Alert Design­ers and Build­ing Practitioners

“Some­times the wheel turns slow­ly, but it turns” [1]

It is tak­ing some time, but slow­ly and sure­ly it appears we are see­ing the rec­om­men­da­tions put for­ward in the Sher­gold Weir Report [2] being actioned.

With the Sher­gold Weir Report released in Feb­ru­ary 2018 and the NSW Gov­ern­men­t’s Response to the Sher­gold Weir Report released in Feb­ru­ary 2019, the NSW Gov­ern­ment released the draft Design and Build­ing Prac­ti­tion­ers Bill 2019 (​‘Draft Bill’) for pub­lic con­sul­ta­tion on 2 Octo­ber 2019. This has come short­ly after the appoint­ment of Mr David Chan­dler OAM, to the posi­tion of Build­ing Com­mis­sion­er in August 2019.

What do you need to know?

Sub­mis­sions closed for pub­lic con­sul­ta­tion on the Draft Bill on 16 Octo­ber 2019, with the Draft Bill to be intro­duced into Par­lia­ment by the end of 2019. 

Whilst the reg­u­la­tions are not set to be pre­pared until 2020, design­ers and build­ing prac­ti­tion­ers should famil­iarise them­selves with the Draft Bill and under­stand what is coming.

The Depart­ment of Fair Trad­ing’s press release on 17 Octo­ber 2019 described the Draft Bill as intro­duc­ing ​‘a suite of new reforms to improve the qual­i­ty and com­pli­ance of design doc­u­men­ta­tion and to strength­en account­abil­i­ty across the design, build­ing and con­struc­tion sector’.

In sum­ma­ry, the pro­posed reforms:

• will apply to cer­tain cat­e­gories of build­ings only. Whilst the reg­u­la­tions are yet to be draft­ed to con­firm which ​‘cat­e­gories’ of build­ings will be includ­ed, it is the inten­tion, and giv­en the media hype seen dur­ing 2019 it would be sur­pris­ing if it wasn’t, that mul­ti-unit and mul­ti-storey build­ings are included.
• will apply to ​‘reg­u­lat­ed designs’ which will include 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 Designswill need to declare that their designs com­ply with the Build­ing Code of Aus­tralia 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 Build­ing Code of Australia.
• Any Design Prac­ti­tion­er or Build­ing Prac­ti­tion­erwill 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…’.
• A wel­come inclu­sion, for many ​‘sub­se­quent’ own­ers, is the exten­sion of the pro­posed leg­is­la­tion to extend the duty of care owed by a builder to sub­se­quent own­ers by the imple­men­ta­tion of a statu­to­ry avenue to over­come the present lim­i­ta­tions that exist at com­mon law for suc­ces­sors in title. 

Design prac­ti­tion­ers and Build­ing Prac­ti­tion­ers should be aware of their upcom­ing oblig­a­tions under the Draft Bill. Fur­ther updates will be com­ing upon the intro­duc­tion of the Draft Bill into parliament.

Foot­note

[1] Lorne Michaels

[2] A report pre­pared by Pro­fes­sor Peter Sher­gold and Ms Bron­wyn Weir enti­tled ​‘Build­ing Con­fi­dence: Improv­ing the effec­tive­ness of com­pli­ance and enforce­ment sys­tems for the build­ing and con­struc­tion indus­try across Aus­tralia’ (more com­mon­ly referred to as the ​“Sher­gold Weir Report”) was released on 22 Feb­ru­ary 2018 and encom­pass­es rec­om­men­da­tions for a ​‘nation­al best prac­tice mod­el to strength­en the effec­tive imple­men­ta­tion of the Nation­al Con­struc­tion Code.