Design & Building Practitioners Act - principal design practitioners snapshot

In the second instalment of our series on the Design and Building Practitioners Act 2020 (NSW), we look at the key provisions of the Act and Regulation which apply to principal design practitioners.

This builds on our first instalment here which focused on design practitioners. Given that principal design practitioners are also design practitioners, we won't repeat the aspects of our first instalment common to both. Instead, we will focus on the additional requirements which apply to principal design practitioners in this snapshot.

Who can be a principal design practitioner?

A principal design practitioner must be registered as a design practitioner under the Act, although there are some classes of registered design practitioners who are not permitted to be principal design practitioners. They are:

  • building design (low rise)
  • building design (medium rise)
  • drainage (restricted)
  • vertical transportation.

Design practitioners can nominate to register as principal design practitioners on their registration forms, including applications for deemed registration.

Do I need to appoint a principal design practitioner?

Appointing a principal design practitioner is not mandatory, according to the second reading speech.

A principal design practitioner may be appointed by a registered building practitioner for a variety of reasons, including to ensure administrative efficiency on projects of size or complexity, for example, those with a number of design elements necessitating a number of design compliance declarations.

This may be viewed as a risk management measure by the registered building practitioner, that is, it may be perceived as beneficial to have a single point of responsibility to ensure that all registered design practitioner's declarations are provided and qualifications confirmed.

What are the ongoing obligations for continuing registration?

The principal design practitioner's obligations to maintain registration are similar to those required for design practitioners, in that they must annually complete three hours of continuing professional development to maintain their registration and comply with a code of conduct.

Once the indemnity requirements commence (currently deferred until 30 June 2023), principal design practitioners will need to be mindful of the adequacy of their cover, given the nature of their role, as referred to below.

What are the principal design practitioner's key obligations under the Act?

A registered design practitioner who has been appointed as a principal design practitioner must:

  • ensure that a design compliance declaration is provided to the registered building practitioner for every regulated design (including variations and associated designs)
  • ensure that each design compliance declaration has been provided by a registered design practitioner whose registration duly authorises them to provide such a declaration
  • provide a principal compliance declaration which states:
    • whether or not a design compliance declaration has been provided in respect of each regulated design
    • whether or not those design compliance declarations have been provided by design practitioners who duly authorises to make such declarations.

The principal design practitioner must ensure that a copy of any principal compliance declaration is provided to the registered building practitioner within the below timeframes:

  • in the case of construction issued regulated designs, before the registered building practitioner submits a notice of building compliance declaration, or
  • in the case of all regulated designs other than construction issued designs, before the registered building practitioner submits a notice of application for an occupation certificate.

A principal design practitioner must not make a declaration that the principal design practitioner knows to be false or misleading.

There are significant penalties for non-compliance.

Any hidden risk?

Whether there is a hidden risk for the principal design practitioner depends on whether the role of the principal design practitioner is to look at the substance of each design declaration or just to ensure that they are provided and by someone appropriately registered.

The structure of the legislation tends to the conclusion that this is a role of confirming "has it been done?" rather than one of reviewing and assessing the substance of each individual design and its compliance with the BCA (Building Code of Australia). This view is supported by the Second Reading Speech.

Having said that, the role could not be performed properly by merely ticking a box on the sighting of a design compliance declaration.

Firstly, the principal design practitioner needs to assess whether what purports to be a design compliance declaration meets the requirements of a design compliance declaration under section 8 of the Act and the various clauses of the Regulation which amplify its requirements.

Secondly, the principal design practitioner needs to verify that the design compliance declaration is by a registered design practitioner who is appropriately authorised, which will involve checking the register and the class of registration.

Thirdly, and perhaps the most taxing exercise, is the requirement for the principal design practitioner to ensure that a design compliance declaration has been provided for each regulated design prepared for the building work. That exercise can't be satisfied by merely reviewing the design compliance declarations presented. It extends to considering whether each building element, as defined in section 6 of the Act, has a design compliance declaration which relates to it and that each performance solution has a design compliance declaration which relates to it.

This role is significant in scope and likely needs to be performed by someone who is deeply embedded in the design team for the project.

Ultimately, disciplinary decisions and case law will reveal the full extent of the risk attaching to principal design practitioners.

How should I prepare for 1 July?

Consider whether the Act applies to you, if it does, register within the transitional period which ends 31 December 2021. If you're seeking registration as a design practitioner and wish to be a principal design practitioner, make this election at registration.

Get a thorough understanding of the Act and your role within the regime as a principal design practitioner. Map out the processes required for compliance and consider what training may be required. Update your risk register.

Consult with your professional body around support to meet continuing education requirements, as well as steps that may be underway to arrange insurance coverage through your professional body, in the lead up to 30 June 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.