The one Bill to rule them all – Building Bill NSW 2024
Building Bill NSW: 1 Act replacing 9!
Streamlining construction in New South Wales: it is intended that less red tape, will yield higher quality construction and return consumer confidence to the sector…this utopia may become a reality very soon.
On 6 August 2024, the Building Commission New South Wales announced that it will be introducing the new Building Bill NSW 2024 (Bill), currently in draft. It intends to consolidate nine existing Acts in the State. The initial consultation period, which was extremely short, has now been extended to 18 October 2024.
The Bill intends to consolidate legislation, proposes to consolidate laws, remove duplication and streamline processes. The objective is to make it “easier” for industry and consumers to comply with their building obligations. Overall the hope is to increase the quality of the State’s construction projects.
Introducing regulation, licencing and mandatory ongoing training for professionals, trades and contractors is positive news for consumers. The changes also demonstrate further positive progress for the sector since 2018’s “Shergold Weir Building Confidence Report”.[1]
The main two questions are the extent to which the Bill will benefit all stakeholders, and whether it offers any finality to the raft of recent changes to NSW’s ongoing iterations of building law?
The Bill intends to consolidate the following Acts into one:
- The Design and Building Practitioners Act 2020 (DBP Act 2020)
- Architects Act 2003
- Home Building Act 1989
- Building & Development Certifiers Act 2018
- Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020
- Gas & Electricity Act (Consumer Safety) 2017
- SBBIS and DLI from Strata Schemed Management Act 2015
- Building Quality Certificates from Environmental Planning and Assessment Act 1979
- Plumbing and Drainage Act 2011.
Furthermore:
- The fire safety scheme is spread across multiple pieces of legislation and practitioners currently have multiple registrations to carry out the same type of work. The Bill proposes to streamline this so that a single licence is required by practitioners.
- The certification process is set to receive a major overhaul. This will include a staged inspection requirement over the life-cycle of the build. Minimum documentation will be required across most classes of building work, and will include site, soil and wind classification for class 1 buildings. The Bill intends to remove compliance certificates and replace these with certificates of installation for specialist work – for example waterproofing. Specialist practitioners, for example the “project engineer”, will be required to carry out inspections of critical elements and provide results to the certifier.
The Bill offers a single definition ‘building work’. What it entails, who can do that work, what standards the work must comply with and how the industry must ensure the work is compliant. Positively for consumers there are protections for non-compliant ‘building work’.
The Bill provides definitions on certification, prefabricated, professional engineering and specialist “work”. There is however no clarity on ‘design’ despite the Bill intending to regulate design. When mentioning design, the Bill only refers to construction. The concern is that design is a holistic and very important and indeed fundamental to the construction process.
Industry associations representing designers often emphasise the different roles of design consultants as distinct from constructors. Our view is that a clear delineation as between design and building works should be set in the Bill.
The Bill will introduce registration and licensing across the built environment.
Licensing and registration will become a requirement for building designers, interior designers, fire safety designers, certifiers, and all professional engineers involved in building works and design. Licensing requirements also extend to builders and trades, including “specialist trades” such as waterproofers and plumbers.
Whilst the Architects Act 2003 is set to be absorbed, architects will continue to be registered and regulated by the NSW Architects Registration Board (ARB). The ARB will continue to issue licenses for architects and prescribed minimum eligibility requirements. The concern being raised by industry here is that architects (like engineers) provide services in sectors other than building.
The Building Commission NSW will issue all other licences and prescribe eligibility requirements. It is unclear if there will be consistency with the requirements in other jurisdictions.
The Bill will introduce a 5-tier framework for building work licences for builders. It is unclear if this will be unique to NSW, or similar to other jurisdictions. Could this further hinder occupational mobility across Australia?
The licensing framework for builders under the new Bill is made up of:
- Builder A – unrestricted
- Builder B – medium rise
- Builder C – low rise
- Builder D – renovator/fit-out and
- a newly introduced pre-fab manufacturer licence.
Building trades will have to provide digitised certification under the Bill which will significantly benefit consumers. Consumers should be able to easily check that trades they engage are qualified and registered.
Future licensing proposals are anticipated for landscape architects, pre-purchase and defect inspectors, Building Code of Australia consultants and engineering technologists.
The Bill will require mandatory continuing development for all professionals, builders and trades persons as prescribed by the Building Commission NSW and the relevant industry association or peak member body.
A code of conduct and practice standard for all professions is being recommended, as well as increased supervision standards.
The Bill requires “adequate insurance” for professionals, builders and trades persons. The scope of what is “adequate” and guidance on same is not yet prescribed. Bellrock will be monitoring this closely and will provide an update as soon as the particulars are released.
The Bill defines and expands the duty of care which currently sits under Part 4 of the DBP Act 2020, applying to class 2, 3 and 9b buildings. The limitation period for the duty is owed for 10 years after the completion of the work. The Bill will extend the duty of care for persons who carry out ‘construction work’ to apply to all buildings.
Some key points for Construction Professionals:
As regards Bellrock’s clients, we make the following observations as set out in the Bill relevant to their specific professions:
- Certifiers will be provided with more documentation and input from specialist trades (eg: waterproofers) and specialist practitioners (eg: project engineer) to ensure that buildings are inspected adequately at multiple stages of the build. This places greater responsibility on the builder to ensure greater quality.
Certifiers will have mandatory staged building approval schedules.
Certifiers should allow for increased fees due the increased requirements for site visits. - Architects have expressed concern that building designers will have an equal or parallel licencing structure to do works and therefore undervalue architectural expertise, ultimately limiting the use of architectural expertise, thereby posing a risk to consumers. Architects have also expressed concern that there is no definition of “design”.
- Building designers and Interior Designers will be required to be registered and licenced to provide “building work & design” across all types of buildings for the first time.
- For Engineers, the proposed Engineers Practice Standard under the DBP Act 2020 applies to certain classes of buildings. The proposed Bill and subsequent Practice Standard will likely apply to all buildings. Whilst we do hope that The Fitness for Purpose requirement will either remain in its current form or be removed, there is of course a chance it may be reviewed (again) and re-impose uninsurable requirements.
While the implementation of the Engineers Practice Standard has been put on hold and will become part of the new Building Bill NSW 2024, registration for Engineers is currently still required under the DBP Act 2020.
For more information, watch the presentation provided by Angus Abadee, Executive Director, Policy and Delivery at NSW Department of Customer Service on 19th August 2024:
[1] Professor Peter Shergold and Ms Bronwyn Weir, April 2018 “Building Confidence – Improving the effectiveness of compliance and enforcement systems for the building and construction industry across Australia”
