The Design and Building Practitioners Act 2020 (NSW) (DBP Act) commenced on 11 June 2020 implementing broad legislative changes to the building and construction industry.
Here we outline the key reforms brought about by the commencement of the Act.
Retrospective & Extended Duty of Care
Any person who has carried out construction work in the last 10 years has a duty to exercise reasonable care to avoid economic loss caused by defects. The duty is non‑delegable, and parties cannot contract out of it.
We have prepared a more detailed run-down of the extended duty of care you can view here.
New Register of Practitioners
The DBP Act provides for a comprehensive new registration regime for anyone involved in the design and construction of a building class or type prescribed by the Regulations.
Any person who contracts to do building work will need to be named on a public register of practitioners administered by the Secretary of the Department of Customer Service (Secretary).
One of the main objectives of the DBP Act is to ensure stricter compliance with industry standards, including the Building Code of Australia (BCA). To facilitate this, the DBP Act introduces a compulsory requirement for practitioners to provide a declaration as to whether building work complies with the requirements of the BCA, and other specified standards, prior to an occupation certificate (OC) being issued.
The DBP Act imposes a compulsory insurance regime to ensure that all registered practitioners are adequately insured against any liability that may arise from providing a declaration or performing the building work.
Information Gathering Powers
New information gathering powers enable ‘authorised officers’ to retrieve records, direct interviews, enter business premises without a warrant, and examine, inspect, take samples, conduct tests, take photographs, copy records, seize property, open up works, demolish a building or do anything else authorised by the Regulations.
New enforcement powers allow the Secretary to issue a ‘stop work order’ for up to 12 months if the Secretary decides that the work is likely to result in significant harm or loss to the public, occupiers or potential occupiers of the building.
The DBP Act imposes increased disciplinary actions including penalties of up to $220,000, suspension or cancellation of registration, conditions on registration (such as requirements to undertake further training), and disqualification. There is also the possibility of imprisonment where a compliance declaration is made by a person who knows it to be false.
These new obligations are likely to have a significant financial and administrative impact on the majority of construction participants in NSW, however, we will need to await the Regulations which have not yet been released to advise on the full extent of certain provisions.
As a minimum, practitioners should consider updating their current insurance policies in light of any potential increase in liability and ensure that their employees are fully up to speed with their new obligations under the DBP Act.
We will be doing a deep-dive into the legislation over the coming weeks.
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The Design and Building Practitioners Act 2020 (NSW) can be viewed in full here.
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