On 1 July 2021, the new regulations in NSW applying to buildings that are Class 2, or contain a Class 2 part, will commence. In preparation for commencement, the Department has issued various amending Bills, Regulations and guidance materials, including templates that you can use.

Here we provide a 7-step summary of the latest changes, guidance materials, special requirements for regulated designs, other forms, guides and templates, and our Quick Guide to help navigate the declaration process commencing on 1 July 2021.

For a full summary of the new regulations, see our previous article: NSW building regulations due to commence on 1 July 2021 have been released.

Building Legislation Amendment Bill 2021 (NSW)

The Building Legislation Amendment Bill 2021 (NSW) was passed by Parliament on 24 June 2021. The Bill makes miscellaneous amendments to the Design and Building Practitioners Act 2020 (NSW) (DBP Act), the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act), the Home Building Act 1989 (HB Act), the Electricity Supply Act 1995 (NSW), and the Gas and Electricity (Consumer Safety) Act 2017 (NSW).

Of particular interest to developers and builders working on residential buildings, the Bill:

• gives the Department the ability to impose a levy on developers under the RAB Act;
• provides that fees can be charged for lodgement of documents on the NSW Planning Portal pursuant to the DBP Act;
• imposes increased and new penalties under the RAB Act; and
• makes it clear that all variations should be designed and declared before the varied building work commences, with designs and declarations lodged on the portal within 1 day of commencing the varied building work.

Better Regulation Legislation Amendment (Miscellaneous) Bill 2021 (NSW)

The Better Regulation Legislation Amendment (Miscellaneous) Bill 2021 (NSW) is currently being considered by Parliament and is likely to come into effect later this year. The Bill makes amendments to various pieces of legislation, including amendments to the DBP Act and the RAB Act.

The amendments relevant to developers and builders working on residential buildings include:

• if a company is subject to disciplinary action under the DBP Act, then any director of that company can be subject to disciplinary action including, a caution or reprimand, a requirement to undertake specified training and disqualification from being registered;
• the Department can accept an undertaking from a developer under the RAB Act to provide a rectification bond for the costs of eliminating, minimising or remediating a serious defect or potential serious defect in a residential apartment building – and the Department can prohibit the issue of an occupation certificate if a developer fails to provide the rectification bond; and
• the Department can give a Building Rectification Order (BRO) to a developer under the RAB Act if the Department has a reasonable belief that a residential apartment building has a serious defect. This is in addition to the current power to give a BRO if the Department has a reasonable belief that building work was or is being carried out in a manner that could result in a serious defect.

Design and Building Practitioners Amendment (Miscellaneous) Regulation 2021 (NSW)

On 25 June 2021, a new Regulation was published that amends the Design and Building Practitioners Regulation 2021 (NSW) and commences on 1 July 2021. This contains a number of relevant updates including:

• the registration fees for lodging applications to become a registered practitioner, and complete online learning modules, have been released;
• the knowledge and qualification requirements for a number of classes of practitioners have been updated. Before applying, you should make sure to review NSW Fair Trading's requirements;
• the grace period in which practitioners are not required to be insured under the DBP Act has been reduced from a two year transition period. You will now need to be insured on and from 1 July 2022; and
• clarification of how the DBP Act and Regulations apply to Crown building works.

Special requirements for regulated designs

On 10 June 2021, a Ministerial Order was released containing detailed requirements for regulated designs under the DBP Act.

The Ministerial Order requires that:

• regulated designs for shoring, underpinning and ground anchors must contain particular details; and
• all regulated designs for which a compliance declaration is made must include:
  • a north point and the orientation of the design (unless the design is a report or specification);
  • a scale (unless the design is a report or specification); and
  • a completed title block in the top left-hand side of the design document, in the format that can be downloaded from the Department's website.

Guidance material for regulated designs

Under the Design and Building Practitioners Regulation 2021 (NSW), when registered design practitioners provide design compliance declarations, they must declare whether or not the design accords with 'relevant elements of guidance material for regulated designs' that have been published by the Department. The Department published the guidance materials on 10 June 2021.

Other forms, guides and templates

The Department has published useful template forms for registered practitioners and professional engineers, including template compliance declarations.

For detailed guidance on identifying and meeting your design and engineering obligations under the DBP Act, the Department has also published a Design Practitioners' Handbook and Guidance on Professional Engineering Work.

Quick Guide: Declaration Process

We have prepared a Quick Guide to help navigate the declaration process under the DBP Act, including the different documents required to be lodged, at what point they need to be lodged, and who needs to lodge them.

All designers, builders, developers and financiers working on buildings that are Class 2, or contain a Class 2 part, must be aware of the new laws that commence on 1 July 2021.

For more information see the Department website, or reach out to a member of our National Building Regulation and Compliance team for advice.