Peak bodies of the Australian building industry have released a guide for design practitioners to better navigate recent legislative and regulatory changes aimed at improving building quality and safety in NSW.
The reforms were introduced in response to public concern over building standards in the wake of high profile cladding fire incidents, and more recently the Mascot and Opal Tower structural issues.
Often contract terms seek to extend liabilities of the designer beyond their common law duty of care.
Nicola greyson, consult australia
Consult Australia, Engineers Australia and the Australian Institute of Architects joined forces to develop the walkthrough, primarily aimed at design practitioners in relation to contracts and professional indemnity (PI) insurance.
Under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021, there are multiple new obligations for design practitioners, as well as engineers, builders and others, throughout the lifetime of a building.
“The building reform agenda in NSW encapsulated by the D&BP Act and Regulations will help to ensure buildings are built to the high standard expected by our communities,” Engineers Australia Chief Engineer Jane MacMaster said.
“This guide will assist design practitioners and engineers with their role and obligations in the new regulatory environment.”
Currently the new regulation applies to Class 2 building types, being multi-storey residential apartments, or mixed use blocks with residential components.
“The situation now in NSW is there is a lot of liability associated with getting something wrong,” Consult Australia chief executive Nicola Grayson told The Fifth Estate.
“So it’s really important that the design practitioner thinks very carefully about, firstly making sure they are practising within their area of expertise, and that they are able to discharge their duties of care in order to satisfy the standard of the law.”
The peak body trio supported the intention of the reform package to transform the NSW building sector into a customer centric industry focused on quality construction.
Key aspects of the reforms include:
- design practitioners and engineers will need to be registered to undertake certain services
- regulated designs will need to be prepared by registered design practitioners before construction can begin
- registered design practitioners will need to prepare and lodge design compliance declarations in respect of regulated designs.
- all those involved in the design and build (Class 2) have a duty to exercise reasonable care to avoid economic loss, including manufacturers of building supplies
Designers may be liable for someone else’s poor action
Grayson said while it was important to see those involved in the building process abide by their obligations and deliver what they are responsible for, “often contract terms seek to extend liabilities of the designer beyond their common law duty of care”.
“For example they might try to put in a broad indemnity clause which says the design practitioner will indemnify the client for all loss and damage caused as a result of this project.
“If the designer signs up to that, and somebody during the building phase goes on site and puts down something incorrectly and doesn’t comply with the design and they’re negligent in doing so, despite the fact that the designer had nothing to do with that, potentially they could still be held liable for the fault of that other person.”
Grayson said the intention of the reforms, and the guide, was to ensure every party in the contractual chain was aware of their obligations, was capable of fulfilling them, and able to control and manage the risks they take on.
“That’s what we want, rather than the ‘passing the buck’ approach which has been some of the mischief that’s been happening in the past.”