ON THIS PAGE

• 01. What actually happened, and what has not
• 02. The two certificates, renamed
• 03. Who can apply: the owner only rule
• 04. What the approval covers, and what it does not
• 05. Staging, and the BCA version that applies
• 06. Variations, and what they cannot fix
• 07. Starting work early becomes a formal exception
• 08. Certifier accountability
• 09. Written directions become an offence
• 10. Duty of care: relocated, and widened
• 11. Prefabricated buildings and manufactured homes
• 12. What is not changing
• 13. What to do now
• 14. FAQ

What actually happened, and what has not

Parliament has agreed a new Act. Your project is still running under the old one.

The Building (Approvals and Practitioners) Act 2026 passed both Houses on 4 August 2026, after the Legislative Assembly agreed to amendments made in the Legislative Council. It received assent on 14 August 2026. It is Act No 26 of 2026.

Section 2 sets the commencement. Two items in Schedule 3 commenced on the date of assent. Both insert provisions treating a manufactured home as a building for Crown development purposes. Nothing about approvals, nothing about certifier registration, and none of the repeals has commenced. The rest starts on a day, or days, appointed by proclamation, and no day has been appointed.

That matters more than it sounds. Large parts of the Act are frames waiting to be filled by regulations that do not exist. The content of the direction offence, the period within which a completion approval must be applied for, what else counts as building work, the procedure for regularising commenced work, the detail of prefabricated building declarations: all of it sits in regulations still to be made. Where this article describes a mechanism that depends on regulations, it says so.

One further point that has been widely missed. Section 202 repeals five instruments, not two. The Building and Development Certifiers Act 2018 and its Regulation, the Design and Building Practitioners Act 2020 and its Regulation, and the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021. That last one is the instrument certifiers work from every day. None of those repeals has commenced, so the current framework remains fully operative.

Manufactured homes

If you hold a development consent today, nothing about your project changes. Construction certificates and occupation certificates remain the law until proclamation. Applications in train continue under the current regime, and transitional arrangements for work already certified will be set by regulation.

What changes today is planning. Contracts being drafted now, and programmes running past the likely commencement window, should not assume the current terminology survives.

The two certificates, renamed

Structurally, the two certificates move house. References to construction certificates and occupation certificates come out of Part 6 of the Environmental Planning and Assessment Act 1979, which is renamed “Subdivision certificates and building information certificates” and left to deal with subdivision works certificates, subdivision certificates and building information certificates. Building approvals and completion approvals sit in the new Act instead.

A note on penalty figures. Penalties in the Act are expressed in penalty units. At the current value of $110 a unit, 10,000 penalty units is $1.1 million, 3,000 units is $330,000, 1,500 units is $165,000, 600 units is $66,000 and 300 units is $33,000. The unit value can change, which is why the Act does not use dollars and neither should your contract.

Who can apply: the owner only rule

Under the current regime an application for a construction certificate or occupation certificate may be made by a person eligible to appoint a principal certifier, which is the person having the benefit of the development consent, someone acting with that person’s approval, or a person authorised by the regulations. Often that is not the landowner. It might be a tenant fitting out a leased tenancy, a developer, or the applicant for consent.

Under the Act, only the landowner, or a person with the owner’s consent, can apply for a building approval or a completion approval. There is more to it than a change of applicant name. It is also an offence for the person who will carry out, or who carried out, the work to make the application unless they own the land. A builder cannot apply in its own right.

For a single owner residential project this is a formality. For anything with a split between who owns the land and who is doing the work, it is a scheduling risk. Retail and commercial fitouts. Works on land burdened by an easement. Works on strata common property. Development on council or Crown land. Any structure where a special purpose vehicle holds the consent but a related entity holds title. All of these will need a consent instrument in place before the approval can be lodged.

Owners of land burdened by easements are the classic problem. They are frequently under a legal obligation to consent and frequently do not understand that. Under the current regime you can at least get the construction certificate issued while that argument runs. Under the new one you cannot.

What the approval covers, and what it does not

This is where a good deal of the commentary has got ahead of the Act, so it is worth being precise.

The Act defines building work as physical activity involved in the erection of a building, and includes work prescribed by the regulations. The provision requiring a building approval applies to building work only to the extent the work involves the erection of a building. That is the same limit the current construction certificate regime carries, and it did not change between the first print of the Bill and the version passed by both Houses.

So a building approval is not presently required before demolition, excavation or site preparation. You will read that it is. It is not, on the face of the Act.

What has changed is the capacity to extend it. Because “building work” includes work prescribed by the regulations, the trigger can be widened to demolition and site preparation without further amendment to the Act. Whether it will be, and to what extent, is not yet knowable. Regulations have not been published.

