Design and Building Practitioners Act: NSW Developer Duties

The Design and Building Practitioners Act 2020 (NSW) does two separate things, and developers tend to only hear about one of them. The first is a registration and declaration regime: on a class 2, class 3 or class 9c building, designs have to be prepared by registered design practitioners, declared as compliant, and lodged on the NSW Planning Portal before work starts, with a matching declaration from the builder before the occupation certificate can be applied for. The second is a statutory duty of care in Part 4 of the Act, and that part is not limited to apartment buildings at all. It reaches anyone who carries out “construction work”, which the Act defines to include supervising, coordinating, project managing or otherwise having substantive control over building work. That definition catches a lot of developers.

Before considering how the Design and Building Practitioners Act applies to a project, you’ll need professional advice from a construction lawyer, and on the duty of care question specifically, advice from your insurance broker’s technical adviser or your own lawyer on whether your professional indemnity and public liability cover responds to a Part 4 claim. The consequences of getting this wrong fall on you and on the entity that owns the land: a prohibition order that stops the occupation certificate and therefore stops settlements, a rectification order after occupation, or a defects claim from an owners corporation years later in which, following the High Court’s decision in Pafburn, your liability may not be reduced by pointing at the builder or the certifier who actually did the work. This guide sets out the machinery so that the conversation with your lawyer starts from the right place. It does not answer whether your particular structure, contract or insurance program is exposed. The “What to ask your construction lawyer” section near the end lists the questions that decide that.

Figures, thresholds and commencement dates below were current at the date of writing and they do move: the building work levy is adjusted for the Consumer Price Index each 1 July, and the Building (Approvals and Practitioners) Act 2026 (NSW) will eventually repeal the Design and Building Practitioners Act altogether. The linked primary sources are where to confirm anything you are relying on.

What is the Design and Building Practitioners Act and who does it apply to?

The Design and Building Practitioners Act 2020 (NSW) is the registration, design-declaration and duty-of-care statute that followed the Opal Tower and Mascot Towers failures. It sits alongside the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), which is the enforcement half of the same reform package and is where most of the obligations that fall directly on a developer actually live.

The split matters, because it decides who is on the hook for what:

• The Design and Building Practitioners Act imposes obligations on practitioners: registered design practitioners, principal design practitioners, professional engineers, specialist practitioners and the building practitioner. Its Part 4 duty of care, by contrast, applies to anyone carrying out construction work.
• The Residential Apartment Buildings Act imposes obligations on developers: the expected completion notice, the building work levy, and exposure to occupation certificate audits, stop work orders, prohibition orders and building work rectification orders.

Building Commission NSW describes the two together as the scheme covering “professionals working on regulated buildings”, and a developer’s practical position is that both apply to the same project at the same time, administered through the same NSW Planning Portal workflow.

The declaration regime applies to class 2, certain class 3 and class 9c buildings, and to mixed-use buildings containing a class 2, 3 or 9c part. The Part 4 duty of care is not restricted that way, which is covered below.

Which buildings are regulated, and when does that change?

Class 2, class 3 and class 9c buildings are currently regulated in New South Wales, along with any building containing a class 2, 3 or 9c part. Building Commission NSW sets out the regulated building classes and practitioner roles in detail.

The classes use National Construction Code definitions:

• Class 2 is the apartment case: multi-storey, multi-unit residential buildings where people live above or below each other. It may also be a single-storey attached dwelling over a common space such as a basement carpark.
• Class 3 is residential accommodation other than class 1 or 2 for unrelated persons, including boarding houses, hostels, backpackers, dormitory accommodation and the residential part of a hotel, motel or school.
• Class 9c is residential care, being a place of residence where 10 per cent or more of residents need physical assistance in daily activities and to evacuate in an emergency. Aged care buildings providing personal care services fall here.

