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An overview of the changes impacting class 3 and 9c buildings 

15 June 2023

Over 800 industry professionals joined NSW Fair Trading for an industry update on the expansion of building reforms to class 3 and 9c buildings from 3 July 2023.

The event provided a comprehensive look at the upcoming changes, providing context for the reforms and new requirements for design and building practitioners, certifiers, developers and professional engineers working on class 3 and 9c buildings.

1: 40:54

Industry Update: Building reforms impacting class 3 and 9c Thursday 15 June, 2023

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Video transcript

Industry Update: Building reforms impacting class 3 and 9c Thursday 15 June, 2023

Matt Press:

Good afternoon everyone.  We've got people joining us today online and in the room, but I'd like to start off with the most important part of today's event and that's our Welcome to Country with Auntie Kerrie. 

We're really privileged to have Auntie Kerrie today.  She obviously has deep connections to the country and the land, but also to education.  Auntie Kerrie has been an educator within the arts with TAFE, I think Auntie Kerrie said 20 years.  We're here today in TAFE, education is such an important part of society and particularly construction a big part of our program, so it's fitting we have you here today, Auntie Kerrie.  She's not just passionate about arts, she's actually a Deadly Award winner.  That doesn't mean she's hurt people by the way.  That's one of the prestigious awards in the indigenous community and not just won it once, but twice.  Auntie Kerrie, if you could please welcome us to country today.

Auntie Kerrie:

Thank you. Hello and welcome friends. Welcome to the land of the Dharug country, welcome to the heart of this land, welcome to the black snapper people of the mangroves, the Wollemi.  By day we're a very shy fish.  They always lived amongst the mangroves.  They were always hiding and living within the patterns of the mangroves and the shadows and that's how they would survive.  They would make their home there and that's where they would rear their young.  They would educate them on life, the ups and downs and how to navigate life and the patterns for the days that we live.  So welcome to this land.  This is where we weave connections and share as we have done since time eternal.  I welcome you on behalf of my ancestors and I acknowledge all of my ancestors elders past and present, I acknowledge all First Nations of Australia and those that are present here today.  I acknowledge all our distinguished guests and I acknowledge each and every one of you.  So welcome... A word that we use for welcome but it means so much more than that.  It means that I see you, that my soul recognises you.  Now that we have made contact we are now connected.  You have entered my home and we have shared, so now we are considered friends and family.  We are all connected, though, as we walk this land together and we acknowledge the land's history, yesterday's, today's and tomorrow's, as we walk ever so gently upon this earth.  Today we gather and we acknowledge this significant time in this country's history.  We acknowledge reconciliation and the theme that was voices for generations, because only together can we make real change for future generations.  By working together with true engagement and traditional owners by using our voices we will make a significant contribution to real outcomes for all first people of this land, ensuring that we have a voice, that we're recognised and inclusion, helping this country and our first people heal by acknowledging our past injustices and this country's dark past.  But let's build a beautiful respectful future together and I ask the creator and my ancestors to watch over you as we all live, work and play on Dharug country and with my mother's arms I welcome you here today, (spoken in-language) thank you.

Matt Press

Thank you very much and in language as well, which I think is so special for us, and I think the themes you raise there around inclusion and listening, that's what we're here for today.  1100 people here to talk about the class 3 and 9c reforms.  We're here to hear from everyone, we're here to engage and you've set us up perfectly for that so thank you.

I'm Matt Press.  I'm the Executive Director of Compliance and Dispute Resolution at Fair Trading.  It's great to see some familiar faces here in the room, those that have been part of this transformation journey as we started in the class 2 sector two years ago, the building designers, the fire protection authority, the certifiers up the back, on his phone, everyone's getting watched here.  We've built some great relationships over the last two years with the class 2 cohort and all parts of that cohort, developers, builders, certifiers, engineers, product suppliers and so forth, and today really kicks off I think formally the journey with some new members of our transformation journey, the class 3 and the 9c sector.  Welcome to those new players joining us on this journey.

Interestingly our foray into the aged care sector specifically started 1 September 2019 when the RAB Act ‑ 2020 ‑ when the RAB Act came into play because one of the very first buildings where we did a drop‑in anywhere, anytime inspection was actually a class 2 building that was being used for aged care, and that building actually was one of ‑ the first where we used our powers to undertake destructive testing because we had concerns about the quality of the Hebel walls.  We actually started then and when the government passed the DPB legislation they were very clear it wasn't just about class 2.  They saw this as a reform piece across the building landscape.  Class 2 is where it was going to start because that was the most vulnerable sector, the one in the most need, but it did very much see a pathway of expansion over time, and consultation began on that around May last year when we had the DPB up and running for about two years and we were kind of ready for that expansion piece.  We'd set the foundation and in building terms we were ready to go up and expand.

We had around 21 submissions to that consultation covering most of the peak bodies.  Interestingly, most if not all of the associations and peak bodies that had been part of the class 2 journey were in support of its expansion because they had been through the journey and understood it and weren't really confronted of it.  On the other side I think fair to acknowledge there has been concerns particularly in the aged care community about this new legislation and what does it mean, concerns around duplication and how does it interact with the existing regulatory schemes that apply to those settings, and those are important issues and I guess today we reinforce that we're starting this journey together, we're hear to listen and this is the start of an ongoing process.  No doubt as we implement this legislation we'll find wrinkles, we'll find unintended consequences.  That's exactly the experience we had with class 2, but we can guarantee that we'll work with the industry on those issues and just as in class 2 have them resolved over time.

Before we get going any further I better tick off some general housekeeping.  Firstly we're going to publish a copy of this event and all of the slides online so you can take notes but you will have them with you.  If you have any issues viewing the presentation or the link shuts for any other reason we do have an alternative link in the communications that were provided to you.  For those that are here in the room, thank you very much.  We do have a networking function after, so please do stay around and ask questions there as well.  If anyone needs the bathroom, while we're talking, please just go out through those doors there behind the staircase and we're not aware of any fire tests today so if there is a fire alarm please do follow the fire wardens, but I think we're pretty good because we're close to the exit here.

Today is a two‑way conversation.  We're going to use Slido to help facilitate that a little bit.  Just like everyone was very familiar with during COVID times, I'd like you to get out your phones so you can scan a QR code that we're going to flash up on the screen here. Okay.  So if you've managed to get that up ‑ we'll leave it there for a bit longer ‑ on the right of your screen you will see two tabs.  One of those tabs is so you can submit questions to us in the Q&A and the panel session.  The other is a poll.  If everyone is into it in the room here and online we'll kick off with our first question.  This is to get to know you a bit more.  We'd like to ask tell us which industry best represents you.  Your presence here today, which part of the supply chain, which part of the building construction industry are you representing.  Later this afternoon we'll report back with the poll.

Give everyone a bit of time.  It's not a trick question.  Okay.  Let's get on to the agenda then.  A big agenda.  We've got discussion on the legislation itself, we've got representative from our inspection team to talk through the audits that we've been doing in the clause 2 space and how we see that flowing into class 3 and 9c, also discussion of the planning portal, the instrument everyone is going to use to lodge the required documentation under the DPB and then a panel discussion.

To kick us off I'd like to have a word from our sponsor, the new Minister, Minister Chanthivong.  It's always ‑ as a member of the public service you're always a bit unsure when you have a change of government.  You're used to working with a set of Ministers and you have a routine going, but I have to say Minister Chanthivong and this new government has really latched on to building and understood the priority, understood the momentum that we've established over the last two years and so Minister Chanthivong couldn't be here today but he did want to show that he was invested in this event, invested in these reforms and has prepared for us a short video.

** video played....

Minister Chanthivong

Good afternoon.  I'm Anoulack Chanthivong welcoming you to this industry update as the NSW Minister for Building.  Today I'm coming from Gadigal land.  I acknowledge the Traditional Owners of the land that I stand on and extend that respect to elders past and present.  I would also like to acknowledge Aboriginal and Torres Strait Islander guests who are joining us today.  The NSW Government is working to restore confidence in the residential building and construction industry.  Building and construction is a key priority for the Minns government.  We are committed to making NSW safer, fairer and more productive for consumers, workers and businesses.  These changes commenced in 2019 with the appointment of the NSW Building Commissioner and the once in a generation bipartisan reform of the building and construction industry.  Since then there has been significant progress, particularly in the residential apartment sector.  These reforms are delivering results through better design and better quality buildings.  The NSW Government is committed to a comprehensive reform agenda to transform the NSW construction sector into a world leader in building quality, innovation and consumer centricity.  This includes a whole of sector building Act and a capable focus building commission to oversight the entire NSW construction sector.  Our reform agenda will build on the work that has been delivered with a focus on ensuring that the regulatory framework that oversees the NSW construction sector utilises the right combination of government‑led interventions and market‑based solutions to deliver for building owners, those who live and work in them, and the industry practitioners who build them.  While the initial focus of these reforms rightly focused on class 2 buildings only we must now look at how we can translate these successes to more broad scale industry impact.  From 3 July 2023 we'll create new capacity to support those living and working in class 3 and 9c buildings, aged care and boarding houses provide homes to some of our most vulnerable so it's important that they can have the confidence in the safety and amenity of this home.  We cannot sacrifice quality for the sake of quantity, but we are committed to getting the balance right between regulation and allowing you to get on with the job safer.  More secure buildings benefit us all and the changes you will hear about today are all about this objective.  Today you're going to hear from representatives from the office of the Building Commissioner and NSW Fair Trading.  I encourage you to join the conversation today and ask questions.  If you would like more information about what you hear today, visit the NSW Fair Trading website.  Thank you very much.

Matt Press

There you go, a very energetic, enthusiastic and I think passionate Minister, so we're very lucky.  You can hear that the message from this government is very clear that we're not going to be sacrificing quality for quantity.  It's exactly as we started this journey, it's all about trustworthy buildings.

Next I'd like to introduce Angus Abadee.  Angus is the director in our policy team.  That's the team that looks after the drafting and the creation of legislation.  Angus has been one of the architects, if I could use that building term, for this piece of legislation and Angus you're going to talk us through the design constraints and the implementation issues for the sector.

Angus Abadee

Good afternoon everyone.  I'd also like to begin by acknowledging the Traditional Custodians of the land on which we meet and thank you so much for that warm Welcome to Country.  Today we get the opportunity to talk about the building reform agenda and where we've been and where we're going.  Since 2019 we've had an ambitious reform agenda in NSW focused on transferring from a sector that was producing non‑compliant, unsafe and non‑resilient buildings into one that has the customer at the centre, pride in the work and that we have innovation and a world leading sector.  We need to move on from the idea that this is your eat your broccoli moment where it's the medicine that we have to have to a future where we are encouraging productive, innovative building practices in NSW.  We think that the work of construction NSW and the design and building practitioners act and the RAB Act are absolutely at the centre of this journey.  We do talk a lot about regulatory intervention but that's not the end point.  We want to be involved in the sector and transforming it into that customer‑centric industry that the Minister was alluding to, but we want to make sure that we hit peak regulatory effort and that we hand back control to self‑regulation and market led solutions over time where the industry has changed behaviours, addressed the underlying causes that have led us to have these significant interventions and that we can get back to consumer and market confidence in the buildings that are produced in NSW.  We're now on to the next phase of the design and building practitioners and this is something that was always foreshadowed by government and by Parliament.  The Minister reflect that had this has been a bipartisan initiative.  The political will has been there and the intention has always been to expand the design and building practitioners Act and the RAB Act to other building classes and now we get to go to other places where people sleep.  We need to recognise that it's not just the vulnerable but that these asset classes are becoming increasingly prevalent and are going to be critical to the housing supply in NSW and so we must take a mature and measured approach to ensure those buildings are up to scratch.

