Changes to Certifiers’ compliance powers and new provisions for CC’s and OC’s

The Environmental Planning & Assessment Act 1979 is a legislation that provides the framework for the use of land in New South Wales.

30 August, 2019
Part 6 provisions of the EP&A Act to come into effect 1 December 2019

The Environmental Planning & Assessment Act 1979 is a legislation that provides the framework for the use of land in New South Wales. It sets out the laws regarding subdivisions, building, demolition and general changes to the existing built and natural environment.

In 2015, former Treasury Secretary Michael Lambert identified areas of this legislation that needed to be reviewed. He put forward recommendations for reform, most of which came into effect in March of 2018.

Part 6 of this legislation specifically looks at the requirements for building and subdivision certification. Changes to this section looked to simplify certifier accredited legislation as well as the planning system. Though scheduled for a September 2018 start, it’s now been revealed that these changes will come into effect on 1 December 2019, allowing for the Department of Planning, Industry and Environment to spend more time preparing industry stakeholders for the reform.

The new occupation certificate provisions

From 1 December 2019:

  • the new OC provisions will remove the distinction in the former framework between interim and final OCs in favour ofone certificate which covers multiple situations
  • ‘interim’ and ‘final’ OCs can no longer be issuedfor development consents granted after this date
  • an OC can be issued for either ‘part of’ or ‘the whole of a building’, including parts of partially completed buildings. To ensure that a building is not occupied indefinitely under a partial OC issued for part of a partially completed new building, the Regulation now requires that a further OC for the whole building be obtained within five (5) years of the partial OC being issued.

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).

The new direction powers for Certifiers

From 1 December 2019:

  •    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
  • private principal certifiers will no longer be able to issue a notice of intention to give an order
  • a private principal certifier must issue a written directions notice in respect of non-compliancesand direct the person responsible for the non-compliance to take specific action to prevent or remedy the non-compliance within two (2) business days
  • atemplate for a written directions notice (with all required content/information) will be made available on the Department of Planning, Industry and Environment’s website. 

The new subdivision works certificate (SWC)

From 1 December 2019:

  • a construction certificate can no longer be used to certify ‘subdivision work’. A construction certificatewill only now certify building work
  • a SWC only applies to development consents granted from this date.

Development consents granted prior to this date, including uncommenced deferred commencement consents, will require a construction certificate under the former EP&A Act provisions

  • a SWC is different to a ‘subdivision certificate’.A SWC certifies that proposed subdivision work that is completed in accordance with specified plans will comply with the requirements of the regulations. A subdivision certificate authorises the registration of a plan of subdivision under Part 23 of the Conveyancing Act 1919.
  • SWC’s do not apply to CDC’s and some crown developments

These changes are expected to improve stringent building and subdivision regulations by streamlining readability, usability and availability of information. Until then, it’s business as usual with building provisions from 1 March 2018 still in force.

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