New Statutory Regime – Design and Building Practitioners Act 2020

Construction

In June 2020 the NSW Government enacted new legislation entitled the Design and Building Practitioners Act 2020 (the Act).  The Act is supported by regulations which were published on 9 April 2021 (the Regulations).

The purpose of the Act is to establish a regime to control the risks for consumers associated with design and building work.

The scheme will commence operation on 1 July 2021 and the purpose of this letter is to provide information in respect of the scope of the application of the scheme so that you may assess the potential impacts to your business.

What does the Act do?

The Act:

  • Creates a statutory duty on anyone who carries out construction work to exercise reasonable care to avoid economic loss caused by defects.
  • Requires a broad range of persons working in construction, including designers, builders and engineers to be registered under a new statutory registration scheme.
  • Creates a mandatory obligation for registered practitioners in respect of insurance coverage for their work. The Regulations have deferred the commencement of the insurance requirements until 1 July 2023.
  • Establishes a scheme for the provision of compliance declarations to be made by designers and builders in respect of their work.
  • Establishes enforcement powers and penalties to ensure compliance with the Act.

What building work is covered by the Act?

The Act currently defines “Building Work” as:

  • work involved in, or involved in coordinating or supervising work involved in, one or more of the following:
    • the construction of a building of a class 2 building or a building that contains a class 2 part,
    • the making of alterations or additions to a class 2 building or a building that contains a class 2 part,
    • the repair, renovation or protective treatment of a building of a class 2 building or a building that contains a class 2 part.

This definition reflects the Government’s first priority which is to introduce reforms in the residential construction sector focused on residential apartment buildings.

What construction work is covered for the purpose of the statutory duty of care

In addition to “building work”, the definition of “construction work” also includes:

  • All residential building work within the meaning of the Home Building Act 1989;
  • Preparation of designs;
  • Manufacture and supply of building products; and
  • Supervising, coordinating or project managing any of the above.

What are class 2 buildings?

Class 2 buildings are residential apartment buildings. They are typically multi-unit residential buildings where people live above and below each other. Mixed-use buildings, containing a class 2 part, are also captured, with the reforms applying to all parts of the building, not just the class 2 part. This means that buildings that contain commercial office spaces (class 5) or shops and restaurants (class 6) are subject to the reforms if they also contain residential apartments.

Are other classes expected to be covered by the Act in the future?

Yes. The Government has confirmed it is committed to implementing the reforms across other classes of construction in future years including expanding the reforms to buildings such as hospitals and schools.

What Should You Do to Prepare for the Scheme?

If you are involved in “Building Work” we would recommend that you:

  • Prepare to apply for registration from 1 July 2021. See below for further information.
  • Become familiar with the compliance declaration forms and processes, including the statutory time frames for lodgement. The form and content of certain regulated designs and compliance declarations is stipulated in the Regulations. There are specific requirements for designs involving performance solutions, fire-resistant building elements and the integration of vertical transportation products.
  • Assess the impacts on risk and pricing for the services you provide.

How to Register from 1 July

Design Practitioners & Building Practitioners

The classes of registration for Design Practitioners include: Architectural, Building Design (low rise), Building Design (medium rise), Civil Engineering, Drainage, Drainage (6 or more stories), Electrical Engineering, Façade, Fire Safety Engineering, Fire Systems (detection and alarm systems), Fire Safety (fire sprinkler), Fire Systems (fire hydrant and fire hose reel), Fire Systems (mechanical smoke control), Geotechnical Engineering, Mechanical Engineering, Structural Engineering, Vertical Transportation.

From 1 July 2021, you can apply to register on the Service NSW website. Only the person who will be declaring or lodging documents needs to register.

To be eligible you will need:

  • Proof of identity;
  • Complete and pass:
    • The Design and Building Practitioners Act 2020 learning module which will be available from May on the Construct NSW Digital Learning Platform;
    • The Value of Australian Standards learning module which is available now on the Construct NSW Digital Learning platform.
  • A police check which can be obtained through Service NSW; and
  • Proof of your applicable degree, diploma or certifications.

Professional Engineers

There are 6 classes of registration for Professional Engineers being: Civil, Electrical, Fire Safety, Geotechnical, Mechanical and Structural.

Professional Engineers will need to register if:

  1. they are doing engineering work in one of these areas: electrical, civil, geotechnical, structural, fire safety or mechanical engineering; and
  2. you are working on a class 2 building or a building that includes a class 2 part.

Only individuals can apply for registration – not companies. Engineers who are not eligible to register may keep working under the supervision of someone who is registered.

Professional Engineers who wish to provide declarations in respect of designs (i.e that a design complies with the Building Code of Australia) will also need to register as a Design Practitioner.

From 1 July 2021, you can apply to register on the Service NSW website. To be eligible you will need:

  • 5 years practical experience;
  • proof of identity;
  • a police check; and
  • proof of your applicable degree, diploma or certifications.

Deemed Registration

From 1 July to 31 December 2021, there will be a transitional period where you will be ‘deemed’ registered which will enable you to keep working while your application is assessed.

Further Information

Please contact us if you would like further information or advice in respect of these arrangements.

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