From the get-go, there has been speculation (fuelled by the second reading speech) that the application of the compliance provisions of the Design and Building Practitioners Act 2020 (NSW) (DBPA) would be expanded beyond class 2 buildings.

That speculation was well founded, with the commencement of the Building Legislation Amendment (Building Classes) Regulation 2023 on 24 February 2023, which amended both the DBPA and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RABA).

The expansion of the DBPA is to include the construction of new Class 3 and 9c buildings from 3 July 2023, and alteration or renovation for existing Class 3 and 9c buildings from 1 July 2024.

There are a series of exceptions (which require careful consideration) for construction work commenced or designs prepared before 3 July 2023.

The expansion of the RABA is to make Class 3 and 9(c) buildings subject to all of the provisions of that Act.

What types of buildings are affected?

Class 3 buildings are residential buildings that do not fall under Class 1 or 2, or are not a Class 4 part of a building. Typically these are buildings which provide long-term or transient accommodation for a number of unrelated people, such as boarding houses, hostels, guest houses, back-packers or workers quarters.

Class 9c buildings are residential buildings that house residents who have various care level needs, where 10 per cent or more residents need physical assistance in conducting daily activities and to evacuate during an emergency. This includes aged care facilities that provide personal care services to residents.

Practical implications

Designers and builders involved in construction work for Class 3 and 9(c) buildings will need to be registered under the DBPA and provide compliance declarations under the DBPA in the same way as for Class 2 buildings.

Designers and builders who may have stepped away from Class 2 after the introduction of the DBPA and focused on Class 3 and 9(c) instead, or perhaps more significantly, builders and designers who specialise in the Class 9(c) space, must now consciously engage in the registration and compliance provisions of the DBPA.

Developers of Class 3 and Class 9(c) buildings will have equivalent responsibilities under the RABA to those falling on developers of Class 2 buildings.

What next?

This class creep may signify an intention to continue to expand the classes of buildings to which the DBPA applies, as the NSW Government continues its reform agenda in the NSW building industry.

Other changes to the DBPA, arising under the Building Legislation Amendment (Building Classes) Regulation 2023

A mixed bag of other changes to the DBPA have been introduced, namely to:

  • exclude certain work from being building work and professional engineering work
  • set out exemptions for Class 3 or 9c building work if, before the commencement of particular provisions of this Regulation, certain building work has commenced, or designs for certain work have been prepared, and other conditions are complied with
  • provide for an additional ground for taking disciplinary action against a registered practitioner*
  • amend provisions regarding work relating to Sydney Metro
  • extend alternative pathways for registration for design practitioners – fire system classes, professional engineers and certain other design practitioners until 31 December 2023*
  • insert a new class of design practitioner – building design
  • exempt registered building practitioners from insurance requirements under the DBPA for an additional 12 months, until 30 June 2024
  • amend the qualifications, experience, knowledge and skills for certain classes of registration, and update CPD requirements for a particular pathway to registration*
  • amend fees, including the fees for a building practitioner – other classes, for registration under different pathways and for the variation of a registration to add an additional class.

The bulk of the changes apply from 3 July 2023, except those marked with *, which apply from 24 February 2023, whereas the change shown in bold commences from 1 July 2023.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.