New South Wales: Design and Building Practitioners Act 2020 (NSW)

Design and Building Practitioners Act 2020 No 7 An Act with respect to the registration of design practitioners, principal design practitioners, professional engineers, specialist practitioners and other building practitioners, compliance declarations and a duty of care; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Design and Building Practitioners Act 2020. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by subsections (2) and (3). (2) Part 2, Division 1 of Part 3 and Parts 5–9 and clauses 2–4 of Schedule 1 commence on 1 July 2021. (3) Division 2 of Part 3 commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Building Code of Australia has the same meaning as in the Environmental Planning and Assessment Act 1979. building compliance declaration—see section 8(3). building element—see section 6. building practitioner—see section 7(1). building work—see section 4. class of building means a building of that class as recognised by the Building Code of Australia. close associate has the same meaning as in the Home Building Act 1989. compliance declaration means a design compliance declaration, principal compliance declaration or building compliance declaration. Department means the department in which this Act is administered. design includes a plan or specification or a report detailing a design. design compliance declaration—see section 8(1). design practitioner means a person who prepares regulated designs. function includes a power, authority or duty, and exercise a function includes perform a duty. occupation certificate means an occupation certificate issued under the Environmental Planning and Assessment Act 1979. performance solution has the same meaning as in the Building Code of Australia. practitioner means a design practitioner, principal design practitioner, professional engineer, specialist practitioner or building practitioner. preparing or varying a regulated design or other design means— (a) actually preparing or varying the design, or (b) coordinating or supervising the preparation or variation of the design. principal compliance declaration—see section 8(2). principal contractor—see section 7(2). principal design practitioner means a person who coordinates the provision of design compliance declarations for the purposes of building work done by a building practitioner. professional engineer means a person who carries out professional engineering work in a prescribed area of engineering within the meaning of section 32. professional engineering work—see section 31. register as a registered practitioner includes renew or restore registration. registered body corporate means a registered practitioner that is a body corporate. registered building practitioner means a person who is registered as a building practitioner under this Act or recognised as a building practitioner under this Act. registered design practitioner means a person who is registered as a design practitioner under this Act or recognised as a design practitioner under this Act. registered practitioner means a registered design practitioner, registered principal design practitioner, registered professional engineer, registered specialist practitioner or a registered building practitioner. registered principal design practitioner means a person who is registered as a principal design practitioner under this Act or recognised as a principal design practitioner under this Act. registered professional engineer means a person who is registered as a professional engineer under this Act or recognised as a professional engineer under this Act. registered specialist practitioner means a person who is registered as a specialist practitioner under this Act or recognised as a specialist practitioner under this Act. registration means registration as a registered practitioner and includes recognition as a practitioner under this Act. regulated design—see section 5. relevant authorisation means any of the following— (a) registration as an architect under the Architects Act 2003, (b) registration as a certifier, or accreditation to carry out regulated work, under the Building and Development Certifiers Act 2018, (c) a contractor licence, endorsed contractor licence, supervisor certificate, tradesperson certificate or owner-builder permit under the Home Building Act 1989, (d) for a person registered under this Act in one class of registration—registration in another class, (e) an authorisation or qualification, however described, that— (i) is issued under the laws of another jurisdiction, and (ii) authorises the holder to carry out work that is substantially similar to the work authorised by an authorisation specified in paragraph (a), (b), (c) or (d), (f) another authorisation or qualification, however described, prescribed by the regulations. Secretary means the Secretary of the Department. specialist practitioner means a person who carries out specialist work. specialist work—see section 34. stop work order—see section 89. Tribunal means the Civil and Administrative Tribunal. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Building work (1) For the purposes of this Act, building work means work involved in, or involved in coordinating or supervising work involved in, one or more of the following— (a) the construction of a building of a class or type prescribed by the regulations for the purposes of this definition, (b) the making of alterations or additions to a building of that class or type, (c) the repair, renovation or protective treatment of a building of that class or type. (2) The regulations may— (a) prescribe additional work that is building work for the purposes of this Act, and (b) exclude work from being building work for the purposes of this Act. (3) In this Act, a reference to a building (including a building as defined in Part 4) includes a reference to part of a building (including a building element). 5 Regulated designs (1) For the purposes of this Act, regulated design means— (a) a design that is prepared for a building element for building work, or (b) a design that is prepared for a performance solution for building work (including a building element), or (c) any other design of a class prescribed by the regulations that is prepared for building work. (2) The regulations may prescribe the form and content of regulated designs or regulated designs belonging to a particular class. (3) The Minister may, by order published in the Gazette, specify particulars that are additional to those (if any) prescribed by the regulations for regulated designs or regulated designs belonging to a particular class. (4) An order under subsection (3) is to be made available on the website of the Department as soon as practicable after it is published in the Gazette. 