Building commissioner’s interpretation of construction certificate rules set aside

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By Aaron Gadiel, Partner

The NSW Government has amended the law for construction certificates, effectively reversing a controversial interpretation adopted by the state’s building commissioner, David Chandler.

The building commissioner has, for some time, claimed that single buildings, constructed in stages under separate construction certificates, may routinely be subject to different versions of the Building Code of Australia.

This has caused considerable industry disquiet.  This is because, for example, a construction certificate may be issued for a structure of a building, on the basis of the requirements of a particular version of the building code.  Once that structure has been erected it may not be practicable for a different building code version to apply for the balance of the building.

Mills Oakley has taken issue with the building commissioner’s interpretation of the law on multiple occasions on behalf of our clients.  We consider that the guidance published by the building commissioner did not paint an accurate legal picture.

Until last Friday, the law required each construction certificate to 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’.

The building commissioner took the view that the only version of the Building Code of Australia that was ‘in force’ for a building site was the version that was most recently promulgated in NSW.  This ignored the possibility that past versions of the Building Code of Australia may be ‘in force’ at a particular building site as a consequence of a code’s incorporation into a pre-existing construction certificate and the site’s development consent.

Thankfully, some of the confusion has now been swept away by the NSW Government’s amendments to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 and the Environmental Planning and Assessment Regulation 2021 published on Friday (3 February 2023).

‘The relevant date’

Building work that is the subject of a construction certificate issued by a certifier will now need to comply with the relevant requirements of the Building Code of Australia as in force at the ‘relevant date’.

For single-storey buildings the ‘relevant date’ remains the day on which the application for the construction certificate was made.

However, for multi storey buildings, the position has changed.

If a construction certificate has been issued for building work involving the entrance floor (the entrance floor construction certificate) — building work under any subsequent construction certificate (issued under that same development consent) will need to comply with the version of the Building Code of Australia in force when the application for the entrance floor construction certificate was made.

The ‘entrance floor’ is defined as the floor of the building containing the principal pedestrian entrance.

Regretfully, this does not entirely resolve all legal ‘grey’ areas.  Nonetheless, it does make it clear that once, say, a construction certificate for a typical multi storey structure is issued, the building work that is the subject of subsequent certificates will be under the same version of the building code (as the structural construction certificate).

Transitional issues

Strangely, there are two sets of transitional provisions that, at least superficially, say different things about the application of the revised regime to existing development consents.

The Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 contains provisions directed at what a certifier must do when issuing a construction certificate.

The text of the amended regulation (read literally) says that the changes will not apply to development consents for multi storey buildings — granted before 2 February 2023 — when a construction certificate has been issued (under the same development consent) for building work involving the entrance floor of the building.

Separately, the Environmental Planning and Assessment Regulation 2021 sets down a ‘prescribed condition’ (requiring compliance with the Building Code of Australia) that is taken to form part of all development consents.  As you would expect, the prescribed condition has been amended (to be consistent with the regime for certifiers issuing a construction certificate).

The text of this amended regulation has what appears to be an internally contradictory provision.  This provision is also in different terms to the transitional provision for the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

On one hand, it says that the new amended prescribed condition applies to an existing development consent only if a construction certificate has not been issued under the development consent for building work involving the entrance floor of the building.

On the other hand, it also says that an existing development consent is subject to the new amended prescribed condition that applies to an existing development consent from 3 February 2023 (without any express restriction if/when an entrance floor construction certificate is issued).

We hope that the relevant state government officials read this article — and perhaps quickly amend the regulations to ensure that the transitional provisions are free of legal ambiguity.

For further information, please do not hesitate to contact us.

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