The NSW Parliament has recently passed two significant pieces of legislation that affect architects practicing in New South Wales.
The Australian Institute of Architects (AIA) strongly encourages industry to take the time to familiarise themselves with these important changes and says that it will continue to provide information and resources in the lead up to their implementation.
Key features of the new legislation
The Design and Building Practitioners Bill 2019 will become law from 1 July 2021, however the new statutory duty of care is retrospective and is applicable immediately.
The Bill establishes a registration scheme for design practitioners, requires new compliance declarations and imposes enhanced compliance obligations on building practitioners.
Currently, the Bill only impacts Class 2 (multi-residential) and mixed-use buildings, however it will be rolled out to other building classes in subsequent years.
The Residential Apartment Buildings (Compliance and Enforcement Powers) Bill 2020 (RAB) confers new powers on the NSW Building Commissioner and introduces new penalties for non-compliance.
The RAB aims to prevent developers from carrying out building work that may result in serious defects to building work or result in significant harm or loss to the public or current or future occupiers of the building.
From 1 September, the RAB becomes law and allows the NSW Building Commissioner to enter building sites and demand to see documents, inspect and check that construction is appropriate. The Building Commissioner will also have the ability to issue a stop-work order, a building work rectification order and prohibit the Occupation Certificate from being issued.
These new powers apply both to the construction of buildings going forward, but also to existing buildings built in the last 10 years.
Together, these two Bills support the NSW Government’s six-pillar Building Reform package, constituting its response to the national Shergold-Weir Building Confidence Report (2017) and the NSW Lambert Report (2015).
The details of the legislation will be developed in the regulations over the next few months and the AIA plans to use the opportunity to address a number of its residual concerns. These relate to:
- The retrospective application of the statutory duty of care. The AIA has sought advice on this from Planned Cover.
- Better defining the role of the Principal Design Practitioner to elevate their functions above simply being a collection point for declarations (as is the case currently in the legislation).
- The contracting out of proportionate liability permitted under the Bill is something the AIA is seeking to overturn as all building practitioners should be held accountable for their actions in equal part. It is leading a joint collaboration with Engineers Australia, MBA, Consult Australia, ACA and the Fire Protection Association on this aspect.
- Ensuring a level playing field for building designers and practitioners under the Bill. Through the development of the regulations AIA will continue its advocacy to remove the current discrepancy which provides that builders must ‘take reasonable steps’ while designers are held to a higher standard of ‘ensuring’ without access to the same ‘reasonable steps’ provision.