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Draft Design and Building Practitioners Bill 2019

The NSW Government has released a draft of the Design and Building Practitioners Bill 2019¹.

The draft Bill introduces a suite of new reforms to improve the quality and compliance of design documentation and to strengthen accountability across the design, building and construction sector.

These reforms are part of the commitment made by the NSW Government in February 2019 in Response² to the Building Confidence Report, authored by Professor Shergold AC and Ms Weir in February 2018 (Shergold Weir Report)³.

It is intended that when the Act and Regulation eventually come into force, the reforms will apply to multi-unit and multi-storey residential apartment buildings and certain categories of designs, which will be set out in the regulation. No draft Regulation has been developed as yet.

Draft Bill Concepts

The draft Bill introduces the following new terms and concepts:

  • Building Practitioners’ (section 7) means a person who contracts to do building work. A ‘registered building practitioner’ means a person who is registered as a building practitioner under the proposed Act.
  • Design Practitioner’ (section 3) means a person who prepared regulated designs. A ‘registered design practitioner’ means a person who is registered as a design practitioner under the draft Bill or recognised as a design practitioner under the proposed Act.
  • Principal Design Practitioner’ (section 3). The draft Bill introduces the optional role of a ‘principal design practitioner’ which means a person who co-ordinates the provision of design compliance declarations for the purposes of building work done by a building practitioner.
  • Building Element‘ (section 6) means any of the following:
    • fire safety systems for a building;
    • waterproofing;
    • internal or external load-bearing component of a building;
    • a component of a building that is part of the ‘building enclosure’ (for example, the roof or external walls); and
    • other things prescribed by the regulations (no draft released as yet).
  • Regulated Designs’ (section 5). This new concept of ‘regulated designs’ includes designs for a ‘building element’ and performance solutions for prescribed classes of building work or element, as well as anything specifically included in the Regulations (which have not been released as yet in draft or at all).

Draft Bill Reforms

The draft Bill proposes the following key reforms, including:

Compliance with BCA

Requiring that design practitioners who prepare regulated designs issue a compliance declaration to declare that the designs comply with the Building Code of Australia (BCA).

Compliance Declaration

Requiring that building practitioners obtain, rely upon and build in accordance with declared designs, and issue a compliance declaration to declare they have complied with the BCA.

Variations to Regulated Designs

Requiring that any variations to declared designs are prepared and declared by a design practitioner if they are in a building element or performance solution, or in any other case, documented by the building practitioner.

Registration Scheme (Part 4)

The draft Bill requires any design, principal design or building practitioner who intends on making a compliance declaration to be registered under a new registration scheme set out under the proposed Bill.

Duty of Care (Part 3)

Clarifying the common law to ensure that a duty of care is owed for construction work to certain categories of ‘owner’ including owners’ corporations and subsequent titleholders. There can be no contracting out of this duty of care. This means that homeowners will have a right to pursue compensation when they suffer damage because of a building practitioner’s negligence.

Insurance

It is mandatory for all design, principal design and building practitioners to have adequate insurance.

Timing

The draft Bill was open for consultation from 2 to 16 October 2019 and so the feedback is being analysed to see whether further amendments to the draft Bill may be required.

The NSW Government has indicated that it intends to introduce a final Bill into Parliament by the end of 2019 and then work to develop and consult upon draft regulations in 2020⁴.

The draft Bill once enacted will not apply to existing work or arrangements but only to new works or arrangements entered into after the commencement of the proposed Act.

Conclusion

The NSW Government has delivered a draft Bill that encompasses all of the proposed reforms it envisaged in its Response to the Shergold Weir Building Confidence Report.

Another proposed reform, the appointment of the Building Commissioner was put into place with the commencement of Mr Chandler in August 2019.

This draft Bill is the next step in the reform process to build much needed confidence in the construction industry.

For more information please contact us.

Contact us

For more information, please contact our lawyers David Glinatsis or Catherine Lucas at excellence@kreisson.com.au or on 02 8239 6500.

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This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.

1.Draft Design and Building Practitioners Bill 2019

2.See the NSW Government Response to the Shergold Weir Report at https://www.fairtrading.nsw.gov.au/ and our article re this Response is at https://kreisson.com.au/nsw-proposed-reforms-to-the-building-industry/

3.See the Shergold Weir Building Confidence Report at https://www.industry.gov.au/

4.https://www.fairtrading.nsw.gov.au/