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BUILDING LEGISLATION AMENDMENT REGULATION 2010 (NO 1) (NO 15 OF 2010)
2010
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Building Legislation
Amendment Regulation 2010 (No 1)
Subordinate Law 2010–15
Circulated by authority of the
Minister for
Planning
Mr Andrew Barr MLA
Building Legislation Amendment Regulation 2010 (No
1)
Explanatory Statement
This explanatory statement explains the Building Legislation Amendment
Regulation 2010 (No 1) (the “proposed law”). The proposed law
amends the Building (General) Regulation 2008 (the “building
regulation”) and the Water and Sewerage Regulation 2001 (the
“water regulation”). Some of the amendments are substantive, some
are consequential, others are for clarification or for drafting consistency,
format or structure purposes.
Substantive changes to the building
regulation
Substantive changes that the proposed law makes to the
building regulation are largely a consequence of, or in response to, the
Building Code of Australia 2010 (“BCA 2010”) prescribing
requirements for energy efficiency and environment sustainability, at a level
substantially above and wider than its 2009 predecessor edition. Existing
regulatory stricture has increased and the scope of matters regulated by the BCA
has increased in BCA 2010. The Building Act 2004, s 49 (Compliance with
the building code) establishes an offence for non-compliance with the BCA. BCA
2010’s relevant increased levels of stricture were the subject of a
comprehensive regulatory impact statement prepared for the Australian Building
Codes Board (the “ABCB”). The ABCB regulatory impact statement is
available from www.abcb.gov.au
. The main increased levels of regulation that BCA 2010 provides for
include—
1. for class 1 buildings including a single dwelling, row
house, terrace house, town house, villa unit, small boarding house, small guest
house, small hostel—required energy efficiency of the building increases
from a minimum 5 star energy efficiency rating equivalence, to a minimum of 6
star equivalence. Further, building services such as artificial lighting, hot
water heaters, space heating and cooling will be regulated in certain cases to
place limits on maximum energy use and on energy source (‘renewable’
energy source verses ‘non-renewable’, greenhouse gas intensity
etc).
2. for class 2 buildings including blocks of—flats,
apartments or ‘units’— required average energy efficiency of
all the units in a building increases from a minimum 4 star energy efficiency
rating equivalence, to a minimum average of 6 star equivalence, with the minimum
for each individual unit increasing from 3 to 5 star equivalence. Building
services such as artificial lighting, hot water heaters, space heating and
cooling will be regulated, in certain cases to place limits on maximum energy
use and on energy source (‘renewable’ energy source verses
‘non-renewable’, greenhouse gas intensity etc).
3. For other
classes of building, [except class 10 non-habitable buildings and structures],
including backpackers accommodation, hotels, motels, schools, accommodation for
the aged, health-care buildings, detention centres, office buildings, shops,
cafes, restaurants, bars, hairdresser’s or barber’s shops,
showrooms, service stations, carpark buildings, warehouses, laboratories,
factories, workshops, churches, public buildings, assembly
buildings—increased energy efficiency structure generally targeted at
achieving a 2:1 benefit to cost ratio.
The three main consequences of the
BCA 2010 that the proposed law responds to are—
1. BCA 2010 does
not provide transitional arrangements, and it provides that it will be adopted
in the ACT from 1 May 2010, whereas the statutory planning approval processes
for construction cannot easily adjust to an instantaneous increase in regulatory
structure. For example, it can take up to 1 year for plans for a proposed
building progress from application for development approval through to receiving
building approval. The increased stricture of BCA 2010 could in many cases
therefore require redesign of such buildings already in that statutory planning
approval system. Such redesign could see the time already spent in the system
wasted, and the approval process restarted for the new design. Hence, the
proposed law provides a transitional arrangement for proposals already in the
approval system by 1 July 2010.
2. BCA 2010 and its predecessors
historically only prescribe the technical standards for construction of new
buildings. They do not intentionally cater for alterations, additions or
extensions to pre-existing buildings, nor for bringing a pre-existing building
into compliance with the current BCA. Whereas, the Building Act 2004, s
49 requires all ACT building work to be done in a way that is likely to produce
a building that compliance with the BCA, unless exempted from that requirement.
Only minor non-habitable buildings are exempted. That Act also requires certain
pre-existing buildings to be brought into compliance with the current BCA, in
certain circumstances. It is not practical or cost-effective to bring old
houses into current BCA full compliance, so the building regulation prescribes
alternatives to, and concessions to, full BCA compliance when the BCA is applied
to pre-existing buildings. The proposed law adjusts and enhances those
alternatives and concessions to take account of BCA 2010’s increased
stringency.
3. The BCA is given legal force in the ACT by the Building
Act 2004. The building regulation exempts the parts of that Act that deal
with BCA compliance from applying to certain matters that are in BCA
2010’s widened regulatory scope, including domestic artificial lighting
and domestic space heating and cooling. So in order to give that widen BCA
scope legal force, the proposed law disapplies those kinds of exemptions in the
circumstances where the statutory approval system would otherwise not capture
those matters.
