Reme­di­al Works in stra­ta schemes – were they near­ly forgotten?

We are all aware of the push by the NSW Gov­ern­ment to ​‘restore con­sumer con­fi­dence’ in the NSW Con­struc­tion Indus­try and the need to tack­le the issue of seri­ous defects being expe­ri­enced by many unit own­ers through­out NSW.

Whilst the major­i­ty of build­ing and design prac­ti­tion­ers out there are slow­ly adapt­ing to the new oblig­a­tions which came into effect in NSW on 1 July 2021 under the Design and Build­ing Prac­ti­tion­ers Act 2020 (DBPA) and the Design and Build­ing Prac­ti­tion­er Reg­u­la­tions 2021 (DBPR), oth­ers are scratch­ing their heads at how the fun­da­men­tal defect prob­lems being expe­ri­enced in stra­ta build­ings, may have near­ly ​‘slipped’ under the radar in this reform package.

Many mul­ti-storey res­i­den­tial build­ings with hun­dreds of apart­ments have defec­tive bath­rooms, roof mem­branes, planter box­es and so on, as a result of poor instal­la­tion of water­proof­ing mem­branes and design in the orig­i­nal con­struc­tion. Reme­di­al engi­neers and builders are brought in, quite often after lengthy lit­i­ga­tion, for an own­ers cor­po­ra­tion, to repair these water­proof­ing defects. 

An own­ers cor­po­ra­tion, not to men­tion the hun­dreds of lot own­ers who live in a stra­ta build­ing, would like to think that their water­proof­ing defects will be reme­di­at­ed under a com­pli­ant design pre­pared in accor­dance with the BCA and best-prac­tice. Whilst this is like­ly to be true if the defects are repaired by the right indus­try pro­fes­sion­als with the nec­es­sary water­proof­ing exper­tise, hav­ing come out of lengthy lit­i­ga­tion, the thought of hav­ing to ​‘do it all again’ if the works are not com­plet­ed to the same stan­dard as that required by the DBPA and DBPR, is not one that a lot own­er or an own­ers cor­po­ra­tion want to face.

Up until 30 July 2021, until amend­ments were made, clause 13(1)(a) of the DBPR exclud­ed from ​‘build­ing work’ under the DBPA ‘(a) work that is car­ried out as exempt devel­op­ment’.

Whilst the ​‘reach’ of what has been con­sid­ered as ​‘exempt devel­op­ment’ is anoth­er top­ic alto­geth­er, this means that until the recent amend­ment, there was arguably no require­ment to pre­pare ​‘reg­u­lat­ed designs’ for new water­proof­ing mem­branes and a more than good chance of the roller­coast­er of lit­i­ga­tion start­ing all over again.

There was much con­jec­ture and con­fu­sion amongst Reme­di­al Prac­ti­tion­ers as to the inter­pre­ta­tion of clause 13(1)(a) of the DBPR and whether clause 13(1)(b) relat­ing to water­proof­ing applied, if the works fell under ​‘exempt devel­op­ment’. The peak asso­ci­a­tion for the reme­di­al indus­try in Aus­tralia and NZ, ACRA (Aus­tralasian Con­crete Repair and Reme­di­al Build­ing Asso­ci­a­tion) lob­bied the OBC for a clear­er direc­tion relat­ing to Reme­di­al Works, in par­tic­u­lar, waterproofing.

Water­proof­ing is an inher­ent prob­lem in our con­struc­tion industry. 

Train­ing require­ments to become a water­proof­ing installer are min­i­mal with some qual­i­fi­ca­tions only requir­ing a 4‑hour course. There is min­i­mal super­vi­sion on many sites, sim­ply due to the work­load of site super­vi­sors, which leads to short­cuts in water­proof­ing instal­la­tion tak­ing place, and to be fair, it is not easy to get it right. There are mul­ti­ple prod­ucts on the mar­ket for use indoors and out­doors, cre­at­ing con­fu­sion for those trades­per­sons who may not have any clue about what each prod­uct does.

An inher­ent prob­lem exists with the Aus­tralian Stan­dards for water­proof­ing is that they pro­vide min­i­mal guid­ance on how to design an effec­tive water­proof­ing sys­tem and set out min­i­mal test­ed meth­ods for water­proof­ing as a Deemed to Sat­is­fy solu­tion, leav­ing much to chance or poor workmanship. 

This com­bined with the fact that there may have been no design com­pli­ance require­ments for water­proof­ing works if the works were con­sid­ered ​‘exempt devel­op­ment’ works, was obvi­ous­ly a major point of con­fu­sion for the reme­di­al build­ing industry.

If the issue had not been addressed so prompt­ly by the Gov­ern­ment when the short­falls of the DBPR were brought to its atten­tion, the ques­tion sure­ly would have been raised – do exist­ing own­ers of a stra­ta unit take any com­fort from the new reform or is it focused on the con­sumers buy­ing ​‘new’ units giv­en they are the ones spend­ing the mon­ey now?

The Gov­ern­ment prompt­ly respond­ed to the con­cerns raised and as from 30 July 2021, amend­ments to clause 13(1)(a) of the DBPR have been made and the clause now reads as fol­lows: (a) work that is car­ried out as exempt devel­op­ment, oth­er than water­proof­ing’.

All reg­u­lat­ed designs pre­pared for build­ing ele­ments of a Class 2 build­ing must be pre­pared in accor­dance with the BCA. That is, if you are prepar­ing a design of a water­proof­ing sys­tem in a build­ing ele­ment of a class 2 build­ing, even if you are per­form­ing reme­di­al build­ing works and not orig­i­nal build­ing works, you have to declare that your design com­plies with the BCA and you have to build in accor­dance with that design.

The next issue for res­o­lu­tion, which I am sure is not far away, is how reme­di­al design­ers and builders com­ply with their oblig­a­tions when the NSW Plan­ning Por­tal, the avenue for lodge­ment of all nec­es­sary design com­pli­ance dec­la­ra­tions, etc, is not eas­i­ly acces­si­ble to those with­out a devel­op­ment appli­ca­tion or CDC num­ber. This is some­thing that ACRA have been dis­cussing with the web­site archi­tects at Con­struct NSW and they are already on to it, but no doubt it may take a few iterations!