Posted on November 20, 2013 by
Building Certification under the Planning Bill 2013
Much of what is contained in Part 4A of the current Environmental Planning and Assessment Act 1979 (EPA Act) has been located in Part 8 of the Planning Bill 2013 (Bill). There are no major changes to the types of certificates available and the procedures for obtaining them, but the Bill does propose more specific and serious sanctions for breaches of the certification process and there is a new requirement that an occupation certificate may not granted until the new owner of the building has been given a manual for the operation of the building. There appears to be liabilty for mere occupation as opposed to ‘use’ of a building not in accordance with a development consent.
As an initial comment, a somewhat confusing element in the Bill is the numbering of its sections. Part 8 dealing with Building and Subdivision contains Divisions 8.1 to 8.6. The clauses in Part 8 are numbered 8.1 to 8.24. Thus, you will find clause 8.4 of the Bill within Division 8.2. Be careful when reading the Bill so as not to confuse the clauses with the Divisions.
Kinds of Certificates
There are no significant changes to the types of certificate which are available. Division 8.1 in the Bill lists all of the certificates and their definitions which are almost identical to those in the EPA Act. The exhaustive list of all certificates is found in clause 8.2.
Construction certificates, subdivision certificates, occupation certificates and compliance certificates all re-appear in the Bill with similar definitions to those in the EPA Act.
For instance, the compliance certificate of section 109C(1)(a) of the EPA Act has almost precisely the same five part definition in the Bill at clause 8.2(e) save for the inclusion of reference to new subcategory, called a completion of compliance work certificate. This seems to allow a formal procedure for warranting that all building and subdivision work has been completed according to specified plans.
Occupation certificates have a similar definition under the Bill as under the EPA Act, except that the Bill adds a qualification that the certificate is issued for the occupation and use ‘in accordance with a development consent’. Accordingly, it seems that it will now be an offence to occupy (as opposed to ‘use’) a building for a purpose not contemplated by a development consent. If so, this is a significant change.
Take holiday rentals. Recently in Dobrohotoff v Bennic  NSWLEC 61 Pepper J in the Land & Environment Court dealt with the question of a whether a pattern of use involving short term holiday rentals of a residential dwelling house was a separate and prohibited use. Her Honour concluded in that instance that it was.
If an occupation certificate is now issued for the occupation and use of a building in accordance with a development consent those additional words may give Councils another mechanism by which to enforce local planning laws even in the case of one-off instances. A mere occupation (as opposed to use) of a building in contravention of an occupation certificate is an offence under clause 1.18 of the Bill, carrying with it the potentially highest penalty as a Tier 1 offence (see later). Councils could now action the breach of the occupation certificate in addition to any Class 4 civil enforcement remedy.
Under the EPA Act, a complying development certificate (CDC) may be a development consent unless expressly excluded by another section of the Act. Under the Bill, a CDC is always a variety of development consent: see Bill Schedule 1 Definitions. The notes to Part 8 call attention to this definition on at least two occasions.
The need for various certificates is spelled out in clauses 8.4 to 8.9 and the notice requirements and preconditions to their issue are also set out.
Specific provisions concerning breaches
A new feature of the Bill is to set out penalties for breach of specific provisions, rather than the broad criminal sanction in section 125 of the EPA. Offences under the Act are described in similar terms to environmental offences under the Protection of the Environment Operations Act 1997 as Tier 1, 2 and 3 offences.
Tier 1 offences carry a $5 million maximum penalty for companies and $1 million penalty for individuals. Tier 1 offences require proof of guilty intention or mens rea but only apply if the offence caused or was likely to cause significant harm to the environment, or caused the death of or serious injury or illness to a person: cl10.14(2). If that is lacking, the offence is in the Tier 2 category and there is strict liability: cl10.14(3).
Tier 2 fences carry a maximum $2 million penalty for companies and $500,000 for individuals as well as daily penalties for continuing offences.
Tier 3 offences carry a maximum penalty of $1 million for companies and $250,000 for individuals. In contrast to Tier 1 offences, Tier 2 and 3 offences are strict liability and do not require proof of intent.
In Part 8, there are a number of Tier 3 offences.
