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Design & Building Practitioners Act 2020 (DBPA) Explained

What is the Design and Building Practitioners Act (NSW)?

Recent years have shown up some well-publicised building failures both regarding combustible cladding such as Lacrosse Melbourne, structural defects such as the Opal Tower in Sydney as well as the usual well-known water leaks.

These failures have led to the development of the Design and Building Practitioners Act 2020 (NSW) (known as the DBPA).

As recommended in the Shergold-Weir Building Confidence Report 2018, DBPA aims to restore public confidence in the building industry through better regulating the design and construction of new buildings.

Among other changes, the DBPA imposes a requirement for “Design Compliance Declarations”. 

What does the DBPA apply to?

The Design and Building Practitioners Act 2020 is effective from 1 July 2021.

It only applies to Class 2 buildings, which is typically multi-level residential buildings. Note the BCA definition of a Class 2 building is “a building containing 2 or more sole-occupancy units each being a separate dwelling”.

The Act includes buildings with a Class 2 component, for example, residential apartments above a shopping centre or offices. It also includes remedial work on these types of buildings.

The act will be expanded to other building types in future, through the issuing of more Regulatory Guidelines. At this stage the Regulation only covers Class 2 buildings.

Construction work started before 1 July 2021 does not need to comply, but designs must still be registered on the NSW Planning Portal.

What does the DPBA initially require from architects and building designers?

The Act allows for registration in up to 18 classes as a Design Practitioner, including Architecture, Building Design (low rise), Building Design (medium rise), electrical engineering, and structural engineering.

Register, for example, as an Architectural or Building Design Practitioner, and you can declare that the overall design of a building is compliant or is a regulated design and is integrated with the other aspects of the design.

Registration requires a degree and five years’ experience in the field of registration. You must also sit and pass two modules, one covering Australian building standards, and one on the changes made under this act.

You need to register by 31 December 2021 to avoid having to stop work while waiting for your application to be approved. If not eligible, you will have to get someone to register your design on your behalf.

The Act also allows for registration as a Principal Design Practitioner – this allows a Design Practitioner to co-ordinate and lodge designs on behalf of other registered Design Practitioners. This is effectively an extra checkpoint for large and complex projects.

Residential apartment builders must also register as a “Building Practitioner”.

Under the Act, a “registered building practitioner” cannot start building work unless it has obtained all “regulated designs” from the “registered design practitioners”, who have lodged “compliance declarations” on the NSW Planning Portal. The “registered building practitioner” must oversee construction according to these declared designs.

Where do I lodge my Design Compliance Declaration?

Design Compliance Registrations are lodged on the NSW Planning Portal.

This declaration confirms the following: Compliance with BCA, performance solutions, specialist consultant advice and other guidelines and registrations applicable to the project.

A declaration is also required for variations during construction. However, early concept designs and sketches do not need to be registered.

A declaration can include a plan, a specification or a report detailing a design.

These declarations must be lodged using a standard form. There is one form for individual designs and one for multiple designs. Drawings must use a standard title block as provided.

The Design and Building Practitioners Act 2020 also applies to product suppliers:

  1. A Design Practitioner, as part of their design compliance declaration, must indicate whether any building product referred to in the design would, if used in a manner consistent with the design, achieve compliance with the NCC. Therefore, Design Practitioners are likely to look to product suppliers for this information.
  2. The Act creates a duty of care to exercise reasonable care to avoid economic loss caused by defects in or related to a building and arising from construction, design, and supervision work. This Duty of Care provision specifically includes the manufacture or supply of a building product used for building works.
For example, this is how the above points affect Supawood:

  1. Supawood will supply a letter applicable to your project, confirming the drawing numbers and specification that have been supplied and reviewed by us, and confirm that this application achieves compliance with the Clause C1.10 of the BCA.
  2. Supawood uses only best quality materials, subcontractors, and tradesmen in its products, so can give assurance of a superior level of quality. Supawood furthermore has a system of investigating any defects discovered, to determine the reason for these and ensures the cause is removed. Supawood takes its duty of care seriously and lets it affect every department of our work.

What is the new compulsory insurance?

The DBPA also imposes a compulsory insurance regime to ensure that all registered practitioners are adequately insured against any liability that may arise from providing a declaration or performing building work. The DBP Regulation contains details of what constitutes adequate indemnity.

What is the retrospective and extended duty of care?

Any person who has carried out construction work in the last 10 years now has a duty to exercise reasonable care to avoid economic loss caused by defects. This is in addition to the statutory warranties under the Home Building Act. The duty is non‑delegable, and parties cannot contract out of it. Please note that the extended duty of care applies to all building works, not just Class 2 buildings.

Duty of care is owed to each owner and subsequent owner of the unit or apartment and can extend up to 10 years before the act was passed.

Regulatory framework

A regulatory framework has been set up to enforce the above. This includes investigation and enforcement powers for authorised officers and the Secretary of the Department of Customer Service, such as issuing stop work orders for up to 12 months (with penalties up to $330,000 for bodies corporate and $110,000 for individuals for non-compliance) and initiating court proceedings.

What is the Residential Apartment Buildings (Compliance And Enforcement Powers) Act 2020?

This act is related to the DBPA and covers additional obligations and requirements for developers and builders on Class 2 buildings.

It includes a minimum 6-month notice period for applying for an Occupation Certificate, which may then trigger an Occupation Certificate audit for that building.

This act includes considerable powers of enforcement.

Other references

Quick reference guides that explain every step of the DBPA process, are available to download at: https://www.planningportal.nsw.gov.au/support-training/developer-practitioner-resources

Lacrosse Business Park, Albert Park VIC

For example, the first three guides are:

Registering for NSW Planning Portal

Navigating NSW Planning Portal Dashboard

Providing Additional Information (when requested by council)

Design & Building Practitioners Act FAQ:

https://www.fairtrading.nsw.gov.au/trades-and-businesses/construction-and-trade-essentials/design-and-building-practitioners/frequently-asked-questions

Supawood will also be including detailed instruction in our CPD courses. Please contact us if you would like to register your interest for this:

www.supawood.com.au/contact

02 6333 8000

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