Occupation Certificates – are critical – protect yourself

07/12/2018

When a person in NSW wants to build a house, townhouse or block of apartments, that person must seek approval to undertake the building works from the local certifying authority. That certifying authority is generally the local council or municipal body. The person seeks this approval by lodging a Development Application with the local council or municipal body. In some circumstances the approval can be granted by a private certifier.

As part of the approval process, the council checks that the proposed development complies with the planning rules for the local area.  It then sets out various conditions of the approval, which conditions must be complied with. These conditions are set out in a document called a Development Approval or Development Consent which the council provides to the owner who seeks to build the house.

Construction of the building must comply with pre-conditions as set out in Section 6.10 of the Environmental Planning and Assessment Act (EPA Act).  Section 6.10 provides that an Occupation Certificate of the building cannot be issued unless the pre-conditions in the Development Consent have been complied with.

What is an occupation certificate? Section 6.9 of the EPA Act provides that a new building cannot be occupied unless a document called an Occupation Certificate has been issued in relation to the building. An Occupation Certificate can (or should) only be issued if the residence complies with the Development Consent.

Who is responsible for issuing the Occupation Certificate? Certifiers (either Council or qualified Private Certifiers) are appointed before the building works are commenced. Private Certifiers are professionals who should check various documents to see whether a person who builds a residence complies with the Development Approval. The Private Certifiers will make various mandatory inspections of the building work during the project and obtain the necessary certificates from those who undertake work. The Certifiers are allowed to rely on certificates from sub-contractors or builders to say that the house complies with the building rules and the development consent. Once the Private Certifier is satisfied that he or she has all the necessary certificates certifying that the residence complies with the Development Consent the Private Certifier can issue the Occupation Certificate.

When one is having a new home built it is critical to take appropriate precaution to ensure you will obtain an Occupation Certificate at the conclusion of the build.  We see many cases when this has been completely ignored by the Owners entering into a Building Contract. Standard Building Contracts usually do not protect the home owner; mostly, there is no obligation on the Builder to provide an Occupation Certificate.  This leaves the owner in a very difficult position.

Similarly when one is purchasing a new home or apartment or possibly a newly built but pre-owned house or apartment one should ensure that an Occupation Certificate has issued to enable you as purchaser to occupy the property.

If there is no Occupation Certificate there can be significant complications as to the rights of the owner to occupy the property.

The critical time in considering the issue relating to an Occupation Certificate is initially at the time of entering into the Contract with the Builder or entering into an agreement to purchase the property.

Watson & Watson are specialists in building and construction law and can advise you on all aspects of building contracts. Watson & Watson have extensive experience in resolving building disputes whether you are an owner builder, builder, contractor or home owner. Please contact Richard Watson Accredited Specialist Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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