Reme­di­al Works Are Different  NSW Con­struc­tion Reform

The real­i­ty of the NSW Con­struc­tion reform for the reme­di­al industry

Reme­di­al is an inte­gral part of the con­struc­tion industry.

Twelve months down the road, after the com­mence­ment of new design com­pli­ance require­ments under the Design and Build­ing Prac­ti­tion­ers Act 2020 (DBPA) and the accom­pa­ny­ing reg­u­la­tions (DBPR) on 1 July 2021, the reme­di­al indus­try is perplexed.

Hav­ing per­son­al­ly seen the ulti­mate impact of a poor­ly designed and built build­ing on its occu­pants, I am a keen advo­cate of the NSW con­struc­tion reform with the knowl­edge that it is work­ing and it will pro­duce ​‘bet­ter build­ings’ and achieve the Gov­ern­men­t’s goal of con­sumer con­fi­dence in the stra­ta market.

But, behind the scenes, there are many reme­di­al build­ing con­trac­tors, con­sul­tants and own­ers cor­po­ra­tions reel­ing with the uncer­tain­ty and finan­cial impact of ​‘what’ the leg­is­la­tion means for exist­ing buildings.

It is deeply encour­ag­ing to see indus­try stake­hold­ers, includ­ing a team from the Aus­tralasian Con­crete Repair & Reme­di­al Build­ing Asso­ci­a­tion Ltd (ACRA), key reme­di­al prac­ti­tion­ers and the Gov­ern­ment com­ing togeth­er to work col­lab­o­ra­tive­ly address­ing the many ques­tions of what? and how? 

All stake­hold­ers are keen for the end result – no unsafe, leak­ing or struc­tural­ly unsta­ble build­ings. But the road being trav­elled def­i­nite­ly has some pot­holes along the way.

Many reme­di­al prac­ti­tion­ers are uncer­tain about their oblig­a­tions and are under­stand­ably con­cerned about their expo­sure, par­tic­u­lar­ly in light of recent court deci­sions being hand­ed down as to the ret­ro­spec­tive oper­a­tion of the statu­to­ry duty of care pro­vi­sions under Part 4 of the DBPA[1]. Whilst own­ers cor­po­ra­tions are com­ing to terms with the cost and tim­ing realities. 

The ​‘end game’ – bet­ter build­ings – is appre­ci­at­ed and will, over time, ensure that the ameni­ty of occu­pants in stra­ta build­ings is improved but there is a lot to understand.… 

The reme­di­al road trav­elled from 1 July 2021…amendments impact­ing reme­di­al works

• water­proof­ing works clar­i­fied as falling under the DBPA notwith­stand­ing works being ​‘exempt devel­op­ment’ works unless oth­er­wise exclud­ed under clause 13(1)(b) of the DBPR [30 July 2021]
• tim­ing pro­vid­ed for lodge­ment of required doc­u­ments on the NSW Por­tal includ­ed for exempt devel­op­ment works (i.e. works not requir­ing an occu­pa­tion cer­tifi­cate) [10 Decem­ber 2021]
• tran­si­tion­al peri­ods for reg­is­tra­tion of prac­ti­tion­ers extend­ed to 28 Feb­ru­ary 2022 [10 Decem­ber 2021]
• work that is the fit-out of part of a build­ing if the part is a class 5 or 6 build­ing with work the sub­ject of a devel­op­ment con­sent that pri­mar­i­ly relates to the fit-out and does not extend to a struc­tur­al com­po­nent of the build­ing [10 Decem­ber 2021]
• NSW Por­tal access oper­a­tional to non-occu­pa­tion cer­tifi­cate build­ing works i.e. exempt devel­op­ment works in April 2022 (no ret­ro­spec­tive lodge­ments present­ly available)

The pot­holes along the way…

For many years, reme­di­al works involv­ing water­proof­ing, may have been under­tak­en as exempt devel­op­ment works. Is this right? In some cas­es, per­haps not. 

Whilst the plan­ning laws have not recent­ly changed, the neces­si­ty of the cre­ation of a per­for­mance solu­tion to allow com­pli­ance with the DBPA and the Build­ing Code of Aus­tralia, has turned atten­tion to when reg­u­la­to­ry approval is required. 

What reme­di­al build­ing works can be done with­out reg­u­la­to­ry approval? Guid­ance is required for the reme­di­al indus­try as to what works require devel­op­ment approval or a com­ply­ing devel­op­ment cer­tifi­cate. If there is a rel­e­vant Deemed to Sat­is­fy (DTS) pro­vi­sion applic­a­ble to the type of reme­di­al works being per­formed but this DTS can­not be met and a per­for­mance solu­tion is need­ed, this is a trig­ger to con­sid­er approval require­ments as ​‘water­proof­ing’ works, in any form, do not clear­ly fall under the Exempt Devel­op­ment Codes.[2]

This also leads to the uncer­tain­ties of how to pre­pare an ade­quate reg­u­lat­ed design by way of a per­for­mance solu­tion. The myr­i­ad of guid­ance doc­u­ments and hand­books pub­lished by the Gov­ern­ment pro­vide some assis­tance but, if no ​‘test­ed solu­tion’ is avail­able to rely upon when you are con­fined to an exist­ing non-com­pli­ant build­ing envelope…is the design prac­ti­tion­er expos­ing them­selves to unnec­es­sary risk in rec­om­mend­ing a scope based only on their rel­a­tive expertise. 

It is a com­mon fact that urgent reme­di­al repairs are often required to ensure the safe­ty of res­i­dents along with ensur­ing the hab­it­abil­i­ty of a lot. If an own­er has water run­ning down their walls, can urgent works be per­formed with­out hav­ing to pre­pare a reg­u­lat­ed design under the DBPA? Or is it the case, as it present­ly appears under the DBPA, that all nec­es­sary reg­u­lat­ed designs are to be pre­pared and com­pli­ance dec­la­ra­tions lodged before the repairs can be done? 

At this time, there is no clear pro­vi­sion for tem­po­rary or urgent works being per­formed under the DBPA and con­sul­ta­tion con­tin­ues as to whether there is some medi­um which can be reached to allow the urgent works to be com­plet­ed and any fur­ther works being con­duct­ed in a staged man­ner to allow time for the nec­es­sary approvals to be obtained, the reg­u­lat­ed designs to be pre­pared and of most con­cern to the own­ers, finances to be raised.

At the end of the day, if the build­ing is more than 10 years old, it is like­ly to be the res­i­dents of the build­ing who have to foot the bill.

Good news! Reme­di­al have a seat at the table…dis­cus­sions are ongo­ing with key Gov­ern­ment rep­re­sen­ta­tives and reme­di­al indus­try stake­hold­ers and we are all work­ing towards a clear, estab­lished path to allow reme­di­al prac­ti­tion­ers some com­fort so that they can com­ply and just get on with the job that, for the most part, they have been doing well for many years…

[1] Good­win Street Devel­op­ments Pty Ltd atf Jes­mond Unit Trust v DSD Builders Pty Ltd (in liq) [2022[ NSWSC 624, The Own­ers – Stra­ta Plan 84674 v Paf­burn Pty Ltd [2022] NSWSC 659 24 May 2022

[2] State Envi­ron­men­tal Plan­ning Pol­i­cy (Exempt and Com­ply­ing devel­op­ment Codes) 2008 (SEPP)