Occupation Certificate - Early Advice Critical Preferable before you sign Contract with Builder

11/08/2021

An Occupation Certificate is required for:

(a)    The commencement of the occupation or use of the whole or any part of a new building (be it a residential or commercial building/property).

(b)    The commencement of a change of building use for the whole or any part of an existing building.

Section 6.9(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

There are some exemptions to the requirement for an Occupation Certificate as referred to above for example the erection or change of use of an exempt development or development which does not otherwise require Development Consent.  There are a few other exceptions for example, one relating to Compliance Certificates which is an authorised alternative to an Occupation Certificate; buildings on behalf of the crown or otherwise as prescribed in regulations.  

Previously under Section 109M of the EPA Act before occupying a new building an Occupation Certificate was required unless (amongst other reasons):

(b)      For occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used. 

This was the provision that was utilised by many to resist any suggestion that a person was not entitled to occupy the building after 12 months after the date the building was first occupied or used.  However as from 28 February 2018 this exemption was removed and is now not available to those persons who use or occupy a building (residential or commercial) without an Occupation Certificate. 

The effect of the change on 28 February 2018 may be subject to debate where a person previously had the benefit of the exception which was applicable to February 2018.

In those circumstances it is critical that the Owner who wishes to occupy a building obtain the Occupation Certificate. 

It is critical if you are an owner that you ensure the Contract with the Builder is sufficient to ensure as best you can, that the Builder will provide all the necessary Certificates which will enable you to obtain an Occupation Certificate when the works are completed.

On many occasions, Owners have contacted us in circumstances where they do not have an Occupation Certificate and for one reason or another, do not have the Certificates required to obtain an Occupation Certificate and cannot easily obtain an Occupation Certificate.  In the past those persons may have had the benefit of the exemption of 109M(2)(b) of EPA Act which as we have indicated, was repealed on 28 February 2018. 

It was always important but is more important that you as an Owner consider your options as early as possible in relation to how to achieve your right to occupy the building.  The best starting point is prior to you as the Owner entering into the Contract with the Builder.

If it has not been dealt with adequately in the Contract with the Builder, there are often other possible options available.

As part of obtaining an Occupation Certificate Section 162A(4) of the EPA Regulation 2000 sets out the critical stages for inspections for building work:

(4)       In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifier is first appointed on or after 1 July 2004 must be inspected are…..

(b)       after excavation for, and prior to the placement of, any footings, and

(c)       prior to pouring any in-situ reinforced concrete building element, and

(d)       prior to covering of the framework for any floor, wall, roof or other building element, and

(e)       prior to covering waterproofing in any wet areas, and

(f)        prior to covering any stormwater drainage connections, and

(g)       after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

Regulation 162A(5) of the EPA Regulation 2000 sets out the occasions on which building work must be inspected in relation to a class 2, 3 or 4 building.

Do not ignore the obligations to obtain an Occupation Certificate.

Even if you believe there is no issue, you need to take appropriate steps at the first opportunity to ensure that you will be able to occupy your new home or other building.

There are other issues that may arise if you are unable to occupy your property for example, there may be insurance issues as many insurance policies require the property to be occupied (or there is a limited period that the property cannot be occupied), otherwise the owner will be in breach of the insurance policy.

At all stages in relation to the building process whether you are building your family home or other building, we suggest that at the outset, you obtain the appropriate legal advice from experienced building and construction lawyers.  At Watson & Watson Lawyers our highly experienced Building and Construction Solicitor can assist you in resolving any issues concerning building and construction or strata issues including obtaining of your Occupation Certificate.  We can provide advice to enable you to pre-empt any potential issues that may arise in obtaining your Occupation Certificate.  Please telephone Richard Watson Accredited Specialist Building and Construction or his Personal Assistant Shereen Da Gloria to discuss these important matters and seek appropriate timely advice.

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