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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Historical version for 15 July 2001 to 13 December 2001 (accessed 28 January 2020 at 00:25) Current version
Part 8
Part 8 Certification of development
Division 1 Compliance certificates
138   Compliance certificates
(cf clause 79 of EP&A Regulation 1994)
(1)  A compliance certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number,
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  a description of the development being carried out,
(d)  the registered number and date of issue of any relevant development consent or complying development certificate,
(e)  the address of the land on which the development is being carried out,
(f)  the date of the certificate,
(g)  a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected,
(h)  a statement, signed by or on behalf of the certifying authority, as to the matters in respect of which the certificate is given.
Note.
 Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given.
(2)  A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given.
(3)  Within 7 days after the date on which it issues a compliance certificate, a certifying authority must cause a copy of the certificate to be given to the consent authority and to the council.
Division 2 Construction certificates
139   How must an application for a construction certificate be made?
(cf clause 79A of EP&A Regulation 1994)
(1)  An application for a construction certificate:
(a)  must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and
(b)  if the certifying authority so requires, must be in the form approved by that authority, and
(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(2)  Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.
140   Certifying authority may require additional information
(cf clause 79B of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a construction certificate.
141   Certifying authority to supply application form for construction certificates
(cf clause 79C of EP&A Regulation 1994)
If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
142   Procedure for determining application for construction certificate
(cf clause 79D of EP&A Regulation 1994)
(1)  The determination of an application for a construction certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,
(d)  if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188:
(i)  the reasons for the conditions, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against any such conditions.
(2)  The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 7 days after the date of the determination, copies of:
(a)  the determination, together with the application to which it relates, and
(b)  any construction certificate issued as a result of the determination, and
(c)  any plans and specifications in relation to which such a construction certificate has been issued, and
(d)  any fire safety schedule attached to such a construction certificate, and
(e)  any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140.
Note.
 See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.
(3)  In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C (1) (b) of the Act.
143   Fire protection and structural capacity
(cf clause 79E of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work under a development consent that authorises a change of building use unless:
(a)  it is satisfied that the fire protection and structural capacity of the building will be appropriate to its new use, and
(b)  it is satisfied that the building will comply with such of the Category 1 fire safety provisions as are applicable to the new use,
assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(2)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
(3)  In the case of building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed, a certifying authority must not issue a construction certificate for the work unless it is satisfied that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced, assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(4)  This clause does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.
144   Referral of certain plans and specifications to New South Wales Fire Brigades
(cf clause 79F of EP&A Regulation 1994)
(1)  This clause applies to:
(a)  a class 9a building that is proposed to have a total floor area of 2,000 square metres or more, or
(b)  a building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment with a total floor area of more than 2,000 square metres, or
(ii)  a total floor area of more than 6,000 square metres,
where:
(c)  the building is the subject of an application for erection, rebuilding, alteration, enlargement or extension, and
(d)  the plans and specifications for the erection, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions.
(2)  As soon as practicable after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner:
(a)  a copy of the application, and
(b)  a copy of the plans and specifications for the building, and
(c)  details of the performance requirements that the alternative solution is intended to meet, and
(d)  details of the assessment methods to be used to establish compliance with those performance requirements,
which may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission.
(3)  The Fire Commissioner must furnish the certifying authority with an initial fire safety report for the building.
(4)  An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates.
(5)  The certifying authority must not issue a construction certificate for a building to which this clause applies unless:
(a)  it has received an initial fire safety report for the building and has taken the report into consideration, or
(b)  at least 23 days have elapsed since the plans and specifications were forwarded to the Fire Commissioner but no such report has been received by the certifying authority.
(6)  If the certifying authority does not adopt any recommendation in an initial fire safety report:
(a)  because the report had not been received when the construction certificate was issued, or
(b)  because the certifying authority does not agree with the recommendation,
the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation.
(7)  If the certifying authority adopts any condition recommended by an initial fire safety report:
(a)  it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included.
(8)  Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with:
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
(9)  In this clause:
initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2):
(a)  that the alternative solution will meet such of the performance requirements as it is intended to meet, and
(b)  that the fire hydrants in the proposed fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
145   Compliance with development consent and Building Code of Australia
(cf clause 79G of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:
(a)  that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,
(b)  that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).
