The committee has received conflicting advice from our defects experts and the builder about the declared design. Who provides the compliant design so that rectification work can begin?
Our strata committee is managing defect rectification works in our owners corporation (OC). We've received conflicting advice about the declared design. The builder argues that our defect experts are asking for too much detail and insists the declared design is adequate. Our experts say they cannot sign off on the rectification works until the builder corrects and updates the declared design.
Does the builder need to provide a compliant declared design before defect rectification works commence, or can the works proceed while the design is still in dispute?
Be guided by the person providing the registered design or declared design.
Declared designs are also referred to as regulated designs. A registered design practitioner prepares regulated designs. This is not usually the builder. However, it depends on your construction contract. If it's a design and construct contract, the design obligations fall on the builder.
The most common contract is a construct only, where the OC or the relevant owner will be required to bring those drawings to the table. The registered design practitioner is the only party who can provide regulated designs or declared designs. Following that, they provide what's called a design practitioner compliance declaration, which essentially puts their name on this drawing, saying, "I'm the registered design practitioner. I designed these drawings", then those are provided to the builder. In usual circumstances, the builder is the registered building practitioner who provides those documents on the New South Wales portal in compliance with their obligations and declaration.
So, the answer to the question is to be guided by the person providing the registered design. If they're the practitioner putting it forward, it's their name, their registration, their job. That's the process that needs to be followed. This also comes from the Design and Building Practitioners Act. This is the other arm of the same act. This is more the compliance side than the prosecution side. It's a big change that everybody is starting to have to deal with, particularly regarding rectification works and whether you need a declared design.
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Jack De Gioia is a Senior Associate at Bannermans Lawyers, specialising in construction law, building defect claims and strata law. He advises owners corporations, developers and contractors across NSW on contract drafting, dispute resolution and litigation, regularly appearing before the NSW Civil and Administrative Tribunal, District Court and Supreme Court.
His expertise includes reviewing building and consultancy contracts, enforcing rectification work orders, and resolving strata disputes involving defects, encroachments and boundaries. Jack also drafts strata by-laws, negotiates easements and licences, and advises on development and property matters. He holds a Bachelor of Laws and Commerce from the University of Notre Dame Australia and is admitted to the Supreme Court of NSW and High Court of Australia.
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