The Environmental Planning and Assessment Regulation 2021 (“EP&A Regulation 2021”) commenced on 1 March 2022 and applies to development applications submitted on or after this date instead of the former Environmental Planning and Assessment Regulation 2000 (“EP&A Regulation 2000”).
The EP&A Regulation 2021 incorporates sweeping amendments to the EP&A Regulation 2000, including a subtle amendment to the requirements for the submission of BASIX certificates with development applications proposing the construction of larger boarding houses, hostels and co-living housing.
Section 27 of the EP&A Regulation 2021 provides as follows with respect to “BASIX Development”:
“27 BASIX development
(1) A development application for BASIX development must be accompanied by—
(a) a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is lodged, and
(b) the other matters required by the BASIX certificate.
(2) If the development involves the alteration of a BASIX building that contains more than 1 dwelling, a separate BASIX certificate is required for each dwelling.”
Schedule 7 of the EP&A Regulation 2021 provides the following definitions of “BASIX development” and “BASIX building” (with emphasis added):
“BASIX development means the following development if it is not BASIX excluded development—
(a) development that involves the erection, but not the relocation, of a BASIX building,
(b) development that involves a change of building use by which a building becomes a BASIX building,
(c) development that involves the alteration of a BASIX building, if the estimated construction cost of the development is $50,000 or more,
(d) development for the purposes of a swimming pool or spa, or combination of swimming pools and spas, that—
(i) services 1 dwelling only, and
(ii) has a capacity, or combined capacity, of 40,000 litres or more.”
“BASIX building means a building that contains at least 1 dwelling, but does not include the following—
(a) hotel or motel accommodation,
(b) a boarding house, hostel or co-living housing that—
(i) accommodates more than 12 residents, or
(ii) has a gross floor area exceeding 300 square metres.”
Boarding houses, hotels and co-living housing accommodating more than 12 residents or with a GFA exceeding 300m2 are therefore not a “BASIX building” or “BASIX Development”, and do not require the submission of a BASIX certificate with a development application under the EP&A Regulation 2021.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Special legal advice should always be sought separately before taking any action based on this publication.
