What is an Occupation Certificate?
An Occupation Certificate (OC) authorises the occupation and use of a new building or part of a building.
You need an occupation certificate (OC) if you want to:
- Occupy or use a new building, or
- Change the use of an existing building.
Prior to the OC being issued, Council or the Private Certifier must be satisfied that the development meets regulatory standards including:
- A development application (DA) has been approved
- The design and construction of the building is not inconsistent with the DA
- Any pre-conditions set out in the DA have been satisfied
- A Construction Certificate (CC) has been issued
- That the building is suitable for occupation (in accordance with its Building Code of Australia (BCA) classification).
Obtaining the OC is the final step in the DA and construction process and is required for the use, occupation or change of use of a new building subject to a Complying Development Certificate or Construction Certificate.
In 2017, changes were made to the OC legislation. Some of the key changes include the removal of the:
- Distinction between interim and final OCs in favour of one certificate; and
- The provisions which permit the occupation and use of premises which do not have an OC if those premises were occupied for more than 12 months (former s109M(2)(b)).
The terms ‘interim’ and ‘final’ occupation certificates are only relevant for development consents or OCs issued before 1 December 2019. From 1 December 2019, there is no longer the ability to apply for an interim OC.
What if my development is exempt?
You do not need an OC if your development is exempt development, development that does not require consent, or development that is erected by or on behalf of the Crown.
More about an OC and the Contract for Sale
An OC is not a disclosure document and therefore does not need to be attached to the Contract for Sale of Land for the purposes of marketing a property for sale. A property can be sold without an OC.
What if I don’t have an OC?
Whilst it is up to the purchaser to satisfy themselves as to the condition of the property and its fitness for purpose, the purchaser’s conveyancer or solicitor will ask whether an OC exists and, if one doesn’t (depending on each individual circumstance), the purchaser may request the Contract for Sale of Land be conditional upon the seller obtaining an OC prior to settlement.
Sellers make a warranty under the Contract and Conveyancing legislation that, amongst other things, there is no matter in relation to any building or structure on the land that would justify the making of any upgrading or demolition order. The only remedy is rescission of the contract before completion and return of the deposit.
We have seen some clients have to reduce their sale price because they weren’t able to supply an OC.
If you know you have made changes, it’s best to chase up the necessary certificates to make the sale run smoothly. Always check to see if your council has record of the structures on the land.
Where can you apply for an Occupation Certificate?
They can be applied for online via the NSW Planning Portal, either:
- When you apply for your development application (DA) or complying development certificate (CDC), or
- As a standalone application.