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Residential Focus

11 August 2021

#Property, Planning & Development

Published by:

Stephanie Tan, Rebecca Weakley

Residential Focus

Design & Building Practitioners Act – what does it mean for building consultants?

In this edition of the Residential Focus, we review the Design and Building Practitioners Act (Act) and Design and Building Practitioners Regulation (Regulation) and assess their applicability to building consultants. We take a look at what kind of work a building consultant does, the classes of registered practitioner which may apply to a building consultant, as well as the new requirements or obligations which may now arise.

Building consultants

Building consultants play a key role in the construction industry. The term “building consultant” however is not defined in the Act or Regulation. In very general terms, a building consultant has been regarded as someone with particular knowledge, skill or expertise in a building or construction project, providing advice in a myriad of building issues before, during or after construction. Building consultants can advise on a range of projects, from small-scale residential building works to large-scale commercial developments, and are often involved in communications with stakeholders at all project stages, from planners and architects to construction workers and clients.  

Before or during a project, a building consultant facilitates the progress of a project by deriving solutions to potential problems that may arise during various project stages. For example, a building consultant may assist in providing advice on compliance with relevant industry standards and codes. Building consultants can specialise in certain aspects of project consultancy work, such as work health and safety. At the completion of a project, building consultants can be engaged to assess the quality and compliance of building works to relevant standards, identify defects and recommend remedial works.

It’s the latter aspect – identifying defects and recommending remedial works – which is our focus here.  This work may include independently investigating, diagnosing defects, recommending rectification work, reviewing rectification work in progress or completed and reporting. In a litigation context, this may involve the preparation of reports, scott schedules, participating in conclaves with other experts and appearing as an expert witness.

Previously, building consultancy work was regulated under the Home Building Act 1989 (NSW). This ceased in September 2009. Given the regulatory vacuum since and the significant role which building consultants play in projects, it is important to consider how the Act and Regulation impacts on a building consultant.  

Classification and registration

In previous editions of the Residential Focus, we gave an overview of how the Act operates with respect to the categories of regulated roles. Our design practitioner snapshot outlines the requirements and obligations for design practitioners.

To avoid penalties, registration is essential if you are preparing a regulated design subject to a design compliance declaration. Non-compliance with the design compliance declaration provisions can attract up to 1,500 penalty units for a body corporate ($165,000) and 500 penalty units ($55,000) for an individual[1].

Remedial works, a new designer word?

A “regulated design” under section 5 of the Act is defined as either a:

  • design prepared for a building element for building work (where a building element is a fire safety system, waterproofing, internal or external load-bearing components essential to stability, part of a building enclosure or aspects of mechanical, plumbing or electrical required for BCA compliance[2])
  • design prepared for a performance solution for building work, or
  • any other design of a class prescribed by the Regulation that is prepared for building work.

A “design” is defined to include “a plan or specification or a report detailing a design”[3].

“Building work” is defined in section 4 of the Act to mean work involved in, or involved in coordinating or supervising work involved in, one or more of the following:

  • the construction of a building of a class or type prescribed by the regulations (being class 2 or a building that contains a class 2 part)
  • the making of alterations or additions to a building of that class or type
  • the repair, renovation or protective treatment of a building of that class or type.

In investigating and reporting on defects, a building consultant would ordinarily:

  • identify the defect
  • identify the breach with the relevant building code and standards
  • recommend a remedial scope of work for the defect.

In recommending remedial works for a building element or suggesting a performance solution, where that includes a plan or specification or report, the building consultant may be creating a design which is captured and regulated by the Act.

It would follow that, as a builder cannot carry out building work for which a regulated design is to be used unless a design compliance declaration is made by a registered design practitioner, the building consultant would need to be registered as a design practitioner under the Act. 

Classification of a building consultant

A design practitioner is defined in section 3 of the Act as “a person who prepares regulated designs”.

If a building consultant is preparing regulated designs and intends to make a design compliance declaration, it must be registered under one of the classes of design practitioners under the Act.

