Q&A with David Kyburz

Posted 9 August 2019

Q&A with David Kyburz


Q: I have completed the build of a new residence and the client has raised concern that their pergola leaks. They are saying that they expected the pergola not to leak.

A: There are two issues raised with this question.

The first issue is, was there a requirement within the contract requiring that this structure was to be constructed so it would not leak?

If there was a requirement within the contract then you, as the builder would be obliged to have constructed the pergola to prevent the entry of water.

However, if there was no contractual arrangement in place, then the second issue is whether there is a technical requirement to prevent the entry of water through the pergola.

The National Construction Code (NCC), Building Code of Australia requires single dwellings that are classified under the NCC as Class 1 buildings to be weatherproofed

Class 1 buildings are considered habitable and must be constructed so as to prevent the penetration of water entering from the roof and wall and also resist moisture rising from the ground so as to prevent unhealthy or dangerous conditions or loss of amenity for the occupants and undue dampness or deterioration of the building elements.

Pergolas, private garages, carports, sheds or the like are classified as Class 10a buildings or structures under the NCC.

Class 10a buildings or structures are considered to be non-habitable and as such are not required to be weatherproofed and there is no necessity to prevent the penetration of water into these types of buildings or structures. 



Q: Do I need to notify MBA when the building work has been completed?

A: Residential Building Insurance is required in accordance with the Building Act 2004 to provide the consumer with protection against financial loss resulting from the builder’s death, insolvency or disappearance.

Legislation requires that insurance or Fidelity Fund Certificate is to be issued for each residence prior to commencing building work.

As part of the process of obtaining a certificate the licenced builder would make application through MBA to seeks cover for work that he/she expects to be undertaking over the preceding twelve months.

The builder would generally be granted approval for the issue of a maximum number of certificates and he/she would then make application to have certificates issued for building work at specific sites. 

At the completion of each project the builder should notifying MBA that work has been completed. This notification is done by providing a copy of the Certificate of Occupancy or Use (C of O) to MBA as soon as practicable after the C of O has been issued.

Should the builder not advise MBA that the work has been completed the builder will not be issued further certificates if the maximum number or limit granted has been reached.


If you have any technical questions you may contact me on 6175 5954, mobile 0419 866 796 or via email dkyburz@mba.com.au

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