The QPR Blog

I had a call recently, asking if I could help resolve a problem associated with the issue of an Occupation Certificate for a new home. Councils are often criticised for bureaucratic intransigence in planning matters, but this is a good example of regulations that exist to protect potential owners.

The Building Professionals Board (BPB) was established as a NSW Government Authority in 2007 to improve the quality of construction and subdivision in NSW through a system of accredited certifiers. The associated processes are designed to provide confidence that buildings and subdivisions meet national standards and building codes. BPB accredited certifiers must be insured, work to a Code of Conduct and complete training each year.

If you intend to renovate, demolish, build, develop or use land you should generally seek advice, from council or a building professional, on whether or not approvals might be required, and if so, what form these might take.
If your proposal is classified as exempt development, you will not require approval. If development approval is required, this may be satisfied by the issue of a Complying Development Certificate (for ‘routine work’ that complies with relevant controls under the Building Code of Australia) or a Development Application (DA).

If consent is granted for a DA, you will need a Construction Certificate, issued by council or a BPB accredited certifier, before you begin work. Commencement of construction without a Construction Certificate would be a breach of the EP&A Act, and a Construction Certificate cannot be issued after construction has commenced (s.109F(1A)). Further, without a Construction Certificate, an Occupation Certificate cannot be issued at the completion of the building work.

Giving all that a little more context, approval of a Development Application (development consent) indicates that the DA has satisfied the relevant planning regulations. The issue of a Construction Certificate confirms that construction plans and specifications comply with the relevant standards and the conditions of the development consent, and that any pre-development conditions have been met. The issue of an Occupation Certificate confirms that works were completed in accordance with the specifications provided in the Construction Certificate.

A Principal Certifying Authority (PCA), accredited by the BPB, is the only person or body who can issue an Occupation Certificate, and they must be appointed before work commences. The PCA acts on behalf of the owner, or a prospective owner, not the builder, inspecting work during construction to ensure that it is generally consistent with the approved plans and is fit to occupy having regard to required building standards.

In the matter that was brought to my attention, the PCA had failed an inspection prior to a concrete pour, because an area of the work was flooded at the time of inspection. In spite of the fact that a failure notice was issued, the builder continued with the pour, with the result that a critical inspection was effectively missed. In such cases, the NSW planning legislation prohibits the issue of an Occupation Certificate, with the result in the present case that the bank refused to release the final payment on the associated loan.

In situations like these, council comes under immense pressure to ‘bend the rules’. In some cases, the matter can be seemingly trivial, but this is never obvious, and by bending any rules council, and that means the general rate payer, essentially becomes liable for any failure that may arise in the future as a result.

This is not a happy situation for anyone involved. The lesson is to appreciate the importance of, and to ensure that your builder complies with, the relevant regulations, especially those involving inspections, throughout the build. Failure to comply with an early inspection requirement can mean that the final build can never be approved.

If a problem arises, deal with it immediately. Solutions, while perhaps inconvenient, generally exist. Don’t assume that issues can be resolved when the build is complete—sometimes the applicable legislation will make that impossible.

For further information, visit the Building Professional Board website. A good overview of the process is provided in the BPB Guide to Building Approvals Process.