Substantive changes to the water regulation
Substantive changes that the proposed law makes to the water regulation
relate to resolving ambiguities and anomalies in the prescription of water
heater performance requirements appropriate to the ACT’s climate, and to
remove a requirement for the Minister to determine a list of all compliant water
heaters.
Outline of Provisions
Part 1
Preliminary
Clause 1
– Name of Regulation – states the name of the
regulation, which is the Building Legislation Amendment Regulation 2010 (No
1).
Clause 2
– Commencement – states that the regulation
commences on the 1 May 2010. This commencement date is intended to
coincide with the 1 May 2010 adoption in the ACT of the 2010 edition
of the Building Code of Australia.
Part 2 Building (General)
Regulation 2008
Clause 3
– Legislation amended—pt 2 – provides that
part 2 of the amending regulation amends the Building (General) Regulation
2008.
Clause 4
– New section 6 (3A) – inserts section 3A into
section 6. Its intent is to clarify that work required to be done under the 50%
rule, which is explained below in appendix 1, to bring an otherwise unaltered
part of a building into compliance with the Building Act 2004 and the
building code, is not exempt work nor an exempt building. That is necessary to
clarify the intent that the 50% rule is not subject to the exemptions mention in
section 6. Historically the legislation has been administered that way and
industry have applied the legislation that way.
The clarified effect is to ensure that when buildings are being built or altered under the Act’s statutory approval, inspection and certification provisions, items like space heating and artificial lighting are inspected and ultimately certified as BCA complaint. But when the statutory processes are completed, certain changes can be made without triggering the process again.
For example, under the Building Act part 3, it is intended that artificial lighting installed during non-exempted construction and alteration is to be done in accordance with a building approval given by a building certifier, and only by or under the supervision of an appropriately licensed builder, and inspected and certified by the certifier. Those requirements generally apply to such construction in any case, the amendments merely ensure new matters like artificial lighting are also covered by those requirements. However, once the lighting is installed, approved and certified, an intention is to not require them to be caught by the statutory approval system when light bulbs need changing etc. An intention in that case is that changing the bulbs is deregulated, but only if doing so does not bring the building’s lighting out of BCA-compliance.
For example, BCA 2010 prescribes a maximum limit of 5 W/m2 for
lighting in houses. Changing a light bulb would be deregulated
after the statutory approval process had been complied with during construction,
in that after that the bulb could be changed outside of the regulatory system
provided the new bulb does not cause the house’s lighting limit to exceed
5 W/m2.
This measure is important to help ensure that a recent
trend in new up-markey housing of installing more than 100 recessed down lights
of the comparatively inefficient ≥50W dichroic halogen type is kerbed in
favour of more efficient substitutes such as compact fluorescent inserts for
downlights, and that homeowners don’t subsequently replace the efficient
inserts with the inefficient units beyond what BCA 2010
permits.
Clause 5
— Section 6 (5), new definition of substantial alteration
– inserts into section 6 (5) a definition of the term substantial
alteration, which is used in new section 6 (3A). The
definition is a signpost to section 23, which prescribes the circumstances that
must exist for an alteration of a building to be taken as being a substantial
alteration fro the purposes of the Act, section 29 (2) (a). See appendix 1
below for explanations about the operation of substantial alteration provisions,
which are also know as the 50% rule.
Clause 6
—Division 3.3 heading– omits the heading of div
3.3. This is necessary to move certain division boundaries in the building
regulation, and has the effect of removing the division boundary numbered
‘Division 3’. This and other provisions reassign and relocate
division boundaries to make a more logical grouping of provisions that more
closely correlates with the Act’s structure.
Clause
7
—Section 24 (1) (e) (ii)—omits from section (ii)
the term “balustrade construction requirements” and substitutes in
its place “balustrade compliance requirements”. That is necessary
to correct inconsistent terminology and makes no substantive
change.
Clause 8
—New section 24 (1) (fa)—inserts new section (fa)
for the following purpose. Where the Act’s 50% rule (see appendix 1
below) requires a pre-existing class 1 or class 10 building to be brought into
compliance with the current code, the building regulation prescribes the
inclusive list of the parts of the BCA that must be complied with. The list
does not include the BCA’s part about draft-sealing of roof lights
(otherwise known as skylights or roof windows). BCA 2010 has new
provisions about required natural light, which are expected to encourage greater
use of roof lights instead of large windows in walls. That is because wall
windows provide a much lower degree of natural light than roof lights, and
contribute significantly to the building’s energy inefficiency as they
provide minimal thermal insulation and excessive summer solar heat gain. An
intended outcome of new section 24 (1) (fa) is to require the relevant roof
lights to be draft-sealed in accordance with the BCA’s energy efficiency
part that requires such draft sealing.
