NSW: Is compliance with the DBPA compulsory for a class 2 building in NSW?

A few weeks ago, we conducted a webinar where Sedgwick detailed the tendering process when carrying out remedial work. Below are a few of the questions from our audience that came up during the session, including whether compliance with the DBPA is compulsory.

Table of Contents:

• QUESTION: Our building complex needs to replace non-compliant balustrades and repair balconies with concrete cancer. Should we repair both issues at the same time? We are concerned about costs and the relevant building regulations.
• QUESTION: We engaged a registered DBPA Design Practitioner for our remedial building work. However, the qualified building contractors are not DBPA-registered building practitioners. How do we meet DBPA requirements?
• QUESTION: The DBPA has introduced cost and resource overheads. Is compliance with the DBPA compulsory?

Question: Our building complex needs to replace non-compliant balustrades and repair balconies with concrete cancer. Should we repair both issues at the same time? We are concerned about costs and the relevant building regulations.

We are a Class 2 category building(s) comprising several two-storey townhouses and several three-storey unit blocks built from 1982 to 1984.

Our balustrades are 900mm high and do not meet the current regulations. Some balustrade posts have rusted. An engineer’s report states there is no immediate safety issue, but they need to be fixed. We must replace them with complying balustrades. If we only replace the ones requiring maintenance, the external appearance of the building will be inconsistent.

Can we take the balustrades down, have them repaired and then replace them?

We have some mild concrete cancer in balconies that we also need to repair. Some owners have tiled their balcony, others have not. Some of the tiling was approved, some was not. The engineer found that most, if not all, of the tiled balconies do not have a waterproof membrane. We realised we should have a by-law for improvements to balconies. We are considering lifting the tiles and laying a waterproof membrane.

The engineer advised that the waterproofing is part of an element, including the balcony, sill and doors. The balconies, sills and doors are not compliant. The balconies do not have the right slope, the sills are not high enough, and the doors are not waterproof. Therefore, it seems we would be best to fix all problems at the same time. It will be a costly exercise. Is this the best option?

Answer: One approach worth considering is staging the work over a period of time.

Your questions touch on some complex areas, particularly concerning compliance with the Design and Building Practitioners Act 2020 (DBPA). From what you’ve described, the advice you’ve received from your engineer is likely correct, especially regarding the need to meet current standards when replacing balustrades and addressing issues with the balcony hobs and doors.

These matters are indeed intricate, and as you noted, addressing one element often impacts others — such as how waterproofing, door compliance, and structural integrity must be considered together. The approach recommended by your engineer, which includes replacing non-compliant components and ensuring everything meets current regulations, aligns with best practices under the DBPA.

Given the complexity and potential costs involved, carefully planning these upgrades is crucial. One approach worth considering is staging the work over a period of time. It can help manage the financial impact on owners while meeting all necessary compliance and aesthetic requirements.

David Lamborn
Windowline
E: info@windowline.com.au
P: 02 8304 6400

This post appears in the October 2024 edition of The NSW Strata Magazine.

Question: We engaged a registered DBPA Design Practitioner for our remedial building work. However, the qualified building contractors are not DBPA-registered building practitioners. How do we meet DBPA requirements?

Our remedial building work requires NSW DBPA compliance, and we engaged a registered DBPA Design Practitioner. However, the qualified building contractors available are not DBPA-registered building practitioners. What are our options to meet DBPA requirements to submit a building compliance declaration? Can the registered Design Practitioner submit the Building Compliance declaration? Can another builder registered as a Building Practitioner supervise the building contractor doing the work?

Answer: Engage a registered building practitioner who can act as the head contractor or the principal contractor for the building work and oversee the work done by the qualified building contractors.

According to the Building practitioner obligations page on the NSW Fair Trading website, a registered building practitioner must provide a building compliance declaration for the building work, contractor documentation and other required documents within seven days of completing building work. This documentation must be lodged on the NSW Planning Portal and include a statement of variations that did not require a new regulated design. A building compliance declaration cannot be delegated to another person.

Therefore, if the qualified building contractors are not DBPA-registered building practitioners, they cannot submit a building compliance declaration. The registered design practitioner who prepared the regulated designs and design compliance declarations also cannot submit a building compliance declaration, as this is a different role and responsibility under the scheme.

One possible option to meet the DBPA requirements is to engage a registered building practitioner who can act as the head contractor or the principal contractor for the building work and oversee the work done by the qualified building contractors. The registered building practitioner can then submit a building compliance declaration after verifying that the work complies with the declared designs and the Building Code of Australia.

Another possible option is to apply for an exemption from the requirement to provide a building compliance declaration if the building work is considered to be emergency remedial building work. This is defined as building work necessary to prevent or reduce the risk of significant harm or damage to persons or property or to rectify a serious defect in a building element or performance solution. However, this option is subject to the approval of the Secretary of the Department of Customer Service, and may not be granted in all cases.

We hope this helps you understand the options to meet the DBPA requirements for remedial building work. However, please note that this is not legal advice, and you should consult a qualified professional before making any decisions. Also, the information I provided may not be up to date or accurate, as the DBPA scheme is subject to change and interpretation.

Anthony Rahme
Sedgwick
E: Anthony.Rahme@Sedgwick.com
P: 0424 750 900

This post appears in the June 2024 edition of The NSW Strata Magazine.

Question: The DBPA has introduced cost and resource overheads. Is compliance with the DBPA compulsory?

We are a small block of eight lots built in the 1980s. We are experiencing waterproofing issues. The Design and Building Practitioners Act 2020 (DBPA) has introduced cost and resource overheads. Is compliance with the DBPA a compulsory tender requirement? Is there a legal obligation, with penalties for non-compliance, to follow the DBPA? Can we remove compliance requirements from our invitations to tender?

Answer: The primary objective of the Design and Building Practitioners Act 2020 is to protect consumers.

Ultimately, the standard is the standard, and you are required to comply. It is a short-term pain for a long-term gain. While people think it’s onerous and will add cost and time, it must be followed and embraced because the primary objective is protecting consumers.

It may add time and cost to the front end of the project, but it will give you a good outcome in the end. You cannot exclude compliance with the DBPA from a tender. It’s the law for class 2 buildings in NSW.

We have encountered owners who had work done by someone qualified to do a design. However, they were not registered practitioners. The building threw away money because they then had to go back and rework the design with someone who was a registered practitioner. You don’t want to do things twice or three times. You’re much better off doing it right the first time.

Bruce McKenzie & Edwina Feilen
Sedgwick
E: bruce.mckenzie@au.sedgwick.com
P: 1300 735 720

This post appears in the April 2024 edition of The NSW Strata Magazine.

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