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Residential Focus

16 June 2021

#Property, Planning & Development

Published by:

Nicholas Achurch

Residential Focus

Design & Building Practitioners Act – principal certifiers snapshot

In the final instalment of our series on the Design and Building Practitioners Act 2020 (NSW), we look at the key provisions of the Act and Regulation which affect certifiers.

In our previous editions we have looked at the new regime, which commences on 1 July 2021, from the perspective of the other key players, namely:

Now we turn to certifiers, who have an important gatekeeper role, in that they must consider whether the requirements of the Act have been met, before issuing the all important occupation certificate.

Do I certify building work which is subject to the Act?

Certifiers appointed as the principal certifier for building work in accordance with section 6.6(1) of the Environmental Planning and Assessment Act 1979 (NSW) on the following types of projects (known as Building Work for the purpose of the Act) will be affected by the Act:

  • the construction of a class 2 building, or any mixed-use building with class 2 elements
  • alterations of a class 2 building, or any mixed-use building with class 2 elements
  • the repair, renovation or protective treatment of a class 2 building, or any mixed-use building with class 2 elements.

There are some exclusions from the definition of Building Work, which are found in section 13 of the Act.

Do I need to register?

Principal certifiers will not be required to register under the Act, if their role is limited only to work as a certifier.

Additional requirements imposed by the Act

There is a prohibition on the issue of construction certificates or complying development certificates unless the certifier has received:

  • each design compliance declaration to which the building work relates
  • for each design compliance declaration, each regulated design in relation to which the design compliance declaration is made.

There is a similar prohibition on issuing occupation certificates unless the principal certifier has received a building compliance declaration in relation to the building work.

Further, the Act requires that a principal certifier must:

  • not determine an application for an occupation certificate unless the principal certifier is satisfied that all compliance declarations required for the building work have been lodged in accordance with this Act
  • consider any instances of non-compliance specified in the compliance declarations provided to the certifier relating to the building work when deciding whether to issue the certificate.

The requirement to be satisfied that all required compliance declarations have been lodged is more than a ticking a box exercise. The principal certifier will need to:

  • assess whether the compliance declarations (design, principal design and building) meet the requirements of the Act and Regulation
  • verify that the compliance declaration (design, principal design and building) is by an appropriately registered and authorised practitioner, which will involve checking the register and (in respect of design compliance declarations) the class of registration
  • assess whether a design compliance declaration has been provided for each regulated design prepared for the building work, which involves considering whether each building element, as defined in section 6 of the Act, has a design compliance declaration which relates to it and that each performance solution has a design compliance declaration which relates to it.

We can expect, in the future, there to be issues raised about the extent to which a principal certifier can discharge his duty by relying on the principal design practitioner’s declaration in respect of the last of these activities.

As with the role of the principal design practitioner, the principal certifier’s role in this regime is deceptively significant in scope.

How should I prepare for 1 July?

To mitigate their risk, principal certifiers will need to be fully across all design aspects of the Building Work and familiar with the roles and responsibilities of the other practitioners involved in the regime. This recognises that they control the issue of the end output, the occupation certificate, which is contingent on the principal certifier verifying that all declarations under the Act have been received.

Although there are no additional insurance requirements under the Act for principal certifiers, it would be prudent for certifiers to confirm with their broker that their existing coverage includes certification of projects involving Building Work for the purpose of the Act, in light of the additional requirements of the new regime and the tight insurance market generally.

In the media

ABF to dust off and seize asbestos
The ABF is undertaking a targeted period of action against imported building products at risk of containing asbestos. Assistant Minister for Customs, Community Safety and Multicultural Affairs, Jason Wood said the intention of the ABF’s Action wasn’t to hold up any legitimate and safe building materials, but to protect the Australian community from asbestos (07 June 2021).  More...

Home-Building at breaking point
A construction supply crisis is affecting key development projects across the country as builders deal with a critical shortage of building materials (06 June 2021).  More...

REA Insights: Energy Efficiency Housing Report
Australian property-hunters are increasingly valuing energy efficient homes, with close to three quarters of recent buyers saying an energy rating was important to them, according to the REA Insights Energy Efficiency Housing Report by REA Group (04 June 2021).  More...

