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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Miscellaneous matters
- register for practitioners,
- warning notices,
- service of documents,
- personal liability,
- certificate of evidence for particular matters,
- recovery of unpaid fees.
Source: Mondaq