in an organised business
environment. Even if this is the case, many would be aware from the Course content do date
that acting as a Certifier introduces a specific role and particular responsibilities.

For instance, and firstly, the business needs to think about how an application is made and
information is provided.

From 1st January 2021, all applications are required to made via the NSW Planning Portal.
Unfortunately, the process in the NSW Planning Portal for CDC’s and other Certification
processes is riddled with bugs, errors, and inefficiencies. Most Certifiers have had to develop
“work arounds” for some or all of the application process. Until these are rectified each certifier
will need to make decisions about how best to liaise with and through the Portal.

Once the application is received it must be filed, initial assessment must occur (to ensure
sufficient information is provided) and it must be assessed. All of these deliberations must be
recorded.

In other capacities, such as acting as a PC or undertaking inspections a similar system for

establishing responsibilities and recording actions must be in place.

The bottom line is that this is about a paper trail, to show how matters have been dealt with.

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Key points in setting up a system:

• Forms
o eg OC application
o CC application
o SC application
• Fee schedule
• Standard form of contract including such details as
o Fees
o Deliverables
o Flagging limits such as those imposed by Part 4 of the BDC Regulation in
regard to conflicts of interest
• Application register
o name
o date
• A filing system, logically ordered
• Standard letters
o additional information
o acknowledgement of withdrawal
o acknowledgement of information received
o referrals
o forwarding copies to authorities
• Standard checklists
o regulation requirements
o technical requirements
• Determination documents
o certificates
o copies
o stamping of plans
• Inspection documents and procedures
o standard forms
o date
o diary
o inspections missed
• Record of complaints and how they were dealt with
o applicant
o neighbour
o Council

Each of these documents should have a procedure against them. Note that this in turn could
form the basis for a Quality System in accordance with ISO 9000.

Depending on the preference of the Directors and the Certifier, much or all of this could be in
electronic format. This would require specific protocols relating to the manner in which data is
collated and stored, and consideration of whether or not hard copy data can be scanned.

Note that there are a number of electronic systems on the market in Australia, of varying
complexity, that deal specifically with building approvals.

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9.4 Mandatory and Other Records

While an application system provides management of actual certificates, additional procedures

need to be in place. These include:

1. Insurance
2. Details of complaints by neighbours and how they have been dealt with
3. Inspections – including any missed inspections (see Module 5)
4. Proof that information has been forwarded
5. How owner’s consent has been satisfied (where required)
6. Date stamping incoming documents
7. Statutory referrals (ie to NSW Fire Brigade)
8. Systematic method of evidencing compliance with Development Consent Conditions.
9. Records of discretionary decisions made

9.5 File Maintenance

Anybody who has worked in government will be familiar with file management systems – both
paper and electronic. A key decision needs to be made as to how records are going to be kept
and numbered.

Depending on the nature of work, the following questions need to be resolved in establishing
a system:

• date order or subject based

• property based – all applications on the same property eg CC, OC
• application number based – each application will receive a different number
• how will related applications be tracked
• how will modifications to application be dealt with
• will these all be paper or within electronic files
• is there sufficient space to store them.

Many lessons can be learned or borrowed from Councils and their file management system.
Many systems are property based, running off a GIS system. This type of approach will not be
available to many Registered Certifiers. However a typical example of a filing system at a
Council is:

• property based – application lodged against property

• DA, s4.55 numbered separately
• CC, OC, SC, Strata Certificate and Compliance Certificate all numbered separately
• CC Mod
• all paper filed on the DA file, with all related certificates

Possible options:

• property based and Council based

• all applications numbered separately but identified by specific reference, CC, OC etc
• all filed on property file

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Attachment A9.3 shows an example from an architectural and planning practice of how an electronic file
has been subject based.

The certifier’s responsibility

It is important to note that the record keeping obligations of the BDC Act and Reg are incumbent on the
individual certifier, and only on their employer in the case of a Registered Body Corporate. An employer
can take the view that these records are confidential business records and not the property of the
certifier.

Thus each certifier will need to ensure that they have a strategy in place for ensuring maintenance of
and access to their statutory records in case a change of employment occurs. This could include a
handover of these records on cessation of employment. It is recommended this be addressed as part of
an employment contract so that a certifier’s obligations under Part 7 of the BDC Reg can continue to be
discharged in that event.

Specific requirements pertain to Registered Bodies Corporate and Certifiers acting as either employees
or as an “Registered Certifier Director” must familiarise themselves with Clause 54 of the BDC Reg.

9.6 IT Systems

Given the advent of computer systems and the internet it is logical to employ an IT based subsystem for
some or all of the application aspects, processing of approval documents, and statutory record keeping.

