Interim Occupation Certificates are regularly used by our Accredited Building Certifiers to authorise the occupation of a partially completed development, or the use of a building that has changed its Building Code of Australia classification. They are particularly useful for projects that are staged over several months or years.

However, last year’s changes to the NSW Environmental Planning and Assessment Act 1979 removed the terms Interim and Final and therefore the use of such Certificates altogether. Once the legislation is amended, the only way a building will be authorised for occupancy or use is if an Occupation Certificate is issued at the completion of the project, or a stage of the project.

The change was originally scheduled for 1 September 2018, but it was postponed for 12 months to allow time for the industry to adjust. Seven months later, there has been no amendment to the legislation or specific advice about how it will be implemented, except for a reassurance that it will not affect the ability to have staged occupations.

How will it work?

According to the NSW Department of Planning and Environment, it’s business as usual until the new building and certification provisions take effect. After 1 September 2019, anyone looking to occupy or use a partially completed building (or part of a building) will require an Occupation Certificate, rather than an Interim or Final Occupation Certificate.

The problem as we perceive it lies in satisfying Council’s conditions of consent, in particular those which must be completed before an Occupation Certificate can be issued. In large and complex projects, it’s often the case that DA conditions are staggered relative to the staging of the development. i.e. prior to issue of the Final Occupation Certificate or prior to the issue of an Interim Occupation Certificate.

Under the proposed provisions it appears this ability has been removed.

What impact will it have?

The biggest question is how will Council allow for these changes when drafting conditions of consent, in particular those relating to Occupation Certificates on staged development. It’s likely that the onus will be on developers to make sure they have considered how the project will be staged right from the beginning, so Council can structure conditions in a way that’s consistent with the staged occupation.

However, existing development consents that presently have staging based upon Interim and Final Occupation Certificates will be subject of these provisions, if an Occupation Certificate is applied for post 1 September 2019. This existing consents may warrant Section 4.55 modifications to permit staging under these new legislative provisions.

What should you do?

There is a lot of uncertainty in the industry, given the lack of information on the proposed legislation changes. We certainly recommend that you seek legal advice about how it may impact your current and future building contracts and development programs, so you’re prepared for the transition away from Interim and Final Occupation Certificates moving forward.