What is an Occupation Certificate?

An Occupation Certificate, usually shortened to OC, authorises the occupation and use of a new building or part of a building.

You need one if you want to:

• Occupy or use a new building, or
• Change the use of an existing building.

Before the OC is issued, the council or private certifier has to be satisfied that:

• A development application has been approved
• The design and construction are not inconsistent with that DA
• Any pre-conditions set out in the DA have been met
• A Construction Certificate has been issued
• The building is suitable for occupation under its Building Code of Australia classification

Getting the OC is the final step in the DA and construction process.

Interim and final certificates no longer exist

The legislation changed in 2017. Two things went:

1. The distinction between interim and final OCs, replaced by a single certificate
2. The provision that let premises be occupied without an OC if they had already been occupied for more than 12 months

The terms interim and final only matter now for development consents or certificates issued before 1 December 2019. Since that date you can’t apply for an interim OC at all.

When you don’t need one

You don’t need an OC if the work is exempt development, development that doesn’t require consent, or development carried out by or on behalf of the Crown.

What happens if you don’t have one

It’s up to the buyer to satisfy themselves about the condition of the property. That’s the theory. In practice, their conveyancer will ask whether an OC exists, and if it doesn’t, depending on the circumstances the buyer may ask for the contract to be made conditional on you obtaining one before settlement.

There’s more to it than a missing piece of paper. Under the contract and the conveyancing legislation, sellers give a warranty that, among other things, there’s nothing about a building or structure on the land that would justify an upgrading or demolition order. The remedy for a breach is rescission of the contract before completion and return of the deposit.

We’ve seen clients reduce their sale price because they couldn’t produce an OC.

Where do you apply for one?

Occupation Certificates are issued by your local council or a private certifier.

Applications go through the NSW Planning Portal, either at the same time as your DA or complying development certificate, or as a standalone application.

The short version

You can legally sell without an Occupation Certificate. Whether you get the price you want without one is another matter, particularly if there’s obvious work on the property that a buyer will ask about.

If you’ve built, extended or converted anything, find out now what council has on record. It’s much cheaper to sort out before you list than to negotiate over at exchange.