The practical reading: do not restructure an early works programme on the assumption that demolition will need an approval, and do not assume it never will. If your programme depends on demolition and bulk excavation starting while structural documentation is still being finalised, that is a sequence worth modelling both ways before the regulations land, because the cost of finding out late is a stalled site.

Staging, and the BCA version that applies

Staging is expressly provided for on both sides of the process. Each building approval for staged building work relates only to the work specified for that stage, although the approval authority must consider the impact of the other stages when deciding each application. The first application has to include a schedule of the proposed stages in an approved form. Regulations may later specify a period within which all stages must be completed, and a process for amending the staging schedule. Neither exists yet.

On the completion side, an application may be made for part of a building. The Act also does something the current regime does not. A condition of consent that the approval authority reasonably considers cannot be complied with before the approval is issued, or is not relevant to the work or change of use, is carved out of the definition of a relevant condition, so it does not block the approval. Conditions prescribed by the regulations are excepted from that carve out.

It is worth understanding the mechanism rather than the headline. This is not a discretion to issue “despite” an unsatisfied condition. It works by defining the condition out of the set the approval authority must be satisfied about, on a reasonableness standard, subject to regulations. That distinction matters if the decision is ever tested. In practice it addresses a familiar frustration: a completed, compliant apartment building that cannot be occupied because a landscaping condition attaches to a later stage of the site.

Which version of the BCA applies

The applicable version of the Building Code of Australia is the version in force when the building approval application is made or, for staged building work, when the application for the first stage is made. That is better than the current position, which allows an earlier BCA version to be carried forward only for a multi storey building where a construction certificate has already issued for building work involving the entrance floor.

One caveat the commentary tends to drop: the regulations may apply a different version of the BCA. Until they are made, treat the first stage lock as the intended rule rather than a settled entitlement. For anything with a multi year delivery programme it is still a material de risking, and it is the kind of question worth putting to a BCA consultant at feasibility stage rather than at lodgement.

Variations, and what they cannot fix

Two changes here, and together they shift where decisions get made.

First, an approval authority can consent to a variation of a building approval if satisfied that the approval would still have been issued had the variation been included in the original application.

Second, the current closed list of matters a certifier rather than the council can be satisfied about is replaced, for building work, with a general provision: where the EP&A Act, its regulations, an environmental planning instrument or a development consent requires a consent authority or council to be satisfied of a matter relevant to a building approval or completion approval, it is enough that the approval authority is satisfied. A far wider range of consent conditions can be discharged by the certifier rather than sent back to the consent authority, which removes one of the most common causes of dead time between consent and site start.

One more point of correction. You will see it written that deferred commencement conditions are expressly carved out of the general satisfaction provision. That phrase does not appear in the Act. Whether, and how, a deferred commencement matter can be dealt with by an approval authority is not resolved on the face of the text. Read the condition, not the summary, and get advice on any consent that is deferred commencement.

Starting work early becomes a formal exception

Every certifier in NSW has had the conversation. Work has started. There is no construction certificate, or the work has gone beyond what the certificate covers. Under the current framework no construction certificate is required for work already unlawfully carried out, and the position has to be resolved another way.

The Act closes that door and does it firmly. It becomes an offence for an approval authority to issue or vary a building approval for building work that has already commenced, unless a post commencement authorisation applies. The penalty is up to 600 penalty units for an individual and 3,000 otherwise.

The consequence that matters most commercially is the one least often reported: an approval issued or varied in those circumstances is void and has no effect. Not voidable, not defective. Void. Everything built on the strength of it is uncertified.

A post commencement authorisation can be given by the Secretary of the department in which the Act is administered, or by another person or body prescribed by the regulations. The Act does not name a particular department, and administrative arrangements change, so treat any statement that this is one named agency with caution. The authorisation can impose conditions, including rectification work.

What the Secretary must be satisfied of before granting one is not stated in the Act. The regulations may specify the matters that must be considered. Until they are made, nobody can tell you what the test will be, and any article that tells you the work must be shown to comply with the BCA and be free of defects is describing a regulation that does not exist.

What the Act does say is that the department may recover all reasonable costs it incurs in giving an authorisation, and it can recover them from any of four people: the person having the benefit of the consent, the owner of the land, the person responsible for carrying out the work, or the person who carried it out. A landowner can be exposed to those costs even where they are not the beneficiary of the work, for instance where a tenant or an easement beneficiary carried it out.

Where the risk lands

Landlords should treat this as a lease drafting issue rather than a construction issue. If a tenant does unapproved fitout work, the recovery net reaches the owner. Indemnities, make good clauses and approval covenants in leases signed today should account for a regularisation pathway that will be discretionary, centralised and cost recoverable.

