What does “substantial progress on design” mean under the National Construction Code 2022, section 10 of the Building Act 1993, and how does this interact with the SDA Design Standard 2019?

The concept of “substantial progress on design” most commonly arises during transitional periods, such as when a new edition of the National Construction Code (NCC) comes into effect. In Victoria, this concept is grounded in section 10 of the Building Act 1993, which allows certain building work to proceed under earlier regulations if sufficient design progress was made before new requirements commenced.

This discussion is specific to Victoria. While the NCC and the SDA Design Standard apply nationally, the mechanism that allows a project to rely on an earlier edition of the NCC due to “substantial progress on design” arises from Victorian building legislation. Other Australian states and territories apply NCC transitional arrangements through their own legislation, regulations, or policy instruments, and do not necessarily recognise “substantial progress on design” in the same way or with the same legal effect.

Section 10(2) of the Building Act 1993 provides that a building regulation, including one that adopts or amends the NCC, does not apply to 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 regulation or amendment commenced. This provision is intended to prevent projects that are already well advanced in design from being unfairly disrupted by regulatory changes.

The Act does not define “substantial progress,” and there is no fixed percentage or single document that automatically satisfies the test. Instead, the assessment is discretionary and made by the Relevant Building Surveyor (RBS) based on the available evidence. The key consideration is whether meaningful, project-specific design work had genuinely commenced before the relevant regulatory change took effect, rather than whether a project had merely been discussed, priced, or conceptually planned.

In practice, substantial progress on design generally means that the design has moved beyond preliminary concepts and has been materially developed for the specific site. Evidence supporting such a finding may include well-developed architectural, structural, or services drawings dated prior to the commencement of the new NCC provisions, particularly where those drawings are clearly tailored to the site. Other supporting material may include a signed building or design contract, payment of a deposit or completed design stage, submission of a planning permit application, or invoices demonstrating that significant design work had been undertaken before the change in regulations.

By contrast, substantial progress is unlikely to be established where design work is generic or speculative. Standard or “off-the-shelf” designs that have not been adapted to the specific allotment, reused drawings from earlier or unrelated projects, or high-level concept sketches without technical development will generally not be sufficient on their own. The emphasis is on whether the design work demonstrates real commitment and advancement for the particular building and site.

The role of the Relevant Building Surveyor is central to this process. The surveyor must independently assess the evidence and be satisfied that substantial progress was made before the regulatory change. If so satisfied, the surveyor must certify this in writing. Without this written certification, the exemption under section 10(2) does not apply. Minister’s Guideline MG-13 provides further guidance to surveyors on how to exercise this discretion and reinforces that decisions must be evidence-based and made on a case-by-case basis.

The introduction of NCC 2022, which includes significant reforms such as enhanced energy efficiency requirements and livable housing provisions (1 May 2024), has brought renewed focus to substantial progress assessments. Projects that can demonstrate substantial progress on design before the NCC 2022 commencement date in Victoria (generally 1 May 2023) may be permitted to comply with an earlier edition of the NCC for the affected aspects of the work, thereby avoiding costly redesigns.

For projects intended to be enrolled as Specialist Disability Accommodation (SDA), the interaction between NCC transitional arrangements and the SDA Design Standard 2019 requires careful consideration. The SDA Design Standard operates under a separate Commonwealth framework and is not a building regulation for the purposes of the Building Act 1993. Accordingly, a determination of substantial progress on design under section 10 affects which edition of the NCC applies, but it has no direct legal effect on SDA compliance obligations.

Unlike the NCC, the SDA Design Standard does not operate as a series of editions with statutory transitional provisions. The applicable standard remains the SDA Design Standard 2019, assessed at the time SDA certification is sought. What are sometimes described as “SDA amendments” are generally changes to guidance material, assessment practices, or interpretation expectations, rather than the introduction of a new or alternative SDA code that can be selected based on design timing.

The building surveyor and the SDA Assessor therefore perform distinct and independent roles. The building surveyor’s authority derives from the Building Act 1993 and the Building Regulations, and their role is to ensure compliance with the NCC and applicable building laws, including determining whether substantial progress on design has been made. The SDA Assessor’s role is to assess whether the design, as presented for certification, complies with the SDA Design Standard 2019 and the associated evidence requirements. Neither has authority to override the other.

In practice, this means a project may lawfully obtain a building permit based on compliance with an earlier NCC edition, while still needing to demonstrate full compliance with the SDA Design Standard 2019 for SDA enrolment. This is not a regulatory conflict, but the result of two parallel compliance systems assessing different risks and policy objectives.

For SDA developments in particular, relying on “substantial progress on design” as a risk-mitigation strategy should be approached with caution. While it may reduce the impact of NCC 2022 changes, it does not alter the SDA compliance framework. Early engagement with both the building surveyor and an SDA Assessor, clear documentation of the design status, and alignment of expectations across both pathways are critical to avoiding redesign, delays to SDA certification, or post-construction rectification.

Ultimately, substantial progress on design is a transitional mechanism under Victorian building law, not a universal exemption from all regulatory change. Its effect is confined to the application of building regulations, including the NCC. SDA compliance remains governed by the SDA Design Standard 2019 as a single, nationally applicable standard, assessed independently of NCC transitional arrangements.

Disclaimer

This article is provided for general information purposes only and does not constitute legal, building, planning, compliance, or professional advice. While care has been taken to ensure the information is accurate at the time of publication, building legislation, the National Construction Code, SDA requirements, and regulatory guidance are subject to change and interpretation.

Readers should not rely on this information as a substitute for obtaining advice from a registered building surveyor, SDA assessor, legal practitioner, or other appropriately qualified professional in relation to their specific project or circumstances. The author accepts no responsibility for any loss, damage, or liability arising from reliance on the information contained in this article.