Compliance obligations for remedial building works

Owners corporation obligations under the DBP Act 

Remedial building works involving rectification, corrective actions, or upgrades for deteriorating building elements in ageing apartment buildings or defect rectification in new apartment buildings is covered under the Design and Building Practitioners Act 2020 (DBP Act) and Design and Building Practitioners Regulation 2021 (DBP Regulation).

This means that owners corporations can only engage registered building practitioners listed on the public register to carry out the work. Before the works occur, regulated designs and declarations prepared by a registered design practitioner must be lodged with NSW Fair Trading.

But what happens when a strata building needs emergency remedial works?

Regulated designs take time and money to prepare, and the issue may be such that units or residents are seriously affected, or the owners corporation may be exposed to damage claims if the issue isn’t fixed in a timely manner.

Emergency remedial building work exemption

To address the issue of emergency repairs, the DBP Act recognises that a building practitioner may carry out work, without the required regulated designs and declarations, under an exemption if the work is deemed ’emergency remedial building work’, provided that a compliance declaration is lodged with NSW Fair Trading.

Work is classified as an ’emergency’ if the issue is likely to cause damage to the building, the building or part of it is inhabitable, there is a risk to health & safety or a risk to further damage to the building, 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 that the work does not comply with the Building Code of Australia (BCA). This lets the owners corporation know that the work is not compliant and that further statutory obligations must be considered.

Work not classified as emergency 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 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 obligations for subsequent building works

If subsequent building work is required related to the emergency remedial building work, the owners corporation must comply with the DBP legislation.

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 an owners corporation can’t keep authorising further ’emergency remedial building works’. Before undertaking the subsequent building work, design and building practitioners must be engaged to prepare regulated designs.

Auditing of emergency work

NSW Fair Trading will conduct audits to ensure that work claimed to be  ‘emergency remedial building’ works satisfies the criteria. Fines or disciplinary action may be taken against the registered building practitioner if the work doesn’t meet the exemption criteria.

A quick way to determine whether it’s emergency work – If there is time to comply with the DBP Act before performing remedial works, those works will likely not satisfy the guidelines of being ’emergency remedial building works’.

For more information, visit NSW Fair Trading – Emergency Remedial Building Works

March 2023