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Residential Focus

19 May 2021

#Property, Planning & Development

Published by:

Nicholas Achurch

Residential Focus

Design & Building Practitioners Act – principal design practitioners snapshot

In the second 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 apply to principal design practitioners.

This builds on our first instalment here which focused on design practitioners. Given that principal design practitioners are also design practitioners, we won’t repeat the aspects of our first instalment common to both. Instead, we will focus on the additional requirements which apply to principal design practitioners in this snapshot.

Who can be a principal design practitioner?

A principal design practitioner must be registered as a design practitioner under the Act, although there are some classes of registered design practitioners who are not permitted to be principal design practitioners. They are:

  • building design (low rise)
  • building design (medium rise)
  • drainage (restricted)
  • vertical transportation.

Design practitioners can nominate to register as principal design practitioners on their registration forms, including applications for deemed registration.

Do I need to appoint a principal design practitioner?

Appointing a principal design practitioner is not mandatory, according to the second reading speech.

A principal design practitioner may be appointed by a registered building practitioner for a variety of reasons, including to ensure administrative efficiency on projects of size or complexity, for example, those with a number of design elements necessitating a number of design compliance declarations. 

This may be viewed as a risk management measure by the registered building practitioner, that is, it may be perceived as beneficial to have a single point of responsibility to ensure that all registered design practitioner’s declarations are provided and qualifications confirmed.

What are the ongoing obligations for continuing registration?

The principal design practitioner’s obligations to maintain registration are similar to those required for design practitioners, in that they must annually complete three hours of continuing professional development to maintain their registration and comply with a code of conduct.

Once the indemnity requirements commence (currently deferred until 30 June 2023), principal design practitioners will need to be mindful of the adequacy of their cover, given the nature of their role, as referred to below.

What are the principal design practitioner’s key obligations under the Act?

A registered design practitioner who has been appointed as a principal design practitioner must:

  • ensure that a design compliance declaration is provided to the registered building practitioner for every regulated design (including variations and associated designs)
  • ensure that each design compliance declaration has been provided by a registered design practitioner whose registration duly authorises them to provide such a declaration
  • provide a principal compliance declaration which states:
    • whether or not a design compliance declaration has been provided in respect of each regulated design
    • whether or not those design compliance declarations have been provided by design practitioners who duly authorises to make such declarations.

The principal design practitioner must ensure that a copy of any principal compliance declaration is provided to the registered building practitioner within the below timeframes:

  • in the case of construction issued regulated designs, before the registered building practitioner submits a notice of building compliance declaration, or
  • in the case of all regulated designs other than construction issued designs, before the registered building practitioner submits a notice of application for an occupation certificate.

A principal design practitioner must not make a declaration that the principal design practitioner knows to be false or misleading.

There are significant penalties for non-compliance.

Any hidden risk?

Whether there is a hidden risk for the principal design practitioner depends on whether the role of the principal design practitioner is to look at the substance of each design declaration or just to ensure that they are provided and by someone appropriately registered.

The structure of the legislation tends to the conclusion that this is a role of confirming “has it been done?” rather than one of reviewing and assessing the substance of each individual design and its compliance with the BCA (Building Code of Australia). This view is supported by the Second Reading Speech.

Having said that, the role could not be performed properly by merely ticking a box on the sighting of a design compliance declaration.

Firstly, the principal design practitioner needs to assess whether what purports to be a design compliance declaration meets the requirements of a design compliance declaration under section 8 of the Act and the various clauses of the Regulation which amplify its requirements.

Secondly, the principal design practitioner needs to verify that the design compliance declaration is by a registered design practitioner who is appropriately authorised, which will involve checking the register and the class of registration. 

Thirdly, and perhaps the most taxing exercise, is the requirement for the principal design practitioner to ensure that a design compliance declaration has been provided for each regulated design prepared for the building work. That exercise can’t be satisfied by merely reviewing the design compliance declarations presented. It extends to 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. 

This role is significant in scope and likely needs to be performed by someone who is deeply embedded in the design team for the project.

Ultimately, disciplinary decisions and case law will reveal the full extent of the risk attaching to principal design practitioners.

How should I prepare for 1 July?

Consider whether the Act applies to you, if it does, register within the transitional period which ends 31 December 2021. If you’re seeking registration as a design practitioner and wish to be a principal design practitioner, make this election at registration.

Get a thorough understanding of the Act and your role within the regime as a principal design practitioner. Map out the processes required for compliance and consider what training may be required. Update your risk register.

