I’ve received a couple of calls recently from residents who have discovered only when they came to sell their property, that all the relevant approvals were not in place.
There are several reasons why this may have happened. The most obvious, of course, is that the owners themselves had built a structure without the appropriate approval. The less obvious, perhaps, is that their conveyancing lawyer was not as thorough as they could have been at the time of purchase. A third possibility is that, unfortunately, some people are a little too casual about the need to ensure that structures on a property they purchase are covered by the required building approvals, only to discover when they come to sell that property that prospective buyers are not as relaxed about the situation.
In an earlier post (Building Approvals) I went through the building approvals process. The upshot of this was that, on completion of a correctly approved and constructed structure, the Principal Certifying Authority, usually council, will issue an Occupation Certificate. If a structure has not been the subject of development approval, or it has not been subjected to the required inspection schedule, an Occupation Certificate cannot be issued—ever. Most people proposing to buy a property, however, will want to see the Occupation Certificates for significant structures on that property.
It is important to appreciate that it is impossible to get retrospective development approval, and hence an Occupation Certificate, for an existing, unapproved structure. Apart from the legal impediments, it will not be possible to verify the integrity of a structure without the relevant inspections (which must necessarily be carried out during construction).
What can be done in such cases, however, is that council can issue a Building Certificate under Section 149D of the Environmental Planning & Assessment Act. A Building Certificate does not operate to give consent to the structure or its use, either retrospectively or prospectively. However, pursuant to Section 149E, a Building Certificate does allow an unauthorised structure to continue to exist to the extent that the owner is protected against any action being taken by the Council, specifically any requirement to demolish, alter or rebuild the structure, for a period of seven (7) years from the date of the Certificate. To this extent, a Building Certificate may be considered to ‘regularise’ such a development.
Before council will issue a Building Certificate, however, it must be satisfied that the building is at least structurally sound. To this end, the building will need to be certified by a suitably qualified person, generally an engineer, prior to the issue of a Building Certificate. Note that a Building Certificate is only valid for seven (7) years, so for peace of mind it’s a good plan to ensure that any Building Certificate and associated structural certification is current.
Typically, in the absence of development consent, or an Occupation Certificate, prospective buyers (and/or their financial institution) will require a Building Certificate so that they can be assured that the building they are buying will not be the subject of subsequent action (e.g. demolition order) by council.
Not every structure, however, requires planning approval. The Exempt & Complying Development Codes State Environmental Planning Policy lists developments that can be undertaken without formal approval, and thus do not require any level of certification. Nonetheless, note that for a proposed structure to be exempt development, all of the development standards specified in the Exempt & Complying Development Codes SEPP must be met.
In any case, it’s a good idea to ensure that you have the required paperwork in hand well before placing your property on the market. Some buyers are more relaxed about this than others, but it’s better to be safe than sorry.
Pete Harrison ~ The QPR Blog cross-reference
31 March 2020 @ 23:27
[…] Building Certificates […]
Comment from Steph
22 February 2021 @ 21:57
Interesting post, Pete. As it happens, we find ourselves in this very position. We are looking to purchase a home which is only 10 years old, constructed by a reputably builder, but which does not have an occupation certificate… The sellers are madly trying to get a building certificate issued, but from your post above, am I to understand that it will need to be re-issued every seven years by the council?
Reply from Pete
23 February 2021 @ 00:57
Yes, as things currently stand, a Building Certificate is only valid for 7 years and must then be renewed. It is basically a certification that the building in question is structurally sound, but since the inspection is somewhat limited, compared to the more thorough building inspection process that would lead to the issue of an Occupation Certificate, that certification has a time limit. After 7 years, the structure must be inspected again to ensure that it is still structurally sound.
Mind you, if you read between the lines in the building code, you will find that the average fully compliant building is really only certified to be structurally sound for 50 years in any case, if that makes you feel any better.
Reply from Steph
24 February 2021 @ 00:49
Many thanks. Appreciate your advice and we will definitely keep all of that in mind going forward.