The scheme started as class 2 only and widened on 3 July 2023 to certain new class 3 and 9c buildings and buildings with a class 3 or 9c part. Two dates on the current timetable are worth putting into a programme:

• From 1 July 2024, certain low-risk class 3 buildings, and class 9 buildings containing a minor class 3 part, became exempt. Building Commission NSW lists hotels, motels, and class 9a or 9b buildings that include minor accommodation facilities where the class 3 part is less than 10 per cent of the gross floor area. The exemption for hotels and motels applies only if no part of the building is subject to a strata scheme and the building contains no serviced apartments, which is a distinction that can turn on how a scheme is ultimately structured rather than on what the drawings show at development application stage.
• From 1 July 2028, alteration, repair and renovation work on existing class 3 and 9c buildings comes into the regime, and the building work levy follows on the same date. The Act continues to apply to work on new and existing class 2 buildings in the meantime.

Certain work is excluded outright. Building Commission NSW points to clause 13 of the Design and Building Practitioners Regulation 2021 for the complete list, which covers exempt development other than waterproofing, work under a HomeBuilder contract, and some fit-out work on a class 5, 6, 9a or 9b part where the work does not relate to a structural component and the consent primarily relates to the fit-out. The exclusion list is narrower than it reads on first pass, and a fit-out scope that touches structure generally falls back inside.

The trap on scope is the mixed-use building. The regime bites on the whole building where any part is class 2, 3 or 9c, and the building work levy is calculated on the entire building including the non-class 2, 3 and 9c parts. A podium retail component under residential levels does not sit outside the scheme.

Does the duty of care apply to buildings outside class 2, 3 and 9c?

Yes, and this tends to be the most under-appreciated feature of the Act. Part 4 is a self-contained part with its own definitions, and nothing in it limits the duty to regulated building classes.

Section 37 provides that a person who carries out construction work “has a duty to exercise reasonable care to avoid economic loss caused by defects” in or related to the building for which the work is done, and arising from the construction work.

The duty is owed to each owner of the land and to each subsequent owner, and a person to whom it is owed is entitled to damages “as if the duty were a duty established by the common law”. It is owed whether or not the work was carried out under a contract with that owner, or under any contract at all. The text is at section 37 of the Design and Building Practitioners Act 2020.

Two definitions in section 36 do the heavy lifting:

• “Building” in Part 4 “has the same meaning as it has in the Environmental Planning and Assessment Act 1979”. That is a general definition, not a class 2 definition. A commercial, industrial or retail building could be caught on the face of the section.
• “Construction work” means building work, the preparation of regulated designs and other designs for building work, the manufacture or supply of a building product used for building work, and “supervising, coordinating, project managing or otherwise having substantive control over the carrying out of” any of those.

That last limb is the one developers should read twice. A developer who genuinely leaves delivery to a head contractor and a superintendent may be in a different position to a developer whose in-house team directs subcontractor selection, approves substitutions, runs site meetings and resolves buildability issues. The distinction is factual, it is decided on what actually happened on the project rather than on what the contract says the roles were, and it is precisely the sort of question a court will resolve years after the event from meeting minutes, site instructions and email traffic.

Section 36 also lets the regulations prescribe additional work as construction work, or exclude work from being construction work. That is a live dial and worth confirming against the current Regulation rather than against any secondary summary.

What did the Pafburn decision change for developers?

The High Court held, by a 4 to 3 majority in Pafburn Pty Limited v The Owners – Strata Plan No 84674 [2024] HCA 49, delivered on 11 December 2024, that a claim for breach of the section 37 duty against a developer or head contractor is not an apportionable claim under Part 4 of the Civil Liability Act 2002 (NSW). The judgment is on the High Court’s website.

The mechanism is section 39, which is a single sentence:

“A person who owes a duty of care under this Part is not entitled to delegate that duty.”

Because the duty cannot be delegated, a developer or head contractor with substantive control over the work is treated as responsible for the whole of the work, and cannot reduce its liability by establishing that a subcontractor, consultant or certifier was the one who fell short.

