Background

The NSW Parliament has passed the Building (Approvals and Practitioners) Bill 2026, which enacts the Building (Approvals and Practitioners) Act 2026 (NSW) (Building Act). The Building Act consolidates NSW’s building approval, certification and building practitioner registration scheme. 

This update sets out the key changes that stakeholders in the development and construction sectors should know in the lead up to the commencement of the Building Act.

Commencement

As there are provisions to be stipulated in the Regulations (which have not been released), the Building Act will commence on a day to be appointed by proclamation, except for Schedule 3[20] and [45] which will commence on the date of assent.

Key changes: a streamlined approvals and certification regime

The Building Act reshapes how building work is approved in NSW, including the following key changes:

• Construction certificates will become 'building approvals' under the Building Act.
• Occupation certificates will become 'completion approvals'. A completion approval will be the sole authority to occupy a building and will not be issued unless the work is consistent with the development consent.
• Staged approvals will be permitted, so early works can proceed while later stages remain in design.
• Only an owner will be able to apply for a building approval. A builder will not be able to apply for a building approval unless it is also the owner.
• Certifiers (now called 'approval authorities') will be able to approve variations to approvals to the extent that the variation would have been approved originally. The approval of variations will not be applied retrospectively (except by the Secretary). Previously, a certifier would not be able to approve variations from the development approval, and the approval holder had to re-apply for a development approval addressing the variation. Approval authorities will also be able to rely on declarations from other qualified professionals, such as structural engineers, when issuing approvals.
• Certifiers will face materially higher maximum penalties. The maximum penalties under the Building Act will increase from $33,000 to $1.1 million and an automatic 120-day registration suspension on conviction for conflict-of-interest breaches. The Building Act will also replace the existing subjective two-limb test for conflicts of interest with clear objective factors.
• The regulation of prefabricated and modular buildings will be brought within the building declaration regime, with new manufacturer prefabricated building declarations and instructions requirements and a supply-chain information offence. Because the Building Act will remove the manufactured homes exemption from the  definition of 'building' in the Environmental Planning and Assessment Act 1979 (NSW), the framework will enable the Home Building Act 1989 (NSW) to be applied to prefabricated buildings through regulation (including licensing, consumer protections and contractual requirements where the work is captured as 'residential building work').
• The Secretary will be able to authorise approval of unauthorised building work to regularise it, provided the work is compliant with the Building Code of Australia and free of defects, with rectification conditions able to be imposed.
• Fire safety certificates will be issued by the approval authority rather than the building owner.
• The Building Act will introduce a new standalone obligation requiring all persons to take reasonable steps to ensure that building work complies with the Building Code of Australia, separate from and in addition to the statutory duty of care.
• It will be a condition of registration that a registration holder must not carry out approvals work for a person unless the work is carried out under a written contract between the prescribed parties.
• Proceedings for an offence under the Building Act or Regulations may be commenced up to 3 years after the alleged offence — a substantial extension from the 6-month standard under the Criminal Procedure Act 1986 (NSW) — with a further extension of up to 2 years from a 'notification date' available with the court's leave;
• Authorised officers will be able to enter non-residential premises without a warrant, use reasonable force to access things (including floors and walls), destructively test items, and seize and destroy property with no requirement for compensation.
• Individuals will not be able to refuse to answer questions or produce documents on self-incrimination grounds. While compelled information will be inadmissible in criminal or civil proceedings against that individual, it may form the basis for disciplinary action against that individual under Part 5.
• A civil action for loss or damage arising from defective building work will not be able to be brought more than 10 years after the date of completion of the work (measured by issue of the completion approval, the required final inspection, or first occupation, as applicable).
• The Building Act amends the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) to add a new head of power for a residential building dispute-resolution scheme, to be developed by Building Commission NSW in consultation with consumer groups, industry and the justice system. The regulations must establish the scheme by 31 December 2026.

Is the duty of care under the DBP Act still relevant?

The statutory duty of care provisions first enacted under the DBP Act will be preserved by the Building Act, not overhauled. The Building Act will reproduce the duty of care in substantially the existing form under the DBP Act, and it will remain non-delegable and unable to be contracted out of.

The apparent legislative intention is that for works completed until the commencement of the Building Act, the DBP Act duty of care applies (in accordance with its terms), and moving forward, the Building Act duty of care applies.

In the second reading speech the Minister confirmed the Building Act 'seeks to uphold the existing operation, application and interpretation of the duty'. The NSW Parliament's intention appears to be that the duty as construed by the High Court in Pafburn Pty Limited v The Owners - Strata Plan No 84674 [2024] HCA 49 is not diluted by the proportionate liability provisions of the Civil Liability Act 2002 (NSW). 

Importantly, however, the duty of care will be extended through the broadened definition of 'construction work'.  The duty of care will extend to those who carry out work involved in:

• constructing, altering, adding to, repairing, renovating, or providing a protective treatment to, a building (work);
• preparing designs for the work, or regulated designs (including coordinating or supervising the preparation of design documents);
• manufacturing or supplying a building product for the work;
• supervising, coordinating, project managing or otherwise having substantive control over the carrying out of the work; and
• other work that may be prescribed in the regulations.

The live question is the reach of the restated duty of care in relation to manufacturers and suppliers of prefabricated and modular buildings. Section 184 of the Building Act will leave the operation of the duty of care under the Building Act to the enactment of any regulations by the NSW Parliament. Prefabricated and modular building manufacturers and suppliers will need to consider their liability carefully in the not-so-distant future.

Impact on industry

For participants across the development and construction sectors, the practical consequences will fall into two clusters — contract drafting and approval sequencing on the one hand, and a materially expanded enforcement and civil liability environment on the other:

• Update contracts to reflect new approval terminology. Any drafting that triggers payment, practical completion, handover or access rights off construction certificates or occupation certificates should be reviewed and updated to the new approval terminology.
• Allocate approval responsibility in contracts. Given only owners (or another person with the owner's consent) will be able to apply for a building approval, and a builder will not be able to apply unless it is also the owner, responsibility for obtaining building and completion approvals, and for responding to approval authority queries, should be expressly allocated in building contracts.
• Prepare for prefabricated building compliance requirements. Manufacturers and suppliers of prefabricated or modular product should prepare for Building Code of Australia compliance scrutiny and the new declaration and instructions requirements, and out-of-State manufacturers should monitor regulations for any alternative requirements or exemptions that may apply to them.

What you should start considering now

The Building Act is not yet in force, but 2 items relating to Crown prefabricated building work will commence on assent of the Building Act.

In the lead up to commencement of the Building Act, you should consider prioritising some practical impacts: 

• Revisit conflict of interest policies and procedures now given the move to an objective test and the substantially increased maximum penalties. Certifiers should review internal conflict of interest policies, declarations and independence safeguards well before the new regime takes effect.
• Reassess risk allocation and insurance ahead of commencement. Parties should factor the non-delegable statutory duty of care and the 10-year long-stop limitation period into their risk allocation, warranties and professional indemnity cover.
• Prepare for expanded enforcement exposure by reviewing internal compliance and document-retention practices now.

For a discussion on how the Building Act will impact your business and how to prepare for the changes, please contact us.