The heavily awaited Design and Building Practitioners Regulation 2021 (Regulation) has been released and will take effect from 1 July 2021.

The objective of the Regulation is to provide guidance around the new obligations imposed on builders, designers, and engineers of NCC Class 2 (residential apartment) buildings under the Design and Building Practitioners Act 2020 (NSW) (DBP Act) which commenced last June.

Update: 1 July 2021

Transitional Period & Ongoing Works

What are the Transitional periods under the Design and Building Practitioners Act?

Transitional periods are operating under the DP Act to allow for buildings under construction to continue building without requiring retrospective lodgement of plans and registration of the relevant practitioners

Below we run through some common questions we are hearing.

What if I am already building?

If you have already commenced building works, or the project you are designing for has commenced works, then the new rules do not apply – that is, you will not need to provide a design compliance declaration, will not need to be registered designer or builder (unless you plan on continuing to work on other unstarted projects) and builders will not need to submit a design before works start, however, the builder will need to upload the plans before they apply for an occupation certificate.

Can certifiers issue an occupation certificate without lodged plans after 1 July 2021?

No.

For certifiers, you must not issue an occupation certificate in respect of a class 2 building after 1 July 2021 unless the plans that have been relied upon have been uploaded to the NSW Planning Portal by the builder or principal design practitioner.

Do designers need to be registered or eligible to be registered to provide designs for works that will start after 1 July 2021.

Yes. If you already have completed plans, but have not yet commenced works under a construction certificate or complying development certificate, you must ensure that the designers are registered or capable of being registered.

This means, that unless you have started works, the builder must review and confirm that all designs they intend to rely on have been prepared by someone who is or eligible to be registered. If they are not eligible, you must ensure that a registered designer in that class, assesses and confirms the plans comply with the BCA.

For a reminder of the key reforms prescribed by the DBP Act, take a look at our Briefing Note here.

Working in conjunction with the DBP Act is the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act) on which you can find out about the key reforms here.

Below we set out some of the key takeaways from the Regulation which is available in full on the NSW Legislation website.

Registration

The Act introduced a new registration regime for design and principal design practitioners, building practitioners, and professional engineers that intend to declare regulated designs or building work performed on Class 2 buildings.

The Regulation supplies further details of how the registration process will operate including prescribed classes of registration and the requisite qualifications, experience, and skills required for each class.

Practitioners can apply for registration via the NSW Planning Portal from 1 July 2021, and applications lodged between 1 July to 31 December 2021 will receive ‘deemed’ approval in most cases.

Compliance Declarations

The Regulation stipulates the form and content of certain regulated designs and compliance declarations, including specific requirements for regulated designs involving performance solutions, fire-resistant building elements and the integration of vertical transportation products.

Compliance Declarations should be made in the form specified on the NSW Planning Portal and may only be lodged by registered practitioners.

Variations to regulated designs (meaning most on-site project variations) must be re-declared and lodged no later than 1 day after the builder commences building work in relation to the variation.

Insurance Requirements

To facilitate what could potentially be one of the most stringent reforms under the Act, the Regulation provides a substantial deferral of the date for when the insurance provisions will apply until 1 July 2023.

Eventually, all registered practitioners will require ‘adequate’ cover that extends to all liability since becoming a registered practitioner, however, the Regulation clarifies that it does not require a practitioner to hold insurance in relation to any work which predates the practitioner’s registration.

Engineers

The Regulation will be of particular interest to professional engineers, with specific provisions relating to the cross-over between registration under the Act and the recognition of certain professional engineering bodies.

The Act and the Regulation will apply to all aspects of professional engineering work on mixed-use buildings containing a Class 2 element. This includes components that, in isolation, would typically fall under another NCC building classification.

Notably, the Regulation prevents a body corporate from registering as a registered professional engineer under the new regime.

Other

In addition to the above, the Regulation refers to codes of practice for prescribed practitioners; new record-keeping obligations; ongoing continuing professional development; and penalty notice offences under the Act.

Note that this is a very brief rundown of the Regulations.

We’ll be providing a more comprehensive breakdown of the Regulations shortly.

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Or, for more specific advice about your obligations under the Act, click here to reach out to our team.

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