Clause 9
—New section 24 (1) (j)— inserts new section (j)
for the following purpose. Where the Act’s 50% rule (see appendix 1
below) requires a pre-existing class 1 or class 10 building to be brought into
compliance with the current code, the building regulation prescribes the
inclusive list of the parts of the BCA that must be complied with. The list
does not include new parts of the BCA covering services of a building, such as
hot water services, electrical services, air-conditioning services. That is
because those matters were not previously covered by the BCA. BCA 2010
has new provisions about those services, aimed at increasing their energy
efficiency and reducing their greenhouse gas emissions. Therefore, an intended
outcome of new section 24 (1) (j) is to require the relevant services to be
brought into compliance with the BCA’s energy efficiency part. An
intended outcome is to reduce energy consumption and green house gas
emissions.
Clause 10
—Section 24 (2) (a) (ii)—substitutes section (ii)
to clarify intent. See appendix 1 below for the context of this provision in
relation to the Act’s 50% rule. Without the substitution it is not clear
what the criteria are for determining when the section requires full compliance
with the relevant part of the building code or when alternative requirements at
section 28 (1) (a) had to be met. The substitute provision provides that full
code compliance is required for the building’s walls unless doing
so requires damage to the building. Such damage could include destroying part
of a wall to provide access to install thermal insulation. In that case either
full code compliance or the section 28 (1) (a) requirements satisfies section 24
(ii) (a). In both cases the building might require damage, but the alternative
could in some circumstances require less damage that full code compliance.
Other provisions, such as s 24 (3) place limitations on the total amount of
damage required to help limit costs of restoring damage etc so as they will be
likely to produce net benefits.
Clause 11
—Section 24 (2) (b) (ii)—substitutes section (ii)
to clarify intent. See appendix 1 below for the context of this provision in
relation to the Act’s 50% rule. Without the substitution it is not clear
what the criteria are for determining when the section requires full compliance
with the relevant part of the building code or when alternative requirements at
section 28 (1) (b) had to be met. The substitute provision provides that full
code compliance is required for the building’s roof unless doing so
requires damage to the building. Such damage could include destroying part of a
wall to provide access to install thermal insulation. In that case either full
code compliance or the section 28 (1) (b) requirements satisfies section 24 (ii)
(b). In both cases the building might require damage, but the alternative could
in some circumstances require less damage that full code compliance. Other
provisions, such as s 24 (3) place limitations on the total amount of damage
required to help limit costs of restoring damage etc so as they will be likely
to produce net benefits.
Clause 12
—Section 24 (2) (c) (ii)—substitutes section (ii)
to clarify intent. See appendix 1 below for the context of this provision in
relation to the Act’s 50% rule. Without the substitution it is not clear
what the criteria are for determining when the section requires full compliance
with the relevant part of the building code or when alternative requirements at
section 28 (1) (c) had to be met. The substitute provision provides that full
code compliance is required for the building’s floor unless doing
so requires damage to the building. Such damage could include destroying part
of a wall to provide access to install thermal insulation. In that case either
full code compliance or the section 28 (1) (c) requirements satisfies section 24
(ii) (c). In both cases the building might require damage, but the alternative
could in some circumstances require less damage that full code compliance.
Other provisions, such as s 24 (3) place limitations on the total amount of
damage required to help limit costs of restoring damage etc so as they will be
likely to produce net benefits.
The amendment also makes a consequential
change to the cross referenced alternative energy efficiency requirement.
Instead of only cross referencing the alternative energy efficiency requirement
of section 28 (1) (c), the substitute Section 24 (2) (c) (ii) also cross
references the alternative energy efficiency requirement of section 28 (1) (d),
which the proposed law inserts. That is necessary as the 2010 edition of the
building code introduces a new requirement for floors, in addition to its
historic provision about floor thermal insulation—the new requirement for
a barrier at floor level to prevent convection of subfloor air into the wall
cavity and vice versa. The barrier is intended to increase thermal efficiency
by stopping cool air displacing warm air in winter and vice versa in summer.
Clause 13
— Section 24 (3) (c)—omits from section (c) the
term “for a suspended floor” and substitutes with the term
”for thermal insulation of a suspended floor”. That is necessary as
the 2010 edition of the building code introduces a new requirement for floors,
in addition to its historic provision about floor thermal insulation—the
new requirement for a barrier at floor level to prevent convection of subfloor
air into the wall cavity and vice versa. The barrier is intended to increase
thermal efficiency by stopping cool air displacing warm air in winter and vice
versa in summer. See appendix 1 below for the context of this provision in
relation to the Act’s 50% rule.
Clause 14
— Sections 24 (3) (d) to (f)—inserts into (3) new
sections (d) to (f). That is necessary as the 2010 edition of the building code
introduces new requirements, as follows—
• barriers to
prevent convection between wall cavities and areas enclosed underneath a
suspended floor. The proposed law’s new section 24 (3) (d) relates, and
prescribes the circumstances that must exist to disapply the requirement to
retrofit the convection barrier to a pre-existing building, under the
Act’s 50% rule (see appendix 1 below for explanation of the 50% rule). An
intention is that if retrofitting the barrier in accordance with the building
code would require the removal of more than 1m2 of wall or flooring
to gain access to the subfloor area, or if there is insufficient work
space for a person to install the barrier; then there is no need to
retro fit the barrier. That is to say that up to 1m2 of wall or
flooring is required to be removed to gain access to the subfloor area if
necessary to retrofit the convection barrier. New section 24 (4) prescribes
what constitutes there being insufficient work space. An
intention is that if the only reason there is insufficient work
space is that part of a floor, wall or roof makes the works space
insufficient, but there would not be insufficient work space if
the respective part of the floor wall or roof was removed, and it will be
removed in order to comply with the Act, s 29, up to the removal limits
prescribed in the building regulation section 24 (3), then there is not
insufficient work space to retro fit the barrier.
