Class 3 and Class 9c buildings potentially captured in the Design and Building Practitioners Act 2020 and Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020

Background

As part of its reforms aimed at restoring confidence and improving the compliance and enforcement systems in the building and construction industry in NSW, the NSW Government introduced the Design and Building Practitioners Act 2020 (DBP Act) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act).

The DBP Act has many components. It ensures that certain designs are declared for compliance in accordance with the Building Code of Australia (BCA) and other relevant standards before building work can start. It also imposes a statutory duty of care on persons who undertake construction work. The DBP Act was initially introduced to target class 2 buildings, which are typically multi-unit residential buildings, as well as mixed-use buildings that have residential apartments within the building.

The RAB Act provides various comprehensive investigation, rectification and enforcement powers and establishes a mandatory developer notification scheme for building work.

Recently, the NSW Government has invited the public to comment on the proposed Building Legislation Amendment (Building Classes) Regulation 2022 (Amendment Regulation). The proposed reforms in the Amendment Regulation aim will see the expansion of the DBP Act and RAB Act to class 3 and 9C buildings, which includes including hotels, gaols, residential care and aged care facilities, boarding houses, hostels, and backpackers accommodation.

We are currently acting for a number of owners corporations, developers and builders in matters concerning the DBP Act and RAB Act. As will be explained below, the Amended Regulation could have far reaching consequences for those involved in the building and construction industry in NSW.

Building Legislation Amendment (Building Classes) Regulation 2022 

The Amendment Regulation is currently in the consultation stage. The NSW Government has released a public consultation draft of the Amendment Regulation[1]. Together with this, the NSW Government has also released a Regulatory Impact Statement (RIS)[2], which highlights the following key proposals for the Amendment Regulation:

• new requirements for developers, designers, and builders for class 3 and 9c buildings to ensure building work is compliant with the BCA, including:
  1. expanding the registration scheme for design practitioners, principal design practitioners and building practitioners who are required to declare their work to class 3 and 9c buildings;
  2. requiring developers to provide notice before the completion of work for these buildings;
  3. requiring developers to pay the building work levy for these buildings;
  4. expanding the robust compliance and enforcement powers to intervene, and stop, building work for these buildings; and
• expanding the registration scheme for professional engineers carrying out professional engineering work for these buildings.

Class 3 buildings are residential buildings other than a class 1 or 2 building, for the accommodation of unrelated people, including boarding houses, guest houses, hostels, backpackers or hotels (typically capable of housing 12 people or more). Class 3 buildings could also include dormitory style accommodation, or workers’ quarters for shearers or fruit pickers, and may also be “care-type” facilities (such as accommodation buildings for children, the elderly, or people with a disability) which are not class 9 buildings.

Class 9c buildings are residential care buildings. They are a place of residence where 10% or more of persons who live there need physical assistance in conducting their daily activities and to evacuate the building during an emergency. An aged care building, where residents are provided with personal care services, is a class 9c building.

This means that, if legislated, the Amendment Regulation will require those building and design practitioners working on class 3 and 9c buildings to be registered and comply with the compliance declaration schemes provided by the DBP Act.

Other Reforms 

Interestingly, the RIS explores the NSW Government’s intention to introduce additional, potentially significant reforms. In particular, the RIS states that consideration is being given to:

• A proposed Building Bill 2022 (Building Bill), which will provide the framework for the licensing of building and construction trades and the regulation of building work including contracting, insurances and warranties. It is intended that the Building Bill will replace the Home Building Act 1989 and Plumbing and Drainage Act 2011, and transfer and consolidate the duty of care provisions from the DBP Act and the Environmental Planning and Assessment Act 1979.
• A proposed Building Compliance and Enforcement Bill 2022 (BCE Bill), which will replace the RAB Act.

The NSW Government expects that the Building Bill and the BCE Bill will not commence until 2024

The reforms that have been introduced and proposed to be introduced are herculean and will have far-reaching consequences for all the persons involved in the construction process.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

Authors: Maysaa Parrino, Matt Armota