A related point, and a standing position of ours. A building information certificate is not the pathway for unauthorised building work. It has no nexus with unauthorised work, it is neither required nor referenced as applying, and its effect is certainty against a demolition or repair order for a defined period. A consent authority can simply take no enforcement action without one. It is commonly used for the purpose. That does not make it the mechanism.

Certifier accountability

The maximum penalty for a certifier conflict of interest breach becomes 10,000 penalty units, which is $1.1 million at the current unit value, with an automatic suspension of registration on conviction. The suspension is 120 days or a longer period specified by the Secretary, so the flat “120 days” figure understates the exposure. The existing reasonable person test is replaced with defined categories of interest.

Registration will also be conditional on the approvals work being carried out under a written contract between prescribed parties, which varies according to who was appointed.

Proceedings for an offence can be commenced up to three years after the offence, or later if commenced within two years of the notification date for the offence and the court gives leave. Note the mechanism: the extra two years runs from the notification date, not from the end of the three years.

The investigation powers are substantial. Authorised officers can enter non residential premises without a warrant, though only at a reasonable hour in the day or during business or building work hours. They can use reasonable force to break open or access a thing, including a floor or wall containing it, and can carry out destructive testing where that is a reasonable test in the circumstances. Seized property can be destroyed without compensation once no longer required as evidence. The privilege against self incrimination is abrogated, with a use immunity in criminal or civil proceedings against the individual, but compelled information can still ground disciplinary action and is admissible against a body corporate that nominated the individual.

Whether all of this is proportionate is a fair argument. What is not arguable is the practical consequence for anyone engaging a certifier. Independence stops being a professional preference and becomes a commercial screening question.

Written directions become an offence

Principal certifiers can already give written directions when they find non compliance. Those directions are not binding. If a builder or developer ignores one, the certifier reports the matter to the consent authority, which decides whether to issue a development control order. A development control order is binding and can be appealed on its merits to the Land and Environment Court.

Under the Act, for building work, failing without reasonable excuse to comply with a written direction from an approval authority becomes an offence, with a maximum of 300 penalty units for an individual and 1,500 otherwise. The “without reasonable excuse” element is the defence, and it is worth knowing it is there.

There is a gap on the other side. Unlike a development control order, there is no right of merits appeal against the decision to issue a direction. The appeal right in the Act runs against a council’s refusal to issue an approval, not against a direction. A developer or builder who believes a direction has been issued unlawfully may have to commence judicial review proceedings, which is a materially higher bar: legality rather than reasonableness.

The subdivision work regime is preserved. The existing directions notice provision in the EP&A Act is amended so that it will not apply to building work, leaving it in place for subdivision work.

The Land and Environment Court also loses a head of jurisdiction. The Act omits the paragraph of the Land and Environment Court Act 1979 that presently supports the Court’s Class 2 jurisdiction over construction certificate consistency, and omits the EP&A Act division that houses the certificate regime. The Court keeps its general judicial review jurisdiction over unlawful decisions, but not the ability to substitute its own opinion on consistency.

For developers this cuts both ways. It increases certainty about the status of an issued approval, which is welcome. It also removes a route of challenge when a certifier’s view of consistency is one you disagree with.

Duty of care: relocated, and widened

Repealing the Design and Building Practitioners Act does not reduce anyone’s exposure. The duty of care moves house. It does not leave.

The statutory duty first enacted in the DBP Act is reproduced in the new Act. It remains non delegable and cannot be contracted out of, and it operates in addition to any other duty. The High Court’s reasoning is not disturbed: in Pafburn ([2024] HCA 49) the Court held the duty is non delegable, which engages the vicarious liability provision of the Civil Liability Act 2002 and prevents a developer or head contractor apportioning liability under the proportionate liability regime. Because the new Act reproduces the non delegable character of the duty, the same analysis should carry across. That is a reasoned expectation about a provision not yet in force, not a settled position.

Describing the duty as reproduced “in substantially its existing form” understates one change. The definition of construction work is materially broader. It reaches a person who carries out work involved in constructing a building, altering or adding to a building, repairing, renovating or providing a protective treatment to a building, preparing designs for that work or regulated designs, manufacturing or supplying a building product used for the work, supervising, coordinating, project managing or otherwise having substantive control over the carrying out of the work, and work prescribed by the regulations. That is seven limbs where the current Act has four. More people are inside the duty.

