Posted on October 10, 2024 by Adriana Kleiss and Megan Hawley 7

Certifier Series: Does a building information certificate enable a certifier to issue an occupation certificate?

This is the first blog in our LTL in Focus: Certifier Series. The Certifier Series will cover a range of questions, issues and changes affecting both private and local council certifiers. 

A key function of certifiers is to issue occupation certificates (OCs). However, where an application for an OC relates to unauthorised building works, it can often be difficult to determine whether an OC can be lawfully issued. This is particularly the case where the works are the subject of a Building Information Certificate (BIC).

This blog addresses a key question that often arises for certifiers: does a BIC enable an OC to be issued? We also consider what the consequences may be where a BIC has been obtained but an OC cannot be issued.

A reference to unauthorised building work in this blog refers to building work carried out without development consent where consent is required, where the work is not carried out in accordance with the consent in force or has otherwise breached a provision of the Environmental Planning and Assessment Act 1979 (EPA Act) or regulations.

What is an OC?

An OC is required for the commencement of the occupation of the whole or any part of a new building, or the commencement of a change of use for the whole or any part of an existing building (EPA Act, s6.9(1)). It is an offence to occupy a building without an OC (EPA Act, s6.3(1)(c)).

Importantly, an OC must not be issued in the circumstances set out in s6.10 of the EPA Act and Part 3, Div 2 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 (DC Reg).

The key reasons why an OC cannot be issued are:

• there is no development consent in force for the building (EPA Act, s6.10(2)(a)), or
• the design and construction of the building is not consistent with the development consent (DC Reg, s42(3), or
• no construction certificate has been issued for building work (EPA Act, s6.10 (2(b), or
• a pre-condition to the issue of an OC contained in the development consent has not been satisfied, or
• the building is a hazard to the health and safety of occupants (DC Reg, s42(1))

What is a BIC?

A BIC is a certificate that the Council will not take specified action in relation to a building or part of a building (see ss6.22 – 6.26 of the EPA Act). A BIC can only be issued by a council. A private certifier cannot issue a BIC.

A BIC operates to prevent the Council:

‘(a) from making an order (or taking proceedings for the making of an order or injunction) under [the EPA Act] or the LG Act requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking civil proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, 

in relation to matters existing or occurring before the date of issue of the certificate.’

A BIC prevents a council from taking such action for a period of 7 years from the date of issue, ‘in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear’. It does not prevent a council from making a fire safety order, or from making a building product rectification order.

A BIC application is typically made when unauthorised building works have been carried out, as it is not possible to obtain a development consent or construction certificate for work that has already occurred.

However, importantly, a BIC does not operate as an approval. At its highest a BIC is akin to a certificate of non-action in respect of its contents: Gosling v Penrith City Council [2016] NSWLEC 1288 referring to First Australasian Holdings Pty Ltd v Poulos [2000] NSWCA 200 at [63].

Further, a BIC does not authorise the use of a building. If a building has been constructed without a development consent or not in accordance with a development consent in force, then it may be necessary to obtain a development consent for the future use of the building (Future Use Consent).

Does a BIC authorise an OC to be issued?

A BIC for building work does not authorise an OC to be issued for the building work subject of the BIC if the legislative requirements for the issue of an OC have not been met.

For example, an OC cannot be issued for a new building that was constructed without development consent even if a BIC has been issued for the building.

Similarly, if a new building has been constructed in such a way to make it inconsistent with the development consent in force for that building, then an OC cannot be issued even if a BIC has been obtained for the building.

If a certifier receives an application for an OC which does not comply with the legislative requirements for the issue of an OC, then the certifier must refuse the application, despite a BIC having been obtained.

It is not the role of a certifier to fix problems with a development through the certification process. A certifier should advise the person carrying out the development to seek town planning and/or legal advice if an OC cannot be issued for a new building.

Where a new building is being occupied prior to the issue of an OC where an OC is required, the principal certifier for the development may need to issue a written direction notice under s6.13 of the EPA Act in respect of the non-compliance.

What about a partial OC?

It is possible to obtain an OC for part of a new building (a partial OC).

However, an issue arises where it would not be possible to later obtain an OC for the whole of that building. This is because section 53 of the DC Reg provides that it is a condition of a partial OC that an OC must be obtained for the whole of the building within 5 years after the partial OC has been issued. This will not be possible if the whole of the building will not be able to satisfy the legislative requirements for the issue of an OC.

Unfortunately, the consequences of a failure to satisfy s53 of the DC Reg are not clear. The legislation does not say that if a whole OC is not obtained within 5 years then the partial OC will lapse or be revoked. Further, a breach of s53 is not an offence. However, if occupation of the whole of the building is commenced without a final OC, the council could take enforcement action. Again, there is no clear solution to this issue.

If an OC cannot be issued for the whole of the building because part of the building was constructed not in accordance with the relevant development consent, it may be necessary for the person carrying out the development to obtain a Future Use Consent. However, it is not clear from the terms of s6.10 of the EPA Act whether a Future Use Consent would enable a certifier to issue an OC for the building. In particular, it is not clear whether a Future Use Consent is a development consent ‘with respect to the building’ for the purposes of s6.10(2)(a).

What if a BIC has been obtained but an OC cannot be issued?

If an OC cannot be issued for a new building or part of a new building, then the person carrying out the development will commit an offence under s6.3(1)(c) of the EPA Act if it commences occupation of the building.

If a BIC is in force for the building, then the council will not be able to require the person to demolish, remove, alter or repair the building. However, technically the council could still issue the person with a penalty infringement notice or prosecute the person for the offence (which would likely result in a fine if the council is successful).

Further, a council may be able to issue a development control order in the form of a stop use order to prevent the ongoing use of the premises, despite a BIC being issued. This is because a BIC only prevents a council from requiring the building to be repaired, demolished, altered, added to or rebuilt.

The EPA Act does not provide a solution to this problem. A Future Use Consent could be obtained to authorise the ongoing use of the new building, however as noted above it is not clear whether a Future Use Consent enables a certifier to issue an OC for a new building.

Key Takeaways 

A BIC does not enable a certifier to issue an OC for a new building. If the legislative requirements for the issue of an OC are not met, then the certifier must refuse to issue an OC and advise the person carrying out the development to seek town planning and/or legal advice.

Where there is uncertainty as to whether an OC can be issued, the appropriate approval pathway for unauthorised building works should be considered on a case-by case basis. A principal certifier may need to seek their own legal advice to ensure that they are complying with their statutory and professional responsibilities.

If you require advice about your responsibilities as a certifier, please do not hesitate to contact Adriana Kleiss on 02 8235 9718 or Megan Hawley on 02 8235 9703.