• insulation of a heating water piping service, or a heating or
cooling ductwork service. The proposed law’s new section 24 (3) (e)
relates; and prescribes the circumstances that must exist to disapply the
requirement to retrofit the insulation to a pre-existing building, under the
Act’s 50% rule (see appendix 1 below for explanation of the 50% rule). An
intention is that if retrofitting the insulation in accordance with the building
code would require the removal of more than 1m2 of wall or flooring
to gain access to the subfloor area, or if there is insufficient work
space for a person to install the insulation; then the insulation is
only required to be fitted in accordance with the code to the parts of the
piping or ducts that have sufficient work space to do so once up to
1m2 of wall or flooring has been removed to gain access to the
subfloor area if necessary. New section 24 (4) prescribes what constitutes
there being insufficient work space. An intention is that if the
only reason there is insufficient work space is that part of a
floor, wall or roof makes the works space insufficient, but there would not be
insufficient work space if the respective part of the floor wall
or roof was removed, and it will be removed in order to comply with the Act, s
29, up to the removal limits prescribed in the building regulation section 24
(3), then there is not insufficient work space to retro fit the
insulation.
• electric resistance space heating elements cast into
concrete or set under tiles. The proposed law’s new section 24 (3) (f)
relates, and prescribes the circumstances that must exist to disapply the
requirement to make pre-existing electric resistance space heating elements cast
into concrete or set under tiles comply with the building code, under the
Act’s 50% rule (see appendix 1 below for explanation of the 50% rule). An
intention is that if code compliance would require the element to be exposed by
cutting into the slab or tiles to gain access to the elements in order to
replace them with compliant elements, or to adjust them or to remove them, then
there is no need to comply wit the code’s relevant provisions. See
appendix 1 below for the context of this provision in relation to the
Act’s 50% rule.
In-slab heating usually encompasses attaching
electrical cabling (the heating elements) to reinforcing mesh for a
house’s concrete slab floor, and encasing the mesh and heating elements in
concrete. The elements heat the slab and mesh, the steel mesh helping to
conduct the heat throughout the slab. Once heated, the slab acts as a massive
thermal storage unit slowly dissipating heat for long periods after the heating
elements are turned off, and subsequently not using significant energy to
maintain heat. They are an efficient method of heating spaces as the heat
starts at the lowest point (the floor) and convects up, rather than starting
higher leaving the floor level colder.
The 2010 edition of the building
code prescribes new energy limits to residential electric resistance space
heating of 110 W/m2 for living areas and 150W/m2 for
bathrooms. If a pre-existing house that is required by the Act to be brought
into BCA 2010 compliance has old in-slab heating capable more than
110W/m2 throughout, it would be an inappropriately proportioned
regulatory intervention to require the slab to be destroyed to remove the
non-compliant heating elements, particularly considering that floor slabs often
provide support to internal walls of houses and have floor coverings or finishes
attached.
So section 24 (3) (f) provides in effect a concession so that
in such cases the elements do not need to be removed. That does not necessarily
mean that the slab heating can continue to be able to operate at in excess of
the 110 W/m2 limit if its control equipment can be modified so as the
heater can not draw more than 110 W/m2, but still operate
efficiently and effectively.
Clause 15
— New section 24 (4)—inserts new section (4) to
prescribe when part of a building has insufficient work space, as
that term is used in new sections 24 (3) (d) and (e). One of the prescribed
parameters of when there is not insufficient work space is that
the space is at least 600mm wide and 600mm high, apart from any obstacles
intruding into the space. The 600mm dimension is based on common subfloor
heights from the underside of timber flooring to the ground beneath.
Historically, that has been the codified mandated minimum height needed to gain
access to inspect such a subfloor space, and is based on a superseded imperial
measure of 2 feet or 24 inches. Another parameter is that any obstacles
intruding into the space do not reduce the dimensions of the space below 450mm
wide and 450mm high and are reasonably negotiable by a person used to working in
confined spaces. The 450mm dimension is based on the smallest common size of
ceiling access hatches (also known as “manholes”). It is expected
that most traditional ACT brick-veneer houses with timber floors, and truss
roofs will not have insufficient work space to prevent compliance with the
relevant provisions of new sections 24 (3) (d) and (e). Those kinds of houses
make up the bulk of the ACT’s pre-1990 housing stock.
