Over the coming months, we will be producing a number of articles to fully brief you on the upcoming introduction of Registration of Building Designers (and other symbiotic Building Professionals) in New South Wales (NSW), and the national push for consistent Australia wide Registration of Building Professionals.
Part 1 - Introduction
The NSW Government passed the Design & Building Practitioners Act 2020 (NSW) on the 11th of June 2020. This is the first step towards regulating and adopting a sustainable, accountable system for NSW that will fit within the impending National Framework.
This legislation is in response to the Building Confidence Report commissioned by the Government, and in line with the recently released Australian Building Codes Board (ABCB) Discussion Paper that is open for comment until 23rd August 2020. We would recommend that you take the time to review the content of these documents, to familiarise yourself with the direction your profession is taking.
The new Registration regime will go live on 1st July 2021, which allows time for the supporting Regulations to be formulated, the creation of the Registration body under the Department of Customer Services, and the Building Design industry to understand the requirements and prepare for the Application process.
Why has the new legislation come about?
Registration of Building Designers has been talked about in the profession for well over 15 years, originally born out of the desire of the industry trailblazers to legitimise the profession from it’s emergence from under the Architecture umbrella. Governments have now realised that the Building Design profession makes up a substantial part of the building profession generally.
The unfolding ‘Cladding Crisis’ over the last few years has focussed regulators nationally, by identifying inconsistencies between jurisdictions, gaps in accountability, and large voids in comprehensive consumer protection.
The new legislation aims to :
Improve the quality and compliance of building design, and to strive for ‘Best Practice’,
Strengthen accountability of the ‘Building Professionals’ sector.
Protect consumers more comprehensively,
Provide more robust Regulation (and likely more robust enforcement too),
Introduce requirements for Compulsory Professional Development (CPD),
Introduce (self) certification of plans,
Ensure that all Variations to plans and designs (ie including site changes by others) are Documented, Declared and Approved by the building Designer,
Reinforce the ‘Duty of Care’ provisions.* (provides an additional cause of action via the introduction of a statutory duty of care)
While the specifics of the Regulations, and details of implementation of Registration are not yet available, CGIB will be here to assist you in any way we can. We have been dealing with Registered Practitioners and the Regulatory Body in Victoria for over 20 years. Our Professional Indemnity Policy will comply with all requirements of the new Authority. We believe that our Scheme Policy is still one of the only Building Designer Policies that has no Exclusion or Limitations on ‘Cladding Claims’ in Australia.
When the time comes for Registration Applications to be prepared, we can provide a reference and Claims History details if required. If you have a question, hopefully we’ll have the answer!
* Update regarding your ’Duty of Care’
You have always owed a ‘Duty of Care’ to your client. From a legal perspective, this ‘Duty’ did not always automatically transfer to the Owner or subsequent owners, who were not a party to your Contract.
The new legislation, which has already enacted this specific section (s 37), expands your ‘Duty of Care’ to cover the above situations. This section has also made the provisions Retrospective for a period of 10 years, which is significant. This new Act requirement will change the legal precedent in this area.
Further to the above, Section 37 of the Act imposes a duty on those who carry out construction work to exercise reasonable care to avoid economic loss caused by defects:
In or related to a building for which the work is done; and
Arising from the construction work.
In this context "Construction work" refers to building work within the meaning of the Home Building Act 1989 (NSW), and it also includes the following:
preparing regulated designs and other designs;
manufacturing or supplying building products used in the construction work; and
supervising, co-ordinating and project managing the above works.
It is important to note that Civil Liability Act 2002 (NSW) applies in respect of an action brought forward by owners for breach of this new duty of care, therefore , if there are multiple wrongdoers then the owner will be forced to pursue multiple parties to cover the losses sustained.
We will provide a future article from the Insurers legal team on the ramifications of this change to the Industry. The change won’t directly affect you (especially as you’re all trying to do the right thing all the time), but may have an effect on the Insurer in their defence of Claims from subsequent Owners etc.
The information provided in this article is general advice only, and is not intended to be a substitute for legal or other advice. General Advice is advice that has been prepared without considering your current objective's, financial situation or needs. Therefore, before acting on this advice, you should consider the appropriateness of the advice having regard to your current objective's, financial situation or needs. Read our complete general advice warning.
