Legislation

Provisions to enable the operation of BASIX are contained in the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP).

Disclaimer: The following information is provided as a summary of matters contained in the EP&A Regulation and the BASIX SEPP but in no way overrides, replaces or alters the contents of the legislation. Prior to relying on any information relating to the BASIX SEPP and the EP&A Regulation, the full legislation should be viewed and may be found on the Legislation Website www.legislation.nsw.gov.au in the 'In Force' databank.

The EP&A Regulation specifies matters such as the types of development BASIX applies to, the purpose and content of BASIX certificates, the circumstances in which the lodgement of a BASIX certificate is required and how those certificates are issued, who must check compliance with commitments made in BASIX certificates and when, the relationship of BASIX to SEPP 65 – Design Quality of Residential Flat Development, fees for BASIX certificates and the requirement for lodgement of a BASIX completion certificate.

The BASIX SEPP, which commenced on 1 July 2004, aims to ensure consistency in the implementation of the BASIX scheme throughout the State by overriding provisions of other environmental planning instruments and development control plans that would otherwise add to, subtract from or modify any obligations arising under the BASIX scheme. 

The EP&A Regulation and BASIX

Under EP&A Regulation, BASIX applies to all BASIX affected development as well to BASIX optional development for which a BASIX certificate is lodged.

Under clause 3 – Definitions of the EP&A Regulation, BASIX affected development means any of the following development that is not BASIX excluded development:

  1. development that involves the erection (but not the relocation) of a BASIX affected building,
  2. development that involves a change of building use by which a building becomes a BASIX affected building,
  3. development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is:
    1. $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or
    2. $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,
  4. development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.

BASIX optional development means any of the following development that is not BASIX excluded development:

  1. development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimate of the construction cost of the development is:
    1. less than $100,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or
    2. less than $50,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,
  2. development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of less than 40,000 litres.

BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel.

BASIX excluded development means any of the following development:

  1. development for the purpose of a garage, storeroom, car port, gazebo, verandah or awning,
  2. alterations, enlargements or extensions to a building listed on the State Heritage Register under the Heritage Act 1977,
  3. alterations, enlargements or extensions that result in a space that cannot be fully enclosed (for example, a verandah that is open or enclosed by screens, mesh or other materials that permit the free and uncontrolled flow of air), other than a space can be fully enclosed but for a vent needed for the safe operation of a gas appliance,
  4. alterations, enlargements or extensions that the Director-General has declared, by order published in the Gazette, to be BASIX excluded development.

Schedule 1 to the EP&A Regulation specifies information requirements and accompanying documents for development applications, complying development applications and construction certificates. For BASIX, the Schedule requires that a development application, complying development certificate application or construction certificate application for BASIX affected development must be accompanied by BASIX certificate or BASIX certificates issued no earlier than 3 months before the date on which the application is made.

If a proposed development involves the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling, a separate BASIX certificate is required for each dwelling concerned.

The BASIX certificate (or certificates) accompanying a construction certificate application must be either the BASIX certificate applicable to the development when the relevant development consent was granted or some other BASIX certificate or BASIX certificates that has or have been issued no earlier than 3 months before the date on which the application is made.

If a person makes a development application for BASIX optional development and that application was accompanied by a BASIX certificate or BASIX certificates, then an application for a construction certificate for that development must also be accompanied by a BASIX certificate or BASIX certificates for the development, being either the BASIX certificate applicable to the development when the relevant development consent was granted or some other BASIX certificate or BASIX certificates issued no earlier than 3 months before the date on which the application is made.

The EP&A Regulation may also require an application for:

  • modification of development consent under s.96(1A) or 96(2) of the EP&A Act,
  • modification of a complying development certificate, or
  • modification of a construction certificate

to be accompanied by a replacement BASIX certificate (See for example clauses 115(7), 129A(3); and also clause 6A(2) of Part 3 of Schedule 1 and clauses 139 and 148).