I'd like just to do a quick overview of some of the key pieces of legislation because we are talking about the design and building practitioners act and RAB Act today but it's important to see the entire ecosystem.  This has been an absolutely ‑ a collaboration with industry and the community and government.  These ideas were not just cooked up in the ideas shed in the policy and the ivory tower I live in but has been the result of ongoing engagement with government, with community and with the industry.  We have to recognise that hand and glove initiative that has come through these reform agenda.  We have the RAB Act and the design and building practitioner act which I'll go into in a little bit more detail, but we also have the market‑led solution that is are absolutely critical.  ICIRT which is about giving market a clear indication of the trustworthiness of the...overcoming that information asymmetry where people weren't making informed decisions about who to put their money with and we're restoring that confidence not only by identifying those trusted players, but articulating the process to trustworthiness so that everyone can take that journey if they're willing to put the work and effort into making it so.  Project remediate is about making sure our legacy buildings that are dealing with vulnerable cladding and to complement that we also have project intervene with our legacy audit program.  It's about making sure that we're not just looking at those new buildings but that we're taking ownership of the buildings currently in the system to make sure they are resilient, that they are safe and that people have confidence in living in those places.  We recognise that historically fair trading has not been good at resolving building disputes.  We know people didn't have confidence in us as a regulator in the same way we needed to have that eye‑opening moment of the building confidence report that we weren't regulating adequately.  We need to do better and we are investing the time and effort required to make sure that if a building dispute does happen that we are your preferred option in resolving that dispute.  We want to do it in a time and cost‑effective way and we need to work with you to make sure we can deliver on that.

Complementing all of this, and Meghann is going to be talking more about the e‑planning portal is we need to have critical digital infrastructure.  Risk‑based interventions only happen when we have the data to back it up and we have attacking the digital immaturity of the industry we have inherited.  We have a common responsibility to make sure we are taking these risk based approaches and that we have the most seamless experience for you in delivering these projects.  If we are as government are going to impose obligations on you we are going to make it as easy as possible for you to comply and deliver those good quality buildings.

What all of this is about is about restoring confidence back to the industry.  We've done research to back up our claims that there was a loss of consumer confidence and we know that when asked about the prospect of purchasing an apartment in NSW only three in 10 had confidence to do so.  What that says is that there is a perception and an actualised view in the industry and in the community that the apartments we have been historically building are not up to scratch.  It's not only about the cost of remediation, the cost of disputes and legal action, it's also about the fact that we're leaving money on the table.  If you produce high quality products people will pay for them.  If they have confidence in what you're producing they will come back to you.  When we asked about the impacts of our building reforms and the prospect of the introduction of 10 year warranty insurance for latent defects, that went up to over seven in 10.  Again, people are willing to pay more if we're producing good quality housing stock.  We're now going to be converting the lessons learned in the class 2 space into the class 3 and 9c space to make sure people are willing to pay the costs associated with living in class 3 accommodation and 9c and that they can do so safely.

The key features of the design and building practitioners act before we do a deep dive is that there are statutory duty of care obligations on all buildings to make sure that you avoid economic loss.  The idea here was to codify a combination of duties of care to say quite clearly that you cannot contract out of your obligation to deliver compliant building work.  You continue to have an obligation for making sure the work that you are doing is compliant and it's not enough to say that someone at the bottom of the contractual chain is going to take all the liability because you feel you've contracted it out.  This statutory duty of care has now been interpreted to apply broadly and to all buildings and it's important that everyone is put on notice that you better make sure your work is compliant because the regulator and the courts will hold you accountable.

We've obviously got a registration framework for design practitioners building practitioners and professional engineers and the building compliance and declaration process that I'll go through in a bit more detail.  The things that really take away is that obviously it applies at the moment to class 2 and then class 3 and 9c from 3 July.  The obligation attaches not just to stand alone class 3 and the C buildings but any building which contains that in its part and we'll treat the entire building as a united building.  If you have a class 3 in a mixed use building the entire building is subject to the act and the entire building is subject to the registration and declaration requirements.

The design audits that we undertake are focused on helping you to deliver compliant buildings.  We come in early so that we can help you do it because we know that it's much cheaper to mix the issue in the design phase than it is in the build phase and even cheaper than obviously after occupation.

From 3 July we've got some examples here of what class 3 buildings are and 9c, but I am expecting most of you are quite familiar with it.  The key here is, again, we're expanding it into where people sleep to make sure they have confidence in those buildings.  The transitional piece here to take note of is that we're only applying it to new class 3 buildings from 3 July, that existing class 3 and 9c buildings will come into play next year.  The idea here is that we wanted to give time for people to get used to the scheme, particularly noting the impacts of remediation, renovation and treatment work that needs to happen in these buildings.  We want an industry to have time to understand that we are not here just to penalise, we're here to support, but we need you to get on board with the journey that we're trying to take here.

One of the questions we've been asked consistently, and I hope that we can deep dive a little bit more in the Q&A that Matt will be leading, is the transitional arrangements.  What happens for projects that are currently on the go at the moment.  If you're working on a project with a single C construction certificate or complying development certificate and that work has commenced before 3 July then you are not subject to the declaration requirements, you just need to make sure that you upload your designs into the e‑planning portal when you complete it.  If you're doing staged development and you have started work on a compliant development or a construction certificate before 3 July, again that same transitional provision applies.  You just need to upload the designs that are covered by that certificate into the e‑planning portal.  But all future certificates that come after 3 July are subject to the requirements which means that you need to have registered design practitioners, you need to have a registered building practitioner and a certifier cannot issue a complying development or a construction certificate before seeing those declared designs.

If the work obviously hasn't commenced before 3 July you will be subject to the requirements.  It's important here that you are really taking this away because we are not only talking to the engineers and the designers and the builders, we're also working closely with the certifiers so they're really clear on their obligations to make sure that they are part and parcel with us of our response to ensuring compliant work.

Diving into who needs to be registered.  Again I'd really like to draw attention, if you are currently registered that continues.  There's no change that you need to, your registration is honoured and just extended to class 3 and 9c.  If you're not currently registered you need to determine what relevant registration requirements you have.  So what is your role in the project, noting that all engineers who are doing professional engineering work in the classes that are covered by the Act need to be registered and that if you are making compliance declarations either a design compliance declaration or a building declaration that you need to be registered to do so.

Drawing attention ‑ there's only really one new class of design that we've inserted here, so we have all the classes that have been in play for class 2.  You've got your fire safety, your structural, your facade, vertical transportation.  The new class that we have here is building design.  This is recognising that building designers have been working on class 3 and 9c buildings for some time and that we wanted to continue to allow those people to do that work where they hit a certain eligibility requirement, and so we've created a new class which will only apply to class 3 and 9c because there are other restrictions that apply to building designers in the class 2 space.

The design practitioners role is to make sure that they provide to the certifier and to the builder a set of integrated designs, understanding all the things that are required to create a system which will achieve compliance.  We don't want design practitioners working in isolation.  We don't want them working in silos.  We want them to come together and produce a common set of designs that if followed would produce a compliant building.  In the same way that we're going to treat mixed use buildings as a united building we want designs to be treated as united design.  So the design practitioners role there is to make sure have I got all the information that I need to make a declaration that if followed this work would be compliant.

There's an additional role from a design perspective that's available for those who want to add that extra layer of engagement, coordination and consultation between design practitioners.  That's the principal design practitioner which is an optional role which is intended to be a coordinating design practitioner.  If adopted and you have decided to appoint a principal design practitioner, they're also required to do a principal design declaration to say that they have done that coordination function.  Even if ‑ regardless of whether or not you have this principal design practitioner, if you are a registered design practitioner the obligation and the duty is on you to make sure your designs are compliant.  You can't pass that on to someone else.  You can't say that was someone else's responsibility.  The days of that happening are done and we need to make sure that when that project documentation is handed over that it is absolutely fit for purpose.

The building practitioner is the person, the principal contractor on the site.  They're responsible for ensuring that all the work that happens on that site complies with the designs.  This is not to say ‑ we're not talking about a nominated supervisor or someone who holds this licence or that licence, we're talking about the person at the top of the chain, the person who has that control of the site who is talking to all the other contractors on site, coordinating the designs.  That's the person who is going to be held responsible for coordinating the designs into the certifier and into the e‑planning portal and also for signing off that the work complies with the designs.  It's important here again, so if you are currently registered in class 2 that will continue, that will extend to class 3 and 9c.  If you're not currently registered in class 2 and one of the reasons might be that you don't have a builder's licence under the home building Act, you can become registered but you'll be limited to doing work in class 3 and 9c and this recognises that you continue to need to have a building licence if you're doing residential building work which is class 1 and class 2.

How does the design declaration process actually work.  We haven't focused on every single piece that goes into a building.  We've really focused on the riskiest bits, the bits that absolutely we need to get right from the start because otherwise we're going to compromise integrity of the building.  These are called the building elements, the waterproofing, fire safety systems, the structure, the building services and the building enclosure.  We're very much focused on these because not only are they critical to the integrity of the building, but they're incredibly complex, often involving thousands of designs and significant coordination between the different practitioners.  So what we need is the design practitioner to be registered to do that work, noting that, for example, a structural engineer is going to be required to do certain structural work, that a fire safety engineer is going to be required to do certain fire safety work and that a vertical transportation design practitioner is going to be required to do certain building services work.  So you need to then, once you've identified the correct practitioner, their responsibility is to sign off all the designs that are necessary to make sure that that element across the entire building will achieve compliance with the building code of Australia.  Those are not your shop drawings, those are your ready for construction.  The certifier cannot issue a certificate to commence construction until they've got all the designs required for that building element that are covered by that certificate.  So turning our mind to a staged development, if you're doing it in stages with the basement and the first five floors and the five floors after that, you need to have all the designs for the basement before that CC or CDC can be issued.  Then when you want to get on to the next stage you have to get all the design for all the building elements that will be covered by that certificate.  The building practitioner then lodges those on the NSW planning portal before construction and then only once that has occurred can they start building work.  This is another of the game changers that the DBP Act allows us to do is to say you cannot build without designs.  Gone are the days where people are just feel their way through the construction process.  We have good quality, up front designs and builders are going to follow them and they're not going to do any building work until they have those designs.  We'll be coming in to make sure that if you want to vary that work, if you want to change your approach for the construction, that's fine, but you need to go back to a design practitioner, get them to update the designs, get them to declare that it is compliant and only then should you be starting to commence work.  We don't want builders making decisions on the run about what they think will be compliant.  We need to make sure that because we've invested responsibility in design practitioners to make that call, that that is the process that is followed.  This will encourage ‑ obviously there's going to be downtime with this.  That's what happened at the start of the process where projects were working their way through the process, but now they've had sophisticated systems put in place where they can actually pre plan what they need ahead of the time and that that is incorporated into the building process.  We've seen defect rates go down in that variation process as a result of it.

