Posted on May 25, 2022 by Megan Hawley and James King
Fees for Building Information Certificates under the New EPA Regulation
The ability for Councils to charge fees for an application for a Building Information Certificate (BIC) has been removed by the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021).
An application for a BIC is made to the council for the area in which the land to which the application relates is situated. The Environmental Planning & Assessment Act 1979 (EPA Act) states that the regulations may provide for the procedure for making and dealing with applications for BICs (see s6.23(2) EPA Act).
Clause 260 of the now repealed Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) previously set out the fees for BIC applications. For class 1 buildings the fee was $250 for each dwelling contained in the building. For other buildings the fee was as set out in a table in the clause.
The position under the EPA Reg 2021
Clause 268(2) of the EPA Reg 2021 provides for a $40 fee to submit an application for a BIC on the NSW Planning Portal.
There are no references to the charging of fees by a Council for the assessment of BIC applications.
The Department’s Section guide for the EPA Reg 2021 advises that clause 260 of the EPA Reg 2000 has been transferred to the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.
However, BICs are not referred to in that Regulation.
Implications for Councils
Despite there being no express power under the EPA Act or regulations for Council to charge a fee for dealing with BIC applications, Councils are able to charge an approved fee for services they provide under s608 of the Local Government Act 1993 (LG Act).
Councils may charge fees for a range of services under s608, including a service in connection with the exercise of the council’s regulatory functions – such as issuing a certificate.
If the amount of a fee for a service is determined under another Act, a council may not determine a fee which is inconsistent or in addition to the amount determined under another Act (see s610 LG Act). However, that does not apply to this situation because there is no amount specified for the service of issuing a BIC under any other Act.
Because the charging of a fee for issuing a BIC is not prohibited under the EPA Act, a council is able to charge an approved fee under the LG Act for that service. Councils, however, must ensure that they comply with the requirements of Part 10 of the LG Act before they do so.
To discuss this blog, please contact Megan Hawley on (02) 8235 9703 or James King on (02) 8235 9722.