A Guide to the Design and Practitioner’s Act 2020 (NSW)

14 May 2023 in Building and Construction Law

Introduction

The Design and Building Practitioners Act 2020 (NSW) (“Act”) was enacted in response to several major construction project failures, particularly in residential towers. The Shergold Weir Report, commissioned in 2017, identified and documented compliance shortcomings in the NSW construction industry, highlighting the need for greater accountability and responsibility within the sector.

The Act and the Design & Building Practitioners Regulations 2021 (NSW) (“Regulations”) were introduced, among other measures, to address these issues and improve the quality of construction projects. The Act introduces registration obligations for any design, engineering and building practitioners working on Class 2 (i.e. multi-dwelling) buildings. This is to ensure that all practitioners have the necessary skills and qualifications to carry out their work and meet the standards of compliance required in Class 2 buildings.

Registered Design Practitioners

In relation to design practitioners, section 9 of the Act requires that a Registered Design Practitioner must provide a Design Compliance Declaration for any Building Work as defined in the Act.  The Design Compliance Declaration must declare, among other things, that the design complies with the Building Code of Australia and section 12 of the Act provides that the Registered Design Practitioner must submit the Design Compliance Declaration to the NSW Department of Customer Service.

Building Practitioners

In relation to Building Practitioners, section 15 of the Act requires that a Building Practitioner who completes Building Work, as defined in the Act, provides all relevant documents to the Secretary of the NSW Department of Customer Service.  Such “relevant documents” include each regulated design for which a Design Compliance Declaration has been provided, and any other design documents.

Section 18 of the Act requires a Building Practitioner to take all reasonable steps to ensure that each regulated design is prepared by an appropriately Registered Design Practitioner and that all designs have a Design Compliance Declaration.

Registration 

Schedule 1 of the Regulations sets out the 35 different types of registration that are available for Designer Practitioners, Principal Design Practitioners, Building Practitioners and Engineers.  However, only the person submitting the Design Compliance Declarations or other documents to the NSW Department of Customer Service must be registered.

A body corporate and an individual may apply for registration.  However, most categories of registration for a body corporate require the body corporate to nominate an employed individual who holds such registration.

Duty of Care

The Act also introduces a retrospective duty of care for all persons involved in construction work. Section 37 of the Act states that “a person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects.” This means that anyone involved in construction work, including builders, designers, engineers and project managers, must take reasonable care to avoid defects that may cause economic loss.

The retrospective nature of this duty of care means that it applies to both new and existing buildings, and it is not limited to residential building work. The New South Wales Supreme Court held in the case of Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust v DSD Builders Pty Ltd (In liq) that building work and construction work include major engineering projects and that the duty of care applies to any person involved in coordinating, supervising, project managing or otherwise having substantive control over the carrying out of the work.

The introduction of this retrospective duty of care has significant implications for the liability that may be imposed on any person who carries out construction work. Previously, liability for defects and economic loss was often difficult to establish, and it was not uncommon for responsibility to be shifted between different parties involved in a project. The Act seeks to address this issue by imposing a clear duty of care on all persons involved in construction work, thereby increasing accountability and reducing the risk of defects and economic loss.

The Act also includes provisions for the establishment of a Building Commissioner and a Building Commission, which oversee the regulation of the construction industry in NSW. The Building Commissioner will be responsible for investigating complaints and taking enforcement action where necessary, while the Building Commission will be responsible for developing and enforcing building standards and codes of practice.

Overall, the Act is a significant increase in the regulation of the construction industry. By introducing registration obligations, a retrospective duty of care and provisions for the establishment of a Building Commissioner and Building Commission, the Act seeks to improve the quality of construction projects and increase accountability and responsibility in the sector.