Three consequences tend to follow, and each is a question for your lawyer rather than a conclusion this guide can draw for your project:

• Recovery moves from apportionment to contract. If the developer cannot have its liability reduced in the owners corporation’s claim, then the practical route to recovering from the parties who actually caused the defect is a separate cross-claim or contribution claim, which depends on the contract, on those parties still existing, and on their insurance still responding.
• Counterparty solvency becomes a live feasibility input. A cross-claim against a builder in liquidation is worth what the insurer pays and no more. The financial standing of the head contractor, and the durability of consultant professional indemnity cover, stop being purely procurement questions.
• Special purpose vehicle structures are tested. The duty is owed by the person who carried out construction work, and “owner of the land” is defined broadly in section 36. Whether a particular structure, a parent guarantee, or the winding-up of a project entity after completion changes that exposure is a legal question, and one where the answer depends on facts a guide cannot know.

The duty also reaches backwards. Part 4 extends to construction work carried out before section 37 commenced, where the economic loss first became apparent within the 10 years immediately before commencement, or becomes apparent afterwards. Claims are still subject to the limitation periods in the Limitation Act 1969 (NSW) and to section 6.20 of the Environmental Planning and Assessment Act 1979 (NSW), which is the long-stop for civil actions relating to building work. The interaction between those provisions and the date a defect “first became apparent” is genuinely contested and is the sort of thing to have advised on rather than assumed.

Who are the registered practitioners on a class 2 job, and what does each declare?

There are five roles that matter on a regulated project, and a developer who understands which one holds which pen has a much easier time reading the programme.

The design practitioner prepares regulated designs and provides a design compliance declaration for each. Registration is by specialty, and the list is long: architectural, building design, civil, structural, geotechnical, mechanical, electrical, facade, fire safety engineering, drainage, vertical transportation, and four separate fire systems classes covering detection and alarm, sprinklers, hydrants and hose reels, and mechanical smoke control. Only the person signing and declaring the design needs to be registered, not every drafter on the team. Building Commission NSW notes that a regulated design must integrate details of other aspects of the building work and other regulated designs, so a design practitioner cannot declare in isolation from the rest of the documentation.

The principal design practitioner is an optional role designed for larger projects, where hundreds or thousands of designs need to be lodged. Where appointed, they collect designs and declarations from the other practitioners, verify that declarations have been provided by registered practitioners in their field of competency, make a principal compliance declaration, and can lodge on the building practitioner’s behalf. Building design (low-rise), building design (medium-rise), drainage (restricted) and vertical transportation practitioners cannot take the principal role.

The building practitioner is the principal contractor, and there is only ever one per project. It can be a body corporate, in which case it must hold body corporate registration and nominate a registered individual. Registration is required even where the entity already holds a contractor licence under the Home Building Act 1989 (NSW). The building practitioner lodges regulated designs and design compliance declarations before work starts, and makes the building compliance declaration at the end.

The professional engineer must be registered to carry out professional engineering work in civil, structural, geotechnical, mechanical, electrical or fire safety engineering. Building Commission NSW draws a line that catches people out: a registered professional engineer can provide engineering advice on a regulated building, but cannot prepare regulated designs, make design compliance declarations or lodge documents unless they also hold design practitioner registration in the relevant class. Engaging an engineer who holds only the professional engineer registration can leave you with advice you cannot lodge.

The principal certifier is a public official, registered and regulated by Building Commission NSW. They must have all the regulated designs and design compliance declarations required for the construction certificate before issuing it, and cannot issue an occupation certificate until all compliance declarations for the building work are lodged on the NSW Planning Portal and the building compliance declaration has been provided to them.

One structural point worth sitting with: the building practitioner can delegate the lodgement of designs and declarations to an “appropriate practitioner”, meaning a registered design practitioner or principal design practitioner working on the same project. The building compliance declaration itself cannot be delegated. It is made by the building practitioner and nobody else.

What has to be lodged before building work can start?

Nothing can start until the regulated designs and their design compliance declarations are on the NSW Planning Portal. Building Commission NSW puts the building practitioner obligations plainly: a building practitioner must lodge all regulated designs and related design compliance declarations before any building work related to those designs can start.

