Building and subdivision under the amended EPA Act

Building and subdivision certification has been overhauled as part of a wide ranging legislative reform. What are some of the major changes?

Summary of the new laws

Laws relating to building and subdivision certification has been put into part 6 of the Environmental Planning and Assessment Act 1979 (EPA Act).

You can access part 6 of the EPA Act by clicking here.

The new laws cover the following content:

  • Preliminary information, like general definitions and the meaning of subdivision under the EPA Act;
  • The types of work that require a certificate, the types of certificates that can be issued, and the functions of certifiers under the EPA Act;
  • Laws relating to building work and associated certificates, including requirements before works commence, and the requirements for construction certificates and occupation certificates;
  • Laws relating to subdivision work and associated certificates, including requirements before works commence, and the requirements for subdivision works certificates and subdivision certificates;
  • Laws relating to compliance certificates;
  • Liability laws for defective building or subdivision work, including the time period in which a person can bring a claim for defective building or subdivision work;
  • Laws relating to building information certificates, including who can apply and the effects of a building information certificate;
  • Other miscellaneous laws about things like the owners building manual, work done by the Crown, directions by principal certifiers, and a summary of matters to be provided for in the Environmental Planning and Assessment Regulations 2000 (the Regulations).

Types of certificates

Under the changes, 5 types of certificates can be issued for building and subdivision certification.

  • Construction certificates – certificates which certify that building work completed in accordance with specified plans and specifications or standards will comply with the requirements of the Regulations.
  • Subdivision works certificates – certificates which certify that subdivision work completed in accordance with specified plans and specifications will comply with the requirements of the Regulations.
  • Occupation certificates – certificates that authorise the occupation and use of a new building in accordance with a development consent, or authorise a change of building use for an existing building in accordance with a development consent.
  • Subdivision certificates – certificates that authorise the registration of a plan of subdivision under the Conveyancing Act 1919.
  • Compliance certificates – certificates that state:

(i)  any completed building work or subdivision work complies with particular plans and specifications, or with particular standards or requirements; or

(ii) a condition attached to a planning approval with respect to building work or subdivision work has been complied with; or

(iii)  a building or proposed building has a particular classification identified in accordance with the Building Code of Australia; or

(iv)  any aspect of development (including design of development) complies with particular standards or requirements.

Furthermore, under the changes, a compliance certificate may certify strict, substantial or other compliance with a relevant matter.

Validity of certificates

Under the Regulations, a certifier must not issue a construction certificate for building works unless the proposed design and construction is “not inconsistent with” the development consent. If a certifier does issue a construction certificate that has this kind of inconsistency, the construction certificate could be declared to be invalid by the Land and Environment Court.

This law has not changed.

However, a new law has also been introduced that allows the Land and Environment Court to declare a certificate (other than an occupation certificate) as invalid if the plans and specifications or standards specified in the certificate are “not consistent with” the development consent for the building work or subdivision work.

Commencement of new laws

The changes to building and subdivision certification are legally set to commence on 1 September 2018 (click here to see the commencement date in legislation).

However, the Department of Planning website says that building and subdivision obligations will commence in “late 2019” (click here to see the Department’s website).

Given that the Department’s website is updated regularly, it is possible that the commencement date for the changes could be pushed to the end of 2019. This would provide additional time for councils, certifiers and the construction industry to understand and prepare for the new requirements.

 

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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