Residential Focus

Class creep – compliance provisions of the Design and Building Practitioners Act 2020 (NSW) to expand their reach

From the get-go, there has been speculation (fuelled by the second reading speech) that the application of the compliance provisions of the Design and Building Practitioners Act 2020 (NSW) (DBPA) would be expanded beyond class 2 buildings.

That speculation was well founded, with the commencement of the Building Legislation Amendment (Building Classes) Regulation 2023 on 24 February 2023, which amended both the DBPA and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RABA).

The expansion of the DBPA is to include the construction of new Class 3 and 9c buildings from 3 July 2023, and alteration or renovation for existing Class 3 and 9c buildings from 1 July 2024.

There are a series of exceptions (which require careful consideration) for construction work commenced or designs prepared before 3 July 2023.

The expansion of the RABA is to make Class 3 and 9(c) buildings subject to all of the provisions of that Act.

What types of buildings are affected?

Class 3 buildings are residential buildings that do not fall under Class 1 or 2, or are not a Class 4 part of a building. Typically these are buildings which provide long-term or transient accommodation for a number of unrelated people, such as boarding houses, hostels, guest houses, back-packers or workers quarters.

Class 9c buildings are residential buildings that house residents who have various care level needs, where 10 per cent or more residents need physical assistance in conducting daily activities and to evacuate during an emergency. This includes aged care facilities that provide personal care services to residents.

Practical implications

Designers and builders involved in construction work for Class 3 and 9(c) buildings will need to be registered under the DBPA and provide compliance declarations under the DBPA in the same way as for Class 2 buildings.

Designers and builders who may have stepped away from Class 2 after the introduction of the DBPA and focused on Class 3 and 9(c) instead, or perhaps more significantly, builders and designers who specialise in the Class 9(c) space, must now consciously engage in the registration and compliance provisions of the DBPA.

Developers of Class 3 and Class 9(c) buildings will have equivalent responsibilities under the RABA to those falling on developers of Class 2 buildings.

What next?

This class creep may signify an intention to continue to expand the classes of buildings to which the DBPA applies, as the NSW Government continues its reform agenda in the NSW building industry.

Other changes to the DBPA, arising under the Building Legislation Amendment (Building Classes) Regulation 2023

A mixed bag of other changes to the DBPA have been introduced, namely to:

exclude certain work from being building work and professional engineering work
set out exemptions for Class 3 or 9c building work if, before the commencement of particular provisions of this Regulation, certain building work has commenced, or designs for certain work have been prepared, and other conditions are complied with
provide for an additional ground for taking disciplinary action against a registered practitioner*
amend provisions regarding work relating to Sydney Metro
extend alternative pathways for registration for design practitioners – fire system classes, professional engineers and certain other design practitioners until 31 December 2023*
insert a new class of design practitioner – building design
exempt registered building practitioners from insurance requirements under the DBPA for an additional 12 months, until 30 June 2024
amend the qualifications, experience, knowledge and skills for certain classes of registration, and update CPD requirements for a particular pathway to registration*
amend fees, including the fees for a building practitioner – other classes, for registration under different pathways and for the variation of a registration to add an additional class.

The bulk of the changes apply from 3 July 2023, except those marked with *, which apply from 24 February 2023, whereas the change shown in bold commences from 1 July 2023.

Authors: Christine Jones & Jacqueline Brown

In the media

Construction slump coming, Macquarie warns
Macquarie has warned of a construction slump in the residential construction sector “as fixed home loans roll off and “play havoc” with residential construction, building, and renovations“ (08 March 2023). More…

Construction company collapses tipped to continue due to rising material costs, interest rates hikes “The future of dozens of projects in Queensland, including two sites on the Gold Coast, New South Wales and the Australian Capital Territory is uncertain after the collapse of PBS Building this week”. (12 March 2023). More…

Planning tick of approval for Powerhouse Ultimo Renewal
Concept planning consent has been granted to enable the renewal of the Powerhouse Museum (23 February 2023). Have your say here. More...

In practice and courts

Building reform regulation an opportunity missed by NSW Government
The Australian Institute of Architects is concerned that the NSW government’s Building Legislation Amendment Regulation 2023 “is a backward step in the protection of consumers in NSW” (01 March 2023). Read more here.

Parklands across Western Sydney to be transformed by once-in-a-generation investment
“Vast areas of green and open space will be transformed in the biggest ever investment in Western Sydney’s public parklands as part of the NSW Liberals and Nationals Government’s $5 billion WestInvest Program” (02 March 2023). Read more here.

Published – articles, papers, reports

Australian Bureau of Statistics: Building approvals, Australia
The Australian Bureau of Statistics has released its latest statistics on the number of dwelling unit approvals in Australia for January 2023 (02 March 2023). Read more here.

