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  • #74118
    Jimmy-T
    Keymaster

      This second part of Lawyer In The Hotseat opens with an apology for promoting a discussion on ebikes in last week’s podcast, forgetting that it’s actu
      [See the full post at: Podcast: Lawyer in the Hot Seat, Part 2]

      The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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    • #74400
      Ray2U
      Flatchatter

        On May 9th, 2024, Jimmy-T’s podcast “Lawyer in the Hot Seat, Part 2” featured a discussion on the Design and Building Practitioners Act. The guest, strata lawyer David Bannerman, highlighted the need to engage a professional engineer for remedial work certification. This sparked the suggestion that Fair Trading should consider a threshold to exempt relatively straightforward repairs from requiring the services of an engineer.

        However, upon reviewing the Design and Building Practitioners Act, I noted section 31(2)(a), which states that engineering work is not considered professional engineering work if it is performed solely in accordance with a document outlining the procedure or criteria for carrying out the work without requiring advanced scientific calculations.

        This provision suggests that reputable organisations can provide documents detailing repair methods, eliminating the need for professional engineering involvement. For instance, there’s a document called “Guide to Concrete Repair and Protection” for concrete spalling repairs, approved by the Standards Australia Council. Similarly, for balcony waterproofing, there’s a standard known as “Waterproofing Standard – AS 3740:2021” that outlines the repair and application procedures.

        In summary, if an approved engineering standard or document covers a specific repair, then engaging a professional engineer may be unnecessary. This approach can facilitate a more efficient repair process and potentially reduce costs for strata owners.

        On the other hand, if a repair requires complex calculations or specific expertise, engaging a professional engineer is essential.

         

        #75078
        Bannermans Lawyers
        Strataguru

          Hi Ray,

          This is a symptom of the confusing nature of the D&BPA.

          It is possible to have a regulated design that does not entail “professional engineering work” as defined in s31 so long as it otherwise satisfies the requirements for a regulated design.

          There is, however, still a requirement for the specified design professional to provide the design declaration if a regulated design is required.

          This is due to the requirement for a regulated design to be provided by a registered design practitioner before a building practitioner can carry out building work:

           

          19   Designs and design compliance declarations to be obtained

          A building practitioner must not, except with reasonable excuse, carry out any part of building work for which a regulated design is to be used unless—

           (a)  the practitioner has obtained a design from a registered design practitioner for the work and a design compliance declaration for the design from a registered design practitioner whose registration authorises the practitioner to provide a declaration as to the matters to which the declaration relates, and

          (b)  the declaration states that the design complies with the requirements of the Building Code of Australia and other applicable requirements prescribed for the purposes of section 8(1).

           

          9   Compliance declarations by registered design practitioners

          (1)  A registered design practitioner must provide a design compliance declaration to a person if—

           (a)  the practitioner provides the person with a regulated design prepared by the practitioner, and

           (b)  the design is in a form suitable for use by that person or another person in connection with building work.

           

          5   Regulated designs

          (1)  For the purposes of this Act, regulated design means—

          (a)  a design that is prepared for a building element for building work, or

          (b)  a design that is prepared for a performance solution for building work (including a building element), or

          (c)  any other design of a class prescribed by the regulations that is prepared for building work.

           

          So, it’s not that a design professional is not required, as much as that to the extent that the engineering professional can certify the design and that certification also constitutes works excluded from the definition of “professional engineering work” it won’t be “professional engineering work” under the D&BPA but the engineer will still need to be engaged to provide the declaration.

          For ease of reference, the exclusions for professional engineer work in the D&BPA are:

          Section 31:

          (2)  However, engineering work is not professional engineering work if—

          (a)  the work is only provided in accordance with a document that states the procedure or criteria for carrying out the work and the work does not require the application of advanced scientifically based calculations, or

          (b)  the engineering work is prescribed by the regulations as not being professional engineering work.

           

          And in the regulation:

          Reg 14:

          14   Certain work is excluded from being professional engineering work

          (1)  For the Act, section 31(2)(b), engineering work is not professional engineering work unless the work is carried out directly in relation to the design or construction of a building, or part of a building, that is—

          (a)  a class 2 building, or

          (b)  a class 3 building, or

          (c)  a class 9c building.

           

          Example—

          The Act and this Regulation apply to a mixed-use building comprising class 2, class 5 and class 6 buildings, including the building’s class 5 and class 6 building parts.

           (2)  In this clause—

          construction includes—

          (a)  the making of alterations or additions to a building, and

          (b)  the repair, renovation or protective treatment of a building.

          or a relevant authorisation,

          Level 2, Suite 1, 65 Berry Street, North Sydney NSW 2060
          PO Box 514 North Sydney NSW 2059
          P 9929 0226 F 8920 2427
          W www.bannermans.com.au

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