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The NSW Design and Building Practitioners Act 2020 – Reforms for the Construction Industry and Building Defects

Posted by Mario Rashid-Ring on 16 Jul 2020

Assisted by James Duff

The NSW Parliament recently passed the much-anticipated Design and Building Practitioners Act 2020 (NSW) in response to the highly publicised defect issues with Mascot Towers and Opal Tower and stemming from the NSW Government discussion paper entitled ‘Building Stronger Foundations,’ for comment.

The Act commenced on 11 June 2020 and will have significant implications for all stakeholders within the NSW building and construction industry. The motivation for the Act was to promote transparency and accountability in the building and construction industry. The full implications of the Act are yet unknown. What is clear however, is that the Act brings with it a number of key changes which indiscriminately affects those involved in the construction of residential or mixed-use developments in NSW. It will change the way that work is undertaken, priced, and insured moving forward.

We set out the key features of the Act below:

  1. A new duty of care regime, a duty of care is owed to landowners by people carrying out “construction work” to exercise reasonable care to avoid economic loss caused by defects. This duty of care will apply retrospectively in that owners may enforce this statutory duty of care for economic loss in respect of existing buildings where the loss first became apparent within the last 10 years, or for a loss that first became apparent on or after 11 June 2020.
  2. 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.
  3. Compliance declarations – design and building practitioners must provide mandatory declarations that building designs and building works comply with the requirements of the Building Code of Australia (BCA) before an occupation certificate can be issued.
  4. Enforcement – the Act gives the Secretary of the Department of Customer Service grounds to take disciplinary action against a registered practitioner, including imposing fines or suspending registration. Further the Act provides for authorised officers to undertake investigations (without or without any complaint being made) and for stop work orders to be issued by the Secretary in certain circumstances.

What this means for you

Building practitioners and designers will now be required to investigate registration requirements, consider whether their insurance is adequate and factor in the added risk introduced by the Act when pricing works. In addition, it is important to fully understand the mandatory compliance declarations and ensure regulated designs comply with the BCA.

If you would like more information in relation to the statutory reform or any general enquiries in relation to how the Act will impact you, please don’t hesitate to reach out to Coleman Greig’s Building and Construction lawyers, who are highly experienced and are able to provide expert, tailored advice – no matter the complexity of the matter at hand.