Remedial Works, the DBP Act
and Planning Approvals

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