Home loan commitments rise to another new high
New loan commitments for housing rose 3.7 per cent in April 2021 (seasonally adjusted) to a record high of $31.0 billion according to statistics released by the Australian Bureau of Statistics.The HomeBuilder grant was reduced from $25k to $15k effective from 1 January 2021 and was closed to new applications from 14 April 2021 (04 June 2021).  More...

Detached dwelling approvals break another record in April
Detached building approvals reached a record level for the third consecutive month in April 2021,” stated HIA Economist. The Australian Bureau of Statistics released its monthly building approvals data for detached and multi-units data covering all states and territories (01 June 2021).  More...

Australia’s housing boom rolls on with national home values lifting another 2.2 per cent in May
Housing markets around Australia continued to surge in May with CoreLogic’s national Home Value Index up 2.2 per cent over the month. CoreLogic’s research director, Tim Lawless, observes that growth conditions remained broad based both geographically and across the housing types and valuation segments (01 June 2021).  More...

These Sydney apartment towers were built in 2018 — now the owners are suing for alleged ‘defects’
Apartment owners in a Parramatta complex are suing developer Toplace over a list of alleged defects in the riverside towers. It's the same developer behind Sydney's Skyview towers which are currently under review over similar concerns (03 June 2021).  More...

Consumers warned travelling conmen active in NSW
Bitumen bandits are active in NSW again, with Fair Trading receiving reports that the travelling conmen have reared their heads in the Tamworth, Central Coast, Lake Macquarie and Forster areas in the month of May (02 June 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
09 June 2021 Building Approvals data for small geographic areas
09 June 2021 National, state & territory level dwelling demolition approvals

Practice and courts

ABCB Consultation open: Involvement of fire authorities in building design
A discussion paper in response to the Building Confidence Report is now open for public comment.
The BCR Implementation Team has developed a discussion paper seeking views on the issue of fire authority involvement in building design. Responses to questions in the discussion paper are welcomed until 7 July 2021 (09 June 2021).  More...

The AIBS Professional Standards Scheme for Building Surveyors
The AIBS Professional Standards Scheme for Building Surveyors has now been gazetted by the NSW Government and the South Australian government (06 June 2021).  More...

Consultation on NCC 2022 public comment draft (stage 1) now open
Consultation on stage 1 of the National Construction Code (NCC) 2022 public comment draft is now open. This first stage of consultation seeks comment on all proposed NCC amendments except energy efficiency and condensation proposals that arise from project work. Responses are invited via until 2 July 2021.  More...

Discussion paper: Draft National Building Product Assurance Framework - A Response to the Building Confidence Report
A discussion paper is now open for public comment in response to the Building Confidence Report. The Framework seeks to address the problems associated with building product safety. Closes 6 June 2021.

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 here.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

NSW

The draft Design and Building Practitioners Regulation 2020
The NSW Design and Building Practitioners Act 2020 provisions of the Act will commence on 1 July 2021.  More...

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 (May 2021).  More...

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.

NSW Revenue: Land Tax Build to Rent
The NSW Government is introducing a land tax discount for new build-to-rent housing projects until 2040 and a new Housing Diversity SEPP to provide more housing options, greater surety for renters, boost construction and support jobs during the COVID-19 recovery.

Building Information Modelling (BIM) for WHS management
What is the best practice and implications of using BIM in WHS management?
Timeline of project; Project completion: Mid 2021
Research submissions are now open. Apply online at the eTender website.

Cases

PCBQ and Commissioner for Fair Trading (NSW) [2021] AATA 1436
MUTUAL RECOGNITION OF OCCUPATIONS – applicant applied for a builders licence in NSW via mutual recognition scheme – applicant holds builders licence (limited) in Victoria – respondent offered NSW licences to the applicant – applicant refused those licences – meaning of within one month – review application lodged with AAT – applicant contends that licences offered by respondent were not equivalent and that licence application was not processed within timeframe stipulated by Mutual Recognition Act 1992 (Cth) – respondent contends that licences offered are equivalent and that the application was processed within time – provisions of the Acts interpretation Act 1901 (Cth) considered – provisions of the Mutual Recognition Act 1992 (Cth) considered – decision under review set aside and remitted to the respondent.