Consult with your professional body around support to meet continuing education requirements, as well as steps that may be underway to arrange insurance coverage through your professional body, in the lead up to 30 June 2023.

Authors: Christine Jones & Nicholas Achurch

In the media

A road map to improve the fire safety in buildings
The Australian Modern Building Alliance outlined a holistic approach to the fire safety in buildings at the Fire Conference 2021 Conference, highlighting seven layers of fire safety in buildings and a proposed European regulatory framework known as BIO – covering building, installation, and organisational requirements for fire safety in high-rise buildings (12 May 2021).  More...

HIA: Housing and jobs lead economic recovery
The budget will help support the home ownership aspirations for thousands of households and create more opportunities for young people to embark on careers in the housing industry (11 May 2021).  More...

Recovery will continue riding on the ute’s back – builders and tradies back budget
Builders and tradies will strongly back the budget. It will boost the confidence of the industry that the "recovery can continue to largely ride on the ute’s back,” Denita Wawn, CEO of Master Builders Australia said. This is not an accountant’s budget it is a nation-builders (11 May 2021).  More...

HIA: Support for home ownership will help families
The announcement of new support measures aimed at helping families into their own home will make a real difference in the lives of thousands of Australians. Research in 2019 found that 92 per cent of renters aspire to own their own home yet just 49 per cent of renters felt they would achieve home ownership (08 May 2021).  More...

First home buyers have driven demand
There were over 155,000 loans issued to first home buyers over the past 12 months. This is the most loans to first home buyers since the post-GFC stimulus measures in 2009 and 50 per cent higher than the long-term average (07 May 2021).  More...

New home sales halve as HomeBuilder winds up
New home sales halved nationally in April as the federal government’s $25,000 HomeBuilder stimulus package came to an end, new figures from the Housing Industry Association reveal (13 May 2021).  More...

Sydney most expensive city to build in Australia
Sydney has topped Australian cities as the most expensive place to build – and prices are expected to rise. The Arcadis 2021 International Construction Costs report ranks 100 cities around the world based on a survey of costs and market conditions. Sydney was 29th in the world, ahead of Melbourne (41), Brisbane (42), Perth (45) and Adelaide (55) (11 May 2021).  More...

Construction code changes can future-proof homes
Australia’s building ministers at their meeting on April 30 decided to include minimum accessibility standards in the 2022 National Construction Code. The new standards will come into effect in September 2022 and reflect the fact that our housing needs are changing as our population ages (07 May 2021).  More...

Helping communities rebuild and recover from natural disasters
By bringing together critical data from the nation’s key climate research institutions, the Australian Climate Service will not only help save lives and money through a more informed emergency response, it will inform long-term planning for infrastructure, housing and basic services like power, telecommunications, and water (05 May 2021).  More...

Hazard 2020 – scaffolding audit results continue to raise concern
The latest Hazard 2020 safety campaign data up to the end of April 2021 continues to show that while accredited companies are making solid progress in improving the safety of mobile plant, compliance with scaffolding requirements remains too low (04 May 2021).  More...

Engineers at Sydney towers with 'structural issues' must be 'accountable', says Building Commissioner
The NSW Building Commissioner says he wants to know why an apartment complex being built in the Sydney suburb of Castle Hill has "structural issues" and will refer the principal engineers to the industry's peak body (14 May 2021).  More...

'Structural issues' found in 'luxurious' Sydney apartment tower
One of Sydney's biggest residential property developments is under review amid the discovery of "structural issues" that will require "specialist engineering advice" (13 May 2021).  More...

Engineering company fined after crane collapses onto building
A structural engineering company has been fined $225,000 after three workers were injured when a tower crane collapsed onto an apartment block in Wolli Creek, NSW. S&T Services Pty Ltd was investigated by SafeWork NSW and pleaded guilty to a breach of the Work Health and Safety Act 2011 in the NSW District Court (13 May 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
Building Approvals, Australia 05 May 2021.

ABCC industry update – 13 May 2021 edition
Read about the state of the industry, litigation news and more in this month's edition of Industry Update.

Practice and courts

HIA: Have your say on changes to the building code for 2022
HIA encourages all members to take time and review the changes to the National Building Code that will impact on housing from September 2022. Have your say on changes to the building code for 2022 here.

Consultation on NCC 2022 public comment draft (stage 1) now open
10 May 2021 – 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 until 2 July 2021.

Discussion paper: Building Manuals – a response to the Building Confidence Report
A discussion paper is now open for public consultation in response to the Building Confidence Report. Recommendation 20 of the Building Confidence Report states that each jurisdiction should require a comprehensive building manual for Class 2 – 9 buildings to be lodged with the building owners and made available to successive purchasers of the buildings. Read more here.

