Remedial work involving rectification, corrective actions or upgrading for deteriorating building elements in an aging building, or defect rectification in new buildings is now covered under the Design and Building Practitioners Act 2020 (DBP Act) and Design and the Building Practitioners Regulations 2021 (DBP Regulations). This means that Owners Corporations can only engage registered building practitioners listed on the public register to carry out rectification work.
Before work can commence, regulated designs and declarations prepared by a registered design practitioner must be lodged with NSW Fair Trading.
Regulated designs take time and money to prepare and register so this raises the question - what happens in the case of emergency remedial work? While an Owners Corporation await approved designs, units and occupiers may be seriously affected. This exposes the Owners Corporation to damages claims.
Emergency Remedial works:
To address the issue of emergency repairs the DBP Act has now been amended to recognise that a building practitioner may carry out work without the required regulated design and declarations. This is only the case if the work is deemed to be ‘emergency remedial work’, and provided that a compliance declaration is lodged with NSW Fair Trading.
Work is classified as 'emergency work' if:
it is likely to cause damage to the building;
part of the building is uninhabitable;
there is a risk to health and safety;
there is a risk of further damage to the building; or
the impacts are serious and the work undertaken will mitigate the likely effects.
The building compliance declaration, which must be separately communicated to the Owners Corporation, permits the building practitioner to declare the work is not compliant and that further statutory obligations must be considered.
Work not classified as Emergency Work:
Remedial building work is not considered to be 'emergency remedial work' if the following conditions apply:
the work undertaken is designed to address the fundamental or underlying cause of the issue;
immediate action is not necessary to remedy an existing issue;
immediate action is not necessary to remedy an existing issue before it causes serious damage or further serious damage or poses a serious impact relating to habitability, health and safety;
it is possible for statutory obligations to be met prior to any serious damage or further serious damage being caused to the building; and
there is no serious impact relating to habitability, health and safety.
Owners Corporation's obligations for subsequent Building Work:
If subsequent building work is required, which is related to the emergency remedial building work, the Owners Corporation must comply with the DBP Act. It will not be considered a ‘reasonable excuse’ if an investigation by NSW Fair Trading finds building work is being/has been carried out without approved designs prepared and declared by a registered design practitioner.
The emergency remedial building work should allow time for the Owners Corporation to plan for subsequent remedial building work and meet their new statutory obligations. This means an Owners Corporation cannot keep authorising further ’emergency remedial work’. Before undertaking the subsequent building work, design and building practitioners must be engaged to prepare additional regulated designs.
Auditing of emergency work:
NSW Fair Trading will conduct random and targeted audits to ensure that work claimed to be ‘emergency remedial work' satisfies the criteria.
Substantial fines, disciplinary action or both may be taken against the registered building practitioner if declared ‘emergency remedial work’ does not meet the exemption criteria.
A quick way to determine whether the work is genuine 'emergency remedial work' is if there is time to comply with the DBP Act before performing remedial work. If there is time, then the work is not emergency work.
If your strata scheme needs assistance with complying with the DBP Act or DBP Regulations, reach out to our team via:
Alexandria office: alexandria@smsnsw.com.au or 02 9389 6608
Cronulla office: cronulla@smsnsw.com.au or 02 9523 4600