We are all aware of the push by the NSW Government to 'restore consumer confidence' in the NSW Construction Industry and the need to tackle the issue of serious defects being experienced by many unit owners throughout NSW.

Whilst the majority of building and design practitioners out there are slowly adapting to the new obligations which came into effect in NSW on 1 July 2021 under the Design and Building Practitioners Act 2020 (DBPA) and the Design and Building Practitioner Regulations 2021 (DBPR), others are scratching their heads at how the fundamental defect problems being experienced in strata buildings, may have nearly ‘slipped’ under the radar in this reform package.

Many multi-storey residential buildings with hundreds of apartments have defective bathrooms, roof membranes, planter boxes and so on, as a result of poor installation of waterproofing membranes and design in the original construction.  Remedial engineers and builders are brought in, quite often after lengthy litigation, for an owners corporation, to repair these waterproofing defects.

An owners corporation, not to mention the hundreds of lot owners who live in a strata building, would like to think that their waterproofing defects will be remediated under a compliant design prepared in accordance with the BCA and best-practice.  Whilst this is likely to be true if the defects are repaired by the right industry professionals with the necessary waterproofing expertise, having come out of lengthy litigation, the thought of having to ‘do it all again’ if the works are not completed to the same standard as that required by the DBPA and DBPR, is not one that a lot owner or an owners corporation want to face.

Up until 30 July 2021, until amendments were made, clause 13(1)(a) of the DBPR excluded from ‘building work’ under the DBPA ‘(a) work that is carried out as exempt development‘.

Whilst the ‘reach’ of what has been considered as ‘exempt development’ is another topic altogether, this means that until the recent amendment, there was arguably no requirement to prepare ‘regulated designs’ for new waterproofing membranes and a more than good chance of the rollercoaster of litigation starting all over again.

There was much conjecture and confusion amongst Remedial Practitioners as to the interpretation of clause 13(1)(a) of the DBPR and whether clause 13(1)(b) relating to waterproofing applied, if the works fell under ‘exempt development‘. The peak association for the remedial industry in Australia and NZ, ACRA (Australasian Concrete Repair and Remedial Building Association) lobbied the OBC for a clearer direction relating to Remedial Works, in particular, waterproofing.

Waterproofing is an inherent problem in our construction industry.

Training requirements to become a waterproofing installer are minimal with some qualifications only requiring a 4-hour course.  There is minimal supervision on many sites, simply due to the workload of site supervisors, which leads to shortcuts in waterproofing installation taking place, and to be fair, it is not easy to get it right.  There are multiple products on the market for use indoors and outdoors, creating confusion for those tradespersons who may not have any clue about what each product does.

An inherent problem exists with the Australian Standards for waterproofing is that they provide minimal guidance on how to design an effective waterproofing system and set out minimal tested methods for waterproofing as a Deemed to Satisfy solution, leaving much to chance or poor workmanship.

This combined with the fact that there may have been no design compliance requirements for waterproofing works if the works were considered ‘exempt development’ works, was obviously a major point of confusion for the remedial building industry.

If the issue had not been addressed so promptly by the Government when the shortfalls of the DBPR were brought to its attention, the question surely would have been raised – do existing owners of a strata unit take any comfort from the new reform or is it focused on the consumers buying ‘new’ units given they are the ones spending the money now?

The Government promptly responded to the concerns raised and as from 30 July 2021, amendments to clause 13(1)(a) of the DBPR have been made and the clause now reads as follows: (a) work that is carried out as exempt development, other than waterproofing’.

All regulated designs prepared for building elements of a Class 2 building must be prepared in accordance with the BCA.  That is, if you are preparing a design of a waterproofing system in a building element of a class 2 building, even if you are performing remedial building works and not original building works, you have to declare that your design complies with the BCA and you have to build in accordance with that design.

The next issue for resolution, which I am sure is not far away, is how remedial designers and builders comply with their obligations when the NSW Planning Portal, the avenue for lodgement of all necessary design compliance declarations, etc, is not easily accessible to those without a development application or CDC number.  This is something that ACRA have been discussing with the website architects at Construct NSW and they are already on to it, but no doubt it may take a few iterations!

By Helen Kowal, Partner, Swaab