We need to make sure that where there is any guidance material ‑ any specialist advice or anything that's followed, that's also included and that at the end of the process the builder has complied with all those designs.  So I've talked through the variation.  It's critical here just to remember that we're only talking about variations for building elements.  Certain other things that aren't to do with those building elements, structure, the fire safety, the enclosure, you can vary those without getting them signed off.  We're very much focused on anything that is the building element or will compromise the performance of that building element is signed off through a variation by the design practitioner.

Actually going through the process here again I think this slide is more for your records than anything else, but it's about saying you design it, you declare it, you upload it into the e‑planning portal.  If you want to vary it you go back, change the designs, upload that into the e‑planning portal before you apply for an occupation certificate the builder needs to make sure they've signed off, that they have complied with those designs, followed it to a T, and they list all the trade contractors who have been on site doing that work, and then after the occupation certificate has been issued any work that happens as a result, any work that has to go back and be done again, a new declaration is made for that process as well.

We have guidance material and Meghann's going to be talking about the e‑planning portal later, but we're here to help.  We understand this is a new process and we're very happy to support you through this journey.  It's about making sure we use the digital tools that are available, that we use good quality comprehensive designs and that we follow them.

Kind of wrapping it at the book end of this is what happens when things don't go right.  If you do good quality designs you're going to produce a compliant building, there's not going to be any issues because we're not in the business of going after the trustworthy people doing good work.  We're there to address the risk base issues that we're seeing in the field.  Obviously we have the design and building practitioner's scheme but the RAB Act is the power to issue building work rectification orders, stopping work and stopping the issuance of an occupation certificate where the work is not compliant.  We like to use undertakings because we actually genuinely believe in cooperation and collaboration to fix the problems because we want to put the customers living and working in these buildings first so where possible we will obviously use those where we can come to that negotiated position.  But the thing to remember is we will use those orders.  If you don't follow those orders you won't get an occupation and if you breach those orders we have penalties over a million dollars.  We are not afraid to use them because if that's what's required to effect the right result we'll do so.  We're not only about issuing orders and penalties, we're also about drawing attention to where people fall short of the bar that the community has set us.  So we'll also make sure that we draw media attention not only to the bad players and the bad projects, but also those people who have really made the concerted effort, who have taken the journey with us and are doing the right thing and we're going to call out those people who are exercising that best practice.

The final thing I want to jump into is naturally there are additional obligations on government to stand up and increase the inspectorate.  We have design auditors, we have building inspectors, we have data intel, investigators and the like.  We have imposed a modest cost recovery process on each building and so this will apply from 3 July for new buildings and the rates are up there and it's a graduated ‑ the larger the building which tends to be a more complex building with more designs and more inspections required, the higher the rate.  The going rate based off class 2 has been about $100 a unit.  So it's quite a modest amount considering the value add that we hope that we bring to pick up those issues during the design space and the build process.

Then from 1 July next year we'll also impose again a relatively modest levy on where consent is required, you're captured by the Act and you're undertaking repair or renovation work.  I'm going to throw over to my colleague Matt Whitton who will be going through what we're seeing in the field.

Matthew Whitton

Good afternoon.  Good to be here.  I did notice as I as walking in a few familiar faces which gives me a bit of confidence or a fair bit of confidence that moving forward with 3s and 9cs we're probably on a good pathway and I'm hoping that eventuates.  What I want to talk about today is the operational side, so from the regulator's perspective, fair trading.  To give a little bit of background, about three years ago the regulator was tasked with, and I'll using Building Commissioner's words at the time, getting from the back of the bus to the front of the bus.  We needed the change.  We were reactive.  There's a role for reactive in regulation but it should be a small part.  If you're doing your job right that becomes 20% and 80% becomes your proactive.  That was the challenge to us.  There were a few things we needed in that space before we started.  We needed to be empowered.  We needed capability.  We needed data.  So we needed legislation that empowered us to move forward.  We were, I'll be honest, as a regulator we were provided with a tool, the residential apartment compliance enforcement act or the RAB act and that was a huge change, monumental from a regulatory point of view...that was followed by the Design and Building Practitioners Act in July of 2021 and also the cessation of the building professionals board and the building development certifiers act came in and we used that from a regulatory point of view.  When you look at those three key pieces of legislation from a regulator's point of view, unbelievable.  It gives you the power to get out there and gives you the confidence to actually make change in the industry.  We needed to change the capability.  We had inspectors in Fair Trading but did we have the skill set?  What we needed to make a difference?  So we recruited.  We've now got just over 50 new inspectors that have come into the organisation in that time with varying degrees.  We've got engineers, civil, structural, fire, we have building surveyors, we did have building surveyors but we've increased that because they're an integral part.  Builders.  Architects, won't go through it all today but we have increased our capability of our data, we needed to become risk based.  We needed to actually be able to target the bad players in the industry, not focusing on the good.  Obviously early stages there was, I'll be honest there was a fair bit of bad out there, and it is improving in the class 2 sector I'm talking here, there was a quite significant amount of bad, but it has improved.  We need to go further but definitely improving.  We need that data.  It's fair to say that we're now in a position where we can pretty much 80% of any project  100%  we'll say 80% of all projects we target we fined serious defects or insufficient designs or we may find the certifier may not have met their mark in reviewing certificates or actually compliance construction certificates, etc.  Ultimately allowing buildings to be occupied that shouldn't be occupied.  So that was a key piece of work.  That was all in place from 1 September 202.  Where has it led us though now and I'm going to run through just some numbers for you in that.  With design audits, as you can see, we've now completed 82 design audits since 1 July 2021.  Issued five stop work orders.  Some of those stop work orders, and there's one in play at the moment, actually it's just been revoked in the last 24 hours, have been in place for over six months.  These are significant developments that have been stopped for six months.  This was simply because they had built well ahead of what design and didn't have construction issued regulated designs and we heard Angus speak about that.  You must have them.  If you don't have them obviously we will look at stopping the work and then it's over to you how long that work will be stopped.

We've impacted around 9,000 units in those audits which is significant.  It's fair to say with the design audits, and as you can see, having a big impact, eight penalty notices issues for $40,000 plus and you'll see four practitioners have been referred for investigation.  I can say two of those were recipients of those four penalty infringement notices.  They didn't learn.  They were fined and then shortly thereafter came back to us again with the same issues.  You can't keep fining people.  You have to actually then say what next.  You have to escalate that compliance outcome to try and ensure change in the industry and rightly so we need to use media when we get these outcomes to make sure you're aware of it to show that the bad are being dealt with in the industry.

Some of the issues with design audits and we'll keep this fairly high level, fire services and waterproofing, two big ones.  We're  in pretty much every audit we do, we've only had  from the previous side you can see green.  That rates how many audits we've had which we deem to be reasonably compliant.  Doesn't mean they're fully complaint, but at a very high level.  But fire services and waterproofing.  The big one is insufficient detail for a builder to actually effectively construct.  That's a big one.  The design audit team will work very closely with  sorry, I should say the Fair Trading design audit team will work very closely with the design team for the development in what good looks like.  There is an educational component to it, but ultimately it is up to the practitioners to comply.  We want to see that increasingly grow.  If the designs aren't right the building will not be right and we see that.  We see that from our end to end process.  So designs have to be.  The other part we see is noncompliance with the design and building practitioners act generally.  We have unregistered practitioners trying to sorry, signing declarations, trying to upload, whether they be design practitioners or building practitioners, trying to upload documents the building practitioner into the eplanning portal.  They're not registered.  Can't do it.  So simple things like that.  The messaging wasn't very clear so we want to continue with that messaging.  We want to make sure we're loud and that industry are hearing.

Occupational audits, this is a big one too.  We started this on 1 September 2020 and that was a result of visiting a few buildings prior to that date and some of them we're still dealing with today.  I think 93 Auburn Road at Auburn comes to mind and we've seen media on that over the years and it still sits there today and we're continuing to work with that building.  224 occupational specific audits conducted, 144 anywhere any time visits.  I think it's around 26,000, 27,000 units that we've impacted as a result of those audits, 781 serious defects, and they're our reds, and just over 2,000 potential serious defects in that.  Big one there is the orders, 91 orders on 63 projects or developments.  I can say that's growing.  We now issue orders faster than we were previously.  It took time, but we're getting better.  We don't issue an audit report now in 14 days.  We issue a draft building work rectification order in 14 days.  The reason we do that is it gets the attention.  It calls out what the serious defects are and it allows the developer and their team to effectively work at rectifying or remediating those defects.  Hopefully to avoid the final order being issued, but we are moving faster and those orders are growing.  If you look on the RAB act orders on the website or the orders on the fair trading website you'll see a significant number and it's growing.

781 serious defects, though.  That's significant.  Some of these defects are ‑ impact the occupation of the building, both from under construction and legacy buildings that are occupied.  That's probably the part that concerns us the most is there are buildings out there which shouldn't have been occupied.

What have we seen in the OC audits?  Funnily enough not dissimilar to the design audits, fire services, waterproofing but generally moisture management is a big problem, particularly with cladding.  Structure comes into it as well.  General compliance with the provisions of the RAB Act.  This is only a very, very small snapshot of what we've seen in the field.  Obviously there's a lot more detail behind it, but the key callout here is go back to the design audits.  If the designs aren't right the building won't be right and we still go on to developments today where they're either working under designs that aren't construction issued regulated designs.  Angus made a really good point.  They're basically just unregulated designs and the builders building to them, or they've got regulated designs and they've been declared and the builder's not building to those designs, or there's been a change in design and they haven't gone back and got an amended construction regulated design.  When you go back to the design and building practitioners legislation, integral to a building or development under construction being compliant with BCA and code.

We add in certifiers because they're a key part.  This is a team.  Designers ‑ the developer's there, we have the designers, we have the builder and we have the certifier.  It is a team and it needs to work as a team.  The certifier is a public official and I know there's some certifiers in the room today.  There's a higher standard there for a public official to adhere to.  We've conducted audits of two key audits.  We audit constantly.  This isn't by any means all of the audits we've conducted.  We have conducted two programs.  One we called the railways yes certifier's program which is the 191 certifiers were audited and we actually did more recently a sample of councils, a number of councils, nine councils there, and in regards to their certification work on class 2 buildings.  What we found was similar results.  We did this intentionally because there had been a considerable, I guess ‑ there had been a narrative that private certifiers were to blame for what we've seen and I have no doubt there's an element of that industry that, yes, I would say from what I've seen is responsible or partly responsible for what we see in the field, but when we audited the councils we saw similar non‑compliance.  So it's not just private certifiers, it's a certification issue and we need to actually improve that as we move forward.  You can see in those numbers there the number of issues that were identified or non‑compliances with the certifier's practice standard or the code of conduct, just coming out, and also the number that we've had to refer four of those certifiers from the riskiest certifier program to our investigations team.  Not only that, two of the certifiers were subsequently cancelled and disqualified.  So that's the key part here too.  Since late 2018 we have cancelled and disqualified eight certifiers, unrestricted, from the industry.  I'll be honest, there's a few more to go.  We continue because we need to raise that level.  They're ensuring governance as well.  We're there, but we can't get to every building.  We get to a lot, so we need the certifiers to actually be there and whether it be class 3, 9c, class 2, it's across the board.  Obviously you can see from the certifiers, again not the same issues, but similar.  There can be that apathetic attitude at times to the work, it can be not scrutinising certificates to the level required, even to the point of actually know who even signed the certificate, what was their qualification.  It can be the construction certificates being compliant and I won't go into too much detail.  You can see it on the screen, but the reality is there needs to be that higher bar set when we certify, particularly class 2, class 3, class 9c, but any building.  But any high rise building there's that increased element of risk.