Alongside it sits a separate obligation: a person must take all reasonable steps to ensure that building work carried out by that person, including each part of it, complies with the Building Code of Australia. It is worth quoting accurately, because a version of this circulating without the words “carried out by the person” turns a duty about your own work into a universal duty about everyone’s.

Finally, a long stop. A civil action for loss or damage arising from defective building work cannot be brought more than ten years after completion, measured by the date the completion approval is issued, failing that the date of the required inspection, and otherwise the date the building is first occupied or used. Two qualifications: the provision does not operate to extend limitation periods under the Act, the Home Building Act 1989 or the Limitation Act 1969, so it is a cap rather than an entitlement to ten years, and it does not limit claims for death or personal injury.

Prefabricated buildings and manufactured homes

These are two separate regimes and the Act keeps them separate. A moveable dwelling is expressly not a prefabricated building. Conflating them, as some early commentary has, gets both wrong.

Prefabricated buildings

A prefabricated building is defined in three limbs, all of which apply only where the thing is manufactured away from the building site: a substantially complete building or room; a modular building component that will become a building element when properly installed and cannot be inspected without destructive testing or destructive opening once installed; or anything prescribed by the regulations.

That second limb is doing the real work. It is a direct answer to the inspection problem. A certifier cannot inspect a bathroom pod’s waterproofing once the pod is craned into place. Shifting the compliance evidence to a manufacturer’s declaration made before installation is a sensible design, provided the declarations are genuinely rigorous.

The mechanism: work involving a prefabricated building cannot commence unless a prefabricated building declaration and prefabricated building instructions have been obtained from the manufacturer and given to the approval authority through the NSW Planning Portal.

Scope matters here, and it is narrow. That requirement applies only to building work involving a prefabricated building that, when completed, will be a class 1 building or part of a class 1 building. It is not a general obligation across all building classes. A separate supply chain information offence is not limited in that way.

Manufactured homes

The EP&A Act definition of “building” currently excludes a manufactured home. The Act removes that exclusion, and also repeals the separate approval under section 68 of the Local Government Act 1993 for installing a manufactured home or operating a manufactured home estate, replacing the relevant table item with a single moveable dwelling item.

The consequence usually drawn from the current exclusion, that installing a manufactured home is not itself development and needs no construction certificate, is a legal inference rather than something the Act states. It is the orthodox reading, and it is why the change matters, but it should be understood as reasoning rather than text.

That leaves an open question worth watching. The development standards for manufactured home estates currently sit in a statewide regulation under the Local Government Act. They will need to move into an instrument under the EP&A Act, and it is not yet clear whether that means a state environmental planning policy or whether councils will set their own rules through development control plans. For operators of manufactured home estates that is the difference between a consistent statewide standard and a large number of local variations.

Fire safety certificates change hands

A short change with a long tail. Under the Act, an approval authority must not issue a completion approval unless the approval authority has itself issued a fire safety certificate for the building, where a fire safety schedule was required.

Under the current arrangement the owner obtains the certificate on the strength of an accredited practitioner’s assessment. In practice that has produced a persistent accountability gap: the person signing has the least technical capacity to interrogate what they are signing, and the least incentive to slow the process down. Moving the issue to a registered, insured party facing substantially increased penalties closes it.

It does not change what owners must do operationally. Annual fire safety statements, maintenance of essential fire safety measures and the underlying obligations remain the owner’s.

What is not changing

• Complying development stays in the EP&A Act. Complying development certificates are not renamed by this Act, and the Act sets its own requirements for issuing them. A building approval is not required for work under a complying development certificate.
• Development applications are untouched. The DA pathway, assessment under section 4.15, and the role of the consent authority are unaffected.
• Existing certificates remain valid. A construction certificate issued before commencement does not evaporate on proclamation. Transitional arrangements will be set out in regulations.
• Subdivision certificates stay in Part 6. Subdivision works certificates and subdivision certificates continue there.
• The BCA is still the BCA. Nothing in this Act changes the technical standards. It changes who approves compliance with them, and when.
• The DBP Act is fully in force. Its repeal has not commenced. Design compliance declarations and building compliance declarations continue to be required for regulated buildings.

The parallel reform, and why it is not law yet

Running separately from the Building Act, and easily conflated with it, is a proposed change to complying development that will matter more to low rise residential projects than anything above.

Today, complying development is binary. A proposal either meets every prescribed development standard and can obtain a complying development certificate, or it misses one and is pushed into a full development application. The Department of Planning, Housing and Infrastructure estimates that proposals which fall marginally short and are pushed into a DA take on average more than 60 days longer to assess. That figure is the Department’s own, published in support of the reform, and no methodology has been published with it.