Clause 164A concerns the purpose, means of issuing and content BASIX certificates. A BASIX certificate may be issued by the Director General in relation to the sustainability of any proposed BASIX affected development and any proposed BASIX optional development. The certificate may be issued by means of a computerised system to which members of the public are given on-line access. In clause 164A "sustainability" means the capacity of the development to:

  • to reduce consumption of mains-supplied potable water, and
  • to reduce emissions of greenhouse gases, and
  • to perform in a thermally efficient manner.


Some of the other requirements in clause 164A are that the BASIX certificate must contain a detailed list of the commitments the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development); and a description of the proposed development in the certificate must correspond in all relevant respects with the description contained in the relevant application and any relevant accompanying documents.

Some further provisions in the EP&A Regulation 2000 regarding BASIX are:

Clause 50(1B)
– Effect on operation of SEPP 65 of lodging BASIX certificate with development application for residential flat development
Clause 50(7) – Determination by consent authority of whether a development application for an alteration, enlargement or extension of a BASIX affected building is BASIX affected development
Clause 55A – Amendments to BASIX commitments (amended development applications)
Clause 97A – Fulfilment of BASIX commitments (prescribed condition of development consent)
Clause 115(4) – Effect on operation of SEPP 65 of lodging BASIX certificate with s.96(2) or s.96AA(1) application for modification of consent for residential flat development
Clause 115(6) & (7) – Circumstances in which new BASIX certificate required to replace current BASIX certificate if a s.96(2) or s.96AA(1) application for modification of consent is made for BASIX affected development or BASIX optional development
Clause 126(3) – Determination by certifying authority for complying development of whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development
Clause 129A – Circumstances in which a replacement BASIX certificate to be annexed to an application to amend or vary a complying development certificate
Clause 136D – Fulfilment of BASIX commitments (complying development)
Clause 143A(3) – Effect on the operation of SEPP 65 of lodging a BASIX certificate with construction certificate application for residential flat development
Clause 145 – Certifying authority to not issue construction certificate for building work unless the plans and specifications for the building include such matters as each relevant BASIX certificate requires.
Clause 149(2A) – Certifying authority issuing occupation certificate to authorise use or occupation of residential flat building for which the development application was required to be accompanied by BASIX certificate, not required to verify the design of the building against certain design quality principles in SEPP 65
Clause 154A – Effect on operation of SEPP 65 of lodging copy of BASIX certificate with occupation certificate application for residential flat development
Clause 154B – BASIX commitments requiring fulfilment prior to issue of occupation certificate
Clause 154C – Issue by Director General of BASIX completion receipt
Clause 262B – Fee for BASIX certificate
Clauses 286A and 286AA – Savings and transitional provisions relating to BASIX
Schedule 1 – Forms – Various references in Part 1 – Development applications, Part 2 – Complying development certificates and Part 3 – Construction certificates

The BASIX SEPP

The BASIX SEPP provides that the competing provisions of an environmental planning instrument or development control plan, whenever made, are of no effect to the extent to which they aim:

  • to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of a building to which the Policy applies or in the use of land on which such a building is situated, or
  • to improve the thermal performance of a building to which the Policy applies.

However, where the development concerned involves a building that is partly for non-residential purposes, the BASIX SEPP does not displace the competing provisions to the extent to which they apply to the part of the building that is intended to be uses for non-residential purposes.

Competing provision is defined in clause 3 of the Policy. The definition excludes any provision that encourages, or offers incentives for, (as opposed to requires) the adoption of measures beyond those required by BASIX.

Clause 3 also defines BASIX affected building, BASIX affected development, BASIX certificate and BASIX optional development as having the same meaning as in the EP&A Regulation.

Clause 6 sets out the types of buildings to which the Policy applies.

Clause 10 provides that State Environmental Planning Policy No 1 – Development Standards cannot be used to allow departures from BASIX commitments.