Obligations and Practices Information Session April 2013 regulations PRIVATE CERTIFICATION FOR...

Obligations and PracticesInformation SessionApril 2013 regulations

PRIVATE CERTIFICATION FOR PLANNING ASSESSMENTS

Private Certification information session - April 2013 regulations22

Qualifications and Experience• Original Regulations (i.e. Building Surveyor

accreditation or 8 years experience and graduate qualification); or

• Corporate Membership of the Urban & Regional Planning Chapter of PIA; or

• Qualifications or experience in urban and regional planning, environmental management or related discipline in the opinion of the Minister


Registration• Original Reg 93A - Register of Private Certifiers to

continue

Insurance• Original Reg 93 – Insurance provisions continue

unchanged


Code of Practice• Original Ministers Code of Practice has been

amended to reference Res Code developments and the granting of Development Plan consent.

• Principles of professional conduct continue to apply:– Public interest test - Not breach public trust– Maintain standards of propriety - Remain objective and impartial– Contribute to the quality and - Exercise due care and diligence

sustainability of built environment - Not unlawfully disclose details- Maintain professional knowledge - Seek specialist advice as needed


Conflict of Interest• Original Regulation 93B - additional to the Code of

Practice – and includes:– acting for a council in relation to a development if the person has

acted previously as a private certifier in relation to the same development; or

– acting as a private certifier in relation to a development in the area of a council if—

(i) the person has acted for the council in relation to the same development; or

(ii) the person has an agreement with the council to provide professional advice to the council on an ongoing basis for the purposes of section 101(2) of the Act (i.e. Building Rules assessment, certificate of occupancy or temporary occupation approval).


Conflict of Interest• For the purposes of original Regulation 93B “acting

for a Council” means:“(2) For the purposes of subregulation (1), a person acts for a council if

the person— (a) provides professional advice to the council for fee or reward; or(b) represents the council for fee or reward.”


Certifier - Exclusions from Acting• Section 92 of the Act states that a private certifier

must not exercise any functions of a private certifier in relation to a development—

(a) if he or she has been involved in any aspect of the planning or design of the development (other than through the provision of preliminary advice of a routine or general nature); or

(b) if he or she has a direct or indirect pecuniary interest in any aspect of the development or any body associated with any aspect of the development; or


Certifier - Exclusions from Acting cont/.(c) if he or she is employed by any person or body associated with any

aspect of the development; or

(d) if he or she is excluded from acting pursuant to the regulations; or

(e) in the area of a council if he or she is employed by the council of that area.


Public Access and Complaints• The Regulations require:

– 10 year document retention (council) Regulation 101(1a); – 3 year document retention (certifier) Regulation 98(5); and– Council public register of residential code applications (Internet from 1

January 2014)

• Public access to the register and inspection of application documents Regulation 101(4)

• Public complaint may be lodged with the Minister Regulation 103


Public Access and Complaints• Public complaints may relate to a private certifier

failing to comply with or acting in contravention of, the Act, these regulations or a Development Plan with respect to any matter associated with any:– assessment, decision, permission, consent, approval,

authorisation, certificate or process that relates to the assessment of any proposed residential code development


Development Plan Assessment Audits• New Section 56C of the Act establishes Development

Plan Assessment audits• Development Assessment Auditor is:

– an administrative unit of the public service responsible to the Minister;

– person(s) qualified/experience in Development Plan auditing or a related discipline


Development Plan Assessment Audits• Development Plan Assessment Audits will initially

relate only to Res Code complying development• Any Council or a certifier must have its activities

audited in relation Res Code development to:– check whether the process and procedures comply with the Act and

Regulations; and– examine and report on any other aspect of the work undertaken.

• First Audit to be completed by 30 June 2016 • Repeated at least once in every 3 years thereafter


Res Code Hints


Minor Variations• The Res Code design criteria are fixed

• Section 35(1b) states:– “A development that is assessed by a relevant authority as being a

minor variation from complying development may be determined by the relevant authority to be complying development (and that determination will have effect for the purposes of this Act)”

• A “minor” deviation/departure from the Res Code can be considered as if it were complying - all other requirements under the Act relating to complying development are to be observed


Minor Variations cont/.• When is a minor variation not likely to be minor?

– In all circumstances, if the variation is likely to cause unreasonable impact upon neighbouring property owners

– Generally, if the assessment as to whether a variation is minor requires detailed consideration or review

– Generally, if the variation would require an inspection of the site to assess its appropriateness

– Generally, if the variation requires information beyond Sch. 5 to enable an assessment

• If a variation has been assessed/determined to be minor, a record of the variation and the reasoning behind the determination should be documented


Minor Variations cont/.• When is a minor variation likely to be minor?

– Generally, the failure to meet a Res Code criteria is trivial or minuscule

– Generally, a variation that does not deviate substantially from the numeric Res Code criteria

• NOTE: “in house” percentage tolerances for Res Code criteria should not be established


“All but 1” - Limited Assessment• Section 35(1c) of the Act states the following:

– “If a proposed development meets all but 1 criteria necessary for the development to be complying development, the aspect or aspects of the development that are consistent with the development being complying development must be regarded accordingly and the balance of the development will be assessed as merit development”

• One departure from the Res Code which is not minor will be assessed by Council “on merit” against the Development Plan (note: may trigger a “non-complying” assessment status)


Building line• A line drawn parallel to the

wall on the building closest to the boundary of the site that faces the primary street

• Projections from the building (eg. carport, verandah, porch, bay window) to be excluded


Primary street


• (iii) in any other case - the road that forms part of the street address of the building, as determined by the council for the relevant area when it is allocated numbers to buildings and allotments under Section 220 of the Local Government Act , 1999.

Primary street

OR


• A Watercourse Zone, a Flood Zone or Flood Plain delineated by the relevant Development Plan, or any other zone or area delineated as such a zone or area in a map in the relevant Development Plan, or otherwise indicated by requirements in the relevant Development Plan for minimum finished floor levels expressed by reference to ARI or AHD

Flood Management Zone/Area


• An Historic Conservation Zone/ Area means a Historic (Conservation) Zone, a Historic (Conservation) Policy Area, a Residential Historic (Conservation) Zone, a Historic Conservation Area, a Historic Township Zone or any other zone or area in which the “Historic” appears in the title of the zone or area in the relevant

Historic Conservation Zone/Area


Sch. 8 Referrals• Section 35(1a) states that a complying development

is subject to some exclusions and this includes:– “Section 37(1)… (a) the relevant authority must refer the

application, together with a copy of any relevant information provided by the applicant, to a body prescribed by the regulations…”

• Schedule 8 of the Regulations


Sch. 8 Referrals cont/.• Some Sch. 8 referrals that may be of relevance:

– Dwelling on “Coastal Land” – Coast Protection Board– Dwelling adjacent to “main roads” – Commissioner of

Highways– Dwelling materially affecting a State Heritage Place –

Minister for Heritage


Case Study - Historic Conservation

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