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Residential Focus

21 April 2021

#Property, Planning & Development, #Construction, Infrastructure & Projects

Published by:

Rebecca Weakley

Residential Focus

Design and Building Practitioners Regulation 2021

The Design and Building Practitioners Act 2020 (NSW) (Act) came into effect (in part) on 11 June 2020 (with the bulk to commence on 1 July 2021), and aims to restore public confidence in the NSW building industry by regulating the activities of those who design and construct new buildings. To read our article on the key elements of the Act, click here.

The Act left a lot of detail up to the regulation, which was released as a draft for public consultation in late 2020. The Design and Building Practitioners Regulation 2021 (NSW) (Regulation) was published on 9 April 2021, and differs in many respects from the public consultation draft. We discuss the key provisions of the Regulation below.

The Regulation

The Regulation commences on 1 July 2021. It provides detail for a range of provisions and requirements in the Act, including:

  • the classes of registered practitioners and the work that can be carried out
  • registration of design and building practitioners
  • continuing professional development requirements
  • a new code of practice
  • deemed registration (with a transitional period)
  • PI insurance for registered design practitioners and engineers
  • compliance declaration requirements
  • what needs to be lodged and at what stage in the development
  • notice requirements for building practitioners
  • recognition of professional bodies of engineers
  • clarification as to what is ‘building work’.

Classes of registered practitioners

The classes of registration for design practitioners, professional engineers and building practitioners for the purpose of section 42 of the Act are prescribed in Schedule 1 of the Regulation. Part 2 of Schedule 1 describes the design work that registration entitles the practitioner to carry out.

Registration

Schedule 2 of the Regulation sets out the qualifications, experience, knowledge and skills required for practitioners to be granted registration in the classes set out in the Regulation. The requirements vary between the differing practitioners, but range from minimum time periods of relevant practical experience, to requirements for degrees or diplomas in certain fields, to knowledge and understanding of key provisions of building legislation and codes.

Continuing professional development

The continuing professional development requirements for registered practitioners are contained in Schedule 3. “Relevant education and training” for a registered practitioner is defined as “education and training that is relevant to the class of registration in which the registered practitioner is registered and includes education and training carried out as a requirement imposed under a relevant authorisation held by the registered practitioner.” Registered practitioners are to complete three hours of relevant education and training (approved by the Secretary in the Guidelines) each year. The Guidelines will be made publicly available on the Department website. Registered practitioners must keep written records of CPD for at least five years.

Code of practice

Schedule 4, Division 1 of the Regulation requires prescribed practitioners to comply with the code of practice, set out in the same schedule. The code contains a number of duties, including a duty to act in a professional manner, a duty to act within a level of competence and expertise, a duty to maintain a satisfactory level of competence, a duty to avoid conflicts of interest and a duty to maintain confidentiality. Division 2 of Schedule 4 requires registered professional engineers to comply with each provision, and includes duties such as act in a professional manner, abide by standards expected by the community, act within a level of competence and expertise, act in the best interests of the client, provide information to clients, not inform or mislead, and manage and resolve disputes.

Deemed registration

There is a transitional period from 1 July 2021 to 31 December 2021. Clause 99(1) of the Regulation provides that the deemed registration provisions apply to a person who applies to the Secretary to be registered as a practitioner in a particular class of registration during the transitional period (a prescribed applicant). 

A prescribed applicant is taken to be registered in a particular class of registration for which the applicant is seeking registration if they meet the list of requirements in clause 100(1), which include a duly made application under section 43 of the Act, that the applicant is of the opinion that they are suitable to carry out the work for which the applicant is seeking registration and that the applicant believes they satisfy the qualification, experience, knowledge and skills requirements specified in the Regulation.

Essentially, deemed registration will take effect from the date a practitioner applies. Practitioners who apply after 31 December 2021 will not have the benefit of deemed registration, rather, will have to wait until the Secretary approves their application before commencing work for which registration is required.

