Planning approvals & the DBP Act for strata remedial works
In a recent interview with Helen Kowal, Partner at Swaab, we discussed the implications of the recent legislative and regulatory reforms in the construction industry of New South Wales. These reforms, while widely acknowledged as necessary for enhancing the quality of construction work in both new and existing structures, have inadvertently triggered a host of complexities for strata schemes involved in remedial works, building repairs, and upgrades.
Helen Kowal shares her insights into these challenges and explores their short and long-term impacts on strata schemes and owners’ corporations.
What are the implications of the recent building legislative and regulatory reforms on existing strata schemes?
There is no debate on the necessity of construction reform in New South Wales to elevate the quality of both new and existing construction work. However, the reforms have introduced challenges for established strata schemes engaged in remedial projects to rectify defects, maintenance on older structures and building upgrades.
Whilst the long-term goals are definitely needed to ensure the longevity of residential strata buildings, there has been a sharp short-term impact. Specifically, the classification of whether remedial works are either exempt or non-exempt development under existing planning laws has generated significant uncertainty for owners’ corporations.
Historically, remedial building works in multi-storey residential or mixed-use buildings, have generally been classed as ‘repair and maintenance’ works. Consequently, planning approval was usually considered unnecessary.
Under the new regime, if remedial works are exempt development, works can progress without having to meet the costs and delays of going through the new approvals process. If the works are also excluded from the Design and Building Practitioners Act 2020 (DBPA) under clause 13 of the Design and Building Practitioners Regulations 2021 (Regulations), then they can also progress without the preparation of a Regulated Design.
However, when the works cannot proceed as an exempt development, owners corporations must follow the planning approvals pathway and also comply with the DBPA, effectively subjecting the same project to two levels of regulatory control. While this may be justified for major development projects, it could impose an additional and potentially unnecessary compliance burden for smaller-scale remedial works.
Are older schemes impacted in any other way?
Many older buildings, particularly those built in the 1980s or earlier, were not required to have a fire safety certificate at the time of construction and still do not have fire safety measures to current standards. For these buildings, clause 1.16(2) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) applies to immediately classify these works as not exempt development requiring compliance through the approvals pathway.
Fire Safety Systems are a ‘Building Element’ under the DBPA and any related works are only excluded from the DBPA if they involve work under Cl 13 (1)(f) …’that is repair, renovation or protective treatment of a fire safety system for the purposes of maintaining a component of the fire safety system, except a load bearing component that is essential to the stability of a building.
What are we seeing three years on from the commencement of the DBPA?
Three years on from the commencement of the DBPA there is still confusion for the remedial/strata industry. Design and building practitioners, owners corporations, and strata managers have been looking for guidance as to what remedial building works are actually ‘exempt development’ works and how they comply with the legislation. We have seen practitioners, certifiers and building consultants unwilling to classify some remedial building works as exempt works’. This has led to multiple projects being put on hold, more development applications being lodged, and increased costs and delays for owners corporations.
How has the government and industry responded?
After a continuing consultation process, the Department of Planning and Environment has recently published a ‘Remedial Building Work – State Environmental Planning Policy (Exempt and Complying Development Codes) 2008’ Fact Sheet (Fact Sheet) to provide guidance as to when remedial building work is considered exempt development under the Codes SEPP.
The Government, the remedial, and the strata industry will continue the consultation process with the intent of providing further clarity for the industry in the coming months. In the interim, the Fact Sheet provides general information and welcome guidance to the industry. This is a positive step achieved with significant input by the Australasian Concrete Repair & Remedial Building Association (ACRA).
How does this step help?
The Fact Sheet provides guidance which was much needed as a result of the unintended focus which the DBPA has brought to the remedial/strata industry with respect to the impact of clause 1.16 of the Codes SEPP on remedial building works which states:
(1) To be exempt development for the purposes of this Policy, the remedial building work—
(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia (DTS), or if there are no such relevant provisions, must be structurally adequate, and
(b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia.
(2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2 – 9 is exempt development for the purposes of this Policy only if—
(a) the building has a current fire safety certificate or fire safety statement, or
(b) no fire safety measures are currently implemented, required or proposed for the building.
In new construction works to comply with the Building Code of Australia (BCA) is simple (or should be). You are designing a new building. You are not restricted for the works you are performing, having to fit in with an existing and most probably, non-compliant space. There should be relevant Deemed to Satisfy (DTS) provisions applicable to the new building works or you should be able to comfortably prepare a Performance Solution to meet the performance requirements of the BCA.
If you are undertaking remedial building work in an existing class 2 building, sometimes more than 30 – 50 years old, a practitioner will find themselves having to ‘fit a design’, to either rectify a defect or renovate a dilapidating building, into a space which does not allow strict compliance with the current version of the BCA. These works, in considering the Codes SEPP, mean that where no Deemed to Satisfy provision is relevant, the works must be structurally adequate and not contravene the BCA to be exempt development.
How can this situation be resolved?
Under the Codes SEPP, there is confusion around what remedial building works are exempt under the classification of ‘Minor Building Alterations.’ There is no reference to ‘remedial’ building works in the Codes SEPP nor a definition of ‘minor.’ Whilst there has been a gradual realisation by Government as to the clear distinction between ‘remedial’ building works and ‘new’ construction and the Government is stepping up to provide guidance working with the legislation in its current form, there is a hope of legislative change to come.
What do we know now?
The Fact Sheet aims to provide guidance for the remedial industry as to examples of what remedial building works are considered ‘exempt’ works and, whilst the DBP still applies for exempt works such as waterproofing or cladding, clarity is provided for remedial building works such as external window and door replacements, balustrade repair and replacement, cavity flashings, lintels, concrete repairs.
In simple terms, if you are performing remedial building works which:
- do not ‘permanently alter’ the load-bearing elements or layout of the building.
- re-instate a building element to its ‘intended structural capacity’ and do not reduce the structural adequacy of that building element.
- do not change the original architecture or design intent of the building ie like-for-like pose minimal impact to the built environment.
- and comply with the development standards
these are remedial building works which would be considered ‘exempt development’ under the Codes SEPP.
The Fact Sheet contains some examples of typical remedial works as well as guidance and general information with the observation that logic should be applied. Where there is uncertainty about whether a remedial building project is exempt development or not, advice should be obtained from the relevant professionals.
July 2023
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