The Design & Building Practitioners Regulation 2021 have arrived…

The heavily awaited Design and Building Practitioners Regulation 2021 (Regulation) is now in effect from 1 July 2021. The objective of the Regulation is to provide guidance around multiple new obligations imposed on builders, designers, and engineers under the Design and Building Practitioners Act 2020 (NSW) (Act). The Act which came into effect on 11 June 2020, aims to raise industry standards and restore public confidence by regulating the activities of those who design and construct new buildings and ensure that buildings being constructed are designed and constructed in accordance with the Building Code of Australia (BCA).

In summary, the new Act and Regulation:

1. creates a statutory duty of care on anyone who carries out construction work to exercise ‘reasonable care’ to avoid economic loss caused by defects in or related to a building;

2. requires certain practitioners (designers, builders and engineers) to be registered under a new statutory registration scheme if they intend to declare that their ‘regulated designs’ or building work comply with the Building Code of Australia (BCA). At this stage, the registration scheme currently only applies to ‘building work’ and ‘professional engineering work’ carried out for class 2 buildings or mixed-use buildings containing a class 2 part. Under the BCA, a ‘class 2 building’ is a building that contains two or more sole-occupancy units, with each sole-occupancy unit being a separate dwelling. Therefore, apartment buildings, manor houses and the like falls into this category;

3. establishes a scheme for the provision of compliance declarations to be made by designers and builders in respect of their work at set points throughout the design and construction process;

4. requires registered design practitioners, principal design practitioners, professional engineers and building practitioners to be “adequately insured” with respect to certain compliance declarations and work. The Regulation has deferred the commencement of the insurance requirements until 1 July 2023 to allow more time for insurance products to be developed and ensure that practitioners have time to prepare.

What this means for Developers/Owners?

• be aware that if variations arise once construction has commenced, building work relating to the regulated design may need to stop to allow the varied regulated design to be prepared and declared within the prescribed lodgement timeframe;
• consider whether the project budget is adequate for the increased risk of building work delays due to the new compliance declaration regime and increased compliance costs for design and building practitioners (including re-engaging designers for varied regulated designs);
• ensure that new obligations and standards under the Act will be met for any new or renovated buildings caught by the class 2 scope as the principal certifier is otherwise not permitted to grant an occupation certificate.

Our Director and Principal Architect, Hy Chheng, has successfully submitted his application for registration under the Design and Building Practitioner Regulation 2021. While waiting for his registration to be confirmed by NSW Fair Trading, Hy is deemed registered as a Principal Design Practitioner (Rego# PDP0000006) and Design Practitioner (Rego#DEP0000008) during the transitional period which begins on 1 July 2021 and ends on 31 December 2021.

If you have any further inquiries about how the Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021 may affect your project or business, please do not hesitate to contact a member of our team.