PI insurance requirements

Although the Act established compulsory minimum standards of insurance cover for practitioners, the Regulation has deferred compliance until 30 June 2023 (clause 106).

Requirements for adequate insurance cover are established in Part 6, Division 5 of the Regulation. Under clause 77 of the Regulation, a professional indemnity policy must, in the reasonable opinion of a registered design practitioner, registered principal design practitioner or registered professional engineer, provide for an adequate level of indemnity for the liability that could be incurred by the practitioner or professional engineer in the course of their work.

In determining whether a policy provides for an adequate level of indemnity, the registered practitioner or engineer must take into account:

  • the nature and risks associated with the work typically carried out
  • the volume of the work typically carried out
  • the length of time the practitioner or engineer has been registered
  • a reasonable estimate of claims that could be brought against the practitioner or engineer
  • the financial capacity of the practitioner or engineer
  • any limits, exceptions, exclusions, terms or conditions of the policy.

A registered practitioner must keep records for at least five years, and be able to provide copies if requested by the Secretary to do so. As long as the policy is not inconsistent with the requirements of the Regulation, the policy may be subject to a limit of indemnity and to exceptions or exclusions.

Compliance declaration requirements

Section 8 of the Act defines the types of compliance declarations required by practitioners, but leaves the manner and form of the declarations to be prescribed by the Regulation. Part 2, Division 2 of the Regulation provides the requirements relating to regulated designs and compliance declarations. Compliance declarations must be made in the form specified on the NSW planning portal (or alternatively, for design compliance declarations only, in a form approved by the Secretary and published on the Department’s website) (clause 11).

The Regulation contains provisions for regulated designs, for which a compliance declaration is required to be provided. Clauses 4 to 8 provide for the form and content of regulated designs for performance solutions, fire-resisting building elements and integration of vertical transportation products in buildings.

What needs to be lodged and at what stage in the development

Section 107(2)(e) of the Act allows the Regulation to make provision for the lodging of copies of designs and compliance declarations electronically or otherwise with the Department or another person approved by the Minister.

Clauses 16 to 20 of the Regulation provide lodgement requirements. Before commencing building work, a building practitioner must lodge on the NSW Planning Portal copies of the construction issued regulated designs for the building work, copies of the design compliance declarations and a principal compliance declaration (if applicable) (clause 16 of the Regulation).

Clause 17 provides that, after building work commences, a building practitioner must lodge on the NSW Planning Portal (no later than one day after commencing a variation to building work) design compliance declarations for a varied regulated design, a copy of the varied regulated design, a copy of the design compliance declaration obtained for a new building element or performance solution, and a copy of the regulated design for the new building element or performance solution.

A building compliance declaration, contractor document and other required documents (variation statements, regulated design, principal compliance declaration) must be lodged on the NSW Planning Portal by a building practitioner before an application is made for an occupation certificate (clause 18).

Notice requirements for building practitioners

Part 3, Division 3 of the Regulation contains the notice requirements for registered building practitioners. At least 14 days before building work commences, the building practitioner must give written notice to the registered principal design practitioner appointed in relation to the work of the date on which the work is proposed to commence (clause 23) and the date on which the building practitioner proposes to make the declaration (clause 24).

Section 16 of the Act requires written notice to be given to registered building practitioners of the intention to apply for an occupation certificate, and the making of the application for an occupation certificate. Clause 25 of the Regulation provides that notice of the intention to apply for the occupation certificate must be given at least 14 days before the application for an occupation certificate is made, and notice of the application being made must be given within seven days after the application for an occupation certificate is made.

Professional engineering bodies

Part 5 of the Regulation sets out the additional requirements that must be met by a professional body of engineers in order for the body to be recognised by the Secretary as a recognised engineering body, as well as the application process that a professional body of engineers must follow in order to be recognised by the Secretary as a recognised engineering body.

Under clause 50(1) of the Regulation, a body corporate may apply to the Secretary for a grant of recognition as a recognised engineering body. The Secretary will give the applicant written notice of a decision to grant or refuse recognition (clause 51). If the Secretary fails to give an applicant recognition notice of a decision to grant or refuse recognition within 60 days after the application is made, the Secretary is taken to have refused to grant recognition.

