On 1 March 2013, the new clause 154(1B) was inserted into the Environmental Planning and Assessment Regulation 2000 increasing scrutiny on the issue of occupation certificates.

What has changed?

As of 1 March 2013:

  1. An occupation certificate (whether interim or final) must not be issued unless the design and construction of a new building, or any part of a new building that is completed, is consistent with the development consent in force.
  2. This applies to development consents issued on or after 1 March 2013 (excluding any construction certificate forming part of the consent).
  3. Complying development certificates are specifically included as development consents in this amendment.

This makes the existing obligation of certifying authorities to check for compliance with any conditions attached to development consents before issuing an occupation certificate more onerous by requiring them to be satisfied that works are consistent with the development consent as a whole.

The amendment increases the legal risk of challenge and provides another point on which the occupation of a new development may be considered unlawful.

This amendment marks the early stages of a ‘work in process’ broader overhaul of the NSW Planning Legislation, stay tuned for further updates in this space.

You should also remember that the ‘Premises Standards’ disability access provisions under the Building Code of Australia, which came into force on 1 May 2011, are triggered by an application for a construction certificate, complying development certificate or occupation certificate. These standards require access to, and use of, buildings for people with a disability by a continuous path of travel to a new building and to a building that contains new parts, permitting access to both the building and the new part.