6 Building elements (1) For the purposes of this Act, building element means any of the following— (a) the fire safety systems for a building within the meaning of the Building Code of Australia, (b) waterproofing, (c) an internal or external load-bearing component of a building that is essential to the stability of the building, or a part of it (including but not limited to in-ground and other foundations and footings, floors, walls, roofs, columns and beams), (d) a component of a building that is part of the building enclosure, (e) those aspects of the mechanical, plumbing and electrical services for a building that are required to achieve compliance with the Building Code of Australia, (f) other things prescribed by the regulations for the purposes of this section. (2) The regulations may exclude things from being building elements for the purposes of this Act. (3) In this section— above grade wall means a wall above the level of the ground surrounding a building. below grade wall means a wall below the level of the ground surrounding a building. building enclosure means the part of the building that physically separates the interior environment of the building from the exterior environment, including roof systems, above grade and below grade walls (including windows and doors). 7 Building practitioners (1) In this Act, building practitioner means— (a) a person who agrees under a contract or other arrangement to do building work, or (b) if more than one person agrees to do building work, a person who is the principal contractor for the work. (2) In this Act, principal contractor means a person who agrees to do building work under a contract or arrangement (the head contract) and for whom work is to be carried out under one or more other contracts or arrangements as part of or incidental to the work carried out under the head contract. (3) In this Act, a building practitioner is taken to do building work if the practitioner— (a) agrees to do building work under a contract or other arrangement, or (b) is the principal contractor for the work. (4) The regulations may— (a) prescribe additional persons as building practitioners for the purposes of this Act, and (b) exclude persons from being building practitioners for the purposes of this Act, and (c) prescribe circumstances in which a person prescribed for the purposes of paragraph (a) is taken to do building work. 8 Compliance declarations (1) In this Act, design compliance declaration means a declaration in the form and manner prescribed by the regulations as to the following— (a) whether or not a regulated design prepared for building work complies with the requirements of the Building Code of Australia, (b) whether or not the design complies with other applicable requirements prescribed by the regulations for the purposes of this subsection, (c) whether or not other standards, codes or requirements have been applied in preparing the design, (d) any other matter prescribed by the regulations. (2) In this Act, principal compliance declaration means a declaration in the form and manner prescribed by the regulations as to the following— (a) whether or not a design compliance declaration has been provided in accordance with this Act for each regulated design prepared for the building work, (b) whether or not each design compliance declaration has been provided by a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, (c) any other matter prescribed by the regulations. (3) In this Act, building compliance declaration means a declaration made in the form and manner prescribed by the regulations as to the following— (a) whether or not the building work complies with the requirements of the Building Code of Australia, (b) whether or not the building work complies with other applicable requirements prescribed by the regulations for the purposes of this subsection, (c) if the building work does not comply with the requirements referred to in paragraph (a) or (b), the steps required to be taken to ensure compliance, (d) for a regulated design used for the building work, whether or not the design was prepared by a registered design practitioner and the building work was built in accordance with the design, (e) whether or not a design compliance declaration has been obtained in relation to regulated designs used for the building work, (f) whether or not a registered principal design practitioner was appointed in relation to the building work, (g) whether or not a principal compliance declaration was obtained in relation to the regulated designs and design compliance declarations relating to the building work, (h) any other matter prescribed by the regulations. Part 2 Regulated designs and building work Division 1 Obligations of design practitioners 9 Compliance declarations by registered design practitioners (1) A registered design practitioner must provide a design compliance declaration to a person if— (a) the practitioner provides the person with a regulated design prepared by the practitioner, and (b) the design is in a form suitable for use by that person or another person in connection with building work. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (2) A registered design practitioner must provide a further design compliance declaration to a person if— (a) the practitioner or another practitioner has previously provided a design compliance declaration for a regulated design prepared by either practitioner in connection with building work, and (b) the practitioner provides the person with the regulated design as varied by the practitioner in a form suitable for use in connection with the building work before the building work is commenced. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (3) A registered design practitioner must provide a further design compliance declaration to a person if— (a) the practitioner or another practitioner has previously provided a design compliance declaration for a regulated design prepared by either practitioner relating to a building element or performance solution in connection with building work, and (b) the practitioner provides the person with the regulated design as varied by the practitioner in a form suitable for use relating to the building element or performance solution after the building work is commenced. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (4) A registered design practitioner who is required by subsection (1), (2) or (3) to provide a design compliance declaration to a person must also provide a copy of the declaration to the registered principal design practitioner (if any) appointed in relation to the building work to which the declaration relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (5) A registered design practitioner must provide a design compliance declaration in other circumstances prescribed by the regulations. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (6) Without limiting subsection (5), a regulation made under that subsection may require regulated designs and design compliance declarations to be lodged electronically through an internet site or an application established by or on behalf of the Department. (7) A person must not make a design compliance declaration that the person knows to be false or misleading in a material particular. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (8) The regulations may require a design compliance declaration provided under this section to be accompanied by other documents prescribed by the regulations. 