DABP Act – Are Staged Construction Certificates Viable?

31 May 2021

DABP Act - Are Staged Construction Certificates viable?

Since the release of our recent post DABP Act – Are you ready?, BCA Logic have received further requests for information about the potential increased risk of using staged construction certificates (CC) to address the requirements for regulated design by design practitioners, and for design compliance declarations (DCD) required prior to the CC being obtained. A DCD for all regulated designs is required to be issued prior to the CC for the work contained within that CC (Clause 29, Design and Building Practitioners Regulations 2021). In this post, BCA Logic provides further clarity.

Another consideration when reviewing the use of staged CC’s is the roles and responsibilities of the Certifier under the Environmental Planning and Assessment Act and Regulations (EPA Act and Regs) and under the Building and Development Certifiers Act (BDC Act) which need to be considered in the first instance. Lets explore how these acts and regulations apply for Staged CC’s.

EPA Act and Regulations

A Certifier must not issue a CC for building work unless:

The plans and specifications include the BASIX certificate requirements;
Design and construction as depicted in the plans and specifications is consistent with the development consent (DC); and
The proposed building will comply with the relevant requirements of the BCA in force at the time of the application (Clause 145 of the EPA Regs).

The EPA Regs state that a person who has made an application for a CC may apply to modify the development the subject of the application or certificate (Clause 148 of the EPA Regs). The requirements of Division 2 of the Regs applies the same way as the original application. That is, a proposal by the applicant to modify the development the subject of a CC must include a new application and comply with all the relevant provisions of Division 2 of the EPA regs which outline the provisions for assessing and approving CC’s.

It is important to note that Section 6.8 of the EPA Act states that a CC has no effect if it is issued after the building work to which it relates is physically commenced.

Therefore, due to the above, the following applies to any staged (or modified) CC:

New application required for each additional CC;
The BCA applicable on the date of each application is to be complied with;
All appropriate and relevant DCD’s under the Design and Building Practitioners Regulations 2021 (DABP Regs) are to be submitted with each CC;
A CC cannot be issued for works already carried out.

BDC Act

The BDC Act sets out the registration requirements, code of conduct and professional standards that a Certifier must comply with. Section 14 of the BDC Act allows the Commissioner to impose conditions on a Certifier’s registration.

One such condition is compliance with the ’Practice Standard for Registered Certifiers’. This standard states that staged CC’s are common practice but does provide cautions to the practice which include:

A Certifier must ensure the building work for each stage is appropriate in the context of the overall proposed building;
CC can only be issued for the works applied for and not for other works outside the applicants plans and specifications;
Parts of buildings cannot be treated discretely or in isolation;
Major elements of the building are to be designed and resolved before any CC is issued;
It is most often inappropriate to delay BCA requirements and performance solutions to later stages;
Fire safety and fire safety systems must be treated holistically and are intrinsic to the fabric and design of the building;

Staged CC’s include a greater risk of building works progressing beyond the issued CC.

Example - Staged CC for a Basement

It is common to see an application for a staged CC for a basement up to ground floor slab. It is also common to see the CC issued with only reference to structural plans and subsoil drainage plans.

When reviewing the above requirements to be considered by the certifier and the need for DCD for all relevant design components, it is considered that a staged CC for a basement may require the following for the works proposed:

DCD for structure including plans and specifications;
DCD for the drainage;
DCD for (part) egress, including travel distances, stair width, treads and risers, balustrade locations, points of discharge;
DCD for penetrations in the slabs – eg fire collars to PVC pipes, openings for mechanical exhaust;
Resolution of plant room requirements, sizes and FRL’s to walls;
Preliminary design for mechanical ventilation

The above list may not be exhaustive and is provided as an example only.

A common performance solution for basement carparks is to extend travel distances and the use of jet fans. This solution requires a Fire Engineering Report and referral to the Fire Brigade. If for any reason the performance solution is not approved or requires amendment prior to approval, it will result in a change to the design, or reverting back to a deemed to satisfy solution which may involve extra stairs. As such, approval of the performance solution is required before the CC for the basement can be issued.

The previous practice of seeking a staged CC for structural plans only for a CC was adventurous at best, flawed at worst, but today it is clear that the practice must evolve to include all relevant DCD’s, plans, specifications, reports and consents by authorities applicable to the proposed works.

Key takeaways:

Each CC is required to have a new application, and the BCA in force, including any amendments, at the time of the application is applicable;
DABP Act applies, and therefore DCD’s are required for staged CC’s lodged after 1 July 2021;
CC’s cannot be issued for works already carried out. There is a high risk of work continuing past the extent of the CC approved;
Certifier and designers must consider the works within the staged CC holistically in the context of the overall building and development;
All relevant DCD’s relating to the proposed works will be required at the time of lodgement of the staged CC;
Any performance solutions related to the proposed works need to be approved prior to issuing the staged CC.

How can BCA Logic help?

BCA Logic have been providing fully designed solutions for the past 5 years. We anticipate an increase in the demand for BCA, Penetration, Access, Inspection services and our new waterproofing service. Should you or your organisation need assistance please do not hesitate to contact Allan Harriman, Director BCA Logic.

BCA Logic will continue to provide more information and articles on how these changes affect you and your business. Follow us on LinkedIn to stay informed.

Author: Allan Harriman

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