Following on from the independent review of the Building Professionals Act 2005 (Lambert Review 2015) and the Building Confidence Report (Shergold Weir Report 2018: Building Ministers Forum), there are a number of changes to NSW legislation which have come into force in the last 6 months or a scheduled to commence in the coming 12 months which directly impact the certification of all classes of buildings.
As always our certifiers will continue to work alongside clients to ensure compliance with any legislation. If you require any advice as to how the changes below may affect your project please contact 02 8270 3500 for assistance.
The following information provides an overview of each new / amended Act and the changes which may affect our clients:
Residential Apartment Building (Compliance and Enforcement Powers) Act 2020. (RAB Act 2020)
Commences: 1 September 2020 (transitional period applies*)
Applies to: Class 2 Buildings
Operates as follows:
- Developers must notify the Secretary, a minimum of six months prior to expected completion of construction, by lodging an Expected Completion Notice.
- The completion date needs to be accurate to within 60 days, otherwise you need to lodge an Expected Completion Amendment Notice.
- The Building Commissioner needs to inspect a property prior to the issue of and Occupation Certificate.
- The Building Commissioner has broad powers to investigate potential defects. Inspectors may examine or inspect anything, take samples, conduct tests, and even open up, cut open or demolish or direct a developer to carry out certain building works.
- If a defect is identified, the Secretary has various enforcement powers available to them, including the issue of a Building Works Rectification Order (BWRO).
- If the developer fails to comply with BWRO, the Secretary may issue a Prohibition Order. Such an order will prevent the Occupation Certificate from being issued.
- The Secretary enter premises at which business (including building work) is carried out – without a warrant.
- The Secretary also has powers to require information and/or records and may issue a Stop Work Order if parties fail answer / satisfy their enquiries.
*Transition period is for 6 months and will end 01 march 2021. If a development is due for completion during the transition period, the developer must notify the Secretary by 14 September 2020.
Part 6 EP&A Act Changes
Commenced: 01 December 2019 (transitional period applies*)
Applies to: all classes of buildings
Operates as follows:
- Remove interim and final occupation certificates terminology – now only Occupation Certificates apply
- The First Occupation Certificate issued will have a condition requiring completion within 5 years**. There is no mechanism within the regulations to modify or extend this requirement.
- A new certificate for subdivision works, separating subdivision from construction works must be created.
- Principal Certifiers are required to issue Written Directions Notice if any issues are identified^. This is mandatory and not discretionary.
- Changed “Not Inconsistent” to “Consistent” test. “Consistent” test is a stricter interpretation of consistency with the DA.
- Third party right of appeal to challenge validity of a Construction Certificate must be made within 3 months.
- The Requirement for a Building Manual to be prepared for specified buildings has had commenced deferred.
* Transitional arrangements applies to Occupational Certificates and Strata Certificates for developments granted consent from 01 December 2020.
* In the case of a Development Application multiple buildings, the Partial OC condition would require the completion of the subject building only. Where the development Application has multiple towers forming one building, the Partial OC condition would require the completion of all towers within 5 years.
^A Written Directions Notice (WDN) does not have to be served if the non-compliance is detected at the critical stage inspection. The WDN must specify the non-compliance and a compliance period in which the non-compliance must be rectified. If the WDN is not complied with the Principal Certifier must notify the consent authority within 2 days of the failure to comply with the direction.
Building and Development Certifiers Act 2018 (BDC Act)
Commenced: 01 July 2020
Applies to: Certifiers and Provision of Certification Services
Operates as follows:
- Replaces the Building Professionals Act 2005.
- The definition of “certification work” has been broadened.
- Change from Accredited Certifiers to Registered Certifiers. Registration numbers will change to BDC # (instead of BPB #)
- Categories of certifiers has changed. For example: an A1 Accredited Certifier is now called a Registered Building Surveyor (Unrestricted)
- Principal Certifying Authority (PCA) is now called a Principal Certifier
- Changes to insurance requirements have been made – to align with other jurisdictions.
- Conflict of Interest provisions have changed.
- New contract requirements for certifiers include prescribed information sheets and a client statement confirming they have not been forced to use the certifier. Contracts issued by builders will be required to include the same.
- Mandatory data reporting obligations have been imposed on certifiers.
- “Competent Fire Safety Practitioner” changed to “Accredited Practitioner” for “Regulated Work”
Design and Building Practitioners Act 2020 (BDP Act)
Commences: 01 July 2021 (Duty of Care provisions Commence 01 June 2020*)
Applies to: Building and Design Practitioners
Operates as follows:
- Registration requirements for Building & Design practitioners
Duty of Care information:
- This statutory duty of care, has profound impacts upon the risk dynamic for building practitioners, particularly in light of its retrospective operation of up to 10 years and the fact that practitioners are unable to contract out of the statutory duty of care.
- The decision of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor  HCA 36 (“Brookfield”) has served for some time now as a substantial hurdle in the face of occupiers of multi-residential apartment blocks in regards to arguing the existence of a duty of care owed by a builder to subsequent owners of multi-residential buildings.
- In the New South Wales legislation, legislators have seen fit to impose a duty specifically for persons “who [carry] out construction work” as regards pure economic loss, and this duty extends to builders, designers, building product suppliers or anyone “having substantive control over the carrying out” of such work.
- Duty of Care is not confined to the structural defects. This means that unlike the statutory warranty regime in Part 2C of the Home Building Act 1989 (NSW), there is no distinction between “major” building defects and “other” building defects and “major elements” of buildings.
- The risk profile of carrying out professional services in relation to building work has been altered. Retrospective application and the inability to contract out of it.
- The duty of care adds to existing duties, statutory warranties and other obligations under the likes of the Home Building Act and the common law.
- It means actors involved in building projects in New South Wales will need to reassess the risk profile of their work.
- Section 39 of the Act – the duty of care is non-delegable. This means that principal contractors will be unable to delegate the duty of care to their subcontractors if they engage them for certain components of building or design work or the supply and manufacture of building products.