The Statement of Compliance at the end of an SA build

Where the statement comes from

Section 146(2) of the Act provides that a notification of a mandatory notification stage must, if the regulations so require, be accompanied or supported by "a statement (a statement of compliance) from a person who holds prescribed qualifications that the building work has been carried out in accordance with the requirements of this Act".

The Regulations deal with the Statement of Compliance in regulation 104. Regulation 104(1) defines a notice of completion as "a notice of the completion of building work under regulation 93(1)(f)" — the 1 business day’s notice of intended completion that closes the list of notification points.

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Which buildings it applies to

Regulation 104(2) states that the regulation "does not apply to a Class 10 building under the Building Code, other than a swimming pool or a private bushfire shelter". Class 10 is the Building Code’s class for non-habitable buildings and structures, such as a shed, carport or fence. A swimming pool and a private bushfire shelter are brought back in by name.

The regulation does not otherwise list classes of building. Classification is dealt with by section 151 of the Act and regulation 102, which refers to classification "in accordance with the Building Code", not by regulation 104.

Who provides it, and to whom

Under regulation 104(3), where building work is carried out in a case the regulation applies to, the licensed building work contractor responsible for carrying out the work — or, if there is no such person, a registered building work supervisor or a building certifier — must, when a notice of completion is given, provide a duly completed Statement of Compliance via the SA planning portal. It goes to the relevant authority and to the person referred to in regulation 104(6)(b) — the owner of the land, or someone acting on the owner’s behalf.

Regulation 104(4) identifies the relevant authority: if a building certifier was the relevant authority for assessing the building work against the Building Rules, that building certifier; in any other case, the council.

Regulation 104(7) explains when a contractor is "responsible" for the work: where it is responsible, or primarily responsible, for performing the work, or for engaging another person to perform it while retaining overall responsibility for the work.

The two parts, and who signs each

Regulation 104(6) sets out how the statement must be completed. The first part must be signed by the licensed building work contractor responsible for carrying out the work or, if there is no such person, by a registered building work supervisor or a building certifier. The second part must be "signed by the owner of the relevant land, or by someone acting on his or her behalf".

The wording of each part is not in the regulation. The form is one determined by the Chief Executive and published on the SA planning portal, and it is not reproduced here. The regulation does define one term "for the purposes of the first part": regulation 104(8) lists service connections as connections to a public electricity source; water/sewerage infrastructure within the meaning of the Water Industry Act 2012; a sewerage system, community wastewater management system or waste control system; a communications facility required under the Telecommunications Act 1997 (Cth); and any other public service or facility provided by an authority or utility.

The signatories are anticipated from the start. Regulation 93(2)(b) requires the notice of commencement to give the names and contact details of "the persons who are proposed to sign the Statement of Compliance in accordance with regulation 104 (if relevant)".

What has to go with it

Regulation 104(5) requires the statement to be accompanied by any certificates, reports or other documents that the relevant authority, by notice under regulation 57(8)(c), indicated would need to be furnished at that time.

Regulation 57(8) is part of the decision notice. Where a decision includes a consent for building work for which a Statement of Compliance will be required, the notice must be accompanied by a notice indicating that the statement will need to be completed in accordance with the Regulations, that a blank copy is available on the SA planning portal, and "what (if any) certificates, reports or other documents will need to be furnished at the time of the provision of the statement". The attachment list for a particular project is in that project’s decision notice, not in the regulation.

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If it is not done, and where it goes next

Regulation 104(9) makes the owner of the relevant land guilty of an offence if a requirement of the regulation (other than under subregulation (10) or (11)) is not complied with, "unless they establish that the failure to comply with the relevant requirement is due to the act or omission of another person". A maximum penalty and an expiation fee are set in the regulation. The current text has no subregulation (10): the legislative history table records it as deleted, with effect from 24.9.2020, although regulation 104(9) still refers to it.

Under regulation 104(11), if an accredited professional receives a Statement of Compliance and a certificate of occupancy is not issued, the accredited professional must, within 5 business days of receiving the statement, give the council a copy of the statement and any documentation provided with it.

Where a certificate of occupancy is sought, regulation 103A(1)(a) (for Class 1b to 9 buildings) and regulation 103A(2)(a) (for Class 1a buildings, where the certificate is to be issued on or after 1 October 2024) require the application to be accompanied by a copy of the Statement of Compliance, duly completed under regulation 104, with any documentation required under regulation 57(8)(c).

Regulation 103A(3) lets a council dispense with that requirement if it is satisfied that a person required to complete one or both parts has refused or failed to do so, that the applicant has taken reasonable steps to obtain the certification, and it appears to the council after an inspection that the building is suitable for occupation. That power does not extend to a designated building on which building work involving a designated building product was carried out after 12 March 2018.

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