Such a system could be as simple as a folder full of word document templates and a list of projects in
excel, all the way through to a bespoke Database system that can handle all aspects of document
control, generation and storage.

Simple software programs such as Access and Excel can be employed to excellent effect to execute
various aspects of the process certifiers are obliged to observed.

Simple systems

A simple system could consist of a job list kept in excel, where each column records the various data
necessary for record keeping and document generation. An enhancement could be that the mail merge
function in word is employed to draw information from specific cells in this or a separate “project”
document to automatically populate fields via the mail merge function. There are infinite variations on
these types of “DIY” systems that can be developed by a practitioner with only a limited knowledge of
the software and these can work very effectively. The benefit is transparency and the ability to modify as
needs without recourse to a separate consultant or provider.

Standardised systems

A number of standard software packages exist that will handle aspects of the back of house functions
for certifiers.

These systems include but are not limited to the following:

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Xinfo http://www.xinfo.com.au/
Visual Approvals http://www.visualapprovals.com.au/
BCS http://www.certification.systems/

Each of these systems requires you to provide your templates or else they can provide standard
templates. They include a database function for record keeping as well as the ability to automatically
generate certificates, letters and other documents. Inspection Apps are also available on some of them.

They all charge using various methods such as per approval, per year, or by negotiation. They each
have strengths are weaknesses.

Bespoke systems

A bespoke system can be developed by an IT professional or company to suit your specific needs. They
can be developed from scratch but would more likely be developed using one of the systems above or
some other management system as a template.

Bespoke systems are costly and time-consuming to develop and caution should be exercised by first
time would-be software developers. It’s not as easy as it looks… The benefits of customisation include
• the ability to integrate the solution into other software you may be running such as timekeeping
or accounting
• Achieving a software solution that specifically matches your workflow arrangements and other
requirements.

Digital and electronic signatures

Digital signatures are part of the modern working environment. The software systems above apply pdf
copies of signatures to documents and this is a legally acceptable process.

Similarly, the electronic application of signatures to contracts and other documents is legally
acceptable. When this occurs via the application of signature within software package the protocol is
via a login. Similarly, the cut and paste of a signature image by a person is legitimate. The application
of a signature by another staff member such as an admin person would require a strict permission
protocol which should involve evidence of request and agreement – e.g. not just a phone call or text.

Contracts can be deemed to be valid based on verbal offer and acceptance and hence can be
deemed valid even if not signed.

A summary of the legal issues can be found here:

https://acrobat.adobe.com/content/dam/doc-cloud/en/pdfs/dc_esignatures_global_overview_ue.pdf

9.7 Insurance

A critical aspect of setting up as a certifier is to ensure that appropriate insurance is in place as required
by the BDC Act and Reg.

Certifiers need to be extremely careful about the cover provided by their policy and the advice of a good
broker is recommended.

Part 3 of the BDC Reg lists the requirements for insurance. A series of key issues arise.

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Period covered by insurance

A Certifier must be covered by insurance for the whole of the period they have been Registered, in
order to remain Registered. This has become problematic when a previous employer has ceased
to exist. In that instance the only remedy is for the individual certifier to take out their own insurance
to cover that period.

This possibility needs to be considered by a prospective certifier.

Types of insurance

Generally, insurance policies are provided on the basis of providing cover on an “at claim” basis. This
means that, subject to the policy wording, the insurance should cover you for previous work, but only
while the policy remains current.

“Run off” insurance will provide cover into the future. However, these policies are expensive and may not
always be available.

Exclusions

Currently, an exclusion for non-compliant wall systems is permitted due to the unavailability of this type of
cover due to the current cladding issue. It is important to ensure policies do not have other exclusions as
these may render the policy non-compliant as well as leave unwanted exposure in the event of a claim.

Proportionate Liability and contractually assumed liability

Since the general adoption of Proportionate Liability via the Civil Liabilities Act in the early 2000’s it has
become a regular occurrence that contracts provided by clients will seek to exclude the operation of
Part 5 of that Act as it relates under the contract. This a significant risk for certifiers given the broad
ranging nature of their role.

Many PI insurance policies will not cover damages arising from a claim if proportionate liability has been
waived, or other liabilities assumed under a contract by the provision of indemnities, waiving rights of
subrogation, or waiving rights of recovery against the principal. In certain instances, default policies may
be able to be extended to cover these issues.

Certifiers need to read their contracts carefully.

Liability

Certifiers act as professionals and hence carry a degree of personal liability for their work. While
operating within a company structure affords some protection against litigation, Certifiers individually
owe a duty of care to persons who are entitled to rely on the work of the certifier. This can include
• Clients
• Future owners of property
• Members of the public

Certifiers need to consider two key types of liability.

