Kreisson | May 2023
This publication is the second of a series authored by Kreisson, which 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).
To read Part 1, which provided an introduction to the Act and Regulation, and explored “Building Work”, please click here.
This article:
1. explains the definition of ‘regulated design’ under the Act and Regulation;
2. explores the requirements for design and building compliance declarations; and
3. explains lodgement requirements for Building Practitioners.
Future publications in this series will address:
1. 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;
2. insurance; and
3. the statutory duty of care introduced by section 37 of the Act.
A regulated design under the Act is a design that is prepared for a building element, or for a performance solution, for building work (section 5, the Act).
The definition of ‘building work’ and exemptions to the definition of ‘building work’ were covered in Part 1 of this series.
In short summary:
1. there must be a design (which includes a plan, specification or a report detailing a design);
2. the design must be prepared for a building element or for a performance solution;
3. a “building element” is defined in section 6 of the Act as:
a. the fire safety systems for a building;
b. waterproofing;
c. an internal or external load-bearing component that is essential to the stability of the building;
d. a component of a building that is part of the building enclosure (which means the part of a building that separates the interior environment from the exterior environment of the building). It includes roof systems and above grade and below grade walls (including windows and doors);
e. those aspects of the mechanical, plumbing and electrical services for a building that are required to achieve compliance with the BCA; and
f. other matters set out in the regulations.
4. the design must be for “building work”, which is defined in section 4 of the Act as work involved in, or involved in coordinating or supervising work involved in:
a. 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;
b. the making of alterations or additions to buildings of those classes;
c. the repair, renovation, or protective treatment of a building of those class; and
d. there are various exclusions from the definition of “building work”, which were covered in Part 1 of this series.
If the Act and Regulation applies to the work in question, the building practitioner is required to obtain:
1. relevant designs for the work; and
2. obtain what is known as a “Design Compliance Declaration” from each of the designers, prior to carrying out any building work (section 19, the Act).
That means, in relation to any regulated designs, the relevant design practitioner who prepared those designs must complete a declaration which signals that the design contains the level of detail to support the building work and that it complies with the Building Code of Australia (BCA) (section 9, the Act).
This declaration is provided by the designer, along with the design, to the person that is going to incorporate the design into their works (i.e. the building practitioner).
The building practitioner is not allowed to commence building work unless and until it has obtained the regulated designs and associated design compliance declarations (section 19, the Act).
If there are any variations required to the design during the undertaking of the building work, the design practitioners are required to provide any varied regulated designs and Design Compliance Declarations in relation to those varied designs, and the builder is required to obtain them prior to commencing the varied building work (section 20, the Act).
Once the work is completed, the building practitioner is required to provide a “Building Compliance Declaration” to the certifier and to the Owner certifying that the building work has been done in accordance with the regulated designs (section 17, the Act).
Building Practitioners are also required to:
a. lodge construction issue regulated designs and copies of design compliance declarations on the NSW Planning Portal before commencing building work (regulation 16, the Regulation);
b. lodge a copy of any varied regulated design, any Design Compliance Declaration in relation to the varied regulated design, and any designs and Design Compliance Declarations in relation to any new building elements or performance solutions, no later than one (1) day after commencing a variation to building work (regulation 17, the Regulation); and
c. lodge the Building Compliance Declaration before an application is made for an Occupation Certificate (regulation 18, the Regulation).
There are severe penalties:
a. for design and building practitioners who provide declarations that are false; and
b. for those who fail to abide by their obligations under the Act.
The following is a simple diagram to assist building practitioners regarding their obligations under the Act and Regulation:
Our next publication in this series which will cover “reasonable excuses” for the purpose of defending prosecutions under the Act and urgent remedial works.
Please contact Kreisson 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.
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