The NSW Government recently released for public consultation, a discussion paper entitled “Building Stronger Foundations”. The release of this discussion paper comes in the wake of a number of recent media reports of allegedly shoddy building practices, the failure of construction industry self-regulation and defects becoming apparent in a number of residential strata developments around Sydney. In addition, under the current legislative regime in NSW, there appear to be a number of loopholes for those involved in the design and construction of those buildings to escape liability for some of those issues.
The discussion paper poses 30 questions about major reforms to the regulation of the building and construction sector in NSW and seeks input from industry stakeholders on legislative and policy changes which could be implemented to close some of these loopholes and provide better outcomes for current and future occupants of these developments.
The four key reforms for discussion are:
- A requirement for buildings to be designed and constructed to plans that fully comply with the Building Code of Australia (including requirements for “building designers” (e.g. architects and engineers) to certify that the plans for proposed buildings are compliant and for builders to declare that the building has been built according to those plans);
- Requiring registration of building designers, to ensure they have the appropriate skills and insurance, and can be held accountable for their actions;
- Introduction of a new industry-wide principle of duty of care, potentially enabling subsequent home owners to seek compensation if a building practitioner (which could include builders, developers and building designers) has been negligent. This extension of the duty of care appears to be a response to High Court authorities in which builders were found not to owe a duty of care to those parties that lacked “vulnerability” (such as an owners’ corporation); and
- Appointment of a Building Commissioner to regulate all aspects of the NSW building industry, and have the power to investigate, conduct audits and enforce compliance with the regulatory requirements.
The consultation period is open until 24 July 2019 and the full discussion paper can be viewed here.