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Civil liability 10 years maximum statute of limitations

Personal injury liability 7 years from the date an injury is sustained.

The latter is important to note as it means that a certifier might be liable for their work decades into the
future if a personal injury could be attributable to their error or omission. Note also that the
Proportionate Liability provisions do not apply to a personal injury claim.

9.8 Contracts and contract terms

Standard form of contract

Part 5 of the BDC Reg stipulates the requirements for contracts for certification work.

This contains a significant list of issues required to be addressed by a contract. It is therefore important
that a certifier has a standard form of contract that can be used on their projects which will address the
requirements of Part 5.

It is recommended that legal advice be sought in developing this contract but there is no reason a
certifier cannot prepare the standard form of contract themselves. The contract can also include various
other items or requirements that the certifier might consider as commercially appropriate.

Often a client will require that a certifier use the client’s standard contract. Almost certainly this contract
will not satisfy the requirements of Part 5. It is suggested that a standard contract addendum could be
used in those instances to address the specific requirements applicable to certifiers.

The AAC has developed a contract template for use by members.

Certifiers may like to include terms which are advantageous or beneficial to them such as:

• Limits to liability - based on insurance cover, multiple of the fee or an absolute figure
• The right to rely on documents in good faith
• Establishing reasonable timeframes to assess applications
• Establishing protocols for communication

Client contracts

Clients will often require use of a contract they provide. This can be based on AS4122 (General
conditions of contract for engagement of consultants,) or be a bespoke contract developed by
lawyers.

Almost certainly this contract will not meet the requirements of Part 5 of the BDC Reg and the certifier
will need to negotiate the inclusion of additional terms to meet those requirements.

Certifiers should be wary of generic contract terms that require the provision of design, design advice,
or any other activities that might constitute a conflict of interest under the BDC Act or regulation

In addition, contracts can often include terms which may be disadvantageous to the certifier and may
involve the acceptance of “contractually assumed liabilities” that may not be covered by the PI policy.

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Terms to be wary of include:

• Waivers of the operation of the Civil Liability Act as it relates to Proportionate Liability
protection,
• The provision of indemnities which mean you potentially accept more responsibility than what
the default law would impose.
• “Hold Harmless” clauses which may waive your right to countersue the client
• Wavers of any rights of subrogation which may mean that your insurer cannot recover costs.
• Terms requiring unconditional sign offs for compliance or fitness for purpose.

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MODULE 9-B: RUNNING THE BUSINESS

Introduction

Once the key basics (as discussed in Module 9) are established, the business of certification needs to
be organised – it will not run itself. Clear procedures and documentation are essential. Other parties –
applicants, neighbours, Councils, government agencies – are involved and disputes may arise.

Module Outcomes

At the completion of this module, the participant will have the ability to establish and implement effective
business practices (once the business is set up). In particular, the ability to:

• establish and maintain quality customer relationships

• manage personal work priorities and professional development
• identify conflict/disputes, recognise their causes and identify and implement appropriate action for
their resolution

Module Plan

9.9 The front-line: handling customers

9.10 Basic project management: individual certificates and acting as a PC
9.11 Handling disputes with clients (and other stakeholders)

Module Length

One session of 1.0 hour

List of Attachments

A9.10 NSW Ombudsman publication regarding Handling of Complaints

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9.9 The Front-line: Handling the Customers

Who actually is the customer? A better term might be “stakeholder”. A Registered Certifier is
working within a Regulatory Framework in the public interest. It is the general public who is the
broader customer or stakeholder. In a narrower sense and more specifically it will be:

• Client
• Architect/builder
• Neighbours
• Department of Fair Trading

Your professional practice to date may have established some processes and procedures in
terms of dealing with clients. However, these will need to be re-addressed in the light of
additional responsibilities. Similarly, the role of the Registered Certifier now embraces that of the
public, and processes need to be put in place to address how to respond to or deal with the
general public, and specifically a complaining member of the public.

In the role of the PC it will be important to establish what the Registered Certifier has been
contracted to do, as many of the responsibilities are not legislated for.

Those Registered Certifiers who have not attended mediation and negotiation training would be
well recommended to do so.

The key concept for interaction with clients is expectation management. To assist in this it is
important that, up front, there is:

• a clear brief or contract that outlines your responsibilities

• a clear understanding of the scope of works and attendant fees, including
o when they should be paid, and
o when variations will be incurred, such as
- re-inspections of non-compliant work
- handling neighbour complaints
- additional, staged or amended certificates.
• a clear understanding that part of the role will be to deal with council and neighbours as
issues arise, and how you will be paid for this work

These issues should be covered in the terms of your contract with the client. The contract
needs to establish the ground rules for how the parties will interact in the course of executing
the works.

