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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Historical version for 1 March 2013 to 7 March 2013 (accessed 8 December 2019 at 06:21) Current version
Part 8 Division 3
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.
(2A)  In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate or in BASIX certificates to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.
(2B)  The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.
(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.
149A   Certifying authority may require additional information
(1)  A certifying authority may require the applicant for an occupation certificate to give the certifying authority any additional information concerning the building to which the application relates (including any work that may have been carried out on the building) or a planning agreement that is essential to the authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for an occupation certificate.
(3)  A planning authority that is a party to a planning agreement may, at the request of an applicant for an occupation 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.
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 2 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,
(d)  a copy of the record required to be made of each of the following:
(i)  all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,
(ii)  any inspection carried out under clause 162A (4A) (a),
(iii)  any missed inspection to which clause 162C applies,
(e)  a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation 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)  For the purposes of section 109H (5) (d) and (6) (c) of the Act, a final occupation certificate authorising a person:
(a)  to commence occupation or use of a new building, or
(b)  to commence a change of use for an existing building,
must not be issued unless a final fire safety certificate has been issued for the building.
(1A)  If the need for the final occupation certificate arises solely from fire link conversion, the final fire safety certificate referred to in subclause (1) need only deal with the new fire alarm communication link.
(1B)  If the need for the final occupation certificate arises solely from the installation of a fire sprinkler system that is required to be installed under Division 7B of Part 9 of this Regulation, the final fire safety certificate referred to in subclause (1) need only deal with the new fire sprinkler system.
(2)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of use for part of an existing building,
must not be issued unless 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 or to a temporary structure.
(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.
153A   Compliance certificate required for certain fire safety aspects of building work
(1)  A certifying authority must not issue an occupation certificate for a building in respect of which a compliance certificate or report is required under clause 130 (2A) or 144A (1) (the first certificate or report) 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) (i) of the Act that certifies that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and complies with that alternative solution,
(b)  a written report that includes a statement that the building work relating to the alternative solution that was the subject of the first certificate or report has been completed and is consistent with that alternative solution.
(2)  A fire safety engineer may issue a written report under subclause (1) (b), even if the engineer also issued a report under clause 130 (2A) (b) or 144A (1) (b) in respect of the work.
154   Health, safety, compliance with development consent and other issues: section 109H
(cf clause 79O of EP&A Regulation 1994)
(1)  For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building for use for part of an existing building,
must not be issued unless the building will not constitute a hazard to the health or safety of the occupants of the building.
(1A)  For the purposes of section 109H (5) (d) of the Act, a final occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue must not be issued unless:
(a)  the certifying authority has inspected the temporary structure, and
(b)  the temporary structure is suitable for its proposed use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.
(1B)  An occupation certificate authorising a person to commence occupation or use of a new building, or a partially completed new building, must not be issued unless the design and construction of the new building, or any part of the new building that is completed, are not inconsistent with the development consent in force with respect to the new building. This subclause applies only if the development consent (excluding any construction certificate forming part of the consent) was issued on or after 1 March 2013.
Note.
 A complying development certificate is a form of development consent.
(2)  In this clause:
new building has the same meaning as it has in section 109H of the Act.
154A   Special requirements for occupation 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 an occupation certificate to authorise a person to commence occupation or use of 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 residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, 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.
154B   Fulfilment of BASIX commitments
(1)  This clause applies to BASIX affected development in respect of which, and BASIX optional development in respect of which, a relevant BASIX certificate requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.
(2)  A certifying authority must not issue an occupation certificate (whether interim or final) for any building resulting from, or any building that becomes a BASIX affected building because of, BASIX affected development or BASIX optional development to which this clause applies, or for any part of such a building, unless each of the commitments whose fulfilment it is required to monitor in relation to the building or part has been fulfilled.
(3)  For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.
154C   BASIX completion receipt
(1A)  This clause applies to BASIX affected development in respect of which one or more relevant BASIX certificates require a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.
(1)  Before issuing a final occupation certificate for a building the subject of development to which this clause applies, or for part of such a building, the certifying authority must apply to the Director-General for a BASIX completion receipt with respect to that building or part.
(2)  An application for a BASIX completion receipt must be made in the manner notified in writing to certifying authorities by the Director-General and must contain the following information:
(a)  the number of each relevant BASIX certificate for the building or part of a building,
(b)  the postcode of the address of the building,
(c)  the date of the final inspection,
(d)  such other information (if any) as the Director-General may determine and is notified in writing to certifying authorities.
(3)  The Director-General may issue a BASIX completion receipt:
(a)  by means of a computerised system, as approved from time to time by the Director-General, being a system to which certifying authorities are given on-line access, whether over the internet or otherwise, or
(b)  by such other means as the Director-General may approve from time to time.
(4)  A BASIX completion receipt is to confirm that the information required to be provided by a certifying authority under this clause has been provided.
(5)  A BASIX completion receipt is to be in such form, and contain such other information, as the Director-General may approve from time to time.
155   Form of occupation certificate
(cf clause 79P of EP&A Regulation 1994)
(1)  An occupation 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 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)  Except as provided by subclause (3) or (4), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.
(3)  If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A.
(4)  If the building is a temporary structure, subclauses (1) (e) (v) and (2) do not apply.
Note.
 The only circumstance in which the occupation or use of a temporary structure requires an occupation certificate is when the temporary structure is to be used as an entertainment venue.
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 following are prescribed circumstances:
(a)  the fact that a building is a class 1a or class 10 building for which a construction certificate or complying development certificate was issued before 1 March 2004 (being the date on which Schedule 2.1 [32] to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 commenced),
(b)  the fact that the building is a temporary structure (other than a temporary structure that is an entertainment venue).
(2)  A person who is prescribed for the purposes of section 88 (2) (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.