Update to the NSW Design and Building Practitioners Act 2020

Assisted by James Duff

Further to our previous article entitled The NSW Design and Building Practitioners Act 2020 – Reforms for the Construction Industry and Building Defects, an amendment to the Design and Building Practitioners Act 2020 (NSW) (the Act) came into effect on 1 July 2021. NSW Parliament passed the Act in June 2020 after defect issues stemming from the Mascot Towers and the Opal Towers.

Point 2 of the above article came into effect on the 1 July 2021, that being:

A register of construction professionals – the Act imposes a comprehensive registration regime which requires designers, engineers, and all people who contract to do building work to be named on a publicly available register of registered practitioners.

A summary of the amended legislative provisions that came into effect on the 1 July 2021 are as follows:

1. Obligations of design practitioners –

• updated circumstances under which a registered design practitioner must provide compliance declarations,
• who these compliance declarations must be provided to,
• the circumstances under which a person is able and not able to make a design compliance declaration,
• ensuring that the design practitioner is adequately insured and indemnity.

2. Obligations of principal design practitioners –

• compliance declarations by registered principal design practitioners,
• the circumstances where a person must not make a principal compliance declaration,
• the importance of registered principal design practitioners to be indemnified.

3. Obligations of building practitioners –

• provision of relevant documents to Secretary,
• notice of application for occupation certificate,
• the circumstances where a registered building practitioner must provide compliance declarations,
• the obligations of building practitioners and to ensure there is compliance with declaration obligation,
• if there are any variations to building work once commenced, that these are recorded in the form and manner prescribed by the regulations,
• a building practitioner’s obligations to take all reasonable steps in ensuring that building work in relation to a building element for performance solutions for which a regulated design to be used is carried out in accordance with a design, for which a design compliance declaration has been obtained,
• obligations in relation to the Building Code of Australia,
• circumstances where a person must not make a building declaration,
• registered building practitioners to be indemnified.

4. Miscellaneous matters  –

• compliance with the Building Code of Australia,
• the requirement for compliance declarations before the issue of building certificates,
• principal certifier to consider compliance declarations,
• the provision of compliance declarations, and any other obligations of registered body corporates,
• improper influence pertaining to the provision of declarations,
• regulations relating to insurance requirements.

5. Engineering work and specialist work –

• detailed summary of categories of professional engineering work,
• the circumstances under which a person may or may not carry out any professional engineering work,
• the contraventions which may apply if a person if is found to be carrying out professional engineering work for which they are not competent or nonetheless registered to provide,
• ensuring that the engineer is adequately insured to provide those services.

6. Registration of Practitioners –

• applications for registration,
• variation, suspension, or cancellation of registration,
• recognition as registered practitioner,
• offences relating to registration of a practitioner,
• any general matters including non-transfer of registration, voluntary surrender or suspension of registration and review by the Civil and Administrative Tribunal.

7. Disciplinary action against practitioners –

• updated grounds for taking disciplinary action,
• notice to show cause,
• disciplinary action that may be taken by the Secretary,
• directors to report certain conduct,
• review by the Civil and Administrative Tribunal,
• enforcement by way of monetary penalties and payment of costs.

8. Investigations

• the appointment of authorised offices to conduct investigations,
• scope of authority,
• identification,
• powers of authorised officers to require information, records and answers,
• recording of evidence,
• powers of authorised personnel to enter premises,
• entry into residential premises by way of a warrant or permission,
• search warrants,
• miscellaneous factors such as taking possession of records for the purpose of evidence.

9. Enforcement

• remedial actions such as undertakings, stop work orders, appealing against stop work orders, applying for orders to restrain or remedy contraventions and complaints, investigations and audits of practitioners,
• offence proceedings, penalty notices, offences by bodies corporate, continuing offences and onus of proof regarding reasonable excuse.

10. Miscellaneous matters

• register for practitioners,
• warning notices,
• service of documents,
• personal liability,
• certificate of evidence for particular matters,
• recovery of unpaid fees.

If you have any questions or concerns regarding the above changes to legislative provisions, please do not hesitate to contact Coleman Greig’s Building and Construction Lawyers who combined with their extensive experience, are able to provide you with expert advice tailored to your circumstances.