"Sometimes the wheel turns slowly, but it turns"1

It is taking some time, but slowly and surely it appears we are seeing the recommendations put forward in the Shergold Weir Report 2 being actioned.

With the Shergold Weir Report released in February 2018 and the NSW Government's Response to the Shergold Weir Report released in February 2019, the NSW Government released the draft Design and Building Practitioners Bill 2019 ('Draft Bill') for public consultation on 2 October 2019. This has come shortly after the appointment of Mr David Chandler OAM, to the position of Building Commissioner in August 2019.

What do you need to know?

Submissions closed for public consultation on the Draft Bill on 16 October 2019, with the Draft Bill to be introduced into Parliament by the end of 2019.

Whilst the regulations are not set to be prepared until 2020, designers and building practitioners should familiarise themselves with the Draft Bill and understand what is coming.

The Department of Fair Trading's press release on 17 October 2019 described the Draft Bill as introducing 'a suite of new reforms to improve the quality and compliance of design documentation and to strengthen accountability across the design, building and construction sector'.

In summary, the proposed reforms:

  • will apply to certain categories of buildings only. Whilst the regulations are yet to be drafted to confirm which 'categories' of buildings will be included, it is the intention, and given the media hype seen during 2019 it would be surprising if it wasn't, that multi-unit and multi-storey buildings are included.
  • will apply to 'regulated designs' which will include designs for a 'building element' or 'a performance solution for building work or a building element'. The proposed definition of 'building element' picks up on the definition of 'building element' under section 18E of the Home Building Act 1989 and therefore includes fire safety and waterproofing along with 'internal or external load bearing components' as 'regulated design'.
  • 'Design Practitioners' preparing Regulated Designswill need to declare that their designs comply with the Building Code of Australia and 'Building Practitioners'who are relying upon the regulated designs will need to issue a declaration that they have built in accordance with the regulated design and complied with the Building Code of Australia.
  • Any Design Practitioner or Building Practitionerwill need to be registered along with the Principal Design Practitioner whom, if appointed, will co-ordinate 'the provision of design compliance declarations for the purpose of building work'.
  • A welcome inclusion, for many 'subsequent' owners, is the extension of the proposed legislation to extend the duty of care owed by a builder to subsequent owners by the implementation of a statutory avenue to overcome the present limitations that exist at common law for successors in title.

Design practitioners and Building Practitioners should be aware of their upcoming obligations under the Draft Bill. Further updates will be coming upon the introduction of the Draft Bill into parliament.


1 Lorne Michaels

2 A report prepared by Professor Peter Shergold and Ms Bronwyn Weir entitled 'Building Confidence: Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia' (more commonly referred to as the "Shergold Weir Report") was released on 22 February 2018 and encompasses recommendations for a 'national best practice model to strengthen the effective implementation of the National Construction Code.

For further information please contact:

Helen Kowal, Partner
Phone: +61 2 9777 8321
Email: hek@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.