There has been uncertainty regarding the applicability of the Design Act to emergency rectification work. This uncertainty has paved the path for NSW Fair Trading to issue a guideline explaining the obligations for emergency remedial building work under the Design and Building Practitioners Act 2020 (NSW) (Design Act).
The guideline can be accessed here: https://www.fairtrading.nsw.gov.au/trades-and-businesses/construction-and-trade-essentials/working-on-class-2-buildings/building-practitioner-obligations/emergency-remedial-building-work.
Generally speaking, the Design Act requires the preparation of a ‘regulated design’ prior to rectification work being carried out.
But, the guideline now states that if an owners corporation is performing ‘emergency remedial building work’ that can be classified as a ‘reasonable excuse’, a building practitioner is exempt from engaging a design practitioner to prepare a regulated design for the rectification work. That is, a building practitioner is permitted to undertake ‘emergency remedial building work’ without a regulated design.
The next question that arises is, what is ‘emergency remedial building work’?
The publication states remedial building work is only ‘emergency remedial building work’ if the following apply:
1. immediate action is necessary to remedy an issue; and
2. the issue is causing, or is likely to cause, damage to the building and:
a. the inability to inhabit or use the building (or part of the building) for its intended purpose, or
b. a risk to health or safety, or
c. a risk of further damage to the building (or part of the building); and
3. these impacts, or likely impacts, are serious in nature; and
4. the work undertaken is limited to what is necessary to mitigate these impacts or likely impacts until further remedial building work can be undertaken. The following case studies have been provided as examples of work that is emergency remedial building work.
Importantly, the publication also states that remedial building work is not ‘emergency remedial building work’ if the following conditions apply:
1. the work undertaken is designed to address the fundamental or underlying cause of the issue; and
2. 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
3. it is possible for statutory obligations (including but not limited to the DBP Act, SSM Act and EP&A Act) 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.
We envisage that this guideline will be greatly welcomed by owners corporations, developers and builders, with NSW Fair Trading airing some clarity into what was previously perceived to be a labyrinth.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
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Author: Maysaa Parrino & Shikha Chand
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