Are you Engaging in Domestic Building Work?
By Serge Mendis, Lovegrove Solicitors, Construction and Commercial Lawyers
11th Feb 2011
In the ‘good old days’ a building owner could engage a builder or a tradesman by merely showing them what needed to be done, the work would be performed, money would change hands, and that would be the end of it.
In today’s highly regulated environment – which is designed to protect parties on both sides of an agreement – determining whether building work is classified as “domestic building work” can often become a clouded issue, especially if the project will be mixed use, commercial and residential.
Builders and owners need to be cognizant of the fact that the work they are engaging in may fall within the purview of the Domestic Building Contracts Act 1995 – the DBCA. This may be as simple as the erection or construction of a home. In other instances, the work can be a renovation or an alteration. Extensions, repairs and improvements of residences are further classed as domestic building work.
It is important to be aware of whether the work carried out is domestic building work. If a dispute arises, to be able to settle the matter expeditiously the parties should know whether they are able to fall back on the statutory umbrella of the DBCA which applies to domestic building disputes.
Section 54 of the DBCA tells us that a domestic building dispute can be a dispute or a claim arising between building owners and builders, building practitioners, subcontractors and architects, or any number of combinations of the above, provided the work is “domestic building work”. Builders should take particular note as section 3 of the DBCA defines a builder as any person who carries out, manages or arranges domestic building work.
Let’s take a more detailed look at what kind of building work the DBCA applies to:
The erection or construction of a home, including,
– Other associated work, for example, landscaping, paving, and the construction of other structures or fixtures associated with the home such as driveways, retaining structures, fencing, garages, carports, workshops, swimming pools or spas, and;
– Providing lighting, heating, ventilation, air-conditioning, water supply, sewerage or drainage to the home or the property on which the home is situated, or will be;
The renovation, alteration, extension, improvement or repair of a home;
Any landscaping, paving, and the construction of driveways, retaining structures, fencing, garages, carports, workshops, swimming pools or spas, that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;
The demolition or removal of a home;
Any work associated with the construction or erection of a building –
– On land that is zoned for residential purposes;
– In respect of which a building permit is required under The Building Act 1993;
Any site work related to the above listed work, including work required to gain access;
The preparation of plans or specifications for any of the above listed work;
Any other work that the regulations state is building work under the DBCA.
What if, however, the project that work is being carried out on is a mixed business site, with both commercial and residential applications? These kinds of works also fall under the ambit of the DBCA as domestic building works, even where a form of agreement that is compliant with the DBCA does not appear to have been used. Notably section 3 of the DBCA defines “home” as meaning “any residential premises and includes any part of a commercial or industrial premises that is used as a residential premises”.
Section 6 of the DBCA provides us with a list of the kind of building works that do not fall into the class of domestic building works, i.e.:
Work in relation to farm buildings (other than a home);
Any work in relation to a building that is solely used for business purposes;
Any work in relation to a building that is solely used for housing animals;
Design work carried out by an architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson;
Any work involved in obtaining foundations data in relation to a building site;
The transportation of a building from one site to another;
Any other work that the regulations state is not domestic building work.
Thus it is important to realise that the bulk of the work which the everyday builder will engage in can often be domestic building work, (excluding those works excluded by section 6 listed above), and is therefore covered by the DBCA. If this is so, any disputes are likely to be referred to the Domestic Building List at VCAT.