NSW reform | New obligations for design and building practitioners and professional engineers

Recap

The Design and Building Practitioners Act 2020 (‘DBP Act’) assented on 10 June 2020 created a statutory duty of care on residential builders to owners of land and each subsequent owner of the land (owners corporations and lot owners) over and above the statutory warranties provided under the Home Building Act 1989 (NSW).

From 1 July 2021, the DBP Act will create additional obligations, on principal design practitioners, design practitioners, building practitioners and professional engineers.

Imminent Additional Obligations for Practitioners

The additional obligations under the DBP Act which commence from 1 July 2021 and apply to principal design practitioners, design practitioners, and building practitioners in the construction industry include the following:

  • Design practitioners will require registration;
  • Building practitioners will be required to provide a building compliance declaration to the principal before an occupation certificate can be awarded;
  • a registered practitioner will be required to provide a design compliance declaration to a person if:
  • the practitioner provides the person with a regulated design prepared by the practitioner; and
  • the design is in a form suitable for use by that person or another person in connection with building work;
  • Principal design practitioners will be required to provide a principal compliance declaration;
  • additional CPD and insurance requirements.

Importantly, the compliance declarations must be in a form that is prescribed by the regulations.

Imminent, Additional Obligations for Professional Engineers

Professional engineers will need to be registered, and registered professional engineers must be adequately insured with respect to the work. Adequate insurance includes indemnification by an insurance policy.

Penalties

Individuals who do not comply with their additional obligations can be levied with a fine of up to $55,000.00 and companies can be levied with a fine of up to $165,000.00.

To which class of buildings does the DBP Act apply?

The DBP Act applies only to Class 2 Buildings (which includes developments that include Class 2 components). Class 2 buildings are generally apartment buildings, typically multi-unit residential buildings.

What is a principal design practitioner, design practitioner, building practitioner, and a professional engineer and what work is regulated?

A principal design practitioner is someone who coordinates the provision of design compliance declarations for the purposes of building work done by a building practitioner.

A building practitioner is:

  1. a person who agrees under a contract or other arrangement to do building work; or
  2. if more than one person agrees to do building work, a person who is the principal contractor for the work.

A design practitioner is someone who prepares a regulated design. A regulated design is:

  1. a design that is prepared for a building element for building work; or
  2. a design that is prepared for a performance solution for building work (including a building element); or
  3. any other design of a class prescribed by the regulations that is prepared for building work.

Importantly, a building element means any of the following:

  1. the fire safety systems for a building within the meaning of the Building Code of Australia;
  2. waterproofing;
  3. an internal or external load-bearing component of a building that is essential to the stability of the building, or a part of it (including but not limited to in-ground and other foundations and footings, floors, walls, roofs, columns and beams);
  4. a component of a building that is part of the building enclosure;
  5. those aspects of the mechanical, plumbing and electrical services for a building that are required to achieve compliance with the Building Code of Australia; and
  6. other things prescribed by the regulations for the purposes of this section.

A professional engineer is an engineer who carries out professional engineering work. Professional engineering work means engineering work that requires, or is based on, the application of engineering principles and data to a design, or a construction, production, operation or maintenance activity, relating to engineering.

Professional engineering work includes:

  1. structural engineering;
  2. civil engineering;
  3. mechanical engineering;
  4. fire safety engineering; and
  5. electrical engineering.

Design, Principal and Building Compliance Certificates

A design compliance certificate is a declaration by the practitioner on:

  1. whether or not a regulated design prepared for building work complies with the requirements of the Building Code of Australia;
  2. whether or not the design complies with other applicable requirements prescribed by the regulations;
  3. whether or not other standards, codes or requirements have been applied in preparing the design; and
  4. any other matter prescribed by the regulations.

A principal compliance declaration means a declaration in the form and manner prescribed by the regulations as to the following:

  1. whether or not a design compliance declaration has been provided in accordance with this Act for each regulated design prepared for the building work;
  2. whether or not each design compliance declaration has been provided by a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates; and
  3. any other matter prescribed by the regulations.

A building compliance declaration means a declaration made in the form and manner prescribed by the regulations as to the following:

  1. whether or not the building work complies with the requirements of the Building Code of Australia;
  2. whether or not the building work complies with other applicable requirements prescribed by the regulations for the purposes of this subsection;
  3. if the building work does not comply with the requirements referred to in paragraph (a) or (b), the steps required to be taken to ensure compliance;
  4. for a regulated design used for the building work, whether or not the design was prepared by a registered design practitioner and the building work was built in accordance with the design;
  5. whether or not a design compliance declaration has been obtained in relation to regulated designs used for the building work;
  6. whether or not a registered principal design practitioner was appointed in relation to the building work;
  7. whether or not a principal compliance declaration was obtained in relation to the regulated designs and design compliance declarations relating to the building work; and
  8. any other matter prescribed by the regulations.

The Way Forward

The new regulatory changes for principal design practitioners, design practitioners, building practitioners and professional engineers are complex and come with substantial penalties for non-compliance.

If you have any concern regarding these new changes that are set to come into force on 1 July 2021, please contact Stefan Fenk on (02) 9261 5900 or stefan.fenk@vincentyoung.com.au.