Exempt development - but is it exempt from the Design and Building Practitioners Act 2020 (NSW)?

In brief

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) and the Design and Building Practitioners Act 2020 (NSW) assist in determining whether remedial building works constitute 'exempt development'.

Background

In July 2023, the New South Wales Department of Planning and Environment issued a fact sheet entitled Remedial building work - State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. 

While the fact sheet is not legal advice, it seeks to provide guidance to understand how the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP) applies to remedial building work in the context of the Design and Building Practitioners Act 2020 (NSW) (DBP Act). That is, it provides guidance on what constitutes 'exempt development' under the Codes SEPP and is also exempt from the requirement to prepare a regulated design under the DBP Act.

This is important because previously, when work was considered to be 'exempt development' under the Codes SEPP, that was the end of the line of enquiry. Those in the industry now need to be aware that if particular work is 'exempt development' under the Codes SEPP, consideration must also be given as to whether the DBP Act applies so as to cause the need for a regulated design to be prepared.

With the spotlight continually being shone on defects within the building industry together with the increased costs of designing, building and fixing class 2 buildings, the fact sheet will no doubt be used by those in the industry as well as owners corporations to try to work out if they need to comply with the DBP Act and prepare a regulated design before undertaking remedial building work. This is because there can be significant cost and time implications if a regulated design needs to be prepared. 

'Remedial building work'

While there is no definition of 'remedial building work' in the Codes SEPP, the DBP Act or the Design and Building Practitioners Regulation 2021 (NSW) (DBP Regulation), the fact sheet says that remedial building work is work involving:

• "rectification or corrective actions or upgrades for deteriorating building elements in aging buildings 

• rectification of defects in relatively new buildings."

What needs to be considered

Those carrying out remedial building work need to consider two questions:

• Firstly, whether the remedial building work is 'exempt development' under the Codes SEPP; and 

• Secondly, whether the remedial building work is exempt from the requirements of the DBP Act and the DBP Regulation. 

When considering whether proposed remedial building work is 'exempt development', the first step is to go to the Codes SEPP and identify a relevant code that may apply. If a code is available and the applicable development standards and other requirements of the Codes SEPP are met, then the development may be exempt from the requirement to obtain a development consent or complying development certificate. 

The fact sheet helpfully provides a list of examples of work considered to be 'exempt development' under the Codes SEPP provided the development standards and other requirements of the Codes SEPP are met. It is also worth noting that some of the codes (such as clause 2.53 of the Codes SEPP) are not exhaustive. This means that other works not specifically mentioned could also be considered to be 'exempt development'. Legal or other advice may be needed to determine  whether or not the work fits within the code. 

If the remedial building work is 'exempt development' under the Codes SEPP, consideration must then be given to whether the provisions of the DBP Act apply. One can no longer stop after forming the conclusion that particular work is 'exempt development' under the Codes SEPP. 

Rather, building practitioners, design practitioners, owners corporations and strata managers need to consider whether clause 13 of the DBP Regulation which identifies work that is excluded from being "building work" under the DBP Act applies. If work is excluded from being "building work" under the DBP Act, then that Act does not apply so as to require a regulated design to be prepared. 

Clause 13 of the DBP Regulation contains a list of 14 circumstances where work is excluded from being "building work". For example, with the exception of certain types of waterproofing work, 'exempt development' under the Codes SEPP is not "building work". Only certain types of waterproofing work is excluded from being "building work" because waterproofing is a building element under the DBP Act.

Take away messages

When determining whether remedial building work is 'exempt development' under the Codes SEPP for a class 2 building, consideration should also be given to whether the work is exempt from the requirements of the DBP Act. Just because work is 'exempt development', this does not mean that the requirements under the DBP Act are avoided. 

The exemptions from the DBP Act set out in clause 13 of the DBP Regulation do not only apply to some 'exempt development' under the Codes SEPP. There are other types of "building work" as defined under the DBP Act and Regulation that are also exempt such as in circumstances where orders are issued under the Local Government Act 1993 (NSW) or the Environmental Planning and Assessment Act 1979 (NSW). The entirety of clause 13 of the DBP Regulation should be considered to make sure there is an available provision before carrying out any work without a regulated design. 

Ultimately, there are at least two layers of regulation to consider when dealing with remedial building works. The first involves relevant planning instruments, in particular the Codes SEPP, and the second is the DBP Act. 
work is 'exempt development', this does not mean that the requirements under the DBP Act are avoided.