As of July 2021, reforms under the Design and Building Practitioners Act 2020 (NSW) and the Design and Building Practitioners Regulation 2021 (NSW) have come into effect to provide greater regulations for building and construction practices in response to a number of defective residential apartment blocks.
These reforms have implemented a compliance declaration scheme, as well as further registration and mandatory insurance requirements for practitioners. This article will outline the new obligations for practitioners, including builders, designers and engineers, which are aimed at ensuring a higher standard of safety and quality of work in the building industry.
What ‘Building Work’ does the law regulate?
Pursuant to the Regulations, buildings are separated into ‘classes’. Those that are covered by the new reforms are classified as Class 2 buildings, which are generally residential apartments. This would also include mixed use residential and commercial buildings. However, it is important for practitioners to note that the duty of care requirements extend beyond Class 2 buildings and includes single dwelling homes and other residential building works.
If you are performing design or construction work on Class 3 buildings, you are now required under the reforms to be registered. The Act defines the requirements for compliance by building and design practitioners as follows:
- A design practitioner is a person who prepares regulated designs.
- A principal design practitioner is a person who coordinates the provision of design compliance declarations.
- A building practitioner is a person who carries out building work, or a person who is the principal contractor for the work.
The requirement of registration includes minimum qualifications, experience, knowledge and skills in respect of the various classes of practitioner. Designers and builders will also be required to comply with the prescribed Code of Practice and satisfy continuing professional development requirements in order to maintain their registration under the Act.
There are penalties if a building or design practitioner:
- Fails to provide compliance declarations;
- Makes false or misleading declarations; or
- Makes declarations without the requisite registration.
Compliance Declaration Scheme
The Regulations also require further detail for designs and compliance declarations which must be lodged by a practitioner before an occupation certificate must be issued. This lodgment must take place at four different stages of a project. These are:
- Before the building work commences, a building practitioner must provide a complete set of construction designs and compliance declarations;
- For each variation to a design, the building practitioner must lodge the varied designs and accompanying declarations no later than a day after the variation is commenced. This does not apply to minor variations that do not impact building elements or performance solutions;
- Before applying for an occupancy certificate the practitioner must lodge another compliance declaration, contractor document and variations statements on the NSW planning portal;
- Within 90 days after the occupancy certificate is issued, each regulated design and any other documents that relate to the building work must be lodged.
These required documents can only be provided to the Secretary by a registered design practitioner or registered building practitioner.
From the 1st of July 2023, registered building, design and engineer practitioners will need to be indemnified under a professional indemnity insurance policy. The policy must cover the liability that could be incurred in the course of their work, as determined by the practitioner. These insurance policies must also apply retrospectively to any liability incurred from the point that the practitioner became registered under the new regime.
How Etheringtons can help
It is important that building practitioners are made aware of their obligations. Etheringtons Solicitors can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.