Before I go into this, a few more things on that.  We have the capable team, we're looking forward to class 3s and 9cs.  We have inadvertently wandered on to a class 3 project here and there over the last two and a half years and what we've seen is identical to the class 2 space on those developments.  So we expect that could be the case when we look at class 3s.  However, the industry has had time to look at what we're doing with class 2s under the DPB, the RAB act...our key pieces of legislation and hopefully they've improved, but we'll see.  In regards to what we're doing as a regulator, I talked about certifiers, we are taking that heavy hand.  Angus spoke about this and I think it's a good point.  There has been four builders cancelled and disqualified, there are quite a number sitting there as well that are now going through a process considering what their future may be and it's simply because poor quality buildings.  That's what it comes down to and we can't tolerate that as an industry, as a regulator, but as an industry moving forward.

The key message from me is we are data driven now.  We are capable and we are empowered.  We want to work with industry.  There is a big education piece in this.  I don't step away from that.  We want to make sure that's out there and we want to make sure we continue to talk with all of you.  At times we may not agree, but we'll still push forward with what action we take.  We're not afraid to issues orders, not afraid to push undertakings to bring about compliance.  So it's not about if we'll turn up on site, it's now about when we'll turn up on site.  450 developments we've really been to date in the class 2.  36,000 units we've impacted and the team is growing.  We're currently recruiting to another 10 senior compliance officers to join the team to assist with class 9cs and 3s.  So I thought it's a good opportunity to do a bit of promotion work here and say if you know anyone that's interested, reach out.  It's a good place to work.  You're definitely benefiting everyone in the room here today by bringing about change in this industry, and you'll continue to grow and learn.  So anyone interested, obviously this pack will be shared, but there's a few key contacts there, but you're welcome to reach out to me too, but in closing remember it's not if, but when.  We will be there.  Thank you.

Matt Press

Thanks Matt, and thanks Angus.  A lot of detail covered there about the why, the rationale for the legislation, what we're trying to achieve, I think you've got the clear message from both Angus and Matt about it's design then construct, not at the same time.  Now we've got Meghann Sikorski.  Meghann is our expert on the e‑planning portal.  She's now shaking her head.  Doesn't want to be called an expert.  Well, she is.  The e‑planning portal has been a vexed issue it's fair to say.  When we first picked it up it wasn't the most usable digital solution out there, but we've spent a lot of time and effort investing in it to make it better and I think now most other states and territories across Australia wish they had their own e‑planning portal because we now have a single source of truthful of the building documentation that goes into the making of a building and it's potentially world leading to be honest to have that capability.  We're working on making it better, but it will for class 3 and 9c become your key mechanism of communicating to us all of those declared designs that Angus and Matt have talked about, so Meghann could you please share more detail on the mysteries of e‑planning today?

Meghann Sikorski: p

Thanks Matt.  I'd also like to acknowledge the Traditional Owners of the land on which we meet today and thank you to Auntie Kerrie for her very warm welcome to country.  Yes, I'm here to talk about the NSW Planning Portal or the e‑planning portal as it's been mentioned today.  They are one in the same thing so don't be scared if you hear one term or the other.  This is about implementing the how we fit in with the DBP Act and the RAB Act and how you make those compliance declarations, building declarations and meet all of the legislative requirements in the system to get you through.

The first thing you need to do is if you don't have an account in the NSW Planning Portal is registering one.  It's really easy.  It's through the NSW Planning Portal website, you can do it yourself.  If you are a developer you don't need to have your registration number, but do make sure that you register as a developer account and not as an applicant account because there are different functions that each of the profiles can do in the system.  If you're a building practitioner make sure that you're registering with your building practitioner registration number from Fair Trading which starts with a BUP, and link through to the body corporate company that you're working for, just so that it can allocate the cases to you correctly.  The next part is the upload and lodgement of the designs.  So we've talked a bit about making sure that you have the construction issued regulated designs and that you're uploading them and declaring them on the portal, and these also need to be done with variations as well.  Important to call out that you don't have to be the registered building practitioner who uploads the designs to the portal.  That can be delegated to an admin officer or to another practitioner, but it is only the registered building practitioner that can make the declarations.  That's a really important call‑out.  If you are not registered and don't have your registration linked on your planning portal account it will not let you make the declaration.  We've had a couple come through from class 2 so make sure when you register you've got your registration number there.  The planning portal has been set up to walk you through all of the different compliance gates that Angus and Matt have spoken about already today.  That includes the expected completion notice date, the building work levy and the final as built declaration that the building practitioner needs to make.  It will physically stop you from going through to an occupation certificate application if you have not met all of those compliance gates.

We have made some changes to the NSW Planning Portal quite recently.  This is about a month old.  We've introduced a my development site dashboard.  This is a developer view of the dashboard and previously the portal was a very one to one relationship, very hard to track a development in the portal because there was a one to one relationship with construction certificates and intention to seek occupation certificates.  What we've done is brought everything into one view under the my development sites and that includes the development application or the CDC, all of the CCs are attached there, your building work case ‑ I'll touch on the building work case in a bit more detail later.  That's basically your document repository for the development and then your occupation certificate cases that you're going to be applying for.  You can have one or multiple occupation certificate cases off your development off the building work and that just depends on how you've structured your strategy for occupation.

So again I'll call out this is the developer view.  Unfortunately building practitioners don't have that view at the moment.

Okay.  This is an overview of what it looks like in the portal from a workflow process, I guess.  It starts with the development approval or the CDC and then we load in the construction certificates.  Once you're ready to commence your work and you have your construction issued regulated designs you can create your building work case and as I mentioned that's your document repository full of your regulated designs and documents.  From there you enter your expected completion notice and then you upload your designs, your builder goes in, building practitioner goes in, declares the designs and then off you go and you can start work.

Within that six to 12 months before you're intending to seek your occupation certificate you'll need to create your intention to seek occupation certificate case ‑ makes sense.  That is a requirement under the RAB Act and there's a couple of different stage gates there. That's the assessment of the building work levy, so you'll get an estimate of that once you complete your expected completion notice, you'll declare as built, so once you've finished the project or finished the build the registered building practitioner will go into the system and do their as built declaration and then it goes through to Matt's team who does the occupation certificate audit or assesses it to see if we need to go out for an audit.

The important part is once that's done you've got 90 days after your occupation certificate has been issued to go back and upload any variations because we recognise that variations come through potentially after OC, so you've got 90 days to do that or 90 days to declare there were no further variations.

It's really important to note with the expected completion notice as part of the transitional arrangements that any projects that are coming up to be completed within the next six months really need to get on be to the portal within the first 14 days from 3 July to complete their expected completion notice.  I really encourage you, if you do have any projects that are coming up for completion in the next six months to reach out to our team and I don't have our email address on these slides, but I will add them in before they're sent out, just so we can help you manage that process in the portal.

There's a few resources available to you, some guides, some training on the NSW Planning and Environment website.  They've got quick reference guides that have all been updated to the new structure and that's applicable across all the classes, so class 2, 3 and 9c and I've popped the link there for you.  We've also included some how‑to videos which are step by step videos on how to do some of those processes, so check those out.  They're about six‑minute videos.  There's also some instructor led training by the department of planning and environment.  Spots fill up very quickly so I encourage you to log on and register for one of those sessions.  It's two hours really well spent just to really understand the end to end lifecycle in the planning portal.

There's always help and support available so if you need help you can contact the NSW Planning Portal team, you can call them or pop their email address there as well and as I said I'll pop our email address on the slides before they're circulated, so if you have any questions about that expected completion notice you can reach out.

That's it from me.  Thank you.

Matt Press

Thanks Meghann.  Meghann is staying for the panel after so you can ask her more questions.  Now we have the Building Commissioner.  I don't think the Building Commissioner needs too much introduction.  He's well known for popping up on sites anywhere any time.  He doesn't yet have a cape that we're aware of, or a pair of underpants on his head or anything like that, but he does turn up very regularly to building sites in the class 2 space as many of you have probably seen and will be doing the same leading the team for the class 3 and 9c.  David, thank you.

David Chandler

Firstly just let me call out the team that's done the presentation today.  I sit back and we're pretty critical of ourselves at times but I think you've done a great job team.  It's just fantastic to know that we've just welded together the legislator, the deliver, Matt and what's happening in the field and I understand you're getting some feedback from your team as well talking about how happy they are with the way you're representing the work that the team is doing.  So it gives me a lot of pleasure to see we've made this much progress because I can remember the first couple of meetings that we had when we sat down and said we were going to do this and I think there were some descriptions that said no way Jose, some were a bit more graphic than that, but here we are at a point where we're now starting to see the rubber really hitting the road.

I just want to touch on a couple of things because this is the intersection of where we see a lot of class 3 and 9c buildings, where we're seeing that as we end up having fewer green field developments at the outer edges of our cities we're now moving into brown fields developments and redevelopments of sites and what that's doing is it's pointing to a future for class 1 builders that's not necessarily in the class 1 space.  We're seeing some of these players moving into the early buildings that could qualify them for class 2, but they're only bringing to that space their class 1 knowledge and their class 1 behaviours.  So what we have to really confront those folk with to say is you really need to go back and refresh your thinking.  You need to become familiar with the building code of Australia and the relevant Australian Standards and you really need to recalibrate your attitude to supervision of the works because class 1 has historically looked at 20 or 30 trades per house, one supervisor per 20 houses who might drop in once, maybe twice a week.  That's not enough supervision for the buildings that we're talking about today and I'll show you why.  We are currently working with the industry, HIA and MBA, to actually fill out what that capability gap is because we won't be able to simply address this challenge with the graduates coming out of university and TAFE at the moment.  We've got to recognise there's over 20,000 players out there building houses who have been at this for, some of them, 40 years, and they think they know everything.  Well, what we're seeing is what they know is to do often times the non‑compliant work over and over and over.  So we have to unlearn some of those behaviours.  So we'll be producing a range of learning modules to help fill that space up, but we do need to point out if you think that you actually are able to fly in the sorts of buildings that we're talking about today, have a really good think because don't assume that you have those skills.

