Following the recommendations coming out of the 2018 Shergold Weir Building Confidence Report and the 2019 Opal Tower and Mascot Towers issues, the State Government declared it was looking to shake-up the NSW Construction Industry documentation and compliance legislation in order to restore public confidence in the industry.

Fast-forward to June 2020, and the Government has followed through by passing two new pieces of construction legislation, the Design and Building Practitioners Bill 2019 (DBP Bill) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 (RAB Bill).

Links:

Shergold Weir Building Confidence Report 2018
Design and Building Practitioners Bill 2019
Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020

 

Minister for Better Regulation, Kevin Anderson said the reforms mark the start of a new era in the design and construction of buildings in NSW, however, how successful this will be and the impacts on the construction are yet to be determined.

The DBP Bill places new obligations on design and building practitioners to improve documentation and compliance with building standards in the built environment in New South Wales. Meanwhile, the RAB Bill makes a number of proposals to regulate better construction of residential buildings in order to avoid the issues highlighted by the Opal and Mascot Towers which flooded headlines in 2018 and 2019.

The Minister said that the DBP Bill, developed through extensive consultation with industry stakeholders and the public, will ensure NSW has a leading system of design and building regulation that delivers well-constructed buildings into the future.

NSW Building Commissioner, David Chandler OAM, will be leading the regulator’s implementation of both Bills; a team of 60 new staff will undertake increased investigation, audit and compliance activities. Details of the mechanics though are yet to be released.

Design and Building Practitioners Bill 2019

The key features:

  • Introduction of compulsory “compliance declarations” that must be given by designers and builders to ensure compliance with the Building Code of Australia.
  • A new duty of care owed by builders to owners and subsequent owners (including Owners Corporations) to avoid economic loss caused by defects.
  • Introduction of a registration scheme for designers and builders who are subject to compliance declaration requirements.
  • Establishment of new insurance requirements for registered design practitioners.

There are three types of compulsory “compliance declarations” enforced by the D&BP:

Design Compliance Declarations – for registered design practitioners who have provided a design in a form suitable for use by a person in connection with building work.

Principal Compliance Declarations – for principal design practitioners to show that Design Compliance Declarations have been given by registered design practitioners for all relevant designs.

Building Compliance Declarations – for builders, confirming whether the work complies with all relevant standards guides and tolerances. A Building Compliance Declaration must be made before an application can be filed for a corresponding Occupation Certificate.

Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020

The key features:

  • New powers to enable the Secretary of the Department of Customer Services to issue stop work orders where building work might result in significant harm or loss to the public or current/future owners; require developers to rectify defective building works; and deny developers Occupation Certificates in certain circumstances.
  • A new obligation on developers to notify the Secretary at least 6 months before an application for an occupation certificate is intended to be made.
  • Investigative and enforcement powers for authorised officers to ensure compliance with the requirements of the proposed Act.
  • Penalties for non-compliance with requirements proposed by the Act.
  • The recovery of costs associated with compliance requirements of the proposed Act by a developer where there is more than one developer for the building work, or by the Secretary where the developer fails to comply.

Stay tuned as we will provide more information on each Bill, the mechanisms involved in each as the information comes to light, and things you can be doing now to ensure compliance with the new Bills when they come into effect.

 


 

Morrissey Law + Advisory communications are only intended to provide commentary and general information as at the date of publication. They are for reference purposes only, do not constitute legal advice and should not be relied upon as such. Formal legal advice should always be obtained about particular transactions, contracts or matters of interest before taking any action based on this communication. Authors and contributors may not be admitted in all State and Territories.