Two laws were passed in 2020 to restore public confidence in the NSW building industry and to stop dodgy builders and developers.
These laws marked the start of a new era in the design and construction of buildings in NSW.
Those entering the property market will now have peace of mind that their home will be designed and built in compliance with the Building Code of Australia.
The NSW Building Commissioner together with the Better Regulation Division will lead the implementation of the laws and will focus on the investigation and audit strategies.
Key changes
- From 10 June 2020, owners of buildings with defects will benefit from the statutory duty of care that applies to new buildings, and existing buildings where an economic loss first became apparent in the previous 10 years.
- From 1 September 2020 the NSW Building Commissioner has the powers to stop an occupation certificate from being issued, order developers to rectify defective buildings, and issue stop work orders.
- From 1 July 2021, there is compulsory registration for practitioners involved in design and building work, including professional engineers.
- Further amendments were made to the Design and Building Practitioners Regulation on 2 March 2022.
More information
Changes brought by the Design and Building Practitioners Act 2020
This Act will improve the quality and compliance of construction work in NSW.
The Act requires the registration of practitioners involved in design and building work, together with new obligations on these practitioners to declare the compliance of their work with the Building Code of Australia.
The Act also introduces important protections for property owners by clarifying that a legal duty of care is owed to them by people who carry out construction work.
Finally, the Act also provides for the registration of professional engineers and specialist practitioners.
More details
The key reforms in the Design and Building Practitioners Act 2020, as passed by Parliament, are:
- introducing the concept of regulated designs which are designs prepared for a building element for building work, and designs prepared for a performance solution for building work, and other classes of designs that are set out in the regulations;
- defining building element to include:
- the fire safety systems of a building;
- waterproofing;
- an internal or external load bearing component of a building that is essential to the stability of the building, or part of it;
- a component of a building that is part of the building enclosure; and
- those aspects of the mechanical, plumbing and electrical services for a building that are required to achieve compliance with the Building Code of Australia;
- requiring that design practitioners who prepare regulated designs issue a compliance declaration to declare that the design complies with the Building Code of Australia;
- requiring that building practitioners obtain, rely upon and build in accordance with declared designs, and issue a compliance declaration to declare that building work complies with the Building Code of Australia;
- requiring that any variations to declared designs are reprepared and declared by a design practitioner if they relate to a building element or performance solution, or in any other case, are documented by the building practitioner;
- introducing the optional role of principal design practitioner to ensure design compliance declarations have been provided by design practitioners who are duly registered and authorised;
- establishing a new registration scheme for design practitioners, principal design practitioners and building practitioners who are required to make a compliance declaration;
- establishing a new registration scheme for professional engineers and specialist practitioners;
- providing the Secretary and authorised officers with investigative, compliance and enforcement powers to monitor and assess compliance with the requirements of the Act; and
- establishing a duty of care owed by persons who carry out construction work, which extends to existing buildings in certain circumstances.
When did these changes start?
The duty of care provisions in the Act started on 10 June 2020.
The Design and Building Practitioners Act 2020 and supporting Regulation otherwise commenced on 1 July 2021.
Amendments to the Regulation - 2 March 2022
To assist with the adoption and increase the compliance with the building industry reforms, further amendments have been made to the Design and Building Practitioners Regulation 2021. These amendments include:
2 March 2022 amendments
- adding conditions to the Building Practitioner classes of registration to allow practitioners who want to work on smaller Class 2 buildings to register. Work under the conditioned registrations will be restricted to low-rise and medium-rise buildings
- an additional pathway to register as a Design Practitioner – Architectural to allow architects who have the required experience in a broader range of building classes (not just Class 2) to register
- adding conditions to the Design Practitioner – Architectural class of registration to allow eligible architects to work on medium-rise buildings
- extending the exemption for Building Practitioners to hold mandatory insurance under the Design and Building Practitioners Act until the 30th of June 2023. The current exemption which applies to all practitioners will end on the 30th of June 2022
- Building Practitioners who intend to install ground anchors on a neighbouring property will be required to provide evidence of the legal authority to install the anchors prior to commencing work. Evidence of the destressing of temporary ground anchors will also be required before a development is completed. The Ministerial Order will also be updated to incorporate this change.
Changes brought by the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020
This Act will improve the quality and compliance of construction work in NSW.
This Act provides a suite of comprehensive investigation, rectification and enforcement powers to the Secretary of the Department of Customer Service and other delegated persons, including the Building Commissioner, for certain types of residential apartment building work and completed buildings, and establishes a mandatory developer notification scheme for building work which is at least six months from completion.
These obligations apply to Class 2 buildings and buildings including a Class 2 component. These are typically multi-storey, multi-unit apartment buildings.
More details
The key reforms in the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, include:
- establishing a new defect category of serious defect for the purposes of the Act
- requiring one or more developers to notify the Secretary at least 6 months, but not more than 12 months, before applying for an occupation certificate for any part of a residential apartment building
- allowing the Secretary to make a prohibition order preventing the issue of an occupation certificate or registration of a strata plan for any part of a residential apartment building if the developer has not notified the Secretary of the expected completion date within the required time, or has failed to notify the Secretary of a change in the expected completion date and in other prescribed circumstances
- prohibiting a principal certifier from issuing an occupation certificate in contravention of a prohibition order, and providing that an occupation certificate issued in contravention of a prohibition order is invalid
- providing the Secretary, the Building Commissioner and other authorised officers with a range of investigative, compliance and enforcement powers, including the ability to undertake inspections of notified building work, to monitor and assess compliance with the requirements of the Act while the building is under construction and at any time within ten years of the occupation certificate date
- providing the Secretary with complementary powers to monitor compliance under the Act, including the power to accept undertakings, apply for orders to restrain or remedy contraventions, investigate developers and residential apartment buildings and issue a stop work order in prescribed circumstances
- allowing the Department to issue a stop work order if the Secretary is of the opinion that the building work is to be carried out in a manner that could result in significant harm or loss to the public, occupiers or potential occupiers of the building;
- establishing a rectification scheme to empower the Secretary to issue a building work rectification order when serious defects are identified through inspections, and to recover the costs and expenses incurred by the Secretary in connection with a rectification order.
Amendments to the RAB Regulation - 14 November 2022
Further amendments were made to the Residential Apartment Building (RAB) legislation effective from 14 November 2022.
14 November 2022
- Enabling all orders and undertakings under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) and the Design and Building Practitioners Act 2020 (DBP Act) to be published on the Department’s website.
- Clarifying the scope of building work rectification orders to require a developer to take any action (not limited to building work) to eliminate, minimise or remediate a serious defect, and to require the submission of particulars prepared by a specialist.
- Enabling data sharing of RAB Act information with Australian universities and other contractors and consultants engaged by the Department.
Other amendments
Introducing decennial liability insurance as an alternative to the strata building bond under the Strata Schemes Management Act 2015.
When did these changes start?
1 September 2020
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