Accreditation and certification of building consultants in NSW: Navigating a rapidly changing regulatory environment

Insurance Law & Litigation

The recent introduction of certification and registration obligations for building consultants contained in various pieces of NSW legislation have the potential to cause confusion for those caught by the multiple overlapping schemes.

Designers of fire safety systems, for example, may be required to be accredited under the Fire Protection Accreditation Scheme, in accordance with the Building and Development Certifiers Act 2018, while also potentially having to comply with the new Design and Building Practitioners Act 2020 from July 2021 (which requires the issuing of design compliance declarations on certain projects and the registration of certain practitioners). How does one navigate these overlapping statutory requirements?

The Environmental Planning and Assessment Act 1979, the Building and Development Certifiers Act 2018 and the new Design and Building Practitioners Act 2020 are all state-based pieces of legislation which are specific and applicable to New South Wales. This means that there is no "hierarchy" as such between the different legislation and that, if they apply to an individual practitioner or project, each of the requirements/obligations under each applicable piece of legislation will need to be complied with.

To the extent that there are overlaps in the legislation, for example between the certificates or endorsements of plans and specifications that are required to be issued under the Environmental Planning and Assessment Act and the design compliance declarations that will need to be issued from 1 July 2021 under the Design and Building Practitioners Act, it is unlikely that two separate certificates will need to be issued if the necessary certification/ endorsement/ declaration can be adequately covered off in a single document which achieves the purposes of both Acts. However, whether this will be possible will be determined by what exactly is required to be included in a design compliance declaration, which is yet to be prescribed by the Regulations.

The detail of the registration scheme for design practitioners is similarly yet to be prescribed by the Regulations, so while we cannot be certain, we anticipate that it will recognise some existing registration or accreditation schemes. This may include, for example, the current Fire Protection Accreditation Scheme (FPAS), in which case it is possible that those accredited under the FPAS will be entitled to an equivalent registration status in the scheme eventually implemented under the Design and Building Practitioners Act.

This is how existing fire safety practitioners have been dealt with under the Building and Development Certifiers Act, as that Act expressly provides that a person who immediately before the repeal of clause 167A of the Environmental Planning and Assessment Regulation was recognised as a competent fire safety practitioner for the purpose of those Regulations, is taken to hold an accreditation under the Building and Development Certifiers Act, which authorises the person to carry out regulated work under the provisions of the Regulations to which the recognition related. The accreditation remains in force for the period for which the recognition would have remained in force under clause 167A or for five years from the date of repeal (whichever is shorter). We suspect accreditation/registration will be dealt with in a similar manner under the new Act.

While we have used fire engineers by way of example, each discipline (architects, structural engineers, etc) will be faced with similar issues. The new legislation is necessary to ensure the problems evident in building work do not happen in the future and that the public can buy with confidence. However, active consideration needs to be given now to the new legislation and impending regulations. Failure to engage may not only bring uncertainty and unnecessary costs, but also an avoidable increase in risk exposure – an important issue at a time when professional indemnity cover is becoming more difficult to obtain and premiums and excesses are increasing.

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Elizabeth Berwick

Elizabeth Berwick