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There has been much debate in the New South Wales construction industry on the vexed question of which year/version of the Building Code of Australia applies where there are multiple, or staged, Construction Certificates on the same building project.

This was particularly pertinent given that the BCA/NCC 2019 version requires the residential parts of an apartment building to have fire sprinklers whereas previous Building Code iterations would only have called up sprinklers in the basement carpark for the same structures.

If an authority later demands that a building be made compliant with the fire safety features encompassed in the most recent Building Code, and those features are only compliant with an earlier version (for instance, 2016), then the consequence could be orders issued requiring expensive retrofitting of a building after an Occupation Certificate has been issued.

The New South Wales Government has, early this year, introduced regulatory changes to allow for the “locking in” of the applicable version or “edition” of the Building Code of Australia for new multiple storey buildings.

This much needed reform is found in the Environmental Planning & Assessment (Development Certificate and Fire Safety) Amendment (Construction Certificates) Regulation 2023, otherwise known as the “Amending Regulation”.  This Regulation has come into force from 3 February 2023.

The reform in the Amending Regulation therefore applies to Construction Certificate applications on or after 3 February 2023, and the key changes are summarised as:

• For multi-storey buildings subject to multiple Construction Certificates, the edition of the Building Code of Australia (“BCA”) applying to CC applications issued after the Construction Certificate for the “entrance floor” has been issued (“later in time CC applications”) is the edition that applied to the CC application which includes the “entrance floor”.
• For developments that are subject to modified Construction Certificates, the edition of the BCA applying to all applications to modify development is that BCA edition which applied to the “original” CC application that is the subject of the modification.

The Amending Regulation makes adjustments to an earlier regulation, being the Environmental Planning & Assessment (Development Certification & Fire Safety) Regulation 2021. 

This is effected firstly, by adding in a new sub-section 1A to Section 19 of the Regulation that refers to “the relevant date” and says:

“(1A)    The relevant date is:

• the day on which the application for the Construction Certificate was made; or
• if the building is a multi-storey building and a Construction Certificate has been issued under the same development consent for building work involving the entrance floor – the day on which the application for that Construction Certificate was made.”

There is also a new Section 19(5) inserted:

“(5)      In this section –

“entrance floor”, of a multi storey building, means the floor of the building containing the principal pedestrian entrance.”

This is a solid outcome for all those concerned within the industry of the relevant date being measured as the date of the application for the Construction Certificate, which was always silent on which Construction Certificate was being referred to. Where there are to be staged or multiple Construction Certificates for a project, the quandary is knowing precisely which Construction Certificate, and therefore which application for a Construction Certificate is being referred to.

As regards the question of modified CCs (rather than entirely new CCs), a new section (2A) has been inserted into section 24 of the Regulation as follows:

“(2A)   For the purposes of subsection (2), a reference in this Part to the Building Code of Australia is taken to be a reference to the edition of the BCA that applied in relation to the original application.”

Therefore, a “lock in” date is also easily discernible for the setting of the Building Code version that applies to modified CCs; it is the date of the application for the original Construction Certificate, that is later sought to be modified.

When then do these changes apply from, and are they retrospective in nature? The Amending Regulation only came into force from 3 February 2023, and in the Amending Regulation it is stated that the “section 19 changes” do not apply to the issue of a Construction Certificate if:

• the relevant development consent was granted before the commencement of the amendments; and
• the building to which the development consent relates is a multi storey building; and
• a Construction Certificate has been issued under the same development consent for building work involving the entrance floor of the building.

Also, there is another definition given, being:

“existing development consent” means a development consent that relates to a multi storey building in force immediately before the commencement of the amending Regulation.”

All in all this is a positive outcome for the industry, because the definition of “relevant date” for working out the appropriate edition of the Building Code is now more readily predictable in circumstances where there are to be multiple Construction Certificates issued under a project.

It will no longer be necessary for parties to be tempted to refer to new CCs as modified CCs in order to argue a previous edition of the Building Code applies to works under later Construction Certificates.

So where did all the previous uncertainty arise from?  A brief recap of the previous situation in NSW is described below.

Clause 145(1)(b) of the Environment Planning & Assessment Regulation 2000 stated that a Certifier must not issue a Construction Certificate for building work unless:

“the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the Construction Certificate was made).”

This provision refers to the Building Code “as in force at the time the application for the Construction Certificate was made”.  Historically, some Councils pointed to this provision and the relevant wording to call for developments to comply with the 2019 Building Code (rather than the 2016 version), in circumstances where there are multiple Construction Certificates, some of which date back to an earlier version of the Building Code. The real question then is: Which application and for which Construction Certificate?

To take a contrary view argued by many private certifiers, could it instead be the case that an original CC application for the entire development “locks in” an earlier version of the BCA as the applicable version of the Building Code? This was believed to be the understood practice amongst most members of the certification profession in NSW.  

