Much has been said about the impact of the unintended consequences of the Design and Building Practitioners Act 2020 (NSW) and accompanying regulations (the DBP) on the strata remedial industry over the past 6 years.

However, the simple fact of the matter is…existing buildings are different.

People hear me make this statement regularly. It is poignant in any discussion relating to the DBP and accompanying construction reform in NSW.

It is now well accepted by the industry that new class 2, 3 and 9(c) buildings are required to be built in compliance with the DBP. This includes apartment buildings, other residential buildings such as hotels and other accommodation, and residential care buildings.

This legislation, in short, requires regulated designs to be prepared prior to construction by suitably registered design practitioners for building elements.  Regulated designs must comply with the Building Code of Australia (BCA), otherwise known as the National Construction Code or NCC.

Existing class 2 buildings also need to comply. However, there are certain exclusions provided for in section 13 of the accompanying DBP regulations with transitional periods still in place and recently extended to 1 July 2028 for existing class 3 and 9(c) buildings.  Even with those exclusions, owners of apartment buildings are suffering.

There has been contention in recent times over NSW’s adoption of the 2025 update of the National Construction Code (NCC 2025).  This has now been adopted, but delayed until 1 May 2027, to allow the industry ‘time to adjust’.

Pleasingly, after lengthy consultation by industry representatives with Government[1] and with the support of the Minister for Better Regulation and Fair Trading[2], in early May 2026 the NCC 2025 Part F1 Water Management provisions were amended in NSW to provide the option for building work to existing parts of an existing building to comply with Parts F1 and F3 of NCC 2022 Amendment 2 or Part F1 of NCC 2025 when the NCC 2025 takes effect. 

This was a significant win for the strata remedial industry. It ensures that the earlier NCC 2022 provisions can still be used[3] in cases where the revised water management provisions in the NCC 2025 are not able to be adopted in existing buildings due to the as-built structure,

Why is it so important that the reform addresses existing buildings?

In 2025, 17% of NSW residents lived in strata dwellings, with 91,078 existing strata developments[4].

It is predicted that by 2040, 50% of Greater Sydney’s population will live in apartments, townhouses and villas under strata and community titles. This represents an astonishing level of increase over a fifteen-year period.

The Minister for Better Regulation and Fair Trading has discussed strata reform packages over the past 12 months as a part of ‘Government’s holistic approach to addressing the housing challenge and will ensure that the State’s strata laws give people the confidence to live and invest in strata’[5].

In all this reform, costs for owners in apartment buildings have undoubtedly sky-rocketed.  Not only because of increased construction costs generally, but also because of the necessity of having to carry out more extensive works than were previously practiced to achieve compliance with the regulations.

Don’t be mistaken, regulation is a good thing.

In my role, I see many lot owners impacted by not only dodgy and below standard building practices, but also a failure of owners corporations to properly maintain and repair buildings.  Some cases are so critical that even from the perspective of a layperson, the seriousness of the defects and failures defy all reasonableness in the normal sense of the word.

NSW Fair Trading have recently gained additional powers to, inter alia, issue orders on an owners corporation to undertake rectification of serious defects in compliance with strict repair and maintenance obligations under s106 of the SSMA[6].  It is hoped that these powers assist.  However, the limited capacity of NSW Fair Trading to address the massive number of complaints for serious failures means that delays are likely.

Education of owners buying into strata is paramount. So often, owners buying into strata fail to understand that they do not ‘own’ the common property in the building, they simply own the ‘airspace’ within their lot. And yet, they have a responsibility as a group of owners to maintain that common property.

This leads to disputes about unauthorised renovation works, damage to common property and other lots along with unnecessary litigation and cost.

NSW Fair Trading will be conducting online training modules mandatory for strata committee members in late 2026.  However, it is essential that consumers buying into a strata development understand what they are buying, what costs they are responsible for and that ongoing maintenance for the common property is partially their responsibility.

Building better

A passionate advocate for buildings being built properly in the first place, Professor Cathy Sherry of Macquarie Law School, provided the following comment:  ‘I still think it is absolutely outrageous that so many people paid for brand new apartments and got millions of dollars of defects. Any other product – car, toaster – they would get a full refund, but because it is land and caveat emptor prima facie applies, they get years of financial and social pain. I am passionate about anything that fixes that.’

The stark reality is that apartment owners are being forced to do repairs in their units when there is no possibility of single dwelling homeowners being ‘made to do repairs given the prohibition on positive obligations on freehold land’.

Professor Sherry advocates for education in the strata sector – for ‘owners, government, the strata management and development industries (that) the power to extract money from people in strata is a) necessary b) exceptional and c) it should only be used for proper purposes.  Doing repairs is absolutely a proper purpose’. [7].

