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
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
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
A fire safety certificate has been issued.
The building will not constitute a hazard to the health or
safety of the occupants of the building (in the case of interim
There is a design verification for residential flat
The relevant BASIX commitments are fulfilled (if
A development consent or complying development consent is in
force with respect to the building.
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
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
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
Changes to design may not be certified without an approved
The phrase "not inconsistent with" does not mean
identical with or the same as - the legislation contemplates some
variation (Lesnewski v Mosman Municipal Council 
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
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  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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).