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Ireland
On 31 October 2023, the Screening of Third Country Transactions Act 2023 (the “Act”), which establishes a new foreign direct investment ("FDI") screening regime in Ireland, was enacted.
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Australia | Publication | May 2021
The Design and Building Practitioners Regulation 2021 (NSW) (Regulation) has now been finalised and will commence on 1 July 2021. The final form of Regulation was published on 9 April 2021.
The Regulation is intended to provide the legislative support for the operation of the provisions in the Design and Building Practitioners Act 2020 (NSW) (the Act). The Act, passed last year, aims to lift standards of quality and safety in the building industry by ensuring that those who control the risks – design and building practitioners and professional engineers – are held responsible for their work. While some of the reforms (including the new 10 year (retrospective) duty of care for designers and builders (amongst other building participants)) commenced on 11 June 2020, the majority of the reforms including the requirements in the Regulation will commence on 1 July 2021. Please refer to our previous update in June 2020 which discusses the new Act and statutory obligations for design and building practitioners.
Broadly, the objectives of the Regulation are to set and maintain professional standards for builders, designers and engineers who are involved in the design and construction of class 2 buildings or buildings containing a class 2 part (including residential or mixed used retail and apartment buildings (higher than 1 level)).
The Regulation prescribes (amongst other things):
Below, we discuss some of the key reforms and the implications for designers, builders and engineers on existing and future projects.
Click here for a flow chart outlining, broadly, the registration and insurance requirements for practitioners under the Act and Regulation, and a timeline for the compliance declaration lodgements.
The Regulations provide that for the purposes of section 4(1) of the Act, the type of building which will fall under the definition of “building work” is a class 2 building (essentially residential units) or a building which has a class 2 part. This would include mixed use residential and commercial buildings (for example, high rise residential apartments with retail spaces included within the building). A class 2 building does not include single dwelling houses, terraces, duplexes, guest houses or hostels (with a floor area less than 300m2) such that the requirements of the Regulation and the Act (save for the duty of care provisions – see below) including training, registration, insurance and compliance declaration requirements do not apply to these less risky developments.
For the purpose of the statutory duty of care regime in Part 4 of the Act, “building work” has a different definition in s36(1): “Building work includes residential building work within the meaning of the Home Building Act 1989”. As a result, the duty of care provisions in Part 4 extend beyond class 2 buildings to also apply to single dwelling homes and other residential building work under the Home Building Act. This more expansive definition is limited to Part 4 of the Act; the more onerous requirements in other parts of the Act and the Regulation (training, registration, insurance, compliance declaration requirements and the like) will not apply to residential buildings which are not class 2, such as a single dwelling home. The Regulation does not prescribe any further categories of “construction work” for the purpose of s36(5) of the Act to which the duty of care extends, nor does it exclude any categories. The use of different definitions of “building work” in s4(1) and s36(1) of the Act and the use of the word “includes” in s36(1) leave room for uncertainty about the application of the statutory duty of care and whether it could extend to purely commercial buildings with no residential component (which are not subject to the remainder of the Act and Regulation).
The Regulation provides further detail on the lodgement requirements for regulated designs and compliance declarations which must be lodged by the building practitioner (or the principal design practitioner authorised on its behalf) at four specific stages of a project before an occupation certificate can be issued.
The four lodgement points are:
The “lodgement point 2” requirements will not apply in relation to minor variations that do not impact any building elements or performance solutions (and therefore do not vary a regulated design). However, building practitioners must still ensure that details of other variations are recorded in accordance with the requirements set out in the Regulation, which include explaining how the variation meets the requirements of the Building Code of Australia (BCA).
The above documentation can only be provided to the Secretary by a registered design practitioner, registered principal design practitioner or registered building practitioner. The registration requirements are discussed next.
The registration requirements are provided under 2 registration schemes:
The Regulation sets out the classes of registration for each type of practitioner and professional engineer, the type of work that is authorised for each class of registration, and the required qualifications, experience, knowledge and skills for each class of registration. For example, in the class of “building practitioner – general”, the practitioner must be the holder of an endorsed contractor licence authorising the holder to carry out general building work under the Home Building Act 1989 (NSW), must have 5 years recent relevant practical experience, and must have certain knowledge and skills including an understanding of the Act and the Regulation and requirements of the BCA.
The Secretary has discretion under clause 33 of the Regulation to refuse to register a person seeking registration based on a number of grounds including, for example, that:
Given the limited periods of registration (1, 3 or 5 years), the Regulation sets out requirements for the “restoration of registration” which must be applied for within 3 months after the expiry of the registration, or within a further period determined by the Secretary on the application of the person seeking restoration of the registration.
Some professions will not need registration, because they do not typically prepare regulated designs for class 2 buildings (for example, landscape architects, land surveyors and environmental engineers).
Notably, the Regulation now specifically excludes body corporates from being a registered professional engineer; this is a new addition from the draft Regulation circulated for public consultation. Body corporates in the design practitioner, principal design practitioner and building practitioner classes of registration have their own specific classes of registration under the Regulation; body corporates who carry out design practitioner work will need body corporate registration and their individual employees who carry out the work requiring registration (for example preparing regulated designs or providing compliance declarations) will also need to be registered. Body corporates who carry out building practitioner work will need body corporate registration and will also need to have a registered nominee.
The Regulation provides for a transitional period from 1 July 2021 to 31 December 2021 during which applicants can apply for a “deemed registration” which will not go through the normal assessment process, but which can be cancelled by the Secretary.
1 July 2021 is the critical date. Schedule 6 of the Regulation provides amendments to the transitional provisions in Schedule 1 of the Act.
In relation to regulated building work already commenced but not completed by 1 July 2021:
In relation to regulated building work commencing after 30 June 2021 and before 1 July 2022:
then the design is taken to be a regulated design for which a design compliance declaration has been given if a registered design practitioner (a) assesses whether or not the design complies with the requirements of the Building Code of Australia, and (b) issues a certificate in an approved form that the design does comply with the requirements.
This update is not intended to cover all aspects of the Regulation. For further information please contact our team below.
Link to our previous update on the statutory duty of care in the construction industry
Publication
On 31 October 2023, the Screening of Third Country Transactions Act 2023 (the “Act”), which establishes a new foreign direct investment ("FDI") screening regime in Ireland, was enacted.
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