On the developer’s side of the ledger, Building Commission NSW sets out three steps before work starts, all of them on the Portal:

1. Create a developer account. An existing applicant account can have a developer account added to it.
2. Nominate the building practitioner, design practitioner and principal certifier. This happens before work starts.
3. Enter the building work commencement date before work commences. The field only becomes available once a construction certificate or complying development certificate has been issued.

Where work is staged under multiple construction certificates, the designs and declarations for each stage have to be lodged before that stage can start. On a large project this is not a single administrative event at the front of the programme, it is a recurring gate.

Three practical consequences for the critical path, offered as things to test rather than as instructions:

• The design practitioner registrations you need are specialty-by-specialty. A consultant team assembled for its design quality is not automatically a team that can declare. Checking registration classes against the design packages, early, is cheaper than discovering a gap at the construction certificate stage.
• Section 9 of the Act requires a design practitioner to provide a design compliance declaration when they provide a regulated design in a form suitable for use in connection with building work, and again when they provide a varied design before work commences. The declaration is a statutory obligation on the practitioner, not a deliverable you can negotiate out of a consultancy agreement.
• Shoring, underpinning and anchoring need regulated designs, including where later variations affect them. If ground anchors will encroach on neighbouring land, the building practitioner must provide a ground anchor installation right document, being a registered easement, licence agreement or deed showing the proposed location, or a Roads Act 1993 (NSW) consent where the neighbouring land is a public road. For temporary or removable anchors, documents covering the destressing or tendon removal process and timing are also required, and evidence that it happened has to be lodged before the final occupation certificate. On a tight site, negotiating anchor rights with a neighbour is a schedule item with no reliable duration, and it sits ahead of excavation.

How do variations work once construction has started?

This is where the Act most directly touches cost and programme, and it is worth being precise about the two categories, because they behave completely differently.

Variations to a building element or performance solution. Before the varied work can commence, a registered design practitioner must prepare a design with the variation, must be given or have access to the relevant regulated designs and declarations, and must provide a design compliance declaration for the varied design. Where a principal design practitioner is appointed, a principal compliance declaration including the varied design is also required. Section 20 of the Act carries a maximum penalty of 3,000 penalty units for a body corporate, or 1,000 penalty units otherwise, for failing to take all reasonable steps to ensure this happens.

The sequencing, as Building Commission NSW describes it, is that the varied work must not start until the designs and declarations have been obtained, work can commence immediately after they are obtained, and the construction-issued regulated design and design compliance declaration must be lodged within one day of the varied work commencing. Building Commission NSW says directly that “work may need to stop so that the varied design can be prepared and declared in time to meet this timeframe”.

Variations unrelated to a building element or performance solution. These do not need a design practitioner sign-off, but the building practitioner must record them in a variation statement, and that statement must be lodged before the occupation certificate application is made.

The trap is classification. Whether a substitution is “related to a building element or performance solution” is a technical judgement, the consequences of getting it wrong are a penalty exposure and a non-compliant declaration at the end, and Building Commission NSW’s own guidance is that building practitioners should consult the relevant design practitioner to determine it. A developer pushing a value-management substitution through at short notice is pushing it through a gate that may require a designer, a declaration and a stoppage, and the commercial saving needs to be weighed against a delay whose length depends on a consultant’s turnaround rather than on the builder’s.

For anyone modelling this, the implication is straightforward enough: on a regulated building, the time cost of a late design change is materially higher than on an equivalent commercial job, and a contingency assumption carried over from a non-regulated project may understate it. Our guide to construction contingency covers how those allowances are usually built up, and the construction programming guide covers where a stoppage of this kind lands in the float.

There is one relief valve. A building practitioner may carry out work without the required designs and declarations with a “reasonable excuse”, and emergency remedial building work is treated as a reasonable excuse where it meets the specific criteria. A building compliance declaration is still required, and Building Commission NSW audits claims of emergency remedial work.

What does a developer have to do before applying for an occupation certificate?

Four things have to be complete, and they have different lead times. Building Commission NSW sets them out on its developer obligations page.

