Changes to the New South Wales Design and Building Practitioners Act (the DBPA) have come into effect, removing non-structural commercial and retail fit-outs from the compliance requirements for mixed-use residential developments and extending the transitional period for staged development projects.

The changes under the Design and Building Practitioners Amendment (Miscellaneous) Regulation (No 2) 2021 are welcome as they reduce unnecessary compliance declaration requirements and provide more certainty for developers as they progress their existing projects.

Under the amendment:

• non-structural fit-out work for commercial and retail spaces within residential mixed-use developments has been excluded from the definition of ‘building work’ provided that it is the subject of a separate development consent.  Accordingly, these kinds of fit-out works are not required to comply with the DBPA; and
• the transitional arrangements for staged lodgement of declared designs and compliance declarations (along with staged construction certificates) under the DBPA have been extended from 30 June 2022 to 30 June 2023.

The NSW Government has recognised some of the practical difficulties that have emerged with the DBPA, particularly unintended cost impacts of dealing with the complex registration, documentary and lodgement requirements arising from the DBPA.

Exemption for non-structural fit-out work

The amendment sensibly provides for the exclusion of non-structural fit-outs of commercial and retail spaces from the requirements of the DBPA.  Such work often involves specialist designers and contractors that are not ordinarily engaged in residential development.  Given the non-structural nature of their work there was questionable benefit in requiring registration and preparation and lodgement of regulated designs and compliance declarations in respect of their work.  A requirement for compliance threatened unwarranted delays to projects.  Further, relevant designers and contractors may have been reluctant to be caught up in the onerous requirements of the DBPA where their work on such projects was so limited.

Commercial and retail fit-out work that relates to a structural component of the mixed-use building (i.e., an internal or external load-bearing component that is essential to the stability of the building) continues to be subject to the checks and balances of the DBPA.

Extended transition arrangements for staged building work

It is common in large-scale development projects to stage the building work and to apply for construction certificates in stages.  Not all the designs for the project are prepared in advance of commencement of other stages of work.

The existing transitional provision in the Regulation accommodates for staged lodgement of declared designs and compliance declarations (along with staged construction certificates) on the condition that building work has commenced under at least one construction certificate before July 1, 2022.

Developers considered that the transition period was too short to accommodate projects which were already planned to be constructed in a staged manner.  This transitional arrangement has now been extended to July 1, 2023.

The extension will provide developers more time to commence existing staged projects and to evaluate and modify their development consent and contracting strategies for future staged projects.

Looking forward

Given the DBPA is in its infancy, it is pleasing that the NSW Government is continuing to engage and reflect on the impact of the DPBA scheme on the industry and its performance and delivery of compliant building projects.

If you have any questions about the changes or the DPBA, please get in touch with the NSW members of our Construction & Infrastructure team.

‍