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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.