Following a number of reprieves (firstly 1 November 2018, then 1 November 2019), interim occupation certificates will now become obsolete on 1 December 2019 by virtue of the commencement of certain amendments to Part 6 of the Environmental Planning and Assessment Act 1979 (NSW) (“EPA Act”), in accordance with the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW) (“Regulation”), made on 30 August 2019.[1]
Occupation Certificates
Under Part 6 of the EPA Act, the term ‘interim’ and ‘final’ occupation certificates will no longer exist. Certification can only be ‘final’ with respect to completed building works. Importantly, acknowledging that ‘whole of building’ certification is apt to be impracticable and financially detrimental, particularly on large or multi-staged developments, Part 6 embraces a ‘part’ or ‘partial’ certification regime, enabling certifiers to issue occupation certificates for parts of a development. This will enable the staged release and occupation of multi-staged development projects.
When issuing an occupation certificate for part of a development, certifying authorities will be required to clearly identify the part or parts of the development being certified, presumably by reference to the relevant construction certificate plans.
To ensure that parts of a building are not occupied indefinitely under one or more part-building occupation certificates, the Regulation now requires that a further occupation certificate be issued for the whole building within five years of the issuing of a partial occupation certificate. Where partial occupation certificates have been issued for a development, this will, in effect, result in two occupation certificates being issued for each part of the development. This also imposes an obligation to ensure that all conditions of the relevant development consent are satisfied in a timely manner.
The new provisions will only apply to development consents granted after 1 December 2019. Development consents granted prior to this date will continue to operate under the Part 4A of the EPA Act (as in force immediately before the repeal of that Part), which permits the issuing of interim occupation certificates. Given that consents are typically valid for five years, we can expect to see interim occupation certificates for some years to come.
The removal of the ‘interim’ certification regime is designed to streamline the occupation certificate provisions and remove the certification of ‘unfinished’ or ‘incomplete’ building works, albeit that those works are safe to occupy, with the prospect of those building works remaining unfinished or incomplete indefinitely.
Other Amendments
Two further notable amendments commence on 1 December 2019 as part of the package of amendments to Part 6 of the EPA Act, relating to the functions of principal certifying authorities.
First, private principal certifiers will no longer be able to issue a ‘notice of intention to give an order’. That power will now vest only with local councils and other relevant enforcement authorities. Instead, principal certifiers will be able to issue ‘written directions notice’ to developers or owners in relation non-compliances within 2 business days to the person responsible for the non-compliance. If the non-compliance is not remedied, the private certifier will be required to defer the matter to the council.
Second, a construction certificate can no longer be used to certify ‘subdivision work’. Certifiers will now be required to issue a ‘subdivision works certificate’ prior to any subdivision works occurring (including any physical activity authorised to be carried out in connection with a subdivision under the conditions of a development consent for the subdivision of land).[2] These certificates will operate in much the same way as construction certificates issued for building works, but for subdivision works. Subdivision works certificates do not apply to complying development certificates and some Crown developments. Importantly, the issue of a ‘subdivision works certificate’ does not eliminate the need to obtain a construction certificate for building works.
[1] The Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 was made on 30 August 2019 and provides the operational requirements for Part 6, including the revised date for repealing interim occupation certificates.
[2] A ‘subdivision works certificate’ is different to a ‘subdivision certificate’ that authorises the registration of a plan of subdivision under Part 23 of the Conveyancing Act 1919 (NSW).
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. Specific legal advice should always be sought separately before taking any action based on this publication.
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