Environmental Planning and Assessment Regulation 2000
Historical version for 7 June 2011 to 30 June 2011 (accessed 4 June 2020 at 06:30) Current version
Part 8 Division 2
Division 2 Construction certificates
139   Applications for construction certificates
(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.
(1A)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.
(2)  Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.
139A   Withdrawal of application for construction certificate
(1)  An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.
(2)  The certifying authority may (but is not required to) refund to the applicant the whole or any part of the application fee paid in connection with an application that has been withdrawn.
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 or a planning agreement 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.
(3)  A planning authority that is a party to a planning agreement may, at the request of an applicant for a construction certificate that is made for the purposes of obtaining information required under this clause, certify that specified requirements of the agreement have been complied with.
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 2 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 or fire link conversion 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, and
(f)  the record of any inspection made for the purposes of clause 143B in relation to the issue of the construction certificate.
Note.
 See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.
(2A)  A copy of a record of inspection referred to in subclause (2) (f) need not be given to a consent authority or council that carried out the inspection.
(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)  the fire protection and structural capacity of the building will be appropriate to its new use, and
(b)  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, 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.
143A   Special requirements for construction certificates for residential flat development
(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).
(2)  A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.
(3)  If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:
(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or
(b)  to improve the thermal performance of the building.
143B   Restriction on issue of certain construction certificates without inspection
A certifying authority must not issue a construction certificate for development on a site which affects an existing building unless a council, a consent authority or an accredited certifier has carried out an inspection of the building.
143C   Record of site inspections
(1)  A council, consent authority or accredited certifier must make a record of each inspection carried out by the council, consent authority or accredited certifier for the purposes of clause 143B.
(2)  Any council, consent authority or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the construction certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.
(3)  The record must include the following:
(a)  the registered number of the relevant development application,
(b)  the address of the property at which the inspection was carried out,
(c)  the type of inspection,
(d)  the date on which the inspection was carried out,
(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,
(f)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,
(g)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,
(h)  details of the current fire safety measures in the existing building the subject of the inspection,
(i)  details as to whether or not the plans and specifications accompanying the application for the construction certificate adequately and accurately depict the condition of the existing building the subject of the inspection,
(j)  details as to whether or not any building or subdivision work authorised by the relevant development consent has commenced on the site.
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)  Within 7 days 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.
144A   Compliance certificate required for certain fire safety aspects of building work
(1)  A certifying authority must not issue a construction certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:
(a)  a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,
(b)  a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.
(2)  This clause applies only to building work in respect of:
(a)  a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, and
(b)  any building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment, as defined in the Building Code of Australia, 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,
that involves an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of that Code.
(3)    (Repealed)
(4)  A fire safety engineer may issue a written report under subclause (1) (b) in respect of an alternative solution prepared by the engineer.
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:
(a1)  the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and
(a)  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, and
(b)  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 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 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 or levy 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.
146A   Restriction on issue of construction certificates without compliance with planning agreement
If a planning agreement specifies requirements of the agreement that are required to be complied with before a construction certificate for building work or subdivision work is issued, a certifying authority must not issue a construction certificate for the work unless the authority is satisfied that those requirements have been complied with.
147   Form of construction certificate
(cf clause 79I of EP&A Regulation 1994)
(1)  A construction certificate must contain the following:
(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,
(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,
(f)  the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.
(1A)  A construction certificate may indicate different classifications for different parts of the same building.
(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)  a class 1a or class 10 building within the meaning of clause 167, or
(b)  a construction certificate that relates only to fire link conversion.
Note.
 The documents that must be issued with and accompany a construction certificate that relates only to fire link conversion are set out in clause 168A.
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.
(3)  As soon as practicable after granting an application to modify development in respect of which an application for a construction certificate has previously been referred to the Fire Commissioner under clause 144, but for which (in its modified form) an application for a construction certificate for a building would no longer be required to be so referred, a certifying authority must notify the Fire Commissioner that the building to which the construction certificate relates is no longer a building to which clause 144 applies.