Focus: Property development certification
Services: Property & Projects
Industry Focus: Property

In NSW, it is an offence to occupy a new building or part of a new building unless an occupation certificate has been issued.

Occupation certificates for NSW property development projects relying on development consents or complying development certificates granted after 1 March 2013, can only be issued if the development, as designed and completed, is "not inconsistent with" the development consent or complying development certificate. This is a new criteria that mirrors a similar requirement with respect to the issue of construction certificates (which authorise the commencement of construction).

Developers should ensure that the design and construction of new buildings accords with the development consent or it may find that a certifier will refuse to issue an occupation certificate without an approved modification to the development consent by the consent authority.

Current criteria to be met for occupation certificates

In summary, for all developments relying on development consents or complying development certificates granted before 1 March 2013, a certifier must be satisfied of the following matters before issuing an occupation certificate:

  1. A fire safety certificate has been issued.
  2. The building will not constitute a hazard to the health or safety of the occupants of the building (in the case of interim occupation certificates).
  3. There is a design verification for residential flat buildings.
  4. The relevant BASIX commitments are fulfilled (if applicable).
  5. A development consent or complying development consent is in force with respect to the building.
  6. A construction certificate has been issued with respect to the plans and specifications of the building (for buildings relying on development consents rather than complying development certificates).
  7. The building is suitable for use in accordance with its classification under the Building Code of Australia.

Additional criteria for consents granted after 1 March 2013

For all applications for occupation certificates in respect of developments with the benefit of consents or complying development certificates granted after 1 March 2013, an additional criteria will apply (clause 154(1B) of the Environmental Planning and Assessment Regulation 2000 (NSW)). For these developments, the certifier must also be satisfied that the design and construction of the new building (or part of the building) are not inconsistent with the development consent or complying development certificate in force with respect to the building.

The new criteria reflects an existing criteria for construction certificates that the design and construction of the building are not inconsistent with the development consent (clause 145 EP&A Regulations).

Changes to design may not be certified without an approved modification

The phrase "not inconsistent with" does not mean identical with or the same as - the legislation contemplates some variation (Lesnewski v Mosman Municipal Council [2004] NSWLEC 99), however, any deviations from the approved plans should be carefully reviewed and considered before implementation. Otherwise, the certifier may refuse to issue an occupation certificate without an approved modification to the development consent.

It is also preferable that all occupation certificates issued in respect of development consents or complying development certificates post 1 March 2013 have a specific reference to the new criteria so that the developer and subsequent owners have comfort that this criteria was met (Lesnewski v Mosman Municipal Council [2005] NSWCA 99).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.