NSW Private Certifier Conflicts of Interest: What Builders Should Know

What it is

A registered certifier in NSW acts as an independent regulator of building work. They issue construction certificates, complying development certificates, and occupation certificates and they carry out the critical stage inspections that gate progress on a residential job. To do that work fairly the certifier must be free of any conflict of interest with the people, the building or the design.

The framework sits in the Building and Development Certifiers Act 2018 (NSW), the Building and Development Certifiers Regulation 2020, and the Fair Trading Practice Standard for Registered Certifiers. The Design and Building Practitioners Act 2020 sits alongside it for registration of practitioners working on Class 2 buildings.

For builders this matters because the certifier is the gate to every approval stage on a NSW residential project. A certifier who is conflicted, who is later found to be conflicted, can have their certification work invalidated. The downstream effect on the builder is delay, rework and exposure to consumer complaints.

What counts as a conflict of interest

Under the Building and Development Certifiers Act 2018 a registered certifier has a conflict where they, or a person related to them, have a private interest in the development or the building to which the certification work relates. A private interest covers pecuniary interest and the interests of people connected by family, employment or business relationship.

The Practice Standard for Registered Certifiers expands the categories. A conflict exists where the certifier:

• Has designed any part of the building or the work under assessment
• Has provided contract administration services on the work
• Has provided pre-purchase building inspections or due diligence reports on the building
• Has a financial interest in the developer, builder or any of the trades on site
• Is related by family or close personal connection to a party with a financial interest
• Holds shares in an entity with a financial interest
• Was previously engaged by a party in a dispute about the building
• Has provided expert evidence on a related matter

The list is not exhaustive. The test is whether a reasonable person would believe the certifier could not act impartially.

Disclosure does not cure the conflict

The structure of the legislation is strict. A certifier who has a conflict of interest cannot do the certification work. Disclosure does not permit them to proceed. This is the difference between NSW certifier conflicts rules and many other professional conflicts rules. Disclosure plus consent does not get a certifier across the line.

The Secretary can grant an exemption in limited cases but exemptions are narrow and usually relate to remote areas where another qualified certifier is not available. Builders should not rely on exemptions as a practical solution.

Practical conflicts that catch residential jobs

Three patterns come up regularly on NSW residential projects.

The builder recommends the certifier

The builder has worked with the same certifier on dozens of jobs. The owner asks the builder to engage the certifier on the owner's behalf. This is permitted but the certifier must be appointed by the owner and the certifier must be free of any financial relationship with the builder. Discount arrangements, referral fees or shared office space all sit on the wrong side of the line.

The certifier was the designer

On smaller jobs, particularly granny flats and Class 1a additions, the practitioner who prepared the design or BASIX assessment is sometimes asked to act as certifier. This is not allowed. Designer and certifier on the same job is a direct conflict.

Repeat developer relationships

For Class 2 work, where a developer engages the same certifier on every project, the certifier must demonstrate independence from project to project. Long-term commercial relationships do not automatically create a conflict but they require active management. The Practice Standard expects the certifier to document why they remain independent.

How a builder should screen the certifier

The certifier appointment is the owner's choice but builders carry the consequences if the choice is wrong. A simple screen on every job:

1. Confirm the certifier is registered for the relevant building class via the Service NSW certifier register
2. Ask the certifier directly whether they have any prior involvement with the design, the developer or the trades
3. Check that the certifier has not provided any pre-purchase reports or due diligence on the site
4. Confirm there is no shared office, shared director, or shared employee between the certifier and any party on the build
5. Get the certifier's written confirmation of independence at appointment

Where any of these turn up a problem, the builder should ask the owner to appoint a different certifier. Continuing with a conflicted certifier puts every certificate on the project at risk.

What happens when a conflict is found later

If a complaint or audit later finds the certifier was conflicted, the Building Commission NSW can take action under the Act. Action can include:

• Suspending or cancelling the certifier's registration
• Invalidating certificates issued by the certifier
• Issuing a Building Work Rectification Order under the Residential Apartment Buildings Act 2020 where the building is Class 2
• Referring matters to the Director of Public Prosecutions

For the builder, an invalidated occupation certificate means the building cannot be lawfully occupied. The owner cannot move in. Tenants cannot be placed. The owner will look to the builder to fix the problem and to the certifier in parallel. Rectification can mean engaging a fresh certifier, re-running inspections, and applying for a Building Information Certificate.

TradeLens framing for certifier risk

TradeLens treats certifier independence as a project-onboarding check on every NSW residential job. The platform prompts the builder to record:

• The certifier's accreditation number and class
• Confirmation the certifier has no involvement with design, contract administration or trades
• A written independence statement from the certifier
• Any prior projects where the same certifier has acted for the same developer or builder

Where any of these are not in place the project file flags the gap and routes to the builder for resolution before construction certificate is sought.

The DBPA layer for Class 2 work

For Class 2 residential apartment buildings the Design and Building Practitioners Act 2020 adds a separate registration system for design and building practitioners. The Act and Regulation require registered practitioners to provide declarations that designs and built work comply with the NCC and other requirements. A certifier who is also a registered practitioner cannot act as both designer and certifier on the same project. The DBPA framework reinforces the same principle the certifier conflicts rules apply: independence of the assessor from the work assessed.