Confusion is rife within the industry regarding ongoing changes to regulations surrounding class 2 buildings. Most remedial work on class 2 buildings now triggers the full regulatory documented pathway demonstrating compliance with the Building Code of Australia (BCA) in force at the time the construction certificate is issued, thereby increasing the costs of remediation significantly.
Following the introduction of the Design and Building Practitioners Act 2020 (NSW) (DPB Act) and its subsequent regulation, the Design and Building Practitioners Regulation 2021 (NSW) (the Regulation), most common upgrades now trigger the full compliance pathway, leaving little room for minor maintenance to be considered exempt development work.
Before the DBP Act
Remedial work is a broad term involving repair, upgrades or defect rectification on both existing and new buildings. Previously, remedial work on Class 2 buildings often did not require planning approval as the work was considered ‘repair and maintenance’, as opposed to a major development. Under older rules where operating design practioners were not required to be registered in all circumstances, and fewer specific compliance declarations were required; less accountability and significant defects existed.
New Compliance Framework
The DBP Act and subsequent regulations emerged to ensure that remedial work improves the overall safety and quality of existing buildings to contemporary standards, as opposed to the old “grandfathering” approach. New regulations require a formal design, declaration, and lodgment process for most remedial work regardless of whether a building approval was previously required. Design practioners must ensure their designs comply with contemporary building codes regardless of the existing construction certificate for the original building works, often resulting in increased works to be undertaken. Building practioners in turn must ensure that the construction aligns with the compliant designs.
Critically, a registered design practitioner must prepare and lodge a Construction Issued Regulated Designs (CIRD) for the remedial work. The CIRD must contain the necessary details to produce building work that would achieve compliance with the BCA in force at the time of lodgment and can be used by a building practitioner to carry out the work in accordance with the regulated design. Particularly stringent for fire safety remediation, where designs for fire safety updates are required to comply with the above requirements, alongside satisfaction of the relevant authority for the remedial scope.
Impact on the Industry
Cost and Scope Blowouts
- The requirement for existing older buildings to curent standards when considering remedial works often converts a straight-forward repair to an unaffordable and complex venture. Industry critique centers on the ‘one-size-fits-all’ application of the framework requiring both major structural repair and essential small-scale maintenance to undertake the same compliance pathway. Accordingly, there is a push for proportionality in the regulatory approach.
Misinterpretation of the narrow regulatory frameworks
- Though some development is exempt on account of its minor impact, similar to operations prior to the DBP act, the scope is now narrower. Even if work is considered exempt development under the Codes SEPP, the DBP Act applies for most common building elements, triggering the full DBP compliance regime.
Misinterpretation is also rife in emergency remedial work, not requiring regulated designs to be submitted prior to work being completed. Emergency remedial work must meet a narrow set of criteria. However, if the scope is satisfied, a separate compliance pathway still exists. Once the work is carried out, the building practitioner must provide a building compliance certificate to the Building Commission NSW and allow time for the owner’s corporation to plan subsequent remedial building work. Consequently, owners’ corporations are unable to repeatedly conduct emergency remedial work to alleviate compliance with timing requirements.
Practical Scope Blowout Examples:
Cost Blowout of Essential Small-Scale Maintenance
- A simple balcony repair under NCC rules in 2022 cost approximately $55,000, starkly contrasted with the $200,000 that may be required when complying with the 2025 regulations. This increase in cost largely accrues from obtaining approvals, insurance, certifier costs, consultant input, and construction required to upgrade building elements. Particularly evident in elements such as waterproofing, requiring modern waterproofing standards that the original building was not designed for. Complex certifications to satisfy current standards may force some owners’ corporations to defer essential remedial work if costs are not adequately accounted for.
Bathroom and Waterproofing Upgrades
- As opposed to previous ‘’like-for-like” repairs, which did not require formal approval, the new compliance framework often turns minor maintenance into major ongoing projects with complex certification and scope of the required work. Often minor essential work such as ‘moisture management’ reveals further limitations of the existing buildings, requiring major upgrades or complete replacement of bathrooms to meet current BCA standards.
The impact on Builders
- In the case of The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263, Mr Da Silva, a tiler and waterproofer, was engaged to undertake remedial works on common balcony terraces. Upon commencement of the works, the initial remedial scope had to be broadened to satisfy current building standards and address water ingress, which was not present in the initial inspection. The new framework under the DBP act ensures strict compliance with the current BCA, liability conferred on the builder practioner as per their statutory duty of care.
Delay issues in meeting the requirements explored in Regional Areas
- Often in regional areas, a limited number of registered practioners are available to act on a matter, increasing delays and costs of prospective minor renovations complying with the stricter requirements. This was seen with a Dubbo strata building in 2024, requiring a roof replacement, which became a complex project on account of the unavailability of a registered building practioner. Once skilled labour was secured in Bathurst, the added cost and delays exceeded the initial scope for repairs.
Conclusion
As the industry calls for reform to avoid scope and cost blow-outs under the new legislation, staying informed and compliant with current regulatory updates is crucial. For practioners, builders and strata owners the presumption is clear; remedial work for class 2 buildings must comply with the current BCA standards.
More information
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