Posted on March 5, 2018 by Carlo Zoppo and Katie Mortimer

EPA Act Amendments – What to do about building certificates until 1 September 2018?

Previously sections s149A – s149F of the Environmental Planning & Assessment Act 1979 (Act) governed the issue of building certificates by Councils, and appeals with respect to building certificates.

Now that the Act has been amended (see our earlier blog), sections relating to building certificates have been transferred to sections 6.22 – 6.26 of the Act. On the face of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Savings Reg), these sections do not commence until 1 September 2018.

Clause 18 of the Savings Reg states:

18   Postponement of revised building and subdivision certification provisions

(1)  In this clause, the former building and subdivision provisions means:

(a)  sections 81A (2)–(6) and 86 of the Act, as in force immediately before the substitution of those provisions by the amending Act, and

(b)  Part 4A of the Act, as in force immediately before the repeal of that Part by the amending Act, and the regulations made under that Part as so in force.

(2)  Until 1 September 2018, Part 6 of the Act (as inserted by the amending Act) does not apply and the former building and subdivision provisions continue to apply in respect of a matter (whether or not the matter was pending on the repeal of those provisions).

Previously sections 149A – 149F of the Act formed Part 8 – Miscellaneous of the former Act. As such, they do not fit within the definition of ‘former building and subdivision provisions’. The new sections 6.22 – 6.26 are within Part 6 of the Act.

As a result, a literal interpretation of clause 18(2) of the Savings Reg means that none of the former building certificate provisions, or the current building information certificate provisions, operate until September. This would leave a period of 7 months where pending and future building certificate applications could not be dealt with by Councils.

The Courts have previously departed from a literal meaning of a statute, or corrected a drafting error, in order to ‘promote the purpose or object underlying a statutory provision‘. To give effect to the objects of the Act, we consider that clause 18(2) of the Savings Reg should be read to mean the new Part 6 of the Act does not apply, only in circumstances where the ‘former building and subdivision provisions’ operate.

A decision of the Land and Environment Court published today agreed with this view.

Commissioner Gray also commented on the differences between provisions of the Act that have been ‘renumbered or relocated’ and provisions that have been ‘inserted’. When s149A – 149F are viewed as having been ‘renumbered’, not ‘inserted’ to the amending Act, clause 18(2) of the Savings Reg again does not apply.

What to do with pending applications for building certificates?

Applications for building certificates lodged under former s149B of the Act, are taken to have been made under ss6.22 and 6.23 of the Act due to clause 4A of the Savings Reg.

Having regard to the Land and Environment Court’s comments, these applications should be determined under Division 6.7, Part 6 of the Act, despite clause 18(2) of the Savings Reg.

This means that Councils can commence issuing building information certificates under ss6.24 and 6.25, and the Land and Environment Court can direct Councils to issue a building information certificate under s8.25(3), before September 2018.

Should you wish to discuss the new provisions, or the Act generally, please contact Carlo Zoppo, Partner on 8235 9705 or by email, at carlo.zoppo@lindsaytaylorlawyers.com.au or Katie Mortimer on 8235 9716.