The new Design and Building Practitioners Regulation 2021 (NSW) and potential pitfalls for contractors

In our construction law blog last year, we alerted you to the Design and Building Practitioners Act 2020 (NSW) (‘the DBPA‘), which subjects New South Wales contractors, designers and engineers to a new regulatory framework that introduced the concept of a ‘regulated design’ as well as a retrospective duty of care.

When the DBPA was enacted last year, it contained over a hundred references to ‘regulations’, which at that time did not exist, leaving many issues unclear. In mid-April this year, the Design and Building Practitioners Regulation 2021 (NSW) (‘the DBPR‘) was introduced and is due to commence on 1 July 2021. The DBPR fills in some of these blanks and defers clarification of others.

In this blog we highlight some of the key concerns for contractors (“building practitioners”), including:

• To what ‘building work’ does the scheme of regulated designs and retrospective duty of care apply?
• What is the application of the DBPR to current projects?
• What is the required form of compliance declarations for builders and designers?
• What must a building practitioner lodge on the NSW Planning Portal?
• What notices must a building practitioner give?

Regulated designs and compliance declarations

The most important gap which the DBPR fills is clarifying the meaning of ‘building work’, which is the term that attracts the rules relating to regulated designs and the retrospective duty of care under the DBPA.

At this stage, ‘building work’ is defined in regulation 12 as a class 2 building or mixed-use building including class 2 building parts. Under the Building Code of Australia, a ‘class 2 building’ is one that contains 2 or more sole occupancy units each being a separate dwelling (i.e. an apartment building).

There is a limited list of exceptions to this definition found in regulation 13.

Application to current projects

For building works commenced prior to 1 July 2021, If the works commenced under a construction certificate or complying development certificate, the following requirements do not apply:

• Regulated designs requirements;
• Compliance declarations; and
• Requirement that a registered person carries out the building works.

However, all designs relied upon in order to carry out the project must still be provided to the Secretary of the Department of Customer Service via the NSW Planning Portal before applying for an occupation certificate. A principal certifier cannot issue an occupation certificate unless this has occurred.

For projects designed but not commenced prior to 1 July 2021, If building designs have already been prepared and the related building work commences before 1 July 2022, the designs may be taken to be regulated designs for which a design compliance declaration has been given.  This will occur if a registered design practitioner assesses whether or not the designs comply with the BCA and issues a certificate in an approved form that the designs do comply.

The building practitioner must not commence the building works until the designs and the relevant certificates are provided to the Secretary of the Department of Customer Service via the NSW Planning Portal.

Compliance declarations

There are no specified forms of compliance declarations yet.

Forms of compliance declarations for contractors and designers will be specified on the NSW Planning Portal. An alternative form of design compliance declaration may be published on the Department of Customer Service website.

What to lodge

The DBPR also sets out what DBP documents a building practitioner must lodge on the NSW Planning Portal at each particular stage of the project:

BEFORE BUILDING WORK COMMENCES (regulation 16)

• Construction issued regulated designs
• Compliance declarations made by authorised registered design practitioners for each of the construction issued regulated designs
• Principal compliance declaration (if there is a registered principal design practitioner)

WITHIN 1 DAY AFTER A VARIATION TO BUILDING WORK (regulation 17)

• The varied regulated design or the regulated design for a new building element/ performance solution
• Design compliance declarations for the varied regulated design or the regulated design for a new building element/ performance solution

BEFORE APPLICATION FOR ISSUE OF OCCUPATION CERTIFICATE (section 17 of the DBPA and regulation 18)

• Building compliance declaration
• List of the building practitioner’s consultants and subcontractors
• List of any persons who have done building work
• List of the work done by each of the above consultants, subcontractors and other persons
• Variation statements
• Regulated designs with additional details from the construction issued regulated designs
• Principal compliance declaration (if applicable)
• Final designs used for the building work that are not regulated designs and are designs of a class prescribed by regulations (none yet)
• Any other prescribed documents

NO LATER THAN 90 DAYS AFTER ISSUE OF OCCUPATION CERTIFICATE (sections 15 and 17 of the DBPA and regulation 26)

• Each regulated design for which a design compliance declaration has been provided that reflects building work that was carried out
• Any of the documents required to be lodged before issue of an occupation certificate which have been modified since they were lodged
• Related Building Compliance Declaration any other prescribed documents

What to notify

Building practitioners also have new obligations under the DBPR to provide written notices:

BUILDING PRACTITIONERS MUST PROVIDENotice to the registered principal design practitioner of the date on which the building work is proposed to commence (at least 14 days before the building work commences)Notice to each other registered building practitioner who did work of its intention to apply for an occupation certificate (before making an application for an occupation certificate)Provide to the principal certifier each design compliance declaration to which the building work relates that is required by the person in order to issue the construction certificate or complying development certificate and, for each design compliance declaration, each regulated design in relation to which the design compliance declaration is made (before or when an application for a construction certificate or complying development certificate is made)A building compliance declaration for building work and all other documents which must be lodged with the Department of Customer Service prior to lodgement of an application for an occupation certificate must also to be provided to the client before an occupation certification application can be madeIn instances of variations in the building work either from a regulated design for a building element or performance solution or requiring a regulated design for a new building element or performance solution, notice to the relevant design practitioner requesting it to attend at a specified time and place to access the regulated designs, design compliance directions and principal compliance direction under section 20(2) of the DBPAA building compliance declaration must have been provided to the principal certifier before an occupation certificate can be issued

If a building compliance declaration sets out steps required to be taken to ensure compliance with the Building Code of Australia and other requirements, the Contractor must also give written notice containing the steps to the principal certifier

Notice to the registered principal design practitioner of the date on which it intends to make the building compliance declaration (at least 14 days before the building practitioner intends to make the declaration)Notice to each other registered building practitioner who did work of the making of an application for an occupation certificate (within seven days after making an application for an occupation certificate)

Contact us

The new DBPR details how building practitioners must comply with the DBPA and what building work will be covered.  Strict compliance is required.

If you have any further inquiries about how the Design and Building Practitioners Act and Regulation may affect your project or business, please do not hesitate to contact a member of our NSW Construction and Infrastructure team.

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