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A BUILDER’S GUIDE TO THE DESIGN AND BUILDING PRACTITIONERS ACT AND REGULATION

Part 1 – Introduction to the Legislation, ‘Building Work’, and Registration

Kreisson

Introduction

This publication is the first of a series to be authored by Kreisson and is intended to be used as a guide for builders to the Design and Building Practitioners Act 2020 (NSW) (the Act) and the Design and Building Practitioners Regulation 2021 (NSW) (the Regulation).

This article:

1. provides a background to the Act and Regulation;

2. addresses the definition of Building Work, including exemptions to that definition; and

3. covers the requirement for building practitioners to be registered to do Building Work.

Future publications in this series will address:

1. Regulated Designs and Compliance Declarations;

2. What constitutes a ‘reasonable excuse’ under the Act as a defence to prosecution, as well as the application of the Act and Regulation to urgent remedial work;

3. Insurance; and

4. The statutory duty of care introduced by section 37 of the Act.

Background

The Design and Building Practitioners Act 2020 (NSW) (the Act) and the Design and Building Practitioners Regulation 2021 (NSW) (the Regulation) were enacted:

1. due to the perceived need for greater regulation in the residential construction sector;

2. due to the perceived need for greater accountability for key construction industry participants;

3. to recent issues in buildings and significant defects, including:

– the Lacrosse Tower fire in Melbourne;

– the Opal Tower in Sydney Olympic Park; and

– the Mascot Towers in Mascot, Sydney;

4. to restore confidence in the building and construction industry; and

5. in response to the recommendations and findings in a national Building Confidence Report, authored by Professor Peter Shergold AC and Ms Bronwyn Weir and released in February 2018 (the BCR).¹

In response, the Act and the Regulation introduced (amongst other things):

1. requirements for building and design practitioners to be registered;

2. the requirement for compliance declarations to be provided and lodged, being declarations:

– by design practitioners that their designs achieve compliance with the Building Code of Australia; and

– by building practitioners that their Building Work has been undertaken in accordance with the designs provided to them;

3. mandatory requirements regarding insurance (some of which have been postponed; and

4. a statutory duty of care to owners to avoid economic loss associated with defects.

‘Building Work’

The requirements regarding registration, compliance declarations and insurance under the Act and Regulation apply to building practitioners that do Building Work.

Building Work is defined in section 4 of the Act as work involved in, or involved in coordinating or supervising work involved in:

1. the construction of class 2 buildings (residential apartment buildings) or buildings with a class 2 part, although this will soon be extended to class 3 (boarding houses, hostels and the like) and class 9c (residential care buildings) in July 2023;

2. the making of alterations or additions to buildings of those classes; and

3. the repair, renovation, or protective treatment of a building of those classes.

Exemptions to the definition of ‘Building Work’

However, there are exemptions to which the Act and Regulation do not apply, which means that a building practitioner does not have to be registered and does not have to obtain or lodge compliance declarations (to be addressed in a later publication in this series) in relation to some types of work.

Regulation 13 of the Regulation sets out a fairly long list of exemptions, some of which include:

1. exempt development under the Environmental Planning and Assessment Act 1979 (otherwise known as the EPAA) (ie. development declared exempt by an environmental planning instrument (Local Environmental Plans (LEPs) and State Environmental Planning Policies (SEPPs) because of their minor impact;

2. examples of work that are of minor impact include:

– issues with doors and balcony doors, for example;

– Issues with sealant;

– Paint and rendering;

– Minor cracks; and

– Carpeting,

3. waterproofing is also exempt but only if:

– the work is carried out as a result of alterations to a bathroom, kitchen, laundry or toilet;

– the alterations are carried out as an exempt development (that is, development that is declared exempt by an environmental planning instrument (ie. LEPs and SEPPs)); and

– the work (and the related agreement) relates only to a single dwelling

4. work pursuant to an order from council or a development control order under the EPAA (unless it relates to repairing, rectifying or replacing the external cladding of a building, in which case the Act and Regulation apply);

5. work that is excluded from being residential building work under the Home Building Act 1989 (NSW) (HBA), which means work below the value of $5,000 is exempt; and

6. work to install the following, but only if the work is the subject of a development consent that primarily relates to the installation of:

– an awning, blind or canopy over a window or door;

– a roofed structure over a balcony, deck, patio or terrace, whether open or enclosed, unless the roofed structure is installed above the existing topmost roof of the building.

Registration

In order to carry out Building Works, building practitioners need to be registered.

The registration process can be undertaken on the Service NSW website.

Significant penalties apply for non-compliance.

Schedule 1 clause 3 of the Regulation sets out the different classes of registration available for building practitioners, which comprise of the following:

1. Low rise, being a building that has a maximum gross floor area of no more than 2,000 square metres, but does not include a building that is Type A or Type B construction (as referenced in the Building Code of Australia) (Dictionary to the Regulation);

2. Medium rise, being a class 2 building with a maximum of 3 storeys, or 4 storeys if the ground level or first storey is a carpark (class 7a) (Dictionary to the Regulation); and

3. “general”, being for all class 2 buildings.

Registration is available to:

1. companies (under the label ‘body corporate’),

2. sole practitioners and partnerships (under the label ‘general’), and

3. company nominees (under the label ‘body corporate nominee’.

A company needs:

1. the ‘body corporate’ registration; and

2. a ‘general’ OR ‘body corporate nominee’ registration,

(ie. the company needs its own registration but also needs to attach its own registration to an individual’s registration).

There are differing requirements in respect of qualifications, relevant years of experience, knowledge and skills which apply to each class and type of registration.

Please do not hesitate to contact us for further details in relation to these requirements.

Coming up next

Our next publication in this series which will cover Regulated Designs and Compliance Declarations.

Please contact us on 02 8239 6500 if you have any questions regarding anything above or if you need any assistance in relation to the Act or the Regulation.


¹ The BCR was commissioned by the Building Ministers’ Forum (now known as the Building Ministers’ Meeting), which oversees policy and regulatory issues affecting Australia’s building and construction industry and consists of a group of Federal and State ministers that are responsible for building and construction.

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Kreisson

excellence@kreisson.com.au | 02 8239 6500

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