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The National Construction Code (NCC) 2022 was due to be published by 1 October 2022, and there are two major reforms that will eventually need to be adopted by the building industry for new domestic dwellings constructed in Australia.

These changes relate to disability/adaptable access changes (“liveable housing”) and also energy efficiency and condensation provisions.  While different States and Territories are adopting different approaches as to whether they adopt both major reforms, and the timing of the reforms coming into force, as it currently stands Victoria intends for both reforms to be applicable from 1 October 2023.

Industry bodies in Victoria and volume builders have expressed serious concerns about such major changes to the Building Code / NCC being applicable and mandatory for the residential construction industry as early as October 2023.

NCC 2022 is due for a start date of May 2023 but there is currently a 12 month transition period from date of publication (October 2022) until the major reforms are to come into mandatory and legal effect.  The national Building Code commenced more than 25 years ago, and the provisions of NCC 2022 will involve the single biggest change in all of that time.

A range of timeframes have been announced across Australia, but the Victorian Minister of Planning has not yet indicated a time frame for adoption that is outside the national date for inception in October 2023.

Of course, the provisions of the Building Code / NCC are called up by the Building Regulations and form part of the Regulations (by incorporation).  Therefore, a breach of the NCC provisions will mean the Building Regulations are also breached.

According to one industry body, the proposed changes will call up a range of steps to implement the changes, including:

• Holistic redesign of all new homes to be constructed;
• New display homes will need to be re-designed and built pursuant to the new provisions found in NCC 2022;
• New energy rating tools to be finalised and made available to the industry;
• Energy assessors will need to fully familiarise themselves with utilising the new energy rating tools when they become available;
• Relevant Building Surveyors will need to update their processes to ensure they fully conform to their duties under statute, with regard to the new changes;
• Manufacturers will need to supply new building products that comply with the new provisions;
• Allotment sizes and layouts will need to change, with some currently subdivided allotments possibly no longer being able to be built on.  (New subdivision can take more than 5 years);
• Any exemptions to the new provisions in the NCC need to be confirmed, for instance whether the reforms will apply to the small lot housing code that is currently under review;
• Assessing how the new provisions will apply to substantial alterations and additions to existing homes;
• The need to upgrade building documentation, technical literature on products and their installation, and training publications for construction industry qualifications.

As you can see from the above, these are momentous reforms that will take time for government, industry and consumers to get their heads around. 

Some volume builders and industry bodies in Victoria are submitting to the State Government that 12 months from 1 October 2022 is simply not enough time for stakeholders to implement these major new NCC requirements, as well as an array of other individual changes found in the new Code.

As a consequence, there has been a suggestion made that instead a transition period of 3 years from publication of NCC 2022 be adopted, in regard to the major reforms in the Code for liveable housing, and the energy efficiency and condensation provisions.

Suggestion has been made that developers and builders can have regard to the provisions of section 10 of the Building Act 1993, to allow a Building Surveyor for a project to certify that “substantial progress” had been made on a design for the project before the commencement date of the NCC reforms.  This could avoid the need to redesign the works or seek variations to the contract price and so forth.

Section 10(1) of the Building Act 1993 states that a building regulation or an amendment of 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.

Further and more specifically, section 10(2) of the Act provides:

“(2)      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.”

This is a helpful provision and has been looked at favourably by some in the construction industry in New South Wales.  In that State, there is currently uncertainty on which version of the NCC to adopt (as between the 2016 and 2019 versions) with regard to such matters as fire safety provisions for large scale projects that require staged Construction Certificates.

The Construction Certificate in NSW is of course the equivalent of a Building Permit in Victoria.  Where there are multiple Construction Certificates throughout the duration of a large development in NSW, such as an apartment building, it has not been clear which version of the Building Code is to apply when the project nears completion. 

This is because the relevant provision of the Environmental Planning & Assessment Regulation 2000 only refers to the date of application for the Construction Certificate (singular) as being the benchmark date to set the applicable version of the Building Code.  However, it does not allow for the situation where there are multiple Construction Certificates and therefore multiple applications for each Construction Certificate.

Meanwhile, in Victoria, if they are so willing the Building Surveyor for a development can certify in writing that “substantial progress” was made on the design of the building work before the building regulation (or amendment to the regulation) commenced.  Here, when we are referring to a building regulation or change to a regulation, we are really referring to a provision of the Building Code / NCC, which form part of the building regulations by incorporation.

Given the high levels of caution in the industry currently, including with the building surveyor industry, it is indeed a moot point however whether the Relevant Building Surveyor (“RBS”) would be prepared to use their discretion in accordance with section 10(2) of the Act. 

Instead of opting to certify that substantial progress has been made on a design, the RBS may steer the safer course of requiring that a design complies with the NCC 2022 provisions (if the date for adoption of specific reforms has passed).  The industry therefore has argued that the best course is to allow a longer transitional period for the industry to adapt to the reforms.

For more advice and assistance on the rights and responsibilities of domestic builders and other construction practitioners, including regulatory advice, do not hesitate to seek swift advice from construction law practitioners well versed in the relevant laws.

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 construction law firm. Lovegrove & Cotton Lawyers and our experienced lawyers will assist you based on the facts and circumstances of your case.

Lovegrove & Cotton Lawyers to the building industry

For thirty years, Lovegrove & Cotton have represented property owners, builders, building surveyors, and building practitioners in Melbourne, Canberra, Sydney and Queensland. Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute. If you wish to engage the firm, feel free to contact us via our website, by emailing enquiries@lclawyers.com.au, or via phone at (03) 9600 4077.

By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers