In a recent decision handed down by the NSW Court of Appeal it has been confirmed that the duty of care provisions introduced under Part 4 of the Design and Building Practitioners Act 2020 (NSW) (DBP Act) on 10 June 2020, in particular a claim under section 37 of the DBP Act, is not limited in application to class 2 buildings but applies to all classes of buildings.
The appeal was brought by Daniel Roberts, determined to be the representative of DSD Buildings Pty Ltd, which negotiated the building contract with Goodwin Street Developments Pty Ltd who was named as the Second Defendant in Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624. The appeal was dismissed.
This decision confirms a broad interpretation of these statutory provisions in its application to construction works, whilst also providing guidance on the scope of its application. The appeal confirmed that a duty to exercise reasonable care to avoid economic loss caused by defects contained under s 37 of the DBP Act applies to all building work, whether residential or commercial, as long as it related to the construction of a 'building' defined under the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).
The EPA Act s 1.4 defines 'building' as including 'part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993'. If the structure is not classified as a 'building', or the work undertaken relates to matters separate to the construction of a 'building', the duty of care does not apply.
Part 4 of the DBP Act therefore relies on a different definition of 'building work' than the remainder of the Act.
The appeal noted that the duty of care can apply to any 'person' engaging in construction work, including employees, directors, and agents of a company that entered into a design and/or construction contract, even if they did not themselves enter into the contract or were mere employees. See our article.
A copy of this decision can be found at: https://www.caselaw.nsw.gov.au/decision/1862436ae3dbe5efd35f1108
New South Wales Legislation (Building Classes) Regulation 2023
The New South Wales Legislation (Building Classes) Regulation 2023 has been published with some amendments to come into effect immediately, whereas on the most part other amendments come into effect from 3 July 2023.
The primary purpose of the new regulation is to expand the Design and Building Practitioners Act 2020 (NSW) (the DBP Act) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (the RAB Act) to include class 3 and 9c buildings in its application by amendment of the Design and Building Practitioner Regulation 2021 (DBP Regulation) from 3 July 2023. Class 3 and 9c buildings include aged care, boarding houses, hostels, mixed use buildings if they contain a class 3 or 9c part.
Of importance for remedial designers and builders is that initially the amendments do not apply to building work in relation to a class 3 or 9c building for the making of alterations or additions to the building or the repair renovation or protective treatment of the building, with the addition of clause 13(1)(m) in the DBP Regulation. However, note that this exclusion is to be repealed on 1 July 2024. Transitional provisions for class 3 or 9c building work are included under a new Division 3B and include some exemptions for regulated building work commenced before 3 July 2023 but there is still a requirement to lodge designs on the NSW Portal.
As noted in the Goodwin appeal case above, Part 4 of the DBP Act adopts a different definition of 'building work' in its application. However, the new regulation in section 4(1) amends the definition of building work to add class 3 and 9c buildings, alongside class 2 buildings for the remainder of the DBP Act and the RAB Act provisions.
Effective from 1 July 2023 is an amendment to section 106 of the DBP Act to extend the exemption applicable to building practitioners from the insurance requirements under the DBP Act to 1 July 2024 instead of 1 July 2023.
Some of the further amendments include:
Helen Kowal, Partner
Phone: +61 2 9777 8321
Email: hek@swaab.com.au
Nicholas Hufton, Special Counsel
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
© Mondaq® Ltd 1994 – 2023. All Rights Reserved.
Forgot your password?
Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms
Articles tailored to your interests and optional alerts about important changes
Receive priority invitations to relevant webinars and events
You’ll only need to do it once, and readership information is just for authors and is never sold to third parties.
We need this to enable us to match you with other users from the same organisation. It is also part of the information that we share to our content providers (“Contributors”) who contribute Content for free for your use.
Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.
Recent Comments