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Residential Focus

05 May 2021

#Property, Planning & Development

Published by:

Nicholas Achurch, Rebecca Weakley

Residential Focus

Design & Building Practitioners Act – design practitioner snapshot

In this edition of Residential Focus, we begin our series of snapshots for each group of professionals who will be affected by the commencement of the registration and compliance provisions of the Design & Building Practitioners Act on 1 July 2021.

In this first snapshot, we focus on design practitioners and we will work through the other practitioners in the coming weeks.

Do I do work which is caught by the Act?

The Act covers all design work which is classified, rather broadly, as work involved in, coordinating or supervising work involved in, one or more of the following:

  • the construction of a class 2 building, or any mixed-use building with class 2 elements
  • alterations to 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.

Class 2 buildings are any buildings which contain two or more sole-occupancy units, each being a separate dwelling (SOU).[1]

Designers of any element of a class 2 building, or building with class 2 elements or parts, whether it be a new build, a renovation or a repair are likely to be covered by the Act and Regulations, unless it falls under a relevant exclusion. The exclusions (too numerous to easily summarise here, but see clause 13 of the Regulation) include works which are part of an exempt development and works carried out in compliance with a Council order or an EPA Act order (unless in relation to cladding).

Am I a design practitioner?

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

A regulated design, under section 5 of the Act, is 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)
  • design prepared for a performance solution for building work
  • any other design of a class prescribed by the Regulation that is prepared for building work

The concept of regulated designs is aimed at capturing crucial building elements that are most likely to affect the safety and quality of buildings.

Schedule 1 of the Regulation contains the 15 classes of registration for design practitioners:

  • Architectural
  • Body corporate
  • Building design (low rise)
  • Building design (medium rise)
  • Civil engineering
  • Drainage
  • Drainage (restricted)
  • Electrical engineering
  • Façade
  • Fire safety engineering
  • Fire systems (detection and alarm systems)
  • Fire systems (fire hydrant and fire hose reel)
  • Fire systems (fire sprinkler)
  • Fire systems (mechanical smoke control)
  • Geotechnical engineering
  • Mechanical engineering
  • Structural engineering
  • Vertical transportation.

A registered design practitioner is a person who is registered as a design practitioner under the Act or is recognised as a design practitioner under the Act.

What do I need to do to register?

Eligibility to Apply

Schedule 2 of the Regulation sets out the qualifications, experience, knowledge and skills required for practitioners to be granted registration in one of the classes.

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.

Design practitioners can register if they have at least five years of recent relevant practical experience in the last 10 years in their practice area.

If the design practitioner has not completed the two years of recent relevant experience within Australia, a minimum of 10 years’ experience is required to be demonstrated, as well as the completion of a competency assessment.

Body corporates cannot apply for registration as an engineer[2], however, the Regulation is silent on this issue for other classes of design practitioners.

What is relevant experience?

Relevant experience is:

    • the preparation of designs
    • carrying out building work
    • performing professional engineering work on class 2 buildings or buildings which contain a class 2 element.

Application for Registration

To apply for registration as a Design Practitioner, the practitioner must:

    • complete and lodge the form which will be required by Fair Trading
    • provide supporting evidence to accompany the form which demonstrates the practitioner’s relevant experience
    • Fair Trading may require the practitioner to:
      • provide further documents as specified
      • submit to an exam to demonstrate the applicant’s skills.

Registration of a practitioner can be for a period of one, three or five years.

What are my ongoing obligations for registration?

The continuing professional development requirements for registered practitioners are contained in Schedule 3 of the Regulation.

“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, although exemptions can be made. The Guidelines, which are not yet published, will be made available on the Department website.

The legislation also requires practitioners to comply with a code of practice which includes duties to act in a professional manner, to act within a level of professional competence and expertise, to maintain a level of competence, to avoid conflicts of interest and to maintain confidentiality.

Compliance with mandatory insurance requirements, for all classes of practitioner, has been deferred until 30 June 2023.

What is the form and content of regulated designs and design compliance declarations?

Clause 5 of the Regulation provides that a regulated design for a performance solution must be in the form of a report, including:

  • any relevant plans or specifications showing the physical elements of the performance solution
  • a description and justification of the performance solution (including such things as acceptance criteria and parameters, description of physical elements, restrictions or conditions and the brief on which it is based)
  • a statement that the performance solution complies with the BCA
  • information which identifies the DTS provisions being varied.

