NSW Building Certification and Subdivision Changes have began
On 1 December 2019, updated building and certification provisions under Part 6 of the Environmental Planning and Assessment Act 1979 (Act) came into effect. The operational requirements have also come into effect through the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (Regulation). An overview of these changes and what they may mean for building certification and development processes is provided below.
Removal of interim occupation certificates
References to ‘interim’ and ‘final’ occupation certificates no longer exist under the new Part 6 requirements of the EP&A Act. Instead, only a single occupation certificate can be obtained for either a whole, or part of, a building. Under section 6.10 of the Act, for an occupation certificate to be issued, all of the preconditions of the development consent must be complied with. If an occupation certificate is only required for part of a building, the new requirements of the Act specify that a five-year time limit applies, requiring that from the date of the ‘part’ occupation certificate having been issued, the developer is required to obtain an occupation certificate for the entire site.
Previously, interim occupation certificates were required in order to occupy new, partially completed buildings or to commence a new use of an existing building. A ‘final’ occupation certificate could and would then be issued once the entirety of the works had been completed.
In effect, the new changes require that developers complete all works before they are able to obtain an occupation certificate permitting occupation. These changes present significant challenges for larger projects or projects that experience any delays due to the requirement for a developer to be in a position to obtain an occupation certificate for the entirey of the building or development within five years of a partial site occupation certificate being issued.
Separation of subdivision and construction works certificates
Subdivision work will also change under Division 6.4 as construction certificates are no longer a requirement of the subdivision certification process. Instead, the changes introduce the concept of a ‘subdivision works certificate’, which is now required before ‘any authorised physical activity can be carried out in connection with a subdivision under the conditions of a development consent for the subdivision of land’.
A ‘subdivision certificate’ will still be required following the completion of works for the registration of the subdivision.
These changes increase the approval requirements for works for developers seeking to subdivide and construct in the development process, although these new changes will not apply to some Crown developments and complying development certificates.
New powers and responsibilities for principal certifiers
Principal certifiers will no longer be authorised to issue notices of intention, with the power to do so now resting solely in the hands of enforcement agencies and local councils.
It is also important to note that private principal certifiers are now required to issue written direction notices within two business days of being notified of any non-compliance with a development consent or complying development certificate under the updated Regulation.
What about current works?
The new changes will only apply to those development consents granted after 1 December 2019. Developers who hold development consents granted before 1 December 2019 will still be permitted to follow the old system.
For private principal certifiers, there will be an expectation to follow the amendments in relation to the issuing of written direction notices from 1 December 2019. Councils will be expected to understand the legislative changes and incorporate them into the development consent conditions from 1 December 2019 onwards.
This article does not provide an exhaustive overview of all of the amendments to the Act and is intended for information purposes only, and is not to be regarded as legal advice.
For further information on any of the issues raised in this alert, please contact the Environment and Planning team at McCullough Robertson.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.