Building Legislation Amendment (Building Classes) Regulation 2023

Carrie Metcalfe  |  Andrew Hales  |  Jeanette Barbaro

Takeouts

On 24 February 2023 the NSW Government published a new Regulation that will impact the construction and property sector. The Regulation impacts buildings containing a class 2, 3 or 9c part.

The most significant change is that from 3 July 2023, the Design and Building Practitioners Act 2020 (NSW) (DBP Act) and Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act) will apply to buildings containing a class 3 or 9c part – that covers boarding houses, hostels and aged care buildings, among others.

Developers, builders and consultants working on class 3 or 9c buildings will need to understand how the transitional arrangements apply to projects commenced prior to 3 July 2023.

The new Regulation contains various other amendments, including an extension of the grace period for builders to procure insurance in accordance with the DBP Act, to 30 June 2024.

Summary of key changes

Since 2020, the DBP Act and RAB Act have applied to buildings containing a class 2 part, being residential apartment buildings.  Those Acts are a key component of the NSW Government’s building industry reforms.  The new Regulation amends provisions relating to class 2 buildings and extends the reforms to buildings containing a class 3 or 9c part.

All developers, owners, builders, consultants, financiers and certifiers involved in class 3 or 9c buildings must familiarise themselves with their obligations under the DBP Act and RAB Act and take steps now to adjust their procurement processes.

Class 3 and 9c buildings – DBP Act

• From 3 July 2023, the DBP Act applies to work on buildings containing a class 3 or 9c part.  That covers boarding houses, hostels and aged care, among others, and includes mixed use buildings if they contain a class 3 or 9c part.
  
• All people working class 3 and 9c buildings should familiarise themselves with the requirements of the DBP Act. See our prior articles here and here.
  
• There is a grace period for work involving alterations, additions, repair, renovation or protective treatment of buildings containing a class 3 or 9c part where no part of the building is class 2.  For that work, the DBP Act applies from 1 July 2024.
  
• The transitional provisions include that:
  • if building work is the subject of a construction certificate or CDC and commenced before 3 July 2023, then the work is exempt from the registration and declaration regime in the DBP Act, but the builder must lodge copies of all designs on the NSW Planning Portal before an occupation certificate is applied for;
  • if design work was prepared before 3 July 2023, there is a construction certificate or CDC in place, and the building work is to commence between 2 July 2023 and 3 July 2024 – if the designer is not eligible to be registered then another designer can certify compliance with the Building Code of Australia in some circumstances;
  • if work does not require a CDC, construction certificate, development application and occupation certificate, and was carried out before 3 July 2023, but the project is not complete, then the work is exempt from the registration and declaration regime in the DBP Act, but the builder must lodge copies of all designs on the NSW Planning Portal before completion of the project.
    
• In relation to Sydney Metro building work, there are amendments to align with the above.

Class 3 and 9c buildings – RAB Act

• From 3 July 2023, the RAB Act applies to buildings containing a class 3 or 9c part.  That includes mixed use buildings if they contain a class 3 or 9c part.
  
• All people working on class 3 and 9c buildings should familiarise themselves with the requirements of the RAB Act. See our overview here.
  
• There are no transitional provisions in relation to the RAB Act.  That means that from 3 July 2023 all provisions of the RAB Act will apply to buildings containing a class 3 or 9c part.

Builder insurance requirements

• Builders are exempt from the insurance requirements under the DBP Act until 1 July 2024 (extended from 1 July 2023).

Registration changes

• The new Regulation amends some of the fees payable for registration under the DBP Act.

Other changes commencing 24 February 2023

• The grounds for taking disciplinary action against a registered practitioner are extended to include where the person is not a fit and proper person to hold a registration.
  
• Minor changes to alternative pathways for registration requirements under the DBP Act.