Clause
16
— section 28 (1)—substitutes section 28 (1) to
change sections 28 (1) (b) and (d) while preserving the wording of sections 28
(1) (a) and (c). That is necessary as the 2010 edition of the building code
introduces requirements for—
• adjusting the amount of
thermal insulation required to be added to ceilings/roofs to take account of
losses of areas because of gaps in the insulation for downlights, exhaust fan
flues etc. (Substituted section 28 (1) (b) has the effect of requiring the
adjustment to be applied to the insulation amount required by that section prior
to the substitution, and is intended to compensate for thermal losses
attributable to gaps in ceiling/roof insulation). See appendix 1 below for the
context of this provision in relation to the Act’s 50% rule.
• a barrier at floor level to prevent convection of subfloor air
into the wall cavity and vice versa. The barrier is intended to increase
thermal efficiency by stopping cool air displacing warm air in winter and vice
versa in summer. Section 28 (1) (d) prescribes an alternative to the baffle
kind of convection barrier typically expected in new construction in order to
comply with the building code, as it will generally be difficult to retro-fit a
baffle barrier to pre-existing houses. The prescribed alternative is to fill
the wall cavity with prescribed thermal insulation, which is likely to be
required in any case to meet the thermal performance requirements of the code.
See appendix 1 below for the context of this provision in relation to the
Act’s 50% rule.
Clause 17
— section 29 (1) and (2)— substitutes sections 29
(1) and (2) for the following purposes.
In effect, the substitute
section (1) is identical to the section it substitutes for except it omits the
phrase “if the glazing is coated” and substitutes with the phrase
“if the transparent or translucent glazing is coated”. That is
necessary to clarify that the thermal control film covered by section 29 (1) is
only required to be applied to the transparent or translucent glazing parts of
windows and not to their frames. The building code takes account of the thermal
performance of both the frames and the transparent or translucent glazing or
windows, including both of those parts in the term “glazing”. See
appendix 1 below for the context of this provision in relation to the
Act’s 50% rule.
Substitute section 29 (2) further responds to the
construction industry’s concerns that arose in 2006 when the 2006 edition
of the building code raised regulatory stricture for energy efficiency. The
concern was that in applying the code to windows in new extensions to houses,
the code requires the energy performance of other windows in the storey to be
taken account of when assessing the performance of the new windows. That is
practical for new construction as all new windows can be readily designed to
suit, but it is impractical for many extensions to old houses, particularly
where the location of the old windows is too remote from the new windows to
impact on them.
The building regulation has dispensation provisions to
cater, but industry has shown that in some cases further dispensation is needed,
particularly considering that the code’s 2010 edition increases energy
efficiency provisions, exacerbating the problem. The problem is most acute
where a small extension is proposed, say enlarging (extending) a kitchen by
moving an outer wall out under the roof eave. Under the Act, s 49, that
extension must fully comply with the code. However, that requires the new
windows in the extension to compensate for poor performing old windows in the
unaltered part of house, if those windows are in the same storey as the new
windows. Even using the most thermally efficient glazing system in the new
widows often will not make all the new windows comply because of the effect on
the extension of old windows and old window frames in the unaltered part of the
house.
The alternative, without any concession, is to replace the windows
and their frames in the unaltered part of the house with better performing
window units. However, industry had demonstrated that that can almost double
the cost of such a small kitchen extension, and that has caused many homeowners
to cancel their house extension plans. Such cancellations encourage some home
owners to instead build a new house in a new suburb, adding to new-housing
demand and avoiding the opportunity to enhance existing building
stock.
The section 29 (2) changes enhance the current concessions for old
windows by providing that they do not need to be taken account of in assessing
new windows if the old windows are thermally isolated from the new windows. In
the case of the kitchen example mentioned above, the new window’s
performance would need to take account of old windows in the unaltered part of
the house if they are not isolated from the new windows by a wall and door. An
intent is to encourage the creation of thermal zones, so that the new extension
can be efficiently heated and cooled without having to heat and cool all of the
rest of the less thermally efficient house.
For example—a house is
to have a family room added, opening onto the existing kitchen, to form an
integral kitchen-family room. External windows in the new family room must
comply with the building code. There is to be no barrier between the kitchen and
the new family room so the existing kitchen window is not an isolated window.
Its impact on the new family room must be considered when considering how the
new family room complies with the building code, volume 2, part 3.12.2. All
other windows in the unaltered part of the house are in fully enclosed rooms,
with close-fitting doors so they are isolated windows. In applying the building
code to the new family room’s windows, the isolated windows do not need to
be considered.
Clause 18
— Section 29 (3), definitions of incidental glazing and
glazing— substitutes the definition of incidental
glazing with a new term and its definition—isolated
glazing; and moves the definition of the term glazing into
section 29 (3) for more convenient reading. The change to the definition of
incidental glazing is consequential to the proposed substitution
of section 29 (2). The term isolated glazing is intended to cater
for pre-existing glazing that is thermally isolated from proposed new windows.
Such thermal isolation is intended to occur when the pre-existing glazing is in
a different thermal zone to the new windows. Such zones are created by
unperforated barriers such as certain walls and doors, as prescribed in the
definition of isolated glazing, and as illustrated in the example
accompanying the definition.