A variations pathway has been legislated but not commenced. Section 4.31A does not appear in the EP&A Act as currently in force. An Explanation of Intended Effect was exhibited from 14 May to 24 June 2026, the Department is considering submissions, and commencement has been signalled for the third quarter of 2026.

As proposed: the variation would be approved by the council through a variation certificate, not by a certifier; no more than three to four development standards could be varied for a single development; the application would need a short written justification; and once a variation certificate is issued the certifier would assess compliance with the remaining standards and issue the certificate as usual. The first stage targets low rise housing under the Codes SEPP, with industrial, business and Housing SEPP development flagged for later stages.

Every element of that is a proposal capable of changing before commencement. Do not plan a project around it.

What to do now

The Act is not in force and the regulations are not written. That argues for preparation, not panic.

1. Fix your contract terminology once. Update building contracts, consultancy agreements, funding documents and development agreements so payment, practical completion, handover and access triggers work under both the current and the new terminology. A defined term capturing “a construction certificate or a building approval, as applicable” costs nothing to insert now and avoids a variation claim later. Express penalty exposure in penalty units, not dollars.
2. Allocate approval responsibility explicitly. Because only owners will be able to apply, contracts need to say who obtains the approvals, who responds to approval authority queries, and what happens to the programme if owner consent is delayed. Silence currently defaults to the builder doing it. That default is about to stop working.
3. Audit your leasehold and easement exposure. Identify every project or tenancy where the entity doing the work is not the registered owner, and get consent instruments in place ahead of time. Landlords should review make good and indemnity clauses against a regularisation regime that will be discretionary and cost recoverable.
4. Review conflict of interest and document retention practices. A defined category conflicts test, a three year prosecution window and expanded entry and seizure powers together mean what you can evidence matters as much as what you did. This applies to certifiers first, but design and construction practitioners should assume the same standard of record keeping.
5. Model, but do not re sequence, your early works. The approval trigger is presently limited to the erection of a building and can be extended by regulation. Know what a staged building approval would look like on your project, and check whether locking the BCA version at first stage is worth pulling the application forward.

What happens next

The regulations carry most of the practical detail: what else counts as building work, staging periods, prefabricated declaration content, transitional arrangements for approvals in train, manufactured home standards, the content of the direction offence, and the scope of the post commencement authorisation power. Timing is not known. Staggered commencement is plausible given how much depends on regulations, so it is reasonable to expect some provisions to start ahead of others.

One fixed date sits in the package. Regulations establishing a scheme for dispute resolution by the Secretary for disputes involving building work must be made by 31 December 2026. That obligation itself commences by proclamation, so if the relevant schedule is not proclaimed before then the deadline has nothing to bite on.

Key takeaways

• Passed and assented, not commenced. Act No 26 of 2026, assent 14 August 2026. Only two Schedule 3 items are in force, both about manufactured homes. Everything else awaits proclamation and regulations that do not yet exist.
• New names, new statutory home. Construction certificates become building approvals, occupation certificates become completion approvals, issued by an approval authority.
• Only owners can apply. The biggest sleeper change. Leasehold, easement, strata and special purpose vehicle structures need consent instruments in place before lodgement, and a builder applying in its own name commits an offence.
• The approval trigger is still the erection of a building. It is not extended to demolition and site preparation on the face of the Act, but it can be by regulation.
• A variation is not a modification. The work still has to be consistent with the development consent. Section 4.55 does not go away.
• An approval for commenced work is void. Regularising commenced work runs through the Secretary or a prescribed person, on a test the regulations have yet to set, with costs recoverable from owners as well as builders.
• The duty of care survives the DBP Act repeal, non delegable, widened in scope, with a ten year cap that does not extend other limitation periods.
• Act on contracts, not on programme. Terminology and responsibility allocation are worth fixing today. Nothing on site needs to change until proclamation.

Frequently asked questions

Primary sources and further reading

1. NSW Parliament, Building (Approvals and Practitioners) Bill 2026, bill page and the version passed by both Houses
2. NSW Legislation, Building (Approvals and Practitioners) Act 2026 No 26, and the Environmental Planning and Assessment Act 1979
3. NSW Planning Portal, Variations and changes to complying development: explanation of intended effect
4. Building Commission NSW, building productivity reforms
5. Australian Building Codes Board, National Construction Code

Related insights: The fast-track assumption: why confirming comes before designing · Why a site change that feels minor can stop your project cold · When your reports don’t talk to each other, neither does your approval

This article is general information about NSW building regulation prepared by registered certifiers. It is not legal advice and does not take account of the circumstances of any particular project. The Building (Approvals and Practitioners) Act 2026 is not in force and provisions described here may change before commencement or be affected by regulations not yet made.

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