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This page is intended to help owners corporations, building owners, strata managers, design and building practitioners understand how the Design and Building Practitioner Act legislation applies to emergency remedial building work.
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Introduction
The Design and Building Practitioners Act 2020 (DBP Act) and Design and Building Practitioners Regulation 2021 (DBP legislation) apply to building work for class 2, 3 and 9c buildings (including mixed-use buildings with a class 2, 3 or 9c part).
This includes remedial building work, which is work involving:
- rectification or corrective actions or upgrades for deteriorating building elements in aging buildings, or
- rectification of defects in relatively new buildings.
A 'building element' means any of the following:
- fire safety systems (including passive fire);
- waterproofing;
- building structure;
- building enclosure;
- building services that are required by the Building Code of Australia.
The process for complying with the obligations under the DBP legislation is different depending on the nature of the remedial building work undertaken.
The information on this page explains the obligations for emergency remedial building work only.
This page is intended to help owners corporations, building owners, strata managers, design and building practitioners understand how the DBP legislation applies to emergency remedial building work by providing information on:
- the difference between emergency remedial building work and non-emergency remedial building work,
- the obligations of owners corporations, design and building practitioners when progressing emergency remedial building work, and
- how to lodge relevant documents with NSW Fair Trading.
This page provides general information only. Design and building practitioners are ultimately responsible for assessing the nature of the building work they are carrying out, how the DBP legislation applies to that work and their compliance obligations as licensed persons.
For information about obligations relating to other types of building work, see Working on regulated buildings.
This guideline does not include information about compliance or any required approvals with the Environmental Planning and Assessment Act 1979 (EP&A Act) regime. Please refer to the NSW Department of Planning and Environment website for information.
This guideline does not include information regarding the obligations on owners corporations under the Strata Schemes Management Act 2015 (SSM Act), including the duty to maintain and repair property, or information about statutory warranties arising out of building work under the Home Building Act 1989 (HBA Act).
What is emergency remedial building work?
Remedial building work is only ‘emergency remedial building work’ if the following apply:
- immediate action is necessary to remedy an issue; and
- the issue is causing, or is likely to cause, damage to the building and:
- the inability to inhabit or use the building (or part of the building) for its intended purpose, or
- a risk to health or safety, or
- a risk of further damage to the building (or part of the building); and
- these impacts, or likely impacts, are serious in nature; and
- the work undertaken is limited to what is necessary to mitigate these impacts or likely impacts until further remedial building work can be undertaken.
The following case studies have been provided as examples of work that is emergency remedial building work.
Case study 1
The waterproofing membrane on the roof of a residential apartment building is damaged. Upon investigation, the remedial building works require the installation of a new waterproofing membrane for the whole rooftop (spanning multiple apartments), as the membrane is at “end of life”. Following inclement weather, water leakage into one apartment has caused damage to a bedroom and mould has formed in the carpet underlay, deeming the room uninhabitable for the occupants.
Temporary localised repairs can be carried out to patch the existing membrane and stop water leaking into the one apartment below in an attempt to prevent any further damage and allow the occupants to use the bedroom. In these circumstances, the temporary localised repair work would be considered emergency remedial building work.
Case study 2
The structural integrity of the transfer beams in an 11-storey apartment building have been assessed by a structural engineer as having an inadequate load path with shear capacity issues. Further investigations are required to determine full rectification details.
Due to the immediate risk of shear failure of the transfer beams, the obvious risk to safety and the risk of further damage to the building, the structural engineer has advised that immediate temporary propping is required to be installed to support the transfer beams. This immediate propping is considered emergency remedial building work.
Further work to repair the transfer beams would not be considered emergency remedial building work and would need to meet the requirements of the DBP Act.
Case study 3
Recent prolonged rainfall has created a water entry pathway that activates under normal to moderate rain conditions and results in water flowing through the ground level apartments and preventing habitability. Investigations reveal there is extensive water penetration into the building from the roof, façade and balconies, which discharges at volume internally and accumulates in the ground floor apartments. The remedial work required is significant as it includes the roof and numerous levels of lightweight façade including window openings and flashings. The owners corporation need to raise finance to fund the works which is projected to take several months.
Temporary loss mitigation works need to be undertaken immediately to the ground floor level apartments. Works at the ground floor units include cutting the cladding and installing a flashing to intercept the water descending within the cladding and direct water externally. Strip membrane repair detail at the ground floor to wall interface is also applied. The works are likely to be declared non-compliant to the BCA. These temporary loss mitigation works are considered emergency remedial building work.
The emergency remedial building work should allow time for the owners corporation and building owners to plan for subsequent remedial building work and meet their statutory obligations.
If the owners corporation/building owner is doing subsequent building work related to the emergency remedial building work, the owners corporation must comply with the DBP legislation. This means engaging design and building practitioners to prepare regulated designs and undertake the subsequent building work.
Work that is not emergency remedial building work
Remedial building work is not emergency remedial building work if the following conditions apply:
- the work undertaken is designed to address the fundamental or underlying cause of the issue; and
- 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; and
- it is possible for statutory obligations (including but not limited to the DBP Act, SSM Act and EP&A Act) 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.
