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In 2018, the Building Ministers’ Forum commissioned a report to assess the compliance issues related to the building and construction industry titled, “Titled Building Confidence – Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia” (Nsw.gov.au 2020). The report recommended a national best practice model and a set of 24 recommendations to strengthen the implementation of the National Construction Code. Furthermore, in order to put these set of recommendations into action, the new Design and Building Practitioners Act 2020 No 7 was enacted on June 11, 2020 (aibs.com.au. n.d.). This paper presents a thorough review of the net act and discusses the reasons for its introduction, along with the obligations and consequences mentioned in the act.
The key driving factor behind the introduction of the act was the deteriorating confidence of the public in the NSW building industry. Therefore, the act seeks to restore this confidence with the regulation of activities related to the design and construction of the new buildings. Moreover, the overall aim of the act is to ensure that the involved participants are effectively regulated and that the designs of new buildings adhere to the Building Code of Australia (BCA) and that the following building works are in accordance with those designs (aibs.com.au. n.d.). As mentioned, the act is a response to the Shergold Weir Report which raised the concerns regarding the shortcomings related to combustible cladding and building defects. The act will have a wide-ranging impact on a range of stakeholders involved in the residential building industry especially in terma of requiring registrations of building and design practitioners and putting a new statutory duty of care owed by builders and designers to owners in place (Weil & Mayfield, 2020). Also, regulations related to buildings has been a continuous challenge in NSW for several decades but came into the public spotlight following the recently observed defects in the Mascot Towers and Opal Tower. Therefore, the NSW government requested for parliament inquiry in the regulations for buildings quality, building standards and building disputes which in turn recommended the government to make a number of changes in the existing regulation in order to provide broader protections for strata corporations and building owners. The said act under consideration is a part of the recommended reforms (HFW n.d.).
To restore confidence in the building sector, the act creates a new suit of obligations on design and building practitioners and makes sure that every step of the constructor is in compliance with the regulatory guidelines and is properly documented.
The key obligations for the building practitioners under the act includes making sure that they keep the statutory duty of care under consideration while assessing risks and the level and type of insurance they should acquire. Furthermore, builders who carry out the construction work needs to exercise sensible care to avoid the economic loss because of defects related to or in the building for which the work was undertaken, and from construction work (Griffiths 2020). The act suggests that the said statutory duty of care is to operate in a retrospective manner and that it is the obligation in respect of every owner of the land for whom the construction work is being done and for every subsequent owner. Respective owners are also entitled to damages in case of the breach of the duty as if the said duty was established by common law (Nsw.gov.au 2020).
This suggests that the said duty is in addition to the statutory warranties and duties, and similar obligations imposed by the Home Building Act 1989, the common law or other acts. In addition to this, the new act also includes a new concept of ‘regulated designs’ which is defined as those designs that are prepared for ‘performance solution or for ‘building element’ for building work (HFW n.d.). The key elements to which the regulated designs are related to include the load-bearing components, electrical services, fire safety systems, waterproofing and plumbing. These design elements should be in accordance with the guidelines of BCA. The act also introduces a suggested category of ‘regulated designs’ for registered design practitioners, those who formulate regulated designs to issue the declaration of compliance stating the adherence to BCA guidelines (Griffiths 2020).
Under the new act, it is also an obligation of the building practitioners to declare any major variations to the designs as compliant with the regulations before being presented to the builders. Besides this, registered building practitioners are also required to obtain, depending on, and undertake construction while adhering to the declared designs and also issue a declaration of compliance stating that the finished building, which also includes any variations, adheres with the standards of BCA (Nsw.gov.au 2020). Furthermore, for certain building work (applicable building work), the requirement for ‘compliance declarations’ has also been introduced to impose obligations to undertake reasonable steps for providing compliance declarations of the building and to get the compliance declarations for the regulated designs (Nsw.gov.au 2020).
