Letter to Clients

by | Mar 9, 2021 | What trends we’re seeing

RE: NSW Building Regulation changes

We are writing to provide our clients with a brief update on legislation changes that will affect the way buildings are built, and the services we will be required to provide.

Following a number of high profile building disasters (Lacrosse Tower, Opal Tower, Mascot towers, etc) the National Building Ministers commissioned a report on the Building and Construction Industry in Australia, commonly known as the Shergold Weir report. The NSW Government then appointed David Chandler OAM as “Building Commissioner” in 2019 and have since passed two significant pieces of legislation through both houses of Parliament.

1 – Residential Apartment Building (Compliance and Enforcement Powers) Act 2020 – RAB

  • Became law September 2020. Runs for 5 years.
  • This gives the NSW Building Commissioner power to enter building sites, demand to see documents, inspect, and order to open up construction to check construction is appropriate. It also gives him the ability to stop work and prevent the OC being issued.
  • From September to November this year, 16 Audits have been commenced, with a target to reach 10 audits per month. In one such audit, wet area waterproofing was found to be defective, and the high profile developer is replacing 380 bathrooms at an estimated cost of $6million.
  • Attached is a template audit letter, outlining the types of documentation the Commissioner can request as part of an OC audit.

NOTE: this act is already in force for all projects that do not yet have OC. Builders/developers are required to give at least 6 months notice of pending OC, to allow time for the Commissioner to conduct an audit.

2 – Design and Building Practitioners Act 2020 – DBP

  • Became law June 2020. High level abstract document, requiring the supporting Regulation to provide detailed operation of the Act.

Draft Design and Building Practitioner Regulations

  • The Regulation is currently available for public comment and comes into effect June 2021.
  • Projects without CC, or where a S4.55 is pending at 30 June 2020 will be captured by this legislation. Comments below are based on the draft and are subject to change.
  • This legislation starts with all Class 2 buildings or buildings containing a Class 2 part (defined as a building containing 2 or more sole occupancy units) and will be rolled out to other classes in following years. It is important to note that Class 2 not only applies to apartment buildings, but also to duplex or townhouses above a common basement, 2 storey building containing a principal dwelling and secondary dwelling above or below, etc.
  • It is intended to improve public confidence in the building industry by ensuring critical work is completed by competent, qualified, skilled and experienced people. It aims to reduce the risk of defects and building failures by enforcing preparation of NCC compliant design documentation and construction in accordance with “Issued for Construction” drawings. It also aims to stamp out product substitution without appropriate sign-off by the relevant design practitioner.
  • The regulation requires registration by architects, engineers, builders, etc. These “Design Practitioners” will be required to provide “Design Compliance Declarations” which will be uploaded along with mandated levels of documentation to the eplanning portal – prior to construction commencing. Any variations or substitutions (design and products) will also require certification prior to them being carried out.
  • It is important to note that only registered architects will be able to certify apartment buildings and any low-rise class 2 buildings that require Type-A construction (eg 2 storey townhouses over a basement)..

Once the final detail of the Regulations is known, we will be in a better position to advise you how this will affect our services and your projects. At this stage, it appears as follows:

  • Completed buildings with OC issued – no impact
  • Buildings under construction or without Final OC – compliance audits possible under RAB Act
  • Projects with CC issued, but construction not commenced – RAB Act applies.
  • Any S4.55 not approved and amended CC issued prior to 30 June 2021 – will trigger the DBP Act & Regulations
  • Projects with DA approval, but no CC – RAB Act applies. DBP will apply if CC not issued prior to 30 June 2021.
  • Projects currently in council – RAB Act applies. DBP will apply as likelihood of CC issued prior to 30 June 2021 is low.
  • DA’s not yet lodged – RAB & DBP will apply.

Our recommendation is that any projects to which the RAB Act applies should have full documentation completed to assist in any potential audit. S4.55’s should be avoided.

Projects to which the DBP applies will require a significant increase in the documentation scope of work and associated consultant fees. We have yet to quantify this, but would expect in the order of 50%-100% increase in our costs alone.

If you would like further information, we have provided links to the various pieces of legislation below. Once more detail is known, we will provide our clients with further updates.

We would also like to take this opportunity to express our heartfelt thanks and appreciation for your continued support through what has been a tough year. We hope you are able to get a much needed break and look forward to navigating the next chapter with you.

The Design and Building Practitioner (DBP) Act:

https://www.legislation.nsw.gov.au/view/html/inforce/current/act-2020-007

The Draft Design and Building Practitioner (DBP) Regulations:

https://www.haveyoursay.nsw.gov.au/62491/widgets/314024/documents/186932/download

The Residential Apartment Building (Compliance and Enforcement ) (RAB) Act:

https://www.legislation.nsw.gov.au/view/html/inforce/current/act-2020-009

- Peter Couvaras
Peter started the Couvaras Architects from the dining table in 2005, and has built a reputation for delivering buildings that not only function well, but deliver an element of delight. He is responsible for client engagement and managing the team.
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