The Building (Approvals and Practitioners) Bill 2026

Increased Liability for Certifiers in NSW

The NSW building certification industry is facing one of its most significant regulatory changes in recent history. The Building (Approvals and Practitioners) Bill 2026 (the “Bill”) was introduced to the NSW Parliament on 6 May 2026 and passed by the Legislative Assembly on 28 May 2026.  The Bill proposes major changes to the law governing development certification in NSW.

If enacted in its current form, the Bill will fundamentally alter the liability landscape for private certifiers and reshape the economics of building certification work across New South Wales. The Bill will also reshape the language of certification.

This article examines the key changes the Bill introduces for certifiers, with a particular focus on conflict of interest.

A New Legislative Framework

The Second Reading speech describes the existing system of building design and certification as fragmented and ad hoc, and the proposed new system as a single, coherent framework.  The Bill seeks to achieve this coherent framework by “stripping away decades of red tape and administrative burden” and “ensuring that those critical elements of a building such as the structure, enclosure, fire safety systems and waterproofing are designed by suitably skilled and registered practitioners”.

The Bill combines in a single statute the certification provisions in the Environmental Planning and Assessment Act 1979 (“EP&A Act”) and Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 with the building profession standards in the Design and Building Practitioners Act 2020 (“DBP Act”) and Building and Development Certifiers Act 2018 (“BDC Act”).  The consolidation of those provisions allows the Government to make good on its goal to align the current professional standards applying to building practitioners with building approval regulations.

New Terminology, New Role

Under the Bill, certifiers are known as “approval authorities” who will issue certificates and carryout inspections, as well as act as a central coordinator for building projects during the construction phase. The existing system of construction certificates and occupation certificates in the EP&A Act will be entirely replaced with a new regime of “building approval” and “completion approval”.  A building approval and a completion approval will be formally issued by the approval authority, being either a registered certifier or a local council.

The regulation of complying development will remain in the EP&A Act and Regulation.

The Government has framed the new functions of a registered certifier as establishing a clear chain of responsibility for other professionals, so that certifiers are not incorrectly held accountable across the whole building approvals process.  While the stated intention is to clarify boundaries, the practical effect is to formalise and elevate a certifier’s coordinating role in a manner that carries significant additional responsibility and liability.

Increased Liability

The increased liability for certifiers in the Bill manifests in several ways.  The Bill introduces significantly strengthened conflict-of-interest provisions. The maximum court-imposed penalty for a certifier who breaches a conflict-of-interest requirement increases from $33,000 under the current BDC Act to $1,100,000 under the Bill.

Where a certifier is convicted of a conflict-of-interest offence, their registration is automatically suspended for 120 days, or a longer period specified by the Secretary. This automatic suspension mechanism removes any discretion, meaning a conviction triggers the consequence without further administrative process.

The Bill includes an offence for any person (including a certifier) who issues a “relevant document” that the certifier knows or ought to know, or is reckless about knowing, is false or misleading.  The maximum penalty is $66,000 for an individual and $330,000 for a corporation.  Relevant document is defined in the Bill and includes a complying development certificate and approval under the Bill.

The Bill also expands the scope of what approval authorities are expected to oversee.  The Bill is designed to facilitate modern methods of construction into the approvals system.  This is achieved in part by amending the definition of building in the EP&A Act to now include a prefabricated building and by introducing the concept of a “prefabricated building declaration” and “prefabricated building instruction”.  Building work involving a prefabricated building must not commence until these documents have been provided to the approval authority.

The approval authority has the power to prevent the commencement of building work if the authority is not satisfied that the “prefabricated building declaration” and “prefabricated building instruction” demonstrate that the work will comply with the BCA.

Our Observations

On one view, the new Bill is a case of back to the future.  The term “building approval” is now back in the lexicon of the certification industry after almost 30 years of requiring the issue of a construction certificate prior to the commencement of building work.

The increased penalties for a conflict of interest will no doubt compel certifiers to be more circumspect in their dealings with others.  Some conflicts of interests are obvious, many others are not.  Some certifiers will find themselves in a conflict-of-interest situation only after it’s too late, when the Building Commission prosecutes them for an offence under the new rules.  Certifiers will need to become very attuned to the definitions of close associate and pecuniary interest, and the concept of being “involved” in the construction or design of a building.

In future updates we will summarise provisions in the Bill concerning post commencement authority, the definition of “close associate”, the new written direction notices by certifiers and offences for inducing a certifier to act impartially.