Recognition remains in force for the period, not exceeding five years, specified by the Secretary in the notice by which recognition is granted, unless sooner revoked (clause 52). Additionally, for the purposes of section 45(3)(g) of the Act, the Secretary must refuse to register a body corporate as a registered professional engineer (clause 31).

Building work

For the purposes of section 4(1) of the Act, being the definition of “building work”, a building is prescribed if the building, or a part of the building, is a class 2 building (section 12 of the Regulation). The Regulation provides the example that the Act and Regulation apply to a mixed-use building comprising class 2, class 3 and class 6 buildings, including the building’s class 3 and class 6 building parts.

Section 13 of the Regulation lists work that is excluded from being building work, which includes, among other things, work that is carried out as an exempt development, work carried out in compliance with an order given by a council or in compliance with a development control order.

The Regulation has not clarified the lingering question over what classes of buildings attract the new duty of care. That is the question of interpretation between the section 36 approach and the section 4 approach to “building work”, which we discuss here. In any event, the application of the duty of care is broader than class 2 buildings, as the Act extends it to residential building work more broadly.

Wrap-up

There is a vast amount of detail for building and design practitioners to come to grips with before 1 July.

The Regulation contains a number of additional provisions when compared to the draft Regulation released for public consultation towards the end of 2020 and likely reflect some of the concerns raised in submissions from industry bodies.

New additions include the provisions around the restoration of registration of practitioners, provisions around the recognition procedure for design practitioners, insurance provisions regarding work carried out prior to registration, alternative pathways for eligibility for registration, additional classes of design practitioners, building practitioners and professional engineers, additional work included in the description of work for the classes of practitioners, and additional requirements for the qualifications, experience, knowledge and skills required for practitioners.

For more information, do attend our webinar next Wednesday, 28 April 2021.

Authors: Christine Jones & Rebecca Weakley

In the media

HomeBuilder drives surge in new home building
"The number of new houses that commenced construction in the December quarter was the second highest level on record,” stated Tim Reardon, HIA’s Chief Economist. House commencements surged by 27.0 per cent in the final quarter of 2020 to their highest level since March 2000 (14 April 2021).  More...

Global construction industry forecast to grow by 5.2 per cent in 2021
Following the historic collapse in construction activity in 2020 amid the severe disruption caused by restrictions imposed to contain the spread of COVID-19, the global construction industry is set to grow by 5.2 per cent in 2021, according to data and analytics company, GlobalData. Output in 2021 is expected to be 2.5 per cent higher than the 2019 level (12 April 2021).  More...

Crane numbers tell a story of changing housing demand
The number of cranes across Australian city skylines rose to 691 in Rider Levett Bucknall’s latest count, the first increase in two years, as education and infrastructure projects pushed the number of cranes on non-residential work to its highest level since counting began in 2013 (07 April 2021).  More...

'A perfect storm': New home builders 'frustrated' amid trades shortage and supply chain delays
Australia's building sector bears the brunt of a "perfect storm" of events, with near-record new home approvals straining supply chains and sparking construction delays (07 April 2021).  More...

NSW to modernise heritage protections
The New South Wales Government is taking the first steps to review and modernise the NSW Heritage legislation with the referral of a discussion paper to a Parliamentary committee for inquiry and consultation (08 April 2021).  More...

NSW Government working to digitise trade licences
Minister for Better Regulation and Innovation, Kevin Anderson, has announced that the NSW Government will digitise the licence card for more than 30 Home Building and SafeWork licence categories (06 April 2021).  More...

Extension of time to start HomeBuilder projects
The Government has announced an extension of time to commence HomeBuilder projects pushing the current six month requirement out to 18 months (17 April 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
14 April 2021 – private new house commencements increase in December
Building Activity, Australia

09 April 2021 – Building Approvals data for small geographic areas
Building Approvals, Australia

Practice and courts

ABCC industry update – 15 April 2021 edition
Read about the latest court outcomes, litigation news, and everything you need to know about our upcoming security of payment audits in this month's edition.