Proactive maintenance rather than reactive repairs

If you buy a house, you carry out regular works to maintain it.  There should be no difference in a multi-level apartment building.  Why would you not?  It is your asset.  As an owners corporation, performing regular maintenance to keep the building in a fit and proper state to ensure its longevity is essential.

Many owners corporations, often with influence from just a few owners in the building who take a ‘save money’ approach, fail to carry out required and ongoing capital works in their own self-interests and end up in a dire state of disrepair.  This leads to multiple claims by lot owners (who effectively sue themselves) under section 106 of the Strata Schemes Management Act 2015 for damages caused by failures to repair, or worse, lead to the ultimate destruction of the building.

Dr Nicole Johnston, a well-known academic in the strata sector and Founder and Director of Strata Knowledge, has published various papers on maintenance in existing buildings[8].  A statement which resonates is: ‘It is overwhelmingly evident that schemes undertake repairs and maintenance in a reactive way.  No scheme in the research project sample demonstrated a holistic, proactive approach to repairs and maintenance.’

The pitfalls are easy to recognise.  Fixing them, is the hard part.

It has taken time since the introduction of NSW construction reform in 2020 for the NSW Government to recognise that ‘remedial’ building works are different.  After much consultation with Government and the publication of guidance as to what remedial building works are classified as exempt development work[9], some minor changes to the Codes SEPP have been introduced to acknowledge a broader range of remedial works as exempt development[10].

Whilst having the word ‘remedial’ in the legislation may not be so critical, the impact of not recognising that certain remedial building works cannot comply with existing building codes due to the way a building was originally constructed, is critical.

Remedial design practitioners should not be criticised for taking a more conservative approach of meeting available Deemed-to-Satisfy provisions[11] by those not working exclusively in the remedial sector for the fact that they do not adopt a performance solution approach, in the absence of tested solutions and, with little regulatory guidance on the proper preparation of a performance solution.

If there is an option to reduce liability for a practitioner in a litigious environment where millions of dollars may be in question, it is simple to understand why the ‘recipe book’ method of applying the building codes is adopted by many practitioners.  Adequate insurance for the 10-year liability period is exorbitant and personal liability for a ‘non-prescriptive’ solution is high.

In NSW, performance solutions also trigger planning approval in an already overloaded planning system leading to extensive delays and at a significant further cost to owners corporations[12].

The roundabout keeps spinning.

There is future change on the horizon and the anticipated departure of the DBP in its current form with the Building (Approvals and Practitioners) Bill 2026 presently before Parliament.

I am still hopeful of a clear recognition of existing buildings in the further construction reform with submissions made to government, inter alia, by ACRA, providing suggestions of what has been successfully adopted in other countries[13].

The path for the remedial construction sector in NSW continues.

Helen Kowal is Partner, Strata and Construction Team at Swaab

[1] Including The Australasian Concrete Repair and Remedial Building Association (ACRA): See (15 July 2025) The proposed NCC2025 waterproofing and water shedding provisions (NCC2025) and the impact on owners of existing buildings in NSW. D Lockart & T Mackay: Discussion-paper_Impact-of-proposed-NCC-2025-on-owners_25.07.15_-ISSUE-VERSION-5.pdf

[2] NSW Government Media Release: Anoulack Chanthivong, 25 March 2026: NSW to adopt new National Construction Code in May 2027

[3] Part F1 Water management | NCC

[4] 2024 Strata Insights Report (revised in October 2025)

[5] New strata laws start to support owners and enhance accountability of strata managers | NSW Government; Strata overhaul reaches final milestone as fourth reform bill is introduced to NSW Parliament | NSW Government

[6] Strata and Property Taskforce delivers “high-rise” in compliance during first year | NSW Government

[7] Prof. Cathy Sherry: Why Strata Laws Need Urgent Reform — The Elephant in the Room

[8] Navigating building defect management in Australian apartments: processes and impacts on resident well-being | Facilities | Emerald Publishing; Building Care Action in Ageing Strata Properties: Facilitating Better Outcomes, Dr N. Johnston (unpublished); An examination of building defects (older report on building defects) – https://strataknowledge.com/an-examination-of-building-defects-in-residential-multi-owned-properties/

[9] Remedial building work – State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; When-is-Remedial-Building-Work-Exempt-Develpment.pdf

[10] The introduction of section 2.53(g) into Subdivision 27 Minor building alterations (external) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 to introduce 2.53(g) other remedial work necessary to repair or maintain the building as a specified development for a minor external non-structural building alteration.

[11] What you need to know | NCC

[12] See Footnote 1.

[13] Australasian Concrete Repair and Remedial building Association: ACRA_Streamlining-and-Modernising-the-NCC_24-Feb-2026_WEB-PAGES.pdf