Posted on May 7, 2018 by Frances Tse and Lindsay Taylor
EPA Act Amendments – VPA preconditions no longer a restriction on issuing of occupation certificates
A small but significant change to the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) will take effect on 1 September 2018 removing a restriction on the issuing of occupation certificates where a precondition to the issuing of the certificate contained in a voluntary planning agreement (‘VPA‘) has not been met.
Prior to 1 March 2018, s109H(2) of the EPA Act provided as follows:
(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.
The EPA Act as amended on and from 1 March 2018 renumbered s109H(2) as s6.10. Section 6.10(1) now relevantly provides:
(1) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent have been complied with.
Sections 6.10(2) and (3) provide that the Environmental Planning and Assessment Regulation 2000 (‘EPA Reg‘) may contain requirements which must be complied with before an occupation certificate can be issued. However, there is currently nothing in the EPA Reg similar to the previous s109H(2) in so far as it related to any precondition to the issuing of an occupation certificate contained in a VPA.
Although s6.10 appears in the amended EPA Act, its operation has been postponed to 1 September 2018 (see cl18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017) and the former s109H(2) remains in force until that date.
The effect of the above is that unless there are any changes to the EPA Act or EPA Reg in this regard between now and 1 September 2018, on and from that day, there will no longer be a restriction on issuing of an occupation certificate arising from preconditions specified in a VPA.
The change is significant to the way in which the obligations of a developer under a VPA can be secured as it has been commonplace up until now for VPAs to require some obligations to be performed prior to the issuing of an occupation certificate.
Planning authorities will need to consider how the performance of obligations in VPAs that are tied to the issuing of occupation certificates can be properly secured once s6.10 commences operation. One likely approach will be for development consents that are granted for development to which a VPA applies to be subject to a standard condition that the VPA must be complied with.