On 23 July 2023 the Design and Building Practitioners Act 2020 and Design and Building Regulations (“DBP”) will be extended to include Class 3 (Long term or transient living such as boarding houses, hostels, backpackers and student accommodation) and Class 9C (residential care buildings, aged care) Buildings.

This change will also apply to United or Mixed Use buildings incorporating one or more of residential; hostel style accommodation; retail and or commercial.

From 23 July 2023, the changes will apply only to new Class 3 and Class 9C where construction has not yet been commenced and will then be expanded to existing buildings over the next 12 months.

As part of the process there will be a new class of design practitioners will be created. It is noted that if a design practitioner is already registered as a Class 2 they will be registered also as a Class 3 and 9C. Courses are available through the Department of Fair Trading for people interested in the changes for this new class of Design Building Practitioners.

If you are a builder in the Class 3 and 9C area, from 23 July 2023 you will need to be a registered design practitioner. You cannot upload any documents to the Building Portal unless you are registered. There are no exceptions.

A Building Practitioner is a person who undertakes building work pursuant to a contract and where subcontractors are used, is the principal contractor for the work and in accordance with the DBP Regulations.

The Office of the Building Commissioner stated that on the commencement of the changes in 2023, that the Office of the Building Commissioner together with the Department of Fair Trading will be undertaking more inspections both during the build and prior to the issue of an Occupation Certificate.

As part of the increased inspections and audits, the Building Commissioner advised members of the building cohort during a meeting on 15 June 2023, that he will not hold back on issuing Stop Work Orders or Prohibition Orders as these two classes of buildings house most of the more vulnerable persons within our community being transient persons (hostels), students (student accommodation) or the aged (aged care residential buildings) if he finds any defects or if the design practitioner does not comply with the requirements of the DBP or the DBP Regulations they can expect to receive an Order.

In particular, he stated that they will be looking to confirm that:

  • All designs are lodged with the Building Portal prior to the commencement of any work on the project and that this includes variations. If it is found that work has been undertaken on a variation that has not been uploaded to the portal by the registered Design Practitioner a Stop Work Order will be issued until such time that the design documents have been uploaded. The days of “working on the fly” are gone and the work as built must match the documents that have been uploaded to the portal.
  • All practitioners working in either of Class 2, 3 and 9C buildings must be registered in order to lodge the documents through the Portal and sign off on them. An employee of the Design Practitioner may be authorised to upload the documents to the Portal but only the registered Design Practitioner is able to certify them (sign off).
  • The certifier for the project is not on their watch list. In fact if a certifier for the project is on their watch list the Building Commissioner stated that you can expect a visit from either of the Office of the Building Commissioner or Fair Trading to ensure that the building complies.
  • If the builder and or developer or any person associated with the project have had any SafeWork notifications. Again, if they have found a number of SafeWork notifications for any one person, then you can expect a visit from either of the Office of the Building Commissioner or Fair Trading.

The idea behind the changes is that eventually all building classes will be incorporated into the DBP and in the process create safer and better quality of buildings in NSW. The Building Portal will given an accurate plan of what is built and what was designed and approved which will eventually be incorporated into the Strata Hub so that Owners Corporations receive all documents including most importantly the As Built design drawings for the project.

The aim is to eventually create a more transparent building industry and in turn increasing consumer confidence in the building industry which has taken a few hits over the last several years with a number of highly publicized defective buildings in the Class 2 category.

At WMD Law, we have a highly experienced property team to assist you with any questions you may have regarding the changes coming into effect this month. Please do not hesitate to contact our office on 9525 8688 or email info@wmdlaw.com.au.  Please also feel free to download our free Property eGuide.