A further illustrative example, is that
generally bedroom windows are isolated from living room windows as usually
bedrooms have doors and walls that form a thermal zone. The living areas can be
heated or cooled without heating or cooling the bedrooms and vice versa.
Windows in such a bedroom do not significantly affect the thermal performance of
windows in a living room and so the intent is that they be regarded as isolated
glazing when considering the living room glazing.
Clause
19
– Divisions 3.4 and 3.5–renumbers division 3.4 as
3.3, and renumbers division 3.5 as division 3.4. That is necessary as other
provisions reassign and relocate division boundaries to make a more logical
grouping of provisions that more closely correlates with the Act’s
structure. They make no substantive change otherwise.
Clause
20
—New division 3.5 heading– inserts after section 35
a new division boundary numbered and entitled—Division 3.5 Fundamentally
noncompliant building work. This and other provisions reassign and relocate
division boundaries to make a more logical grouping of provisions that more
closely correlates with the Act’s structure. They make no substantive
change otherwise.
Clause 21
— New part 21—inserts new part 21
(Transitional—Building Amendment Regulation 2010 (No 1)), which provides
at new section 110 for a transitional arrangement to inter alia prevent projects
that are in the planning approval system from having to be redesigned and
resubmitted for approval if they were in the system by 1 July 2010. A national
awareness campaign has alerted industry to the BCA 2010 changes, so it is
expected that industry ought not need to rely the transition other than for a
small number of projects. The transitions in effect delay the application of
BCA 2010’s energy efficiency parts to the eligible projects for a period
of 7 months for houses etc and certain apartments, and 12 months for other
buildings and for apartments that would need a development approval change in
order to comply with BCA 2010.
New part 21 also provides a new section
111 that is intended to ensure that the transitional arrangement provided for in
new part 21 expires on 1 May 2011. That is necessary as the transitional
arrangements provisions indicate that they have application until immediately
before that date, but they will cease there functionality on that
date.
Clause 22
— Schedule 1, part 1.3, item 14, column 4—inserts
into column 4 a condition on the “internal alteration” exemption
covered by item 14, thus— the internal alteration must not cause an aspect
of building that complies with building code to not comply.
That is
necessary to ensure, for example, that internal lamps (ie light bulbs inside a
house) can be changed without the Act’s statutory approval processes
applying, but only if a bulb of insufficient wattage to make the houses exceed
the building code limit on lighting wattage is substituted.
See the
explanation above for new section 6 (3A) for further explanation of this
concept, and ho wit disapplies the exemption if the change to the bulb is done
under the 50% rule, which is explained below at appendix 1.
Clause
23
— Schedule 1, part 1.3, item 15, column 4—makes the
same kind of change to item 15 as explained above for schedule 1, part 1.3, item
14, column 4, but by omission and substitution rather than by
insertion.
Clause 24
— Schedule 1, part 1.3, item 17, column 1—omits
from column 1 the phrase “or a heating appliance”. That has the
effect of no longer making a heating appliance exempt work or an exempt
building. That is necessary because the building code 2010 edition will provide
for requirements for energy efficiency and environmental sustainability for
water heaters, space heaters, pool heaters etc, and if such heaters remained
exempted under schedule 1, part 1.3, item 17, they would be beyond the
regulatory reach of the code. Other provisions provide exemptions for changes
to certain heaters as part of internal or external alteration of certified
buildings, subject to code compliance (see schedule 1, part 1.3, items 14
and 15 as amended). See the explanation above for new section 6 (3A) for
further explanation of this concept.
Part 3 Water and Sewerage
Regulation 2001
Clause 25
— Legislation amended—pt 3— provides that
part 3 of the amending regulation amends the Water and Sewerage Regulation
2001.
Clause 26
— Schedule 2, section 2.2—omits section 2.2
(Compliant hot-water systems) as a consequence of the provisions of section 2.2
being dealt with in other provisions as amended by the
regulation.
Clause 27
— Schedule 2, section 2.3 heading—substitutes a new
heading name for section 2.3, in effect changing its name from “Hot-water
system—installation” to “Water
heater—installation”. That is necessary to better reflect the
content of the section, in that it only deals with water heaters and not with
other aspects of hot-water systems, such as piping, outlets, etc captured by the
term “system”.
Clause 28
—Schedule 2, section 2.3 (1) and (2)—substitutes
sections (1) and (2) to adapt into those sections the “compliant hot-water
systems” provisions of unamended section 2.2, thus making interpretation
easier without having to cross-reference across two separate provisions and
allowing for any future expansion of the regulation to other installation
requirements for other than new homes.
Clause 29
— Schedule 2, section 2.3 (3), definition of AS
4013— substitutes the definition of AS 4013 with
a new definition, includes new definitions for climate zones used in the
regulation and removes reference to the first publication year in standards to
be enforced from time to time.
Some of the definitions in effect
substitute for the same definitions provided for the in the current Water
regulation, but so as the edition date of standards are not mentioned. That is
necessary to ensure the definition applies to the latest edition of the standard
as in force from time to time, rather than the edition of a particular
prescribed year.
Other definitions are in effect inserted to support new
provisions that rely on the defined terms.