The expected completion notice, lodged 6 to 12 months before the occupation certificate application. A developer must give notice of the date the building is expected to be completed and of the intention to apply for an occupation certificate. Building Commission NSW states that notice must be given at least 6 months, but no more than 12 months, before applying. Where at commencement the developer expects to apply in less than 6 months, the notice must be submitted within 30 days of work commencing. The obligation was introduced on 1 September 2020 under the Residential Apartment Buildings Act, and the consequences of missing it include fines and a prohibition order delaying the occupation certificate.

If the expected completion date moves by more than 60 days either way, an expected completion amendment notice must be lodged within 7 days of becoming aware of the change. On a project where the completion date is being revised repeatedly, this is an easy obligation to let slip, and it is one of the few in the scheme where the trigger is the developer’s own knowledge rather than a document being issued.

The building work levy, which is triggered by the expected completion notice and covered in the next section.

The strata building bond, on class 2 buildings of four storeys or more. Under the Strata Building Bond and Inspections Scheme, developers of new eligible apartment buildings four storeys or higher must pay a bond to Building Commission NSW equal to 2 per cent of the total price paid or payable of all contracts for the building. On a project with $60m of building contracts, that is $1.2m of capital sitting outside the project until the scheme’s inspection process has run its course after completion, and it is a peak-debt item rather than a cost item. If it is not in the cashflow at the right month, the funding line is wrong. Our guide to peak debt and funding exposure covers how items like this move the maximum drawdown.

The building compliance declaration and as-built designs, lodged by the building practitioner before the application. Two notice periods sit inside this step and are frequently missed:

• The person applying for the occupation certificate must notify the building practitioner at least 14 days before the application is made.
• If a principal design practitioner is appointed, the building practitioner must give them 14 days’ written notice before making the building compliance declaration, so the principal compliance declaration can be collated.

Those notices run sequentially with everything else, and they are in addition to the expected completion notice requirements. A developer working backwards from a settlement date, rather than forwards from the notices, will generally find the date does not hold.

The building practitioner also lodges a contractor document, identifying who completed the building work, at the same time as the building compliance declaration, along with variation statements, any evidence of ground anchor destressing or tendon removal, the principal compliance declaration where one applies, and a copy of the fire safety certificate.

After the occupation certificate issues, any further variations must be lodged within 90 days.

How much is the building work levy?

The building work levy is charged on a sliding scale by number of storeys, is paid before the occupation certificate application, and is set by the Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020 (NSW). Building Commission NSW publishes the current levy table and adjusts it for the Consumer Price Index at the start of each financial year, so any figure quoted anywhere, including here, should be checked against the published table.

For new buildings or added storeys, Building Commission NSW’s published rates run from $9,958 for buildings of 4 to 8 storeys, to $13,040 for 9 to 19 storeys, $18,375 for 20 to 30 storeys, and $25,133 for 31 storeys or more. Buildings of 1 to 3 storeys with a gross floor area over 6,000 square metres are charged at the same rate as the 4 to 8 storey band, and a lower rate applies below that floor area.

For repair, renovation or protective treatment of a class 2 building, the levy is based on the cost of the work inclusive of GST, and Building Commission NSW’s published amounts are nil up to $150,000, $830 above $150,000 and up to $500,000, $1,541 above $500,000 and up to $1m, $2,371 above $1m and up to $5m, $3,201 above $5m and up to $10m, and $4,742 above $10m. Where work involves both additional storeys and repair or renovation, the higher of the two levies applies.

In the context of a total development cost these are small numbers, and the reason to model them is not their size. The reason is staging. The levy applies to each stage of work for which an expected completion notice is required. On an 18-storey building released in two stages of eleven storeys and then seven, the first stage attracts the 9 to 19 storey rate and the second the 4 to 8 storey rate, which on the rates above is $13,040 plus $9,958, or $22,998. A single occupation certificate covering all 18 storeys attracts $13,040. Staging the occupation certificate nearly doubles the levy.

That is a rounding error on a project of that size. The point is what it signals: a staged release is a staged trip through the whole gate, including a separate expected completion notice, a separate audit opportunity, and separate declarations. The levy is the visible part of a cost that mostly shows up as time. Staging decisions on a class 2 building are usually driven by settlement timing and funding release, and the trade-off between bringing settlements forward and running the compliance gate twice is a project-specific calculation that belongs in the cashflow rather than in a rule of thumb.