Specific requirements related to designs involving fire-resisting building elements (how a fire resistance level will be achieved and maintained where a penetration occurs to a building element) and vertical transportation elements (the registration number of the product if it is to be used in a workplace). The design compliance declarations for vertical transportation elements must also address additional matters arising under WHS legislation and AS 1735.

A design compliance declaration must address the compliance of the design with the BCA, whether or not other standards, codes or requirements have been applied and integrate details of:

  • other aspects of building work to which the design relates
  • other regulated designs for the work.

A design compliance declaration must additionally address whether:

  • the design if used would achieve BCA compliance
  • the design involves a performance solution
  • the design complies with guidance material published by the Secretary
  • specialist advice was sought (clause 9 of the Regulation).

What do I need to do during the design stage to comply with the Act?

A registered design practitioner must ensure that a design compliance declaration is provided (to the person to whom the regulated design is provided and to the principal design practitioner) for each regulated design, whether construction issued or non-construction issued. Further compliance declarations must be provided where regulated designs are varied before building work commences, or after building work commences where the regulated design relates to a building element or a performance solution. 

In all cases, design practitioners must ensure that design compliance declarations are prepared by a registered design practitioner whose registration authorises them to provide that declaration. These declarations are to be issued before the date specified in a notice given by a registered building practitioner.

The maximum penalty for non-compliance is 1,500 penalty units in the case of a body corporate or 500 penalty units in any other case.

A registered design practitioner must ensure that they do not make a declaration that they know to be false or misleading.

The maximum penalty for non-compliance is 2,000 penalty units or imprisonment for two years, or both.

How should I prepare for 1 July?

Before 1 July, designers should consider the type of design work they perform and on what buildings, to assess whether they are a design practitioner within the meaning of the Act. If they are or are likely to in future be a design practitioner within the Act, they should seek deemed registration within the transitional period until 31 December 2021.

Designers should map out the processes required for compliance and consider what may need to change within their organisations. Training will need to be implemented around the requirements for a regulated design and a compliance declaration. Risk management processes will need to be updated.

Designers should also speak to their professional bodies around compliance, in particular regarding continuing education requirements, as well as steps which may be underway to arrange insurance coverage through the professional body, in the lead up to 30 June 2023.

There are also transitional provisions which affect design practitioners where designs were prepared before 1 July 2021 but works not commenced. Design practitioners should consider carefully the compliance position regarding designed, but uncommenced work in the lead up to 1 July.

Authors: Christine Jones, Nicholas Achurch, Rebecca Weakley & Ushna Bashir

[1] Section 5 of the Design and Building Practitioners Act 2020 (NSW).
[2] Clause 31 of the Regulation.

In the media

House building numbers at record highs, units and apartments continue decline
Despite the federal government’s HomeBuilder scheme coming to a close, house building has reached record numbers in April, as new apartment development activity hits its lowest point since 2012 (28 April 2021).  More...

New post-tensioning scheme launched to boost construction sector
Australia’s construction sector is set to benefit from the introduction of rigorous new standards for post-tensioning – the method of reinforcing concrete with high-strength steel strands or bars. The new standards are backed by an independent certification scheme (27 April 2021).  More...

New alliance to help decarbonise construction industry
Over thirty leading companies have joined forces with the NSW Government and WWF Australia to launch a new alliance aimed at decarbonising Australia’s building and construction industry. The Materials & Embodied Carbon Leaders’ Alliance aims to drive reductions in embodied (upfront) carbon across the building supply chain (27 April 2021).  More...

Seven signs the housing market is nearing its peak
The pace of capital gains across Australian housing markets has been close to record breaking, with the national growth rate in March the fastest since 1988, according to the update of CoreLogic’s benchmark measure of housing values (23 April 2021).  More...

People with disabilities are living in homes that don't fit them – but advocates say a change is coming
Proposed changes to the National Construction Code being considered next week could make it easier for people with disabilities to live in their own homes, as advocates say most live without adequate housing (22 April 2021).  More...

HIA: Demand for residential land elevated
Land prices in the December quarter started to reflect the increase in demand that was seen in the September quarter. Nationally, prices increased by 4.1 per cent to be 0.3 per cent higher than the same time last year. Land prices can lag behind changes in demand due to the length of settlement periods (20 April 2021).  More...

