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The building and construction industry in New South Wales (NSW) is experiencing significant legislative change. On 11 June 2020, the Design and Building Practitioners Act 2020 (NSW) (DBP Act) commenced, with crucial implications for the industry. The DBP Act imposes extensive obligations on practitioners, designed to elevate the quality of building work.

From 1 July 2021, the DBP Act is joined by the Design and Building Practitioners Regulation 2021 (NSW) (Regulation). The DBP Act and Regulation apply to design practitioners, principal design practitioners, building practitioners and professional engineers (Practitioners) who work on:

  • class 2 buildings (multi-storey apartment buildings); and 
  • buildings with a class 2 component. 

This article will explain the new regulation and guide you through the significant obligations now held by Practitioners.

Overview

Under the NSW Government’s regulatory regime, the construction industry now needs to comply with a new system of declarations, requirements and checks. The new regulatory framework’s purpose is to more strenuously govern practitioners involved in building and construction, following a series of highly publicised cases of residential apartments containing structural defects.

From 1 July 2021, design and building practitioners must consider whether, when completing class 2 building work, they must:

  • become registered;
  • make a declaration;
  • obtain certain insurance;
  • keep certain records and comply with notice requirements; and
  • observe the Code of Practice and participate in compulsory ongoing learning.

A registered building practitioner is no longer permitted to start work unless:

  • they have acquired all regulated designs from the registered design practitioners; and
  • these registered design practitioners have lodged the necessary compliance declarations in the NSW Planning Portal. 

The Practitioner then completes construction identical to those declared regulated designs.

What Are the New Roles? 

If you perform design or construction work on class 2 buildings and you expect you will need to make a compliance declaration, you will likely need to register on the NSW Planning Portal as a ‘Practitioner’.

Under the Act, Practitioners are in separate classes:

  1. A Design Practitioner is a person who prepares regulated designs.
  2. A Principal Design Practitioner is a person who coordinates design compliance declarations for building work done by a building practitioner.
  3. A Building Practitioner is either:
    1. a person who (under an agreed contract) does building work; or
    2. a principal contractor who undertakes building work.
  4. A Professional Engineer is a person who carries out professional engineering work in a prescribed area of engineering. A prescribed Area of Engineering means structural engineering, civil engineering, mechanical engineering, fire safety engineering, electrical engineering, or another area of engineering prescribed by the Regulation.

When you apply to register, you must select a registration class within one of the categories of practitioners listed above. Schedule 1 of the Regulation sets out the eligibility requirements, skills and experience required for each class. The registration class also identifies which work can be carried out, including preparing a regulated design, complying with declarations, or carrying out building or professional engineering work.

The Secretary of the Department of Customer Services (Secretary) reviews and determines the registration applications. The Regulations provide the Secretary with additional scope to refuse an application. For example, if they believe the applicant is not suitable to carry out the work they seek registration for, including if they have a previous conviction or are not a fit and proper person to carry out the work.

Compliance Declarations

From 1 July 2021, registered Practitioners need to lodge certain declarations on the NSW Planning Portal before construction can begin. 

A design compliance declaration made by a registered Design Practitioner must state whether the relevant building work complies with the Building Code of Australia and any other relevant standards. The Regulation also requires the compliance declaration to include whether:

  • the design involves a performance solution; and
  • a building product referred to in the design would (if used consistently with the design) achieve compliance with the Building Code of Australia.

Wherever possible, the Regulation also requires design compliance declarations to include any other aspects of building work related to the design and other regulated designs for the work, including those prepared by other registered design practitioners.

 During the construction period, any variations to regulated designs must be declared compliant. Building Practitioners must lodge a copy of each design compliance declaration and a copy of the design for any varied designs, building elements or performance solutions within one day of commencing the variation works. As a result, work may need to stop to allow time to prepare the varied design and the compliance declarations in the approved form.

A principal certifier will only issue an Occupation Certificate if all compliance declarations align with the Act and Regulation.

Regulated Designs

A regulated design is:

  • a design prepared for a building element; or 
  • for the performance of a building solution;

for building work. 

The new Regulation prescribes the form and content required for certain types of regulated designs.

Record Keeping

From the time they complete the building work, Practitioners must keep records for a minimum of 10 years and ensure they are easily accessible. This requirement applies to each project where the Practitioner issued a compliance declaration. 

The Regulation requires Practitioners to include the following in their records:

  • number of compliance declarations provided by the Practitioner;
  • class of building;
  • names of relevant stakeholders, for example, the name of the developer;
  • address of the building work; and 
  • registration numbers of the registered practitioners involved in the project.

CPD and the Code of Practice

Practitioners must participate in continuing professional development to obtain and maintain registration. If you are a Practitioner, you will need to complete and pass the following learning modules (available on the Construct NSW Digital Learning Platform) before registering:

  • Design and Building Practitioners Act 2020 learning module; and
  • Value of Australian Standards learning module.

Once registered, you will need to complete at least three hours of approved and relevant education and training every year.

You can find out more information about your learning requirements in the Continuing Professional Development guidelines

You must also comply with the Code of Practice provided in Schedule 4 of the Regulation. Under the Code of Practice, Practitioners must:

  • act professionally;
  • act within a level of competence and expertise, and maintain a satisfactory level of competence;
  • avoid conflicts of interest; and
  • ensure confidential information is kept confidential.

Transitional Arrangements

The new regulatory regime brings many changes to the day-to-day work of design and building practitioners in the construction industry. For this reason, the following arrangements will help facilitate a smooth transition.

Deemed Registration

If you apply for Practitioner registration between 1 July 2021 and 31 December 2021, you will be granted ‘deemed registration’ in your applicable class.

Insurance

Part 6 of the Regulation details new minimum levels of insurance which Practitioners must maintain. The compulsory minimum standards of insurance that Practitioners must hold does not come into force until 1 July 2023.

Key Takeaways

The NSW residential construction industry is undergoing considerable change due to the Act and Regulation, resulting in many new obligations for Design and Building Practitioners. The change aims to make designers and builders more accountable and ensure both the designs and the resulting building works are compliant. The regulatory framework gives the Secretary new broad powers to investigate compliance and take disciplinary action. 

If you are or are looking to become a Practitioner in relation to class 2 buildings, it is crucial that you:

  • ensure you register quickly to enjoy the benefits of deemed registration;
  • provide training to your personnel covering the Act and the Regulation and how the new obligations affect your business;
  • make sure that your personnel understand the Code of Practice and the CPD requirements;
  • begin preparing regulated designs per the Regulation, if you are a design Practitioner;
  • incorporate the compliance declaration and lodgement steps into your business processes;
  • check if your construction contracts need amending, including to allow for preparing and submitting compliance declarations and for managing variations; and
  • ensure that you maintain a procedure to keep appropriate records as required by the legislation.

If you have questions about how you will be affected by the new Act and Regulation or if you would like to understand your obligations in more detail, our experienced building and construction lawyers can help. Call us today on 1300 544 755 or complete the form on this page.

Frequently Asked Questions 

When does the Design and Building Practitioners Regulation 2021 (NSW) commence?

The Regulation commences 1 July 2021 and is aligned with the Design and Building Practitioners Act 2020 (NSW) which commenced 11 June, 2020.

Who does the Design and Building Practitioners Regulation 2021 (NSW) apply to?

The Regulation applies to design practitioners, principal design practitioners, building practitioners and professional engineers who work on class 2 buildings (multi-storey apartment buildings) and buildings with a class 2 component.

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