On 19 January 2024, the NSW Government released two new regulations that impact buildings containing a class 2, 3 or 9c part:
In this technical alert, we give you a quick summary of the most significant changes.
Building Legislation Amendment Regulation (No 2) 2024 (NSW)
Vertical transportation products under the spotlight
- The DBP Act imposes obligations on designers and builders in respect of 'regulated designs' for 'building elements' in buildings containing a class 2, 3 or 9c part. For example, Design Compliance Declarations are required to be lodged in the NSW Planning Portal for all regulated designs for building elements prior to construction commencement.
- Until now, the definition of a 'building element' was limited to five core aspects of a building: (1) fire safety, (2) waterproofing, (3) structure, (4) facade, and (5) mechanical plumbing and electrical services that are required to achieve Building Code of Australia (BCA) compliance.
- The new Regulation introduces a sixth 'building element' via the DBP Regulation, being those aspects of a vertical transportation product that are required to achieve compliance with the BCA.
- This is consistent with other parts of the DBP Regulation that already referred to vertical transportation products.
- The new Regulation also amends the definition of a vertical transportation product in the DBP Regulation to make it broader. The new definition states that a vertical transportation product includes a lift, escalator or moving walkway (which means that other unspecified types of vertical transportation products are now captured by the definition).
- Further, the new Regulation amends the RAB Regulation to provide that a 'serious defect' in a building (which can trigger investigation and enforcement action by the Building Commission) can include the use of a vertical transportation product in a building if the use of the product in the building poses a risk that persons are or will likely be at risk of death or serious injury. In the RAB Regulation, the definition of a vertical transportation product is more descriptive and expressly includes parking systems and equipment that is designed to move vehicles.
Design Compliance Declarations aligned with Building Products (Safety) Act
Under the DBP Regulation, a Design Compliance Declaration must include, among other things, whether or not any building product referred to in the design would, if used in a way that is consistent with the design, achieve compliance with the BCA.
The new Regulation clarifies that in this context, a 'building product' includes a material or other thing that is, or could be, incorporated into, connected to, or otherwise installed in a building by means of, building work. This aligns with the language in the Building Product (Safety) Act 2017 (NSW).
Strata Schemes Management Amendment Regulation 2024 (NSW)
Increase in building bonds deferred to 1 July 2024
The building bond required to be lodged by a developer under the Strata Building Bond and Inspection Scheme was due to increase from 2% to 3% on 1 February 2024. Under the new Regulation, this increase is deferred until 1 July 2024.
Build-to-rent excluded from the building bond regime
The new Regulation provides that build-to-rent properties that are:
- carried out under development consent granted under SEPP (Housing) 2021, Chapter 3, Part 4; and
- entitled to a reduction in the assessable value of the land under the Land Tax Management Act 1956, section 9E,
are not subject to the building defects and Strata Building Bond and Inspection Scheme under Part 11 of the SSM Act.
We recommend that all building industry participants familiarise themselves with the changes, and watch this space for further updates and legislative reforms in 2024.
Please contact our Building Regulations Team if you require specific advice.