HomeBuilder construction commencement extension solves part of the puzzle – but many pieces still missing
Builders have welcomed the Morrison government’s decision to extend its HomeBuilder construction commencement timeframe – but the industry continues to fight to solve trade and materials shortages and soaring prices (20 April 2021).  More...

HomeBuilder construction deadline extended
The federal government has extended the deadline to begin construction under the HomeBuilder grants program by an additional 12 months. Those who were eligible for the grant before its March 31 conclusion – some 121,000 building applications, according to the government – will now have 18 months after signing contracts to commence construction (17 April 2021).  More...

Safe cladding products endorsed by expert panel
A major milestone for Project Remediate, the NSW Government’s billion-dollar program has occurred with the release of an independent report outlining four safe and non-flammable product categories that represent the first tranche to replace high-risk cladding (20 April 2021).  More...

Published – articles, papers, reports

Comsec state of the states report April 2021
Eight key indicators: economic growth; retail spending; equipment investment; unemployment; construction work done; population growth; housing finance and dwelling commencements. Read more here.

Practice and courts

Product recall: Fluidra Group Australia Pty Ltd – AstralPool gas HiNRG, ICI and Viron eVo swimming pool heaters
27 April 2021 – water heaters product recall – the Australian Competition & Consumer Commission has published a product recall for Fluidra Group Australia Pty Ltd – AstralPool HiNRG, ICI and Viron eVo gas swimming pool heaters. Click here to read more.

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. Click here to read 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

NSW

Masters in Building Training Pty Ltd v State of New South Wales [2021] NSWSC 454
EQUITY – equitable remedies – injunction – mandatory – government contract to fund plaintiff’s training of apprentices purportedly terminated with only three months to run – whether interlocutory mandatory inunction should be granted – no issue of principle.

Elias v Commissioner for Fair Trading [2021] NSWCATAD 111
ADMINISTRATIVE REVIEW – home building – application for contractor licence – qualification and experience requirements set out in an instrument issued by the respondent – whether the applicant meets the terms of the instrument, read as a policy – whether the tribunal is satisfied that the applicant has the requisite experience to be a builder – whether supervised in the doing of the work – remuneration requirement.

Merrick v Hines [2021] NSWCATAP 108
APPEAL – home building – procedural fairness – appeal on a question of law – reasonable opportunity to be heard.

The Owners – Strata Plan No 87265 v Saaib (No 2) [2021] NSWSC 394
(2) The plaintiff to pay the first defendant’s costs of this application on the ordinary basis.
COSTS – exceptions to general rule that costs follow the event – offers of compromise – walk away offers made by defendant in early and late stages of proceedings – no real element of compromise in early offer – evidence available at date of later offer raised significant difficulties for plaintiff’s claim – indemnity costs awarded on basis of later offer under Uniform Civil Procedure Rules 2005 (NSW) r 42.15A.
Civil Procedure Act 2005 (NSW), ss 56(1)–(2); Home Building Act 1989 (NSW); Uniform Civil Procedure Rules 2005 (NSW), rr 12.3, 20.26, 42.1, 42.15A.

Majak v Rose [2021] NSWSC 292
CIVIL PROCEDURE – amendment – application for leave to amend statement of claim – proposed claim concerns financial matters between parties to a de facto relationship – where claims made relate to compliance with Family Court orders – Family Court has jurisdiction to deal with matters – where regardless plaintiff is estopped from raising proposed claim – unreasonable not to raise proposed claim in Family Court proceedings – where claims are statute-barred barred – where plaintiff self-represented – notice of motion dismissed – leave given to serve proposed further amended statement of claim.

