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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Current version for 13 September 2019 to date (accessed 20 September 2019 at 15:29)
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)  If a request has been made to the Fire Commissioner under this clause and no notice of the refusal of the application has been received by him or her, the Fire Commissioner may furnish the certifying authority with a final fire safety report for the building.
(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 10 days after the Fire Commissioner receives the request for the report.
(5A)  If the Fire Commissioner furnished a report for a building under clause 152A, the Fire Commissioner is not required to also prepare a separate report under this clause.
(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 work complies with any alternative solution in respect of a Category 2 fire safety provision that was the subject of the construction certificate, and
(b)  that all of the fire hydrants in the fire hydrant system will be accessible for use by Fire and Rescue NSW, and
(c)  that all of the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by Fire and Rescue NSW.
152A   Reports of the Fire Commissioner for class 2 or 3 buildings containing certain fire safety systems: section 109H
(1)  A certifying authority must request the Fire Commissioner to furnish it with a fire safety system report as soon as practicable after receiving any application for an occupation certificate for a class 2 or 3 building for building work, as defined in the Building Code of Australia, that involved installing, extending or modifying a relevant fire safety system in the building.
(2)  The certifying authority is not required to make such a request—
(a)  if it has already refused such an application, or
(b)  if clause 144 applies to the building work and the Fire Commissioner has furnished a report for the building under clause 152.
(3)  If the certifying authority refuses the application after making such a request but before receiving a fire safety system report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.
(4)  If a request has been made to the Fire Commissioner under this clause and no notice of the refusal of the application has been received from the certifying authority, the Fire Commissioner may furnish the certifying authority with a fire safety system report for the building.
(5)  The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any fire safety system report for the building that has been furnished to it within 10 days after the Fire Commissioner receives the request for the report.
(6)  A fire safety system report must be in writing and must specify whether or not the Fire Commissioner is satisfied that the relevant fire safety system is capable of performing to at least the standard in the current fire safety schedule for the building.
(7)  In this clause—
relevant fire safety system means any of the following—
(a)  a hydraulic fire safety system within the meaning of clause 165,
(b)  a fire detection and alarm system,
(c)  a mechanical ducted smoke control system.
152B   Alternative solution report must be considered before issuing occupation certificate
A certifying authority must not issue an occupation certificate for a building for which building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement that was carried out unless—
(a)  the certifying authority is satisfied that the relevant building work was constructed or installed in accordance with the alternative solution report that accompanied the complying development certificate or construction certificate, if such a certificate was required by clause 130 or 144A, and
(b)  if a fire safety engineer was required by clause 130 or 144A to be involved in the preparation of the alternative solution report—the certifying authority has obtained a compliance certificate or written report prepared by a fire safety engineer 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.
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 (if a fire safety schedule is required under Part 9).
(1A)    (Repealed)
(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   (Repealed)
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 apartment development
(1)  This clause applies to residential apartment development for which the development application was required to be accompanied by a statement by 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 the development unless the certifying authority has received the statement by the qualified designer verifying that the 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.
(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 Planning Secretary 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 Planning Secretary 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 Planning Secretary may determine and is notified in writing to certifying authorities.
(3)  The Planning Secretary may issue a BASIX completion receipt—
(a)  by means of a computerised system, as approved from time to time by the Planning Secretary, 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 Planning Secretary 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 Planning Secretary may approve from time to time.
154D   Lighting affecting observing conditions at Siding Spring Observatory
(1)  For the purposes of section 109H of the Act, a certifying authority for complying development must not issue an occupation certificate (whether interim or final) for a dwelling house, dual occupancy or secondary dwelling on land in the local government area of—
(a)  Coonamble, City of Dubbo, Gilgandra or Warrumbungle Shire, if any dwelling in the dwelling house, dual occupancy or secondary dwelling has an outside light fitting other than a shielded light fitting, or
(b)  Coonamble, Gilgandra or Warrumbungle Shire, if any dwelling in the dwelling house, dual occupancy or secondary dwelling has more than 7 shielded outside light fittings or more than 5 such light fittings that are not automatic light fittings.
(2)  In this clause—
automatic light fitting means a light fitting that is activated by a sensor and switches off automatically after a period of time.
dwelling house, dual occupancy and secondary dwelling have the same meanings as they have in the Standard Instrument.
outside light fitting means a light fitting that is attached or fixed outside, including on the exterior of, a building.
shielded light fitting means a light fitting that does not permit light to shine above the horizontal plane.
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 (if a fire safety schedule is required under Part 9), and
(vi)  a report from the Fire Commissioner has been considered (if required).
(f)  the following details of any alternative solution report about the building work involved that is required for the purposes of either clause 130 (2A) or 144A (1)—
(i)  the title of the report,
(ii)  the date on which the report was made,
(iii)  the reference number and version number of the report,
(iv)  the name of the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared,
(v)  if the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared is an accredited certifier—the accreditation number of that practitioner.
(2)  The occupation certificate must be accompanied by a fire safety certificate and a fire safety schedule for the building (if a fire safety schedule is required under Part 9).
(3), (4)    (Repealed)
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),
(c)  the fact that the building is a structure resulting from building work to which clause 162AB applies.
(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.