High Court determination settles right of entry permit requirement
The requirement for union officials to hold a valid federal right of entry permit when entering work sites under state or territory OHS laws has been upheld following a High Court determination. The High Court on 8 April 2021 refused to allow the CFMMEU special leave to appeal a 2020 Full Federal Court decision. Click here to read more (13 April 2021).

Discussion paper: Integrity of private building surveyors and their role in enforcement – a response to the Building Confidence Report
A discussion paper is now open for public consultation in response to the Building Confidence Report. The report made 24 recommendations for a best practice model for compliance and enforcement, to strengthen the effective implementation of the National Construction Code (NCC). Read more here. Closes 27 April 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. Closes 17 May 2021.

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.

NSW Land and Environment Court
Design at the heart of new planning policy. The Explanation of Intended Effect for the Design and Place State Environmental Planning Policy (SEPP), proposes to consolidate and replace existing design-focused policies, including SEPP 65 and BASIX SEPP to ensure good design outcomes for any new major development. The Explanation of Intended Effect for the Design and Place SEPP is now on public exhibition, with submissions now open until 28 April 2021. For more information and to submit feedback, click here.

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. The Design and Building Practitioners Regulation commences on this date. The Design and Building Practitioners Regulation 2021 was published on 9 April 2021.

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.

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.

Cases

NSW

Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57
CONTRACT – cost plus contract for building work – claim in debt following non-payment of final invoice – belated submission that condition precedent requiring provision of details of cost of building works accompany builder's invoice not satisfied – submission not made to trial judge – whether point available on appeal.
CONTRACT – building contract – claim for defective work – owner directed re-pouring of lowered slab – whether that work was a consequence of incorrectly built ceiling – whether owner entitled to damages.
CONTRACT – quantification of damages – building contract – delay in performance – whether owner entitled to damages for diminution in market value of residential house – whether owner entitled to general damages for limited use and loss of amenity while building works continued.
PLEADINGS – conditions precedent – implied allegation that all conditions precedent to plaintiffs’ claim satisfied – obligation on defendant to identify with specificity non-satisfaction of condition precedent to plaintiffs’ claim – Uniform Civil Procedure Rules 2005 (NSW) rr 14.11, 14.14 – history of rules – consequences of failure to comply with rules.

Wilmot v Commissioner for Fair Trading [2021] NSWCATOD 43
ADMINISTRATIVE LAW – home building – application for contractor licence – whether applicant satisfied criterion in respondent’s policy of having experience in a wide range of building construction work – whether applicant satisfied criterion in respondent’s policy of having been supervised by the holder of a contractor licence when doing that work – whether applicant satisfied statutory criterion of having experience enabling him to do, or to supervise, the work for which a supervisor certificate is required – whether applicant is capable of doing or supervising work for which a supervisor certificate is required.

Shoveller v Dak-Wal Constructions Pty Ltd (No 2) [2021] NSWSC 352
NEGLIGENCE – occupiers’ liability – duty of care of builder/occupier for hazard created during building works and causing damage to invitee after handover to owners – relative liability of owners, builder and contractor.

Grandview Pty Ltd v Bacon [2021] NSWCATAP 83
BUILDING AND CONSTRUCTION – contract – identity of parties – terms of contract – damages – betterment – apportionment – contribution between builders for cost of unpaid variations.

Fastway Plumbing Pty Ltd v Castle [2021] NSWCATAP 82
APPEAL – adequacy of reasons – whether the tribunal engaged with the cases of each party.

Legislation

NSW

Regulations and other miscellaneous instruments
Design and Building Practitioners Regulation 2021 (2021–152) – published LW 9 April 2021.

Environmental Planning Instruments
State Environmental Planning Policy (Major Infrastructure Corridors) Amendment 2021 (2021–184) – published LW 16 April 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:

Rebecca Weakley

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