The Design and Building Practitioners Bill 2019 has been read for the third time and passed on 13 November 2019 by the New South Wales Government in response to the Building Confidence report. Nexus Lawyers review the Bill and advise on how the next stage of building regulation may affect you.
The Bill delivers on the NSW Government’s promise to introduce a suite of new obligations on design and building practitioners to ensure that each step of construction is well documented and compliant. The aim is to support the construction sector and provide a built environment where safety and quality is prioritised and consumer confidence is promoted.
Several new interesting requirements have been introduced to ensure that design and building practitioners are held accountable for their work across the sector. Practitioners are now required to issue a compliance declaration in accordance with the Building Code of Australia, and their work must fit into prescribed categories of regulated designs.
Major variations to designs must also be declared as compliant before being provided to the builder. Builders must rely upon and build in accordance with these declared designs, then issue a compliance declaration stating that the final building, including any variation, complies with the Building Code of Australia.
Any practitioner who makes a compliance declaration must be registered and qualified to do so. The Bill also enshrines in statute that a duty of care is owed to certain categories of owner for designs, or certifications of a design.
Increased duties of care will also be placed on building certifiers. Their duties are already high, as they are technically public officers who are obliged to put public interest first, but up until now have largely ‘flown under the radar’ in building disputes. This is also a positive reform.
The Bill introduces a series of new obligations on three categories of practitioner: design practitioners, principal design practitioners and building practitioners, who will play a critical role for prescribed classes of buildings under this new legislation.
In summary, the Bill provides the following key reforms, including:
- Introducing the concept of ‘regulated designs’, which include designs for a building element and performance solutions for prescribed classes of building work or a building element (clause 5 of the Bill);
- Requiring that design practitioners who prepare regulated designs issue a compliance declaration to declare that the designs comply with the Building Code of Australia (Part 2, Division 1 of the Bill).;
- Requiring that building practitioners obtain, rely upon and build in accordance with declared designs, and issue a compliance declaration to declare they have complied with the Building Code of Australia (Part 2, Division 3 of the Bill);
- Requiring that any variations to declared designs are re-prepared and declared by a design practitioner if they are in a building element or performance solution, or in any other case, documented by the building practitioner (clauses 9, 16 and 17 of the Bill);
- Introducing the optional role of a ‘principal design practitioner’ (Part 2, Division 2 of the Bill);
- Requiring any design, principal design or building practitioner who intends on making a compliance declaration to be registered under a new registration scheme set out under the Bill (Part 4 of the Bill); and
- Clarifying the common law to ensure that a duty of care is owed for construction design work to certain categories of ‘owner’ (Part 3 of the Bill).
While this Bill introduces tough new powers, the aim is not to penalise compliant practitioners. Building practitioners will be required to take all reasonable steps to ensure compliance with the Building Code of Australia.
Critically, this Bill will offer a defence to building practitioners in situations where they reasonably rely on and build in accordance with a regulated design and its declaration.
This defence will apply if the designs and declarations were provided by a suitably registered and authorised design practitioner stating the design’s compliance with the code. The defence will ensure that builders are not penalised for properly complying with their obligations under the Bill and that NSW Fair Trading can act and hold the appropriate party responsible for any noncompliance. Disciplinary action may also be taken against a registered practitioner on several grounds.
New industry model
For those that think this Bill is a minor change, think again. This Bill introduces a significant industry reform.
There are several other, more subtle important elements to the new Bill. Aside from the need for developers to properly engage accredited designers and those designers having a clear duty of care, the second reading speech notes that the Bill requires both the declared designs and as-built drawings will be available in an easy to access electronic platform.
The way the NSW legislation has been drafted and will be implemented is a game changer and this entirely re-positions designers and certifiers in the construction engagement and delivery bargain.
We see that the industry will now need to enter a new period where collaborative digital technology will be applied in projects to ensure the design and construct interface if far more seamless than it has been in the past.
All of these reforms will mean easier redress by clients when these obligations are not met, so if you are a designer, certifier or a business it is time to think about how you may conduct your business in this new landscape (assuming the Bill is assented to in the near future).
Nexus Lawyers will be issuing periodic updates in relation to the progression and implementation of this new legislation.
Phillip Cowdery is a senior litigation lawyer with Nexus. If you need further advice or support, he can be contacted on firstname.lastname@example.org or by telephone +612 9016 0141.
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.