Last week the Design and Building Practitioners Act 2019 (the Act) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (the RAB Act) passed NSW Parliament. The following information provides a brief overview of the new laws. We will provide further details on the application of the new laws as further information is released.

Summary of the RAB Bill

The RAB Act, introduces a range of substantive new provisions that will:

  • Broaden the investigation powers of the regulator to inspect construction sites; and
  • Require that a notification be made to the Building Commissioner before making an application for an occupancy certificate for certain classes of buildings.

Investigation Powers

Under the RAB Act the regulator will be able to enter a building or construction site to inspect the building work. While there, they can open up or demolish building work if they believe there is a serious defect, as well as issue a stop work order.

Under the new laws, Serious Defect includes:

  • a defect in a building element that is attributable to a failure to comply with the performance requirements of the Building Code of Australia, the relevant Australian Standards or the relevant approved plans, or
  • a defect in a building product or building element that:
  • is attributable to defective design, defective or faulty workmanship or defective materials, and,
  • causes or is likely to cause—
    the inability to inhabit or use the building (or part of the building) for its intended purpose, or
    • the destruction of the building or any part of the building, or
    • a threat of collapse of the building or any part of the building, or
  • a defect of a kind that is prescribed by the regulations as a serious defect, or
  • the use of a building product (within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act.

Building Completion

The other substantive component of the new laws is that when a building is nearing completion the developer or the builder must notify the Building Commissioner that an application for the Certificate of Occupation (OC) will be made. This must be done no less than six months before application for OC but no more than twelve months in advance. The actual date of application may be within 60 days of the date in the notification, and that date can be updated if there are delays. The Building Commissioner may prohibit an OC from being issued for a development if there is a Serious Defect in the building and a rectification order has been issued which has not been complied with.

The Building Commissioner may also issue a compliance cost notice, requiring the builder or developer to pay the Department of Fair Trading for the costs associated with an investigation that leads to a rectification order being issued. A cost notice can also be issued for the costs of rectifying the defects where the builder or developer fails to comply with a reification order and the Building Commissioner chooses to have the defect rectified independent of any of the other parties.

It is anticipated that this notification requirement will only apply to Class 2 buildings and that the notification will be made on an online portal.

The RAB Act was not released for public consultation prior to it being passed by NSW Parliament.

Commencement and Review

The RAB Act will commence on 1 September 2020 and will be subject to review after 2 years.

Design and Building Practitioners Act

The Design and Building Practitioners Act 2020 (D&BP Act) introduces a new Statutory Duty of Care and requires the registration of designers and practitioner declarations.

Most of the D&BP Act will not commence until 1 July 2021. However, the provisions relating to the Duty of Care are now in force.

Registration of designers and practitioner declarations

The Act also introduces new requirements for the registration of design professionals involved in the design of major building elements, including engineers. These designers will need to make declarations that their designs comply with the Building Code of Australia (BCA). Builders will also be required to make declarations that they have built-in accordance with the approved and declared designs.

‘Building Elements’ include:

  • Fires safety systems,
  • Waterproofing,
  • Loadbearing components, or parts that are critical to the stability of the building,
  • Components of the building ‘enclosure’ – ‘building enclosure means the part of the building that physically separates the interior environment of the building from the exterior environment, including roof systems, above grade and below grade walls (including windows and doors)’ and,
  • Mechanical, plumbing and electrical services.

Need Help?

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