The Building Code of Australia (BCA) is part of the the National Construction Code (NCC).
The NCC is updated every 3 years, based on required regulatory practices, industry research, public feedback and policy directions from governments between publishing cycles.
Construction projects often span 2 versions of the BCA.
There has historically been much debate in the New South Wales construction industry on the question of which year/version of the Building Code of Australia applies.
Certainty was provided in the ‘lock in’ provisions of clause 19 the Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Construction Certificates) Regulation 2023 (the Regulation) which commenced on 3 February 2023.
Clause 19 provides that where there is a single construction certificate for a project, the applicable version or ‘edition’ of the BCA is that version in force on the day on which the application for the construction certificate was made.
Clause 19 also ‘locks in’ the applicable version or ‘edition’ of the Building Code of Australia for new multiple storey buildings:
- For multi-storey buildings subject to multiple construction certificates, the edition of the BCA applying to construction certificate applications issued after the construction certificate for the ‘entrance floor’ has been issued (‘later in time construction certificate applications’) is the edition that applied to the construction certificate application which includes the building work involving the ‘entrance floor’.
The Regulation defines ‘entrance floor, of a multi storey building, to ‘mean the floor of the building containing the principal pedestrian entrance’.
- For developments that are subject to modified construction certificates, the edition of the BCA applying to all applications to modify development is that BCA edition which applied to the ‘original’ construction certificate application that is the subject of the modification.
The certifier is required to nominate the applicable BCA edition on the construction certificate that applies to the building work.
Construction contract drafting allocating the risk of changing versions of the BCA across staged projects
Generally, it is the ‘change on law’ provision of a construction contract which deals with the circumstance of a change in the applicable version of the BCA.
Construction contracts will usually require the contractor to:
- carry out and complete the works in accordance with the ‘Law’ or ‘Legislative Requirements’; and
- to ensure that the works, when completed, meet the requirements of the ‘Law’ or ‘Legislative Requirements’.
‘Law’ or ‘Legislative Requirement’ is usually expressly defined to include the BCA. For example:
Legislative requirement
includes:
- …
- the National Construction Code (incorporating the Building Code of Australia) and all other applicable Australian Standards, industry standards, codes, guidelines and policies; and
- …
Who bears the time and cost risk of a change on law will often be provided for in the terms of the construction contract.
The unamended Australian Standards suite of contracts provides for an adjustment to the contract sum where a change in law occurs which necessitates a change to the works or the contractor’s methods of working.
However, in a staged project, for example in circumstances where the introduction of new version of the BCA is expected, the change in law provision may provide that relief is only available where the change in law comes into effect after the date of the contract and where the change could not have been reasonably anticipated by a competent contractor.
Where a public comment draft (PCD) of the proposed NCC has been released (as is the case in relation to NCC 2025), a contract sum and extension of time adjustment may not be available to the contractor on the basis that the PCD was in circulation and the contractor should have priced and programmed for the change in law on ‘day 1’.
Alternatively, in times of increased regulatory reform, as is the case currently in New South Wales with the pending introduction of the Building Bill, a contractor may be unwilling to take any time and cost risk arising from a change in law that comes into effect after the date of the contractor’s tender and accordingly the construction contract will allocate this risk to the developer/principal by entitling the contractor to both time (including potentially delay damages) and cost relief arising from such a change in the law.
Some construction contracts may specify which party bears the time and costs risk for changes in expressly identified laws subject to imminent or expected change.
Parties need to consider carefully the allocation of the risk arising from a change in law.
If your project is likely to be affected by a change in the applicable version of the BCA or any other law, Swaab’s team of experienced building and construction lawyers can help.