The question of when an existing building needs to be upgraded to comply with the deemed-to-satisfy (d-t-s) provisions of the current BCA is often asked by building owners who are planning new works. Building upgrade requirements are generally based on the various provisions of the relevant NSW Building Acts, Regulations and Planning Policies. As noted below all BCA upgrades requirements are determined on the basis of the following
(a) The type of work being proposed; and
(b) The type of approval required to be used (DA/CC or CDC) for the works;
There is no single rule that determines when a building should be upgraded to comply with the current BCA, each particular circumstance needs to be assessed on merit as an upgrade can take various forms. Listed below is a summary where building upgrades may be required under the various legislative requirements:
SUMMARY OF UPGRADE REQUIREMENTS
This is a summary of where building upgrades may be required (triggered) where new building works are being proposed:
(a) Where a DA is sought for new building works and the total of all works completed over the past 3 years is greater than half of the buildings volume. Council may decide the extent of upgrade required;
(b) Where a DA is sought for a change of use with no building works. Category 1 Fire Safety services must be provided for the new use;
(c) Where a CC is required for a change of use with building works. Category 1 Fire Safety services must be provided for the new use;
(d) Where a CDC is sought for new building works. The Accredited Certifier must ensure that the building is provided with sufficient fire services and that the level of fire protection within the building will not be reduced;
(e) Where a CDC is sought for a change of use with or without any building works. Category 1 Fire Safety services must be provided for the new use;
(f) Under the SEPP for Complying Developments the Accredited Certifier must ensure that services (Egress, WC’s, Light and Ventilation) are sufficient for the new development;
CURRENT LEGISLATION
The applicable legislation which govern the design and upgrade of existing buildings is: (a) The Environmental Planning and Assessment Act 1979 (EP & A Act 1979); and
(b) The Environmental Planning and Assessment Regulation 2000 (EP & A Reg 2000);
This Act and Regulation is used in conjunction with the State Environmental planning policy (SEPP - Complying Developments) 2008.
The provisions of Section 80A(11) of the Act and Clause 98 of the Regulation (Regs) require that all new building works must be carried out in accordance with the Building Code of Australia (BCA).
The provisions of Section 109R of the Act relating to Crown Building Works also requires that the building work be carried out in accordance with the Building Code of Australia (BCA).
The application of compliance with the particular version of the BCA is the date on which tenders are issued. It should be noted that the Australian Building Codes Board updates the BCA on the 1 May each year so it is possible that if tenders are not called prior to 1 May 2016 the requirements for compliance may change from those detailed in this review.
Listed below are the various scenarios where a building upgrade may be required. An upgrade can take various forms, this will depend on different circumstances and the different approval required.
DA REQUIREMENTS FOR NEW WORKS
Clause 94 of the Regulations as part of the Section 79C (1) (a) (iv) of the Act the consent authority in determining a development application where:
(a) The proposed building work, together with any other building work completed or authorised within the previous 3 years, represents more than half the total volume of the building, as it was before any such work was commenced, measured over its roof and external walls, or
(b) The measures contained in the building are inadequate:
(i) To protect persons using the building, and to facilitate their egress from the building, in the event of fire, or
(ii) To restrict the spread of fire from the building to other buildings nearby,
In determining a development application to which this clause applies, a consent authority is to take into consideration whether it would be appropriate to require the existing building to be brought into total or partial conformity with the BCA.
Please note that Clause 98 of the Regs requires all new building works to comply with the relevant deemed-to-satisfy provisions of the BCA. Where a DA provides condition for an upgrade of a building the Accredited Certifier must ensure that those upgrade provisions are included with the approved CC plans.
Where a DA is lodged with Council and Clause 94(a) or (b) is applied the Consent Authority (Council) will make the decision if the building is required to be upgraded and if so, to what extent. This may require a complete or partial building upgrade. A BCA assessment issued with the DA submission may provide some guidance for the Council in this instant.
DA REQUIREMENTS FOR CHANGE OF USE
(No building works)
Clause 93 of the EP & A Reg 2000 refers to fire safety and other considerations:
(1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building;
(2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed use;
(3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building’s proposed use; Note. The obligation to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in relation to the relevant development consent.
(4) Subclause (3) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
(5) The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act;
Where a DA is lodged with a Consent Authority (Council) for the change of use of a building they must ensure the new use is adequately protected by certain (Category 1) fire services. In this case the building upgrade may only be limited to those services.
Category 1 fire safety provisions are as follows: This means the following provisions of the Building Code of Australia, namely, EP1.3 (fire hydrants), EP1.4 (sprinklers), EP1.6 (fire control centres), EP2.1 (smoke detection and alarms), EP2.2 (smoke hazard management) and EP3.2 (emergency lifts) in Volume One of that Code and P2.3.2 (smoke detection and alarms) in Volume Two of that Code.