- Providing a certificate where the requirements under the Bill for its issue have not been met (clause 8.3(3))
- Failure to give the requisite notice before commencing building work (clause 8.4(3))
- Failure to give the requisite notice before commencing subdivision work (clause 8.10(3)).
There are also Tier 1 offences associated with the failure to obtain and compliance with certificates (discussed further below).
The EPA Act contains onerous requirements in relation to the replacement of certifiers: section 109EA. The Bill contains nothing specific but Schedule 8 clause 8.1(h) states that details of the replacement of building and subdivision certifiers may be found in the Regulations. Presumably the Government is not proposing a relaxation of the existing rules but we will have to wait for the Regulations to know for certain. By placing the provisions in the Regulations, the Government has made it easier to amend them.
In section 109K, the EPA Act sets out the mechanism for appeals against the determinations of consent authorities which refuse to issue construction, occupation and subdivision certificates or place conditions on construction certificates.
Appeal rights in the Bill are found in clause 9.16. The essential differences are that:
- under the EPA Act, the appeal period is 12 months, whereas under the Bill it will only last 6 months;
- appeals are only available when the issuing authority is a council.
Perhaps the most significant change is in relation to occupation certificates. It occasionally happens through accident or inadvertence that an owner or builder fails to obtain an occupation certificate. Under the EPA Act, this exposes the person occupying the building to a maximum penalty of $550 for a class 1a or class 10 building; or up to $110,000 for any other type of building: section 109M EPA Act. As seen above the penalties have been increased to at least $2M for a corporation and $500,000 for an individual, even in relation to dwelling houses.
There is also an ameliorative clause in the EPA Act which assists people who have occupied the building without a certificate. Section 109M(2)(b) provides that the prohibition on occupation without a certificate does not apply in relation to occupation 12 months after the date on which the building was first occupied. There is no equivalent to section 109M(2)(b) in the Bill.
The penalty for occupying a building without an occupation certificate is now, potentially, a Tier 1 offence. That is, it is placed in the most serious offence category under the Bill if the offence caused or was likely to cause significant harm to the environment, or caused the death of or serious injury or illness to a person. As indicated earlier, if that is lacking, the offence is in the Tier 2 category, there is strict liability and penalties mentioned above apply.
Further, as there is no equivalent to section 109M(2)(b), conveyancers will need to be doubly careful of ensuring that an occupation certificate has issued for a building before allowing their clients to purchase and commence occupation.
The most novel part of the Bill as far as building certification is concerned, deals with a new document called a building manual. An occupation certificate may not be issued unless a building manual has been ‘prepared and provided to the owner of the building in accordance with the requirements of the regulations’: clause 8.20.
The Bill tells us little about what the building manual will do. Its preparation, form, content and requirements will all be left to the Regulations: clause 8.20(2).
The Strata Title Law Reform Position Paper released on 14 November 2013 gives some assistance. At page 18 at proposal 2.5 the paper states that the proposed strata law amendments will require the builder/developer to prepare a maintenance schedule to help owners corporations understand their obligations and the costs of repairs. The Paper then goes on to say:
The maintenance schedule will complement the building manual that is proposed under the planning reforms, but will be prepared primarily for the information of the owners corporation (emphasis added).
That appears to make sense at least for strata buildings, but the requirement under clause 8.6 is for a building manual to be provided to an owner before an occupation certificate may be issued for any building, strata or otherwise.
By its use of the passive voice, the Bill does not even let us know who is to prepare the Building Manual, or who is to give it to the prospective owner. We know only that the occupation certificate can’t issue until the Building Manual has been given to the owner. If the strata reforms are an indication, the building manual will be prepared by the builder/developer. More information will come when the regulations are available.
As far as building certification is concerned, the Bill is not a root and branch amendment to the EPA Act. The types of certificates available and the circumstances in which they are provided are similar to those under the EPA Act. Penalties for breach are more specific, the penalties are generally greater, and the penalty for occupation without a certificate is potentially much higher than it is now.
The definition of an occupation certificate which is to authorise not just the ‘occupation or use’ of a building, but such occupation or use to be ‘in accordance with a development consent’ could be a significant change. It seems to provide a wider scope for liability relating to mere occupation as opposed to use of a building contrary to a consent.
Perhaps the only mystery is what a building manual is and what it is supposed to achieve.