Design and Building Practitioners Act 2020

The Act casts a wide net. Design practitioners (s 3(1)) who prepare regulated designs, principal design practitioners who coordinate declarations (s 3(1)), building practitioners (s 7) who contract to perform or coordinate building work, professional engineers carrying out work in the six prescribed areas (s 32(6)), and specialist practitioners performing specialist work on building elements (s 34) are all directly regulated. Registration is mandatory for anyone wishing to perform these functions or issue compliance declarations (ss 9, 10, 12, 13, 17, 23, 32, 35).

Registered body corporates and their directors are subject to additional obligations to maintain management systems, allocate declaration work only to appropriately registered individuals, and report suspected disciplinary grounds (ss 28, 67). Persons supplying building products used in building work fall within the extended definition of construction work for the purposes of the Part 4 duty of care (s 36(4)).

On the receiving side, owners of land (defined broadly in s 36(1) to include freehold owners, strata lot owners, community scheme proprietors, rent recipients and prescribed persons) and subsequent owners are owed the duty of care (s 37(2)). Owners corporations and community associations are expressly entitled to claim rectification costs (s 38). Principal certifiers responsible for occupation certificates must receive and consider compliance declarations (ss 17(5), 27). The Secretary of the Department administering the Act holds extensive administrative, investigative, disciplinary and enforcement powers (Parts 5–8).

Close associates (defined by reference to the Home Building Act 1989) are relevant to suitability assessments (s 46(d)). Professional bodies of engineers may seek recognition to register or recognise engineers (s 55). Authorised officers, including Department employees and Fair Trading investigators (s 73), exercise entry, seizure and information-gathering powers. The Land and Environment Court hears appeals against stop work orders (s 90) and applications for restraining orders (s 91), while the Civil and Administrative Tribunal reviews registration, disciplinary and certain recognition decisions (ss 55A, 63, 68).

Transitional provisions affect building practitioners, principal certifiers and Crown entities performing work under pre-1 July 2021 certificates (Sch 1 cll 3, 4, 4B–4D). In short, the Act touches designers, builders, engineers, specialists, developers, owners, certifiers, directors, suppliers, regulators and professional associations.

Key duties include the obligation on registered design practitioners to issue design compliance declarations addressing Building Code of Australia compliance, other prescribed requirements, applied standards and any other regulated matters (s 8(1) and s 9(1)–(5)). Principal design practitioners must verify that all regulated designs have compliant declarations from appropriately registered persons and issue principal compliance declarations (s 12(1)–(2)). Building practitioners must obtain compliant designs and declarations before commencing work (s 19), ensure variations trigger new declarations (s 20), build in accordance with declared designs (s 21), achieve Building Code of Australia compliance (s 22(1)), and supply building compliance declarations, subcontractor lists and final designs before occupation certificates are sought (s 17(1), (6)).

All registered practitioners must maintain adequate insurance (ss 11, 14, 24, 33) and provide evidence to the Secretary on request (ss 11(3), 14(3), 24(3), 33(3)). Registered practitioners must notify the Secretary within seven days of suspension or cancellation of other authorisations, legal proceedings, guilty findings, investigations, bankruptcy, corporate insolvency or changes in directors (s 60). Directors of registered body corporates must ensure compliance systems, allocate declaration work only to authorised individuals, and report suspected disciplinary conduct (ss 28, 67).

The statutory duty of care in s 37(1) requires any person carrying out construction work to exercise reasonable care to avoid economic loss from defects. This duty cannot be delegated (s 39) and cannot be contracted out of (s 40). Persons providing information or records to authorised officers or complying with directions incur no civil liability to others (s 44(3), s 83).

Rights include the entitlement of owners and subsequent owners to damages for breach of the duty of care as if it were a common-law duty (s 37(3)). Aggrieved persons may seek administrative review by the Civil and Administrative Tribunal of registration refusals, conditions, suspensions, cancellations, variations, recognition decisions concerning professional bodies, and disciplinary action (ss 55A, 63, 68). Appeals against stop work orders lie to the Land and Environment Court (s 90). Registered practitioners may apply to vary, cancel or suspend their own registration (s 62) and may make submissions before disciplinary action is finalised (s 65(4)). Persons issued penalty notices may elect to have the matter determined by a court rather than pay the prescribed amount (s 94(3)).