TANAH MERAH VIC PTY LTD (ACN 098 935 490) v OWNERS CORPORATION NO 1 OF PS613436T and ORS [2021] VSCA 72
BUILDING AND CONSTRUCTION – applications for leave to appeal on questions of law from a decision of the Victorian Civil and Administrative Tribunal (VCAT) with respect to a domestic building dispute – claims in respect of property damage and economic loss arising from fire at a multi-level residential building – Use of aluminium composite panels (‘ACPs’) on facades of building a cause of the damage suffered by the owners – Owners’ claims against builder pursuant to statutory warranties concerning the suitability of materials, compliance with the law and fitness for purpose arising under Domestic Building Contracts Act 1995 s-subs 8(b), (c) and (f).
BUILDING AND CONSTRUCTION – builder’s claim against building surveyor, architect and fire engineer for failure to exercise reasonable care in accordance with consultancy agreements – whether owners’ claim before VCAT apportionable under Wrongs Act 1958 pt IVAA – whether builder a concurrent wrongdoer in respect of the consultants for purposes of proportionate liability – whether builder failed to take reasonable care in selecting and installing cladding – whether Tribunal failed to consider aspects of the case against the builder alleging failure to take reasonable care – whether open to contend on application for leave to appeal that Building Act 1993 s 16 imposed a non-delegable duty of care upon the builder with respect to property damage and economic loss – whether owners’ claim against builder was one ‘arising from a failure to take reasonable care’ – whether owners’ claim properly characterised as one apportionable claim against all the respondents to the primary proceeding.
BUILDING AND CONSTRUCTION – whether on the proper construction of the relevant specification the builder was permitted or directed to select and install ACPs which did not comply with the Building Act 1993 and the Building Code of Australia (‘BCA’) – Use of ACP ‘indicative to Alucobond’ – whether Tribunal erred in finding architect negligent in respect of its inspection and approval of ACP sample – Whether reasonably open to Tribunal to find owners’ loss included an increase in insurance premiums – whether Tribunal erred in its construction of BCA cl C1.12(f) – meaning of ‘laminate’ in relevant provision of the BCA.
PROFESSIONAL NEGLIGENCE – whether building surveyor acted as a member of a profession and in accordance with peer professional opinion – whether the Tribunal erred in its conclusions with respect to the relevant peer professional opinion having regard to Wrongs Act 1958 s 59(2) – whether by issuing the stage 7 building permit the building surveyor made a representation to the builder that was misleading and deceptive.
CAUSATION – whether the building surveyor’s failure to identify and remedy omissions in the description of proposed cladding in the fifth fire engineering report was causative of loss – whether counter-factual hypothesised to establish causation of loss as a result of building surveyor’s negligence with respect to the fifth fire engineering report was inconsistent with findings of Tribunal as a whole.
APPORTIONMENT – allocation of responsibility between building surveyor, architect, fire engineer and smoker who started fire – whether Tribunal failed to consider the degree of departure by the building surveyor from the relevant standard of care in making apportionment findings.
BUILDING AND CONSTRUCTION – leave to appeal refused with respect to proposed grounds of appeal advanced on behalf of the fire engineer and architect – leave to appeal granted with respect to proposed ground 3 of the building surveyor’s proposed grounds of appeal concerning the Tribunal’s findings with respect to causation of loss consequent upon negligence with respect to the fifth fire engineering report – leave to appeal otherwise refused with respect to the further grounds advanced by the building surveyor – appeal allowed with respect to proposed ground 3 of the building surveyor’s proposed grounds of appeal – Domestic Building Contracts Act 1995 s 8 – Building Act 1993 s 16 – Building Code of Australia cl C1.12(f) – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Wrongs Act 1958 pt IV AA, ss 24AE–24AI, 59 – Toomey v Scolaro’s Concrete Constructions Pty Ltd [No 2] [2001] VSC 279 considered – Selig v Wealthsure Pty Ltd (2015) 255 CLR 661 applied – Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 applied – Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185 considered – Reinhold v NSW Lotteries Corporation [No 2] (2008) 82 NSWLR 762 considered – Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450 considered – Godfrey Spowers (Vic) Pty Ltd v Lincolne Scott Australia Pty Ltd (2008) 21 VR 84 considered – Perpetual Trustee Company Limited v CTC Group Pty Ltd [No 2] [2013] NSWCA 58 considered – Permanent Custodians Ltd v Geagea (No 4) [2016] NSWSC 934 considered – Bolitho v City and Hackney Health Authority [1998] AC 232 considered – Jones v South Tyneside Health Authority [2001] EWCA Civ 1701 considered.

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.

Legislation

Regulations and other miscellaneous instruments
Design and Building Practitioners Regulation 2021 (2021–152) – published LW 9 April 2021.
This Regulation commences on 1 July 2021 and is required to be published on the NSW legislation website.
Home Building Amendment (Digital Authorities) Regulation 2021 (2021–187) – published LW 23 April 2021.

Environmental planning instruments
State Environmental Planning Policy (Infrastructure) Amendment (Health Services Facilities) 2021 (2021–206) – published LW 30 April 2021.
Sydney Local Environmental Plan Amendment (Affordable Housing) 2021 (2021–208) – published LW 30 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:

Nicholas Achurch, Rebecca Weakley

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