(2)  A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.
(3)  Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
146   Compliance with conditions of development consent
(cf clause 79H of EP&A Regulation 1994)
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with:
(a)  each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act),
(b)  each condition requiring the payment of a monetary contribution before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act),
(c)  each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
147   Form of construction certificate
(cf clause 79I of EP&A Regulation 1994)
(1)  A construction certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  the registered number and date of issue of any relevant development consent,
(d)  the date of the certificate,
(e)  a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act.
(2)  A construction certificate for a building must be accompanied by a fire safety schedule for the building.
(3)  Subclause (2) does not apply to a class 1a or class 10 building within the meaning of clause 167.
148   Modification of construction certificate
(cf clause 79IA of EP&A Regulation 1994)
(1)  A person who has made an application for a construction certificate and a person having the benefit of a construction certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
Division 3 Occupation certificates
149   Applications for occupation certificates
(cf clause 79J of EP&A Regulation 1994)
(1)  An application for an occupation certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,
(c)  the address, and formal particulars of title, of the land on which the building to which the application relates is situated,
(d)  the type of occupation certificate applied for (that is, interim or final),
(e)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a copy of the relevant development consent or complying development certificate,
(b)  a copy of any relevant construction certificate,
(c)  a copy of any relevant fire safety certificate,
(d)  a copy of any relevant compliance certificate.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.
150   Certifying authorities to supply application form for occupation certificates
(cf clause 79K of EP&A Regulation 1994)
If a certifying authority requires an application for an occupation certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
151   Procedure for determining application for occupation certificate
(cf clause 79L of EP&A Regulation 1994)
(1)  The determination of an application for an occupation certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined, and
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 7 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if an occupation certificate was issued, a copy of the certificate.
152   Reports of Fire Commissioner: section 109H
(cf clause 79M of EP&A Regulation 1994)
(1)  This clause applies to a building to which clause 144 applies.
(2)  Unless it has already refused such an application, a certifying authority must request the Fire Commissioner to furnish it with a final fire safety report for a building as soon as practicable after receiving an application for an occupation certificate for the building.
(3)  If it refuses the application after making such a request but before receiving a final fire safety report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.
(4)  Unless it has received a notice referred to in subclause (3), the Fire Commissioner must furnish the certifying authority with a final fire safety report for the building within 7 days after receiving a request for the report.
(5)  The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any final fire safety report for the building that has been furnished to it within the 7-day period.
(6)  In this clause:
final fire safety report for a building means a written report specifying whether or not the Fire Commissioner is satisfied:
(a)  that the building complies with the Category 2 fire safety provisions, and
(b)  that the fire hydrants in the fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
153   Fire safety certificates: section 109H
(cf clause 79N of EP&A Regulation 1994)
(1)  In the case of a final occupation certificate to authorise a person:
(a)  to commence occupation or use of a new building, or
(b)  to commence a change of building use for an existing building,
a certifying authority must be satisfied that a final fire safety certificate has been issued for the building.
(2)  In the case of an interim occupation certificate to authorise a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building use for part of an existing building,
a certifying authority must be satisfied that a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.
(3)  This clause does not apply to a class 1a or class 10 building within the meaning of clause 167.
(4)  In this clause:
interim fire safety certificate has the same meaning as it has in Part 9.
final fire safety certificate has the same meaning as it has in Part 9.
new building has the same meaning as it has in section 109H of the Act.
154   Health and safety: section 109H
(cf clause 79O of EP&A Regulation 1994)
(1)  In the case of an interim occupation certificate to authorise a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building use for part of an existing building,
a certifying authority must be satisfied that the building will not constitute a hazard to the health or safety of the occupants of the building.
(2)  In this clause, new building has the same meaning as it has in section 109H of the Act.
155   Form of occupation certificate
(cf clause 79P of EP&A Regulation 1994)
(1)  An occupation certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  the date of the certificate,
(d)  indicate the type of certificate being issued (that is, interim or final),
(e)  a statement to the effect that:
(i)  the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and
(ii)  a current development consent or complying development certificate is in force for the building, and
(iii)  if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and
(iv)  the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(v)  a fire safety certificate has been issued for the building, and
(vi)  a report from the Fire Commissioner has been considered (if required).