10 Declarations by unregistered persons A person must not make a design compliance declaration unless— (a) the person is a registered design practitioner, and (b) the person's registration authorises the person to provide a declaration as to the matters to which the declaration relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). 11 Registered design practitioners to be indemnified (1) A registered design practitioner must not— (a) provide a design compliance declaration or prepare a regulated design, or (b) hold out that the practitioner is adequately insured with respect to the provision of the declaration or that work, unless the practitioner is adequately insured with respect to the declaration and work. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (2) For the purposes of this section, a registered design practitioner is adequately insured with respect to a declaration and work if the practitioner— (a) is indemnified by insurance that complies with the regulations against any liability to which the practitioner may become subject as a result of providing the declaration or doing the work, or (b) is part of some other arrangement approved by the regulations that provides indemnity against the liability. (3) It is a condition of registration that a registered design practitioner must provide to the Secretary, in the time specified by the Secretary, information that the Secretary may require to satisfy the Secretary that the practitioner is adequately insured in accordance with this section. Division 2 Obligations of principal design practitioners 12 Compliance declarations by registered principal design practitioners (1) A registered principal design practitioner appointed in relation to building work must ensure that— (a) a design compliance declaration has been provided in accordance with section 9 for each regulated design prepared for the building work, and (b) each declaration has been provided by a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (2) A registered principal design practitioner appointed in relation to building work must provide a principal compliance declaration to the persons, and in the circumstances, prescribed by the regulations. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (3) Without limiting subsection (2), a regulation made under that subsection may require regulated designs and principal compliance declarations to be lodged electronically through an internet site or an application established by or on behalf of the Department. (4) A person must not make a principal compliance declaration that the person knows to be false or misleading in a material particular. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (5) The regulations may require a principal compliance declaration provided under this section to be accompanied by other documents prescribed by the regulations. 13 Declarations by unregistered persons A person must not make a principal compliance declaration unless— (a) the person is a registered principal design practitioner, and (b) the person's registration authorises the person to provide a declaration as to the matters to which the declaration relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). 14 Registered principal design practitioners to be indemnified (1) A registered principal design practitioner must not— (a) provide a principal compliance declaration or do other work for the purposes of this Act, or (b) hold out that the practitioner is adequately insured with respect to the provision of the declaration or that work, unless the practitioner is adequately insured with respect to the declaration and work. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (2) For the purposes of this section, a registered principal design practitioner is adequately insured with respect to a declaration and work if the practitioner— (a) is indemnified by insurance that complies with the regulations against any liability to which the practitioner may become subject as a result of providing the declaration or doing the work, or (b) is part of some other arrangement approved by the regulations that provides indemnity against the liability. (3) It is a condition of registration that a registered principal design practitioner must provide to the Secretary, in the time specified by the Secretary, information that the Secretary may require to satisfy the Secretary that the practitioner is adequately insured in accordance with this section. Division 3 Obligations of building practitioners 15 Provision of relevant documents to Secretary (1) A building practitioner who does building work must ensure that the relevant documents for the building work are provided to the Secretary no later than 90 days after the occupation certificate is issued for the building or part of the building to which the building work relates. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (2) The regulations may make provision with respect to the manner and form in which a relevant document is to be provided to the Secretary. (3) Without limiting subsection (2), a regulation made under that subsection may require relevant documents to be lodged electronically through an internet site or an application established by or on behalf of the Department. (4) In this section— relevant document means— (a) each regulated design for which a design compliance declaration has been provided that reflects the building work that was carried out, and (b) any other documents (including designs) that relate to the building work and are prescribed by the regulations. 16 Notice of application for occupation certificate (1) A person must, before making an application for an occupation certificate for a building to which building work relates, give written notice to each registered building practitioner who did the building work of the intention to apply for the certificate. (2) A person must, after making an application for an occupation certificate for a building to which building work relates, give written notice to each registered building practitioner who did the building work of the making of the application. (3) The notices under subsections (1) and (2) must be given within the periods prescribed by the regulations for the purposes of this section. (4) A person who fails to comply with this section is guilty of an offence. Maximum penalty—200 penalty units. 17 Compliance declarations by registered building practitioners (1) A registered building practitioner must provide a building compliance declaration for building work, contractor document and other required documents to a person for whom the practitioner does the building work before an application is made for an occupation certificate for the building to which the work relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (2) A registered building practitioner must provide a building compliance declaration, contractor document or other required document in other circumstances prescribed by the regulations. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (3) Without limiting subsection (2), a regulation made under that subsection may require building compliance declarations, contractor documents and other required documents to be lodged electronically through an internet site or an application established by or on behalf of the Department. (4) A person must not make a building compliance declaration that the person knows to be false or misleading in a material particular. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (5) A person who is provided with a building compliance declaration under subsection (1) must provide the declaration to the principal certifier who is responsible for issuing an occupation certificate for the building work before or when the application for the certificate is made. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (6) For the purposes of this section— contractor document means the following— (a) a list of persons who have agreed under a contract or arrangement with the registered building practitioner to do any of the building work, (b) a list of any other persons prescribed by the regulations who have done building work on the building, (c) a list of the work done by each of the persons referred to in paragraphs (a) and (b) in relation to the building work, (d) copies of final designs used for the building work that are not regulated designs and are designs of a class prescribed by the regulations for the purposes of this paragraph, (e) other documents prescribed by the regulations. required document means a document prescribed by the regulations as a document that is required to accompany a building compliance declaration provided under this section. 18 Building practitioners must ensure compliance with declaration obligations A building practitioner who does building work must take all reasonable steps to ensure that— (a) each regulated design for the building work is prepared by a registered design practitioner, and (b) a design compliance declaration is obtained for those designs from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and (c) if a principal design practitioner has been appointed in relation to the building work, a principal compliance declaration is obtained for all of those designs from a registered principal design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). 19 Designs and design compliance declarations to be obtained A building practitioner must not, except with reasonable excuse, carry out any part of building work for which a regulated design is to be used unless— (a) the practitioner has obtained a design from a registered design practitioner for the work and a design compliance declaration for the design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and (b) the declaration states that the design complies with the requirements of the Building Code of Australia and other applicable requirements prescribed for the purposes of section 8(1). Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). 20 Variations after building work commences (1) A building practitioner who does building work must take all reasonable steps to ensure that, if the building work (other than in relation to a building element or performance solution) is varied after commencement of the work from a regulated design for the work, the variation is recorded in the form and manner prescribed by the regulations for the purposes of this section. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). (2) A building practitioner who does building work must take all reasonable steps to ensure that, if the building work (in relation to a building element or performance solution) is to be varied from a regulated design for the building element or performance solution, before the varied building work commences— (a) a design with the variation is prepared by a registered design practitioner, and (b) the registered design practitioner is given (or otherwise has access to in the manner prescribed by the regulations) any of the following that are relevant to the provision, by the registered design practitioner, of a design compliance declaration for the varied design— (i) regulated designs, (ii) design compliance declarations, (iii) principal compliance declarations, and (c) a design compliance declaration is obtained for the varied design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and (d) if a principal design practitioner has been appointed in relation to the building work, a principal compliance declaration is obtained that includes the varied design. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). (3) A building practitioner who does building work must take all reasonable steps to ensure that, if the work is to be varied so as to require a new building element or performance solution for which a regulated design is required, before the varied building work commences— (a) a design for the building element or performance solution is prepared by a registered design practitioner, and (b) the registered design practitioner is given (or otherwise has access to in the manner prescribed by the regulations) any of the following that are relevant to the provision, by the registered design practitioner, of a design compliance declaration for the design— (i) regulated designs, (ii) design compliance declarations, (iii) principal compliance declarations, and (c) a design compliance declaration is obtained for the design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and (d) if a principal design practitioner has been appointed in relation to the building work, a principal compliance declaration is obtained that includes the design. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). 21 Requirements for building elements and performance solutions A building practitioner who does building work must take all reasonable steps to ensure that building work relating to a building element or performance solution for which a regulated design is to be used is carried out in accordance with a design for which a design compliance declaration has been obtained from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). 22 Obligations relating to Building Code of Australia (1) A building practitioner who does building work must take all reasonable steps to ensure that the building work, or any part of that work, complies with the requirements of the Building Code of Australia applicable to the work and other requirements applicable to the work prescribed by the regulations for the purposes of section 8(1). Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). (2) If a building compliance declaration provided by a registered building practitioner sets out steps required to be taken to ensure compliance with the Building Code of Australia and other requirements, the practitioner must give a written notice containing the steps to the principal certifier who is to be responsible for issuing an occupation certificate for the building work. Maximum penalty—3,000 penalty units (in the case of a body corporate) or 1,000 penalty units (in any other case). (3) It is a defence to an offence under subsection (1) if the defendant proves that— (a) the defendant reasonably relied on and built in accordance with a regulated design for which a design compliance declaration was provided by a registered design practitioner stating that the design complied with the applicable requirements of the Building Code of Australia, and other applicable requirements prescribed for the purposes of section 8(1), and (b) the registered design practitioner's registration authorised the practitioner to provide a declaration as to the matters to which the declaration related. 