However, the more difficult aspect of expectation management will be in relation to the ongoing
management of your client’s expectations over the course of the project. Most clients will have
an expectation that they pay the bills and so they call the shots, in terms of both timing and
technical outcomes. Unexpected events can affect whether the client’s original expectations will
in fact be met and so an ongoing flow of information needs to occur to ensure expectations are
modified to suit reality.

Another important issue is “how to say no”. A competent project manager should have enough
understanding of the relevant discipline to make a nuisance of themselves by way of enabling

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them to bring pressure to bear on your decision making. This issue needs careful consideration
as it is easy to find yourself being “talked around” by a persuasive client with an understanding
of the issues involved in the decision of whether to issue a certificate or not.

9.10 Basic Project Management

The following are suggested as key elements of project management:

• a clear understanding of client expectations and legal requirements

• identification of key steps in the (in this case) assessment process
• a set of files appropriate to the project
• clear allocation of responsibilities
• timelines/milestones and a program
• budget
• risk assessment and management
• regular monitoring and review as the process progressing: keeping a regular tab on this
and other jobs

As practitioners many of you will be familiar with project management as a discipline and with
the ISO system and management software generally. The following discussion focuses on
some key matters for Certifiers.

There is an expectation that certificates will be issued in a timely manner. As many could be on
a short time frame it may not be necessary to establish a detailed project management regime.
However, there needs to be a person responsible for the job and point of contact who has
carriage of the application – a project manager.

Clear processes and procedures written down and understood by all staff, both administrative
and professional, will ensure a minimisation of problems in the assessment and issue of
certificates.

A classic area in which disputes can arise is one in which the client feels as though new
additional hurdles are being raised during the process. This is why a clear and concise
contract (including standard provisions/advisory notes) is important, upon commencement. In
addition, the use of checklists which are transparent to (ie for use by) the client can assist by
having the client understand they are in fact responsible for obtaining exactly what is required.
In practise, the issue of checklists to clients is most useful in cases where the client
subsequently attempts a “blame game” about not being told etc etc. The client checklist
benchmarks whom has been told to do what and when.

Checklists can therefore not only be the most foolproof method of ensuring that all the
regulatory issues resolved, but also that clients and other parties understand their roles and
deliverables in the process. Checklists can either be paper based or electronic based. It is
recommended that certifiers investigate the capacity for a spreadsheet to function as a simple
electronic database for keeping track of issues requiring resolution as part of the certification
process, with particular regard to the “autofilter” function.

Note that some clients with a “hands off” approach may expect that the Registered Certifier
will “manage” all aspects of the project related to their involvement: this needs to be made
clear as the EP&A Act 1979 spells out differing roles for the “person having the benefit of the

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development consent” as well as the Certifier. In addition, the potential for conflict of interest to
occur is significant once the AC starts to run around assembling the some of the paperwork
needed to accompany an application. This is best included in the contract.

9.11 Handling Disputes

In any business there will be disputes; over payment, over refusal to issue, or over requests for
additional information.

Similarly, disputes will occur with neighbours who were not happy with the development or were
not aware it was occurring. It is important that Registered Certifiers in dealing with disputes, act
with impartiality and be seen to be acting impartially.

(a) Clients

The brief or contact for services is the document which should set out clearly what might be
expected by the client in the course of completing the works under the contract. Remember that
a contract must not only act to guide expectations in the first instance: it must also provide the
first level of plain English assistance in the event that a dispute arises in relation to satisfactory
performance of either party.

Disputes will usually be about

• timing in the provision of services

• claiming variations not approved in advance
• timing of payment of invoices

An interesting issue is whether it is legally permissible to withhold certificates over the issue of
unpaid invoices. Contracts now require payment prior to undertaking certification work. It can
be a difficult issue, as often the release of project finances are contingent on the attainment of
key milestones such as the issue of a certificate: a chicken and egg situation. However, subject
to operating under a compliant contract, Certifiers should have no problem requiring payment
either up front in total or prior to key certification milestones.

(b) Neighbour and other complaints

With respect to neighbours:

• listen
• document the complaint and the response
• act
• provide written response to the issue
• cc to Local Government if appropriate

Where it is outside of your control, say so (with an explanation of why) and promptly refer the
matter to the appropriate authority, in writing, and with a copy sent to the complainant.

Where a matter is within the gamut of the development consent, also say so and take the time
to explain. Keep a paper trail of all action. It is recommended that all correspondence be by way
of formal signed letters.

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However rude and obnoxious a neighbour or other complainant becomes, do not reciprocate.
When providing written response do not use inflammatory or defamatory language – deal with
the issue not the person.

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