In this edition, we review the Code of Practice (Code) introduced under the Design and Building Practitioners Regulation 2021 (Regulation), its purpose and the practical implications on prescribed practitioners since 1 July 2021.
The Design and Building Practitioners Act (Act) and Regulation have introduced a myriad of regulatory changes. These changes all have a common intent – to rebuild confidence in the NSW construction industry. Standards have been lifted at the start of the building process, formal qualifications are required and continuing education obligations imposed. At the heart of these changes, the practitioner’s values, principles and capabilities are being recalibrated.
In many professions, a code of practice establishes a guideline of principles and standards of what is acceptable conduct or behaviour for that particular group or profession. Non-compliance with these rules may result in a reprimand, disciplinary action and, if serious enough, deregistration.
The benefits of a code of practice are twofold. Firstly, it defines the profession’s values by setting standards for that profession, which builds competency. Secondly, it creates transparency for the public for what can be expected, which builds trust.
By virtue of Section 50(2) of the Act, clause 36(5) of the Regulation compels compliance to a code of practice as a condition of registration as a practitioner. In other words, any practitioner making a design compliance declaration for a regulated design or building compliance declaration for building work must comply with the Code, otherwise, they cannot be registered.
Schedule 4 of the Regulation sets out the Code for prescribed practitioners (Part 2, Division 1 – registered design practitioner, a registered principal design practitioner or a registered building practitioner) and professional engineers (Part 2, Division 2).
There are various obligations for prescribed practitioners set out in the Code of Practice.
Duty to act in a professional manner
Prescribed practitioners must:
Duty to act within level of competence and expertise
Prescribed practitioners must not carry out relevant work that is not authorised by their registration or is beyond their competence or expertise.
Duty to maintain satisfactory level of competence
Prescribed practitioners must ensure that they remain informed of developments in building design, construction and industry practice in relation to building design and construction, to the extent that the developments are relevant to their work and the law applicable to the carrying out of their work.
Duty to avoid conflicts of interest
Prescribed practitioners must:
Duty to maintain confidentiality
Prescribed practitioners must:
Division 2 of Schedule 4 sets out the Code of Practice for professional engineers, which describe very similar obligations as prescribed practitioners. However, professional engineers have these additional obligations:
Duty to act in a professional manner
The professional engineer must:
Duty to act in the best interests of the client
Registered professional engineers must take all reasonable steps to act in the best interests of a client. However, they are not required to act in the best interests of a client if doing so would be inconsistent with the requirements placed on the professional engineer by or under the Act or another Act or law, or contrary to the public interest.
Duty to deal and communicate with clients in professional manner
Registered professional engineers must take all reasonable steps:
Duty to provide information to clients
Registered professional engineers carrying out, or directly supervising, professional engineering work must take all reasonable steps to provide the following information to a client of the professional engineer:
Complying with the Code must be taken seriously. As it is a condition of registration, non-compliance can attract up to 600 penalty units ($66,000) for a body corporate or 300 penalty units ($33,000) for an individual according to Section 56 of the Act. Additionally, under Section 66(1) of the Act, the Secretary may take disciplinary action against a registered practitioner which may impose conditions, suspend, cancel or even disqualify a practitioner from registration.
The landscape for design and building practitioners is changing rapidly. The underlying purpose of the Code should lift the standards of its practitioners and build confidence in the construction industry. For many prescribed practitioners in particular, the idea of a Code is new territory. Therefore, we recommend practitioners review the Code carefully and implement practices and ongoing education to reflect the standards set out in the Code.
Authors: Stephanie Tan & Simona Njaim
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Australian Bureau of Statistics
10 August 2021 – building approvals data for small geographic areas.
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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.
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
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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
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Lawrence v Sammut  FCCA 1929
BANKRUPTCY – application to set aside bankruptcy notice on ground that applicant has counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt – bankruptcy notice based on a judgment entered on the registration of a costs certificate recording the assessment of costs debtor was ordered to pay to the creditors in proceedings in the Supreme Court of New South Wales in which debtor unsuccessfully claimed he had an interest in land – debtor claims he has counter-claim, set-off or cross demand based on money he spent and work performed in relation to the property – whether in determining whether debtor has counter-claim, set-off or cross demand the Court is restricted to considering the affidavit filed when the debtor filed application to set aside bankruptcy notice – Court not so restricted – whether the proceeding in relation to which the debtor could not have set up counter-claim, set-off or cross demand is the proceeding in which the order for costs was made or instead in the proceeding in which the certificate for costs was registered – the latter is the relevant proceeding which means that the counter-claim, set-off or cross demand the debtor claims he has could not have been set up in that proceeding – whether there is sufficient substance to the counter-claim, set-off or cross demand asserted to make it one which the debtor should, in justice, be permitted to have heard and determined in the usual way, rather than be forced to comply with the bankruptcy notice by payment or to commit an act of bankruptcy – there is sufficient substance in relation to some amounts but the amounts do not in total exceed the amount of the judgment debt – application adjourned to a date for the purpose of making an order dismissing the application and an order as to costs.
Lama v Roselands Services Pty Ltd (No. 2)  NSWCATCD 53
COSTS – calderbank offer.
Patel v Caesar Homes Pty Ltd  NSWCATCD 47
CIVIL PROCEDURE – jurisdiction – renewal of proceedings in the Consumer and Commercial Division of NCAT – whether condition in clause 8 of Scheme 4 of the Civil and Administrative Tribunal Act 2013 (NSW) has been satisfied.
Bourke v Wincrest Group Pty Ltd  NSWCATCD 44
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – renewal proceedings where work order not complied with – ‘major defect’ – ‘major element’.
Blackhall v Fine Cut Building Pty Ltd  NSWCATCD 43
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – sections 18B, 18F, 48MA – statutory warranty – defective work – statutory defence – whether failure to comply with specified purpose – mitigation of damage – work order or money order.
Manfredini & McCrae v NSW Architects Registration Board  NSWCATOD 116
OCCUPATIONS – architects – complaint – disciplinary determination – reprimand – fine – order for refund – application for review – whether conduct breach of code of conduct – whether unsatisfactory professional conduct – appropriate disciplinary orders.
Smith v Slater  NSWCATCD 38
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – unlicensed contractor – defective and incomplete work – damages.
Garofali v Moshkovich  NSWCATAP 242
BUILDING AND CONSTRUCTION – residential building work – written contract – whether payments made outside terms of written contract – whether contract had been varied – no error established.
The Owners – Strata Plan No 68255 v Downs; Downs v The Owners – Strata Plan No 68255  NSWCATCD 34
LAND LAW – strata title – common property – identification of common property – delineation of boundaries between lot and common property – interpretation of strata plan – whether order should be made restraining a lot owner from exclusively occupying common property.
LAND LAW – strata title – owners corporation – meetings of owners corporation – whether the Civil and Administrative Tribunal has jurisdiction to order an owners corporation to convene a general meeting.
Gaskell and Bourke v Northshore Homes Pty Ltd and Nazha  NSWCATCD 33
BUILDING and CONSTRUCTION – misleading and deceptive conduct – director’s liability for statements made on behalf of company – scope of section 74(3) of the Fair Trading Act 1987(NSW) – Jones v Dunkel inferences.
Regulations and other miscellaneous instruments
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 (2021–461) – published LW 20 August 2021.
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.