23 Declarations by unregistered persons A person must not make a building compliance declaration unless— (a) the person is a registered building practitioner, and (b) the person's registration authorises the person to provide a declaration as to the matters to which the declaration relates. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). 24 Registered building practitioners to be indemnified (1) A registered building practitioner must not— (a) provide a building compliance declaration or do related building work, or (b) hold out that the practitioner is adequately insured with respect to the provision of the declaration or doing the work, unless the practitioner is adequately insured with respect to the declaration and work. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (2) For the purposes of this section, a registered building practitioner is adequately insured with respect to a declaration and work if the practitioner— (a) is indemnified by insurance that complies with the regulations against any liability to which the practitioner may become subject as a result of providing the declaration or doing the work, or (b) is part of some other arrangement approved by the regulations that provides indemnity against the liability. (3) It is a condition of registration that a registered building practitioner must provide to the Secretary, in the time specified by the Secretary, information that the Secretary may require to satisfy the Secretary that the practitioner is adequately insured in accordance with this section. (4) The regulations may exempt a practitioner or class of practitioner from the operation of this section. Division 4 Miscellaneous 25 Compliance with Building Code of Australia (1) For the purposes of this Act, it is sufficient to comply with the requirements of the Building Code of Australia in respect of a regulated design or building work if the regulated design or building work complies with or satisfies— (a) the applicable governing requirements, and (b) the applicable performance requirements. (2) For the purposes of subsection (1)(b), the applicable performance requirements may be satisfied by— (a) in respect of building work— (i) achieving a performance solution in the manner specified in the Building Code of Australia, or (ii) showing compliance through a deemed-to-satisfy solution in the manner specified in the Building Code of Australia, or (iii) a combination of a performance solution and deemed-to-satisfy solution in the manner specified in the Building Code of Australia, and (b) in respect of a regulated design that includes a performance solution— (i) achieving a performance solution in the manner specified in the Building Code of Australia, or (ii) a combination of a performance solution and deemed-to-satisfy solution in the manner specified in the Building Code of Australia, and (c) in respect of any other regulated design—showing compliance through a deemed-to-satisfy solution in the manner specified in the Building Code of Australia. (3) Despite subsection (1), a regulated design or building work is taken to comply with the requirements of the Building Code of Australia for the purposes of this Act if— (a) the application of the requirements of the Building Code of Australia is modified or displaced by another law (modified requirements) in respect of a regulated design or building work, and (b) the regulated design or building work complies with the modified requirements. (4) In determining whether a variation to a regulated design or building work complies with the Building Code of Australia for the purposes of this Act, the variation must not be considered in isolation but consideration must also be given to the effect of the variation on other aspects of the building work or other regulated designs for the building work. (5) In this section— deemed-to-satisfy solution, governing requirements and performance requirements have the same meanings as in the Building Code of Australia. 26 Requirements for compliance declarations before issue of building certificates The regulations may make provision for or with respect to prohibiting the issue of one or more of the following unless compliance declarations or regulated designs, or both, have been provided to the issuer of the certificate— (a) a complying development certificate under, or a certificate under Part 6 of, the Environmental Planning and Assessment Act 1979, (b) a strata certificate within the meaning of the Strata Schemes Development Act 2015, (c) a certificate of compliance within the meaning of the Swimming Pools Act 1992. 27 Principal certifier must consider compliance declarations (1) A principal certifier who is responsible for issuing an occupation certificate for building work must not determine an application for an occupation certificate unless the principal certifier is satisfied that all compliance declarations required for the building work have been lodged in accordance with this Act. (2) A principal certifier who is responsible for issuing an occupation certificate for building work must consider any instances of non-compliance specified in the compliance declarations provided to the certifier relating to the building work when deciding whether to issue the certificate. (3) Nothing in this section prevents a regulation from being made under section 26 that prohibits the issue of occupation certificates unless compliance declarations are provided. 28 Provision of compliance declarations, and other obligations, of registered body corporates (1) Each director of a registered body corporate must ensure the following with respect to the preparation of regulated designs or building work carried out, or compliance declarations provided, by or on behalf of the body corporate— (a) that the body corporate complies with the requirements of this and other Acts with respect to the preparation of the designs, carrying out of the work or the provision of the declarations, (b) that appropriate management systems are in place to ensure that the body corporate complies with those requirements, (c) that the provision of compliance declarations is allocated to, and carried out by, individuals who are registered practitioners and whose registration authorises them to provide declarations as to the matters to which the declarations relate. Maximum penalty—300 penalty units. (2) A registered body corporate must ensure that a compliance declaration provided on behalf of the body corporate is provided by an individual who is a registered practitioner whose registration authorises the individual to provide the declaration. Maximum penalty—1,000 penalty units. 