Clause 30
— Schedule 2, section 2.3 (3), definition of new class 1
building—substitutes into section (3) a new definition
for the term new class 1 building. That is necessary as the
former definition related to a building that has not been previously occupied or
sold as a place of residence, but determining both of those parameters is not
always straightforward. Whereas, the substitute definition instead relates to a
building for which a certificate of occupancy for the whole building has not
been issued under the Building Act 2004. Determining if such a
certificate has been issued is straight forward as copies of all such
certificates are held by ACT Government and are publically available for
inspection.
Certificates of occupancy are issued under the Building
Act 2004, section 69 (Certificate of occupancy). The use of the term
“whole building” in the substitute definition of the term new
class 1 building is intended to ensure that a certificate of occupancy
issued under the Building Act 2004, section 69 (3) for part of a building
is not the kind of certificate of occupancy that the definition relates
to.
Clause 31
— Schedule 2, section 2.3 (3), new definition of renewable
energy certificate—inserts into section (3) a definition of
the term renewable energy certificate. The term is used in
section 2.3, and its definition is as defined in the Commonwealth
Government’s Renewable Energy
(Electricity) Act 2000, at
section 5 (1).
Clause 32
— Schedule 2, sections 2.4 and 2.5 —substitutes
sections 2.4 (Water heater—determination of other water heaters) and 2.5
(Water heater—frost protection standard). Substitute section 2.4 has the
effect of removing the requirement for the Minister to declare compliant water
heaters. Instead, the provision retains a discretionary power for the Minister
to determine compliance. It is not expected that the Minister would need to
make any such determination in the ordinary course of events, but nevertheless
if need arose it is intended that the Minister could make such a determination
for 1 or more water heaters, within the parameters prescribed at s 2.4 (a) and
(b).
The substitute section 2.5 prescribes climatic, including frost
protection requirements, recognising that parts of the ACT are subject to
occasional winter temperatures below -10ºC. That is necessary as the
winter of 2009 saw some compressor-type water heaters fail to operate in
Canberra during heavy frost conditions. This is to ensure that protection is
appropriate to the expected climate conditions in the ACT. That ensures that
water heaters installed in the ACT are fit for purpose and will continue to
operate and maintain integrity at low and sub-zero
temperatures
Clause 33
— Schedule 2, section 2.6 (1)—substitutes section
26 (1). The substitute provision is identical to the former provision,
except that the substitute provision mentions the phrase “hot-water
heater” instead of where the former mentioned “hot-water
system”. That is necessary to give the provision its intended
effect—applying to water heaters—rather than applying to a system
including piping, outlets and the water heater. It also ensures that flow
capacity standards in the provision are consistent with those in other sections
of the water regulation.
Clause 34
— Schedule 2, section 2.6 (2)— omits from section
(2) the term “shower outlet” and substitutes the term “shower
fixture outlet” to correct technical language.
Clause
35
— Schedule 2, section 2.6 (3)— substitutes a new
section (3). The substitute provision is identical to the former
provision, except it clarifies that it if a building is not connected to a water
service, rather than the hot-water system being connected to a water main, this
section does not apply. That is necessary to ensure the provision has the
intended scope.
Clause 36
— Dictionary, definitions of compliant gas hot-water
system, compliant heat pump hot-water system and compliant
solar hot-water system—omits from the Dictionary of the
water regulation the definitions of the terms—
compliant gas
hot-water system;
compliant heat pump hot-water system;
and
compliant solar hot-water
system.
That is necessary as a consequence of other amendments in
the regulation taking account of those matters.
Appendix 1
Explanation of “50% rule” (substantial alteration)
provisions under the Building (General) Regulation 2008.
The
following explains certain provisions that relate to what is informally known as
the 50% rule, some regulation-prescribed-provisions of which are modified or
extended by the proposed law. An intention of the 50% rule is to require
pre-existing building to be upgraded to bring them into compliance with the
current building code, to avoid old building stock falling far behind
contemporary technical requirements for buildings. The ACT has had 50% rule
provisions for several decades, as have several other Australian
jurisdictions.
Under the Building Act 2004, s 29 (1) the 50% rule
is trigger if plans of proposed building work to alter or extend a pre-existing
building meet the prescribed requirements of a substantial
alteration, as
follows—
29 Approval
requirements
(1) Each of the following is an approval
requirement for plans:
(a) if the plans are for the substantial
alteration of a building—the building as altered will comply with this Act
and the building code;
Note 1 Substantial alteration—see
s (2).
Note 2 A reference to an Act includes a reference to the
statutory instruments made or in force under the Act, including regulations and
the building code (see Legislation Act, s 104).
...
(2) A regulation
may declare that—
(a) an alteration of a building is or is not a
substantial alteration; or
(b) a part of a building (the unaltered
part) that has not been altered need not comply with the building code
despite subsection (1) (a).
If the 50% rule is triggered, the
above-recited s 29 (1) requires the plans to show all the work necessary to make
the building as altered comply with the current building code, including work to
bring the pre-existing part (which might otherwise be altered) up to current
building codd compliance. Othr provisions of the Act require work to onlybe
done in accordace with the approved plans.
