Design and Building Practitioners Act – An Introduction

Coming into practice from the 1st July 2021, the Design and Building Practitioner’s Act 2020 (DBP Act) and Legislation 2021 has a significant and positive impact on new construction and remediation projects associated with class 2 buildings. Class 2 buildings can be entirely or partly (mixed-use) multi-storey, multi-unit residential apartment buildings and include:

• Single Storey Attached Dwellings with Common Basement Carpark
• Dwelling with Granny Flat Vertically Attached
• Multi-Residential Apartment Buildings
• Apartment buildings with a commercial carpark below.
• Apartment buildings with retail below.
• Apartment buildings with some commercial floorspace within the property.

The intent of this post is to provide information to our stakeholders who are typically the Strata Managers and Owners Corporations of Strata Plans for whom we act as Project Managers and/or Superintendents from Design and Planning to Tender Management and then Construction Phases of construction and remedial projects.

At Valen we celebrate and support these changes. We look forward to a future where Valen and our clients can reference such tools and industry scoring mechanisms when selecting consultants and contractors for contract works.

What has changed?

The time of construction projects managed by the builder/contractor in a design and construct (D&C) fashion without a detailed up front design is over in NSW.

In future all design and building practitioners will be registered, approved and scored on their performance publicly giving potential customers (i.e. Strata Plans and their representatives) better transparency on performance of different contractors and an ability to work out the value of the offering from each respective tendering contractor.

Projects will also need to go through a detailed design stage by certified design practitioners and all designs must be lodged and builders/contractors must obtain a principle compliance declaration from the principle design practitioner, or a design compliance declaration for each respective design if there are multiple design practitioners acting independently on different scopes of works for different service categories.

All regulated designs will be lodged into the NSW Planning Portal including variations to design and all declarations by design practitioners and building practitioners on completion of their respective scopes.

Principle Certifiers must not issue certificates of commencement i.e. Construction Certificate (CC) or Complying Development Certificate (CDC) or Occupation Certificates (OCs) without these documents.

The office of the building commissioner will hold new powers to perform inspections, audits and stop work as deemed necessary to ensure that any potential compliance breaches are eliminated before it is too late.

How will it affect your current or upcoming project?

The short-term impact on projects will be extended pre-construction periods while the the design is more comprehensively considered, planned and detailed. There will be additional up front costs for design and an additional timeframe required to allow design coordination between the design team and relevant client and statutory stakeholders.

The reality however is that this expenditure may be the best money spent on a project to lock in a formal and approved scope of works from commencement of a project and then review that the construction has been correctly executed at key stages of work.

The aim is to ensure the design documentation has adequately and accurately detailed the project scope, thus providing the construction stage stakeholders with confidence in the expected project outcomes, which we believe will have a positive impact on program, budget and ultimately quality of the completed project.

Further benefits to the DBP Act are plentiful and some key items are listed below:

• The design phase will add greater value and lock in the scope more formally and allow less scope for variations and delays once construction commences.
• Designers and Builders/Contractors will need to be registered and vetted by a further formal process which will drive improvements in performance.
• Defect claims will be more easily managed and justified due to the formalised design processes and the defect claims period will likely be extended.
• Roles and expectations will be clearly laid out with a clear separation between the design and construction components of work with unbiased design and construction roles separated in the best interest of the end consumer.
• The long term intention of the DBP Act and associated rule changes is to provide the insurance industry with a more transparent vision of the marketplace and be able to engage more competitively in the space which will ensure insurances are available and drive down costs for end consumers i.e. Strata Plans.

How Valen adds value, simplifies and de-risks your project:

Now that there is a clear delineation between designers and builders/contractors there is an ever more present requirement for suitably qualified and experienced Design Coordination Project Managers to assist with the different stages of design coordination and construction management.

As the client you should consider the risks of having the Lead Design Coordination Project Manager undertaking any part of the design of your project, this could include the architect, engineer or any other designer/consultant who may offer to perform both roles. This ensures no conflict of interest that might come to bear at later stages in the project lifecycle, and that may impact negatively on the construction stage stakeholder relationships.

Valen Project Services break our Client-Side Engagement on Projects down into three stages:

1. Design Coordination & Planning:

Design Coordination:

This element is going to be significantly more involved with the rule changes.

Valen can assist Owners Corporations by:

• Tendering for consultants to provide all designs required for the project.
• Coordinating the design where multiple consultant firms are involved and ensuring that all relevant stakeholders have the opportunity to review, collaborate on and approve of the relevant design.
• Finalise documentation and confirm lodgement by respective accredited designers ready to seek Expressions of Interest from Builders/Contractors.

Planning:

Now that the design phase must be undertaken first and a compliant design is required prior to commencement, the planning element will change including the requirement by all design practitioners to lodge their design in the NSW Planning Portal along with design compliance declarations.

Valen undertakes a detailed review of the design requirements in conjunction with the selected designers to ensure that all facets of design are accounted for, designed by accredited individuals and lodged ready for construction.

2. Tender Management & Analysis:

Selecting a reputable and capable builder or contractor for your project is probably the most influencing component of any construction project. The Design and Building Practitioners Act changes will not come into play on this element until the rating system being established by the Department of Fair Trading is finalised and populated with sufficient data to be able to rank contractors accordingly.

At such a time it will assist owners to select reputable builders or contractors at the tender phase, however, currently there is no easy way to confirm their capacities or suitability to a project. Valen will select known industry specialists to tender for works and run rigorous tender processes with both quantitative (cost & timelines) and qualitative (methodology, scope inclusions & exclusions, staging plans, consideration for key stakeholders, resource allocations and more) assessments of all tenderers.

While we do not select the builder/contractor for you, we capture and provide information in our tender evaluation reports which make it easy to draw comparisons and understand key factors, inclusions and exclusions when selecting the builder/contractor for your project.

3. Construction and Head Contractor Management:

The Design and Building Practitioners Act rule changes are in place and the office of Fair Trading and the Building Commissioner’s team will have significant powers to assist you if there are deviations from design and compliance in your project.

Changes will also include a more involved engineering and design team to be able to provide sign off on the works to confirm they are constructed as per design and compliant to BCA and Australian Standards.

Valen will coordinate with all engineers from the outset and ensure that suitable allowances, hold points and inspection and testing plans and schedules are incorporated into the project deliverables and importantly financial allowances are budgeted for all required engagements and inspections to ensure that the Owner’s Corporation can be confident that the delivered contract works meet the industry performance requirements.

Other Helpful Information on the Design and Building Practitioners Act:

Videos from NSW Fair Trading

The below videos are more angled towards the construction industry but explain the requirements for the designers and builders to comply with the new rules.

Useful Links and Further Reading relating Design and Building Practitioners Act

Building Commissioner’s Website – DBP Act Information

Guide for Design Practitioners

Design and Building Practitioners Act