If this were not so, then confusion could be caused given that many developments are constructed over several years and if it is a “moving feast” as to which Building Code applies, it means that the design standards shift over the course of the works.

Based on the applicable clause of the Regulation, it is the date of the application for a Construction Certificate that one refers to, in order to work out the applicable year of the Building Code that applies to the works under that Construction Certificate.

There did not appear to be any provision of any legislation that would require there to be a separate CC application made for every staged Construction Certificate.

If it was the practice of NSWFB to require a Construction Certificate application to accompany a Reg 144 referral to the NSWFB, then a Certifier needed to be aware that if they asked for a new CC application from the developer, that could mean that a later version of the Building Code applied to the most recent staged Construction Certificate (if one was issued).

The risk often arose where, for instance, a Certifier was issuing a staged Construction Certificate near the end of a project, where the structure of the building (generally an apartment building) is already constructed and there is a final Construction Certificate to cover fire services (or any updates to an earlier fire engineering report).

In some circumstances there could be an argument that the later / staged Construction Certificate is not truly a new Construction Certificate, but is in truth really a “Modified” Construction Certificate.  In other words, a modification of a Certificate already issued earlier in the process.  It may be more difficult to argue this though when a new application for the Construction Certificate is called for by the Certifier and that application form does not clearly indicate that a “modified” CC is being sought.

In the absence of case law and guidance from elsewhere in the legislation, what in fact was the correct interpretation of Clause 145(1)(b) of the EP&A Regulation?

The interpretation of the provision was not clear from the wording of Clause 145(1)b), but a favoured “industry practice” interpretation was that the initial Construction Certificate application, if it was for the “whole of building” or a similar description, was the benchmark by which to assess the applicable version of the Building Code. 

If there is an initial fire safety schedule and fire engineering report that is merely being updated in the latest CC, this could assist an argument that the fire safety requirements are “locked in” at this earlier point in time.  However, it is important to note that this merely assists the argument, rather than being determinative.

Any other interpretation did not really work in practice because for projects that can take many years to complete, with staged approvals, it becomes impractical to issue a final approval where there are multiple versions of the Building Code to assess the building against.

If one is to look at the natural meaning of the words in Clause 145(1) of the Regulation, and also think about the law’s purpose, it seems that if the NSW parliament had intended there to be a need for multiple applications for staged Construction Certificates, the latest in time setting the correct version of the Building Code, then parliament would have drafted the law to clearly say so. 

However, the applicable Clause of the Regulation is not drafted this way.  Instead it refers to the time of “the application” (singular) for “the Construction Certificate” (singular), as the time that indicates the correct version of the Building Code.

A submission from a Certifier industry group stated in part the problem with multiple versions of the Building Code:

“This would have the potential to create significant compliance issues for building owners.  If a building was approved in stages with the CCs straddling that version change then the compliance requirements could be deemed to have changed over the construction period.  This is not a practical or appropriate way to administer building approvals.”

One hypothetical to illustrate this is a scenario where earlier CCs may be issued that do not include all levels of a building. Imagine that an earlier staged CC is under a Building Code version that only calls up 2 exits from a storey, but then a later CC is issued to cover remaining storeys under a later Building Code that calls for 4 exits from each storey. This would mean that earlier constructed levels of the building (based on an earlier staged CC) could be deemed non-compliant, but it would be impractical to ‘un-do’ the earlier building work.

The existence of or ability to issue a Modified Construction Certificate is specifically contemplated by Clause 148 of the EP&A Regulation 2000.  However, Certifiers still had to be mindful of the problems arising from the legislative uncertainty over Clause 145(1)(b) of the Regulation, and the risk that a new application for a new Construction Certificate could call up a later version of the Building Code as applicable. 

If a Certifier is going to call for a new application for a CC to be made, but they are intending to approve a modified CC only and not a new staged CC, then they should ensure that the application properly identifies this.

In Victoria there has not been such an issue to overcome.  This is because section 10 of the Building Act 1993 allows a Building Certifier to certify that an earlier version of the Building Code will apply to the entire project if there has been “substantial progress” on completing the design before the version of the Building Code was updated (to a later version or edition).

Section 10 of that Act (Application of new building regulations to building work) reads as follows:

“(1)      A building regulation or an amendment to a building regulation, does not apply to the carrying out of any building work in accordance with a building permit existing immediately before the building regulation or amendment commences.

• A building regulation, or an amendment to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced.”  (Emphasis added).

For more advice on your rights and responsibilities in this area of law or other matters concerning private certifiers in New South Wales, please do not hesitate to contact expert construction lawyers for more advice and assistance.

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.

Written by Justin Cotton