Posted on October 3, 2019 by Sue Puckeridge and 1

Amendments to Building and Subdivision Certification Provisions of the Environmental Planning and Assessment Regulation 2000

The Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (Amendment Regulation) will make various amendments to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) regarding building and subdivision certification.

These amendments are set out at Schedule 1 to the Amendment Regulation and will come into force when the Amendment Regulation commences on 1 December 2019.

Revised requirements for issuing certificates

Compliance with a development consent

The Amendment Regulation replaces the requirement that construction certificates, occupation certificates and subdivision works certificates must not be issued unless the design and construction of a building or work are not ‘inconsistent‘ with a development consent with a requirement that the design and construction of a building or work are ‘consistent‘ with a development consent (cl145(1)(a), 148F and 154(1B)).

In this context, the word ‘consistent‘ is likely to be given its ordinary meaning. Whether or not this amendment will narrow the acceptable scope of disparity between any such certificate and a development consent remains to be seen, however we consider that it is likely to be inconsequential.

Compliance with any planning agreement 

When the Environmental Planning and Assessment Act 1979 (EPA Act) was amended in 2018, s6.10(1) removed the requirement that any requirements of a planning agreement had to be complied with prior to the issue of an occupation certificate. Our earlier blog post on this point can be found here.

It appears that this omission may have been inadvertent and will be rectified by the Amendment Regulation’s insertion of a new cl154E into the EPA Regulation.

A similar restriction will apply to the issue of a subdivision works certificate (cl148G).

Changes to provisions regarding Occupation Certificates

The Amendment Regulation makes various amendments to Part 8, Division 3 of the EPA Regulation regarding occupation certificates, to accommodate for the removal of the distinction between interim and final occupation certificates.

Under the revised regime, a ‘partial occupation certificate‘ can be issued for the first completed stage of a partially completed building (cl156A).  However, the issue of such a certificate will be subject to the condition that an occupation certificate for the whole of the building must be obtained within 5 years after the issue of the partial occupation certificate.

Applications for occupation certificates will need to include information about whether they relate to the occupation or use of a new building, or a change of building use for an existing building. If an application for an occupation certificate relates to part of a new building (including a partially completed building), a description of the part of the building to which it relates must be provided (cl149(d) and (d1)). Similar matters will be required to be identified on the occupation certificate itself (cl155(1)(d)).

New Parts of the EPA Regulation regarding Subdivision Works Certificates

The Amendment Regulation inserts a new Part 8, Division 2A and a new Part 3A into the EPA Regulation regarding subdivision works certificates.

Other significant changes

The Amendment Regulation also introduces the following significant amendments into the EPA Regulation:

• a requirement that certain compliance certificates (being those to the effect that completed building or subdivision work complies with particular plans and specifications or with particular standards or requirements, or that a condition attached to a planning approval regarding building or subdivision work has been complied with) can only be issued if any required development consent or complying development certificate is in force with respect to the building or subdivision to which the work relates (cl138A),
• a requirement that, prior to the issue of a construction certificate, a certifier must make a record of each cl143B inspection of an existing building that is affected by development for which a construction certificate may be issued. If the certifer who carries out any such inspection is not the certifier in relation to the issue of the construction certificate concerned, they must provide a copy of such a record to the certifier in relation to the issue of the construction certificate concerned within 2 days after carrying out such an inspection (cl143C),
• provisions dealing with the obligations of principal certifiers in relation to the issue of directions under s6.31 of the EPA Act (cl161A) and the general duties of principal certifiers (cl161B),
• provisions dealing with the replacement of principal certifiers, including the need to obtain approval from the Building Professionals Board (cl162), and the ability of the Building Professionals Board to direct the provision of certain information from the old principal certifer to the new principal certifier if that information is not voluntarily provided (cl162AA).

Our earlier blog post regarding the further postponement of the amended building and subdivision certification provisions contained in a new Part 6 of the EPA Act can be viewed here.

To discuss this blog please, contact Sue Puckeridge, Partner on 02 8235 9702 or Sophia Urlich, Lawyer on 02 8235 9708.