The following explains the
provisions of the Building (General) Regulation 2008 that prescribe key
provisions for the Act’s 50% rule.
Section 23 contains
criteria to be used to determine if plans are for the substantial
alteration of a building, as referred to in section 29 (2) of the
Act. An intention is that if the floor area of the proposed building work on a
class 2 to 9 building, when added to the floor area of building work carried out
on the same building in the previous 3 years, comprises more than 50% of the
floor area of the building, then under the Act the plans ought to also reflect
any work required to ensure the entire building will meet current requirements
of the Act (and not just the otherwise proposed work).
The same applies for
a class 1 or class 10 building except that internal alterations carried out on
the pre-existing building do not need to count towards the altered floor
area.
The anticipated outcome is that in the long term many old buildings
will be upgraded to better keep pace with changes in building code requirements.
Section 23 also gives 5 examples of the effect of those provisions to
endeavour to illustrate the intent of the section.
Sections 24 to 29
set out alternatives to the requirement to comply with respective provisions
of the Building Code, where it is not always practical to bring pre-existing
buildings fully into compliance with that code. For example, section 23 of the
regulation and section 29 (2) of the Act apply the code to
pre-existing buildings in certain circumstances. For example where a
pre-existing house is to be significantly extended, and that amounts to a
substantial alteration under section 23 of the regulation, then
under section 29 of the Act the whole house as extended must be brought into
compliance with the code.
However, sections 24 to 29 of the regulation
provide alternative methods of compliance, as it is often not practical to
retrofit certain items to a pre-existing building to bring the building up to
current code requirements. For example, it might not be cost effect to retrofit
termite barriers to a pre-existing house that has no such barriers built into
its brickwork.
It is intended that instead of complying with the code, the
pre-existing part of the building need only comply with the alternative
provisions prescribed by section 24 to 29. Those provisions deal with
fundamental building and fire safety.
The alternative compliance provisions
of sections 24 to 29 include coverage of—
in section 24 (1) (a) and
25—glazing where there are human impact safety requirements. This is
because retrofitting windows in older houses is not always cost effective, but
safety can be addressed by instead applying safety film to the glass at less
cost then glass replacement. Section 25 stipulates the alternative compliance
method of using safety films;
in section 24 (1) (b)—installation of
smoke alarms. This provision does not provide dispensation, but requires full
compliance with the relevant provisions of the code, as provision of smoke
alarms is relatively inexpensive and are fundamental life safety
measures;
in section 24 (1) (c)—building in bush fire areas. This
provision does not provide dispensation, but requires full compliance with the
relevant provisions of the code, as construction to resist bush fire attack does
not substantially add to the cost of normal construction and is a fundamental
life safety measure;
in section 24 (1) (d) and 26—stair
construction. This is because it is often not cost effective to bring a
noncompliant flight of stairs into compliance, particularly if they are too
steep to comply and there is not enough room in the building for a longer, less
steep, flight. Section 26 stipulates the alternative method of compliance using
extra grab rails where stairs are to steep, for example;
in section 24
(1) (e) and 27—construction of balustrades. This is because it is often
not cost effective to bring a noncompliant balustrade into compliance. Section
27 stipulates the alternative compliance method of which dispensates certain
currently non-compliant balustrades if they complied with the relevant law when
they were constructed and have not since been altered, for example;
in
section 24 (1) (f)—swimming pool access. This provision does not provide
dispensation, but requires full compliance with the relevant provisions of the
code, as provision of barriers to prevent young children from drowning in pools
is a fundamental life safety measure;
in section 24 (1) (f) to
(i)—sealing of buildings. This provision does not provide dispensation,
but requires full compliance with the relevant provisions of the code, as
sealing of buildings with draft excluders etc is relatively inexpensive and is
fundamental to reducing a building’s use of energy;
in section 24
(2) and (3), 28 and 29—energy efficiency of roofs, external walls, floors,
and external glazing. That is because it is often not cost effective to bring
certain noncompliant roofs, walls, floors and windows into compliance,
particularly if doing so requires removal of linings to insert bulk thermal
insulation or replacement of windows or window glass.
Section 28
stipulates the alternative methods of energy efficiency compliance for
pre-existing roofs, external walls and floors. They are alternatives to
complying with the relevant provisions of the building code, and only apply to
pre-existing buildings. The alternative provided by the section is to bring the
roofs, walls and floors up to a specified level of thermal performance, which
approaches to the code’s respective energy efficiency requirements for
roofs, external walls and floors. That is necessary to reduce the
building’s use of energy, and to avoid the impracticalities of bringing
pre-existing buildings into compliance with the code.
Section 29 stipulates the alternative method of compliance for
external glazing. The provision permits energy performance films to be attached
to glazing rather than having to replace windows or glazing or to provide
shading, as the stated film can achieve energy efficiency performance
approaching those required by the code. That is necessary to reduce the
building’s use of energy and to avoid the impracticalities of bringing
pre-existing buildings into compliance with the code.