Design and Building Practitioners Act 2020: New Duties and Penalties for Architects

Helen Kowal, Partner at Swaab, shares an outline of the new duties and penalties for architects under the new Design and Building Practitioners Act 2020. She will be delving further into this topic at the upcoming Law for Architects: Crucial Issues in Compliance and Contracts seminar on Thursday 25 March. 

Further parts of the Design and Building Practitioners Act 2020 (DBP Act) (assented to on 10 June 2020) are due to come into effect from 1 July 2021 (noting that Part 4 of the DBP Act came into effect immediately).

The Draft Design and Building Practitioners Regulation 2020 (Draft Regulations), which were open for public consultation until 11 January 2021, are to also apply from 1 July 2021.

Whilst the Draft Regulations are still in ‘draft’ form, it is clear that the Draft Regulations provide significant clarity on a number of provisions in the DBP Act.

As an architect, you should be aware of the new obligations in force under the DBP Act and the consequences of non-compliance with these obligations.

Relevant questions:

1. Does the DPB Act apply to the work you are doing?
2. Do you satisfy the qualification, experience, knowledge and skill requirements of the DBP Act and Draft Regulations for your particular ‘class’ of registration?
3. If so, do you understand what your obligations are to provide design compliance declarations for regulated designs under the DBP Act?
4. Do you know you must have adequate insurance to be registered and what adequate insurance is?
5. Are you aware of the proposed new Continuing Professional Development (CPD) requirements as a registered practitioner?
6. Are you aware of your requirements to comply with the Code of Practice for prescribed practitioners?
7. Are you aware of the potential penalties applicable for non-compliance with the DBP Act?

Obligations as an architect under the new requirements:

8. The Draft Regulations have confirmed for the purposes of the definition of building work under the DBP Act that a class 2 building or a building that contains a class 2 part is a prescribed building.[1]
9. A class 2 building includes a building containing 2 or more sole-occupancy units each being a separate
10. Various exclusions to building work are listed in the Draft Regulations.[2]
11. As a registered design practitioner, if you are preparing a regulated design[3] for building work, you must:
    1. prepare a design compliance declaration in the form specified in Schedule 6, Form 1, of the Draft Regulations;
    2. ensure your design compliance declaration includes all further matters[4]
    3. provide the design compliance declaration to a person for use by that person or another person in connection with building work[5]; and
    4. if there are any variations made either by the design practitioner or building practitioner, provide a further design compliance declaration for the varied regulated design.[6]
12. Penalties are imposed for non-compliance with the design compliance declaration provisions up to 1500 penalty units for a body corporate ($165,000) and 500 penalty units ($55,000) for an individual.
13. As a registered design practitioner who holds a design practitioner – architectural class of registration[7] you are authorised to do the following:
    1. prepare or vary a regulated design of a type that would constitute the provision of an architectural service within the meaning of the Architects Act 2003,
    2. make a design compliance declaration for a regulated design referred to in paragraph (a).
14. There is a six-month transitional period beginning on 1 July 2021 and ending on 31 December 2021 through which you will be deemed to be registered whilst you apply to the Secretary to be registered as a practitioner in a particular class of registration. You must be registered and be indemnified under a professional indemnity insurance policy[8] by the end of this transitional period.
15. There are new CPD requirements which must be completed as specified under Schedule 3 of the Draft Regulations. CPD Guidelines for Prescribed Practitioners available for the purposes of draft consultation.[9]
16. As an architect, you may be guilty of an offence, be subject to disciplinary action or penalties under the DBP Act if you:
    1. contravene a condition of your registration;
    2. permit another person to use your registration certificate;
    3. make any false representations about yourself;
    4. engage in conduct which has fallen short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent practitioner or in contravention of the DBP Act[10]
       
       
17.  Schedule 4 of the Draft Regulations sets out the Code of Practice which you are required to comply with.

Should you require legal advice about any issue impacting your strata scheme please contact Helen Kowal Partner, Swaab.

[1] Clause 12 Division 3 Part 2 Design and Building Practitioners Regulation 2020 (NSW) Public Consultation Draft (Draft Regulations)

[2] Clause 13 Division 3 Part 2 Draft Regulations

[3] A regulated design is defined in section 5 of the DBP Act and means:

• a design that is prepared for a building element for building work, or
• a design that is prepared for a performance solution for building work (including a building element), or
• any other design of a class prescribed by the regulations that is prepared for building work.

[4] Refer to clause 9 Division 2 Part 2 of the Draft Regulations

[5] section 9(1)(b) of the DBP Act

[6] section 9(2) and s9(3) of the DBP Act

[7] Schedule 1, Part 2, Division 1, clause 5 of the Draft Regulations

[8] Part 6 Insurance Draft Regulations: A professional indemnity insurance policy means an insurance policy that complies with the provisions of this part and that indemnifies an individual, body corporate or partnership against the liability of the registered design practitioner, registered principal design practitioner or registered professional engineer covered by the policy.

[9] s107(2)(b) of the DBP Act allows the regulations to make provision for professional development requirements for registered practitioners

[10] s64 DBP Act – disciplinary actions

With a legal career spanning over 25 years in general practice, for the past decade Helen Kowal has specialised in building, construction, strata and property. She has worked for many owners corporations, developers and builders in all facets of building and construction law in all jurisdictions. Acting for owners corporations, owners and builders in building defect claims under the Home Building Act 1989 in NCAT and Supreme Court of NSW. Connect with Helen via email or  LinkedIn