Schedule 1 of the Regulation contains the 15 classes of registration for design practitioners – including Architectural, Building design (low rise), Building design (medium rise) and other specialist areas such as civil engineering, drainage, electrical engineering, façade, fire safety engineering, fire systems, geotechnical engineering, mechanical engineering, structural engineering and vertical transportation.

If the building consultant falls under one or more of the specialist areas, registration classification may be straightforward. However, the question of classification becomes problematic as many building consultants have an expertise that is more general in nature.

The generality does not arise from a lack of skill or expertise of the consultant, to the contrary, many building consultants possess a wealth of knowledge and experience that may exceed their specialist counterparts. But just as the term “building consultant” is not readily defined, it encompasses a broad range of consultants with varying disciplines and qualifications which may range from a building degree, diploma or possibly many years of trade experience.

In the absence of any specific degree (such as architecture or engineering which can be readily classified), a building consultant would likely be classified as either:

  • Design Practitioner – building design (low rise), or
  • Design Practitioner – building design (medium rise).

Schedule 2 Part 2 sections 6 and 7 of the Regulation set out the qualifications, experience, knowledge and skills requirement for design practitioners of these classes which we covered in our design practitioner snapshot.

Implications of registration classification

Several shortcomings arise out of the limited classes for registration:

  • building consultants effectively face a minimum academic qualification threshold (degree or diploma in building design or architectural design) in order to operate in the multistorey class 2 space. Qualifying will be time prohibitive for many
  • building consultants who don’t meet those requirements will not be able to prepare regulated designs for remedial works for class 2 buildings exceeding four storeys
  • the above will create a shortage of supply of building consultants able to provide remedial scopes of work
  • that shortage is unlikely to be filled by architects and engineers, who tend to avoid the space
  • in the context of increased regulation, the substance of regulated designs for remedial works may trend away from performance solutions and serve to increase remedial costs
  • if a two-tier approach to these services can be adopted, comprising dispute advice now, regulated design (by others) later, that duplicates consulting costs and may result in inconsistent advice vs designs and unfunded rectification outcomes.

Next steps

If you are a building consultant, you should carefully consider whether:

  • your particular mode of practice falls within the Act
  • if so, are you able to comply with the Act as a registered design practitioner
  • if not, can your practice be restructured away from class 2, or
  • are there adjustments which can be made to your designs (plans, specifications and reports) which bring the context and nature of the services being provided outside the operation of the Act?

If you are registering under the Act, deemed registration is available during the transitional period which ends on 31 December 2021.

If you lack the formal qualifications required by your class of registration but have 10 years or equivalent of industry experience, you can still make an application for an alternative pathway of registration allowed under section 97 of the Act. This requires you to complete a competency assessment of knowledge and skills for your class of registration (low rise and medium rise only). Please note the alternative pathways apply up to 30 June 2022.

If registering, then within your practice you should map out processes required for compliance and consider what may need to change. In particular, you will need to familiarise yourself with the requirements for a regulated design and a compliance declaration.

The legislation has been in effect for just over a month. The question whether there will be an “open” category in the registration classes at a later stage would be an interesting proposition.

We recommend you seek legal advice if you are unclear how the classification or registration provisions under the Act and Regulations affect you.

Authors: Christine Jones, Stephanie Tan & Rebecca Weakley

[1] Sections 9 & 10 of the Act
[2] Section 6 of the Act
[3] Section 3(1) of the Act

In the media

Australian PCI: Construction boom interrupted by COVID lockdowns in July
The Australian Industry Group/Housing Industry Association Australian Performance of Construction Index (Australian PCI®) fell by a further 6.8 points to 48.7 in July, recording the first fall into contraction since September 2020 (readings below 50 indicate contraction in activity, with lower results indicating a stronger pace of contraction) (04 August 2021).  More...

Skilled trades remain in high demand across all regions
The HIA Trades Report was released. The HIA Trades Availability Index improved marginally from -0.55 to -0.53 in the June 2021 quarter indicating that the industry is experiencing one of the most significant skills shortages of the past 20 years (28 July 2021).  More...

