Posted on October 29, 2025 by Megan Hawley and Adriana Kleiss 9

Certifier Series: Issues that arise where building work has been commenced without a Construction Certificate

This blog is part of our LTL in Focus: Certifier Series. The Certifier Series deals with questions, issues and changes affecting both private and local council certifiers.

In this blog we discuss the issues that arise when building work is commenced prior to a construction certificate (CC) being issued for that work.

A CC is a certificate issued by a certifier to the effect that building work completed in accordance with the plans and specifications approved by that certificate will comply with the requirements of the regulations made under the Environmental Planning and Assessment Act 1979 (EPA Act): s6.4(a).

The starting point is that a CC is required for the erection of a building in accordance with a development consent: EPA Act, s6.7. A failure to obtain a CC prior to the commencement of building work is an offence committed by the person who carries out the development: EPA Act, s6.3(1)(a).

When building work has been commenced without a CC, the certifier for the development may be unsure what steps they can take in response.

What are a certifier’s responsibilities where building work is commenced without a CC?

Section 67 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (DC Reg) states:

“If building work or subdivision work requires development consent, the principal certifier who has control over the work must, before the work commences, be satisfied a construction certificate, subdivision works certificate or complying development certificate has been issued.”

A failure to comply with this provision is an offence with a maximum penalty of 300 penalty units for a corporation and 150 penalty units for an individual.

The provision is problematic in our view because it suggests that a certifier has the ability to prevent building work from commencing without a CC. In practice, work commenced without a CC is more likely to occur prior to a certifier being appointed or without the certifier’s knowledge.

Further, even if the certifier is aware that building work has commenced without a CC, the only thing the certifier can (and if they are a private certifier, must) do is issue a written direction notice (WDN) under s6.31 of the EPA Act in respect of the non-compliance. However, there are also issues with this requirement. A WDN is required to both identify the non-compliance and to specify the actions required to remedy it: EPA Act, s6.31(1). The issue that arises is that where building work has commenced without a CC the legislation does not provide any option to remedy the non-compliance.

Section 6.8(2) of the EPA Act provides that a CC “has no effect if it is issued after the building work to which it relates is physically commenced on the land to which the relevant development consent applies”.  It is reasonably clear that a CC issued after the building work to which it relates has commenced would not:

1. form part of the relevant development consent, or
2. operate so as to certify that if the building work is carried out in accordance with the CC plans and specifications it will comply with the relevant regulations under the EPA Act.

Section 6.10(2)(b) of the EPA Act states that an occupation certificate must not be issued to authorise a person to commence the occupation of a new building unless, “in the case of a building erected pursuant to a development consent (other than a complying development certificate), a construction certificate has been issued with respect to the plans and specifications for the building (or part of the building).” The question that arises is whether a CC that has “no effect” due to the operation of s6.8(2) of the EPA Act can be relied upon to satisfy s6.10(2)(b) in the context of an application for an OC.

There are issues with obtaining an OC where building work has not been carried out in accordance with the EPA Act, as noted in our earlier article here.

Implications for Certifier of issuing a CC for building work that has already commenced

In Lilli v Building Professionals Board [2019] NSWCATOD 119 (Lilli) the NSW Civil and Administrative Tribunal found a certifier guilty of unsatisfactory professional conduct which involved issuing a CC in circumstances where the building work the subject of the CC had already commenced. The findings of the Tribunal in respect of this issue were expressed as follows:

“(1) In issuing a CC after building work had commenced, and with knowledge that it has commenced, which failed to exclude the already constructed works, Mr Lilli’s conduct fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent accredited certifier;

(2) In providing incorrect information on the CC and the [inspection report], Mr Lilli failed to comply with the requirements of s85(1)(b) of the [Building Professionals Act] and the Regulation;

(3) In issuing a CC after building work had commenced, and without excluding the already constructed works, and in signing [an inspection record] which included incorrect information as to the date of inspection and status of the construction work, Mr Lilli failed to comply with requirement 5 of the Code of Conduct, namely that he exercise reasonable care and attention in carrying out his duties.”

Key Takeaways 

A private certifier for development that is aware building work has commenced prior to a CC being obtained should issue a WDN to the person carrying out the development in respect of the non-compliance (a council certifier may issue a WDN).

The decision in Lilli (while not binding) suggests that a certifier should refuse to issue a CC  for works already undertaken, or exclude the works that have already commenced from the CC.

A CC issued in respect of work which has already commenced is of no effect, and could prevent the issue of an OC for the building.