Recently, there has been two new acts introduced in NSW that have a considerable impact on the building and construction industry. Collectively known as ‘the Reforms’, these acts are: The Design and Building Practitioners Act 2020 (the DBP Act). The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (the RAB Act).

The objective of the Reforms is to ensure NSW’s building industry is constructing trustworthy buildings and delivering quality projects to consumers. The Reforms seek to increase the standard of current works, ensuring all work and materials used onsite are compliant with the Building Code of Australia (BCA) and Australian standards. The Reforms are to protect homeowners and ensure a quality and safe product.

The greatest accountability rests with the Developer (principal) as the individual/entity responsible for delivery of a product to consumers, however builders and designers will also be accountable. The purpose behind the push to change the building and construction industry is to ensure the entire team involved in the construction process is both accountable and performing at optimum standards.

The Reforms are to protect homeowners and ensure a quality and safe product. Part of this will see the regulator attending sites to ensure builders and developers are increasing the quality of products and workmanship or exiting the building game altogether. Such action will also ensure that financiers and insurers as well as consumers have a renewed level of trust in the NSW building industry.

The DBP Act represents a quantum shift in the regulation of the construction industry in NSW and is part of the six-pillar plan proposed by the NSW Government in January 2020. The legislation introduces: Statutory duty of care, owed by people who carry out construction work, to owners of properties and subsequent owners, to exercise reasonable care to avoid pure economic loss by the owner. Scheme for the registration of building designers, builders, and engineers. Requirement for building designs to be declared to be compliant with the Building Code of Australia. Requirement for design practitioners to be adequately insured. The DBP Act introduces a process whereby building designs are now regulated and will require building compliance declarations (in the manner and form to be prescribed by the regulations) from designers covering: Compliance with the Building Code of Australia Compliance with any requirements prescribed by the regulations Standards, codes, or requirements applied in preparing the design Other matters prescribed by the regulations. Regulated designs are broad and cover: A design prepared for a building element for building work A design prepared for a performance solution for building work A design of a class prescribed by the regulations that is prepared for building work.

Registration scheme requiring designers to certify designs for specific types of building work. This scheme ensures registered design practitioners comply with building regulations. Builders required to prepare and declare As Built drawings to reflect declared designs. Designers required to lodge plans on NSW ePlanning portal. Engineers and practitioners undertaking other forms of specialist work to be registered. Applicable to class 2 building work that has a construction certificate or complying development certificate after 1 July 2020.

The RAB commenced on 1 September 2020. Broadly speaking the reform is targeted at monitoring works to prevent issues prior to the issuance of an occupation certificate through monitoring the quality of works. It represents a targeted proactive compliance regime. In overview, the act brings the following reforms to the residential apartment sector of the construction industry: Developers are required to give the Department of Customer Service at least six months’ notice prior to applying for an occupation certificate. The Building Commissioner, through the Department of Customer Service, will be monitoring developments prior to the issuance of an occupation certificate and has developed a risk matrix assessment tool to identify high risk developers and certifiers that he considers should be monitored. Occupation certificates may be refused, and registration of a strata plan may be prohibited if: Six months’ notice isn’t provided. There is a serious defect (defined below) in the building. A building bond required by the Strata Schemes Management Act 2015 has not been given. The Building Commissioner has sweeping powers to investigate works including the powers to examine construction plans, specifications and details and order destructive testing of works where deemed necessary.

In the event serious defects are found onsite, the Building Commissioner may stop the issuance of an occupation certificate if the building bond required under the Strata Schemes Management Act 2015 (SSMA) has not been paid or if the notification scheme has not been complied with. By way of clarification, the notification scheme requires developers give six months’ notice of a proposed application for an occupation certificate. The RAB affords the Building Commissioner power to: Stop works Open up works Call in relevant documentation Undertake testing As noted above, delay the issuance of an occupation certificate. Applicable to class 2 building work completed in the last 6-10 years. Occupation Certificate Audit inspections formally commenced 1 September 2020. OC Audit inspection teams will comprise of construction industry practitioners such as architects, engineers and builders who have been in the industry 15+ years.