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. Read more here. Closes 6 June 2021.

ABCB: Improvements to the code’s structure and format will be implemented for NCC 2022
To guide users through the changes, the ABCB has developed a range of supporting resources that will be released in stages leading up to the publication of the NCC 2022 public comment draft on 10 May 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 here.
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

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.

Cases

The Owners – Strata Plan 64757 v Sydney Remedial Builders Pty Ltd [2021] NSWSC 536
PRACTICE AND PROCEDURE – application to amend list response to allege proceedings out of time – whether building contract made date in Certificate of Practical Completion conclusive as to when completion took place.

Patel v Redmyre Group Limited [2021] NSWCATAP 132
APPEAL – building and construction – finding that appellant owners had failed to prove that the respondent builder failed to diligently proceed with the works – whether owners validly terminated the contract – whether contract repudiated by owners-held owners not entitled to recover damages for breach of contract – entitlement of builder to recover costs of additional works on basis of quantum meruit – appeal dismissed with costs.
CIVIL PROCEDURE – application to refer question of law to Supreme Court of NSW – application made on basis of factual assumption not established in the proceedings – application refused.

BuildPlatinum Pty Limited v Micaleff [2021] NSWCATAP 129
APPEALS – building and construction – residential building – evidence – expert evidence – assessment of expert evidence – whether evidence established breach of statutory warranty.
APPEALS – civil procedure – re-opening of case – applicable principles.

Sydney RV Group Pty Ltd v Mark Anthony Vallender [2021] NSWCATAP 125
APPEALS – procedural fairness – effect of r 13, Civil and Administrative Tribunal Rules 2014 – service of Notice of Hearing by Tribunal taken to be effective unless otherwise proven – obligation on party to comply with directions – discretion of appeal panel to allow appeal even if error demonstrated.

Wilderness Blue Pty Ltd v Frasers Putney Pty Ltd [2021] NSWCATAP 115
HOME BUILDING CONTRACT – whether contract to do residential building work, meaning of “procure” – claim for breach of warranties as successor in title – whether time for lodgment of application should be extended.

Lane v Bloc Constructions (NSW) Pty Ltd [2021] NSWCATAP 114
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – residential building work – statutory warranty – proceedings for breach – damages – claimed loss of rent cause by breach of statutory warranty – no evidence to support claim – claim dismissed – no error in Tribunal rejecting evidence not previously served – fresh evidence rejected on appeal as not established that evidence not reasonably available at the time of the Tribunal hearing.

Slotwinski v Nutek Constructions Pty Ltd [2021] NSWCATAP 113
COSTS – party/party – successful defence by way of equitable set-off which extinguished the respondent’s claim – costs should follow the event.

HSL Group Pty Ltd v Commissioner for Fair Trading, Department of Customer Service [2021] NSWCATAP 112
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – improper conduct – disciplinary action – appellants failed to obtain insurance and made false or misleading applications – residential building work not carried out under a contract – appellants not fit and proper persons to hold an authority under the Act.
APPEALS – whether finding that appellants not fit and proper persons to hold an authority under the Home Building Act 1989 (NSW) against weight of evidence – inferences from primary facts – inconsistency of findings – conclusion not supported by findings – whether finding of unacceptable risk of reoffending not justified by evidence – whether Tribunal had regard to irrelevant consideration in taking candour into account – whether Tribunal disregarded relevant consideration in concluding subjective state of mind and understanding of conduct not to the point – appeal dismissed.
APPEALS – leave to appeal – principles governing.
APPEALS – procedural fairness – failure to give reasons – adequacy of reasons.

Mangadha v Commissioner for Fair Trading
(1) The application in respect of the Mutual Recognition Act Decision is dismissed for lack of jurisdiction.
JURISDICTION – Mutual Recognition (New South Wales) Act 1992 – extent of Tribunal’s jurisdiction – continuation of proceedings misconceived and lacking in substance when substantive reasons for application no longer apply.
Administrative Appeals Tribunal Act 1975 (Cth) – Civil and Administrative Tribunal Act 2013 (NSW) – Home Building Act 1989 (NSW) – Mutual Recognition (New South Wales) Act 1992 (NSW).

Legislation

Regulations and other miscellaneous instruments
Coal Mine Subsidence Compensation Amendment (Contributions) Regulation 2021 (2021–210) – published LW 7 May 2021.

Bills introduced Government – 12 May 2021
Better Regulation Legislation Amendment (Miscellaneous) Bill 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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