As we close 2020 and look forward to moving into 2021, businesses in the construction industry should consider preparing their businesses for the following activities over holiday shutdown period:

The NCC 2019 Amendment 1

The out of phase NCC 2019 Amendment 1 introduced a new process which is to be followed for Performance Solutions and supporting documentation. This process will come into effect 1 July 2021, in comparison to other changes in NCC 2019 Amendment 1 which took effect from 1 July 2020.

Construction industry stakeholders should review systems to prepare for the new process, which includes the following:

1. Prepare a performance-based design brief in consultation with relevant stakeholders
2. Carry out analysis using one or more of the Assessment Methods listed in A2.2(2) of NCC Volume 1, as proposed by the performance-based design brief
3. Evaluate the results from the analysis against the acceptance criteria in the performance-based design brief
4. Prepare a final report that includes:

• All Performance Requirements and/or Deemed-To-Satisfy Provisions identified through A2.2(3) of NCC Volume 1 or A2.4(3) of NCC Volume 1
• Identification of all Assessment Methods used
• Details of steps (a) to (c) above
• Confirmation that the Performance Requirement has been met; and
• Details of conditions or limitations, if any exist, regarding the Performance Solution.

The other amendments introduced by the NCC 2019 Amendment 1, which came into effect as from 1 July 2020, include the following:

1. Aluminium composite panels are required to be labelled in accordance with Standards Australia Technical Specification 5344 Permanent Labelling for Aluminium Composite (ACP) Products
2. Clarification of the concession in NCC Volume 1 permitting the use of timber framing for low-rise class 2 and 3 buildings; and
3. A new provision in the NCC Volume 1 regarding egress from early childhood centres – every part of a class 9b early childhood centre must be wholly within a storey that provides direct egress to a road or open space, unless:

• The building has a rise in storeys of not more than two levels; and
• The early childhood centre is the only use in the building.

Design and Building Practitioners Act 2020: Review processes and contracts to ensure you are compliant  

We have previously reported on the changes coming with the Design and Building Practitioners Act 2020 – in particular the statutory duty of care, design and construction compliance declaration process, registration requirements (click here to read previous article).

The NSW Government has now released for public comment the draft Design and Building Practitioners Regulation and has called for submissions to be issued by 5.00pm Monday 11 January 2021.

The draft regulations contain the detail in relation to the application of the Design and Building Practitioners Act to class 2 buildings (including multi-storey residential buildings and mixed residential and commercial use buildings).

The regime that is being introduced mid 2021 through the remaining parts of the Design and Building Practitioners Act that will come into effect and the Design and Building Practitioners Regulations will bring in reforms that include a sign-off requirement for designs, variations and ‘as-built’ constructed works, registration of practitioners, notification of intention to apply for an occupation certificate, and requirements that stakeholders obtain adequate insurance.

Stakeholders should take this opportunity now to review processes and contracts and sub-contracts suites that are used by their business to ensure that they are ready for the Design and Practitioner regime when it commences mid-2021.

We can provide structured advice and contract review to assist with your preparation for these reforms.

Security of Payment Claims: Prepare for Claims over the Christmas and New Year period

During the end of year shut-down period it is not uncommon for payment claims to be served.

Businesses should take steps to ensure that a skeleton staff is employed to monitor their principal place of business to ensure that any payment claims that are lodged over this period are identified and responded to or advise sought.

Payment claims must be responded to within 10 business days or a shorter period specified in the relevant construction contract. While business days are defined in the Security of Payment legislation as excluding public holidays, Saturdays, Sundays and the period 27 – 31 December (inclusive), construction industry stakeholders should ensure that offices are sufficiently staff to identify that payment claims have been served over the shut-down period and enable a response to payment claims within the time prescribed by the Security of Payment legislation and relevant construction contract.

Contract administration: Attend to your payment claims, so you are able to claims for extensions of time permitted for the shutdown period

It is important to comply with contract provisions in relation to claims for extension of time to avoid later disputes regarding liquidated damages and to avoid the New Year regret that can come with failing to comply with a contractual obligation regarding an extension of time process.

The Construction sector remains a driving force for the economy and Nexus looks forward to helping you navigate and succeed in new year. For more information about how Nexus Construction can assist, please contact us on construction@nexuslawyers.com.au

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