Occupation Certificates and Written Directions Notices

Background

In March 2018 amendments were made to Part 6 of the EP&A Act to streamline building and subdivision certificates. Some of the changes to Part 6 commenced in September 2018, but the following changes were deferred until  December 2019:

• Removal of interim occupation certificates
• A new certificate for subdivision works, separating subdivision from construction works
• Powers for principal certifiers to issue directions to quickly act on non-compliant aspects of a development.

Update to the EP&A Act

As of 1 December 2019, any Development Approval (DA) or Complying Development Certificate (CDC) issued is subject to the new provisions of Part 6 of the EP&A Act, which includes:

Occupation Certificates

• The new OC provisions will remove the distinction in the former framework between interim and final OCs in favour of one certificate that covers multiple situations
• Interim’ and ‘final’ OCs can no longer be issued for development consents granted after that date
• An OC can be issued for either part of, or the whole of, a building, including parts of partially completed buildings. While the Act will simply call them all OCs it essentially means that the new types of OC are: ‘Partial OC’ and ‘Whole OC’. An OC may also be issued for ‘Part’ of a building such as when only a part of an existing building undergoes a change of use
• Where a Partial OC is issued the remaining works related to the consent must be completed within five years. The local council may enforce this by using new penalties for failing to complete the works within five years of issuance of Partial OC (this penalty may only be issued to the land owner).

Note: The changes will not apply to development consents or OCs issued before 1 December 2019, including uncommenced deferred commencement consents. Instead, those approvals will remain subject to former building and subdivision certificates (as in force immediately before the repeal of that Part).

Subdivision Works

• A construction certificate can no longer be used to certify ‘subdivision work’. A construction certificate will only now certify building work
• A Subdivision Works Certificates (SWC) only applies to development consents granted from 1 December 2019. Development consents granted prior to this date, including uncommenced deferred commencement consents, will require a construction certificate under the former EP&A Act provisions
• An SWC is different to a ‘subdivision certificate’ in that it certifies that proposed subdivision work that is completed in accordance with specified plans will comply with the requirements of the regulations. A subdivision certificate, however, authorises the registration of a plan of subdivision under Part 23 of the Conveyancing Act 1919. 
  
  

Written Directions Notice

• The new Written Directions Notice strengthens the powers of private principal certifiers by making certain compliance actions mandatory while providing a process to be followed
• Principal certifiers will no longer be able to issue a notice of intention to give an order
• A principal certifier must issue a Written Directions Notice in respect of non-compliances and direct the person responsible for the non-compliance to take specific action to prevent or remedy the non-compliance within a prescribed timeframe. 
  A non-compliance is where works have been carried out that do not accord with a development consent or complying development certificate, including any approved plans and development consent conditions. A non-compliance does not include things that need rectifying as part of a critical stage inspections (CSI). Instead, the current requirement for minor issues to be rectified before a CSI is passed will remain the same.
  
  

What does this new OC regime look like in practice (for houses)?

The Department has released further information on its website on these changes, including guidelines and a Written Direction Notice template.

More information can be found at the following:

Occupation Certificate Guidelines
Written Direction Notice Guidelines
Written Direction Notice template
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019
Environmental Planning and Assessment Amendment (Savings, Transitional and Other Provisions) Regulation 2017

To find out more, contact HIA’s Building Services team.

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