Here's a diagram that just gives you a breakdown of the things we've seen and the intensity of seeing those things as we've built out the inspections over the last few years.  You're all going to get these slides so you don't need to necessarily try and capture them all here.  But you can see that fire safety and waterproofing are the most frequent fliers of all of these situations and we know that in boarding houses and aged care they're going to be the things that we see most often.  We're still discovering people that have yet to discover that water runs downhill, not uphill, and that's not a joke.  That is absolutely serious.  We see buildings where people do not understand the moisture that moves backwards and forwards through the facades of buildings, we're really being confronted with this as we take the cladding off to remediate flammable buildings where we're seeing absolutely layers of mould in behind the facade where people just don't understand that moisture management is not just a thing that you do at the floor, but it's a thing you do in every other part of the building.

So waterproofing is still the big factor.  I think that's changing, but I think what we're going to see very frequently in the new additions to the work we're doing in class 3 and 9c is a lack of understanding of things like the first thing you do when you lay your building out is to have a look at the fire compartmentalisation of the building.  Where are the edges of fire management going to exist, start, stop?  Where are you going to pay attention to the penetrations and the improperly constructed differences between those spaces?  I was only on a project a week ago which was a newly completed student housing accommodation and frankly they had no idea about the compartmentalisation of that building.  I did a walk-through of a fire corridor and the rubbish compactor was actually landing in the bottom level of that building in the fire corridor.  I said what about this?  They said what's the problem, Commissioner?  I said well that, and they went oh, that.  I said yeah, that is in a fire corridor.  Now what we have is people out there who are not sensitive to these things and we're going to have to bring them into sharp focus to say you better get this right.  We will stop the job.  We will make you go back and fix it.  You will need a declared design to fix it.  So it's not a five minute we'll sort that out, come back next week, Commissioner, we'll be right.  That's not the journey you're on.  You're going to have to do a declared design to sort these things out and that's going to take some time, quite often as long as six months.

We'll be very hard from day 1.  We were a bit soft as we started class 2 because we didn't want to really shake the tree too hard, but we increasingly shake that tree, but in this space we're going to shake it from day 1 very hard because this is where the most vulnerable people lay their heads down at night.

Some of you won't have identified that in the top right‑hand corner of the ‑ top left‑hand corner of the declared designs is a DWG file that basically captures the fingerprint of the person who uploaded the drawings.  So it's a one‑time digital chop that records who uploaded those drawings.  What we're finding when we go to the job site is that the revision numbers have changed substantially.  So when we sit down on the job we go into the shed and say right, let's have a look at this.  We look at the top left‑hand corner of the drawing and we look at the revision number on the drawing that we've got and quite often we're seeing 8, 10, 12 revisions since the drawings were declared.  Well, we'll stop work on that if we feel that they were material variations and quite often they are.  The quality of work that we're seeing is representative in some of these slides.  That was in a student accommodation boarding house building that we went on.  This builder really shouldn't have been allowed to build a tree house.  He had no idea.  These are further images through the same building.  I just can't cope with people who don't have pride in what we're doing in our industry.  Nobody is left in any doubt as to how I feel when I run into these things on the job site.  Sometimes it gets a bit colourful and I'm sorry about that, but I have a very low tolerance of people who are prepared to put this industry's brand at risk.

Now we're going to have a conversation about class 1 in the coming months and the first conversation that we dealt with when I was appointed as Building Commissioner was Commissioner, if it wasn't for opal towers and mascot towers we would not need a Building Commissioner.  Well, we put sunshine on every exhibit that we saw in class 2 buildings and every week I still see some of these things and we have disabused the people who started off with the notion of if it wasn't for mascot towers and opal towers we wouldn't need a Building Commissioner.  That myth has left us long ago.  So in anticipation of us going into the class 1 space - where's Yin, in you're in the room aren't you?,   we went on a shadow shopping exercise and we went across 60 odd projects totally at random.  There was no risk.  We were plodding around building sites on a Saturday morning having a look at projects, probably wasn't invited on to a few of them because there was no one there, certainly there were no supervisors while there was anyone doing any work, so mind if we come on and have a look around?  Do what you like mate, don't care.  The sites were under no control at all.  After that I did another 30 or 40 in the hunter and just recently more in the Ballina space.  In these pictures you'll see over 60% of the buildings that we went into had these sorts of issues.  Just have a look at this brick work.  Just have a look at this.  This is goodness gracious.  How would that wall tie be considered to be embedded in that joint?  Where's the moisture barriers?  We will be naming and shaming those builders from here on in.  There'll be no doubt.  But there's a real correlation in the work that we've done and I think this is the clear message I'd like to leave you with today.  The risk profile that we attach to a project starts with reference to the number of SafeWork notices that a builder gets during the course of construction.  It is the single most indicator of a builder who is most likely to be building non-compliant work.  The second indicator is if they're habitually using the same certifier who is on our watch list.  Now, we can't tell people who those people are because if they're in investigations they've got to go through due process, but at least Matt Whitton and his team know who they are so part of our risk profiling is if you are on our list of potentially risky certifiers we join safety up with the certifier and we could almost use that as our sole data source to identify where the risky players are, but we're  as Matt said we're getting to a point now where our analysts produce for us a list of 20 buildings a month that would say in two months from now these are the choices that you have, we select about eight to 10 out of that 20.  Generally we pick more from a geographic spread once we've got the 20 most risky projects coming up in the next couple of months we tend to just simply pick on the basis of geography because we don't want to just simply be landing in the same place, so Wollongong, Newcastle, Coffs Harbour, Tweed Heads, all the way down to Kiama.  We spread out the love and then we set about actually planning to visit.  So safety and certifiers are the most serious indicators to us of where we're going next.

I want to point out a couple of other things.  Are they on this slide?  No they're not because they're considered too offensive.  Please don't leave the room today without me sharing with you my class 1 old methods of construction photographic folder.  You'll need to turn airdrop on, everybody for 10 minutes, tap me on the shoulder and I'll drop a picture box to you because in that picture set it doesn't just point out the things that are non‑compliant, it shows you the enormous amount of waste that is being created on these building sites.  The amount of rubbish that goes to the tip I estimate ‑ we'll get some research done on this, but I estimate that we send about three to 400 millimetres deep per square metre of built area to the tip by way of on site generated construction met.  Then I'm met with we get it recycled, Commissioner, yeah but for all that stuff there you've already put the carbon in the atmosphere.  It's a lovely after thought.  It's like having someone take a dirty nappy and wash it for you, but it's already got the dirt in the nappy.  We really need to see site‑generated construction waste as a further indicator of a likely disorganised building site, a likely non‑compliant site.  If you have a pile of rubbish out the front of your site they're the ones that I now pull over to and do my anywhere, anytime inspections on.  The bigger the pile of rubbish the more likely I am to pull over to the kerb and pop in.  We use the opportunity to go through the rubbish, we pick up the corking tube and we pick up the membrane that goes under the slab and have a look and see if it complies with the Australian standard, because I'm a habitual bin diver as well, and I've got one other weakness is I just can't help photographing inside the toilets in the site sheds.  Why do I do that?  Well, I think the day of terms like 'grubby subby' are over.  I don't think they are over.  I will personally take an absolute vendetta on people who offer the workforce sub optimal facilities on building sites.  I can't tell you how bad some of this stuff is.  You'll see that when you download these images I'll share with you.  Some of them are just simply disgusting.  If we have in our mind to attract the next generation of construction professionals, if their first day on the job site is to experience some of the photos that you will download from me today then you'll see why we almost have 100% success rate in getting them to go to another industry.  If we can think we're going to bring women into this industry and give them a decent environment in which to join us, we need them in the workforce, if we ask women to use the sorts of facilities that you will get in this picture set that I will share with you, and I want you to share it with everybody you know, open it up on a Saturday night at a dinner party.  Yes if it causes someone to be a bit queazy at the dinner party say yeah, but imagine if you sat on that.  Now these are indicators of an industry that's 20, 30 years too late modernising.  So all of that now is on our agenda and if we've been gentle on this on the way through, naming and shaming from here on in is the way we will play the game.  So I've got a fantastic regulatory capability, Matt you lead a great team, we've got great people in the digital space doing great work in the digital area.  People wonder why we turn up on a job site, they say why did you pick us?  We say you picked yourself.  We didn't pick you.  You picked yourself.  What I can now do is to add the further atmospherics to say please don't let me see any of this because you will be a feature of what we've regularly now called the Sunday Roast.  That's the blog that I put up typically on Sunday afternoons on my LinkedIn site and if you think that doesn't reach, typically they now get to about 150,000 views per post, and I get builders calling me, developers calling me and saying Commissioner, Commissioner, don't put me up on Sunday.  I say mate, you're going up.  You're skewed.  I just want people to understand that we are deadset serious in making NSW the very best place to buy an apartment, to own and live in an apartment, whether you're a renter or an owner, you're entitled to the same privileges of a modern, appropriate space to build and to live.  Hopefully the message is clearly delivered and please get serious about the legislation expansions that we've spoken about this afternoon.  Thank you and all of the people online, I think ‑ we were about 1100?  We had about 1100 people, about 900‑odd online.  Big reach.  Thank you everybody for attending.

Matt Press

I just Angus, Matt and Meghann if you could join us.  While they're doing that we had a little Slido question at the start.  I'll just ask if we could bring some of the results up to see what people have answered.  The question was which industry best represents you.  The larger words are the majority of responses, so architecture, building designers, certifiers, the core, but a pretty good representation project managers, waterproofing, engineer, consultant, contractor, building surveyors.  Thank you.  We're going to keep using that QR code link and going to put it up on the screen again here if we can do that, if you missed it earlier.  This is the QR code you've got to use if you want to ask a question because you're online.  For those of you in the room we'll have a roving mic.  You've met all of our panellists in their discussion. 

Angus I thought I would start with you.  You went through a lot of detail there and I thought one of the trickiest parts we already had a lot of questions for before the event was around the transitionals. 

Can you go through again what types of projects are captured from the commencement date in July?

Angus Abadee

We've started with new class 3 and 9c and that's really important.  If you are an existing class 3 or 9c and you're doing renovation remediation work you've got a year before your subject to the requirements under the design and building practitioners scheme.  Notwithstanding the fact that the RAB Act powers will allow us to come in and look at that work as well, but you don't need to have registered design and building practitioners doing that work.  Where you have started work on a new class 3 or 9c building we're very much focused on what's the date of your construction certificate or compliant development certificate and have you started work yet.  If you've started work on it you continue to be able to do that work with your existing designs and builder and you just need to make sure you lodge those designs on the e‑planning portal at completion.  If you haven't started work on that compliant development certificate or the construction certificate you need to get yourself registered to declare those designs and you need a registered building practitioner to oversight that work.  There are going to be some circumstances where the design practitioner is not eligible and so we do have some transitional arrangements in place that allows that designer to hand it over to someone who is registered to declare on their behalf and so we waive the obligation for that design practitioner to have been intimately involved in the production of those designs in those circumstances, but unfortunately if your builder is not able to be registered you're going to need to get a new building practitioner.  While we're very comfortable to have someone looking at those designs, that third party review, that's part and parcel of how the industry should be working, we want the person who is oversighting that, the construction site, to take responsibility for that site from day 1 of the reforms because that's what's going to be needed to change behaviours.

Matt Press

Thanks Angus. 

