NSW Parliament Passes Design and Building Practitioners Bill 2019

Tuesday 9 June 2020 @ 2.14 p.m. | Legal Research

On 23 October 2019, the NSW Minister for Better Regulation and Innovation Kevin Anderson introduced the Design and Building Practitioners Bill 2019 (NSW) (“the Bill”) to the Legislative Assembly. The Bill eventually passed the Legislative Council with amendments. On 3 June 2020, the Legislative Assembly agreed with the Legislative Council’s amendments. The Bill is currently awaiting assent.

The Bill contains key reforms in order to improve the quality and compliance of design documentation and to strengthen accountability in the design, building, and construction sector. Some of the reforms include:

  • New requirements of compliance declarations for regulated designs
  • New obligations on registered building practitioners
  • Establishing a duty of care owed by persons doing construction work to take reasonable care to avoid economic loss caused by defects arising from the work
  • Establishing a registration scheme and register for design and building practitioners
  • Introduction of new insurance requirements for registered practitioners

The Bill also makes consequential amendments to a number of NSW Acts.

The Bill is part of the Government’s response to the national Building Confidence – Improving the Effectiveness of Compliance and Enforcement Systems for the Building and Construction Industry across Australia Report (“the Report”).

The Building Confidence Report

The Building Ministers’ Forum (“the BMF”) oversees policy and regulatory issues regarding Australia’s building and construction industry. The BMF is made up of federal, state, and territory government ministers responsible for building and construction. It was established by a series of intergovernmental agreements, which establish and maintain the Australian Building Codes Board, and is responsible for the development of the National Construction Code (“NCC”).

On August 2017, the BMF appointed independent experts, Professor Peter Shergold and Ms Bronwyn Weir to undertake an external assessment of the compliance and enforcement systems within the Australian building and construction industry. The assessment was to also note potential further and additional reforms.

The Report was submitted in February 2018 and contained 24 recommendations. Overall, the Report found that accountability was unclear and there were insufficient controls on the accuracy of documentation. Furthermore, documentation in current building processes lacked the requirement to demonstrate compliance with the NCC. The recommendations put forward in the Report include:

  • A national approach to registration and training of practitioners
  • Introduction of statutory requirements for private building surveyors
  • A new statutory duty for design practitioners to prepare documentation to ensure buildings are compliant with the NCC

Registration of Practitioners and Compliance Declarations

The Bill proposes the introduction of a new registration system, in order to ensure that practitioners involved in the building and construction process are competent, qualified and suitably insured. Applications for registration are to be reviewed and determined by the Secretary of Customer Service. However, registration can be suspended or cancelled in order to ensure compliance with the proposed framework.

The Bill introduces prescribed categories of regulated designs, and new and separate obligations for registered design practitioners, principal design practitioners, and building practitioners. A regulated design in defined in clause 5 as:

“(a) a design that is prepared for a building element for building work, or

(b) a design that is prepared for a performance solution for building work (including a building element), or

(c) any other design of a class prescribed by the regulations that is prepared for building work.”

A regulated design can only be prepared by a registered design practitioner or a registered principal design practitioner, and requires the practitioner to issue a design compliance declaration with the design. The declaration states that the designs are in line with the Building Code of Australia (“the Code”). Any major variations of the designs must also be declared as compliant before being provided to the building practitioner.

Registered building practitioners must obtain and build in accordance with these designs and issue a compliance declaration stating that the final building, including any variations, is in compliance with the Code. Compliance declarations can only be made by registered practitioners.

Duty of Care

The Bill also seeks to establish a statutory duty of care to clarify that a duty is owed to the end user in respect to liability for defective building work. Clause 37 of the Bill states:

“(1) A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects—

(a) in or related to a building for which the work is done, and

(b) arising from the construction work.

(2) The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land.

(3) A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law.

(4) The duty of care is owed to an owner whether or not the construction work was carried out—

 (a) under a contract or other arrangement entered into with the owner or another person, or

(b) otherwise than under a contract or arrangement”

This duty of care is to work alongside established principles under common law and the Civil Liability Act 2002 (NSW). This duty of care cannot be delegated to another person, nor can it be contracted out to ensure the rights of owners.

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Design and Building Practitioners Bill 2019 (NSW) and supporting documents available from TimeBase's LawOne Service

Building Confidence: Building Ministers’ Forum Expert Assessment (Department of Industry, Science, Energy and Resources, April 2018)

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