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Building work captured under new Design and Practitioners laws (NSW)

The new design and practitioners laws took effect on July 1 2021 and HIA has been receiving numerous enquiries on what work is captured under the new laws. 

What types of building are captured?

Under the legislation all Class 2 building projects will need to comply with the new requirements. 

This includes Class 2 projects of all types:

  • Apartment buildings of any size
  • Certain low-rise manor house developments
  • Mixed-use developments containing Class 2 part (the regulations apply to all parts of the building, not just the Class 2 portion)
  • Certain walk up townhouses, terraces or villas with shared under-storey garage or storage
  • Certain granny flat developments above or below the main occupancy.

Is it just for new builds?

No the new laws do not just apply to new Class 2 buildings. 

Unless the work is exempt development or covered by a specific exclusion, the regulation covers:

  • New constructions
  • Alterations & additions; and 
  • Certain repairs, renovations or protective treatments of regulated elements.

What are the regulated elements?

The legislation defines that certain designs and building elements are regulated. 

The regulated works include:

  • Fire safety systems
  • Waterproofing
  • Building structure
  • Building enclosure
  • Building services; and
  • Any Performance Solution

What applies to the regulated elements?

Certain requirements apply for regulated elements:

  • All designs must be completed and design compliance declarations are required prior to application for construction certificate. Design compliance declarations must be made by registered designers.
  • Building compliance declarations are required prior to applying for occupation certificate. The building compliance declaration must be made by a registered builder.
  • Any variations to regulated elements must be reviewed and declared compliance prior to construction of the varied design.
  • Any engineering work on a Class 2 building must be completed by a registered engineer.

What are the exclusions?

Certain building work on Class 2 building is exempt from the new requirements this includes:

  • Work that is carried out as exempt development.
  • Waterproofing if the work is the result of an alteration to a bathroom, kitchen, laundry or toilet, and it is exempt development and the work agreement relates only to a single dwelling (i.e. a single apartment in a complex).
  • Work that is excluded from being residential building work in the Home Building Act.
  • Work carried out where a party to the contract received a HomeBuilder Grant for the work.
  • Work carried out under an order from the council or carried out in compliance with a development control order. (This does not include repairing, rectifying, or replacing the external cladding of a building).
  • Work that is exempted from a provision of the Building Code of Australia under the Environmental Planning and Assessment Regulation 2000.
  • Electrical and plumbing performance solutions, unless associated with another regulated building element

Can I still make repairs and maintenance without being registered?

The rules around repair and maintenance are slightly complicated.

There are certain repair, renovation and protective treatment works that are excluded, such as:

  • Work for repair, renovation or protective treatment involving a mechanical, plumbing or electrical service, carried out for the purposes of maintaining a component of a system in the building.
  • Work for repair, renovation or protective treatment of a fire safety system, for the purposes of maintaining a component of the fire safety system

However the regulations will capture the work if:

  • It relates to a load-bearing component that is essential to the stability of a building; or
  • Is performed on a component that by itself is an entire system

Example—

If the buildings fire safety system includes mechanical ducted smoke control together with sprinklers and other elements, the replacement of a fan within the smoke control system would be excluded from the regulation.

However replacing the entire mechanical ducted system is not excluded - it would constitute the replacement of a component of the overall fire safety system that is itself an entire system.

For further information HIA members can contact HIA’s Building Services team on 1300 650 620 or hia_technical@hia.com.au.