NSW

Three peak bodies release landmark building design guide
Consult Australia, Engineers Australia and the Australian Institute of Architects have jointly released a landmark guide for design practitioners and engineers – in the wake of major NSW legislative and regulatory reforms to improve building quality and safety (05 August 2021).  More...

Managing contractor appointed to oversee removal of flammable cladding
Minister for Better Regulation Kevin Anderson announced the appointment of Hansen Yuncken as Managing Contractor of NSW’s cladding remediation program. The Managing Contractor is fully funded as part of the $139m investment by the NSW Government to provide complete program management for each affected building (03 August 2021).  More...

Builders say Sydney suburban lockdowns halting $6b worth of projects
Building sites that depend on workers from western Sydney remain unable to open, despite the end of a government ban on some construction (03 August 2021).  More...

Ground-breaking bond scheme available online
The NSW Government is creating greater protection for consumers from defective building work by moving the Strata Building Bond and Inspections Scheme online, simplifying bond management and enhancing transparency. For more information visit the Fair Trading website (02 August 2021).  More...

Greater Sydney construction to reopen
Construction will resume in Greater Sydney including the Central Coast, Blue Mountains, Wollongong and Shellharbour with new COVID protocols to be introduced to keep workers and worksites safe (28 July 2021).  More...

HIA: Lockdown changes for home building important first step 
A roadmap to re-opening home building and renovation sites is an important first step as Sydney transitions back to full capacity. The journey ahead however remains extremely difficult for builders, tradies, manufacturers, suppliers and their customers (28 July 2021).  More...

AIA, Consult Australia & Engineers Australia: Guide for design practitioners and engineers
In the wake of major NSW legislative and regulatory reforms to improve building quality and safety, three peak bodies have released a Guide for design practitioners and engineers to help their members tackle the recent NSW Building Confidence reforms (28 July 2021).  More...

Purchasers benefit from developer agreement at the skyview project
The NSW Building Commissioner has lifted the Prohibition Order on the Skyview project after reaching an enforceable undertaking with developer Toplace to provide an ongoing inspection and maintenance program backed by financial guarantees (26 July 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
03 August 2021. Building Approvals, Australia.

Practice and courts

ABCB: Consultation open: Continuing professional development on the National Construction Code
Recommendation three of the Building Confidence Report is that each jurisdiction requires all practitioners to undertake compulsory continuing professional development on the National Construction Code. Feedback on the draft model guidance is now sought via a discussion paper. Responses to questions in the discussion paper are invited until 5 September 2021. Click here to learn more.

ABCB NCC 2022 energy efficiency project – rationale and scope
This supporting documents assists in understanding the focus of changes being considered for the 2022 version of the National Construction Code in regards to: 1. increasing the stringency of the energy efficiency provisions for residential buildings, and 2. developing quantified performance requirements and compliance pathways enabling compliance using a whole-of-house approach. Read more here.

Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key dates in the amendment cycle process for NCC 2022 to allow stakeholders time to participate. These adjusted dates include:
May – July 2021: NCC 2022 public comment draft released for public consultation.
May 2022: NCC 2022 preview published at ncc.abcb.gov.au.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

NSW

Guide for design practitioners and engineers
Consult Australia, Engineers Australia and the Australian Institute of Architects have joined forces to develop the Guide for design practitioners and engineers to help their members tackle the recent NSW Building Confidence reforms. There are multiple new obligations on design practitioners, engineers and building practitioners throughout the life of a building under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021.

Have your say on changes to how building design and construction is regulated in NSW
The development of supporting regulations is the next step on delivering on this piece of the Government’s building reform agenda, with the scheme commencing on 1 July 2021. In response to your feedback, we've drafted a report that explains the changes that were made to the draft regulation. For more information, click here.

Conflicts of interest – savings and transitional arrangements
Clause 71 of the regulation introduces savings provisions for certain conflict of interest situations where the certifier was appointed before 1 July 2020 and the work will be completed before 1 July 2022. The provisions relate to council-certified developments and to developments where the certifier gave advice on how to comply with the BCA deemed to satisfy provisions. For all the changes, access the amendment regulation here.

