On this page:
Key information
Who must give expected completion notice?
How and when does a developer give notice?
Occupation certificate audits
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Key information
- A developer working on a class 2, 3 and 9c building must give notice of the date they plan to apply for an occupation certificate
- This notice is called an expected completion notice (ECN).
- Notice must be given at least 6 months, but no more than 12 months, before applying for an occupation certificate.
- Giving notice allows time for a review of the building development by NSW Fair Trading and the Office of the Building Commissioner, including a possible occupation certificate audit, to identify any serious defects before the building is completed and buyers settle their contracts or building occupants move in.
- There can be serious consequences if notice is not provided, including fines and a prohibition order that delays the occupation certificate being issued.
- This obligation was introduced on 1 September 2020 under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act).
Who must give an expected completion notice?
A developer must provide notice of the date they plan to apply for an occupation certificate. A developer is defined in section 4 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) as any one of the following:
- 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 RAB Act defines building work and covers any physical activity in the erection of a building or part of a building whether new or being altered or repaired.
How and when does a developer give notice?
A developer with building work that is approaching completion must give notice of the date the building is expected to be completed and their plan to apply for an occupation certificate on the NSW Planning Portal.
Notice must be given at least 6 months, but no more than 12 months, before applying for an occupation certificate.
Some building work may be completed in less than six months. If at the commencement of building work, a developer expects to apply for an occupation certificate in less than six months, they must submit the expected completion notice within 30 days of building work commencing.
Visit the NSW Planning Portal resources page for more information about this process.
What if my building work will be completed in less than 6 months?
The expected completion notice must be given at least 6 months before the application for an occupation certificate is made. However, some building work that requires an occupation certificate may be completed in less than 6 months – such as staged developments.
If at the commencement of building work for a new building, the developer expects to apply for an occupation certificate in less than 6 months, the developer must give an expected completion notice within 30 days of building work commencing.
What if the expected completion date changes?
If the new date is within 60 days of the original notified date, no action is needed.
If the new date is late or early by more than 60 days of the original notified date, the developer must lodge an expected completion amendment notice in the NSW Planning Portal. This must be lodged within 7 days of the developer becoming aware of the change in circumstances.
What are the requirements to lodge an expected completion notice for class 3 or 9c building work that started before 3 July 2023?
If the expected completion date for a class 3 or 9c building is after 3 July 2023 and before 3 January 2024, the developer must submit an expected completion notice before 18 July 2023 to avoid a fine or prohibition order. This will need to be submitted on the NSW Planning Portal if the developer intends to apply for an occupation certificate.
This transitional period applies to developers of class 3 and 9c buildings only, who would have been unable to meet the requirement to provide the ECN with at least 6 months’ notice prior to the commencement of this requirement. This transitional period will allow developers to submit an ECN and avoid the delay of being issued an occupation certificate.
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 Authorised Officers (building inspectors) from the Department of Customer Service.
The OC audit may involve 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 safety systems, building services and the building's external enclosures.
Should the project be selected for an OC audit, a Notice for information and records will be sent to the developer and copied to the certifier, with required project documentation to be uploaded to the NSW Planning Portal. See the sample notice for the types of project documentation required for an OC audit.
The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 provides information-gathering powers and powers of entry which are relied on to carry out the 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.
Need further support?
For questions related to the requirements under the Design and Building Practitioner scheme, contact NSW Fair Trading on 13 32 20.
You can also contact Service NSW to ask a question, report an issue or give feedback.
For questions related to lodging documents on the NSW Planning Portal call 1300 305 695 or email [email protected].