At present, the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) and the regulatory and compliance provisions of the Design and Building Practitioners Act 2020 (DBP Act) apply only to class 2 (multi-unit residential) buildings.

The Building Legislation Amendment (Building Classes) Regulation 2023, published on 24 February 2023, extends the RAB Act and the regulatory and compliance provisions of the DBP Act to:

  • class 3 buildings – common place of long term or transient living for a number of unrelated people. Some examples include boarding houses, hostels (larger than the 300m² which would otherwise be considered class 1b), dormitory accommodation, childcare facilities, elderly people or people with disabilities
  • class 9c buildings – residential care buildings where 10 per cent or more of the residents need physical care assistance. For example, an aged care facility.

The Regulation takes effect on 3 July 2023 and only applies to building work commenced after that date.

DBP Act

Expanding the application of the DBP Act to class 3 and class 9c buildings means that:

  • design practitioners, building practitioners and professional engineers working on class 3 and/or 9c buildings must:
    • be registered under the DBP Act
    • complete two mandatory online learning modules
    • carry mandatory insurance.
  • certain designs will need to be declared as compliant and be lodged on the NSW Planning Portal prior to the commencement of the works
  • construction must be in accordance with the declared designs
  • notice is required prior to the completion of the work.

RAB Act

The RAB Act gives the Building Commissioner power to:

  • issue stop work orders where the building work could result in significant harm, loss or damage to property
  • issue building work rectification orders where the building work has or could result in a serious defect
  • issue compliance cost notices to pay reasonable costs and expenses incurred in enforcement.

Under the RAB Act, developers are required to give an expected completion notice between 6 to 12 months before applying for an occupation certificate. This notice triggers the consideration of the project for routine audit.

What next?

Expanding the application of each Act is consistent with the position expressed in the second reading speech for the DBP Act, which indicated a greater intended reach than just class 2.

The real question is whether "we're done here" in terms of drawing the line at classes of residential buildings or whether the focus on gatekeeping building quality will expand to the commercial, industrial and other types of buildings.

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.