New mandatory standards for building rectification
The standard will be reviewed and updated prior to the 1 July 2021 commencement of the Government’s game changing building reform agenda underpinned by the Design and Building Practitioners Act 2020. The first Practice Standard will initially apply to certifiers working on residential apartment buildings, where the majority of problems and complaints have been received. The Practice Standard for registered certifiers is available on the Fair Trading NSW website.

Cases

NSW

The Owners – Strata Plan No 98970 v Capitol Property Services Pty Ltd [2021] NSWSC 950
ASSET PRESERVATION ORDER – no issue of principle.

Neate v Foundry One Pty Ltd trading as Rolling Homes Australia [2021] NSWCATCD 29
CONSUMER LAW – contract – supply of goods – goods of acceptable quality.

Long v Stair Lock Pty Ltd [2021] NSWCATCD 24
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – supply and install – breach of specification – contractual remedies – work order.

Nouh v Sigma Group Industries Pty Ltd [2021] NSWCATCD 21
BUILDING AND CONSTRUCTION – defects – no issue of principle.

Lok v Yeo [2021] NSWCATAP 237
(1) The appellant shall pay the respondent’s costs of the application for a stay on the ordinary basis as agreed or, if not agreed, then assessed on the basis set out in the legal costs legislation as defined in Legal Profession Uniform Law Application Act 2014 (NSW) s 3A.
APPEAL – costs – costs of application for a stay.
Civil and Administrative Tribunal Act 2013 (NSW), s 60; Civil and Administrative Tribunal Rules 2014 (NSW), r 38, r 38A; Home Building Act 1989 (NSW).

Tan v Champion Homes Sales Pty Ltd [2021] NSWCATAP 236
BUILDING AND CONSTRUCTION – no issue of principle – owners had conceded in their own submissions to the Tribunal that $1,000 for installation was not unreasonable. The Tribunal dismissed the owners’ challenge to the builder’s claim in respect of structural steel.

Toplace Pty Ltd v Rashidianfar [2021] NSWCATAP 235
(1) Appeal allowed in part. (3) In substitution, Toplace Pty Ltd is to pay Amirsalar Rashidianfar the sum of $11,167.15 by 20 August 2021.
APPEAL – home building claim – claim by successor in title under statutory warranties – damage to goods by water ingress – assessment of damages – claim for lost rent – applicability of principles in Hadley v Baxendale to successor in title under building contract. Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Pearce v The Living Property Group Pty Ltd [2021] NSWCATAP 233
CONSUMER LAW – home building – procedural fairness – appeal on a question of law – extension of time to appeal – legal representation – costs.

Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231
APPEALS – whether error of law in construction of building contract or failure to address submissions and evidence – whether leave to appeal should be granted.

The Owners – Strata Plan No 85561 v Omaya Holdings Pty Ltd [2021] NSWSC 918
BUILDING AND CONSTRUCTION – claim against builder and developer for building defects – claim settled on date of hearing – settlement agreement – provision that rectification works be effected in accordance with remedial contract – provision in settlement agreement that if default occurs judgment to be entered in accordance with pre-signed short minutes of order – whether parties obliged to refer alleged dispute about whether there had been such default to expert determination – whether settlement agreement or remedial contract frustrated.

John Boyd t/as Kalana Homes v Spurr [2021] NSWCATAP 227
APPEAL – building claim – decision said to be against the weight of the evidence – whether decision not fair and equitable – no substantial miscarriage of justice – leave to appeal refused – no error of law in exercise of discretion – Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Legislation

NSW

Proclamations commencing Acts
Building Legislation Amendment Act 2021 No 21 (2021–415) – published LW 30 July 2021.

Regulations and other miscellaneous instruments
Design and Building Practitioners Amendment (Fees) Regulation 2021 (2021–417) – published LW 30 July 2021.
Energy and Utilities Administration Regulation 2021 (2021–418) – published LW 30 July 2021.
Strata Schemes Management Amendment (Professional Associations) Regulation 2021 (2021–346) – published LW 30 June 2021.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Stephanie Tan, Rebecca Weakley

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