29 Improper influence with respect to provision of declarations (1) A registered practitioner must not, on an understanding that the practitioner will act otherwise than impartially in the provision of a compliance declaration, seek or accept, or offer or agree to accept, a benefit of any kind, whether on the practitioner's own behalf or on behalf of any other person. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (2) A person must not, on an understanding that a registered practitioner will act otherwise than impartially in the provision of a compliance declaration, give, or offer or agree to give, a benefit of any kind, whether to the practitioner or to any other person. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (3) A person must not unduly influence, or attempt to unduly influence, a registered practitioner for the purpose of prevailing on the practitioner to act otherwise than impartially in the provision of a compliance declaration. Maximum penalty—2,000 penalty units or imprisonment for 2 years, or both. (4) Without limiting subsection (3), a person is taken to have unduly influenced a registered practitioner if the person— (a) alters, or threatens to alter, the position of the practitioner to the practitioner's detriment, or (b) fails to pay, or threatens to fail to pay, remuneration payable to the practitioner. 30 Regulations relating to insurance requirements The regulations may make provision for or with respect to the following for the purposes of insurance requirements under this Act— (a) the persons or bodies who may provide indemnity, (b) the period for which a practitioner is to be indemnified, (c) the amount for which a practitioner is to be indemnified, (d) the risks for which a practitioner is to be indemnified, (e) the nature and terms of any insurance or arrangement, (f) the obligations on a person or body who provides indemnity, (g) the issue of indemnity for liability incurred by a person who was formerly a design practitioner or building practitioner. Part 3 Engineering work and specialist work Division 1 Professional engineering work 31 Professional engineering work (1) For the purposes of this Act, professional engineering work means engineering work that requires, or is based on, the application of engineering principles and data to— (a) a design, or (b) a construction, production, operation or maintenance activity, relating to engineering. (2) However, engineering work is not professional engineering work if— (a) the work is only provided in accordance with a document that states the procedure or criteria for carrying out the work and the work does not require the application of advanced scientifically based calculations, or (b) the engineering work is prescribed by the regulations as not being professional engineering work. (3) For the purposes of this section, engineering work includes engineering services provided by a person. 32 Professional engineering work only carried out by professional engineers (1) A person must not carry out professional engineering work in a prescribed area of engineering unless— (a) the person is a registered professional engineer and the person's registration authorises the person to carry out the professional engineering work, or (b) the person carries out the professional engineering work under the direct supervision of a person referred to in paragraph (a), or (c) the person is authorised by the regulations to carry out the professional engineering work. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). (2) If a person carries out professional engineering work in contravention of subsection (1)— (a) no monetary or other consideration is payable for the carrying out of the professional engineering work, regardless of any contract or arrangement, and (b) an amount paid for the carrying out of the professional engineering work is recoverable as a debt in a court of competent jurisdiction. (3) In this section— prescribed area of engineering means the following— (a) structural engineering, (b) civil engineering, (c) mechanical engineering, (d) fire safety engineering, (e) electrical engineering, (f) an area of engineering prescribed by the regulations. 33 Registered professional engineers to be indemnified (1) A registered professional engineer must not— (a) carry out professional engineering work, or (b) hold out that the engineer is adequately insured with respect to the work, unless the engineer is adequately insured with respect to the work. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). (2) For the purposes of this section, a registered professional engineer is adequately insured with respect to work if the engineer— (a) is indemnified by insurance that complies with the regulations against any liability to which the engineer may become subject as a result of carrying out the work, or (b) is part of some other arrangement approved by the regulations that provides indemnity against the liability. (3) It is a condition of registration that a registered professional engineer must provide to the Secretary, in the time specified by the Secretary, information that the Secretary may require to satisfy the Secretary that the engineer is adequately insured in accordance with this section. Division 2 Specialist work 34 Specialist work For the purposes of this Act, specialist work means— (a) the design, construction, installation or maintenance of a building element, or (b) other work, involving a building element, that is prescribed by the regulations, but does not include work prescribed by the regulations as not being specialist work. 35 Specialist work only carried out by registered specialist practitioner A person must not carry out specialist work unless— (a) the person is a registered specialist practitioner and the person's registration authorises the person to carry out the specialist work, or (b) the person is authorised by the regulations to carry out the specialist work. Maximum penalty—1,500 penalty units (in the case of a body corporate) or 500 penalty units (in any other case). Part 4 Duty of care 36 Definitions (1) In this Part— association means an association within the meaning of the Community Land Management Act 2021. building has the same meaning as it has in the Environmental Planning and Assessment Act 1979. building product has the same meaning as in the Building Products (Safety) Act 2017. building work includes residential building work within the meaning of the Home Building Act 1989. construction work means any of the following— (a) building work, (b) the preparation of regulated designs and other designs for building work, (c) the manufacture or supply of a building product used for building work, (d) supervising, coordinating, project managing or otherwise having substantive control over the carrying out of any work referred to in paragraph (a), (b) or (c). owner of land means any of the following— (a) every person who jointly or severally or at law or in equity is entitled to the land for an estate of freehold, (b) for a lot within a strata scheme, the owner of a lot within the meaning of the Strata Schemes Management Act 2015, (c) for a