Note: Planning concessions apply to repair work in response to natural disasters. Repairs of damage to a building or structure caused by a natural disaster is an example of exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provided it meets all of the development standards identified for that work.
The following case studies have been provided as examples of work that is not emergency remedial work.
Case study 4
The waterproofing membrane on the roof of a residential apartment building is damaged. Upon investigation, it is determined that a new waterproofing membrane is required for the whole rooftop (spanning multiple apartments), as the current membrane is at “end of life”. The owners corporation have undertaken investigations to consider the nature of remedial works required to repair the roof and are in the process of obtaining of scopes of work and quotations from contractors. Only minor water leakage has occurred into the garage and into the corner of a tiled laundry.
As the water leakage is not serious in nature, is not preventing usage of the garage or laundry and is not causing further damage through the apartment building, these planned remedial works to replace the waterproofing membrane are not considered emergency remedial work.
Case study 5
Due to a period of local severe rains, a river floods and damages multiple homes. Temporary repair of damage caused by a natural disaster is exempt development provided it meets the following requirements:
- it is carried out within 2 years of the natural disaster or of the declaration of a state of emergency, and
- it doesn’t change the configuration of the building, and
- it doesn’t increase the floor area of the building, and
- the only repairs made are what is necessary to make the building secure and weatherproof, and safe and suitable for habitation, and
- the repairs don’t include a repair to a structural element of the building.
Natural disasters are naturally occurring, rapid onset events that cause serious disruption to life or property in a community or region, such as floods, bushfires, earthquakes, storms, cyclones, storm surges, landslides and tsunamis. The temporary repair of the flood damaged homes is not emergency remedial building work as it is exempt development. Exempt development, not related to waterproofing, is excluded from the application of the DBP Act.
Obligations for emergency remedial work under DBP legislation
The following steps outline the obligations that apply to owners corporations, design and building practitioners to comply with the DBP legislation.
1. Determine if “reasonable excuse” applies
For remedial building work captured by the DBP Act, an owners corporation or building owner must engage a registered building practitioner who is listed on the public register.
A building practitioner engaged to carry out remedial building work is required to build in accordance with regulated designs that have been prepared and declared by a registered design practitioner. It is an offence for a building practitioner to carry out work involving a building element or performance solution unless they have the required regulated designs and declarations (section 19 of the DBP Act).
However, the Act recognises that in limited circumstances, a building practitioner may carry out work without the required regulated designs and declarations if they have a “reasonable excuse”.
A building practitioner would be considered to have a “reasonable excuse” if they are carrying out emergency remedial building work.
2. If “reasonable excuse” applies, comply with lodgement obligations once work is completed
If the work is emergency remedial building work, the building practitioner can carry out the work without regulated designs and associated design compliance declarations. However, the DBP Act still requires the building practitioner to complete a building compliance declaration and provide that to NSW Fair Trading.
A building practitioner is required to declare whether the work complies with the requirements of the Building Code of Australia (BCA). The building compliance declaration permits the building practitioner to declare that the work does not comply with the BCA. If the emergency remedial work carried out does not comply with the BCA, the building practitioner must communicate this to the owners corporation as well as separately reflecting it in the building compliance declaration. This lets the owners corporation know that the work is not compliant and that further statutory obligations must be considered (including, but not limited to the DBP Act, SSM Act and EP&A Act).
3. Undertaking subsequent building work after the emergency remedial building work
If the owners corporation or building owner is doing subsequent building work related to the emergency remedial building work, they must comply with the DBP legislation. This means engaging design and building practitioners to prepare regulated designs and undertake the subsequent building work.
It will not be considered a “reasonable excuse” if subsequent building work is undertaken in relation to the issue without 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 statutory obligations. This means that the owners corporation can’t keep authorising further emergency remedial building work to be undertaken.
A building practitioner engaged to do any subsequent remedial building work must obtain the necessary regulated designs and declarations from the registered design practitioner(s) before commencing that work. The building practitioner risks committing an offence if any subsequent remedial building work is carried out without designs and declarations as there is no longer a “reasonable excuse”.
How to lodge documents for emergency remedial building work
For emergency remedial building work, the building practitioner will need to submit the relevant documentation to NSW Fair Trading.
The relevant documentation that the building practitioner needs to provide includes:
- Building compliance declaration; and
- Emergency remedial building work document; and
- Contractor document.
These documents are available as a consolidated form:
The consolidated form must be provided by email to [email protected] within 7 days of completing the emergency remedial work. This is a temporary process until the NSW Planning Portal is updated.
Auditing of emergency remedial building work
NSW Fair Trading has powers under the DBP legislation over remedial building projects and registered practitioners to ensure that work is being performed appropriately.
Authorised officers will be particularly focused on checking that practitioners are registered, confirming the preparation of declared designs and examining practitioner conduct.
For emergency remedial building work, audits will be undertaken to ensure that work that is claimed to be emergency remedial building work satisfies the criteria. If Fair Trading determines that building practitioners have been carrying out remedial building work without the required regulated designs and design compliance declarations without a reasonable excuse, it may prosecute for contravention of section 19 of the DBP Act and/or take disciplinary action against the registered building practitioner. This action could involve suspension or cancellation of registration under the DBP Act.
Find out more about how we audit design and building practitioners.