26 July 2021

Reforms commencing under the Design and Building Practitioners Act 2020 (NSW)

This article was written by Steve Swan and Chris Chan

As foreshadowed in our previous update on building reforms in NSW, various reforms under the Design and Building Practitioners Act 2020 (NSW) (the Act) came into effect on 1 July 2021. The Design and Building Practitioners Regulation 2021 (NSW) (the Regulation) expands on the requirements of the Act.

Key reforms in effect on and from 1 July 2021

Compliance declarations to be issued by registered practitioners

Designers and builders are now required to provide compliance declarations in respect of the design and construction of building work. Under the Act, building work includes class 2 buildings and mixed-use buildings with a class 2 building component.

Designers and builders providing compliance declarations must be registered under the Act. The requirements of such registration include 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.

Applications for registration lodged between 1 July and 31 December 2021 will receive deemed registration if the applicant meets certain criteria, although the Secretary may cancel a deemed registration where the applicant does not meet the registration requirements.

Penalties apply for:

  • failure to provide compliance declarations;
  • making false or misleading declarations; or
  • making declarations without the requisite registration.

As outlined in our previous update, the Department of Customer Service can take action in response to non-compliance with the Act.

Lodgement of documentation and declarations by the builder on the NSW Planning Portal

From 1 July 2021, builders must lodge documents in respect of building work on the NSW Planning Portal, as summarised in the below table.

For the purpose of this note, references to a design means a design that is prepared for a building element or performance solution for building work (a “regulated design” under the Act).

Stage

Documentation and certificates to be issued to the Secretary

Stage 1 (before building work commences)[1]

  1. Construction issued designs for the building work.
  2. Design compliance declarations for each design.
  3. A principal compliance declaration for the design (if a registered principal design practitioner has been appointed).

Stage 2 (no later than 1 day after commencing a variation to building work from a design submitted at Stage 1 (if applicable))[2]

  1. Varied designs.
  2. Each design compliance declaration for varied designs.
  3. The design for any new building element or performance solution.
  4. Design compliance declarations for each new building element or performance solution.

These obligations only apply in respect of:

  • varied building work in relation to a building element or performance solution; or
  • where a new building element or performance solution is required.

Otherwise the builder is only required to record the details of a variation in a variation statement to be submitted at Stage 3.

Stage 3 (before applying for an occupation certificate)[3]

  1. A building compliance declaration.
  2. “Contractor document”, which includes a list of persons who have agreed to do any of the building work for the builder.
  3. Any variation statement required for building work.
  4. Each design that contains additional details which are not reflected in the designs lodged at Stage 1, that do not constitute a variation.
  5. A principal compliance declaration for the design (if a registered principal design practitioner is appointed).

Stage 4 (within 90 days of issue of the occupation certificate)

  1. Each design for which a design compliance declaration has been issued, in respect of the completed building work.[4]
  2. The documents required for lodgement under Stage 3, if they have changed.[5]

Notices to be provided by builder in respect of building work

The following table summarises notices that are required to be provided in respect of building work.

Notice

Recipient

When

Notice of building work commencing – (issued by the builder, notifying the recipient of the date the builder proposes to commence building work)

Principal design practitioner (if appointed)

At least 14 days before building work commences

Notice of building compliance declaration (issued by the builder, notifying the recipient of the date the builder proposes to make the building compliance declaration)

Principal design practitioner (if appointed)

At least 14 days before making a building compliance declaration

Notice of intention to apply for occupation certificate (issued by the person applying for the occupation certificate, notifying the recipient of the intention to do so)

Each registered builder who performed building work

At least 14 days before applying for an occupation certificate

Notice of application for occupation certificate (issued by the person applying for the occupation certificate, notifying the recipient of such application)

Each registered builder who performed building work

Within 7 days of applying for an occupation certificate


Certificates not to be issued unless declarations provided

From 1 July 2021, construction certificates or complying development certificates for building work can only be issued if designs and design compliance declarations are first provided to the person issuing the relevant certificate. Similarly, occupation certificates for building work can only be issued if a building compliance declaration is first provided to the person issuing the certificate.[6]

Transitional arrangements for existing building work

The registration and compliance declaration requirements under the Act do not apply to building work that had commenced, but was not yet completed, on 1 July 2021. However, the builder is required to lodge copies of all designs relied on to carry out the building work to the Secretary before applying for an occupation certificate.[7]

Transitional arrangements for existing design

If a design for building work was prepared before 1 July 2021 by a designer who is not eligible for registration and the building work commences between 30 June 2021 and 1 July 2022, then a registered designer must assess whether the design complies with the requirements of the Building Code of Australia (BCA) and if so, issue to the builder a certificate to that effect. The relevant building work cannot commence until such certificate and copies of the designs are lodged with the Secretary.[8]

Further insurance obligations to commence in 2023

The requirement under the Act for designers, builders and professional engineers to have professional indemnity insurance commences on 1 July 2023.[9]


[1] Clause 16 of the Regulation

[2] Clause 17 of the Regulation

[3] Clause 18 of the Regulation

[4] Section 15 of the Act

[5] Clause 26 of the Regulation

[6] Clause 29 and 30 of the Regulation

[7] Schedule 6 cl 3 of the Regulation

[8] Schedule 6 cl 4 of the Regulation

[9] Clause 106 of the Regulation

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