Duty of Care owed by a person who carries out construction work under the Design and Building Practitioners Act 2020 (“DBP”) applies to a broad range of buildings - Beware

25/11/2025

The Design and Building Practitioners Act (DBP Act) commenced on 11 June 2020 and operates retrospectively.

The Court has confirmed that a person who carries out particular construction work, has a duty to avoid economic loss caused by defects in/or related to a building and arising from construction work.

In Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5 (Roberts v Goodwin) (delivered its Decision 10 February 2023), the Supreme Court of Appeal:

(a)       confirmed that the DBP Act - Duty of Care applies to broad classes of buildings covered under the Environmental Planning and Assessment Act 1979 (EPA Act); and

(b)       held that narrower definition of ‘building work’ at Section 4(1) of the DBP Act should be applied when identifying the type of work undertaken.

Mr Roberts contended that the narrow definition of building works under Section 4(1) of the DBP Act should apply which would have the effect that the DBP Duty of Care owed, did not attach to carrying out construction work of the student accommodation which was not covered by the narrower definition under Section 4(1) of the DBP Act. 

Legislative Framework briefly

1.         The DBP Act refers to the Statutory Duty of Care under the DBP Act which is set out in sections 36 to 41 of the DBP Act.

2.         Section 36 of the DBP Act sets out the definitions of various words used in the DBP Act.

3.         Section 37(1) of the DBP Act provides the DBP Statutory Duty of Care and states:

“(1)  A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects—

(a)    in or related to a building for which the work is done, and

(b)    arising from the construction work.

(2)     The duty is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of land.

(3)     A person to whom a duty of care is owed is entitled to damages for the breach of duty.

(4)     The duty care is owed to an owner whether or not the construction work was carried out:

(a)     under a Contract or other arrangement entered into with another person…; or

(b)     otherwise than under a Contract or arrangement”.

4.         The Court in Robert’s case had to consider what the meaning of ‘building’ was for the purpose of the DBP Act duty of care owed. The DBP Act contains several definitions which may have been applicable and the Court of Appeal was asked to determine which definition should apply.

5.         Section 36(1) of the DBP defines ‘building’ as follows:

“Building has the same meaning as it has in the Environmental Planning and Assessment Act 1979.”

6.         Under section 1.4 the Environmental Planning and Assessment Act 1979 ‘building’ is defined as follows:

“building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.”

7.         Section 36(1) of the DBP Act defines ‘building work’ as follows:

“building work includes residential building work within the meaning of the Home Building Act 1989”.

8.         Section 4(1) of the DBP Act states:

(1)     For the purposes of this Act, building work means work involved in, or involved in coordinating or supervising work involved in, one or more of the following—

(a)     the construction of a building of a class or type prescribed by the regulations for the purposes of this definition..,

(b)     the making of alterations or additions to a building of that class or type…,

(c)     the repair, renovation or protective treatment of a building of that class or type.

9.         Clause 12 of the Design and Building Practitioners Regulations 2021 (DBP Regulation 2021) which was introduced on 1 July 2021 states:

“(1)  For the DBP Act, section 4(1), definition of building work, paragraph (a), a building is prescribed if the building, or a part of the building, is—

(a)     a class 2 building, or

(b)     a class 3 building, other than temporary accommodation facilities, or

(c)     a class 9c building.”

10.       The various Class of a Building is referred to the National Construction Code and the Building Code of Australia.

In Roberts v Goodwin, the Court of Appeal was asked to determine whether the definition of ‘building’ for the purpose of the DBP Duty of Care is the definition of ‘building’ at section 36(1) in the DBP Act or the definition of ‘building work’ at section 4(1) in the DBP Act.

The definition of ‘building’ under section 36(1) of the DBP Act (and therefore the definition under the EPA Act) is broad and includes buildings such as boarding houses, age care residences, hostels, residential parts of hotels, car parks, dormitories in school and carparks.

On the other hand the definition of ‘building works’ under section 4(1) of the DBP Act, is narrow and limited to application to Class of Buildings 2, 3 and 9 only (which does not include single dwelling homes, terraces, town houses or certain boarding houses and hostels).

Goodwin contended that Justice Stevenson of the Supreme Court who heard and decided the case at first instance, was correct in deciding that the broader definition of Section 36(1) of the DBP Act should apply in the context of the DBP duty of care owed by Mr Roberts. 

Court of Appeal’s determination on meaning of ‘building’ and ‘type of work’ to which the DBP Statutory Obligations relate

The Supreme Court of Appeal ultimately agreed with submissions on behalf of Goodwin (and with Justice Stevenson’s decision below) that the meaning of ‘building’ is as defined in section 36(1) of the DBP Act (and under the EPA Act).

The Court of Appeal held that the narrower definition of ‘building work’ (at section 4(1) of the DBP Act), should be applied when identifying the type of work undertaken, whilst the broader definition of ‘building’ (at section 36 of the DBP Act) should be applied when identifying the type of building at which work is undertaken.

At Watson & Watson our Lawyers have extensive experience over many years in all areas of building and construction law and strata law. It is important to be prepared and seek appropriate timely advice when you are dealing with any of the various aspects of work to be undertaken from contracting, claims, progress claims and dealing with all matters of disputes including incomplete and defective works by a Builder.  Please contact Richard Watson, Accredited Specialist, Commercial Litigation in the stream of Building and Construction by contacting his Personal Assistant Shereen Da Gloria to discuss your circumstances. 

The above in our view, is not based on your particular factual matters and it is critical that one considers the factual matters. The above is not to be taken as legal advice to be relied upon, without first contacting Richard Watson as referred to above.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.