Penalties are graduated. Knowingly false or misleading compliance declarations attract 2,000 penalty units or two years’ imprisonment or both (ss 9(7), 12(4), 17(4)). Carrying out unauthorised professional engineering or specialist work carries 1,500/500 penalty units (ss 32(1), 35). Failure to provide design compliance declarations attracts 1,500/500 penalty units (s 9(1)–(5)), while building practitioners face 3,000/1,000 penalty units for failing to ensure designs are prepared by registered practitioners or for breaching variation or compliance obligations (ss 18, 20, 21, 22(1)–(2)).

Insurance breaches attract 300/100 penalty units (ss 11(1), 14(1), 24(1), 33(1)). Directors of registered body corporates face 300 penalty units for failing to maintain compliance systems (s 28(1)), while the body corporate itself faces 1,000 penalty units for issuing declarations through unauthorised individuals (s 28(2)). Obstruction of authorised officers or failure to comply with directions carries 1,000/200 penalty units (ss 86, 87). Continuing offences attract daily penalties (s 96). Penalty notices may be issued for prescribed offences (s 94).

Enforcement tools include stop work orders (s 89) lasting up to 12 months (or until revoked), enforceable undertakings (s 88), and court orders to restrain or remedy breaches (s 91). The Secretary may suspend registration immediately upon serving a show-cause notice where there is an imminent risk of significant harm (s 65A). Disciplinary outcomes range from cautions to fines of 220,000/110,000 penalty units, education orders, suspension, cancellation and disqualification (s 66). Monetary penalties become debts and automatically suspend registration until paid (s 69). Investigations, audits and information-gathering powers support enforcement (Part 7). Proceedings may be commenced up to three years after the offence or two years after evidence comes to an authorised officer’s attention (s 93(5)). Offences by corporations attribute liability to directors who knowingly authorised or permitted contraventions (s 95). The onus of proving reasonable excuse lies on the defendant (s 97).

The Act is expressly linked to the Environmental Planning and Assessment Act 1979. The Building Code of Australia has the same meaning as in that Act (s 3(1)). Occupation certificates, complying development certificates and Part 6 certificates are central triggers for declaration lodgment and certifier obligations (ss 15, 16, 17(5), 26, 27). The definition of building for the duty of care adopts the meaning in the Environmental Planning and Assessment Act 1979 (s 36(1)).

Close associates are defined by reference to the Home Building Act 1989 (s 3(1)). Building work includes residential building work within the meaning of that Act (s 36(1)). The duty of care is additional to statutory warranties and obligations under the Home Building Act 1989 (s 41(1)). Relevant authorisations include contractor licences, endorsed licences, supervisor certificates and owner-builder permits under the Home Building Act 1989 (s 3(1)(c)).

The Architects Act 2003, Building and Development Certifiers Act 2018 and Strata Schemes Management Act 2015 are referenced for recognition of existing authorisations and for owners corporation rights (ss 3(1), 36(1), 38). The Building Products (Safety) Act 2017 supplies the definition of building product and supplier (s 36(1)). The Civil Liability Act 2002 applies to the duty of care (s 41(3)). Limitation periods are governed by the Limitation Act 1969 and s 6.20 of the Environmental Planning and Assessment Act 1979 (note to s 41).

The Interpretation Act 1987 applies to undefined terms (note to s 3(1)). The Crimes Act 1900 Part 5A creates offences for false or misleading applications and information (note to s 43(2)). The Fair Trading Act 1987 supplies investigators who may be appointed as authorised officers (s 73(b)) and interacts with immediate suspension powers (s 65A(7)). The Administrative Decisions Review Act 1997 governs Tribunal reviews (ss 55A, 63, 68). The Law Enforcement (Powers and Responsibilities) Act 2002 governs search warrants (s 82(3)–(5)). The Ombudsman Act 1974 is an exception to the confidentiality prohibition (s 103(d)).

Section 25(3) provides that modified requirements under other laws satisfy the Building Code of Australia for the purposes of this Act. Schedule 1 cl 5 extends the duty of care to pre-commencement work in defined circumstances. The Act therefore sits within a web of planning, licensing, product safety, tort, limitation and administrative review statutes, supplementing rather than displacing them (s 41).

