DBPA: When Is a Design Actually Required?

Two questions decide it

The Design and Building Practitioners Act 2020 and its Regulation introduced a framework of registered practitioners, regulated designs and compliance declarations. Cutting through the detail, whether a remedial job needs a registered design generally turns on two questions:

• 1
  Is it a regulated building? The framework applies to a defined set of building classes, not to every building.
• 2
  Does the work involve a building element or a performance solution? Not all work on a regulated building triggers a regulated design — the nature of the work matters.

If the answer to both is yes, a registered design and a design compliance declaration are generally required before work starts. If either answer is no, they generally are not. The detail underneath each question is where jobs are won or lost.

Is it a regulated building?

Regulated buildings are currently class 2, class 3 and class 9c buildings, including mixed-use buildings that contain a class 2, 3 or 9c part. In plain terms that captures apartment buildings, many residential-style accommodation buildings, and aged-care buildings.

• ✓ Class 2 — apartment buildings (and the class 2 part of a mixed-use building).
• ✓ Class 3 — residential accommodation such as boarding houses, hostels and some student and short-stay accommodation.
• ✓ Class 9c — residential aged-care buildings.

Standalone houses (class 1) and most standalone commercial buildings (for example class 5 offices or class 6 retail) generally fall outside the regulated classes. Note also that remedial building work on class 3 and 9c buildings was subject to a transitional exclusion, so the current position for those classes should be confirmed against the legislation as it stands at the time of the work.

Does it involve a building element or performance solution?

On a regulated building, a registered design is required where the work involves a building element or a performance solution. Building elements include:

• ✓
  Fire safety systems and fire-rated construction.
• ✓
  Load-bearing and structural components.
• ✓
  Waterproofing.
• ✓
  The building enclosure — external walls, the facade and elements that keep weather out.
• ✓
  Mechanical, plumbing and electrical services.

A performance solution — where compliance is demonstrated other than by the Deemed-to-Satisfy provisions of the Code — requires a regulated design in the form of a report, regardless of the element. Much remedial work touches at least one of these categories, which is why so many strata jobs are caught.

When a design IS required

• ✓
  Balcony and podium waterproofing remediation.
• ✓
  Facade and external wall rectification, recladding or building-enclosure repairs.
• ✓
  Structural repairs — concrete spalling, cracking and load-path remediation.
• ✓
  Work to fire-rated elements or fire safety systems.
• ✓
  Any rectification relying on a performance solution rather than Deemed-to-Satisfy.

Where a regulated design is required, a registered design practitioner prepares it, provides a design compliance declaration confirming it meets the Building Code of Australia, and the designs and declarations are lodged on the NSW Planning Portal before the related building work can begin. A registered building practitioner then makes the corresponding declarations for the building work.

When it may not be

• ✓ The building is not a regulated class (for example a standalone house or a standalone commercial building).
• ✓ The work is genuinely minor and does not involve a building element or a performance solution.
• ✓ Emergency work to make a building safe, which is treated as an exception in limited circumstances — though it should still be properly documented.

“Minor” is frequently misjudged. Work that looks cosmetic can touch waterproofing, structure or the building enclosure once it is opened up, which is why the assessment is best made before, not during, the job.

Why getting it right matters

Carrying out regulated work without the required designs and declarations can render the work non-compliant, expose the parties to regulatory action and rectification orders, and create problems at sale, insurance or handover. Commissioning a registered design where none is required, on the other hand, adds unnecessary cost and delay. The value is in making the correct call early — and in having it made by someone who understands both the regulation and how the work is actually built.

How we help

We assess whether a job is likely to require a regulated design, coordinate the registered design and compliance declarations where it does, and deliver the works as licensed builders. Because we operate across engineering, design and construction, the compliance pathway and the buildable solution are considered together rather than in isolation.

Related

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This article is general information, not legal advice, and reflects our understanding of the framework at the time of writing. Building classifications and the regulated scope can change. The requirements for any specific building and scope of work should be confirmed against the current legislation and, where needed, with appropriate professional advice.