development lot or neighbourhood lot within a community scheme, the proprietor in relation to the lot within the meaning of the Community Land Management Act 2021, (d) every person who jointly or severally or at law or in equity is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, (e) other persons prescribed by the regulations for the purposes of this definition. owners corporation means an owners corporation constituted under the Strata Schemes Management Act 2015. (2) In this Part, a reference to building work applies only to building work relating to a building within the meaning of this Part. (3) In this Part, a reference to the owner of land includes— (a) if the land is subject to a strata scheme under the Strata Schemes Management Act 2015, the owners corporation constituted for the scheme, or (b) if the land is subject to a community scheme, precinct scheme or neighbourhood scheme within the meaning of the Community Land Management Act 2021, the association for the scheme. (4) In this Part, a reference to a person who carries out construction work includes a reference to a person who manufactures, or is a supplier (within the meaning of the Building Products (Safety) Act 2017) of, a building product used for building work. (5) The regulations may— (a) prescribe additional work that is construction work for the purposes of this Part, and (b) exclude work from being construction work for the purposes of this Part. (6) The regulations may exclude persons from being owners for the purposes of this Part. 37 Extension of duty of care (1) A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects— (a) in or related to a building for which the work is done, and (b) arising from the construction work. (2) The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land. (3) A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law. (4) The duty of care is owed to an owner whether or not the construction work was carried out— (a) under a contract or other arrangement entered into with the owner or another person, or (b) otherwise than under a contract or arrangement. 38 Economic loss—owners corporations and associations (1) An owners corporation or an association is taken to suffer economic loss for the purposes of this Part if the corporation or association bears the cost of rectifying defects (including damage caused by defects) that are the subject of a breach of the duty of care imposed under this Part. (2) The economic loss suffered by an owners corporation or association for the purposes of subsection (1) includes the reasonable costs of providing alternative accommodation where necessary. (3) Subsection (1) applies whether or not the owners corporation or association was the owner of the land when the construction work was carried out. (4) Subsections (1) and (2) do not limit the economic loss for which an owners corporation, association or an owner may claim damages under this Part. 39 Duty must not be delegated A person who owes a duty of care under this Part is not entitled to delegate that duty. 40 No contracting out of Part (1) This Part applies despite any contracts or stipulations to the contrary made after the commencement of this Part. (2) No contract or agreement made or entered into, or amended, after the commencement of this Part operates to annul, vary or exclude a provision of this Part. 41 Relationship with other duties of care and law (1) The provisions of this Part are in addition to duties, statutory warranties or other obligations imposed under the Home Building Act 1989, other Acts or the common law and do not limit the duties, warranties or other obligations imposed under that Act, other Acts or the common law. (2) This Part does not limit damages or other compensation that may be available to a person under another Act or at common law because of a breach of a duty by a person who carries out construction work. (3) This Part is subject to the Civil Liability Act 2002. Note— Actions under this Part are subject to applicable limitation periods established under the Limitation Act 1969, and section 6.20 of the Environmental Planning and Assessment Act 1979 which relates to civil actions relating to certain work. Part 5 Registration of practitioners Division 1 Applications for registration 42 Classes of registration The regulations may make provision for or with respect to classes of registration as a practitioner. 43 Application for registration (1) A person may apply to the Secretary to be registered as a practitioner. Note— The definition of register in section 3(1) includes renewal or restoration of registration. (2) The application must— (a) be in a form approved by the Secretary, and (b) include or be accompanied by information or evidence that the Secretary reasonably requires to assess the application. Note— Part 5A of the Crimes Act 1900 contains offences relating to the making of false or misleading applications or providing false or misleading information or documents. Those offences have a maximum penalty of imprisonment for 2 years or a fine of $22,000 (or both). (3) The regulations may provide for a fee to be paid for an application for the grant of registration. (4) The Secretary may require the fee to accompany the application. (5) If the Secretary considers it necessary to do so, the Secretary may require one or both of the following— (a) further documents or information to be provided by the applicant, (b) in the case of an applicant who is an individual, that the applicant attend an interview, undertake an oral or written examination or provide a demonstration of the applicant's skills. (6) If an application for the grant or a renewal of registration is duly made to the Secretary before the expiry of the term of registration, the registration is taken to continue in force until the Secretary notifies the applicant of a decision to grant or refuse the application. 44 Secretary may obtain information from third parties (1) The Secretary may, by written notice, require an applicant or a close associate of the applicant— (a) to authorise a person described in the notice— (i) to provide information specified in the notice that is relevant to the investigation of the application, or (ii) to produce, in accordance with directions in the notice, the records relevant to the investigation of the application that are specified in the notice and to permit examination of the records, the taking of extracts from them and the making of copies of them, or (b) to furnish to the Secretary the authorities and consents that the Secretary directs for the purpose of enabling the Secretary to obtain information (including financial and other confidential information) from other persons concerning the applicant or close associate. (2) If a requirement made under this section is not complied with, the Secretary may refuse to consider the application concerned while the non-compliance continues. (3) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person. 