New building design and construction laws commence in NSW

The design and construction of buildings in NSW are now subject to a new regulatory framework. This will affect many practitioners in the building industry including builders, building designers, building product manufacturers and suppliers, project managers and certifiers.

Snapshot

• The Design and Building Practitioners Act 2020 (NSW) (DBP Act) commenced on 10 June 2020. However, some key provisions will commence at a later date.
• The DBP Act imposes a duty on those who carry out construction work to exercise reasonable care to avoid economic loss caused by defects. This duty will also apply retrospectively to defects that first became apparent in the last 10 years.
• From 1 July 2021, a new regime will provide for the registration of building practitioners, require practitioners to make compliance declarations, and enable regulations to be made to prohibit the issuing of complying development, construction, occupation and other certificates unless the certifier has been given a regulated design and/or compliance declaration.

New duty of care for the building industry 

The DBP Act imposes a new duty of care on those who carry out construction work (that is, building work, preparation of designs, manufacturing and supplying of building products, or supervising, coordinating or project-managing any of the above) to exercise reasonable care to avoid economic loss caused by defects arising from the work.

These provisions will have retrospective effect. They will apply to economic losses that first become apparent after the commencement of the DPB Act as well as those that first became apparent within 10 years immediately before commencement.

New regime for regulating building designs and construction 

From 1 July 2021, the DBP Act will introduce a new regime to regulate the design and construction of buildings. The key elements of the regime include the following:

• Registration of practitioners — There will be a register of design practitioners, principal design practitioners, professional engineers, specialist practitioners and building practitioners.
• Compliance declarations — A declaration of compliance with the Building Code of Australia (BCA) and other requirements must be made by:
  • a registered design practitioner when providing a regulated design (that is, a design prepared for fire safety systems, waterproofing elements, load-bearing components, building enclosures, mechanical, plumbing and electrical services required by the BCA, performance solutions under the BCA, or other things to be prescribed by regulation); and
  • a registered building practitioner before applying for an occupation certificate.
• Restrictions for certifiers — Regulations can be made to prohibit the issue of the following certificates unless compliance declarations or regulated designs (or both) have been provided to the certifier:
  • a complying development certificate;
  • a certificate under Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (that is, a subdivision certificate, a subdivision works certificate, a construction certificate, an occupation certificate and a compliance certificate);
  • a strata certificate under the Strata Schemes Development Act 2015 (NSW); and
  • a certificate of compliance under the Swimming Pools Act 1992 (NSW).

Industry impact

The DBP Act will have widespread ramifications for the building industry in NSW. Practitioners in the industry should be aware of the new duty of care (including its retrospective application) and other provisions that are now in force, and become familiar with the new regime coming into effect in July 2021.

If you have any queries about the new regulatory framework, please get in touch with us.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Zhongwei Wang, Solicitor.

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