The NSW Government is moving forward with its agenda to transform the building industry to restore public confidence and better protect consumers by releasing four draft pieces of legislation for public comment: Building Bill 2022 Building Compliance and Enforcement Bill 2022 Building and Construction Legislation Amendment Bill 2022 Building and Construction Legislation Amendment Regulation 2022.
Key Takeaways The proposed reforms involve significant changes to the current building laws and will affect those working in residential and commercial construction. However, it remains to be seen whether all the proposed amendments will be passed by parliament. In particular, the reforms seek to: Regulate builders and designers engaged in commercial work including a new licensing scheme Expand the duty of care contained in the Design Building Practitioners Act 2020 (NSW) (DBP Act) to all types of building work Strengthen the regulator’s enforcement powers Allow an adjudicator to obtain an expert report and enable merits review of adjudication decisions under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SoP Act) Raise for consultation extending the limitation period for major defects to ten years and other defects to three years (currently six and two years respectively). Scope of the Draft Legislation The scope of the draft legislation is broad and focuses on seven areas of reform: Making home building fairer and easier Supplying and using safer building products Regulating prefabricated and manufactured homes Strengthening building compliance and enforcement Licensing commercial and home building work Upskilling the construction industry Securing prompt and fair payment for building work. A summary of these reforms is set out below. Building Bill 2022 This bill is set to replace the Home Building Act 1989 (NSW), and aims to ‘establish a future focused regulatory framework’ that ensures building work is safe and compliant. Key features: Expand licensing into the commercial sector Broaden the definition of ‘Developer’ to those who carry out, facilitate or cause building work to be carried out Provide a process for variations and payment in residential building work Transfer the building and subdivision certification contained in Part 6 of the Environmental Planning and Assessment Act 1979 (EPA Act) Transfer and consolidate the duty of care provisions in the EPA Act and the DBP Act and expanding the duty to all types of building work Introduce a new broader definition of ‘serious defect’ (to replace ‘major defect’). Building Compliance and Enforcement Bill 2022 This bill will replace the Residential Apartment Building (Compliance and Enforcement Powers) Act 2020 (NSW) and provide a single legislative framework to regulate building compliance and enforcement. Key features: Strengthen the powers of authorised officers to investigate, gather information and enter premises Provide a range of powers for non-compliance such as enforceable undertakings, stop work orders and injunctive powers Establish a demerit points scheme for licence holders who commit offences. Building and Construction Legislation Amendment Bill and Regulation 2022 This bill and regulation will amend various existing laws and are intended to ensure that “all persons involved in building work are held accountable for their work”. Key features: Impose responsibilities on all persons in the building product supply chain to ensure that building products are fit for purpose and compliant Allow the building bond provided by developers to be used to rectify defects Require practitioners to maintain, improve and broaden their knowledge by standardising continuing professional development requirements Amend the SoP Act to ensure prompt and fair payment, allow an adjudicator to engage an expert to investigate and report on relevant matters and enable merits review of adjudication decisions by another adjudicator. The draft legislation is open for public consultation until 25 November 2022 and submissions can be made here. Further information / assistance regarding the issues raised in this article is available from the author, Megan Palmer, Partner or your usual contact at Moray & Agnew.
The content of this publication is intended to provide a summary and commentary only. It is not intended to be comprehensive nor does it constitute legal advice, and has been prepared based on applicable legislation at the date of publication. You should seek legal advice on specific circumstances before taking any action.
