Another layer of rules and regulations is about to be added to the business of constructing new buildings, and designers, builders and architects are being advised to familiarise themselves with the NSW government’s draft Design and Building Practitioners Bill 2019 to understand what is coming.

The new system will require ‘design practitioners’ such as architects and engineers as well as builders to be registered by the NSW government’s Department of Customer Service. It will also contain a suite of reforms designed to strengthen accountability and improve the quality and compliance of design documentation. This in turn aims to further protect the consumer.

The draft bill was introduced into parliament on 23 October 2019 with a commitment to introduce a final Bill into Parliament by the end of this year with the regulations to be developed in 2020.

In short, construction projects are about to become way more complex – and practitioners impacted have only a matter of months to get their heads around a lengthy list of new conditions they will be bound by law to meet.

“From a legal perspective this legislation will impose a whole new level of compliance,” said Helen Kowal, partner at legal firm Swaab.

A specialist in build­ing and con­struc­tion, stra­ta and prop­er­ty law, as well as lit­i­ga­tion and dis­put­e res­o­lu­tion, Ms Kowal said the nature of the proposed reforms indicated the government is serious about stamping out unscrupulous players and the kind of situations that led to the 2018 Opal Tower debacle at Sydney Olympic Park. In that instance, faulty work resulted in residents being evacuated from the 34-storey high rise on Christmas Eve amid fears of building collapse.

“The intention is to come down hard on people at the front end – the builders, designers and architects – and making sure they comply with their designs but also noting that there will be defences available to those who are doing the right thing” Ms Kowal said. “These practitioners should definitely be keeping abreast of the reform.”

The proposed compliance declarations alone may slow progress of new construction projects as the industry comes to grips with the new requirements. “If practitioners have been carrying out similar processes previously it may be easier for them, but there will definitely be teething problems,” said Ms Kowal who is running a series of seminars for construction professionals starting in Sydney later this month on the impact of the new system and potential issues they could strike especially at the outset.

The reforms come in response to the Shergold Weir report prepared following a series of devastating incidents in Australia and internationally involving combustible cladding, including the Grenfell Tower fire in London and two incidents in the Lacrosse and Neo 200 buildings in Melbourne, as well as the building defects identified in the Opal Tower.

So, what do designers, architects, builders and other practitioners need to know?  The proposed reforms in summary:

  • Any Design Practitioner or Building Practitioner will need to be registered along with the Principal Design Practitioner whom, if appointed, will co-ordinate 'the provision of design compliance declarations for the purpose of building work'.

Exactly which design practitioners will need to be registered is not yet clear – especially when it comes to engineers.

Engineers Australia protested loudly in June when it was revealed the draft bill did not include mandatory registration of engineers. The organisation has called for the government to ‘make good on its promise to introduce compulsory registration of engineers’.

“The reality is that under the new regime, a person who has no experience as an engineer and no education as an engineer can call themselves an engineer and carry out unregulated engineering work on office buildings, factory buildings and major pieces of public infrastructure, including freeways, railways and bridges, and not have to be registered,” the EA statement said.

  • Will apply to 'regulated designs' which refers to designs for a 'building element' or 'a performance solution for building work or a building element'. The proposed definition of 'building element' picks up on the definition of 'building element' under section 18E of the Home Building Act 1989 and therefore includes fire safety and waterproofing along with 'internal or external load bearing components' as 'regulated design'.
  • Design Practitioners' preparing ‘regulated designs’ will need to declare that their designs comply with the Building Code of Australia (BCA) and 'Building Practitioners' who are relying upon the regulated designs will need to issue a declaration that they have built in accordance with the regulated design and complied with the BCA.
  • Only certain categories of buildings will be covered by the new laws. However, given the incidents which sparked the Shergold Weir report and these subsequent reforms, the expectation is for multi-unit and multi-storey buildings to be included.

A proposal to extend the duty of care owed by a builder to subsequent owners. This would be done via implementation of a statutory avenue to overcome the present limitations that exist at common law for successors in title. “For owners of property these reforms will provide the protections owed for defects arising from construction work and provide proper safeguards,” Ms Kowal said.

Swaab Lawyers & APEX Diagnostic will host a CPD briefing on building defects in Sydney on December 18. It will be the first Building Defects Series seminars specifically designed for Architects, Builders, Designers, Engineers and other Construction Professionals.