“Interim” Occupation Certificates

Today’s article is in response to a question about the availability of “interim” occupation certificates following the commencement of legislation on 1 December 2019.

The question asked is:

Can I still obtain an interim occupation certificate after 1 December 2019?

The answer is yes. However, these certificates are not known as “interim occupation certificates” going forward. Instead, they are simply known as “occupation certificates”.

This is because on 1 December 2019 Part 6 (the building and subdivision certification provisions) of the Environmental Planning and Assessment Act 1979 (EPA Act) came into force. The commencement of Part 6 removed the concepts of “interim occupation certificates” and “final occupation certificates” for development consents issued from that date.

Development Consents issued from 1 December 2019

Part 6 of the EPA Act applies to development consents granted from 1 December 2019. Relevantly, section 6.10 of the EPA Act states:

6.10 Restrictions on issue of occupation certificates

(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.

(2) An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building (or part of a new building) unless—

(a) a development consent is in force with respect to the building (or part of the building), and

(b) in the case of a building erected pursuant to a development consent (other than a complying development certificate), a construction certificate has been issued with respect to the plans and specifications for the building (or part of the building), and

(c) the completed building (or part of the building) is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(3) An occupation certificate must not be issued to authorise a person to commence a new use of a building (or of part of a building) resulting from a change of building use for an existing building unless—

(a) a development consent is in force with respect to the change of building use, and

(b) the building (or part of the building) is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

Section 6.10 of the EPA Act is generally consistent with the previous section 109H under Part 4A of the EPA Act. Section 6.10 continues to allow for an occupation certificate to be issued for part of a partially completed building. The major change is that section 6.10 facilitates multiple occupation certificates being issued without the need for terms like “interim occupation certificate” and “final occupation certificate”.

In addition, the Environmental Planning and Assessment Regulation 2000 now also requires that the first occupation certificate issued for a partially completed building is subject to a condition requiring an occupation certificate be obtained for the whole of the building within 5 years of the first occupation certificate. This is to ensure that a building is not occupied indefinitely under one (or more) occupation certificates, and all conditions of the relevant development consent are satisfied in a timely manner.

Development Consents issued before 1 December 2019

Development consents granted before 1 December 2019 are still subject to the previous provisions under Part 4A of the EPA Act. These provisions continue to use the old language of “interim occupation certificates” and “final occupation certificates”.

 

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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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