(2)  The certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.
156   Occupation and use of new buildings: section 109M (2)
(cf clause 79Q of EP&A Regulation 1994)
(1)  For the purposes of section 109M (2) (c) of the Act, the fact that a building is a class 1a or class 10 building is a prescribed circumstance.
(2)  A person who is prescribed for the purposes of section 116G of the Act (as referred to in section 116B (a) of the Act) in relation to Crown building work involving the erection of a new building is prescribed for the purposes of section 109M (2) (d) of the Act in relation to that building.
Note.
 Section 109M of the Act prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
Section 109M (2) (c) provides for the disapplication of that section in circumstances prescribed by the regulations. Subclause (1) of this clause prescribes such circumstances.
Section 109M (2) (d) provides for the disapplication of that section in the case of buildings erected by or on behalf of the Crown or by or on behalf of prescribed persons. Subclause (2) of this clause prescribes such persons.
Division 4 Subdivision certificates
157   Applications for subdivision certificates
(cf clause 79R of EP&A Regulation 1994)
(1)  An application for a subdivision certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  the address, and formal particulars of title, of the land to which the application relates,
(c)  if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,
(d)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a plan of subdivision,
(b)  a copy of the relevant development consent or complying development certificate,
(c)  a copy of any relevant construction certificate,
(d)  a copy of detailed subdivision engineering plans,
(e)  for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,
(f)  evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,
(g)  a certificate of compliance from the relevant water supply authority, where relevant,
(h)  if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,
(i)  for subdivision involving subdivision work, evidence that:
(i)  the work has been completed, or
(ii)  agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or
(iii)  agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.
Note.
 See section 109O of the Act and clause 161 which provide that a requirement for a consent authority to be satisfied as to certain matters may be met if a certifying authority is satisfied as to those matters.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  The plan of subdivision to which the application relates must be accompanied by a certificate on the plan in the relevant form required by the regulations in force under the Surveyors Act 1929.
(5)  Immediately after it receives an application for a subdivision certificate, the certifying authority must endorse the application with the date of its receipt.
158   Certifying authority may require additional information
(cf clause 79S of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a subdivision certificate to give the certifying authority any additional information concerning the proposed subdivision that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a subdivision certificate.
159   Certifying authorities to supply application form for subdivision certificates
(cf clause 79T of EP&A Regulation 1994)
If a certifying authority requires an application for a subdivision certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
160   Procedure for determining application for subdivision certificate
(cf clause 79U of EP&A Regulation 1994)
(1)  The determination of an application for a subdivision certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal,
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 7 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if a subdivision certificate was issued, a copy of the endorsed plan of subdivision.
Note.
 The form of the subdivision certificate is regulated under the Conveyancing Act 1919.
Division 5 General
161   Certifying authorities may be satisfied as to certain matters: section 109O
(cf clause 79V of EP&A Regulation 1994)
(1)  This clause applies to the following matters:
(a)  any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:
(i)  earthwork,
(ii)  road work, including road pavement and road finishing,
(iii)  stormwater drainage work,
(iv)  landscaping work,
(v)  erosion and sedimentation control work,
(vi)  excavation work,
(vii)  mechanical work,
(viii)  structural work,
(ix)  hydraulic work,
(x)  work associated with driveways and parking bays, including road pavement and road finishing,
(b)  any matter that relates to the external finish of a building.
(2)  Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.
162   Consent authority to be notified of replacement principal certifying authority
(cf clause 79W of EP&A Regulation 1994)
A replacement principal certifying authority must ensure that notice of his or her appointment as such, together with the relevant accreditation body’s approval of the appointment, is given to the consent authority within 2 days of the appointment.
163   Notice to allow inspection
(cf clause 79X of EP&A Regulation 1994)
For the purpose of ensuring that it has an opportunity to inspect building work before it is covered, a certifying authority may require that specified work not be covered unless it has been given such notice of the proposal to cover the work (not exceeding 48 hours) as the authority may require.
164   No need for duplicate notices
(cf clause 79Y of EP&A Regulation 1994)
Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.