David Chandler

Can I just point to this question here which is isn't ICIRT coming from a private company, is the NSW Government being transparent in their business dealings but only promoting one private rating company, is there a conflict of interest?  I think it's really good, this question, because it's terribly important everybody understands the level of transparency we are committed to.  Every agreement we come to with a developer will be published in a public domain.  There will be no secret agreements with anybody.  In the process to select ICIRT which was an independent ratings tool and I often use ICIRT like because I'm hoping there will be other players in the market in the years ahead, governments do not publish lists of who the good players are, only the bad ones.  That's about 20% of the players, but there's 80% of the players out there that should be recognised for their trustworthiness.  That's not a business that's a government thing, that's an industry‑led capability that is providing for the first time an opportunity for consumers to say oh right, that developer is rated or that builder is rated and provide a preference to dealing with them.  Now we went out to tender for that, so if anybody wants to identify the process we went through, there was a public tender, we only got a couple of responses, we only got one response from an organisation that is a regulated ratings agency.  Now it is terribly important to understand that whoever provides these sorts of ratings must be regulated.  That means APRA must regulate them.  We had a number of providers who put their hand up and said we can do this, but what they were offering was an interpretation like a Trip Advisor.  It was basically off the back of social media and it wasn't regulated.  We can't put people through the process of simply having judged by the crowd sitting around the circus.  There's no conflict here.  If anybody wants to come in and see the tender process we ran, the diligent process, we reflected all the tenders in the first instances, we went again and I have to say to you that I'm very pleased with the product that he can we fax have come up with.  It's given consumers something they've never had before, it's changing the game and the most important thing is what it does do is it closes the door on people who have been habitual Phoenixes.  If you've been a phoenixer in the past you will not get an ICIRT rating.  We are closing the door on phoenixing as a game in NSW.  Please don't think there's any conflict of interest here.  This is in the public interest and it's all transparent.

Matt Press

Meghann, a practical question for you.  Who can lodge documents on the portal?  Who are the users?

Meghann Sikorski

A developer or an appropriate practitioner can upload documents to the planning portal, but it is only the registered building practitioner that can do the lodgement and declaration and that's for the construction issued regulated designs, the variations and for that final as built declaration.

Matt Press

A question from the floor.

Question from audience

Just following on from that, you mentioned earlier that there's 90 days to upload variations after the OC is issued.  Now, 90% of the time when an OC is issued settlement occurs 14 to 21 days.  Is there a way or who can have access to those documents after that?  Is there going to be the owners corporation?

The documents that have been uploaded to the planning portal?

How do we know they've been done?

It's a big problem.

Meghann Sikorski

It is, yeah.  It is a legislative requirement and it's one of the requirements that is checked by the audit team.  The planning portal is restricted to who can access those documents so it is up to the developer, building practitioner and the certifier also has access to those documents, but it is one of the audit checks that's completed to make sure that's being done.

Angus Abadee

There is intention to make this available to the owners' corporation so that will go through the Strata portal which we're currently building out, but the intention here is for the first time to create an absolute pathway to the documents that relate to the building that actually was built, so we've had to build this out progressively, but I can assure you access to the consumers is the mission here.

Matt Press

The Strata portal or the hub you might have heard about, that becomes the owners corporation repository of all the documents collected on the e‑planning portal through the construction phase, so no March manila folders...they're in that digital library going forward.  Was there a question over here?  Did I see a hand up the back there?

Question from audience

David from FPA Australia.  The question is you guys are doing a great job on doing buildings, project remediate and that but we sort of have a silent EV car fire situation where we're really not addressing.  Has there been any thoughts on addressing that or looking at that?

Matt Press

Matt did you want to start with that because I think it's definitely been a big topic in the inspectorate.

Matthew Whitton

Yeah, Matt is correct, it's something, David, we are definitely discussing and looking at and there is obviously a working group within the Department being established to actually look at EVs in general and in Strata buildings.  When we first probably tackled this it was around 12 months ago when it was spoken at I think at the FPAA conference from memory, David, we took that away and we did speak about it.  We have seen this in a number of buildings and obviously it's coming.  I guess from my perspective the way we look at it we will treat it as an incident, but we're looking at as a Department how we respond to EVs and charging stations in particular in Strata buildings.

Matt Press

Angus, anything to add?

Angus Abadee

One of the issues we've seen with existing buildings is that people try to put the functionality for charging in and they usually get it wrong.  They compromise the existing fire safety systems, they compromise integrity of the structure by drilling holes here and there and running cords across the car park.  We know that the changes under the NCC C have required the capacity for the roughing in to happen even if you don't put the charging in.  So I think that's a critical part of it so that we need to make sure not only do we address the fire safety risks of EV charging and have a really good plan on how to manage that, but we make sure that providing that functionality we're not compromising all the other building elements and that the designers and builders are planning for that ahead and integrating that and working out what the final state looks like.  There's more work not only in the Department but at the national level because we don't have a clear answer exactly how we can properly manage this.  I do know with the EVs a lot of the inputs into the batteries that are causing these really comprehensive issues, they're changing and they are reducing the risk, but there's a lot more work we need to do in this space.

Audience member

Because the NCC just put out a guideline on EVs and I think as a state we should be looking at doing more.

Angus Abadee

We're on board with that.  We definitely have work underway to make sure we are ahead of the curve on this.

David Chandler

I just would add we're trying to lead the way on so many fronts, for example on the facade replacements we're leading the conversation on fire barriers.  It's best practice in our view but it's not under the requirements of the building code of Australia.  We're putting in fire barriers on every facade we replace, but I want to call out car stackers because I know that many of you will be starting to look at that as a way of increasing the car parking ability in buildings.  We are finding car stackers that are nothing more than waiting guillotines to cut people in half.  We've just issued the first prohibition order on a building in Crows Nest where we have just simply unsatisfied are every explanation of what this piece of dangerous equipment is all about.  We are seeing buildings that have got car lifts in them that are no different to what you see in your auto mechanics shop where in your auto mechanics shop says only authorised people in this space and yet we're allowing people to move in as residents and as renters in buildings to use some of this equipment.  We will be very a very, very big focus on this going forward so I would urge you as designers to really go and get information and listen to what you need to hear, not what you want to hear, because if we catch you in a situation where we find a compromised car stacker or car lift then there is potential that we will stop the job as we've done in this job in North Sydney.  It's a very serious concern and some of the hazards we're seeing I just can't believe anybody would be prepared to put any other human in harm's way like that.

Matt Press

We are running a bit over but I think we've got some good questions so we'll try and get in a couple more.  Angus, one for you.  In the process of getting declared designs and lodging them where do certifiers fit into this and how are they empowered or supported?

Angus Abadee

We fast realised when we did the first iteration of the design and building practitioners that we had focused very much on the engineers and the designers and the builders and we really became aware that certifiers were absolutely the linchpin of the hire process.  Matt has talked about the work we've done in the certifier audit space to identify the risky behaviour of certifiers carrying out those public duties.  The lessons we learned from that we then applied to the DBP process so that we could understand that the certifier is the gateway. So the first piece here is that you need to have the declared designs by a registered design practitioner and then those are provided to the certifier to review. Now, we expect the certifier to review those designs, confirm that all the designs if followed would achieve compliance with the building code and only at that point can they issue a certificate, so a compliant development or construction certificate. We know that in the past the quality of documentation that was provided to certifiers was well short of the mark, and we know that they’re getting much more comprehensive much more complex designs that they’re able to review to make informed decisions about whether that project should proceed under that construction certificate. The benefit is that they also are going to be involved when variations occur, because there’s an audit trail for every time something changes, it has to go back to a design practitioner, reviewed and signed off. That certifier is not there to make sure that the builder does the right thing, the designer does the right thing, they’re to make sure that at the end of the process, the building can be certified. This is not about abrogating responsibility over to the certifier, but it recognises that they are such a critical part to make sure that there is that auditable trail of documentation. And I encourage people to look at the diagram that Meghann included in her slides which really gives that seamless process from the start of the project to the end of the project and you can see the certifier has their fingerprints at every stage, design stage, approval to go, and then the review stage when their going in those critical stage inspections and before they’re issuing their next construction certificate to make sure those designs have been followed, and they are sure that that work will comply with the building code, if those designs are followed.

Matt Press:

Thanks Angus. So we have hit full time there, but for those of you who are in the room we will be available after the session so we can continue the discussion. I’d like to say thank you very much for the extreme interest we’ve had online, over 1000 people joined us, we hope the session has been helpful. For everyone that’s attended both in-person and online if you could please use the Slido and give us your feedback, we do want to make sure that we’re listening and responding to your needs. As I said at the start, this is very much the start of the conversation here, the reforms commence in July, but this is the start of our relationship together as we go through the journey of implementation so please make sure that you make contact with some of the team here to follow up with questions and guidance and education and any of your needs, because it’s happening and we’re very much there to support you on this journey. Thanks very much for today.


Questions and answers from the event

General class 3 and 9c information
1. What types of buildings fall into class 3 and 9c?

The types of buildings in these classes are set by the National Construction Code (NCC).

In summary, Class 3 buildings are defined as a common place of long term or transient living for a number of unrelated people, such as: boarding houses; guest houses, hostels, backpackers; hotels and motels; dormitory style accommodation; workers’ quarters for shearers or fruit pickers; prisons, and detention centres; care facilities; and school and university accommodation.

Class 9c buildings are residential and aged care buildings where: residents may need various levels of care, 10 per cent or more of the residents need physical assistance for their daily activities, aged care residents are provided personal care services.

Refer to the National Constructions Code (NCC) for more information on building classes.

2. Do buildings that have mixed use, including class 3 parts, come under the laws?

Any new building that is mixed use and contains class 3 or 9c parts needs to comply with the new rules from 3 July 2023.

3. Do these changes only apply to buildings over a certain number of storeys or square metres?

Any new class 3 or 9c building (or mixed use building that contains a 3 or 9c part) needs to comply with the new rules from 3 July 2023.

Transitional arrangements
1. Where a development has commenced construction, CC is staged before and after 3 July and completion is expected after 3 July 2023 what transitional arrangement apply? Is Expected Completion Notice expected to be given?

If you already started building work before 3 July 2023, the rules and obligations under the DBP Act do not apply to the work that has started under that particular construction or complying development certificate. However, the designs you have relied upon so far will need to be uploaded to the NSW Planning Portal.

A design compliance declaration does not need to be lodged with the designs. Additionally, a building compliance declaration does not need to be submitted.

Any subsequent building work started on another construction certificate after 3 July 2023 will need to comply with the new rules.

You will need a NSW Planning Portal Developer Account to submit the ECN.

2. Are there transitional arrangements in place for class 3 and 9c projects that are already underway with an unregistered builder, under a staged CC process where half the building is already under CC under construction?

If you already started building work before 3 July 2023, the rules and obligations under the DBP Act do not apply to the work that has started under that particular construction or complying development certificate. However, the designs you have relied upon so far will need to be uploaded to the NSW Planning Portal. A design compliance declaration does not need to be lodged with the designs. Additionally, a building compliance declaration does not need to be submitted.

Any subsequent building work started on another construction certificate after 3 July 2023 will need to comply with the new rules, including that the builder will need to be registered as a building practitioner under the DBP Act. Builders without a licence or certificate under the Home Building Act 1989, will be able to apply to become a building practitioner under the DBP Act from 3 July 2023.