CONSTRUCTION CERTIFICATE REQUIREMENTS – CHANGE OF USE
(With building works)
Clause 143 of the EP & A Reg 2000 requires a certifying authority must not issue a construction certificate (CC) for building work under a development consent that authorises a change of building use unless:
(a) The fire protection and structural capacity of the building will be appropriate to its new use, and
(b) The building will comply with such of the Category 1 fire safety provisions as are applicable to the new us.
Before a certifying authority (Accredited Certifier) can issue a CC for the change of use of a building they must ensure the new use is adequately protected by certain (Category 1) fire services. In this case the building upgrade may only be limited to those services.
Category 1 fire safety provisions are as follows: This means the following provisions of the Building Code of Australia, namely, EP1.3 (fire hydrants), EP1.4 (sprinklers), EP1.6 (fire control centres), EP2.1 (smoke detection and alarms), EP2.2 (smoke hazard management) and EP3.2 (emergency lifts) in Volume One of that Code and P2.3.2 (smoke detection and alarms) in Volume Two of that Code.
COMPLYING DEVELOPMENT REQUIREMENTS FOR NEW WORKS
Clause 132 of the EP & A Reg 2000 refers to development standards for building work involving the alteration, enlargement or extension of an existing building:
(1) This clause applies to development for which a complying development certificate is sought involving the alteration, enlargement or extension of an existing building, otherwise than in connection with a change of building use of an existing building.
(2) The development standards applicable to such development include the requirements that on completion of the building work:
(a) If the building work involves the reconfiguration of any internal part of the building (being a part that is to be occupied) — the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the reconfigured part of the building, and
(b) The fire protection and structural capacity of the building will not be reduced;
(3) That requirement assumes that the building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject;
Before a certifying authority (Accredited Certifier) can issue a CDC for the new works must ensure that the building is provided with sufficient fire service are provided and that the new works will not reduce the existing level of fire safety;
COMPLYING DEVELOPMENT REQUIREMENTS FOR CHANGE OF USE;
(With and Without building works)
Clause 131 of the EP & A Reg 2000 refers to development standards for:
(1) This clause applies to development for which a complying development certificate (CDC) is sought involving a change of building use of an existing building.
(2) The development standards applicable to such development include the following requirements:
(a1) That, whether or not any building work is carried out, the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the part of the building affected by the change of building use,
(a) That, on completion of any building work, the fire protection and structural capacity of the building will be appropriate to the proposed use,
(b) That, whether or not any building work is carried out, the building will comply with such of the Category 1 fire safety provisions as are applicable to the proposed use, assuming that any building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.
Before a certifying authority (Accredited Certifier) can issue a CDC for the change of use of a building they must ensure the new use is adequately protected by certain (Category 1) fire services. In this case the building upgrade may only be limited to those services.
Category 1 fire safety provisions are as follows: This means the following provisions of the Building Code of Australia, namely, EP1.3 (fire hydrants), EP1.4 (sprinklers), EP1.6 (fire control centres), EP2.1 (smoke detection and alarms), EP2.2 (smoke hazard management) and EP3.2 (emergency lifts) in Volume One of that Code and P2.3.2 (smoke detection and alarms) in Volume Two of that Code.
STATE ENVIRONMENTAL PLANNING POLICY (SEPP) 2008 COMPLYING DEVELOPMENTS
5.2 Development standards
(2) The following requirements of the Building Code of Australia are also standards specified for a development approved under CDC:
(a) (n/a)
(b) If the alteration involves an area of more than 500m 2 of commercial premises, or an area of more than 1,000m 2 of premises used for light industry or a warehouse or distribution centre - that area must:
(i) Comply with the requirements set out in DP2-DP5 (egress) of Volume 1 of the Building Code of Australia, and
(ii) Comply with the number of sanitary and other facilities set out in FP2.1, FP2.5 and FP2.6 (WC’s and hot water) of Volume 1 of the Building Code of Australia, and
(iii) Comply with the light and ventilation requirements set out in FP4.1-FP4.5 (light and ventilation) of Volume 1 of the Building Code of Australia;
(2) Subclause (2) (b) is also a standard specified for that development if the alteration involves an area of more than 500m 2 of a tertiary institution; Before a certifying authority (Accredited Certifier) can issue a CDC for the new works they must ensure that the building is provided with sufficient service as indicated within this part of the SEPP for Complying Developments;
Before a certifying authority (Accredited Certifier) can issue a CDC for the new works they must ensure that the building is provided with sufficient service as indicated within this part of the SEPP for Complying Developments;
References:
Environmental Planning and Assessment Act (EP & A Act)
Environmental Planning and Assessment Regulation (EP & A Act)
Building Code of Australia
State Environmental Planning Policy (SEPP 2008)
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