Unpaid levy attracts interest at 6 per cent per annum unless the Secretary grants a written exemption, and without payment the developer cannot apply for the occupation certificate and, where relevant, a strata scheme cannot be registered.

Waivers, reductions and postponements can be applied for at the time the expected completion notice is submitted, subject to criteria and supporting documentation.

What happens in an occupation certificate audit?

After the expected completion notice is lodged, the project is reviewed and may be selected for an occupation certificate audit. Building Commission NSW describes its audit strategy as risk-based, selecting developers and buildings of concern using risk rating tools, with the date the expected completion notice was lodged and the dates of critical stage inspections among the inputs.

The process runs in five steps: written notification of the audit with a date and time, upload of required project documents to the NSW Planning Portal, an on-site inspection, communication of the outcome, and closure. Inspectors focus on five building elements: structure, waterproofing, fire safety systems, building enclosures, and essential services such as lifts and acoustics.

The outcomes matter more than the process:

• Where a serious defect is identified, an order may be issued: a stop work order, a prohibition order, or a building work rectification order. Building Commission NSW publishes final orders on its register, removing them when the defects are rectified and the order revoked.
• Where issues are identified that are not serious defects, Building Commission NSW states that the site will not continue to the occupation certificate application stage until the developer has demonstrated that all identified issues have been satisfactorily rectified.
• Where nothing is found, a close-out letter issues and the developer can proceed to the levy, the strata bond and the occupation certificate application.

A serious defect, for this purpose, includes a defect likely to cause an inability to inhabit or use the building or part of it for its intended purpose, a building element that does not comply with the Building Code of Australia, a relevant Australian Standard or the approved plans, or use of products in contravention of the Building Products (Safety) Act 2017 (NSW).

Two features are worth holding onto. First, the trigger for selection is the developer’s own notice, so the audit window is a known window rather than a random one, and it opens between 6 and 12 months before the intended occupation certificate. Second, audits are not confined to the pre-occupation window: Building Commission NSW says occupied class 2 sites up to 10 years old can be selected, usually on referral or complaint, subject to the limitation period and the continued existence of a viable developer entity.

Separately, where a prohibition, stop work or rectification order is in force, real estate agents must disclose it to prospective purchasers under section 60 of the Property and Stock Agents Regulation 2022 (NSW), and Building Commission NSW contacts the developer for the list of properties for sale and the agents marketing them. An order is not a private regulatory matter. It reaches the sales campaign, and on an off-the-plan project it reaches it at the worst possible moment. How that interacts with sunset dates and purchasers’ rescission rights is a question for your lawyer.

What are the penalties under the Act?

Penalties in the Design and Building Practitioners Act are expressed in penalty units, and the value of a penalty unit in New South Wales is set by section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which has long stood at $110. Confirming the current value before relying on any converted figure is sensible, because it is the sort of number that changes without much fanfare.

On that basis:

• Failing to take all reasonable steps to comply with the variation requirements in section 20 carries a maximum of 3,000 penalty units for a body corporate, or 1,000 penalty units otherwise.
• Failing to provide a required design compliance declaration under section 9 carries a maximum of 1,500 penalty units for a body corporate, or 500 penalty units otherwise.
• Making a design compliance declaration the person knows to be false or misleading in a material particular carries a maximum of 2,000 penalty units or imprisonment for 2 years, or both.

Under the Residential Apartment Buildings Act, Building Commission NSW publishes the exposure in dollars directly. Failing to comply with a direction from an authorised officer to provide information, answers or records carries a maximum of $110,000 for a body corporate or $22,000 otherwise. Failing to comply with an order carries a maximum of $330,000 for a body corporate plus $33,000 for each day of a continuing offence, or $110,000 plus $11,000 a day otherwise.