The provided text records specific amendments. Section 3 was amended by 2021 No 23, Sch 1.6[1] and 2024 No 53, Sch 3.5, updating the list of defined terms and cross-references. Section 17 was amended by 2022 No 59, Sch 2.12. Section 20 was amended by 2021 No 21, Sch 1[1] and [2]. Section 52 was amended by 2022 No 59, Sch 1.9[1]. Section 52A was inserted by 2022 No 59, Sch 1.9[2]. Section 55 was amended by 2021 No 21, Sch 1[3] and [4]. Section 55A was inserted by 2021 No 21, Sch 1[5]. Section 60 was amended by 2021 No 23, Sch 1.6[3] and [4]. Section 64 was amended by 2021 No 23, Sch 1.6[5]. Section 66 was amended by 2021 No 23, Sch 1.6[6]. Section 68 was substituted by 2023 No 44, Sch 4.2[2] and s 65A was inserted by the same Act (Sch 4.2[1]). Section 98A was inserted by 2022 No 61, Sch 1.1. Section 107 was amended by 2021 No 21, Sch 1[6]–[8] to expand regulation-making powers, including temporary insurance exemptions not exceeding 12 months (s 107(5A)).

Schedule 1 was amended by 2021 (152), Sch 6 (itself amended by 2021 (312), Sch 1[17]–[21]), 2021 (743), sec 3 and 2022 (783), Sch 2[1] and [2], adding and refining transitional provisions for Crown building work (cll 4B–4D) and staged lodgment (cl 4A). Section 109 requires a Public Accountability Committee review by 30 June 2022 to consider the Secretary’s functions, the continuing validity of policy objectives, and the desirability of an independent NSW Building Commission. These changes reflect a legislative intent to refine registration and disciplinary processes, strengthen immediate suspension powers where public harm is imminent, expand recognition pathways for professional engineering bodies, clarify transitional application for projects spanning the 1 July 2021 commencement, and create a public register of orders and undertakings (s 98A). The amendments also adjust time limits and lodgment mechanisms to address practical difficulties encountered in the early operation of the scheme.

The Act itself does not record specific decided cases. It does, however, establish multiple avenues for formal challenge. A person aggrieved by refusal of registration, imposition or variation of conditions, suspension, cancellation, variation of registration, or refusal of voluntary cancellation or suspension may apply to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 (s 63). Similar review rights exist for decisions to refuse, suspend or cancel recognition of a professional body of engineers, or to impose or vary conditions on such recognition (s 55A). Disciplinary decisions, including immediate suspension under s 65A, are likewise reviewable (s 68).

Stop work orders may be appealed to the Land and Environment Court within 30 days; the appeal does not automatically stay the order unless the Court so directs (s 90). The Secretary may apply to the Land and Environment Court for orders to restrain or remedy contraventions, including on an interim basis without an undertaking as to damages (s 91). Search warrants are issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (s 82(3)).

Controversies contemplated by the statute include the tension between regulatory speed and procedural fairness (addressed by the immediate suspension power in s 65A and the show-cause process in s 65), the retrospective operation of the duty of care (Sch 1 cl 5), the breadth of director liability (ss 28, 67, 95), the potential for overlapping proceedings (s 70 permits disciplinary action despite criminal or civil proceedings), and the interaction with existing limitation periods and the Civil Liability Act 2002 (note to s 41). Section 109 contemplates ongoing debate about whether an independent NSW Building Commission would be preferable to the Secretary exercising the regulatory functions. The requirement in s 29 that practitioners and others must not seek or give benefits on the understanding that a declaration will be biased, and the prohibition on undue influence (including threats to alter position or withhold payment), indicate legislative concern about commercial pressures that could compromise declaration integrity. No specific judicial decisions are recited in the text; the statute creates the procedural architecture within which such controversies are to be resolved.

Most practitioners do not realise that a design compliance declaration must be re-issued even for variations made after building work has commenced if the variation relates to a building element or performance solution (s 9(3)). The obligation is strict and carries the same 1,500/500 penalty unit maximum as the initial declaration. Similarly, s 20(2) and (3) require the building practitioner to take all reasonable steps to ensure that the registered design practitioner preparing a varied design is given access to all earlier regulated designs, declarations and principal compliance declarations; failure to do so can invalidate the subsequent declaration and expose the builder to 3,000/1,000 penalty unit liability.

The defence in s 22(3) is narrower than many assume: the builder must have reasonably relied on a design compliance declaration that expressly stated compliance with the Building Code of Australia and other requirements prescribed for s 8(1), and the declarant’s registration must have authorised the specific matters declared. Reliance on a declaration that is later found to be false does not automatically protect the builder if these preconditions are not met.

Schedule 1 cl 5 applies the duty of care retrospectively to construction work carried out before commencement, provided the economic loss first became apparent within the ten years immediately before commencement or thereafter. This can catch designers, suppliers and supervisors who believed their exposure had long since expired. Owners corporations can claim rectification costs even if they were not the owner at the time the work was done (s 38(3)), and the economic loss expressly includes reasonable alternative accommodation (s 38(2)).

