Boarding Houses – Do they need Section J, BASIX, or both?

We have talked before in this blog about how boarding houses, Classified as Class 3 buildings in the building code, should be assessed. The question was, should they go through BASIX at DA/Development Approval stage, or Section J of the building code at Construction Certificate stage.

We have just received some news from the NSW Department of Planning, Industry and Environment to help us out. But first a little background.

When Section J, which is part of the national building code, first came into effect at the end of 2006 there was no doubt about which regulations applied. Government information guides at the time clearly said that Class 3 type boarding houses should not use BASIX and were subject to the Section J provisions.

Even now the building code, NCC/BCA 2016 and 2019, has provisions in the NSW Appendix to specify which types of buildings need to use BASIX and which need to follow Section J. It explains…”the need for separating these requirements from the requirements for Class 3 buildings (Boarding Houses) arises because, in NSW, Class 2 buildings (Multi unit developments) and Class 4 (Dwelling attached to another Class of building) part of buildings are subject to BASIX (The Building Sustainability Index), however, Class 3 buildings are not.”

However, over time, some Councils started to require BASIX to be applied to boarding houses at the DA stage. Even though this was not the original intention, Councils insisted and it became common. Since then there have been several Land and Environment Court appeals which have touched on this and ruled that BASIX was required.

This interpretation seems to hinge on the definition of “Dwelling” in the Environmental Planning and Assessment Act Regulations. The definition is broad and can be read to include boarding houses:
“Dwelling”, in relation to a BASIX affected building, means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.

Having established that BASIX was now required there remained two problems:
1. there was no recognition that the BASIX simulation software was not designed to assess boarding house buildings and therefore required assessors to use the software for Class 2 buildings (multi units) which gives skewed results; and
2. Section J was still being required at the later Construction Certificate stage. This created two, potentially different, sets of requirements applied to one building.

That brings us to the recent announcement of the NSW Department of Planning. In essence, they have provided an “alternative assessment” procedure which combines BASIX and Section J so they complement each other.

In summary the Department explains that: The alternative assessment process allows the thermal comfort of a large boarding house development to be assessed at a later stage (i.e. the construction certificate stage) against the Section J requirements of the Building Code of Australia (BCA). This means that you do not have to assess the thermal comfort of the development as part of the BASIX assessment.

The Dept sets out a step by step process for assessors to follow.

An assessor will follow the energy and water assessment as normal using the BASIX web tool.

For the Thermal Comfort Section, the assessor is given a process to follow. Once completed and once the energy and water sections are passing, the assessor applies to the BASIX team within the Department of Planning for approval. If successful, the required fees are paid, and the BASIX certificate is generated.

We are also advised that “the BASIX Certificate will contain an additional commitment for the development proponent to assess the development against the Section J requirements of the BCA. As it will be part of the development consent conditions, the proponent will need to satisfy this requirement prior to obtaining a construction certificate.”

We have summarised the new assessment process in the diagram above.

That may still be a bit confusing, but it is very much better than what has gone before.

Don’t hesitate to contact Application Solutions for more information.

To see the Department’s announcement, use this link:
Previous Blog article from 2016:

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