For most developers the fine is not the exposure that matters. A prohibition order that holds up an occupation certificate on a completed building with settlements scheduled costs more per week in holding costs and funding than the maximum penalty, and it does so while the contract sunset dates keep running. Our guide to land holding costs covers how those accrue.

What does the Act mean for a feasibility on a class 2 project?

The Act does not create a single line item large enough to notice. It creates a handful of small ones and one large piece of timing risk, and the timing risk is what shows up in the numbers.

The things that are genuinely new cost:

• Design fees. Regulated designs must be prepared to a declarable standard and must integrate with the other regulated designs, which is a deeper level of documentation than a set issued for construction with details to be resolved on site. The design practitioner is signing a statutory declaration with a criminal penalty attached to a knowingly false one, and fee proposals reflect that. Where consultant fees sit as a proportion of total development cost is worth revisiting rather than carrying across from a non-regulated project.
• The building work levy, at the rates above, per stage.
• The strata building bond, at 2 per cent of total building contract value on class 2 buildings of four storeys or more, as a capital item rather than a cost.
• Compliance administration. Somebody has to run the Portal workflow, nominate practitioners, track declarations against packages, and manage the notice periods. On a single-tower project that is a part-time role for the whole build.

The things that are timing:

• The gate before work starts, per construction certificate stage.
• The one-day lodgement window on building element and performance solution variations, and the possibility that work stops while a design is declared.
• The 6 to 12 month expected completion notice, which fixes the audit window and makes the completion date a regulatory commitment rather than an internal target.
• The audit itself, whose duration is not in the developer’s control, and which must close before the occupation certificate application.
• The two 14-day notices stacked ahead of the building compliance declaration.

A useful way to sanity-check a class 2 programme is to work backwards from the first settlement date: the occupation certificate application sits behind the audit close-out, the levy payment, the strata bond lodgement, the as-built designs and the building compliance declaration, which sits behind a 14-day notice to the principal design practitioner, which sits behind the 14-day notice to the building practitioner, all of which sits inside a window opened by a notice lodged 6 to 12 months earlier. If the programme has practical completion and occupation certificate a fortnight apart, it has not accounted for this scheme.

The related question of who carries the cost of a compliance-driven stoppage is a contract question, and the answer differs sharply between a design and construct arrangement and a construct-only one. Our guide to design and construct contracts covers the general allocation, and how the risk is allocated on your particular contract is a question for your lawyer.

What is changing under the Building (Approvals and Practitioners) Act?

The Building (Approvals and Practitioners) Act 2026 (NSW) has passed Parliament and received assent, according to the Parliament of NSW bill record. It will eventually repeal the Design and Building Practitioners Act and the Building and Development Certifiers Act 2018 (NSW) and replace them with a single framework.

It is not in force. Building Commission NSW states that the reforms “will come into effect once the associated regulations have been developed”, with industry consultation on the regulations running through 2026 and 2027. Its Building Productivity Reforms page sets out four areas:

1. A regulatory framework for prefabricated homes and modular buildings, treating them as buildings and setting obligations across manufacture, supply, transport, delivery and installation.
2. A modernised building approvals framework for all building classes, covering approval to build, variations to building plans, post-consent processes including after a complying development certificate is issued, and occupation or completion approvals. Building approvals legislation moves out of the Environmental Planning and Assessment Act 1979 (NSW) and under the new Act, with staged building approvals formalised.
3. A structured dispute resolution process for occupied apartment buildings, enabled by amendments to the Residential Apartment Buildings Act and detailed in regulations still under development.
4. Clarified certifier conflict of interest provisions, with the maximum court-imposed penalty for breaches proposed to rise from $33,000 to $1.1m, and automatic suspension on conviction.

For a project being planned now, the point is timing risk of a different kind. A development that is documented under the current approvals regime and delivered under a new one may face transitional provisions that have not yet been written, and the detail sits in regulations that do not exist yet. The statutory duty of care is expected to continue under the new Act, so the Pafburn position is not something a future commencement is likely to unwind.

Does anything similar apply in other states or in New Zealand?

The Design and Building Practitioners Act is New South Wales legislation and has no direct equivalent elsewhere. The section 37 duty of care, the design compliance declaration regime and the expected completion notice are all NSW-specific, and a developer moving a class 2 product from Sydney to Melbourne or Brisbane is moving into a different framework, not a lighter version of the same one.

Every state and territory registers building practitioners under its own building legislation, so the registration concept travels even though the declaration regime does not. In Victoria, building practitioners are registered in categories under the Building Act 1993 (Vic), with the categories and classes and their registration requirements set out by the Victorian Building Authority. Victoria’s regulator has been undergoing reform and the functions now sit with the Building and Plumbing Commission, so a developer relying on Victorian registration requirements should check which body currently administers them.

Queensland licenses through the Queensland Building and Construction Commission, Western Australia through its Building Services Board, and South Australia, Tasmania, the Australian Capital Territory and the Northern Territory each operate their own registration and certification arrangements under their own building Acts. What none of them replicates, on the material reviewed for this guide, is the combination of a mandatory pre-commencement design declaration lodged with a state regulator and a non-delegable statutory duty of care owed to every future owner. That combination remains a New South Wales feature, and the practical implication is that a compliance programme built for a Sydney apartment project is not transferable to another state without being rebuilt.

New Zealand approaches the same problem from the practitioner licensing direction rather than the design declaration direction. Under the Building Act 2004 (NZ), restricted building work must be carried out or supervised by a licensed building practitioner licensed to carry out or supervise that work. The Ministry of Business, Innovation and Employment describes restricted building work as work critical to making a home structurally sound and weathertight, applying to design or building work in the construction or alteration of residential buildings. There is no New Zealand analogue to the section 37 duty, and liability for building defects there runs through different channels, including the territorial authority’s role in consenting and inspection.

What to ask your construction lawyer

The questions below are the ones that decide the outcome on your facts, and each is one a construction lawyer can answer and this guide deliberately does not.

On the section 37 duty of care:

• On the facts of how we actually run projects, does our development entity carry out “construction work” within section 36, and specifically does our involvement amount to supervising, coordinating, project managing or having substantive control?
• What documentary evidence would a court look at to decide that, and what does our current project correspondence look like against that test?
• After Pafburn, what is our realistic recovery position against the head contractor, the consultants and the certifier if an owners corporation claims against us in six years’ time?
• Does the duty attach to the land-owning entity, the development manager, the parent, or all of them, and does winding up a project special purpose vehicle after completion change that?
• How do the Limitation Act 1969 (NSW) periods and section 6.20 of the Environmental Planning and Assessment Act 1979 (NSW) interact on a claim of this kind, and when does our exposure actually end?
• Does Part 4 reach our completed projects from the last decade, and if so which ones?

On contracts and procurement:

• Does our building contract allocate the cost and time consequences of a stoppage caused by a variation requiring a fresh design compliance declaration, and who wears it?
• Do our consultancy agreements oblige each design consultant to hold and maintain the specific design practitioner registration class needed for their package, and to provide declarations as part of the fee?
• What happens under our contract if the building practitioner’s registration is suspended mid-build?
• Do our consultant professional indemnity requirements respond to a Part 4 claim, and do they survive long enough to be useful given the limitation position?
• Does our contract require the builder to give the notices the Act requires, on our programme, and is there a remedy if they do not?

On the approvals programme:

• Given our staging strategy, how many times do we pass through the pre-commencement lodgement gate, and does each stage need its own expected completion notice?
• What transitional provisions apply to us if the Building (Approvals and Practitioners) Act 2026 (NSW) commences mid-build?
• Are we confident of our class 3 exemption position given how the scheme will ultimately be structured and whether serviced apartments are in the mix?

Questions for your quantity surveyor or project manager rather than your lawyer:

• What allowance is in the cost plan for the compliance administration role, and for the incremental design documentation the declaration regime requires?
• Where in the programme does the occupation certificate audit sit, what duration is assumed for it, and what happens to the float if the audit is not clean?
• Is the strata building bond in the cashflow at 2 per cent of total building contract value, in the right month, and reflected in peak debt?