Section 60 requires notification to the Secretary within seven days of a wide range of events, including investigations by any government agency or professional body in any Australian jurisdiction. Failure to notify is an offence carrying 250/50 penalty units. Many practitioners overlook that this extends to investigations, not merely findings of guilt.

The prohibition on lending registration certificates (s 57) triggers automatic cancellation upon conviction, a draconian outcome that is easily triggered by informal “covering” arrangements on site. Directors of registered body corporates must personally ensure that declarations are issued only by individuals whose registration authorises the precise matters declared (s 28(2)); corporate liability is separate and additional (s 28(1)).

Authorised officers may require demolition of part of a building to inspect concealed work if they reasonably believe an offence has been committed (s 84(2)(k)), and the occupier must provide reasonable assistance (s 83). The onus of proving reasonable excuse for non-compliance with a direction lies on the defendant (s 97), reversing the usual presumption.

Transitional provisions appear straightforward but contain traps: cl 4 of Schedule 1 ceases to apply the moment a pre-2021 design is varied after 1 July 2021, requiring a fully registered practitioner to prepare the variation. Crown building work has its own staggered transitional regime (cll 4B–4D) that practitioners working on government projects can inadvertently breach.

Compliance begins with registration. An applicant must lodge an approved form accompanied by evidence of qualifications, skills, knowledge, experience and suitability (s 43). The Secretary may require interviews, examinations, further information or third-party checks, including from close associates (ss 43(5), 44). Insurance must be maintained in accordance with the regulations both at registration and on an ongoing basis (ss 11, 14, 24, 33); evidence must be supplied to the Secretary on request. Registration is granted for one, three or five years and is subject to conditions, including compliance with any prescribed code of practice or professional body recognition (ss 48–50).

Once registered, design practitioners must issue design compliance declarations in the prescribed form and manner whenever supplying a regulated design suitable for building work (s 9(1)). Further declarations are required for variations (s 9(2)–(3)) and must be copied to the principal design practitioner (s 9(4)). Principal design practitioners must verify all declarations and issue principal compliance declarations to prescribed persons (s 12). Building practitioners must not commence work without obtaining compliant designs and declarations (s 19), must manage variations through new designs and declarations (s 20), and must ensure construction follows the declared designs (s 21). Before an occupation certificate is applied for, the building practitioner must supply the building compliance declaration, subcontractor list, non-regulated final designs and any other required documents to the client, who must forward the declaration to the principal certifier (s 17). All relevant documents must be lodged with the Secretary within 90 days after the occupation certificate is issued (s 15).

Electronic lodgment through a Department portal may be mandated by regulation (ss 9(6), 12(3), 15(3), 17(3)). All declarations must be accurate; knowingly false declarations expose the declarant to imprisonment (ss 9(7), 12(4), 17(4)). Practitioners must notify the Secretary within seven days of any notifiable event listed in s 60. Directors of corporate practices must maintain management systems, allocate work only to authorised individuals and report suspected disciplinary grounds (ss 28, 67).

For the duty of care, persons performing construction work should document the steps taken to avoid defects that could cause economic loss, maintain records of design coordination, and ensure suppliers and subcontractors are similarly aware of the non-delegable nature of the obligation (ss 37, 39). Contracts entered after commencement cannot exclude the duty (s 40).

Continuing professional development, record-keeping and timely provision of information to the Secretary are conditions of registration (ss 51, 107(2)). Any complaint or audit must be met with full cooperation; obstruction attracts heavy penalties (s 86). Stop work orders must be strictly observed (s 89(7)). When in doubt about the form of a declaration or the need for a new one after variation, practitioners should obtain written confirmation from the Secretary or principal certifier and retain that confirmation.

Practitioners should maintain a central register of all declarations issued or received, cross-referenced to project files, variation instructions and access logs for earlier documents provided under s 20(2)(b). Insurance policies must be reviewed against the regulatory minima before each renewal and evidence kept for at least the limitation period applicable to duty-of-care claims. Where a professional body is relied upon for recognition, practitioners should confirm that the body remains recognised by the Secretary (s 55).

By systematically addressing registration, insurance, declaration sequencing, variation management, lodgment deadlines, notification obligations and record retention, practitioners can minimise both civil exposure under the duty of care and the risk of disciplinary or criminal sanction.