Building Act (Tasmania) certification

The Act and Regulations are supported by various approved forms and determinations issued by the Tasmanian Director of Building Control. These clarify requirements and processes under the Act and Regulations and help practitioners comply with the legislation. The approved forms and determinations can be downloaded here.

To assist practitioners with the Act, the Tasmanian Department of Justice’s Consumer, Building and Occupation Services Division has also published a Guide to the Building Act 2016 on its website.

Requirement for owner to provide a Form 2 Building Work – Application for a Certificate of Likely Compliance

In relation to building work, the Act requires that a certificate of likely compliance (CLC) must be issued by a building surveyor before:

• a building permit can be issued in the case of ‘permit building work’; or
• building work is undertaken in the case of ‘notifiable building work’.

Only building work categorised as emergency work or low-risk work (such as erecting fences or carports) do not require a CLC before being carried out. The Consumer, Building and Occupation Services website provides guidance on the categories of building works here.

An owner applies for a CLC by engaging a building surveyor and providing them with a completed Form 2 Building Work – Application for a Certificate of Likely Compliance. (The same form is also used to provide notice of work and to apply for a building permit under the Act).

The Regulations require that the Form 2 Building Work – Application for a Certificate of Likely Compliance be accompanied by the following information on the design:

• plans and details of the design for the proposed building work; and
• all relevant documents relied on by the designer.

This design information is provided on a Form 35 Certificate of the Responsible Designer which must be prepared by the designer (eg an architect or other building designer) who is responsible for the part of the works that the Form 35 covers.

It is therefore compulsory for architects to provide a Form 35 certificate to the building surveyor for most proposed building work as part of the owner’s (Form 2) application for a CLC.

Work other than building work

In addition to building work, the Act requires CLCs be issued when only certain plumbing work or demolition work is proposed. In many cases, the architect will not be the responsible designer for the plumbing or demolition work. Instead, the consultant who is the responsible designer for the plumbing or demolition work will provide the Form 35.

However, if the responsible designer, in preparing the design for the plumbing or demolition work, has relied on the architect’s work, the architect may be asked to provide a Form 55 to certify their part of the work (discussed further below). The architect’s Form 55 will then be attached to, and submitted as part of, the responsible designer’s Form 35.

Requirement for designer of building work to provide a Form 35 Certificate of the Responsible Designer

Under the Act, the categories of building work that require a CLC must be designed by a designer, which means a person performing design work. Therefore, depending on the type of building work the designer could be an architect, engineer, draftsperson, building designer or building services designer. The designer must only act within their area of competence and must hold the licences required (if any) under the Occupational Licensing Act 2005 (Tas) for that work.

As stated above, designers (including architects) must provide the Form 35 Certificate of the Responsible Designer for their work as part of the owner’s application to the building surveyor for a CLC.

The Form 35 requires architects to certify that:

• they were responsible for the design of the work referred to in the Form 35;
• the documentation provided with the Form 35 in relation to the design is sufficient for assessment of the work under the Act and for the work to be carried out; 
• the design complies with the National Construction Code.

As mentioned above, the Act, Regulations and the Form 35 also require the designer to attach details and plans of the design of the work and copies of the documents relied on in the design process.

In addition to standards, codes and guidelines, the documents relied on in the design process may include the work of other specialist consultants (eg engineers). An architect’s reliance on the work of a third party specialist can usually be evidenced by obtaining a Form 55 Certificate of Qualified Person – Assessable Item from that specialist and attaching it to your Form 35 Certificate of the Responsible Designer.

Obtaining a Form 55 Certificate of Qualified Person – Assessable Item

The Act provides that certain qualified persons can issue certificates in relation to assessable items. Assessable items for building works include most types of work by third party consultants that architects are likely to rely on (ie materials, designs, forms of construction, documents, testing, building systems and inspections).

If the architect is the responsible designer, such certificates will come from third party consultants.

If the architect has contributed work to a design done by another consultant who is the responsible designer (eg in the case of plumbing works or demolition works) and that consultant has relied on the architect’s work, the architect may be asked to provide such a certificate to that consultant.

Such certificates are provided using Form 55 Certificate of Qualified Person – Assessable Item. They:

• can only be given by the qualified persons listed in the Certificates by Qualified Persons for an Assessable Item Determination 2016 (eg architects, various engineers, bush fire hazard assessors, soil scientists and certain geologists); 
• can be relied on by authorised persons (eg building surveyors, some council authorities and the Director of Building Control).

Building surveyors can rely on a third party specialist’s Form 55. Therefore when you are the responsible designer for any works, in order to ensure you only certify your own work and not that of other consultants, you should request a Form 55 from each consultant whose work you relied on who is a qualified person (ie the specialists listed in the above determination). Consultants’ Form 55s should then be submitted as part of your Form 35.

For example, a Form 55 should be obtained for:

• an independent assessment of a design by an engineer or accredited building practitioner who has a more specialised level of accreditation than the architect (otherwise the architect would not need to rely on them);
• expert advice given on particular, specialist aspects of building such as bushfire prone area ratings, energy efficiency ratings or soil testing reports.

If another responsible designer asks you to prepare a Form 55 (which will usually be in relation to plumbing works or demolition works, rather than building works) you should consult the Certificates by Qualified Persons for an Assessable Item Determination to check which assessable items (ie types of work) architects are qualified to certify. Currently, the Determination specifies that architects can provide a Form 55 for certain plumbing and drainage design and architectural design for Class 1 and Class 10 structures.

Considerations for architects preparing a Form 35 Certificate of the Responsible Designer

The key considerations for architects preparing a Form 35 are accuracy and completeness.

The Form 35 enables the building surveyor to:

• confirm who the responsible designer is; 
• confirm the standards, codes or guidelines relied on by the designer; and
• rely on the designer as having designed sufficiently for the design to be carried out in accordance with the National Construction Code.

The Form 35 is also a certification of your work and may be used in evidence in a tribunal or court if things go wrong (eg if a dispute arises over the design or the works). For example, a Form 35 could be relied on by a tribunal or court to evidence:

• whether the design documentation provided with the Form 35 complies with the standards that the architect certified were complied with; or
• whether the standards, codes and guidelines that the architect certified as relied on or complied with were sufficient for the design to comply with the National Construction Code.

Therefore, to support good processes, protect your credibility and minimise the risk of a finding against you, when preparing a Form 35 you should be particularly careful to:

• only make true and accurate statements;
• only refer to and provide standards, codes, guidelines or other documents that were referred to and complied with in the design process – do not overstate what you have referred to or complied with;
• ensure that all standards, codes, guidelines or other documents relevant to complying with the National Construction Code have been considered and complied with in the design process, and are referenced in the Form 35;
• include any relevant Form 55 certificates from qualified third parties who have checked ‘assessable items’ in your design (eg soil testing, bushfire hazards, energy efficiency); and
• ensure the design documents (plans and other details) comply and are sufficient for the design to be assessed as complying, with the National Construction Code.

Refer Acumen note Requests for issuing certificates for further guidance on National Construction Code certification.