Morris v Leaney [2021] NSWDC 224
TORTS – professional negligence – architect – damages – breach of contract - false and misleading representations – reliance on representations – loss and damage – concurrent wrongdoer.

Deane Projects Building Pty Ltd v Kinda Kapers Holdings Pty Ltd (No.2) [2021] NSWDC 222
COSTS— application by successful cross-claimant for indemnity costs following service of rules offer and Calderbank offer — whether offer valid pursuant to the UCPR or alternatively Calderbank principles
The plaintiff (and cross-defendant) (‘Deane Projects) obtained a damages award in the sum of $38,461.16 on the statement of claim and the cross-claimant (and defendant) (‘ Kinda Kapers’’) obtained a damages award in the sum of $254,810.63.

Bright Build Pty Limited v The Owners – Strata Plan No 94514 [2021] NSWCATAP 163
HOME BUILDING - basis of costs orders with remaining areas of dispute but largely by consent - effect of calderbank offer.

Mikhail v JJ Built This Pty Ltd [2021] NSWCATAP 159
BUILDING AND CONSTRUCTION - contract -damages – repudiation by home owner – loss of bargain or expectation damages – proper measure of damages – builder entitled to lost profits rather than the balance of payments due under the contract had it not been repudiated.

Shanahan v Erwin Fornasier t/as Enhance Building [2021] NSWCATAP 158
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — statutory warranty – compliance with the law – construction work carried out that did not comply with development consent or construction certificate – whether in breach of statutory warranty – whether builder entitled to payment for work – whether builder repudiated contract – whether builder entitled to terminate contract by reason of the owner’s non-payment of a progress payment and the exclusion of the builder from the site.

Dickinson v Packam [2021] FamCA 298
FAMILY LAW – PROPERTY – interim – exclusive Occupation of the former matrimonial property – balance of convenience – where the parties are involved in NCAT proceedings concerning the former matrimonial property in circumstances where the parties have not complied with provision for repair works to be undertaken to the property following a Deed being entered into with the Body Corporate – orders made for the wife to be granted sole and exclusive use of the property – orders made authorising the wife to undertake the necessary repairs.

Aust Tech Engineering & Supplies Pty Ltd v Adam [2021] NSWCATAP 155
HOME BUILDING – Miscalculation of amounts.

SafeWork NSW v Ultra Refrigeration Pty Limited; SafeWork NSW v Romolo Prestia [2021] NSWDC 149
CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 25 per cent reduction for the utility of the plea.

Insurance Australia Ltd v Holden & Ors [2021] NSWDC 142
CONSTRUCTION OF INSURANCE POLICY – Home Owners Warranty insurance policies issued by insurer to a building company on basis that deeds of guarantee and indemnity would be executed – whether the first defendant entered into a valid deed of guarantee and indemnity CONSTRUCTION OF A GUARANTEE – whether the first defendant is bound by first and/or second deeds of guarantee and indemnity – whether deeds of guarantee and indemnity are enforceable CONSTRUCTION OF DEED OF RELEASE – whether bringing of proceedings by the plaintiff against the first defendant was a breach of a covenant not to sue in release deed signed by the parties UNJUST CONTRACTS – whether guarantee is an unjust contract pursuant to s 7 of the Contracts Review Act 1980 (NSW) UNCONSCIONABILITY – whether an independent and adequate explanation of the legal effect of executing a guarantee was provided – whether the first defendant acted in reliance upon statements from her husband, family members and/or insurer UNCONSCIONABLE CONDUCT – equitable doctrine of unconscionable dealing – meaning and scope of unconscionability under s 21 of the Australian Consumer Law – whether the s 22 factors that assist in determining if a person has engaged in unconscionable conduct are relevant to the relationship between an insurer and a guarantor – whether the s 22 factors are restricted to the relationship between the insurer as the “supplier” and the insured business as a “customer” EVIDENCE – absence of handwriting expert evidence – no evidence presented that first defendant did not understand the purport and effect of the transaction.

Legislation

Bills revised following amendment in Committee – 11 June 2021
Building Legislation Amendment Bill 2021

Regulations and other miscellaneous instruments - Reminder
Design and Building Practitioners Regulation 2021 (2021-152) — This Regulation commences on 1 July 2021 and is required to be published on the NSW legislation website.

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:

Nicholas Achurch

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