The Design and Building Practitioners (D&BP) Act was enacted in June 2020, and established a new licensing and disciplinary framework for building practitioners involved in the design and construction of buildings in NSW. The D&BP Regulation 2021 details the rules for implementing the procedures of the Act and sets out specific requirements for licensing, registration and ongoing professional development required of building practitioners.
The D&BP Act was rolled out in stages, commencing in July 2021, with its application limited to Class 2 buildings or buildings with a Class 2 part. While the general consensus amongst construction industry professionals was that the Act was specifically limited to Class 2 buildings, a NSW Supreme Court ruling delivered on 19 May 2022 (Goodwin v DSD). clarified that the statutory duty of care prescribed in S37 of the Act applies to the construction of any ‘building’ within the meaning of the Environmental Planning and Assessment Act 1979 (EP&A 1979). This provides a backdrop to the impending extension of obligations to all other classes of buildings, beginning with Class 3 and Class 9c in mid-2023.
Given this, the construction industry needs to consider the implications that this would have for Developers, Builders, and Project Managers. Furthermore, consultants and other relevant project stakeholders need to understand and account for the implications to cost, timelines, legal obligations and discipline dependencies.
Project Timelines and Dependencies
The introduction of the D&BP Act has meant that project timelines have been protracted, and this was to be expected. However, dependencies have been less well understood. Fire Safety impacts upon all other disciplines including structural, mechanical, electrical and architecture. Hence, for the Fire Engineer to issue the Design Compliance Declaration (DCD), we are dependent on all the other disciplines issuing theirs as we have to reference their DCDs within ours. This means that the Fire Engineer is one of the last disciplines issuing the DCD and consequently often in the firing line when the project timeline is under pressure.
Increased Scope and Fees
The introduction of the D&BP framework has meant that our scope as Fire Engineers has increased to cater for the compliance requirements. This has also meant additional progress site inspections to ensure the completed works meet the DCD. This translates into an increased fee.
Quality Requirements and Duty of Care
Practitioners and Clients need to be made aware of the quality requirements for issuing DCDs. DCDs cannot be issued in 15 minutes, they require the Accredited Certifier / Practitioner to review relevant drawings, documentation and specifications referenced in the Fire Engineer’s Report, prior to issuing the DCD. There are differing standards of practice in the Industry and varying levels of rigor adopted by the relevant practitioners. Some practitioners just see it as a piece of paper to sign in 15 minutes while others see it has a legal responsibility requiring detailed review of all relevant documents and inter-dependencies to ensure all design requirements are captured in the Construction Certificate (CC) Documentation, as intended by the D&BP Act; the latter being in line with the very serious duty of care obligations upon the designer.
Contractual Risks and Indemnity
There have been cases where Accredited Practitioners have been issued with legal notices for liquidated damages where DCDs have not been issued in time for the Developer/Builder to obtain their CC. However, DCDs cannot be issued until all the relevant information required is provided and the Accredited Practitioner / Certifier is satisfied that it meets the required standard. Hence, there should be legislation, guidance and legal protection afforded to practitioners including advance payments in full to avoid the practitioner being under financial or other duress to issue DCDs. This is very similar to a Certifier who is paid in advance to enable them to determine CC and OC applications without undue financial duress.
There are some uncertainties about the extent of coverage that the DCDs are meant to provide, given that some aspects of the design are not finalised until much later e.g. fire stopping of penetrations, signage, design items which are detailed via shop drawings.
BCA Compliance DCD
Grade A1, A2 and A3 are now a collation service rather than a checking service. BCA Consultants are not issuing DCDs. Hence, many key fundamental compliance items which impact on all other disciplines are not being checked. This is stalling the process for issuing DCDs. Building Code / BCA Consultants should also be issuing DCDs that other consultants can rely upon. DCDs are required for the following regulated designs: Architectural / building design, Structural, Façade, Geotechnical, Vertical transportation, Mechanical, Mechanical or fire systems – mechanical smoke control, Fire safety engineering, Fire safety systems, Drainage, and Electrical as described in Schedule 1 of the D&BP Regulation 2021. However, the critical missing piece in that BCA Consultants are not required to issue a DCD at the moment. As BCA compliance is the bedrock underpins the entire design, it is imperative that BCA Consultants are required to issue a DCD. This will ensure that there is a record of key fundamental BCA compliance items that impact all other disciplines. This will greatly speed up the issue of DCDs for regulated designs.
Lastly, a new Design Practitioners' Handbook on issuing DCDs has been published by the Department of Fair Trading. All project stakeholders should be made aware of this Practice Guide and information sessions would be welcomed.