This makes it an obligation of certain building practitioners and designers to declare that their building works and regulated designs are according to the respective standards of the industry including the BCA (Griffiths 2020). Also, for every registered building practitioner, the said act includes a requirement to be given a notice of the intention of the developer to apply for a certification of occupation under the stipulated period and a written notice is required to be given in case an application for the certificate of occupancy has been made. Additionally, the DBP act also obligated the practitioners to hold insurance according to the minimum requirements for insurance as reported by the regulations (Nsw.gov.au 2020).
The main obligations of the building practitioners are in respect of making compliance declarations, whether it be designed compliance declaration, principal compliance declaration or building compliance declaration. Here, compliance requires them to declare whether the regulated design of the building work is according to the requirements of BCA and whether other requirements, codes and standards have been taken underconfidence while preparing design. It is also an obligation to declare whether the building work adheres to the requirements of the regulations and that of the BCA and whether the required compliance declaration has been obtained for the design or building work (Nsw.gov.au 2020).
In terms of the consequences of non-compliance, the act under consideration includes provisions for investigative and enforcement powers for the secretary of the department of customer service, and the authorised offices, such as stopping the work order for a maximum of 12 months with penalties up to $110,000 for individuals and $330,000 for corporate bodies, along with court proceedings (Nsw.gov.au 2020). In addition to this, the act also gives the secretary to impose conditions on registration, including the requirement for special training, and the cancellation or suspension of registration. The secretary can also permanently or temporarily disqualify the practitioner in case of non-compliance with the statutory regulations. The act also includes provisions for investigating complaints against a developer or a former developer and issuing a building work rectification order (Nsw.gov.au 2020).
There is also a provision for disciplinary oversight which gives the secretary of the department of customer service to take disciplinary measures against practitioners who do not comply with the enforced regulations by suspending their registration and imposing fines on the same. Also, in case a practitioner has conducted building works in such a manner that falls short of the standard of diligence, competence and integrity, then disciplinary actions can be taken against the same (Nsw.gov.au 2020). The mentioned disciplinary actions also come into effect in case the practitioner has failed to adhere to the conditions of registration or has willfully disregarded the matters to which building practitioners are supposed to have regards to. Therefore, it is evident that the act brings new disciplinary powers to the secretary in order to ensure that registered practitioners adhere to the enacted act and that there are disciplinary powers in place to reprimand any non-compliance (Weil & Mayfield, 2020).
In conclusion, the said act has a far-reaching impact on design and building practitioners in terms of introducing new obligations and holding the respective party accountable in case of non-compliance.
aibs.com.au. (n.d.). The Shergold Weir Report. [online] Available at: https://aibs.com.au/Public/News/2018/ShergoldWeir.aspx [Accessed 20 Aug. 2020].
Griffiths (2020). Design and Building Practitioners Act 2020. [online] Strata Community Association (NSW). Available at: https://nsw.strata.community/design-and-building-practitioners-act-2020/ [Accessed 20 Aug. 2020].
HFW. (n.d.). Design and Building Practitioners Act 2020 (NSW) – toward a potentially increased liability. [online] Available at: https://www.hfw.com/Design-and-Building-Practitioners-Act-2020-NSW-toward-a-potentially-increased-liability.
McCullough Robertson. (2020). New obligations imposed on design and building practitioners in a bid to improve building standards. [online] Available at: https://www.mccullough.com.au/2020/07/16/new-obligations-imposed-on-design-and-building-practitioners-in-a-bid-to-improve-building-standards/.
Nsw.gov.au. (2020). NSW legislation. [online] Available at: https://www.legislation.nsw.gov.au/#/view/act/2020/7/id1 [Accessed 20 Aug. 2020].
Weil, D., & Mayfield, M. (2020). Tomorrow’s Critical Design Competencies: Building a Course System for 21st Century Designers. She Ji: The Journal of Design, Economics, and Innovation, 6(2), 157-169.
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