The Design and Building Practitioners Act 2020 (DAB P Act) is a keystone in the legislative reforms in NSW that are spearheaded by the NSW Building Commissioner with the aim of better regulating construction quality and improving consumer confidence. The regulations which underpin the operation of the DAB P Act and contain the ‘nuts and bolts’ of the reforms have now been promulgated.
What does that mean for your business?
Well, with the bulk of the DAB P Act coming into force from 1 July 2021, practitioners involved in the construction of class 2 buildings should review their business practices to ensure:
- Practitioners on projects hold the necessary registration;
- Contracts and sub-contracts contain contract clauses that function efficiently in the new legislative landscape; and
- Contract administration and project team workflows and procedures are compliant with the new legislative landscape.
What Construction Will Be Regulated?
The DAB P Act regulates class 2 buildings. While this largely applies to multi storey residential apartment buildings, this class also captures single storey attached dwellings that share a common space below the dwellings (such as a duplex with a shared basement carpark).
Key Features of the Regulation
Includes the following:
- Clarification of the building work that is regulated and the building work that is excluded
- Prescribing the obligations that will apply for lodging regulated designs and compliance declarations
- Detailing the professional engineering work that is to be carried out directly in the design and construction of a regulated building and hence the registration requirements of engineers
- In relation to Design Practitioners, Principal Design Practitioners, Building Practitioners and Professional Engineers:
- Prescribing the classes of registration required together with the mandatory requirements that will be applicable for insurance, qualifications, skills, knowledge and experience
- Setting Professional Codes of Conduct;
- Prescribing the Continuing Professional Development requirements that will apply
- Setting the processes for registration
- Prescription of penalties for offences of the DAB P Act.
Transitional Arrangements For Existing Work
The Regulations state that where:
- Building work has been authorized to be carried out by a construction certificate or a complying development certificate
- Some of the building work has been commenced prior to 1 July 2021
- Not all building work has been completed by 1 July 2021
Then the following requirements of the DAB P Act do not apply:
- The requirement for regulated designs to be prepared, including the requirements for compliance declarations;
- The requirement for a person carrying out the building work to be registered; or
- The requirement that a building compliance declaration be prepared for the building work.
Instead the builder must provide copies of all designs relied upon to the Secretary of the Department of Customer Service before an application is made for an occupation certificate. Fines of up to $165,000 for a body corporate, or up to $55,000 for an individual apply if builders fail to comply with this requirement.
Accordingly, where there are staged works carried out over multiple construction certificates, for any works that are the subject of construction certificates issued after 1 July 2021, the DAB P Act will apply in full to those construction works (subject to the below comments in relation to the transitional arrangements for designs).
Transitional Arrangements For Designs For Building Works
In order for the industry to adapt to the new provisions, for the first 12 months of the legislation, regulated designs and declarations may be provided for each stage of the works approved under a particular building certificate.
Following this transitional period, i.e. after 1 July 2022, all regulated designs and declarations for the entire project will need to be provided prior to any building work being undertaken.
The works that are excluded by the Regulation from the building work regulated by the DAB P Act, include:
- Exempt development;
- Renovations to bathrooms or kitchens by owners (unless a developer is conducting waterproofing works across multiple units);
- Repair or maintenance of a fire safety system; and
- Works carried out under the HomeBuilder grant scheme.
There are four phases of the life-cycle of a construction project where documents need to be lodged through the NSW Planning Portal, being:
- Before commencement of construction work
- Copies of construction issued regulated designs
- Design compliance declarations for the designs
- Principal compliance declaration (if a Principal Design Practitioner has been appointed – which is not mandatory, but is advisable for larger or more complex projects to coordinate the design compliance declarations)
- Where any variations arise (within 1 day after commencing variation works)
- Design compliance declaration for varied designs
- Varied design
- Design compliance declaration for a new building element or performance solution
- Design for the new building element or performance solution
- Before the issuance of an Occupation Certificate
- Building compliance declarations
- Each variation statement required for the work
- Each regulated design that contains additional details not reflected in the construction issued design
- Principal compliance declaration where a principal design practitioner is appointed
- 90 days after issuance of an Occupation Certificate
- Regulated designs for which a design compliance declaration has been provided.
There are 18 classes of Design Practitioner prescribed being:
||Fire Safety Engineering
(Detection and Alarm Systems)
(Fire Hydrant and Fire Hose Reel)
(Mechanical Smoke Control)
Included in the above classes are restricted practitioners and practitioners authorized to only act on low rise buildings (class 2 building with a maximum gross floor area of no more than 2,000 m2, but not including a building of Type A or Type B construction) to minimize consumer costs.
The Regulation prescribes registration pathways and alternative registration pathways for practitioners.
A six month transitional period is in place until 31 December 2021, whereby a person who applies for registration will be able to continue to work in the field the registration is required until the application has been processed.
There are 6 classes of engineers prescribed being:
||Fire Safety Engineering
The Regulation prescribes three options for the registration of engineers, being:
- Application to Fair Trading with evidence of qualifications, skills, knowledge and experience. with Fair Trading to set all ongoing requirements for insurance and continuing professional development.
- Application to Fair Trading with evidence of registration or recognition from a Professional Engineering body as approved by Fair Trading.
- Application to Fair Trading with evidence of registration or recognition from a Professional Engineering body with a Professional Standards Scheme.
It is a requirement under the legislation that practitioners have ‘adequate’ insurance in place, however, there is a two year moratorium in place and the insurance requirements will not be monitored during that period.
The DAB P Act and accompanying regulations represents a significant change for construction of class 2 buildings in NSW. The level of regulatory compliance required will impact upon:
- Contract drafting and tendering
- Contract administration
- Project administration
- Registration and licensing
It is important that practitioners take steps now to ensure their systems are robust enough to ensure that projects are compliant moving forward.
For more information on how we can assist provide you with tailored advice to assist with the transition to the new construction regime in NSW, contact us on firstname.lastname@example.org
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This publication is © Nexus Law Group and is for general guidance only.
Legal advice should be sought before taking action in relation to any specific issues.