APPLICANTS Jagdev Singh Sidhu and Kavita Sarang (Subject Land owners)

RESPONDENT Peter Eyers (relevant building surveyor)

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines pursuant to s 161 of the Building Act 1993 (the Act), that:

1. For the purposes of s 10(2) of the Act, the date that Part H6 of the Building Code of Australia (BCA), 2022 edition, commenced operation was 1 May 2024.
2. For the purposes of s 10(2) of the Act, substantial progress on the design of the building work to be carried out at 53 Renwick St, Glen Iris (Building Work) had occurred prior to 1 May 2024. and consequently the provisions of BCA, 2019 edition, Amendment 1, Part H6 apply to the design of the Building Work.
3. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of this determination/these determinations.[1]

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1. The Applicants own the land at 53 Renwick St, Glen Iris (Subject Land). They are planning to have building work carried out on the Subject Land (Building Work).
2. The Respondent is the relevant building surveyor for the Building Work the Applicants intend to have carried out.
3. In November 2023, the Applicants appointed an architect, O2 Architects, to prepare a design showing the Building Work to be carried out.
4. The issue that is the subject of this application to the Building Appeals Board (BAB) concerns which version of the Building Code of Australia (BCA) to adopt in respect of the energy efficiency requirements for the Building Work.
5. The Applicants have sought a certificate from the Respondent that, pursuant to s 10(2) of the Building Act 1993 (Vic) (Act), BCA 2019 can be adopted in respect of the energy efficiency requirements in Part H6 of the National Construction Code, Volume 2 (NCC Vol 2) because substantial progress had been made on the design of the building to which the Building Work relates prior to the commencement of the relevant provision in BCA 2022.
6. The Applicants submit that the date that Part H6 of the NCC Vol 2 (Part H6) in the BCA 2022 'commenced' was 1 May 2024, while the Respondent submits that the relevant regulation 'commenced' on 1 May 2023. The Respondent's submissions are considered in more detail in our Findings below.
7. The Respondent concedes that substantial progress had been made on the design of the building the subject of the Building Work prior to 1 May 2024, while it is apparent that no progress had been made prior to 1 May 2023.
8. Therefore, the issue for us to determine is what is the date on which Part H6 in the BCA 2022 commences.
9. This dispute has been referred by the Applicants pursuant to s 157 of the Act.

(2) A building regulation, or an amendment to a building regulation or a binding determination that applies to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced or the binding determination came into effect.

1. The particular 'building regulation' or 'amendment to a building regulation' that is the subject of this application is Part H6. Part H6 forms part of the Building Regulations 2018 (Vic) (Regulations) by reason of reg 10 of the Regulations which adopts the BCA, and states that the 'BCA forms part of [the] Regulations as modified by [the] Regulations'. The definition of 'BCA' in the Regulations states that it means the 'Building Code of Australia', which in turn is defined in the Act to mean the 'Building Code of Australia comprising' volumes 1 and 2 of the National Construction Code, including any Victorian variations or additions.
2. Immediately after the 'Introduction to Part H6 of NNCC Vol 2 in BCA 2022, there are 'Notes' which state:

From 1 May 2023 to 30 September 2023 Part 2.6 and Part 3.12 of NCC 2019 Volume Two Amendment 1 may apply instead of Part H6 of NCC 2022 Volume Two. From 1 October 2023 Part H6 of NCC 2022 Volume Two applies.

1. Further, regs 10A(2)(c) and (d) of the Regulations stated:

(c) in Part H6, in the Notes before the heading "Objectives", for "30 September 2023" there were substituted "30 April 2024";

(d) in Part H6, in the Notes before the heading "Objectives", for "1 October 2023" there were substituted "1 May 2024";

1. The above note, together with the amendment to that note effected by regs 10A(2)(c) and (d) of the Regulations, allows a transition period for Part H6 in the BCA 2022 to take effect, but that from 1 May 2024 it is mandatory in Victoria.
2. Regulation 10A of the Regulations was revoked with effect from 1 May 2024 by reason of reg 10A(3) of the Regulations.

in my view the only regulatory change occurred on 1 May 2024 was the revocation of Regulation 10A. No new or amended regulation came into effect on that date, only the conclusion of a transitional concession.

1. The Respondent appears to submit that, notwithstanding that the effect of reg 10A(2)(d) of the Regulations was to give effect to Part H6 of BCA 2022 in Victoria from 1 May 2024, the effect of the reg 10A(2)(d) being revoked on that day was that 'there was no new or amended regulation [that] came into effect on that date', and therefore that Part H6 commenced on 1 May 2023.
2. We do not accept the Respondent's submissions. The effect of reg 10A(2)(d) was to make Part H6 of the BCA 2022 mandatory in Victoria on 1 May 2024. We therefore find that this is the date that it 'commenced' within the meaning of s 10(2) of the Act. The fact that reg 10A(2)(d) was revoked on the date that Part H6 commenced has no bearing on its commencement.
3. Further, as the parties agreed, we find that substantial progress was made on the design of the building before commencement of Part H6 of the BCA 2022 on 1 May 2024.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.