3. I’m working on a Class 3 project with already 3 CCs approved already last year. Last CC is in August 2023. What is the requirement in relation to documentation and the portal uploads for the CC and the OC?

If building work is scheduled to start after 3 July 2023 under a particular complying development certificate or construction certificate, the new rules and obligations under the DBP Act apply to you. This applies regardless of whether your construction certificate was issued before or after 3 July 2023.

If you already started building work before 3 July 2023, the rules and obligations under the DBP Act do not apply to the work that has started under that particular construction or complying development certificate. However, the designs you have relied upon so far will need to be uploaded to the NSW Planning Portal.

Any subsequent building work started on another construction certificate after 3 July 2023 will need to comply with the new rules.

4. If you have commenced construction on a CC approved prior to July 3, the only requirement was to upload OC Documentation to the portal. Do these need to be declared design, and is the portal the already established NSW Planning Portal?

As part of the transitional arrangements, if the work commenced prior to 3 July 2023 the final set of designs will need to be uploaded to the NSW Planning Portal. These designs do not need to be declared, however work on a different CC that commenced after 3 July 2023 will require declared designs.

The designs are uploaded to the NSW Planning Portal.

5. Where work has commenced prior to 3 July 2023, is the building practitioner required to complete the building compliance declaration on the NSW Planning Portal prior to applying for the occupation certificate?

Where work has commenced prior to 3 July 2023, the building practitioner is not required to complete the building compliance declaration on the NSW Planning Portal prior to applying for the occupation certificate.

Regulated designs
1. Who determines if a regulated design is required?

It is up to the design practitioner to determine whether the design they are preparing is a regulated design. The Design Practitioners Handbook provides further guidance on how to determine this.

building practitioner is then responsible for the lodgement of all regulated designs and related design compliance declarations before building work can start. They can delegate lodgement to an ‘appropriate practitioner’ who must be a registered design practitioner or a principal design practitioner.

A regulated design is required for building work that involves a building element or performance solution. ‘Building element’ means any of the following: fire safety systems (including passive fire), waterproofing, building structure, building enclosure, and building services that are required by the Building Code of Australia.

2. Who takes ownership of the regulated design related to prefabrication of bathrooms in Class 2 and Class 3 buildings?

These elements would be covered by the registered Design Practitioner, which ensures compliance of designs with building regulations and codes.

3. Is it acceptable to produce regulated designs by 'element', rather than by project area?

All regulated designs are for a building element or performance solution. If the scope of the design includes a building element the design is required to be a regulated design.

4. Are there planned changes to the DBP design guidelines handbook, where there may be different minimum design requirements for class 3 and 9c classes, compared to class 2?

It is not anticipated that the Handbook and or the Regulated Design Guidance Material will need to be changed to include addition design aspects and details for class 3 and 9c buildings, however they will be updated to include appropriate references to class 3 and 9c buildings and the DBP Audits team is currently reviewing the contents of the Regulated Design Guidance Material.

Alteration and remediation work
1. Do these changes apply to extensions or renovations of existing class 3 and 9c buildings? What about remediation works to class 3 and 9c buildings?

Alteration or renovation work for existing 3 and 9c buildings will be required to comply with the DBP Act from 1 July 2024. Until then, work can continue on these buildings without being registered or lodging documents to the NSW Planning Portal.

2. What is considered an alteration or addition. For example, a new two storey wing to an existing student accommodation that joins a common existing foyer?

If this addition will have a Construction Certificate, this new addition will need to comply with the DBP and RAB Acts from 3 July and require a declared design.

3. With regards to repair of Class 3 and 9c do the same aspects of 'Emergency Works' apply, especially with regards to waterproofing?

Yes, a building practitioner will be able to undertake 'emergency remedial building work' on Class 3 and 9c buildings, as long as the work meets the criteria set out on the NSW Fair Trading website. Alterations and remedial works on existing Class 3 and 9c buildings are exempt from the DBP Act until 1 July 2024.

Practitioner registration
1. How do we register?

Please visit the design practitioner registration on NSW Fair Trading and follow the links under 'How to Register'.

2. If I am already registered for class 2, do I need to register for class 3 and 9c?

If you are currently registered to work on class 2 buildings your registration will automatically apply to work on class 3 and 9c buildings.

3. What experience pre-requisites are required to register?

Eligibility to work on class 3 and 9c includes undertaking mandatory Construct NSW online modules: Navigating the Design and Building Practitioners (DBP) Legislation, and The Value of Australian Standards. More information on eligibility criteria to become registered can be found on NSW Fair Trading.

4. Can I register as a Building Practitioner for class 3 and 9c, if I haven't met the experience requirements for class 2 registration?

If you hold a current contractor licence or qualified supervisor licence under the Home Building Act, you can register now to work on all building classes.

If you do not hold a licence under the Home Building Act, you can register from 3 July to work on class 3 and 9c. You cannot work on class 2.

Eligibility to work on class 3 and 9c includes undertaking and passing mandatory Construct NSW online modules: Navigating the Design and Building Practitioners (DBP) Legislation, and The Value of Australian Standards.

5. Is there an opportunity for qualified building designers to become registered design practitioners without being a registered architect?

Under the DBP Act, there are two established registration classes for Building Designers: Design Practitioner - Building Design (low rise) or Design Practitioner - Building Design (medium rise). These classes are able to work on Class 2, 3 or 9c buildings. To be eligible for these classes, a practitioner must have an appropriate qualification in architectural or building design, but is not required to be a registered architect.

From 3 July 2023, a new design practitioner class will be available: Design Practitioner - Building Design. This class will be able to work on Class 3 and 9c buildings of any height. To be eligible for this class, a practitioner must have a postgraduate Masters qualification in architectural or building design.

6. Are we able to register for class 3 work only? I am not interested in class 2 projects.

Yes, from 3 July 2023 you can register to work on class 3 and 9c buildings. You will need to meet the eligibility criteria, complete the mandatory TAFE modules and provide evidence of your skills and experience.

7. We are strictly a class 3 builder and have only built class 3 buildings for the last 5 years. Under NSW Fair Trading guidelines that does not permit you to get a building licence. How do you register under the Home Building Act 1989 to ensure that you can register as a Building Practitioner?

From 3 July 2023, builders will be able to apply to become building practitioners under the DBP Act without needing to hold a licence or supervisor certificate under the Home Building Act 1989. Building Practitioners, who do not hold a licence under the Home Building Act, will be registered to work on Class 3 and 9c buildings only.

8. Do you need minimum 5 years experience in class 3 buildings to apply for the Building Practitioners - Medium Rise licence?

For the Building Practitioners - Medium Rise registration you must have three years practical experience with at least two years coordinating or supervising building work involving a class 1, 2, 3, 9a or 9c building. Your experience must have been in the last seven years including at least two years in Australia.

Explore the experience requirements for registered building practitioners.

9. Is there a difference between declaring as a design practitioner, and declaring as a design practitioner on behalf of body corporate?

Review the distinctions between design practitioner registrations.

Design practitioner obligations
1. If a 95% tender design is issued as a DC and either not submitted on the portal. Is that signed off by the design practitioner that produced that design? Or does it become the responsibility of the new designer that is taking it to CC for construction issue?

Designs that are used for tender generally do not have the details necessary to produce building work that complies with the Building Code of Australia. These designs are therefore not construction issued regulated designs. The registered design practitioner who prepares the construction issued regulated designs must provide the design compliance declaration.

2. Apart from the CC or CDC stage is there an obligation for the Design Practitioner to provide a Declaration at OC stage under these classes or will it remain with the Building Practitioner?

There is no obligation for the registered design practitioner to provide a declaration for the building work. It is the responsibility of the registered building practitioner to provide a building compliance declaration prior to the application for an Occupation Certificate that the building work is in compliance with the Building Code of Australia and that the building was constructed in accordance with the regulated designs.

Continued professional development (CPD)
1. If I am registered as both as a Design Practitioner and Building Practitioner, do I need separate CPD points for both?

Yes, a practitioner who is registered as a building practitioner and a design practitioner must meet the CPD requirements for both types of registration separately.

2. Do CPD points apply for this Industry Update event? Are they classed as Formal CPD points should we log as Informal?

Please check with your scheme as to whether the points are applied as formal, or informal. If you have any questions or issues claiming CPD points for attending the industry update, please email us.

1. Where do certifiers (issuing the CC and OC) fit into this process?

The role of a certifier is the same for a class 2, 3 and 9c building under the DBP Act. Certifiers have obligations to:

  • Issue a construction certificate only after they are satisfied all design compliance declarations and regulated designs have been provided to them, and
  • Issue an occupation certificate only after they are satisfied all compliance declarations required for the building work have been lodged in accordance with the DBP Act.
2. As a certifier, what happens if you do not agree that the design certificate complies? Are you compelled by law to accept it anyway?

certifier must not issue a construction certificate (CC) or complying development (CDC) certificate for a class 2, 3 or 9c building if they have not received each design compliance declaration to which the building work relates, and the regulated design/s covered by the design compliance declarations.

A certifier is not compelled to accept that the regulated design complies with the Building Code of Australia (BCA) because the registered design practitioner has provided a design compliance declaration. If you as a certifier are of the opinion that the regulated design doesn’t comply with the BCA and the design compliance declaration has been completed incorrectly, you must refuse to issue the relevant CC or CDC and advise your client of the reasons why you believe the regulated design is not compliant with the BCA.

NSW Planning Portal
1. What if your client is a home owner in a Class 2 building and not a developer with an ABN / ACN or business name?

The term 'developer' is defined under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 and covers a number people, not just property developers:

  • a person who contracted or arranged for, or facilitated or otherwise caused, (whether directly or indirectly) the building work to be carried out,
  • if the building work is the erection or construction of a building or part of a building - the owner of the land on which the building work is
  • carried out at the time the building work is carried out
  • the principal contractor for the building work within the meaning of the Environmental Planning and Assessment Act 1979
  • in relation to building work for a strata scheme - the developer of the strata scheme within the meaning of the Strata Management Act 2015
  • any other person prescribed by the regulations for the purposes of this definition.
2. Will the portal be updated along with this requirement?

The NSW Planning Portal was updated in mid-May 2023 to make it easier for staged developments and other projects. The quick reference guides have been updated, and we have created some videos to walk through the new processes. These can be found on the NSW Department of Planning and Environment website.

3. If we had a planning portal account prior to DBP act, how do we know if our account is linked to our registration?

You can check your user settings in the NSW Planning Portal by hovering over your profile icon in the top right hand corner of the window (next to 'Contact Us'). From here, you can update your profile settings to include your DBP registration. If you experience issues, please email us or call 1300 420 596.

4. How will information be made available on the NSW Planning Portal for owners and engineers to access post-construction?

Currently, designs and documents are made available to owners in class 2 buildings through the Strata Hub if a Strata Building Bond was applied to the building. The intention is to roll out a similar digital tool for other building classes that are not part of a strata scheme. In the meantime, if information is required, you can request it from the original developer or NSW Fair Trading, who have access to the document repository in the NSW Planning Portal.