Cases

Larsen v Tastec Pty Ltd [2023] NSWCA 39
CONSUMER LAW – misleading or deceptive conduct – where appellants engaged first respondent for the supply and assembly of a pre-fabricated house – where representations made by respondents regarding the cladding material to be used under the contract – where appellants, in reliance on the representations, agreed to a contractual variation regarding cladding material – whether cladding representations were misleading or deceptive – whether appellants suffered loss or damage as a result of agreeing to contractual variation in reliance on cladding representations.
CONTRACTS – breach of contract – breach of express terms – defective performance – whether respondents breached express terms of contract related to supply and installation of doors and windows.
CONTRACTS – parties – where dispute as to whether appellants entered into contract in their personal capacity or as trustees of their superannuation fund – whether appellants’ claim, which was brought in their capacity as trustees of their superannuation fund, could be maintained.
Competition and Consumer Act 2010 (Cth); Design and Building Practitioners Act 2020 (NSW); Home Building Act 1989 (NSW); Trade Practices Act 1974 (Cth).

Hua Nan Trading Pty Ltd v The Owners – Strata Plan No 32396 [2023] NSWCATAP 66
LAND LAW – strata title – common property – maintenance and repair of common property – action for damages by lot owner – proceedings commenced more than two years after the owner became aware of loss – extension of time – the temporal element in s 106(6) of the Strata Schemes Management Act 2015 not a jurisdictional fact – time to extend that period of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – jurisdiction and power to extend time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 – Tribunal may extend time despite any provision to the contrary under legislation conferring general jurisdiction - Tribunal may extend time even if the relevant period of time has expired – s 41 beneficial legislation – no warrant to impose limitations on the power expressed in s 41.
Civil and Administrative Tribunal Act 2013; Corporations Law; Home Building Act 1989 (NSW); Strata Schemes Management Act 2015 (NSW).

Qui v Balmoral Street Developments Pty Ltd [2023] NSWCATAP 60
APPEAL – significant delay in lodgement – insufficient apparent merit to warrant extension of time.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Strata Schemes (Freehold Development) Act 1973 (NSW); Strata Schemes Development Act 2015 (NSW).

Vidler v Lee t/as Northern Rivers Landscaping [2023] NSWCATAP 52
APPEAL – NCAT – appeal from Consumer and Commercial Division – no question of law - leave to appeal – new evidence - expert evidence – weight to be afforded expert evidence where there has been non-compliance by both parties with Procedural Direction 3 – unjust result – remitter.
Civil and Administrative Tribunal Act 2013 (NSW); Evidence Act 1995 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
Civil Procedure Act 2005 (NSW); Conveyancing Act 1919 (NSW); Protection of the Environment Operations Act 1997 (NSW).

The Owners – Strata Plan No 74232 v Tezel [2023] NSWCA 35
LAND LAW – strata title – owners corporation – maintenance and repair of common property – breach of obligation to maintain and repair common property – where unit affected by water leakage – where respondent lot owner unsuccessfully attempted to rent out unit in 2016 – action for recovery of loss of rent from owners corporation pursuant to s 106(5) of the Strata Schemes Management Act 2015 (NSW) – whether action was time barred by s 106(6) of the Act.
STATUTORY INTERPRETATION – limitation of action – where claim made on 6 November 2020 for loss of rent pursuant to s 106(5) of Strata Schemes Management Act 2015 (NSW) – whether claim was time barred by s 106(6) of that Act – whether respondent first became aware of the loss in 2016 or on 6 November 2018 – whether “the loss” in s 106(6) refers to the kind or type of loss that the lot owner is entitled to recover under s 106(5) or the particular loss that she is seeking to recover.
APPEALS – cross-appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) – where appeal with leave limited to a question of law – whether grounds of cross-appeal raised questions of law.
Civil and Administrative Tribunal Act 2013 (NSW); Limitation Act 1969 (NSW); Strata Schemes Development Act 2015 (NSW); Strata Schemes Management Act 1996 (NSW); Strata Schemes Management Act 2015 (NSW); Trade Practices Act 1974 (Cth).

Legislation

NSW Legislation

Environmental planning instruments

Commonwealth legislation
Fair Work (Registered Organisations) Act 2009 14/03/2023 – Act No. 86 of 1988 as amended
Fair Work Act 2009 10/03/2023 – Act No. 28 of 2009 as amended

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Christine Jones

Jacqueline Brown

Residential Focus

Class creep – compliance provisions of the Design and Building Practitioners Act 2020 (NSW) to expand their reach

What types of buildings are affected?

Practical implications

What next?

Other changes to the DBPA, arising under the Building Legislation Amendment (Building Classes) Regulation 2023

In the media

In practice and courts

Published – articles, papers, reports

Cases

Legislation

Share this

Key Contacts

Christine Jones

Residential Focus

Class creep – compliance provisions of the Design and Building Practitioners Act 2020 (NSW) to expand their reach

What types of buildings are affected?

Practical implications

What next?

Other changes to the DBPA, arising under the Building Legislation Amendment (Building Classes) Regulation 2023

In the media

In practice and courts

Published – articles, papers, reports

Cases

Legislation

Share this

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Key Contacts

Christine Jones