The DBP Act : Towards a better Building Industry?

You may be aware that the DBP Act (Design and Building Practitioner’s Act 2020) is now active and currently applies to BCA Class 2 work (apartments); an area we continue to operate in.

Those that follow me (@AKorSyd) on Twitter, may have noticed that I have been critical of certain aspects of the DBP Act. You may have also noticed that in a much earlier LinkedIn post I was far more positive of the work of the Building Commissioner’s Office and the intent of the policy.

With the Act now active it is important that we are constructively critical of its intent and to measure this against likely results and consequences and to advocate accordingly towards a better building industry.

I’ll clarify my position before embarking on a discussion of the Act. I believe reform of the building industry is necessary; that includes mechanisms that genuinely level the playing field, ’punishing’ and clearing out the industry of the chronically bad operators without marginalising good operators, at any scale. The Act is intended to do this but there needs to be some broader discussion as I believe there are unintended shortcomings, consequences and misdirections of responsibility.

There is much that could be discussed about the legislation, but for this post I will focus on issues of equity and responsibility.

There are some important things to understand about the Act and companion legislation that was enacted with it:

• It has legislated a duty of care between design and building practitioners and the occupants of the multi residential apartment buildings they design and build. (Historic case law had established otherwise – more on this below).

• This duty of care has been backdated 10 years from the date of implementation of the Act (1 July 2021), meaning that practitioners are liable (to building occupants) for work that had been completed prior to the implementation of the Act.

• There is a requirement to have several (significant) aspects of the building documented before construction; notably, its structure, services, waterproofing systems (external and wet areas), the building enclosure and ‘fire safety systems’ (as prescribed by the BCA).

• And, for these documents to be uploaded to an online portal and ‘declared’ by ‘Registered Design Practitioners’ as being compliant with the BCA and relevant Australian Standards prior to construction.

• The implementation (including registration and policing) of the Act now falls under the Fair Trading Department.

• There are hefty fines for individuals (Registered Practitioners) and Corporations (Body Corporates) for indiscretions under the Act.

• But, it is the individuals (Registered Practitioners) that are responsible for signing the Design Compliance Declarations, and these fines are not covered by Professional Indemnity Insurance (by law).

• There are no requirements currently imposed on developers with regard to the their obligations or registration under the Act – beyond their indirect responsibility for appointing the consultant teams they will need to commission (who in turn will have to comply with requirements of the Act).

So, what’s good about the Act?

Certainly the requirement to design something before it is built is the way it should be and puts great pressure to reform D&C arrangements to do so (as it should). There are many aspects of a building that if not fully considered prior to construction, cannot be properly addressed following construction as sequencing and resolution are critical to issues of fire rating, waterproofing and the building enclosure.

It seems bizarre that there was previously no duty of care between Design and Building Practitioners and the occupants of their buildings, but when you consider how the case law was established, it was a developer that held the authority to attain information that was requested by the designer (in that case a structural engineer), and that information was not commissioned or provided, thereby the practitioner (who had a responsibility through the terms of their engagement to the developer) was deemed to have have fulfilled their duty of care towards the developer (by heeding to their requests) and was not responsible to the occupants for the defect. A more logical interpretation of these events might suggest that the developer had a duty of care to provide the structural engineer with the information required to competently undertake the project. (But hold that thought).

It certainly is appropriate that there should be a duty of care between practitioners and the future occupants of their buildings and that there should be provisions that do not impede the work of practitioners in doing so.

But let’s consider how that might play out under circumstances under the Act. A practitioner (the structural engineer in the above instance) would have to insist that all necessary information is produced for the practitioner to do their job and the developer should heed to that request and accept the increased cost to the project, but there’s no obligation (by the Act) on the developers of buildings to consent to that beyond the insistence (or resignation) of the practitioner from the project. This arrangement does not mitigate the possibility of developers shopping around for ‘looser’ operators that may not be as competent or thorough.

Is this bottom up mechanism appropriate? You be the judge.

Perhaps the most ill conceived aspect of the Act are the Design Compliance Declarations and the template construction offered by Fair Trading to produce them. The templates assume that buildings are made up of individual components that can address single provisions of the BCA that relate to fire rating, waterproofing, the building enclosure etc.. This understanding is naive. The BCA is complex and buildings are made up of complex assemblies that need to address multiple functions and performance criteria that cannot be adequately described in the manner prescribed by the Design Compliance Declaration proformas.

In a perfect world (as perhaps anticipated by the Act) each Design Practitioner would design and declare those parts that fall within their responsibility to design towards comprehensive compliance across the BCA and Australian Standards by the consultant team for any given project. The Act however does not categorise specifically which provisions of the BCA fall within the scope of responsibility of each consultant’s discipline, or the necessary range of consultants required to address the particularities of each project’s requirements.

‘Declarations’ are by definition onerous and I expect would carry great weight if/when tested by the Courts. It is then the responsibility of each practitioner to construct the declarations in a way that accurately reflects the risk and responsibility of that practitioner, without overreach, and accordingly it will be necessary that practitioners identify which provisions of the BCA have been addressed by their services (potentially also identifying exclusions – beyond their area of responsibility/expertise).

That task in itself is incredibly complex requiring a matrix of all relevant provisions of the BCA identified and allocated against a consultant team with the full suite of relevant responsibility across the BCA and underestimates the complexity of the BCA itself. The Act does not identify who is responsible for that task.

The one entity identified by the Act that sounds like it may be relevant to this undertaking is the ‘Principal Design Practitioner’. That role is responsible for ‘coordinating and collecting the designs and declarations’ from ‘other practitioners’ yet this role is not mandatory, and not categorically responsible for coordinating the ‘the building work’.

There is also the question of the effectiveness of self certification. Self certification means that as a designer ‘I declare’ that I have designed aspects of a building to the relevant provisions of the BCA. Self certification has been relied upon by the industry in NSW ever since ‘Building Applications’ and Council Certification were scrapped in favour of ‘Construction Certificates’ which brought in Private Certifiers and associated self certification (for the Construction Certificate and Occupation Certificate). For a poor operator, (beyond the fines imposed by the Act) what guarantee is there that any oversight in compliance or (worse still) misrepresentation will be curtailed by the Act?

Or, to put it differently, how will a new system of self certification (duplicating a system of preexisting self certification) work to clean out the building industry of its poor operators, without also adding considerable costs to those responsibly addressing the need for additional documentation and associated cost under the Act?

We have a tiny Class 2 project in the office – quite literally the smallest class 2 project possible; 2 residences over a shop. Our consultants have advised several flat fee components of their fee structure would apply equally to a large building or a small one which will clearly stifle smaller projects with onerous ‘big project’ requirements.

By all means let’s improve the building industry, but let’s properly and reasonably allocate responsibility and cost to those responsible for its demise, without stifling smaller valuable projects and responsible operators.