A developer with building work that is approaching completion on or after 1 September 2020, must give notice of the date they plan to apply for an Occupation Certificate.
Notice is to be given at least six months before the application for an occupation certificate is made, and no more than 12 months before the application for an Occupation Certificate is made.
Transitional timeframes apply for the first 2 weeks from 1 September 2020.
There can be serious consequences if notice is not provided, including fines and a prohibition order that delays the occupation certificate being issued.
Giving notice of an application for an occupation certificate allows time for a review of the building development including a possible Occupation Certificate Audit to identify any serious defects before the building is completed and buyers settle their contracts.
Developers who expect to seek an occupation certificate in the six-month period of 1 September 2020 to 31 March 2021 will be required to comply with a transitional arrangement.
In this period, a developer will not be able to apply for an Occupation Certificate unless they notify of their proposed application date by 14 September 2020.
the person who contracted, arranged or facilitated building work to be carried out
the owner of the land on which a building or part of a building is erected or constructed (who was the owner when the building work was being carried out)
the principal contractor for the building work within the meaning of the Environmental Planning and Assessment Act 1979
the developer for building work for a strata scheme within the meaning of the Strata Schemes Management Act 2015
What is building work? The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 defines building work in s5 and covers any physical activity in the erection of a building or part of a building whether new or being altered or repaired.
What is in the notice?
The notice must set out the date that the developer expects to make the application for the occupation certificate for the building or part of the building (the expected date). Other information required:
for a developer who is a body corporate: the name, physical address, registered office address, email address, contact officer name
for a developer who is an individual: the name, physical address and registered office address (if available), email address
name of builder, physical address, builder’s licence number, email and telephone, contact officer name
the Development Application consent reference number
the site address where the building work is being undertaken
whether you plan to register a strata plan or a strata plan of a subdivision
whether you have Home Building Insurance in accordance with Part 6 of the Home Building Act 1989
How do I lodge the notice?
There are two ways that notice can be given.
If your planning application is already in the NSW Planning Portal, then the notice should be lodged in the NSW Planning Portal as part of the intent to lodge an Occupation Certificate process. Councils and Principal Certifying Authorities (PCAs) in the Sydney Metropolitan, Illawarra, Central Coast and Newcastle areas have been using the NSW Planning Portal from 1 July 2020 and must process all planning applications this way from 31 December 2020.
If the planning application for the building work is not in the NSW Planning Portal then you must manually complete an Expected Completion Notice form.
What if the expected completion date changes?
If the expected completion date is late or early by more than 60 days, then the developer must notify of the new date within seven days of becoming aware of the changed in circumstances.
Occupation Certificate Audits
After the notice is lodged, the project will be reviewed and may be selected for an Occupation Certificate (OC) Audit. The OC Audit will be carried out by inspectors from the Department of Customer Service.
The OC audit involves a review of designs and documents (including contracts) for building work as well as a physical onsite inspection(s). The focus during inspections is on the key building elements of structure, waterproofing, fire rating systems, building services and external enclosures.
Should the project be selected for an OC Audit, a Notice for Information and Records will be sent to the developer, with required project documentation to be uploaded to the NSW Planning Portal. See sample notice for the types of project documentation required for an OC Audit.
A Prohibition Order, Stop Work Order, or Building Work Rectification Order can be made if our inspectors find any serious defects.
What is a serious defect? A serious defect includes any defect that is likely to cause the inability to inhabit or use the building or part of the building for its intended purposes, or any building element that does not comply with the requirements of the Building Code of Australia, relevant Australian Standard or relevant approved plans, or any use of products in contravention of the Building Products (Safety) Act 2017 (NSW).
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