45 Determination of applications (1) The Secretary may grant or refuse an application to be registered as a practitioner. (2) The Secretary may register a person as a practitioner of a class that the Secretary considers appropriate even if the application is for a different class of registration. (3) The Secretary must refuse to register a person as a practitioner if— (a) the application for registration does not comply with this Act, or (b) the Secretary is of the opinion that the applicant does not have the qualifications, skills, knowledge and experience to carry out the work for which the applicant is seeking registration, or (c) the Secretary is of the opinion that the person (including, if the person is a body corporate, a director of the body corporate) is not a suitable person to carry out the work for which the applicant is seeking registration, or (d) the person (including, if the person is a body corporate, a director of the body corporate) is an individual who is under the age of 18 years, or (e) the person is a mentally incapacitated person, or (f) the person (including, if the person is a body corporate, a director of the body corporate) is an undischarged bankrupt, or (g) on a ground prescribed by the regulations for the purposes of this section. (4) The Secretary is to give the applicant written notice of a decision to grant or refuse registration. (5) If the Secretary fails to give an applicant for registration notice of a decision to grant or refuse registration within the period prescribed by the regulations, the Secretary is taken to have refused to grant registration. 46 Grounds for opinion that a person is not a suitable person to carry out work The Secretary may form an opinion that a person is not a suitable person to carry out the work for which the person is seeking registration or is registered in one or more of the following circumstances— (a) the person (including, if the person is a body corporate, a director of the body corporate) has contravened a requirement imposed by or under this Act or a requirement imposed under another Act or law that applies to the work for which registration is sought, (b) a relevant authorisation of the person has been suspended or cancelled, other than at the person's request, whether at the time of the person's application for registration or another time, (c) the person is disqualified from holding a relevant authorisation, other than on the grounds that the person— (i) does not reside in the jurisdiction that issues the authorisation, or (ii) is a body corporate, (d) a close associate of the person who would not be a fit and proper person to be registered exercises a significant influence over the person or the operation and management of the person's business, (e) a circumstance prescribed by the regulations. 47 Requirements for registration (1) The regulations may make provision for or with respect to the requirements for registration. (2) Without limiting subsection (1), the regulations may provide for the qualifications, registration or recognition by professional bodies, skills, knowledge and experience for registration, including for particular classes of registration. 48 Duration of registration (1) Registration remains in force for a period of 1, 3 or 5 years as specified by the Secretary in the notice by which registration is granted, unless sooner cancelled. (2) Registration has no effect during a period in which registration is suspended. 49 Conditions of registration (1) Registration is subject to the following conditions— (a) conditions imposed by this Act or the regulations, (b) conditions imposed by the Secretary (whether on or after registration). (2) The Secretary may, by written notice given to a registered practitioner, impose a condition on the registration or vary or revoke a condition of the registration imposed by the Secretary. 50 Particular conditions (1) Conditions may be imposed on registration to require a registered practitioner to prepare regulated designs or carry out building work, professional engineering work or specialist work in accordance with specified standards or methodologies, including but not limited to standards or methodologies prepared by the Secretary. (2) The regulations may impose a condition of registration that a registered practitioner must comply with a code of practice prescribed by the regulations. (3) The regulations may impose a condition of registration that a registered practitioner must be registered or recognised by a professional body or a professional body belonging to a class of professional bodies. (4) A condition of registration may provide that an authorisation conferred by the registration does not take effect until the end of a specified period or the happening of a particular event or the occurrence of a particular state of affairs. (5) This section does not limit the matters for which conditions of registration may provide. 51 Condition requiring provision of information to the Secretary (1) It is a condition of registration that a registered practitioner must, when requested in writing by the Secretary to do so, provide the Secretary, in accordance with this section, with information relating to activities as a practitioner that the Secretary requires. (2) The information must, if the Secretary specifies a time within which it must be provided, be provided within that time. (3) The regulations may make further provision with respect to the provision of information under this section. (4) A registered practitioner who fails to comply with the condition set out in this section is guilty of an offence. Maximum penalty—300 penalty units (in the case of a body corporate) or 100 penalty units (in any other case). Division 2 Variation, suspension or cancellation of registration 52 Variation, suspension or cancellation of registration generally (1) The Secretary may, by written notice given to a practitioner, vary, suspend or cancel the practitioner's registration on the following grounds— (a) the practitioner is not entitled to be registered, (b) the practitioner fails to comply with a condition of registration, (c) in the opinion of the Secretary, the practitioner (including, if the practitioner is a body corporate, a director of the body corporate) is not a suitable person to be registered or registered as a particular class of practitioner, (d) the practitioner (including, if the practitioner is a body corporate, a director of the body corporate) has contravened this Act or a regulation made under this Act, whether or not the practitioner or director is prosecuted or convicted for the contravention, (e) the registration was granted in error, (f) the Secretary has decided to suspend or cancel the registration under Part 6, (g) the practitioner has applied for the registration to be varied, cancelled or suspended, (h) a ground prescribed by the regulations. (2) The notice must specify— (a) the date or time from which the variation, suspension or cancellation takes effect, and (b) the grounds for the variation, suspension or cancellation. 52A Variation of registration (1) Division 1 applies to an application by a registered practitioner to vary the practitioner's registration in the same way it applies to an application for the grant of registration. Note—