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Remedial Works Are Different

Remedial work 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) in New South Wales 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 . 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.

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…

by Helen Kowal


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