Assisted by James Duff

Further to our previous article entitled The NSW Design and Building Practitioners Act 2020 - Reforms for the Construction Industry and Building Defects, an amendment to the Design and Building Practitioners Act 2020 (NSW) (the Act) came into effect on 1 July 2021. NSW Parliament passed the Act in June 2020 after defect issues stemming from the Mascot Towers and the Opal Towers.

Point 2 of the above article came into effect on the 1 July 2021, that being:

A register of construction professionals - the Act imposes a comprehensive registration regime which requires designers, engineers, and all people who contract to do building work to be named on a publicly available register of registered practitioners.

A summary of the amended legislative provisions that came into effect on the 1 July 2021 are as follows:

  1. Obligations of design practitioners -
  • updated circumstances under which a registered design practitioner must provide compliance declarations,
  • who these compliance declarations must be provided to,
  • the circumstances under which a person is able and not able to make a design compliance declaration,
  • ensuring that the design practitioner is adequately insured and indemnity.
  1. Obligations of principal design practitioners -
  • compliance declarations by registered principal design practitioners,
  • the circumstances where a person must not make a principal compliance declaration,
  • the importance of registered principal design practitioners to be indemnified.
  1. Obligations of building practitioners -
  • provision of relevant documents to Secretary,
  • notice of application for occupation certificate,
  • the circumstances where a registered building practitioner must provide compliance declarations,
  • the obligations of building practitioners and to ensure there is compliance with declaration obligation,
  • if there are any variations to building work once commenced, that these are recorded in the form and manner prescribed by the regulations,
  • a building practitioner's obligations to take all reasonable steps in ensuring that building work in relation to a building element for performance solutions for which a regulated design to be used is carried out in accordance with a design, for which a design compliance declaration has been obtained,
  • obligations in relation to the Building Code of Australia,
  • circumstances where a person must not make a building declaration,
  • registered building practitioners to be indemnified.
  1. Miscellaneous matters -
  • compliance with the Building Code of Australia,
  • the requirement for compliance declarations before the issue of building certificates,
  • principal certifier to consider compliance declarations,
  • the provision of compliance declarations, and any other obligations of registered body corporates,
  • improper influence pertaining to the provision of declarations,
  • regulations relating to insurance requirements.
  1. Engineering work and specialist work -
  • detailed summary of categories of professional engineering work,
  • the circumstances under which a person may or may not carry out any professional engineering work,
  • the contraventions which may apply if a person if is found to be carrying out professional engineering work for which they are not competent or nonetheless registered to provide,
  • ensuring that the engineer is adequately insured to provide those services.
  1. Registration of Practitioners -
  • applications for registration,
  • variation, suspension, or cancellation of registration,
  • recognition as registered practitioner,
  • offences relating to registration of a practitioner,
  • any general matters including non-transfer of registration, voluntary surrender or suspension of registration and review by the Civil and Administrative Tribunal.
  1. Disciplinary action against practitioners -
  • updated grounds for taking disciplinary action,
  • notice to show cause,
  • disciplinary action that may be taken by the Secretary,
  • directors to report certain conduct,
  • review by the Civil and Administrative Tribunal,
  • enforcement by way of monetary penalties and payment of costs.
  1. Investigations
  • the appointment of authorised offices to conduct investigations,
  • scope of authority,
  • identification,
  • powers of authorised officers to require information, records and answers,
  • recording of evidence,
  • powers of authorised personnel to enter premises,
  • entry into residential premises by way of a warrant or permission,
  • search warrants,
  • miscellaneous factors such as taking possession of records for the purpose of evidence.
  1. Enforcement
  • remedial actions such as undertakings, stop work orders, appealing against stop work orders, applying for orders to restrain or remedy contraventions and complaints, investigations and audits of practitioners,
  • offence proceedings, penalty notices, offences by bodies corporate, continuing offences and onus of proof regarding reasonable excuse.
  1. Miscellaneous matters
  • register for practitioners,
  • warning notices,
  • service of documents,
  • personal liability,
  • certificate of evidence for particular matters,
  • recovery of unpaid fees.

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.