Building stronger foundations – 10 key points for architects and designers about the proposed reforms to the regulation of the building and construction sector

The NSW Government has now (on 26 June 2019) released a discussion paper entitled "Building Stronger Foundations: Implementing the NSW Government Response to the Shergold Weir Building Confidence Report" (the Discussion Paper).  The Discussion Paper responds to some of the recommendations of the
9 February 2018 report ‘Building Confidence: effectiveness of compliance and enforcement systems for the building and construction industry across Australia’ prepared by Professor Peter Shergold AC and Ms Bronwyn Weir.


This article looks at the proposed reforms considered by the Discussion Paper and the likely impacts that the proposed reforms may have on Architects (and other 'building designers').

It is important to note that proposed reforms may change following public consultation and are not yet in force.  Following this consultation, the State Government intends to draft and introduce legislation into NSW Parliament by the end of the year to give effect to the proposed changes in the scheme.  Given the emerging issues identified with a number of large developments in Sydney, including Opal Tower and the Mascot Towers, these reforms are likely to be a priority for the State Government.

1.     It is likely that you are a 'building designer' for the purposes of the reform

The scheme refers to 'building designers' as a term to encompass those who are involved in providing plans and specifications for buildings required to comply with the Building Code of Australia (BCA).  It is envisaged at this stage that architects, builders, building designers, draftspersons, and some categories of engineers could be registered as 'building designers' under the scheme if they are providing relevant services.

2.     You will need to be registered as a 'building designer' to sign off on the BCA compliance of your buildings.

It is proposed that building designers will need to be registered before they can sign off plans and make declarations of BCA compliance.  The proposed requirements for a professional to be registered include completion of an application form and payment of a registration fee (and other regulatory charges), and meeting a number of criteria including that:

  • you are fit and proper to carry out designing work; and
  • you have the necessary qualifications, skills, knowledge or experience required to carry out designing work.

3.     You will be required to have adequate insurance to cover your new obligations as a 'building designer'

It is proposed that there will be requirements as to the minimum insurance required to be held by a registered building designer to protect them where a loss is suffered as a result of negligence or breach of duty.

4.     You will be required to declare that your plans comply with the BCA

The first obligation proposed in the reform is that a building designer will be required to make a statutory declaration that the plans they have drafted comply with the BCA (before the plans are provided to a certifier).  Each practitioner involved in the planning process will be responsible for the portion of work that they contributed to.

The NSW government is currently seeking input from stakeholders through the public consultation process as to the appropriate timing for these sign-offs to occur, however it is likely that this will occur around prior to the issue of a Construction Certificate or Complying Development Certificate.

5.     Modification to plans may require re-declaration of compliance with the BCA

For modifications to development, it is unclear at this stage to what extent a variation will need to be re-declared by a building designer.  The discussion paper suggests that this may be accommodated by:
  1. requiring variations to plans to be statutorily declared during and after the CC/CDC stage, but before work is undertaken; or
  2. any CC or CDC being issued subject to conditions which require certain plan alterations to be submitted to the certifier and for the certifier to determine:
    1. whether the modification is BCA compliant; and
    2. whether it requires a modification application to be lodged to the Council.

6.     This reform may trigger review of the modification application process under the Environmental Planning and Assessment Act 1979 (NSW)

This strategy behind re-declaration of plans that have been modified is proposed to provide flexibility to developers with a formalised process for regularising small-scale modifications to development, and to ensure such changes are being reported back to Councils.

The discussion paper flags the question of whether amendments will be necessary to the planning framework around modification applications under s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) to make the process easier and ensure the documentation held by Councils consistently reflects what has been built.

7.     You will be required to declare that any Performance Solutions incorporated into you design comply with the BCA

It is proposed that building designers will also be required to explain how any aspect of a building that relies on a performance solution (rather than meeting deemed-to-satisfy provisions) complies with the BCA.  This is already a requirement for performance solutions for fire-safety components of a building.

The discussion paper proposes that this could be achieved by requiring building designers to submit a declaration endorsing any performance solution used as compliant with the BCA.  It may be that these declarations will need to be accompanied by a report to assist certifiers in considering and signing off on such performance solutions.

8.     Builders will also need to make declarations that buildings have been constructed according to the plans

To accompany the suite of changes and obligations imposed on 'building designers', it is proposed that there will also be a new requirement on builders to declare that a building as constructed complies with declared and BCA compliant plans, being those to which consent has been granted.  It is unclear as yet how this will be achieved where plans are varied during the course of construction, and where multiple contractors are engaged to carry out construction of larger development.

9.     A Building Commissioner will oversee compliance with the declaration requirements

It is proposed that declared plans will need to be lodged with a Building Commissioner.  The Building Commissioner will have the power to conduct audits and ensure compliance with the scheme.

10.  A regulator will have new powers to ensure compliance with the Regulation and enforcement

It is proposed that the regulator will have the power to grant, refuse, suspend, cancel and vary registration of building designers, and will be given a range of enforcement powers to ensure compliance with the scheme.  Building designers may seek the administrative review of decisions of the regulator in the NSW Civil and Administrative Tribunal.  Authorised officers will also be given powers for investigating, monitoring and enforcing compliance with the scheme.

The Discussion Paper is open to public consultation until 24 July 2019. McCabe Curwood is experienced in advising its clients in relation to changes and developments in the law and can help you formulate a submission to the NSW Government. Get in contact today.


Katharine Huxley Associate