We have all heard of the Opal Tower and Mascot Tower, but not for the right reason. Their well-publicised building defects was a catalyst for the Government’s introduction of a new legislative framework to lift building standards and restore consumer confidence in the NSW construction sector. The Design and Building Practitioners Act 2020 (NSW) and supporting its regulation, Design and Building Practitioners Regulation 2021 (‘collectively, the DBA Act’) introduced duty of care reforms on 10 June 2020, with the remaining reforms commencing 1 July 2021.
The purpose of this article is to discuss the reforms coming into effect 1 July 2021. If you want to read about the already introduced retrospective duty of care reforms, please check out our article.
From 1 July 2021, the DBA Act will impose extensive obligations on design practitioners, building practitioners and engineers working on class 2 buildings. Class 2 buildings under the National Construction Code include multi-storey apartment buildings where people live above and below each other. The NSW Government has announced the roll out of the reforms under DBA Act on class 2 buildings will eventually be expanded to other building classes in the future.
What are the changes?
The DBA Act establishes the following 2 registration schemes:
all professional engineers working in the 6 registration classes (civil, structural, electrical, mechanical, fire safety and geotechnical) must be registered or be supervised by someone who is registered; and
design and building practitioners who are required to sign off on regulated design and building works, make compliance declarations and lodge documents on the NSW Planning Portal, will need to be registered.
(collectively, the Practitioners).
Before a Practitioner is able to register, the Practitioner will need:
to be working on class 2 buildings or buildings that include a class 2 part;
proof of identity;
a police check;
evidence of their degree, diploma or NVR course certificate;
to provide certain details about the experience they are relying on and will need the name and contact details of a referee to validate that experience;
if they hold an existing licence in a field of work, they will need to make sure those licence details are current; and
to provide 2 certificates of completion of online learning modules on the Construct NSW Digital Learning Platform.
To soften the introduction of the new legislative framework on the industry, the registration regime provides a 'grace period' of 6 months during which Practitioners will be deemed to be registered if they apply for registration prior to 31 December 2021. The grace period will end on 31 December 2021.
2. NSW Planning Portal
The DBA Act introduces ongoing administrative requirements on building practitioners to obtain regulated designs from registered design practitioners and lodge those designs and compliance declarations on the NSW Planning Portal. This administrative process may cause undue delays on construction where building practitioners will be prohibited from being able to commence works unless this requirement has been satisfied.
This new process will create greater transparency in recognising if defects in a building arises, whether the defects are a result of a breach of duty of care, at what point in the building process the breach occurred and who owed the duty of care.
The lodgement of such documents and compliance declarations is required at each of the following critical junctures of the construction process:
Lodgement 1 (before work can commence) - the registered design practitioners are to provide regulated designs for all building elements and performance solutions to the building practitioner. The building practitioner must lodge the design and compliance declaration on the portal before building works can commence. The building practitioner is then required to build in accordance with the declared designs.
Lodgement 2 (variations) - if a variation to the designs made in Lodgement 1 is needed, the building practitioner must have a varied regulated design prepared by a registered design practitioner. The building practitioner must then lodge that variation on the portal before being able to commence building that variation.
Lodgement 3 (before applying for an occupancy certificate) - the building practitioner must make a building compliance declaration. This declaration will specify that the building practitioner has built in accordance with the regulated designs prepared by a registered design practitioner and the Building Code of Australia; and
Lodgement 4 (90 days after the occupation certificate is issued) - the building practitioner lodges regulated designs showing any variations to building work or otherwise confirms no variations have been made since Lodgement 3.
Failure to meet these lodgement requirements could result in an occupation certificate being withheld, registration being cancelled or fines being imposed.
The DBA Act requires all Practitioners to be adequately insured having regard to the work each Practitioner is doing. However, this requirement will not be mandatory until 1 July 2022.
The following arrangements have been put in place by the DBA Act to facilitate a smooth transition:
where building work occurs before 1 July 2022, lodgement of regulated designs and declarations can be submitted on a staged basis for the duration of the project;
where building work commences after 1 July 2022, regulated designs and declarations will need to be submitted for the entire building before the commencement of building work in accordance with the above lodgement stages; and
where designs are prepared before 1 July 2021 by a design practitioner who would not otherwise be eligible for registration under the DBA Act, the relevant designs can be declared by a different design practitioner who was not involved in preparing those documents.
If you would like further information please contact:
Ron Zucker 0410 590 111
Vincent Tripodina 0408 228 10
Chelsea Woodward 0404 065 899
Anna Polhill 0431 174 352