Construction Development Consent / Construction Certificates
1. Clause No 7 in the Design and Building Practitioners Act 2020 relating to staged CC's ceases to have effect on 1 July 2023. Has there been update to the process?

Yes, the DBP Regulation has been amended. Staged development is available permanently for class 2, 3 and 9c projects.

2. If there is a variation to design - does a modified CC/ CDC need to be issued?

Not all variations will require a modified development consent and a modified construction certificate. The principal certifier needs to be consulted to determine if the variation requires a modification to the development consent and a modified construction certificate. Where the variation impacts one of the building elements, the variation will need to be designed and declared by a registered design practitioner and be uploaded and declared on the NSW Planning Portal prior to commencing the variation work on site.

Strata lodgement
Are we able to obtain staged regulated building approvals for class 2, 3 and 9c developments beyond 3 July? Given the complex nature of class 3 buildings compared to class 2, can we still seek separate CCs?

Yes, staged development is available in the NSW Planning Portal for class 2, 3 and 9c projects.

Expected completion notice
1. If a building has to postpone the completion date, how many days before or after that date is it acceptable for the system to allow the developer to go through the process?

The RAB Act allows 60 days either side of the entered expected completion date to complete the process without the need to amend the expected completion date.

2. Where works are minor and capable of being completed in 3 months, what provisions will be put in place so as not to have an empty unit for 6 months while waiting to finalise?

For small projects where the developer expects to apply for an Occupation Certificate less than six months after building work begins, the developer must submit an expected completion notice within 30 days of the building work commencing.

3. Is the expected completion notice between 6-12 months. The seminar mentioned 12 months?

A developer is required to submit an Expected Completion Notice at least six months, but no more than 12 months, before applying for an occupation certificate.

4. Do you need a separate ITSOC applications for a part OC and final OC?

Yes. Each occupation certificate (full or partial) requires a separate ITSOC case in the NSW Planning Portal.

Building work levy
What is the new levy for? When does it apply?

The building work levy was introduced to recover costs associated with ensuring compliance with the NSW building reforms, which aim to restore public confidence in the building and construction industry. The levy is calculated when the expected completion notice is entered in the NSW Planning Portal as part of the intention to seek occupation certificate process.

The requirement for PI Insurance for Building Practitioners has been pushed back to 1 July 2024. What are the legal implications for Building Practitioners in the interim period and what is being done to address this issue?

It is recommended that building practitioners hold adequate insurance to cover any liability that might arise relating to their obligations under the DBP legislation. Building practitioners have an extended transitional period until 1 July 2024 during which insurance requirements will not be mandated as a condition of their registration.

Building practitioners should also consider if they have obligations under other legislation that requires them to be insured for other work before this date. For example, the Home Building Act 1989 sets out mandatory insurance requirements for home building work.

Crown projects
Do the reforms apply to Crown Development projects? If so, are there any differences in their application from non-Crown projects?

Yes. These reforms do apply to Crown Development projects. Work that does not require an occupation certificate, such as Crown Development work, are still required to submit a building compliance declaration.

The registered building practitioner must provide a building compliance declaration for the building work, contractor documentation and other required documents within 7 days of completing building work.  This documentation must be lodged on the NSW Planning Portal and include a statement of variations that did not require a new regulated design. This documentation must also be provided to the person who the work was carried out for.

Additionally, Crown Development projects are generally not subject to the building work levy under the RAB Act.

What do these reforms mean in terms of waterproofing? Which practitioners do waterproofing?

Waterproofing work on a Class 2, 3 or 9c building will require a regulated design under the DBP Act before construction begins.

There is not a specific 'design practitioner' class for waterproofing as regulated designs for waterproofing may be prepared by a range of design practitioners depending on the location of the required work, e.g. a design practitioner - architectural may prepare designs for a bathroom, while a design practitioner - facade may prepare waterproofing designs related to the facade.

Other questions
1. Is there now statutory warranties? Previously, with commercial contracts, the defects period and warranty period was negotiated with the client and contractor.

There is no change to the application of statutory warranties. Statutory warranties continue to apply to residential building work as defined under the Home Building Act 1989, and do not apply to commercial building work.

2. Will there be a building bond scheme for class 3 projects similar to the current class 2 scheme?

The Strata Building Bond and Inspections scheme continues to apply to developers of new apartment buildings 4 storeys or higher. The scheme is not expanding to Class 3 or 9c buildings.

3. Are audits on roof drainage design and installation being considered? Is NSW Fair Trading considering engaging staff for this or using NSW Hydraulic Certifiers to perform this task?

Visit the OC audit page for more information about Fair Trading's audit strategy for buildings covered by the RAB Act.

Visit the audit strategy for design practitioners and building practitioners for more information.

Videos with the NSW Building Commissioner

The NSW Building Commissioner, David Chandler OAM,  interviews industry professionals about important issues impacting the construction industry.

From 3 July 2023, the RAB Act and the DBP Act expanded to include class 3 and 9c buildings (in addition to class 2 buildings). In the first series of videos below, he talks to industry professionals about how class 2 reforms have benefited the quality and trustworthiness of residential apartment construction in NSW.

He also talks about how we are helping to fix serious defects in residential apartment buildings through Project Intervene and replacing flammable cladding through Project Remediate.

1. Class 2 building reforms - impacts and benefits

David Chandler talks to Josh Black, Head of Pre-construction at CJ Duncan about class 2 building reforms. He says he can see how the reforms are delivering more quality and trustworthiness throughout the construction industry.


A builder's perspective: Building reform impacts and benefits

David Chandler talks to Adrian Sicari , Managing Director at ULTRA Building Co about class 2 reforms and the importance of iCIRT ratings for developers. 


A developer's perspective - building reform impacts and benefits

David Chandler talks to James Deters, Director at Credwell about how improved planning and documentation benefits the quality of a class 2 developments. 


A consultant's perspective - building reform impacts and benefits

2. Project Intervene - fixing serious defects in the common area of residential apartment buildings

Its about the fix not the fight

David Chandler talks about the benefits of joining Project Intervene for strata communities. 


It's about the fix, not the fight.

Read transcript
Video transcript

It's about the fix, not the fight.

Man appears on screen, dark blue vest, light blue long-sleeve shirt.  

Top left is New South Wales logo in a circle.  

Title of the video is Project Intervene: It’s about the fix, not the fight.  

As man begins to speak, a label appears. It reads: David Chandler, New South Wales Building Commissioner, New South Wales Department of Customer Service 

Hello, It’s, ah, David Chandler here, New South Wales Building Commissioner.  

And I just want to make sure that everybody is aware of Project Intervene.  

This is an important initiative where strata communities are able to refer the serious defects that might exist in their buildings into Fair Trading to make sure that, if we can help, we do us.  

There are many features of this program but most importantly, it’s about the fix, not the fight.  

We have a great team able to assist in this project with consumers and I urge you to at least consider it as you go forward.  

White screen appears and New South Wales logo.  

Real stories from Project Intervene

An owners corporation member talks about her positive experiences with Project Intervene. They joined the program to fix serious defects in their residential apartment building, which were waterproofing and structural issues.


Real stories

Read transcript
Video transcript

Real stories

On the left, white text on a blue background reads ‘Project Intervene: Real stories’. Below, the NSW Government red ‘waratah’ logo. On the right in a still colour image, a modern sleek apartment building beneath a cloudless blue sky.
Inside an office, a man sits near a window overlooking a tall high-rise building development. He has short grey hair and wears glasses and a black suit jacket over an open-collared white business shirt.

TEXT: Brian Farmer – Undertaking Manager
People like the process because it actually achieves something. It gets things done. It allows for an independent person to come in and sort out some of the nonsense. The outcome of this process is to ensure that all of the serious defects covered under the undertaking are properly resolved in a timely manner.
Brian talks on his phone.
A woman has short blonde hair and wears a black and grey patterned top.
TEXT: Meike Tabel – Owners Corporation
Serious defects in the building were waterproofing, structural issues, issues to the tiling in the bathrooms. I think the main visibility was during the heavy rains that there was water coming through in the basement. 
Meike walks down a sunny apartment building corridor and stops to look out the nearby window.
When these were discovered, the building was probably one year old. The first thing which came to our mind is that we have to go to court, which was obviously a very daunting thought. 
Later, Meike sits down at a circular table and opens a thin blue covered folder. She makes notes in it with pen.
Everybody seemed to become very worried. Project Intervene at the time came up. Like for me personally, I thought that's a great option. But there was also a lot of angst that because it's something new, nobody knew what it is. So it was like a couple of months to actually get everybody on board as well to agree to that process. 
Meike talks on her phone and smiles.
Later, she walks up a set of stairs that have glass balustrades with Brian.
They head down a corridor together past a room divider spilling over with green plants.
Once we were involved with the process, it's a very smooth operation because we pretty much don't need to do anything. Like it's the government together with the developer who basically are managing the whole process and just giving us monthly updates.
Meike and Brian sit at a large timber-veneered conference table. Meike opens the thin blue folder as she talks to Brian. 
Owners Corporations' get the benefit of an undertaking because it defines a process that doesn't cost the Owners Corporation anything. It is a litigation-free environment. There is no need to get the lawyers or the judicial system involved.
A black-haired man walks along a narrow corridor. He wears a dark-grey pinstriped suit, a white business shirt and a blue tie.
TEXT: Jason Tan - Developer
My name is Jason Tan. I'm a property developer in New South Wales. A developer should always have a long-term view on the future ongoing projects. Several things will be attractive for a developer to sign this process. Firstly, it will be the clear scope, which is very important for a developer to know. 
Jason walks up some stairs. Later, he sits at a table in the sunshine with a notebook, pen and an open laptop computer.
And the second is the clear time span for these undertaking process, because the other alternative is for the Owners Corporation to go through a litigation process where that is totally uncontrollable. And the third is your reputation management. 
Jason sits with Meike near the earlier plant-covered room divider.
The other thing that I want to emphasise on is a developer is a long-term game. And, you know, if there was a problem, no matter where there is an undertaking or not, a developer should come back anyway. But by signing this undertaking process, it's just to put the extra layer of trust back to the customers for them to trusting in you.
Even the tier one contractors and the upmarket developers, they have problems. The question is, do the developers come back and address the issues and fix the problem? And those developers that are participating in this process ought to be commended for doing the right thing.
This one is like a guaranteed fix of all your defects paid for by the developer and managed by the government. So I think for me it's like a no-brainer.
On a blue background, white text reads ‘’.
The NSW Government red ‘waratah’ logo on a white background.

3. Project Remediate - replacing flammable cladding on residential apartment buildings

A message from the NSW Building Commissioner

David Chandler talks about the importance of the Project Remediate pattern book in redesigning cladding on eligible residential apartment buildings. We also have a strong relationship with NSW Fire and Rescue and work with them for every step of the cladding remediation process.

Message from the Commissioner

Latest update April 2023

Meet the Project Remediate team

Meet the team from Project Remediate that will guide you through the whole remediation journey. The team includes the managing contractor, Hansen Yuncken and loan provider, Lannock Strata Finance. 


Meet the team from Project Remediate that will guide you through the whole remediation journey.

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