08 Oct 2019

NSW Government releases draft Design and Building Practitioners Bill 2019: speak now or forever declare

It is time to act – the next stage of building regulation in NSW is here.

The NSW Government has invited interested organisations and individuals to provide feedback on the recent draft Design and Building Practitioners Bill 2019 that will affect certain categories of regulated designs and multi-unit and multi-storey residential apartment buildings. 

On 2 October 2019 the NSW Government released the draft Design and Building Practitioners Bill 2019 for public consultation.

The Draft Bill forms part of the NSW Government's response to the report of Professor Peter Shergold AO and Ms Bronwyn Weir (Shergold-Weir Report) released in April 2018. The Shergold-Weir Report considered the effectiveness of compliance and enforcement systems for the building and construction industry across Australia and provided 24 recommendations. The NSW Government committed to a number of key recommendations from the Shergold-Weir Report, including that:

  • building designers declare that building plans comply with the Building Code of Australia (BCA), and that buildings have been built according to their plans;
  • building designers and builders are registered;
  • an industry-wide duty of care is owed to subsequent homeowners; and
  • a Building Commissioner be appointed to regulate the building and construction industry in NSW.

Key reforms under the Draft Bill

In line with the recommendations above, the Draft Bill aims to improve the quality and compliance of design documentation and strengthen accountability across the construction industry. The reforms are intended to apply to certain categories of regulated designs and to multi-unit and multi-storey residential apartment buildings. There are a number of key reforms proposed by the Draft Bill, including:   

  • regulated designs: the introduction of "regulated designs", which includes designs for a building element or a performance solution for building work or a building element (section 5 of the Draft Bill).
  • compliance declaration by designers: requiring that design practitioners declare that their designs comply with the BCA (Part 2, Division 1 of the Draft Bill).
  • compliance declaration by builders: requiring that building practitioners build in accordance with declared designs, and declare that they have complied with the BCA (Part 2, Division 3 of the Draft Bill).
  • ·variations to declared designs: requiring that variations to declared designs are reprepared and declared by a design practitioner (if they are in respect of a building element or a performance solution), or that they are otherwise documented by the building practitioner (sections 9(2), 16(2) and 17(a) of the Draft Bill).
  • principal design practitioner: the introduction of a "principal design practitioner" as an optional role (Part 2, Division 2 of the Draft Bill).
  • registration of compliance declaration makers: requiring that design, principal design and building practitioners who make compliance declarations register under a new registration scheme (Part 4 of the Draft Bill).
  • duty of care owed to the land owner: requiring that owners and subsequent owners of land are owed a duty of care by the person who carries out construction work to exercise reasonable care to avoid economic loss caused by defects in or related to the building for which the construction work is carried out. Owners and subsequent owners will be entitled to damages for breach of this duty irrespective of who the contract to carry out the construction work was entered into with (Part 3 of the Draft Bill).

Under the Draft Bill, the Secretary also has broad powers to vary, suspend or cancel a design, principal design or building practitioner's registration on various grounds, including if the Secretary holds the opinion that the practitioner is not a suitable person to be registered or registered as a particular class of practitioner. Disciplinary action may also be taken against a registered practitioner on a number of grounds.

A final Design and Building Practitioners Bill will be introduced into Parliament by the end of the year and further developments are set to take place in 2020, including preparation of the regulation.  

Have your say on the Draft Bill

The NSW Department of Fair Trading has invited interested organisations and individuals to provide submissions on the issues raised in the Draft Bill.

If you are interested in providing feedback, you will have until Wednesday, 16 October 2019 to make a submission via mail, email or online.

Contact us if you would like assistance in preparing a submission during the consultation period or to get ready for the overhaul of NSW building laws that is coming.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.